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issued_date string	decision_number 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 MERIT SYSTEMS PROTECTION BOARD 2025 MSPB 1 Docket No. DC-1221-21-0203-W-1 Mary Reese, Appellant, v. Department of the Navy, Agency. January 31, 2025 Richard R. Renner , Esquire, Raleigh, North Carolina, for the appellant. Kristin Roberts , Esquire, and Michael S. Causey , Esquire, Washington, D.C., for the agency. Andres M. Grajales , Esquire, Washington, D.C., for amicus curiae, the American Federation of Government Employees. Debra D’Agostino , Esquire, Washington, D.C., and Rosa M. Koppel , Esquire, McLean, Virginia, for amicus curiae, the National Employment Lawyers Association and the Metropolitan Washington Employment Lawyers Association. Julie D. Yeagle , Esquire, and Gregory Giaccio , Esquire, Washington, D.C., for amicus curiae, the Office of Special Counsel. Martin Akerman , Arlington, Virginia, pro se, amicus curiae. Pere Jarboe , Annapolis, Maryland, pro se, amicus curiae. BEFORE Cathy A. Harris, Chairman* Raymond A. Limon, Vice Chairman Henry J. Kerner, Member** The Board members voted on this decision before the effective date of Acting Chairman Kerner’s designation. *Member Kerner recused himself and did not participate in the adjudication of this appeal. 2 OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied her request for corrective action in this individual right of action (IRA) appeal. For the reasons set forth below, we DENY the petition for review. We AFFIRM the initial decision, as MODIFIED, to consider the appellant’s claims of additional protected activity unaddressed in the initial decision and to supplement the administrative judge’s analysis of whether the agency rebutted the appellant’s prima facie case of reprisal. In so doing, we resolve some of the questions of law addressed in the order to the parties and the Federal Register notice issued by the Board in this case, see 89 Fed. Reg. 28816-01 (Apr. 19, 2024), and thereby clarify the scope of 5 U.S.C. § 2302(b)(9)(C), which prohibits 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.” BACKGROUND ¶2 The appellant joined the agency in May 2019, as a Public Affairs Specialist. Initial Appeal File (IAF), Tab 75 at 4. In a January 2020 performance assessment, the agency described her contributions during 2019 positively. IAF, Tab 12 at 21-24. However, the agency terminated the appellant that same month during her probationary period. Id. at 25-33. The termination letter described her work products as typically adequate but indicated that the agency was nevertheless terminating her for, inter alia, “rude, disrespectful, insubordinate, and demeaning” conduct, her “refus[al] to interact with coworkers due to a perceived slight,” her “instigat[ing] and escalat[ing] interactions . . . on what should be simple coordination actions,” and her filing a complaint about a coworker that the agency deemed to be “false and misleading.” Id. at 27-28. The appellant’s first-line supervisor signed the termination letter, stating that he had seen this conduct 3 himself, that the appellant’s second-level supervisor had reported similar conduct, and that the appellant’s conduct had persisted despite counseling. Id. at 28, 32. ¶3 Following her probationary termination, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging whistleblower reprisal. IAF, Tab 7 at 9, Tab 8 at 4-9. OSC terminated its investigation in December 2020, IAF, Tab 8 at 18-21, and this IRA appeal followed, IAF, Tab 1. ¶4 The administrative judge determined that the appellant established jurisdiction over some of her allegations. IAF, Tab 18. In particular, the administrative judge concluded that the appellant presented nonfrivolous allegations regarding the following alleged whistleblowing disclosures and activities that she also exhausted with OSC: (1) disclosures about meetings between her first-line supervisor, second-line supervisor, other agency officials, and a Government contractor, which the appellant deemed improper; (2) disclosures that her second-line supervisor was improperly instructing employees to change the dates on files related to congressional inquiries; (3) disclosures that she feared a particular coworker might bring a firearm to the office to commit a mass shooting; (4) disclosures that her supervisors were not properly handling reports of sexual harassment and assault in the workplace; and (5) a complaint the appellant filed with the agency’s Office of Inspector General (OIG). Id. at 2-5. The administrative judge also considered a handful of alleged retaliatory personnel actions but found that the appellant met her jurisdictional burden for just one—her probationary termination. Id. at 6-10. ¶5 Although the appellant initially requested a hearing while the appeal was pending before the administrative judge, she withdrew that request. IAF, Tab 1 at 2, Tab 76 at 4. After affording the parties the opportunity to make closing submissions, the administrative judge issued an initial decision, which denied the appellant’s request for corrective action on the merits. IAF, Tab 86, Initial Decision (ID). On the merits, the administrative judge found that the appellant did 4 not prove that her disclosures were protected under 5 U.S.C. § 2302(b)(8), but she did prove that her OIG complaint was protected under 5 U.S.C. § 2302(b)(9)(C). ID at 13-28. The administrative judge further found that the appellant proved that this protected activity was a contributing factor in the appellant’s probationary termination. ID at 28-29. Lastly, the administrative judge found that the agency successfully rebutted the appellant’s prima facie case of reprisal. ID at 29-41. ¶6 The appellant has filed a petition for review, which exclusively addresses her probationary termination and does not reassert any other alleged personnel actions.1 Petition for Review (PFR) File, Tab 3. She first argues that she engaged in more protected whistleblowing than found by the administrative judge. Id. at 19-27. Next, the appellant argues that her whistleblowing was a contributing factor in her probationary termination and that the agency failed to rebut her prima facie case of reprisal. Id. at 28-38. Finally, the appellant presents arguments about the administrative judge’s procedural rulings. Id. at 38-40. The agency has filed a response to the appellant’s petition for review, and the appellant has replied to that response. PFR File, Tabs 7, 10. ¶7 After the filing of the petition, response, and reply, the Board sought amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C). Notice of Opportunity to File Amicus Briefs, 89 Fed. Reg. 28816-01 (Apr. 19, 2024). In particular, the Board sought guidance on whether complaints covered under 5 U.S.C. § 2302(b)(9)(A) are precluded from coverage under 5 U.S.C. § 2302(b)(9)(C), whether activity that falls within the protections of Title VII may also be protected by section 2302(b)(9)(C), and whether section 2302(b)(9)(C) encompasses, among other things, informal discussions with someone from an agency component that might conduct investigations and formal interviews with 1 Because the appellant has not challenged the administrative judge’s conclusion that her probationary termination was the sole personnel action within the Board’s jurisdiction, we have not considered any of the other personnel actions that the appellant originally alleged. 5 someone who is appointed as a fact finder but who is not otherwise part of a formal investigatory office or component. Id. Five individuals or entities, including OSC, filed amicus briefs. PFR File, Tabs 17-21. In addition, the Board issued an order to the parties to this appeal seeking their arguments about the same matters. PFR File, Tab 14. Both parties responded and subsequently filed reply briefs. PFR File, Tabs 22-23, 25-26. We have considered all of the filings on review in making our decision. ANALYSIS ¶8 At the merits stage of an IRA appeal, the appellant must prove by preponderant evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or activity was a contributing factor in an agency’s personnel action. Turner v. Department of Agriculture, 2023 MSPB 25, ¶ 12. If the appellant meets that burden, the agency is given an opportunity to prove by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure or activity. Id.; see 5 U.S.C. § 1221(e)(1)-(2). ¶9 In the analysis that follows, we agree with the administrative judge’s decision to deny the appellant’s request for corrective action. However, we modify the initial decision in several respects. Most notably, we address the most recent version of 5 U.S.C. § 2302(b)(9)(C) and explain how it protects some of the appellant’s activities. In terms of the three questions identified in the Federal Register notice and the Board’s order to the parties, we do not reach the first question because the appellant did not engage in activity protected under 5 U.S.C. § 2302(b)(9)(A), and we answer the other two questions in the affirmative. 6 The appellant did not prove that she made disclosures protected by 5 U.S.C. § 2302(b)(8). ¶10 The appellant argues that what the administrative judge characterized as disclosures (1)-(4), described above, were disclosures protected by 5 U.S.C. § 2302(b)(8). PFR File, Tab 3 at 19-27. She further argues that disclosures (1), (2), and (4) were accompanied by activity protected by 5 U.S.C. § 2302(b)(9)(B), (C), and (D). We will address each argument in turn. ¶11 A disclosure is protected under section 2302(b)(8) if an appellant reasonably believed that it evidenced any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Turner, 2023 MSPB 25, ¶ 14. The appellant need not prove that the matter disclosed actually established one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, she must only show that she possessed a reasonable belief. Id. The test to determine whether a putative whistleblower had a reasonable belief in the disclosure is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidenced a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 6. An appellant must identify a specific law, rule, or regulation that the agency purportedly violated, but she need not identify it by title or number for her disclosures to be protected when the “statements or circumstances clearly implicate an identifiable violation of law, rule, or regulation.” Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001); Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 24 (2015); Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 19 (2013). Further, disclosures must be specific and detailed, not vague, conclusory allegations of wrongdoing based on unsupported speculation. Gabel, 2023 MSPB 4, ¶ 6; see El v. Department of 7 Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard necessary to establish Board jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016); Sobczak v. Environmental Protection Agency, 64 M.S.P.R. 118, 122 (1994) (finding that disclosures constituting unsupported speculation do not meet the jurisdictional requirements in an IRA appeal). Disclosure 1 ¶12 The first of the appellant’s alleged disclosures concerned meetings between agency officials and a Government contractor, which the appellant believed were improper. E.g., IAF, Tab 18 at 3. The appellant presented a sworn statement specifically describing these alleged disclosures. IAF, Tab 7 at 4. She also provided testimony from a deposition taken during her Board appeal about the same matter. IAF, Tab 64 at 51-62. According to the appellant, she believed that the meetings, which she attended, violated a law, rule, or regulation because they provided the Government contractor with information that was not public, thereby giving the contractor an unfair advantage over others. IAF, Tab 7 at 4. The appellant further alleged that she believed that the meetings were improper because they were not attended by the type of agency official authorized to hold meetings with potential contractors. Id. ¶13 The administrative judge found that this set of disclosures was not protected. She reasoned that the disclosures were too vague and conclusory. ID at 13-14. She further reasoned that the disclosures did not rise to the level of an abuse of authority, ID at 15, gross mismanagement, ID at 16, or a violation of law, rule, or regulation, ID at 16-17. Finally, the administrative judge found that the appellant did not establish that she had a reasonable belief regarding her disclosures because, inter alia, her duties were unrelated to contracting or 8 procurement and the record contained virtually no information about any underlying contract. ID at 17. ¶14 The appellant disagrees with the administrative judge. PFR File, Tab 3 at 22-24. For instance, the appellant argues that her disclosures were sufficiently specific to show that she reasonably believed that the meetings violated contracting laws and regulations. Id. at 22. She also argues that the administrative judge erred by relying in part on the appellant not recalling or presenting evidence about some potentially pertinent facts, such as ones about procurement training, which she had cited as giving her reason to believe the meetings were improper. Id. We disagree. ¶15 The appellant’s first-line supervisor, who directed the meetings in question and was a recipient of the appellant’s disclosures about the meetings, submitted a sworn statement. He described the meetings, why they were proper, and why the appellant’s concerns were mistaken. IAF, Tab 84 at 87. Another agency official submitted a similar, though less detailed, sworn statement. Id. at 97. Among other things, these officials indicated that no non-public information was revealed, there was no solicitation for a contract at the time or in the period that followed, and the meetings merely constituted permissible market research to determine whether the contractor—who had an existing contract with the agency for a different product—had software that could someday replace the agency’s outdated systems. Id. at 87, 97. ¶16 The head of the agency’s contracts branch also submitted a sworn statement about the matter. Id. at 107-08. Among other things, he stated that after the appellant telephoned him with her concerns in November 2019, he met with her, and it was evident that she was new to the Government and did not understand the acquisition process. Id. at 108. He further stated that he explained to the appellant “that a meeting with a contractor aimed at determining what [an] industry is capable of providing is beneficial to [the agency] and is permissible market 9 research.” Id. Notably, he also contradicted the appellant’s sworn statement to the extent that the appellant indicated that her disclosure caused him to stop similar meetings from happening in the future. Compare id., with IAF, Tab 7 at 4. ¶17 As set forth above, the appellant was not required to disclose actual wrongdoing; she only needed to have a reasonable belief that her disclosures evidenced one of the kinds of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). Nevertheless, we agree with the administrative judge that the appellant did not meet that burden. The record indicates that the agency was merely meeting with an existing contractor and was not entertaining bids, soliciting a contract, or anything of the sort. Nevertheless, the appellant seems to have assumed that something far more nefarious was occurring, vaguely speculating that something was amiss. She did so after only a few months of Government employment regarding topics that were far outside her expertise or job duties as a Public Affairs Specialist and despite an explanation from the head of contracting regarding why what she observed was not improper.2 E.g., IAF, Tab 12 at 22-24, Tab 84 at 65, 86-87. Under these circumstances, the appellant has not proven by preponderant evidence that she reasonably believed that the situation she disclosed constituted a violation of law, rule, regulation, or any other type of wrongdoing described in the whistleblower statute. 2 The appellant argues that, because she lacked training and knowledge in the area of Government contracting, she would reasonably believe that a wider range of action would constitute a violation of law, rule, or regulation. PFR File, Tab 3 at 24. The appellant cites no legal authority binding on the Board to support this position, and we are unaware of any such authority. The Board has relied on an employee’s experience in a particular field to find that a disclosure about wrongdoing in that field was reasonable. See, e.g., Cooper v. Department of Veterans Affairs, 2023 MSPB 24, ¶ 17 (finding an employee’s disclosure about a violation of the Federal Acquisition Regulations reasonable in light of her experience as a senior acquisitions professional). We are not persuaded that, under the facts of this appeal, the appellant’s lack of knowledge helps her meet her burden of showing a reasonable belief. 10 Disclosure 2 ¶18 The next set of alleged disclosures revealed that the appellant’s second-line supervisor was instructing employees to backdate certain files relating to congressional inquiries. E.g., IAF, Tab 18 at 3. The appellant’s sworn statement from below further described the same, as did her deposition testimony. IAF, Tab 7 at 5, Tab 64 at 39-42. ¶19 The administrative judge found that the appellant did not prove that she made protected disclosures about this alleged changing of dates. She reasoned that the allegations were vague, conclusory, unsupported, and that a reasonable person in the appellant’s position would not believe that it revealed the type of wrongdoing protected under the statute. ID at 17-19. The appellant disagrees. PFR File, Tab 3 at 24-25. Among other things, the appellant suggests that additional details about the alleged wrongdoing were unimportant or not available due to the administrative judge’s discovery rulings. Id. We are not persuaded by the appellant’s arguments. ¶20 The appellant describes making these disclosures within weeks of joining the agency, when it is likely that she had limited information about the agency’s processes. IAF, Tab 7 at 5. Additionally, although the appellant described making this disclosure alongside another coworker who had similar concerns, IAF, Tab 64 at 40-41, she has not identified any statement from that individual to corroborate her claims, nor has she challenged any particular ruling by the administrative judge that may have prevented her from doing so. ¶21 In addition, the alleged wrongdoer, who was the appellant’s second-level supervisor and one of the alleged recipients of the appellant’s disclosure, stated in a sworn declaration that he never instructed employees to improperly change dates, and he did not recall any disclosure about the matter. IAF, Tab 84 at 76-77. Another official, who was not in the appellant’s chain of command but who was responsible for the appellant’s training, indicated that the 11 appellant did raise these concerns with him. Id. at 97. However, he explained that the dates, which were for internal tracking and routing purposes only, were never used to deceive anyone. Id. The appellant has herself acknowledged that the dates were for internal routing use only. IAF, Tab 64 at 39. ¶22 After reviewing this evidence, we do not see how the disclosure implicated one of the types of wrongdoing set forth in the whistleblower protection statutes. If there was any manipulation of dates, it seems most likely that this was little more than an internal method of alerting the commanding officer to prioritize one matter over another. E.g., IAF, Tab 84 at 76, 97. There is nothing suggesting that letters to Congress or any other outside entity were misdated. The appellant’s vague speculation that there was something amiss, let alone a violation of law, rule, or regulation, does not meet her burden to prove by preponderant evidence that she made a protected disclosure. We therefore agree with the administrative judge’s conclusion that the appellant did not do so. Disclosure 3 ¶23 The third set of alleged disclosures were June 2019 statements that the appellant feared a particular coworker might bring a firearm to the office to commit a mass shooting. E.g., IAF, Tab 18 at 3. Once again, this alleged disclosure is recounted in more detail in the appellant’s sworn statement and deposition. IAF, Tab 7 at 5-6, Tab 64 at 46-51. ¶24 The administrative judge found that the appellant did not have a reasonable belief that she was disclosing a substantial and specific danger to public health or safety or any other category of wrongdoing under the whistleblower protection statutes. ID at 20-23. Among other things, she explained that, while the appellant had described offensive language used by this coworker and violent stories told by the coworker about his past active-duty military service, the appellant did not present any persuasive argument or evidence about his propensity for violence at the workplace. The appellant did not, for example, present 12 argument or evidence that the individual was angry at his colleagues or under duress. ID at 21-22. To the contrary, the appellant denied ever hearing the coworker threaten or direct anger at anyone in the office. IAF, Tab 64 at 48. For these reasons, the administrative judge concluded that the appellant did not have a reasonable belief that the coworker was likely to bring a firearm to the office and commit a mass shooting. ID at 21-23. ¶25 On review, the appellant suggests that she disclosed not only this coworker’s offensive language and violent stories but also that he had brought a gun to the workplace. PFR File, Tab 3 at 25-27. However, that allegation is noticeably absent from the sworn statement and deposition testimony referenced above. IAF, Tab 7 at 5-6, Tab 64 at 46-51. In that evidence, the appellant discussed why she worried that her coworker might bring a gun to the workplace without any indication that he had done so. IAF, Tab 64 at 46-51. She even indicated that she was unsure whether this individual owned a gun, though she inferred that he did. Id. at 50. The limited evidence that the appellant cites on review is no different. PFR File, Tab 3 at 25 (referencing IAF, Tab 13 at 24-25, 27, 28, Tab 64 at 30, 46). ¶26 The appellant is correct that an individual need not disclose harm that already occurred for the disclosure to be protected. PFR File, Tab 3 at 26; see Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 38-40 (finding an appellant’s disclosures about potential negative patient outcomes protected); Chavez, 120 M.S.P.R. 285, ¶¶ 19-20 (same). But the disclosed potential danger must be substantial and specific. Chambers v. Department of the Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010); Wilson, 2022 MSPB 7, ¶ 38. In determining whether a disclosed danger is sufficiently substantial and specific to warrant protection under the whistleblower statute, the Board must consider: (1) the likelihood of harm resulting from the danger; (2) when the alleged harm may occur; and (3) the nature of the harm, i.e., the potential consequences. Chambers, 602 F.3d at 1376; Wilson, 13 2022 MSPB 7, ¶ 38. A disclosed danger that could only result in harm under speculative or improbable conditions “should not enjoy protection.” Chambers v. Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008). Further, “a harm likely to occur in the immediate or near future should identify a protected disclosure much more than a harm likely to manifest only in the distant future.” Id. Here, the potential consequences of the danger were grave, but the appellant’s own statements about the matter support a conclusion that the likelihood and imminence of the danger were exceedingly remote. In fact, the appellant’s concerns appear to have been little more than unfounded speculation. Therefore, we agree with the administrative judge. The appellant did not meet her burden of proving that her disclosures about the coworker and his potential for violence were protected. Disclosure 4 ¶27 The last set of alleged disclosures were ones about sexual harassment in the workplace and her supervisors’ handling of the same. E.g., IAF, Tab 18 at 4. This set of disclosures is also recounted in the appellant’s sworn statement and contemporaneous documents created by the appellant and an agency investigative report. E.g., IAF, Tab 7 at 6-7, 11, 14-15, 17-19, Tab 13 at 4-21. ¶28 The administrative judge found that the appellant’s claim was vague and conclusory, ID at 23-25, and that the claim did not meet the reasonable belief standard, ID at 26-27. The administrative judge explained that the appellant was aware that management was acting on the underlying complaints, and that the appellant was simply dissatisfied with management’s explanation that it could not divulge specific details about how it was acting on the matter. ID at 25-27. ¶29 On review, the appellant reasserts that these disclosures were protected by section 2302(b)(8). PFR File, Tab 3 at 19-22. We modify the initial decision to expand on the administrative judge’s analysis under that section in light of Board precedent. 14 ¶30 In Edwards v. Department of Labor, 2022 MSPB 9, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), which was issued the day before the initial decision in this case, the Board considered a situation somewhat analogous to the situation in this case. The employee in Edwards disclosed and protested his supervisors’ alleged race discrimination. Id., ¶ 2. He also filed complaints of systemic race discrimination, including one with the agency’s Equal Employment Opportunity (EEO) office. Id. The employee then filed an IRA appeal alleging that the agency engaged in whistleblower reprisal for these disclosures and activities. Id., ¶¶ 2-3. ¶31 To the extent that the employee in Edwards alleged that his disclosures were protected by 5 U.S.C. § 2302(b)(8), the Board found otherwise. The Board held that allegations of discrimination and reprisal for activity that fall under the protections of Title VII, i.e., matters that can be pursued through the EEO process and before the Equal Employment Opportunity Commission (EEOC), are excluded from the protections of 5 U.S.C. § 2302(b)(8). Edwards, 2022 MSPB 9, ¶¶ 10-23. Here, because the appellant’s complaints are protected under Title VII, they are excluded from the protections of § 2302(b)(8). The appellant did not prove that she engaged in activity protected by 5 U.S.C. § 2302(b)(9)(B). ¶32 In her petition for review, the appellant separately asserts that her disclosures about sexual harassment (Disclosure 4) also constituted activity protected by 5 U.S.C. § 2302(b)(9)(B) and (C). PFR File, Tab 3 at 19-22. We modify the initial decision to address these provisions, which the appellant raised below but the administrative judge did not address. We start by addressing the applicability of section 2302(b)(9)(B). ¶33 Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice to take a personnel action against an employee in reprisal for “testifying for or otherwise lawfully assisting any individual” in “the exercise of any appeal, 15 complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C. § 2302(b)(9)(A)-(B); Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 6. This provision does not apply to an individual who has brought a complaint herself. Rather, this provision applies only to individuals who lawfully assist in someone else’s appeal, complaint, or grievance. McCray v. Department of the Army, 2023 MSPB 10, ¶¶ 23-25; see Edwards, 2022 MSPB 9, ¶¶ 27-28. ¶34 Evidence that includes emails from the period leading up to the agency’s investigation, IAF, Tab 14 at 4-8, 15-16, the appointment letters for the agency’s fact finder, id. at 11-13, and the close of investigation report, IAF, Tab 12 at 60, Tab 13 at 4, all indicates that the source of the investigation was the appellant’s own complaints. These records do not indicate that the appellant was assisting some other individual’s appeal, complaint, or grievance. The appellant’s petition for review and the evidence cited in it similarly suggest that the appellant complained on behalf of herself and others, not that she assisted someone else’s complaint. PFR File, Tab 3 at 19-20 (referencing IAF, Tab 83 at 9-10). Accordingly, section 2302(b)(9)(B) does not apply to the circumstances at hand. ¶35 We recognize that, in her sworn statement made in this IRA appeal, the appellant vaguely asserts that she “participat[ed] as a witness in support of [a particular coworker’s] sexual harassment proceeding.” IAF, Tab 7 at 7. But this coworker mostly brushed off questions about whether he had been the victim of sexual harassment during the relevant investigation. IAF, Tab 13 at 7-8, 10, Tab 14 at 15. And we found nothing to suggest that he exercised any appeal, complaint, or grievance of his own about the matter. Accordingly, we find that the appellant has not proven that she engaged in the type of lawful assistance protected by section 2302(b)(9)(B). The appellant engaged in some activity protected by 5 U.S.C. § 2302(b)(9)(C). ¶36 Section 2302(b)(9)(C) makes it a prohibited personnel practice to take a personnel action against an employee in reprisal for “cooperating with or 16 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.” As mentioned above, the administrative judge found that the appellant made disclosures to the agency OIG, which constituted activity protected under this provision. ID at 27-28. We agree. However, the appellant also asserted that she engaged in other activity protected under section 2302(b)(9)(C) as she pursued her allegations of sexual harassment in the office and management inaction in addressing it (Disclosure 4). PFR File, Tab 3 at 19-22. We modify the initial decision to address this claim. ¶37 Aside from her activity with the OIG, a September 18, 2019 memorandum from the appellant’s second-level supervisor recounts the appellant’s reports of sexual harassment in the workplace. IAF, Tab 13 at 81. It also describes the actions the second-level supervisor took in response, including one-on-one discussions with the appellant and convening a group “sensing session” facilitated by the agency’s EEO office. Id. According to this memorandum, the appellant reached out to one of the sensing session facilitators, after the fact, about her concerns regarding sexual harassment. Id. This seems to be a reference to an email from a few days earlier in which the appellant vaguely alluded to “inappropriate comments or behaviors” and “reported sexual harassment or assault.” Id. at 39. ¶38 A memorandum written by the head of labor and employee relations dated September 25, 2019, recounts this allegation of “inappropriate comments or behaviors” and “reported sexual harassment or assault,” as well as the official’s meeting with the appellant so the appellant could elaborate.3 IAF, Tab 14 at 4-5. 3 It appears that the alleged victim of the sexual assault whom the appellant repeatedly referenced did not consider himself to be a victim of sexual assault. Following the appellant’s reports, agency officials asked the alleged victim about what happened. IAF, Tab 14 at 15. The alleged victim described turning sideways to squeeze by a coworker, at which point the coworker backed into him. Id. The alleged victim described this as a misjudgment on the part of his coworker, but he indicated that he did not consider her actions to be sexual. Id. 17 According to yet another memorandum, the appellant further pursued the matter a few days later with a different agency official. This memorandum describes how the appellant went to the office of a Staff Judge Advocate on September 30, 2019, and described her concerns about sexual harassment in the workplace and inaction by her chain of command about the same. Id. at 6. An email from the appellant to the Staff Judge Advocate about their interaction states that she had first tried to contact the agency’s EEO office but was unable to do so. Id. at 7. The appellant asked the Staff Judge Advocate how she could proceed in a situation like this if she did not want to file a formal EEO complaint. Id. at 6-7. ¶39 On October 4, 2019, seemingly in response to one or more of the aforementioned interactions that various agency officials had with the appellant, the Chief of Staff to the Commander of the Naval Sea Systems Command appointed the Assistant to the Deputy Commander for Cyber Engineering to investigate. IAF, Tab 13 at 4, Tab 14 at 11-13. This investigator appears to have conducted the inquiry by himself, interviewing the appellant and others. See, e.g., IAF, Tab 13 at 22-27. During the appellant’s interview, she indicated that she declined to file an EEO complaint. Id. at 26-27. ¶40 Ultimately, the investigator prepared a “Management Inquiry Report,” dated December 11, 2019. Id. at 4-21. On February 3, 2020, the Chief of Staff to the Commander of Naval Sea Systems Command issued a memorandum describing how he reviewed and agreed with the investigator’s findings of fact. IAF, Tab 12 at 60. The appellant did not engage in activity within the purview of 5 U.S.C. § 2302(b)(9)(A); thus, that provision does not preclude the appellant’s activity from being protected under 5 U.S.C. § 2302(b)(9)(C). ¶41 Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation— (i) with regard to remedying a violation of [section 2302(b)(8)]; or (ii) other than 18 with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(i)-(ii). In McCray, an employee alleged reprisal for having filed grievances, including one that complained of discrimination against a disabled coworker. McCray, 2023 MSPB 10, ¶¶ 2-3, 13-14. Guided by the principles of statutory interpretation and prior precedent, the Board found that the employee’s grievances fell under section 2302(b)(9)(A) but not section 2302(b)(9)(C). Id., ¶¶ 27-29. ¶42 Among other things, the Board in McCray explained that this interpretation was required to read the provisions together and avoid rendering either inoperative or superfluous. Id., ¶ 27. The Board further explained that a contrary interpretation would result in section 2302(b)(9)(C) effectively subsuming all or part of section 2302(b)(9)(A). Id. The McCray decision then recognized that the Board’s jurisdiction in an IRA appeal, such as this one, is limited to activity covered by section 2302(b)(9)(A)(i), (B), (C), or (D). Id., ¶ 30. Because the grievances in McCray did not seek to remedy whistleblower reprisal, the Board concluded that they fell under section 2302(b)(9)(A)(ii) and thus outside the Board’s jurisdiction. Id. ¶43 Here, we find that the appellant’s activity does not fall under the purview of 5 U.S.C. § 2302(b)(9)(A) and its protection for “the exercise of any appeal, complaint, or grievance right granted by law, rule, or regulation.” The Board has described section 2302(b)(9)(A) activity as that which constitutes an initial step toward taking legal action against an employer for the perceived violation of an employee’s rights. Marcell v. Department of Veterans Affairs, 2022 MSPB 33, ¶ 6; Williams v. Department of Defense, 46 M.S.P.R. 549, 553 (1991). The record does not show that the appellant took that initial step. She declined to file an EEO complaint or anything comparable and chose instead to pursue the matters through other channels, which eventually led to the Assistant to the Deputy Commander for Cyber Engineering conducting an investigation. 19 Accordingly, the rationale of McCray does not apply to the circumstances at hand; because the appellant did not engage in activity within the purview of section 2302(b)(9)(A), that provision does not preclude the appellant’s activity from being protected under section 2302(b)(9)(C).4 Title VII does not preclude the appellant’s activity from protection under the investigation cooperation provision of 5 U.S.C. § 2302(b)(9)(C). ¶44 Before December 12, 2017, the whistleblower protection statutory scheme prohibited reprisal for “cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law.” 5 U.S.C. § 2302(b)(9)(C) (2016); McCray, 2023 MSPB 10, ¶ 26. Section 1097(c)(1) of the National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018 NDAA), amended section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an agency or the Special Counsel, a disclosure to “any other component responsible for internal investigation or review” also is protected. McCray, 2023 MSPB 10, ¶ 26; Edwards, 2022 MSPB 9, ¶ 29. ¶45 While analyzing the pre-2018 NDAA language, the Board held that any disclosure of information to an OIG or OSC was protected, regardless of its content, as long as the disclosure was made in accordance with applicable provisions of law. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. We agree with the position of OSC and several of the amici and find the same broad 4 In its amicus brief, OSC requests that the Board reconsider and overrule McCray. PFR File, Tab 18 at 3, 14-17. OSC argues that 5 U.S.C. §§ 2302(b)(9)(A) and 2302(b)(9)(C) should not be read to limit or preclude one another and that the McCray decision erred in finding otherwise. PFR File, Tab 18 at 3, 14-17. Put another way, OSC argues that activity protected under section 2302(b)(9)(A) can also be protected under section 2302(b)(9)(C) and, when that occurs, an employee should be afforded the protections of the latter for purposes of IRA appeal rights with the Board. PFR File, Tab 18 at 3, 14-17. Because we find that the appellant’s activity is not covered under section 2302(b)(9)(A), we decline to consider the matter further. 20 protection to be applicable to the amended version of the statute, which applies to this appeal. As of December 12, 2017, any disclosure of information to an OIG, OSC, or any another other component responsible for investigation or review at an agency is protected under 5 U.S.C. § 2302(b)(9)(C), regardless of its content, as long as the disclosure is made in accordance with applicable provisions of law. ¶46 Although the appellant’s activity involved statements about sexual harassment, which implicates the protections of Title VII, this does not preclude coverage under 5 U.S.C. § 2302(b)(9)(C). The language of section 2302(b)(9)(C), which covers cooperating with or disclosing “information” to certain entities, is devoid of content-based limitations. This is notably different from the anti-retaliation provision for protected disclosures, which contains explicit content-based limitations and therefore has been interpreted as excluding disclosures that fall under Title VII. 5 U.S.C. § 2302(b)(8); see, e.g., Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690-92 (Fed. Cir. 1992); Williams, 46 M.S.P.R. at 554. Moreover, although the applicable legislative history of 5 U.S.C. § 2302(b)(8), as discussed by the Board in Williams, 46 M.S.P.R. at 553-54, supports a finding that section 2302(b)(1) and (b)(8) are mutually exclusive, we have found no comparable legislative history that would limit 5 U.S.C. § 2302(b)(9)(C) in this way. The appellant’s statements to the agency investigator fall within the coverage of 5 U.S.C. § 2302(b)(9)(C). ¶47 As described previously, the appellant engaged in a series of conversations and activities that we must consider. She participated in a sensing session facilitated by the agency’s EEO office, and she separately spoke with the facilitator of that sensing session. IAF, Tab 13 at 81. The appellant also raised her concerns with a Staff Judge Advocate. IAF, Tab 14 at 6. After this, as discussed above, an agency official was designated to conduct an investigation. IAF, Tab 13 21 at 4, Tab 14 at 11-13. The investigator interviewed the appellant and others before issuing a final investigatory report. IAF, Tab 13 at 4-21. ¶48 In pertinent part, section 2302 defines a “disclosure” as “a formal or informal communication or transmission.” 5 U.S.C. § 2302(a)(2)(D). Moreover, section 2302(b)(9)(C) does not distinguish between formal or informal cooperation. Thus, we find that the formality or lack thereof regarding the activity described above is of no consequence when analyzing whether it is protected under section 2302(b)(9)(C). Rather, the key question is whether an appellant’s activity was directed to a covered investigatory entity. ¶49 As mentioned previously, section 2302(b)(9)(C) prohibits 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.” Thus, regardless of the name of the agency entity, if its function is to conduct internal investigations or review, section 2302(b)(9)(C) applies. The question then becomes what constitutes an agency component responsible for internal investigation or review. Section 2302(b)(8) does not supply such a definition. However, under the principle of statutory construction known as ejusdem generis (“of the same kind”), when a general word or phrase follows an enumeration of specific things, the general word or phrase is held to refer to things of the same kind as those specified. See, e.g., King v. Department of the Air Force, 122 M.S.P.R. 531, ¶ 7 n.4 (2015). This principle recognizes that the purpose of describing a class by examples and a general catchall phrase is to indicate how extensively a provision is intended to be applied. Kinney v. Department of Agriculture, 82 M.S.P.R. 338, ¶ 5 (1999). Therefore, we find that the “other component responsible for internal investigation or review” should be an entity with attributes that are generally “of the same kind” as an Inspector General. 22 ¶50 At the time of the amendment to 5 U.S.C. § 2302(b)(9)(C) that added the “any other component responsible for internal investigation or review” language, the Inspector General Act of 1978, as amended, Pub. L. No. 95-452, 92 Stat. 1101, had established Offices of Inspectors General in designated executive-branch departments and agencies as “independent and objective units” whose responsibilities included, among other things, conducting and supervising audits and investigations of agency programs and operations and improving agency programs and operations by promoting economy, efficiency, and effectiveness and by preventing and detecting fraud and abuse.5 5 U.S.C. App. III, § 2. The Act authorized an Inspector General to, among other things, obtain relevant agency records, conduct investigations, issue reports, and obtain information from witnesses. Id., § 6(a). An Inspector General is therefore independent from agency line managers, and there is a degree of formality to an investigation or review that is designed to, for example, engage in fact-finding. We find that agency components as described in section 2302(b)(9)(C) should have similar attributes and functions, although such attributes may vary from agency to agency. In general, such components will have a degree of independence and objectivity, as well as the authority to investigate or review by taking testimony, collecting evidence, and making findings and recommendations. We acknowledge that some attributes of an Inspector General under the Act appear to be unique to that position, including being appointed by the President with the advice and consent of the Senate, id., § 3(a); being under the general supervision of the head of an agency or the officer next in rank below such head, id.; reporting to Congress on Inspector General activities and reporting suspected violations of criminal law to the Attorney General, id., §§ 5, 4(d); having unfettered access to agency records, id., § 6(a)(1); having the authority to issue subpoenas, enforceable in Federal court, to 5 The Inspector General Act of 1978, which was set out in the former Appendix to Title 5, was repealed and restated by Pub. L. No. 117-286, 136 Stat. 4206, 4361 (Dec. 27, 2022), at 5 U.S.C. § 401 et seq. 23 obtain information during an investigation, id., § 6(a)(4); and being subject to removal only by the President, id., § 3(b). Given the statutory reference to components “other” than Inspectors General, however, we find that Congress did not intend for such components to have all of these same attributes. ¶51 Applying the principles set forth above, we find that the statutory language’s reference to “any” component is broad enough to encompass not just permanent agency components but also ad hoc internal investigations or reviews conducted pursuant to an established agency procedure with authorities and purposes similar to those described above, even if, as in this case, the investigation is performed as a collateral duty by an agency employee. ¶52 Here, the Chief of Staff to the Naval Sea Systems Commander appointed the Assistant to the Deputy Commander for Cyber Engineering to conduct an investigation of specific allegations raised by the appellant involving the agency’s Office of Corporate Communications. IAF, Tab 14 at 11-13, Tab 75 at 4. This investigator, therefore, appears to have occupied a position with a degree of independence and objectivity from the Office of Corporate Communications. The initial appointment letter for this “fact finding inquiry” instructed the investigator to gather information and provide a written report surrounding allegations raised by the appellant, guided by identified Department of Defense and agency policies relating to violence prevention and unlawful harassment. IAF, Tab 14 at 12. It also authorized this individual to interview witnesses, draft a summary of their statements for their signature, examine and collect copies of any necessary documentary records, and report findings of fact, including any credibility determinations, in a written report. Id. at 12-13. All civilian and military personnel were directed to cooperate with the inquiry unless the investigator discovered facts constituting potential criminal violations. Id. at 13. Further, the Assistant to the Deputy Commander for Cyber Engineering was directed to consult with advisors from the agency’s Labor and Employee Relations 24 Office and Office of Counsel. Id. The investigator, among other things, submitted a Management Inquiry Report that included signed declarations from numerous witnesses as well as documents provided by witnesses. IAF, Tab 13 at 4-83. Under the circumstances of this case, we find that the appellant’s statements to the Assistant to the Deputy Command for Cyber Engineering were protected under section 2302(b)(9)(C).6 In sum, we find that the appellant engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C) when she complained to the OIG and when she cooperated with and disclosed information to the Assistant to the Deputy Commander for Cyber Engineering. The appellant did not prove that she engaged in activity protected by 5 U.S.C. § 2302(b)(9)(D), the right to disobey provision. ¶53 The appellant separately argues that her set of disclosures about meetings with a contractor (Disclosure 1) and her set of disclosures about backdating files (Disclosure 2) also constituted activity protected under 5 U.S.C. § 2302(b)(9)(D), and that the administrative judge failed to address these claims. PFR File, Tab 3 at 24-25. Because the appellant is correct that the administrative 6 Although the appellant alleges in her petition for review that she engaged in activity protected by section 2302(b)(9)(C), she does not specify that this activity included her participation in an EEO sensing session or discussions with a facilitator of that session. PFR File, Tab 3 at 21, Tab 10 at 9-10. The same is true of her responses to the Board’s request for additional argument about section 2302(b)(9)(C). PFR File, Tab 22 at 9-10. Thus, we do not address whether such activities are covered under section 2302(b)(9)(C). In any event, it appears that the sensing session was initiated by the Director of the Office of Corporate Communications to, in part, “provide a way for people to talk.” IAF, Tab 13 at 81-82. It was conducted by EEO office personnel as “facilitators only” to provide the workforce with an opportunity to participate, on a voluntary basis, in a session to voice their concerns and identify possible recommendations or solutions for office improvement in any area they wished to address in an anonymous format. Id. at 85. Based on this limited information, even if the appellant had intended to raise such a claim, she has not proven that any cooperation or disclosure of information during the sensing session or to a facilitator would meet the requirements of section 2302(b)(9)(C) as outlined above. Similarly, considering the criteria set forth above, she has not met her burden of proving that, under the facts of this case, the Staff Judge Advocate or any other individual, other than the Deputy Commander for Cyber Engineering who conducted the official investigation, constituted a “component” responsible for internal investigation or review. 25 judge did not address the claims, we do so now and modify the initial decision accordingly. The statutory provision at issue, section 2302(b)(9)(D), prohibits retaliation for “refusing to obey an order that would require the individual to violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D); Fisher, 2023 MSPB 11, ¶¶ 11-12. ¶54 Regarding the activity associated with Disclosure 1, the appellant has not identified below or on review any particular evidence that she was given an order about the meetings. In her sworn statement, the appellant asserts that her supervisors “correctly perceived that [she] would refuse to violate federal acquisition laws and regulations.” IAF, Tab 7 at 5. She also asserts that she “disclosed to [several officials] that [she] was not willing to have any such meetings” with the contractor. Id. But the appellant does not recount any order that she do so, followed by a refusal to obey such an order. The appellant’s deposition testimony, which provides additional context, states only that “it was implied” that she would be tasked with hosting more of these meetings that she thought were problematic. IAF, Tab 64 at 59-60. Yet the appellant later stated that she was told she would not have to attend future meetings if she did not want to do so. Id. at 61. For these reasons, the appellant has not proven that she engaged in activity protected by section 2302(b)(9)(D) regarding these meetings. ¶55 Turning to the activity associated with Disclosure 2, the appellant suggests that she refused to obey an instruction about the backdating of internal agency files. IAF, Tab 7 at 5, Tab 64 at 39-42. The appellant has not, however, directed us to evidence showing that she disobeyed an order. Thus, we again find that the appellant has not proven that she engaged in activity protected by section 2302(b)(9)(D).7 7 In light of our finding that the appellant did not disobey an order, we do not reach the issue of whether the appellant showed that an order would have required her to actually violate a law, rule, or regulation. See 5 U.S.C. § 2302(b)(9)(D). 26 The appellant proved the contributing factor element of her burden. ¶56 Another element of an appellant’s burden of proof in an IRA appeal, such as this one, is proof that her protected disclosure or activity was a contributing factor in the contested personnel action. Turner, 2023 MSPB 25, ¶ 12. One way to meet this burden is through the knowledge/timing test, which allows an appellant to demonstrate that the protected activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that it was a contributing factor in the personnel action. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 63. ¶57 The administrative judge found that the appellant met her burden of proving the contributing factor element of her case for her protected OIG activity because the agency removed her just days after learning of her OIG complaint. ID at 28-29. We agree. We modify the initial decision to also find that the appellant established the contributing factor element in connection with the other activity we found protected under section 2302(b)(9)(C). Among other things, the individual who signed the appellant’s termination letter in January 2020 was among those interviewed by the agency investigator about the appellant’s allegations just 1 month earlier. IAF, Tab 12 at 25-32, Tab 13 at 4, 98-99; see 5 U.S.C. § 1221(e)(1). The agency proved that it would have taken the same probationary termination in the absence of the appellant’s protected whistleblowing. ¶58 Once an appellant presents a prima facie case of whistleblower reprisal by proving that she made protected disclosures or engaged in protected activity that was a contributing factor in a covered personnel action, the burden shifts to the agency. Soto, 2022 MSPB 6, ¶ 6. In determining whether an agency has met its burden of proving that it would have taken the same personnel action in 27 the absence of the protected activity, the Board will consider all of the relevant factors, including the following: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who do not engage in such protected activity, but who are otherwise similarly situated. Id., ¶ 11 (citing Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). These are commonly called the Carr factors. In making its determination, the Board must consider all of the pertinent evidence in the record and must not exclude or ignore countervailing evidence by only looking at the evidence that supports the agency’s position. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (“Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion”). The factors are not viewed as discrete elements, each of which the agency must prove by clear and convincing evidence; rather, the Board weighs these factors together to determine whether the evidence is clear and convincing as a whole. Soto, 2022 MSPB 6, ¶ 13. ¶59 After recognizing these standards, the administrative judge found that the agency met its burden. ID at 29-41. In short, the administrative judge found that the agency had strong evidence in support of the probationary termination, ID at 31-40, and that the responsible officials had no real motive to retaliate, ID at 41. The administrative judge made no findings about comparator employees, i.e., Carr factor 3. ¶60 On review, the appellant disagrees with the administrative judge’s analysis. PFR File, Tab 3 at 28-38. For example, she suggests that her chain of command responded to Disclosures 1 and 2 by accusing her of not being a “team player,” and she argues that this reflects retaliatory animus. Id. at 28 (referencing 28 IAF, Tab 7 at 5). In addition, the appellant asserts that the agency’s justification for her probationary termination was especially weak. Id. at 29, 32. The appellant also points to a passage of the termination letter stating that the appellant “instigated and escalated interactions,” and she argues that this and other similar rationales were, in effect, the agency citing her whistleblowing as a basis for the probationary termination. Id. at 29-30, 33 (referencing IAF, Tab 12 at 27-28). The appellant further asserts that there were just days between her OIG complaint and her probationary termination, id. at 30-31, the administrative judge failed to recognize that her first- and second-level supervisors had a motive to retaliate for the complaint, id. at 34-36, and the initial decision is silent as to any comparator evidence regarding how the agency treats similarly situated nonwhistleblowers, id. at 37-38. As discussed below, we modify the administrative judge’s Carr factor analysis but reach the same conclusion that the agency proved by clear and convincing evidence that it would have taken the same probationary termination absent the appellant’s protected activity. Carr Factor 1 ¶61 Regarding the strength of the evidence in support of the appellant’s probationary termination, we agree with the administrative judge that this evidence is strong. ID at 31-40. As further detailed in the initial decision, there is ample evidence of the appellant’s inability to get along with either coworkers or supervisors during her short time with the agency. ¶62 To illustrate with a few examples, in a written declaration that the appellant’s second-level supervisor apparently made following a November 2019 interview, he characterized the appellant as “inflexible,” “rigid,” and unwilling to learn how the agency “does business.” IAF, Tab 13 at 76. He further recounted how the appellant would routinely cut people off to interject her unsolicited opinions or engage in other such conduct. Id. at 76-78. The second-level supervisor also drafted a memorandum for the record in December 2019 describing 29 a meeting in which the appellant aired numerous and seemingly petty grievances about interactions with colleagues. IAF, Tab 12 at 34. He also described how the appellant “borderline badger[ed]” him about office supplies at this meeting, how she was “condescending and abrupt,” how she was “borderline hostile,” and how this was an “on-going pattern.” Id. at 34-35. ¶63 Subsequently, the appellant’s management chain drafted additional memoranda describing the appellant’s conduct in more detail, including her coworkers’ complaints about that conduct. E.g., id. at 37-38, 75-77. Among other things, this included the appellant engaging in hostile and unprofessional conduct, repeatedly interrupting superiors and colleagues, intentionally ignoring members of her team, and stating that she would no longer meet with colleagues unless a member of Human Resources was also present. Id. at 75-77. Much of this is corroborated by other evidence, such as emails from the appellant’s coworkers. Id. at 86-87. One of those coworkers described how she and the appellant had a friendly relationship in and out of the office, but that the relationship abruptly changed when the appellant became angry about the coworker using a shared printer, thereby delaying the appellant’s use of the same. Id. According to this coworker, the appellant had begun to wage a “Cold War” in the office, “creating a toxic environment,” causing this coworker to dread her workdays. Id. at 86. ¶64 Accordingly, the agency had strong reasons for terminating the appellant during her probationary period, a period during which agencies are encouraged “as fully as possible to determine” the individual’s fitness for Federal employment. 5 C.F.R. § 315.803(a). Carr Factor 2 ¶65 Turning to the motive to retaliate, the administrative judge reasoned that the appellant’s first- and second-level supervisors, i.e., the ones most responsible for the appellant’s probationary termination, had no motive to retaliate for her protected whistleblowing activity with the OIG, as demonstrated by them 30 facilitating that activity. ID at 41. In making this finding, the administrative judge provided almost no analysis. Accordingly, we modify the administrative judge’s analysis and also consider the additional activity that we found to be both protected and a contributing factor in the appellant’s probationary termination. ¶66 When the officials responsible for a personnel action are the subject of the appellant’s protected activity, those officials generally have a strong motive to retaliate. Young v. Department of Homeland Security, 2024 MSPB 18, ¶ 30; Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 45 (2016) (finding a strong motive to retaliate when the deciding official was the subject of a prior settlement agreement involving the appellant). The precise strength of that motive will depend on an examination of all of the record evidence. See Whitmore, 680 F.3d at 1368; Soto, 2022 MSPB 6, ¶ 11. Furthermore, officials responsible for the overall performance of the agency may have a motive to retaliate to the extent that criticism of the institution may reflect on them in their capacity as managers and employees. Whitmore, 680 F.3d at 1370; Wilson, 2022 MSPB 7, ¶ 65. ¶67 That the appellant’s protected activity directly implicated the agency officials most responsible for the appellant’s termination suggests a strong motive to retaliate. On the other hand, while not precluding a motive to retaliate, we must also consider that they facilitated some of the appellant’s protected activity, that the allegations of wrongdoing were seemingly without merit, and that the officials had suffered no adverse consequences at the time they took the personnel action 31 because of the appellant’s activity.8 Considering all of the evidence, we find that there was some motive to retaliate but that it was not very strong. Carr Factor 3 ¶68 Turning to the last Carr factor, any evidence that the agency takes similar actions against employees who do not engage in protected activity but who are otherwise similarly situated, the administrative judge made no findings. Thus, we address that matter now. ¶69 During the proceedings below, the agency presented argument and evidence about another individual who was not a whistleblower but who was terminated during the individual’s probationary period around the same time as the appellant’s probationary termination. IAF, Tab 66 at 50, 53-60, Tab 84 at 33, 110-11. However, that individual was terminated for a mix of poor performance and conduct. IAF, Tab 66 at 53-57. The Board has held that the requirement that comparator employees for Carr factor purposes be “similarly situated” does not require “virtual identity;” rather, “[d]ifferences in kinds and degrees of conduct between otherwise similarly situated persons within an agency can and should be accounted for.” Whitmore, 680 F.3d at 1373; Chavez, 120 M.S.P.R. 285, ¶ 34. Nevertheless, we cannot conclude that the comparator identified by the agency is similarly situated for these purposes given the information provided about the potential comparator. 8 In her petition for review, the appellant notes that the investigator’s final report criticized the appellant’s supervisors for not addressing the appellant’s sexual harassment allegations in a more timely manner. PFR File, Tab 3 at 36; see IAF, Tab 13 at 21. This argument is not particularly persuasive regarding the issues presented by this appeal because the report was issued long after the appellant’s probationary termination. We also recognize that a retaliatory motive could stem from an official’s frustration about an employee’s continued misplaced allegations of wrongdoing rather than a genuine concern that the whistleblowing revealed wrongdoing by the official. Nevertheless, considering all of the evidence in this matter, any motive to retaliate was not particularly strong. 32 ¶70 On review, the appellant attempts to compare herself to a different employee whom she describes as being subject to lesser discipline for more egregious conduct. PFR File, Tab 3 at 37. But we have no indication that this individual was a probationary employee, like the appellant, and the appellant has not directed us to any argument or evidence about how this individual might otherwise be similarly situated. Thus, this individual is not a valid comparator. Accordingly, neither the agency nor the appellant has produced evidence of how the agency treats similarly situated employees who are not whistleblowers. ¶71 The agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, and “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis.” Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. However, the failure to produce such evidence, if it exists, “may be at the agency’s peril,” could “cut slightly against” the agency, and “may well cause the agency to fail to prove its case overall.” Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016); Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. If either or both of the first two Carr factors do not support a finding that the agency would have taken the same personnel action absent the disclosure or protected activity, the agency’s failure to present evidence of the third Carr factor may prevent it from carrying its overall burden. Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 26-30; see also Miller, 842 F.3d 1252, 1259-63. ¶72 Because it is the agency’s burden to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the appellant’s protected activity, the third Carr factor cannot weigh in the agency’s favor when the agency fails to introduce relevant comparator evidence. Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018); Soto, 2022 MSPB 6, ¶ 18. Here, the agency has introduced some comparator evidence, 33 but its evidence is insufficient to show that the proffered comparator is in fact appropriate. Under the particular circumstances of this case, we find that the agency’s failure to introduce complete, fully explained comparator evidence effectively removes this factor from the analysis. ¶73 In conclusion, the agency presented strong evidence in support of the appellant’s probationary termination. But agency officials involved in that probationary termination had some motive to retaliate for the appellant’s protected whistleblowing activity, and the record contains no persuasive evidence about similarly situated nonwhistleblowers. Considering the evidence as a whole, we find that the agency has proven by clear and convincing evidence that it would have taken the same probationary termination in the absence of the appellant’s protected activity. See 5 U.S.C. § 1221(e)(2). The agency has, therefore, met its burden of rebutting the appellant’s prima facie case of reprisal. The appellant has not shown that the administrative judge’s procedural rulings were an abuse of discretion. ¶74 The appellant asserts that the administrative judge made improper discovery rulings. PFR File, Tab 3 at 38-39. She also contends that the administrative judge improperly disallowed some of her proposed witnesses and that this prompted the appellant to withdraw her hearing request. Id. at 39-40. These arguments are unavailing. ¶75 Regarding discovery, the appellant alleges that the agency failed to (1) adequately initiate the discovery process by the designated deadline; (2) provide pertinent information in a deposition notice; (3) timely file a motion to compel; and (4) include a statement of good faith with that motion to compel. Id. at 38. The agency disagrees on all counts while providing a more thorough accounting of the circumstances. PFR File, Tab 7 at 5-8. ¶76 The parties presented extensive arguments and evidence about these issues below. IAF, Tabs 28-29. At its heart, the dispute stems from the agency 34 serving the appellant with a deposition notice by the designated deadline for initiating discovery, wherein the date of the planned deposition was listed as “TBD (1 Full Day May 13-27, 2021).” IAF, Tab 28 at 41. According to the agency, it provided a date range to accommodate scheduling conflicts, including the appellant’s planned surgery, in anticipation that the parties would later work together to decide which day worked best. PFR File, Tab 7 at 6; IAF, Tab 28 at 4-5. According to the appellant, the absence of a definitive date rendered the deposition notice invalid, regardless of the agency’s reasons. PFR File, Tab 3 at 38; IAF, Tab 28 at 39, Tab 29 at 5. This dispute led to the appellant refusing to participate in a deposition, the agency’s motion to compel, the parties’ arguments about the same, and the administrative judge compelling the appellant’s deposition. IAF, Tabs 28-29, 33. ¶77 An administrative judge has broad discretion in ruling on discovery matters, and the Board will not find reversible error in such rulings, absent an abuse of discretion. Dieter v. Department of Veterans Affairs, 2022 MSPB 32, ¶ 25. Under the circumstances described, we do not find that the administrative judge abused that broad discretion. ¶78 The appellant separately asserts that the administrative judge denied her motion to compel certain information and prohibited her from deposing certain officials, all of which hindered her case. PFR File, Tab 3 at 38-39. These issues were also thoroughly developed through competing pleadings and the administrative judge’s rulings. E.g., IAF, Tabs 30, 32, 34, 46-51. For example, the administrative judge denied the appellant’s request to take the deposition of several agency employees because the appellant waited until several months after the deadline for initial discovery requests and just 2 weeks before the prehearing submissions were due to issue her notice of those depositions, without any explanation for the delay, and because the requested deposition testimony appeared irrelevant. IAF, Tab 51 at 1-2. The appellant’s cursory assertion on review that the 35 administrative judge’s discovery rulings hindered her case do not persuade us that this or other similar rulings constituted an abuse of discretion. ¶79 Turning to the issue of the three disallowed witnesses, the appellant summarily asserts that she “made an adequate showing of the relevance each witness would have in this case.” PFR File, Tab 3 at 39-40 (referencing IAF, Tab 54 at 22-24). The administrative judge, however, determined that the appellant’s proffer of expected testimony for these individuals was speculative, redundant, and not relevant. IAF, Tab 73 at 5. The appellant subsequently withdrew her hearing request without any mention of the administrative judge’s rulings about witnesses. IAF, Tab 76. ¶80 An administrative judge has wide discretion to control the proceedings, including the authority to exclude testimony that she believes would be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013). To obtain reversal of an initial decision on the ground that the administrative judge abused her discretion in excluding evidence, the petitioning party must show on review that relevant evidence, which could have affected the outcome, was disallowed. Id. Here, the appellant’s general assertion that she adequately identified the relevance of her proposed witnesses below does not meet this burden and does not persuade us that the administrative judge erred. ORDER ¶81 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). 36 NOTICE OF APPEAL RIGHTS 9 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: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 9 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. 37 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 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 . 38 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 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 39 of competent jurisdiction.10 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. 10 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. 40 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/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 MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 19 Docket No. DE-3330-23-0125-I-1 Jason Terry, Appellant, v. Department of the Air Force, Agency. December 20, 2024 Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Lieutenant Colonel Neal Patrick Rodak , Esquire, Phoenix, Arizona, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member OPINION AND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal for failure to state a claim on which relief could be granted. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the appeal for further adjudication in accordance with this Opinion and Order. 2 BACKGROUND The appellant began working as a GS-9 General Supply Specialist with the Arizona Air National Guard (AZ ANG) in May 2021. Initial Appeal File (IAF), Tab 4 at 9, Tab 11 at 86. He held that position as a dual-status National Guard technician pursuant to 32 U.S.C. § 709. IAF, Tab 11 at 86. In December 2022, he applied for the GS-11 Supervisory General Supply Specialist position with the AZ ANG pursuant to vacancy announcement AZ-11738400-23-NW-22-205C, which was open to the public. IAF, Tab 1 at 5, Tab 11 at 36. In his application, the appellant claimed a 10-point veterans’ preference based on his Veterans Affairs (VA) rating of a 30% or more service-connected disability. IAF, Tab 4 at 8, Tab 11 at 36, 101. The agency interviewed the appellant for the position but selected another applicant. IAF, Tab 11 at 17, 72. The appellant filed a VEOA complaint with the Department of Labor (DOL), which DOL later notified him that it had closed, although it indicated that it had found the complaint “to have merit.” IAF, Tab 1 at 9. DOL determined, as it explained to the agency, that the selectee was deemed to have no veterans’ preference at the time of selection, and that the agency provided no evidence that it properly followed the required “pass over” procedures through the Office of Personnel Management (OPM) when a nonpreference eligible is hired over an applicant with veterans’ preference eligibility as set forth in 5 U.S.C. § 3318. IAF, Tab 11 at 36-37. DOL notified the appellant of his right to a Board appeal, which the appellant timely filed. IAF, Tab 1. He asserted that the agency violated his veterans’ preference rights and requested a hearing. Id. at 2, 5. The agency moved to dismiss the appeal, asserting that it had cancelled the selection and submitted a pass over request to OPM. IAF, Tab 9. Therefore, it argued, the appeal was not ripe for adjudication. Id. The appellant objected to the agency’s motion, arguing that an agency’s unilateral modification of its action after an appeal has been filed cannot divest the Board of jurisdiction. IAF, Tab 11 at 4. The administrative judge issued a show cause order assuming that 3 the Board had jurisdiction but stating that it appeared that the Board would nonetheless lack the authority to order relief if the appellant prevailed. IAF, Tab 12 at 1. The administrative judge explained that, pursuant to the holding of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v. Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board only has the authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or employee” to comply with corrective action, and the Arizona Adjutant General is not a “Federal employee” as defined in Title 5 of the United States Code. Id. at 1-2. Accordingly, he ordered the appellant to show cause why he should not dismiss the appeal for failure to state a claim on which relief can be granted. Id. at 2-3. In response to the show cause order, the appellant appears to have argued that the vacancy announcement at issue was a Title 5 civilian position with the National Guard under the appointment authority codified at 10 U.S.C. § 10508. IAF, Tab 13 at 4-9. He argued that the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2017 NDAA), amended 10 U.S.C. § 10508 to subject the state adjutants general and the various National Guards to the Board’s enforcement authority under 5 U.S.C. § 1204(a)(2). Id. at 4-7. In its response to the show cause order, the agency argued that state National Guards and state adjutants general remain outside the definition of a “Federal agency or employee,” and, thus, the Board does not have statutory enforcement authority under 5 U.S.C. § 1204(a)(2) over either. IAF, Tab 14 at 5. Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for failure to state a claim on which relief can be granted. IAF, Tab 15, Initial Decision (ID). He found that, although the Board has jurisdiction, it could not grant relief because it could not order compliance by the Adjutant General of Arizona, the Governor of Arizona, or any other person or entity. ID at 3-6. Specifically, he found that the 2017 NDAA did 4 not resolve the issue that the Federal Circuit confronted in Singleton, 244 F.3d at 1336, because it did not amend 5 U.S.C. § 1204(a)(2). ID at 5. The appellant has filed a timely petition for review, arguing that the administrative judge failed to address 10 U.S.C. § 10508. Petition for Review (PFR) File, Tab 1 at 7.1 The agency has not responded to the appellant’s petition for review. ANALYSIS The Board has jurisdiction over the appellant’s VEOA appeal. To establish the Board’s jurisdiction over a VEOA appeal based on an alleged violation of veterans’ preference rights, an appellant establishes jurisdiction by (1) showing that he exhausted his remedy with DOL; and (2) making nonfrivolous allegations that: (a) he is a preference eligible within the meaning of VEOA; and (b) the agency violated his rights under a statute or regulation relating to veterans’ preference. 5 U.S.C. § 3330a; Jarrard v. Social Security Administration, 115 M.S.P.R. 397, ¶ 7 (2010), aff’d sub nom. Jarrard v. Department of Justice, 669 F.3d 1320 (Fed. Cir. 2012); see Davis v. Department of Defense, 2022 MSPB 20, ¶ 5 n.1 (determining that an accurate exposition of VEOA’s jurisdictional elements may omit reference to the requirement that an appellant nonfrivolously allege that the action at issue took place on or after the October 30, 1998 enactment date of VEOA). We agree with the administrative judge that the appellant met his burden to prove that he exhausted his administrative remedy with DOL and nonfrivolously alleged that his nonselection 1 Following the submission of his petition for review, the appellant moved to present supplemental authority and corresponding argument based on the U.S. Supreme Court’s decision in Ohio Adjutant General’s Department v. Federal Labor Relations Authority, 598 U.S. 449, 453-54 (2023), issued on May 18, 2023, PFR File, Tab 3, and the Board’s decision in Erdel v. Department of the Army, 2023 MSPB 27; PFR File, Tab 5. The Board generally does not permit additional pleadings on review unless the party demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(4). In this matter, there is no need for additional argument. Therefore, we DENY the appellant’s motions. 5 and another candidate’s selection violated his veterans’ preference rights. ID at 3. We revisit the jurisdictional issue to expressly find that the alleged VEOA violation was committed by an “agency” within the meaning of VEOA. VEOA does not define “agency,” and there is nothing in the Act’s legislative history to illuminate the meaning of that word in the context of 5 U.S.C. § 3330a. Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 9 (2012). However, the Board has held that the remedial purpose of VEOA and the congressional solicitude for veterans reflected therein strongly favor reading section 3330a broadly in favor of the veteran when possible. Id., ¶ 15. For the reasons discussed below, we find that the alleged appointment authority for the vacancy announcement at issue shows that the appointment was to be made pursuant to the Department of Defense (DOD) civilian personnel system, and, therefore, the appellant’s nonselection comes within the purview of VEOA. The appellant nonfrivolously alleges that the vacancy announcement was for a Title 5 civilian position with the AZ ANG open under the authority of the 2017 NDAA.2 IAF, Tab 13 at 4; PFR File, Tab 1; see also IAF, Tab 1 at 12, Tab 11 at 16, 36-37. At this stage, we accept the appellant’s allegations that the appointment authority for the vacancy was 10 U.S.C. § 10508 and that the position was a Title 5 civilian position. See Ohio Adjutant General’s Department v. Federal Labor Relations Authority, 598 U.S. 449, 453-54 (2023) (concluding that dual-status technicians are Federal civilian employees). Section 10508, as amended by the 2017 NDAA, states that “[t]he Chief of the National Guard Bureau may . . . appoint, employ, [and] administer . . . persons” within the Bureau and the National Guard of each jurisdiction under certain listed sections of Title 5 and Title 32. 10 U.S.C. § 10508(b)(1). As we explained in Lane v. Department of the Army, 2024 MSPB 4, ¶ 8, a state National Guard acts through 2 The appellant’s allegation that the vacancy announcement was for a Title 5 civilian position is consistent with DOL’s conclusion that Title 5 veterans’ preference rights applied. IAF, Tab 11 at 36-37. 6 the authority delegated to it by the National Guard Bureau and its Chief, which are integrated into the DOD. See 10 U.S.C. §§ 10501, 10502(a)-(b), (d). The Chief can delegate his 10 U.S.C. § 10508(b)(1) appointing, employing, and administering authority to the various adjutants general. 10 U.S.C. § 10508(b)(2). Because of this arrangement, we find that the AZ ANG is an “agency” for purposes of 5 U.S.C. § 3330a. See Willingham, 118 M.S.P.R. 21, ¶¶ 16-18 (finding that a non-appropriated fund instrumentality integrated into the DOD civilian personnel system should be viewed as an agency for purposes of 5 U.S.C. § 3330a). Furthermore, 10 U.S.C. § 10508(b)(3)(A) specifies that, for administrative claims arising from, or relating to, “personnel actions or conditions of employment, including adverse actions under Title 5, pertaining to a person appointed, employed, or administered by an adjutant general under this subsection,” the individual state National Guard shall be considered the “employing agency.” 10 U.S.C. § 10508(b)(3)(A) (emphasis added). Accordingly, because we find that the appellant exhausted his remedy with DOL, and he has made nonfrivolous allegations that he is a preference eligible and that an agency violated his rights under a regulation relating to veterans’ preference, we find that the Board has jurisdiction over this appeal. See 5 U.S.C. § 3330a. The appellant has stated a claim on which relief can be granted. The Board has the authority to “order any Federal agency or employee to comply with any order or decision issued by the Board” in matters falling within its jurisdiction. 5 U.S.C. § 1204(a)(1)-(2); see Lane, 2024 MSPB 4, ¶ 6. The administrative judge relied on the Federal Circuit’s decision in Singleton, 244 F.3d at 1333, 1336-37, which held that, prior to the 2017 NDAA, Board orders were unenforceable against adjutants general of the National Guard because adjutants general were not Federal employees. The administrative judge applied the holding in Singleton and determined that, while the 2017 NDAA amended statutory provisions at Titles 5 and 32 to provide dual-status National Guard technicians with Title 5 appeal rights under certain circumstances, it did 7 not warrant a different outcome because it did not amend 5 U.S.C. § 1204(a) to provide the Board with enforcement authority against adjutants general. ID at 5. Since the issuance of the initial decision, we have held otherwise. Lane, 2024 MSPB 4, ¶¶ 7-11; Erdel v. Department of the Army, 2023 MSPB 27, ¶¶ 11-16. As the Supreme Court has determined, “[w]hile it is state adjutants general who ‘employ and administer’ dual-status technicians working for their respective State National Guard units, they can only do so pursuant to an express ‘designat[ion]’ of authority by the Secretary of the Army or the Secretary of the Air Force.” Ohio Adjutant General’s Department, 598 U.S. at 454 (citations omitted). Because National Guard technicians are ultimately employees of the Department of the Army and the Department of the Air Force, which are Federal agencies, the Board has the authority to order the employing agency of a National Guard technician to take an employment action under 5 U.S.C. § 1204(a)(2). Erdel, 2023 MSPB 27, ¶¶ 11-14. In Lane, we extended the holding in Erdel to find that the Board has the authority to provide relief in Title 5, chapter 75 adverse action appeals to any National Guard employees who were appointed to civilian positions under the authority of 10 U.S.C. § 10508. Lane, 2024 MSPB 4, ¶¶ 8-11. In doing so, we recognized that in the 2017 NDAA, Congress provided that the applicable adjutant general and National Guard “shall promptly implement all aspects of any final administrative order, judgment, or decision” in connection with an administrative proceeding challenging its adverse action against an individual hired under 10 U.S.C. § 10508(b). Lane, 2024 MSPB 4, ¶ 11 (citing 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B))). This language effectively authorizes the Board to enforce orders against the various National Guards. Id. The reasoning applied in Erdel and Lane is equally applicable here. The right of preference-eligible Federal employees, like the appellant, to appeal an agency’s violation of a veterans’ preference rule to the Board exists pursuant to 5 U.S.C. § 3330a. We previously concluded herein that the AZ ANG is an 8 “agency” for the purposes of 5 U.S.C. § 3330a. Supra pp. 5-6. Further, the 2017 NDAA provided that “all personnel actions or conditions of employment, including adverse actions under Title 5, pertaining to a person appointed, employed, or administered by an adjutant general under [10 U.S.C. § 10508(b)]” may be subject to administrative complaints, grievances, claims, or actions, and that the relevant National Guard “shall promptly implement all aspects of any final administrative order, judgment, or decision.” 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B)); see Lane, 2024 MSPB 4, ¶ 9 (finding that an employee appointed under 10 U.S.C. § 10508(b) may file “an administrative complaint, grievance, claim or action” challenging a Title 5 adverse action). A violation of veterans’ preference rules in hiring involves a “personnel action or condition of employment.” See 5 U.S.C. §§ 3309 (providing for the addition of points to a preference eligible’s score for hiring purposes), 3311 (providing credit for a preference eligible’s experience for hiring purposes), 3318(c) (providing that an agency must obtain permission from OPM before passing over a preference-eligible veteran for hiring). It would be implausible for Congress to have specifically provided for an administrative remedy under VEOA but for there to be no relief available to certain Federal employees, like the appellant, from the Board, which has jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB 27, ¶ 11 (finding that it would be beyond strange for Congress to have specifically amended two statutory provisions in different Titles of the U.S. Code to provide dual-status technicians with Board appeal rights, but for there to be no relief available from the Board); see also Willingham, 118 M.S.P.R. 21, ¶¶ 16-18 (finding Board jurisdiction and adjudicating a claim for corrective action under VEOA after concluding that a non-appropriated fund instrumentality operating as a component of the U.S. Marine Corps came within the purview of VEOA). We can conceive of no reason why 5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing orders against state National Guards in Title 5 VEOA appeals when it does not 9 preclude the Board from doing so in Title 5, chapter 75 adverse action appeals. 10 U.S.C. § 10508(b)(3)(B); see Lane, 2024 MSPB 4, ¶¶ 8-11; see also Willingham, 118 M.S.P.R. 21, ¶¶ 14-15 (discussing the long-standing solicitude of Congress for veterans). Thus, we conclude that the Board has the authority under 5 U.S.C. § 1204(a)(2) to order the DOD and, by extension, the state National Guard to provide relief in this matter. Accordingly, we vacate the initial decision, which came to the opposite conclusion. ORDER For the reasons discussed above, we remand this case to the Denver Field Office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: Gina K. Grippando Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf	Issuance Date: September 30, 2015 Appeal Type: Adverse Action Action Type: Indefinite Suspension Indefinite Suspension Access to Classified Information Harmful Procedural Error The appellant was indefinitely suspended from his position as an Operations Research Analyst based on the suspension of his access to classified information pending final adjudication of his security clearance. The AJ reversed the indefinite suspension action based on a finding of harmful procedural error because the agency failed to accord the appellant certain “unfavorable administrative action” procedures required by internal agency regulations. Holding: The Board granted the agency’s petition for review, reversed the initial decision, and sustained the agency’s indefinite suspension action. 1. The AJ erred in reversing the action based on harmful procedural error because the agency’s internal procedures only required it to afford an employee “unfavorable administrative action” procedures when a security clearance was actually revoked. Here, the appellant’s security clearance was only indefinitely suspended pending a final adjudication. The U.S. Court of Appeals for the Federal Circuit issued the following precedential decisions this week:
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 MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 18 Docket No. DE-1221-18-0335-W-2 Janie Young, Appellant, v. Department of Homeland Security, Agency. December 10, 2024 Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant. Joey Ann Lonjers , Esquire, Long Beach, California, for the agency. Gregory J. Martin , Esquire, Tucson, Arizona, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* Member 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 denied corrective action in her individual right of action (IRA) appeal. For the reasons set forth below, we GRANT the petition for review, REVERSE the initial decision’s denial of corrective action as to the appellant’s 15-day suspension, and ORDER corrective action in connection therewith. In so doing, we reaffirm and apply the Board’s analysis in whistleblower appeals involving a claim that a 2 report of misconduct or an ensuing investigation was retaliatory, as set forth in Russell v. Department of Justice, 76 M.S.P.R. 317 (1997). BACKGROUND ¶2 During the time period relevant to this appeal, the appellant was employed as a GS-15 Supervisory Field Operations Specialist with Customs and Border Protection and served as Chief of Staff to the Commander of the Joint Task Force West (JTFW) in Tucson, Arizona. Young v. Department of Homeland Security, MSPB Docket No. DE-1221-18-0335-W-1, Initial Appeal File (IAF), Tab 16 at 39, 354; Young v. Department of Homeland Security, MSPB Docket No. DE- 1221-18-0335-W-2, Appeal File (W-2 AF), Tab 25 at 1. The JTFW Commander was the appellant’s first-line supervisor. IAF, Tab 16 at 354; W-2 AF, Hearing Transcript Day 1 (HT-1) at 82 (testimony of the appellant). The appellant was the first-line supervisor for a special assistant and a mission support specialist. IAF, Tab 16 at 354; HT-1 at 89 (testimony of the appellant). ¶3 According to the appellant, in April 2016, she was made aware that the special assistant who reported to her had continuously failed to include her in communications between the special assistant and senior agency leadership, despite previous directives to include the appellant in all such communications. HT-1 at 94-97 (testimony of the appellant). As a result, she instructed the special assistant to draft a memorandum discussing how the communication issue could be remedied. IAF, Tab 10 at 4, 15-17; HT-1 at 97 (testimony of the appellant). The special assistant directly approached the Commander about the situation, who removed the special assistant from the appellant’s supervision, admonished the appellant, and ordered the appellant to identify the individual who had provided the information to her concerning the special assistant’s communications. IAF, Tab 10 at 4-5, 22, 37-38, Tab 16 at 351-52; W-2 AF, Tab 9 at 28-29; HT-1 at 97-102 (testimony of the appellant). The appellant refused to disclose from whom she had learned about the special assistant’s communications, contending 3 that the individual who had disclosed the communications was a whistleblower. W-2 AF, Tab 9 at 28-29; HT-1 at 98, 101-02 (testimony of the appellant). ¶4 On May 18, 2016, the appellant filed two complaints with the Office of Special Counsel (OSC) concerning the Commander’s actions as set forth above. IAF, Tab 10 at 19-35. These complaints concerned the Commander’s verbal admonishment of the appellant for insubordination for failing to obey his order to disclose the name of the employee who had informed the appellant of the communication issues with the special assistant, and further alleged that the Commander showed improper favoritism toward the special assistant by reassigning her to another supervisor instead of having her comply with the appellant’s instructions. Id. The appellant similarly reported the Commander’s alleged wrongdoing to the agency’s Office of Inspector General (OIG) through the Joint Intake Center (JIC). Id. at 40-43. On May 20, 2016, the appellant provided the Commander with a memorandum apprising him that she felt that, among other things, he had committed prohibited personnel practices by ordering her to disclose the name of her subordinate employee who informed her of the special assistant’s communications. Id. at 37-38. ¶5 Two months later, in July 2016, the mission support specialist over whom the appellant was the first-line supervisor filed an equal employment opportunity (EEO) complaint naming the Commander as the responsible management official. IAF, Tab 16 at 85-106, 128; W-2 AF, Tab 18 at 69-70, Tab 25 at 1; HT-1 at 137, 141 (testimony of the mission support specialist).1 The EEO complaint alleged that the Commander had improperly temporarily reassigned the mission support specialist to the agency’s Policy and Compliance Division and denied her training in retaliation for her involvement in the matter set forth above.2 IAF, Tab 16 1 Although the EEO complaint is not in the record, it is undisputed that the Commander was named as the responsible management official. 2 The record suggests that the mission support specialist was the employee who informed the appellant about the communications issues with the special assistant. W-2 AF, Hearing Transcript Day 2 (HT-2) (testimony of the Commander). 4 at 85. On August 15, 2016, the appellant served as the management official in an EEO mediation of the mission support specialist’s complaint. W-2 AF, Tab 25 at 1. Although the appellant and the mission support specialist arrived at a proposed settlement, which included a noncompetitive promotion and training, the proposed settlement required the approval of a higher-level official before it could become effective. W-2 AF, Tab 18 at 13. After learning of the EEO complaint and the appellant’s involvement as the agency official representing management, the Commander informed the Diversity and Civil Rights Officer (DCRO) that the Deputy Commissioner of the agency did not approve the settlement agreement. IAF, Tab 16 at 142. ¶6 On August 29, 2016, the Commander contacted the OIG/JIC alleging that the appellant had improperly served as the management official in the August 15, 2016 mediation because she did not inform him of the EEO complaint or discuss with him whether to engage in mediation, as he had previously instructed. IAF, Tab 16 at 128. He further alleged that the appellant’s participation in the mediation constituted a conflict of interest because the appellant was a personal friend of the mission support specialist and appeared to be using the EEO process to obtain training and a promotion for the mission support specialist in circumvention of agency rules. ¶7 In response to the Commander’s OIG/JIC complaint, the Office of Professional Responsibility (OPR) conducted an investigation and issued an administrative inquiry report. IAF, Tab 16 at 108-26. Thereafter, on August 30, 2017, a member of the discipline review board proposed the appellant’s removal based on the charges of an appearance of a conflict of interest, failure to follow supervisory instructions, and lack of candor. Id. at 75-78. After affording the appellant an opportunity to respond orally and in writing, the deciding official issued a decision sustaining the appearance of a conflict of interest and failure to follow supervisory instructions charges, but not the lack of candor charge. Id. at 41-45, 47-57. The sustained charges were based on the appellant’s actions in 5 serving as the management official in the mission support specialist’s EEO mediation. Id. at 42, 75-76. The deciding official mitigated the proposed penalty to a 15-day suspension. Id. at 43. During the pendency of these disciplinary proceedings, the Commander was replaced,3 and the new Commander issued the appellant a memorandum on February 12, 2018, laterally reassigning her to the position of Director of the Targeting Assessment Program for JTFW. Id. at 35. ¶8 On July 2, 2018, the appellant filed an IRA appeal with the Board alleging that the agency’s decisions to suspend her for 15 days and reassign her constituted reprisal for her protected disclosures and protected activity. IAF, Tab 1. She also argued that the OPR investigation that led to these actions was initiated in reprisal for her whistleblowing activity. After holding the appellant’s requested hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action.4 W-2 AF, Tab 30, Initial Decision (ID). The administrative judge found that the appellant met her burden of proving by preponderant evidence that she made a protected disclosure and engaged in protected activity that was a contributing factor in the agency’s decisions to suspend and reassign her. ID at 8-12. He went on to find that the agency proved by clear and convincing evidence that it would have suspended and reassigned her absent her protected disclosure and protected activity. ID at 12-19. In making these findings, the administrative judge did not address whether the investigation that led to the appellant’s suspension and reassignment was retaliatory. 3 At or around the time the agency proposed the appellant’s removal, the Commander was selected by the Secretary of the Department of Homeland Security to be the Director of the JTFW in San Antonio, Texas, and he transferred out of the Tucson, Arizona location. HT-2 at 162-63 (testimony of the Commander). 4 Prior to the issuance of the initial decision on the merits of the appellant’s whistleblower reprisal claim, the administrative judge ruled that the appellant made the requisite jurisdictional showing for the appeal to proceed to a hearing on the merits. IAF, Tab 17 at 1. This conclusion necessarily included a finding that the appellant had exhausted her administrative remedy with OSC. See IAF, Tab 10 at 87. Neither party has challenged the existence of Board jurisdiction. 6 ¶9 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 9. The agency has responded to the appellant’s petition for review, and the appellant has filed a reply. PFR File, Tabs 13-14. ANALYSIS We agree with the administrative judge that the appellant established a prima facie case of whistleblower reprisal regarding her protected activities. ¶10 At the merits stage of an IRA appeal, an appellant must prove by preponderant evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in an activity protected by 5 U.S.C. § 2303(b)(9)(A)(i), (B), (C), or (D), and that such a disclosure or activity was a contributing factor in an agency’s personnel action. 5 U.S.C. § 1221(e)(1); Smith v. Department of the Army, 2022 MSPB 4, ¶ 13. If the appellant meets that burden, then the agency is given an opportunity to prove by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13. ¶11 On petition for review in this appeal, neither party challenges the administrative judge’s finding that the appellant proved by preponderant evidence that she engaged in protected activity when she filed two complaints with OSC and a third complaint with the OIG/JIC.5 PFR File, Tabs 9, 13-14; ID at 8. We 5 The administrative judge acknowledged that the OSC and OIG/JIC complaints are protected regardless of their content, but he nonetheless proceeded to analyze the content of the complaints because he found that “the protected nature” of the complaints is relevant to the agency’s burden to show that it would have taken the personnel actions in the absence of the protected disclosures or activity. ID at 8-9. He concluded that “a reasonable person in the appellant’s position could believe that [the Commander] was violating the [whistleblower protection statutes] by requiring her to disclose” the identity of the person who informed her of the special assistant’s failure to include the appellant on written communications. ID at 9. However, he found that the portion of the appellant’s disclosure relating to the alleged impropriety of the Commander reassigning the special assistant was not protected because the appellant failed to show that the Commander lacked the authority to reassign subordinates. ID at 10. On review, the appellant challenges the latter finding. PFR File, Tab 1 at 15-17. We need not address whether this portion of the appellant’s disclosure was protected under section 2302(b)(8) because, as explained by the administrative judge, the activity of 7 agree with the administrative judge’s finding. 5 U.S.C. § 2302(b)(9)(C); Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 62. The parties also do not challenge that the 15-day suspension and reassignment are personnel actions covered under the whistleblower protection statutes, and we discern no error in that regard. PFR File, Tabs 9, 13-14; ID at 11; see 5 U.S.C.§ 2302(a)(2)(A)(iii), (iv); Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 7 (2007). Finally, there is no dispute on review that the appellant established by preponderant evidence that her protected activity was a contributing factor in the personnel actions discussed above because both the proposing and deciding officials admitted that they were aware of the appellant’s protected activity and both actions occurred within approximately 18 months of the protected activity. PFR File, Tabs 9, 13-14; ID at 11-12; see Smith, 2022 MSPB 4, ¶ 19 (explaining that an appellant can establish the contributing factor element through the knowledge/timing test). In sum, we find that the appellant established her prima facie case of whistleblower reprisal by preponderant evidence. The appellant also established a prima facie case of whistleblower reprisal regarding the OPR investigation. ¶12 Because the appellant met her burden of establishing a prima facie case of whistleblower reprisal, the administrative judge considered whether the agency proved by clear and convincing evidence that it would have suspended and reassigned the appellant absent her protected activity. ID at 12-19; see 5 U.S.C. § 1221(e)(1)-(2); Smith, 2022 MSPB 4, ¶ 13. He focused his analysis exclusively on the deciding official’s decision to suspend the appellant for 15 days and the new Commander’s decision to reassign her following the prior Commander’s departure. ID at 12-19. Ultimately, he concluded that the agency filing an OSC or OIG complaint is protected under section 2302(b)(9)(C) regardless of the complaint’s content. See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 62 (stating that disclosing information to an OIG or OSC is protected activity under section 2302(b)(9)(C) irrespective of whether an individual had a reasonable belief that she was disclosing wrongdoing and regardless of the complaint’s contents). 8 met its clear and convincing evidence burden. ID at 13, 19. Therefore, he denied corrective action. ID at 19. ¶13 On review, the appellant argues that the administrative judge erred in his analysis because he failed to consider any motive to retaliate on the part of the prior Commander in reporting the appellant’s alleged misconduct for investigation, which ultimately led to the personnel actions at issue. PFR File, Tab 9 at 20-22, Tab 14 at 5-7. In response, the agency asserts that the appellant waived any claim concerning the retaliatory nature of the investigation because, during the prehearing conference, she confirmed that she was not asserting that the investigation itself was a personnel action. PFR File, Tab 13 at 21-22. For the reasons discussed below, we find the agency’s argument unavailing. ¶14 In Spivey v. Department of Justice, 2022 MSPB 24, ¶¶ 10-12, we reiterated that an investigation generally is not a personnel action under 5 U.S.C. § 2302(a)(2)(A) unless it creates circumstances that rise to the level of a significant change in duties, responsibilities, or working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). See Sistek v. Department of Veterans Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020). However, in Russell v. Department of Justice, 76 M.S.P.R. 317, 323-24 (1997), the Board’s seminal case on retaliatory investigation claims, we found it appropriate to consider evidence regarding the conduct of an agency investigation when the investigation was so closely related to the personnel action that it could have been a pretext for gathering information to retaliate against an employee for whistleblowing activity. See Johnson, 104 M.S.P.R. 624, ¶ 7; Geyer v. Department of Justice, 70 M.S.P.R. 682, 688 (1996), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). Thus, although the appellant indicated during the prehearing conference that she was not asserting that the investigation was, itself, a separate personnel action, there is nothing in the record suggesting that she waived the general claim that the Commander initiated the investigation in reprisal for her protected activity. Accordingly, we discuss that claim here. 9 ¶15 In determining whether an investigation was so closely related to a personnel action that it could have been a pretext for gathering evidence to retaliate against an employee for whistleblowing activity, the Board will examine the origins of the investigation. Mangano v. Department of Veterans Affairs, 109 M.S.P.R. 658, ¶ 38 (2008); Russell, 76 M.S.P.R. at 323-24. Regarding the 15-day suspension, the two sustained charges—appearance of a conflict of interest and failure to follow supervisory instructions—arose from the findings of the OPR investigation, which undisputedly was initiated by the Commander’s complaint to the OIG/JIC. IAF, Tab 16 at 41-42, 75-76, 108-26, 128. As discussed previously, the Commander was the sole subject of the appellant’s OSC and OIG/JIC complaints regarding his handling of the communications issue involving the special assistant. IAF, Tab 10 at 19-35, 37-38, 40-43. Because the suspension action was based on the findings of the OPR investigation, and because the Commander initiated the OPR investigation and also was the subject of the appellant’s protected activity, we find that the OPR investigation was so closely related to the appellant’s suspension that it could have been a pretext for gathering evidence to retaliate.6 See Mangano, 109 M.S.P.R. 658, ¶ 44 (concluding that investigations were so closely related to the charged misconduct supporting the appellant’s removal that the investigations could have been a pretext for gathering evidence used to retaliate against the appellant for 6 Regarding the reassignment, however, the new Commander testified that he reassigned the appellant to the Director of Targeting position because there was a need in the region to refocus targeting efforts from marijuana interdiction to alien smuggling and that the appellant’s prior experience in targeting would make her an asset in that role. HT-1 at 226-29 (testimony of the new Commander). He further testified that he was aware of the appellant’s suspension, but that it played no role in his decision to reassign her, and that he regularly reassigned staff as necessary for mission purposes. HT-1 at 209, 235-36 (testimony of the new Commander). We also note that the new Commander was not the subject of the appellant’s whistleblowing activity. Accordingly, we find that the OPR investigation was not so closely related to the decision to reassign the appellant that it could have been a pretext for gathering evidence to retaliate against her. We therefore deny the appellant’s request for corrective action on this claim. 10 whistleblowing when, among other reasons, one of the investigations was convened by the agency official who was the subject of the appellant’s whistleblowing); Russell, 76 M.S.P.R. at 324 (finding that an investigation was so closely related to the personnel action that it could have been a pretext for gathering evidence to retaliate when the charges forming the basis for the action were the direct result of the investigation). ¶16 When, as here, an appellant has shown by preponderant evidence that an investigation is so closely related to a personnel action that it could have been a pretext for gathering evidence to retaliate, the Board will consider evidence regarding the investigation—more specifically, it will analyze the factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), as they relate to any report of misconduct and any ensuing investigation that led to a personnel action—in determining whether the agency has met its clear and convincing evidence burden.7 Russell, 76 M.S.P.R. at 323-24, 326-28; see Marano v. Department of Justice, 2 F.3d 1137, 1142 (Fed. Cir. 1993) (determining that, “[s]o long as a protected disclosure is a contributing factor to the contested personnel action, and the agency cannot prove its affirmative defense, no harm can come to the whistleblower”). That the investigation itself is conducted in a fair and impartial manner, or that it uncovers actionable misconduct, does not relieve an agency of its obligation to show by clear and 7 In Russell, 76 M.S.P.R. at 324, the Board also stated that, when an investigation is so closely related to a personnel action that it could have been a pretext for gathering evidence to retaliate, “and the agency does not show by clear and convincing evidence that the evidence would have been gathered absent the protected disclosure,” then the appellant will prevail on an affirmative defense of reprisal for whistleblowing. This statement, which is not supported in the decision by any legal authority, is inconsistent with the standard set forth at 5 U.S.C. § 1221(e)(2). It is also inconsistent with the rest of the Russell decision, which does not address whether the agency showed by clear and convincing evidence that the evidence would have been gathered absent the protected disclosure or activity, but instead analyzes whether the agency showed by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. Russell, 76 M.S.P.R. at 326-28. The statement is, therefore, dicta and will not be followed. 11 convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure or protected activity. See 5 U.S.C. § 1221(e)(2); Russell, 76 M.S.P.R. at 324. ¶17 This approach discourages the use of “selective investigations” as a retaliatory tool and, as we previously explained in Russell, is supported by the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 111 (1978), and the Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103 Stat. 16 (1989). Russell, 76 M.S.P.R. at 325 (explaining that the CSRA assures Federal employees that “they will not suffer if they help uncover and correct administrative abuses,” and that one of the goals of the WPA was to “encourage [G]overnment personnel to blow the whistle on wasteful, corrupt, or illegal [G]overnment practices without fearing retaliatory action by their supervisors or those harmed by the disclosures”) (internal citations omitted)). Since we decided Russell in 1997, Congress passed the Whistleblower Protection Enhancement Act (WPEA) in 2012. Pub. L. No. 112-199, 126 Stat 1465. The Senate Report for the WPEA acknowledged the “harassing character” of retaliatory investigations and that, in declining to add them to the list of qualifying personnel actions out of fear of chilling routine investigations, it “create[d] an additional avenue for financial relief once an employee is able to prove a claim under the WPA, if the employee can further demonstrate that an investigation was undertaken in retaliation” for a protected disclosure or protected activity. S. Rep. No. 112-155, at 20-21 (2012); see Sistek, 955 F.3d at 954. In doing so, the drafters of the WPEA specifically confirmed their intent that the Board’s seminal decision in Russell would remain the “governing law” following the enactment of the WPEA. S. Rep. No. 112-155, at 21; see Sistek, 955 F.3d at 955. Pursuant to the CSRA, WPA, and WPEA, we reaffirm our approach to retaliatory investigations as set forth in Russell. ¶18 In considering evidence of a retaliatory investigation, we acknowledge the well-established principle that the whistleblower protection statutes are not 12 intended to shield employees who engage in wrongful conduct merely because they also have engaged in whistleblowing activity. See Marano, 2 F.3d at 1142 n.5 (citing 135 Cong. Rec. 5033 (1989)); O’Donnell v. Department of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013), aff’d per curiam, 561 F. App’x 926 (Fed. Cir. 2014); Russell, 76 M.S.P.R. at 325. That same principle must apply to investigations; thus, to be clear, an employee’s protected disclosures or activities do not preclude an agency investigation of the employee.8 ¶19 However, that a finding of reprisal results in an outcome in the appellant’s favor despite proven misconduct is not an unfamiliar concept in the law. Our approach to retaliatory investigation claims is similar to our approach in adverse action appeals when an appellant proves discrimination or retaliation claims pursuant to, among other provisions, Title VII of the Civil Rights Act of 1964. In such cases, we reverse the adverse action even when the agency proves the charged misconduct. See, e.g., Durden v. Department of Homeland Security, 108 M.S.P.R. 539, ¶¶ 8-9, 14 (2008) (finding that, despite the agency meeting its burden of proof with respect to the charged misconduct, the appellant’s removal action could not be sustained because she established an affirmative defense of sex discrimination); Creer v. U.S. Postal Service, 62 M.S.P.R. 656, 658-64 (1994) (finding that the appellant’s removal could not be sustained despite the agency proving its charge of insubordination/failure to follow instructions when the appellant established a prima facie case of sex discrimination and the agency failed to articulate a legitimate, nondiscriminatory reason for its adverse action). When an employee has engaged in misconduct, she is not completely shielded from the consequences of her misconduct by anti-discrimination/retaliation laws or the whistleblower protection statutes. See Russell, 76 M.S.P.R. at 325. Rather, 8 The WPEA Senate report noted the concern that “legitimate and important agency inquiries–including criminal investigations, routine background investigations for initial employment, investigations for determining eligibility for a security clearance, IG investigations, and management inquiries of potential wrongdoing in the workplace–not be chilled by fear of challenge and litigation.” S. Rep. No. 112-155, at 21. 13 those laws shield an employee only to the extent that the record supports a finding that she would not have been disciplined except for her status as a whistleblower or membership in a protected class. Id.; Creer, 62 M.S.P.R. at 658-64. ¶20 The consideration of evidence of an alleged retaliatory investigation does not undermine Congress’s conclusion, or the U.S. Court of Appeals for the Federal Circuit’s and the Board’s case law, that a retaliatory investigation does not constitute an independently actionable personnel action under the whistleblower protection statutes. Rather, our decision in Russell, and Congress’s subsequent reliance on it, require the Board to consider alleged retaliatory investigations as a part of its evaluations of an underlying personnel action. See Sistek, 955 F.3d at 957; S. Rep. No. 112-155, at 21. The agency failed to prove by clear and convincing evidence that it would have initiated an investigation of the appellant absent her whistleblowing activity. ¶21 To prevail in a whistleblower reprisal case, that is, one in which an appellant alleges that agency officials retaliated against her for whistleblowing by taking or failing to take, or threatening to take or fail to take, a personnel action covered under 5 U.S.C. § 2302(a)(2)(A), the agency must show by clear and convincing evidence that it would have taken or failed to take the personnel action absent the protected disclosure or activity. 5 U.S.C. §§ 1221(e), 2302(b)(8); Carr, 185 F.3d at 1322; Smith, 2022 MSPB 4, ¶ 23. In determining whether the agency has met its burden, the Board generally considers the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate by the agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323; Smith, 2022 MSPB 4, ¶ 23. ¶22 When an appellant raises a claim of an alleged retaliatory investigation, and the initiator of the investigation is a supervisor or management official who was the subject of the appellant’s protected disclosure or protected activity, the Board 14 must assess the Carr factors somewhat differently.9 In considering Carr factor one—the strength of the agency’s evidence in support of the action, the Board will consider the strength of the evidence that the agency official had when reporting or initiating the investigation, rather than the evidence that was discovered as a result of the report or investigation.10 See Russell, 76 M.S.P.R. at 326. Regarding Carr factor two, the Board will consider the motive to retaliate on the part of the official who reported the misconduct or initiated the investigation. Id. at 326-27. Relevant evidence may include whether the official was the subject of the appellant’s whistleblowing activity or a resulting investigation, whether the official suffered any consequences as a result of that activity, whether the official knew about the activity when making the report or initiating the investigation of the appellant, and how soon after the whistleblowing or protected activity the report of misconduct or initiation of an 9 A distinction exists between reports of misconduct or investigations initiated by a supervisor or management official and reports of misconduct or investigations initiated by coworkers or other individuals. When the individuals who reported the misconduct or initiated the investigation are not supervisory or management officials, no claim of a retaliatory investigation by the agency may be established. See Carr, 185 F.3d at 1326. By contrast, when, as here, the individual initiating the investigation is a management official, we must consider whether the initiation of the investigation was retaliatory. See Russell, 76 M.S.P.R. at 325. 10 This is similar to the established principle in cases involving claims of reprisal for protected disclosures and activities that the relevant inquiry is what the management official knew at the time of the personnel action. Schneider v. Department of Homeland Security, 98 M.S.P.R. 377, ¶ 19 (2005); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶ 23 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table). It follows that, because the purpose of an investigation is to uncover facts, just as the agency’s personnel action cannot be based on information obtained through a retaliatory investigation, an investigation cannot be deemed retaliatory merely because a management official’s concerns were not borne out during a subsequent investigation. An agency need not wait to investigate reasonable allegations of employee misconduct until the misconduct becomes more severe or obvious. Cf. Thomas v. Department of the Army, 2022 MSPB 35, ¶ 27 (explaining that an agency does not have to tolerate inappropriate conduct of a sexual nature until it becomes so pervasive and severe that it exposes the agency to liability under the equal employment opportunity statutes); Lentine v. Department of the Treasury, 94 M.S.P.R. 676, ¶ 13 (2003) (same). 15 investigation began.11 Id. Finally, when considering Carr factor three, the Board will assess whether the relevant officials reported or initiated investigations against similarly situated employees who were not whistleblowers.12 Id. at 327. ¶23 An appellant’s decision to raise a claim of a retaliatory investigation does not foreclose raising a claim of whistleblower reprisal based on the personnel action that is closely related to the investigation. Thus, an appellant may pursue a claim of reprisal for having made a protected disclosure or engaged in protected activity, a claim that she was subjected to a retaliatory investigation, or both claims simultaneously. Cf. Wilson v. Small Business Administration, 2024 MSPB 3, ¶¶ 12, 19 (holding that an appellant may attempt to prove a claim of discrimination under the motivating factor and but-for causation methods simultaneously, and may choose to show but-for causation under the pretext 11 In considering the second Carr factor for allegations of reprisal for protected disclosures and activities, applicable precedent requires that we consider whether the management officials involved may have had a professional motive to retaliate. Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding that those responsible for the agency’s overall performance may be motivated to retaliate against a whistleblower because, even if they are not directly implicated by the disclosures, the criticism reflects on them in their capacities as managers and employees); see Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019-20 (Fed. Cir. 2019) (considering the possible presence of a professional motive to retaliate based on the appellant’s criticism of an agency Under Secretary); Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65. The Board also has applied the “cat’s paw” theory to the second Carr factor in whistleblower reprisal matters, under which a particular management official, acting because of an improper animus, influences another agency official who is unaware of the improper animus when implementing a personnel action. Karnes v. Department of Justice, 2023 MSPB 12, ¶ 19. We find that these principles also may apply, when appropriate, to our analysis of the second Carr factor when considering retaliatory investigations. 12 The failure to produce evidence related to the third Carr factor cannot weigh in the agency’s favor and may cause it to fail to meet its clear and convincing burden. Whitmore, 680 F.3d at 1374; Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 42. The Board has recognized, however, that there may be situations in which the agency produces persuasive evidence that there are no comparators, and in such situations, the third Carr factor would be removed from the analysis. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 18 n.9. We find that these same principles may apply, when appropriate, to an analysis of the third Carr factor when considering retaliatory investigations. 16 framework and mixed-motive framework simultaneously). When an appellant chooses to raise both a whistleblower reprisal claim based on the personnel action that follows the investigation and a retaliatory investigation claim in the same appeal, a separate and distinct Carr factor analysis may be necessary to eliminate any confusion that might flow from a commingling of the claims. Because the only claim now before us is that the investigation was initiated in reprisal for the appellant’s protected whistleblowing activity, we need not engage in such a bifurcated analysis here.13 ¶24 In sum, we hold that, when an appellant makes a claim that the personnel actions at issue are the result of a retaliatory investigation, the Board must first consider whether the appellant established by preponderant evidence that the investigation is so closely related to the personnel action that it could have been a pretext for gathering evidence to retaliate. If the Board finds in the affirmative, it will consider the Carr factors as they relate to the report of alleged misconduct and initiation of an investigation. If the agency fails to show by clear and convincing evidence that it would have reported the alleged misconduct or initiated the investigation in the absence of the appellant’s protected disclosure or protected activity, then the appellant must prevail on her whistleblower reprisal claim and is entitled to corrective action with respect to the resulting personnel action. Russell, 76 M.S.P.R. at 327-28 (ordering the agency to cancel the appellant’s demotion that resulted from a retaliatory report of misconduct and subsequent investigation). 13 In the initial decision, the administrative judge considered whether the agency proved by clear and convincing evidence that it would have suspended the appellant for 15 days and reassigned her in the absence of her protected whistleblowing activity. ID at 12-19. On review, the appellant argues that the administrative judge erred in analyzing the strength of the agency’s evidence in support of the 15-day suspension as it relates to the charge of failure to follow instructions because the instruction was not sufficiently clear, given that it failed to account for situations like those present in this case. PFR File, Tab 9 at 13-15. We need not address this argument because it concerns solely whether the agency would have suspended the appellant in the absence of her whistleblowing activity, and we are already ordering corrective action on that personnel action as a result of the appellant’s retaliatory investigation claim. 17 Carr Factor 1 ¶25 Turning to the facts before us, we first consider the strength of the evidence that the Commander had before him when he reported the appellant’s misconduct that led to the investigation. See Russell, 76 M.S.P.R. at 326. To reiterate, the Commander reported the appellant to the OIG/JIC on August 29, 2016, for “insubordination, failure to follow instructions, conflict of interest, and attempting to use the EEO process to circumvent hiring rules.” IAF, Tab 16 at 128. In his report and request for investigation, he indicated that he learned of the appellant’s involvement in the mediation on August 24, 2016, when the DCRO contacted him. Id. He further stated that the appellant’s decision to serve as the management official representing the agency at the mediation ignored his prior instruction to bring mediation requests in EEO matters to his attention first and, further, that he had concerns that the appellant’s personal relationship with the mission support specialist constituted a conflict of interest. Id. At the hearing, the Commander testified that, prior to the appellant’s involvement in the mediation, he had given instructions to first approach him for discussions about whether, and if so how, the agency would mediate an EEO complaint. HT-2 at 137-40, 153 (testimony of the Commander). The appellant does not dispute that she was given these instructions. HT-1 at 205 (testimony of the appellant). Additionally, the Commander testified that the mission support specialist and the appellant were friends, in addition to having a supervisor/subordinate relationship, and that the appellant was also the mission support specialist’s mentor and had tried to arrange a training opportunity and noncompetitive promotion for her in the recent past, which were included as terms of the proposed settlement agreement. HT-2 at 146, 154 (testimony of the Commander). Thus, he was aware of the potential conflict of interest in the appellant serving as the agency representative in a mediation with the mission support specialist. Accordingly, the Commander had support for his allegations before he filed the report and requested an investigation into the appellant’s actions. 18 ¶26 Nonetheless, a proper analysis of the agency’s burden in this regard requires that all of the evidence be weighed together—both the evidence that supports the agency’s case and the evidence that detracts from it. Whitmore v. Department of Labor, 680 F.3d at 1353, 1368 (Fed. Cir. 2012); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013). With respect to the Commander’s allegation of the appellant’s failure to follow his instruction to discuss with him any EEO mediation request before the agency agreed to proceed, the record establishes that his instruction did not include any specific direction on how to proceed when the Commander himself was the subject of the EEO complaint, which was the situation in this matter. HT-2 at 139 (testimony of the Commander). Indeed, the appellant testified that she did not first approach the Commander, pursuant to his instruction, because the EEO process is a “protected process” designed to ensure confidentiality and informing the subject of the EEO complaint would have a “chilling effect” on future reporting. HT-1 at 208 (testimony of the appellant). Further, the deciding official testified that having the agency official alleged to have discriminated or retaliated against an employee in the chain of decision making with respect to whether the agency should mediate might “in and of itself create a conflict or the appearance of a conflict.” HT-1 at 54-55 (testimony of the deciding official). ¶27 The record is unclear as to when the Commander became aware that he was the subject of the EEO complaint. The appellant testified that they met when he learned of her handling of the mediation to discuss the circumstances of the mediation. HT-1 at 126 (testimony of the appellant). At that meeting, she informed him that he was the named official in the EEO complaint and that she did not believe it was appropriate to approach him for approval. Id. at 126-27. However, we are unable to discern from the record when this meeting occurred, and specifically, whether it occurred before or after the Commander reported the appellant and requested an investigation into her actions. 19 ¶28 Regarding the Commander’s allegation that the appellant’s involvement in the mediation as the management official presented a conflict of interest, the record shows that the agency had no policy at the time regarding who could serve as a management official in an EEO mediation and, specifically, no policy regarding whether a first-level supervisor or even a mentor could serve as the management representative against the subordinate/mentee. HT-1 at 52-53, 206 (testimony of the deciding official and the appellant). Further, the record shows that, before agreeing to serve as the management official for the EEO mediation, the appellant confirmed with the DCRO that she, as the mission support specialist’s first-line supervisor, could serve as management official. IAF, Tab 16 at 246; HT-1 at 194-95 (testimony of the appellant). Additionally, the appellant testified at the hearing that, throughout the course of the mediation process, she attempted to contact at least four other agency officials to discuss whether her serving as the management official would be appropriate. HT-1 at 197-204 (testimony of the appellant). ¶29 The record does not establish whether the Commander was aware of the lack of a specific agency policy regarding who could serve as a management official in an EEO mediation or whether he knew of the DCRO’s approval at the time he reported the appellant’s alleged misconduct. Nor does the record show whether the Commander was aware of the appellant’s efforts to obtain approval to serve as the management official. Accordingly, after weighing all of the evidence, we conclude that the Commander had evidence to report the appellant and request an investigation into her alleged misconduct. This factor favors the agency, but not to a strong degree. Carr Factor 2 ¶30 Turning to Carr factor two—the motive to retaliate on the part of the official or officials who made the report or initiated the investigation—the Commander admitted during the hearing that, when he reported the appellant and requested an investigation, he was aware of her complaints to OSC and the 20 OIG/JIC. HT-2 at 155 (testimony of the Commander). Additionally, the Commander was, himself, the subject of those complaints. IAF, Tab 10 at 19-35, 37-38, 40-43. Such circumstances generally suggest a strong motive to retaliate. See Russell, 76 M.S.P.R. at 326 (concluding that agency officials had a strong motive to retaliate when they were the subject of the appellant’s protected disclosure and protected activity and were aware of the protected disclosure and protected activity when they made their reports about the incidents that formed the basis of the charged misconduct); see also Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 14, 33; Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 45 (2016) (finding a strong motive to retaliate when the deciding official was the subject of a prior settlement agreement involving the appellant). ¶31 Moreover, the appellant filed the OSC and OIG/JIC complaints and made her disclosure to the Commander in May of 2016, and less than 3 months later, in August 2016, the Commander reported the appellant and requested an investigation into her conduct. IAF, Tab 10 at 19-35, 37-38, 40-43, Tab 16 at 128. The appellant’s disclosure to the Commander informed him that she had filed complaints with OSC and the OIG/JIC; thus, he was aware of those complaints almost immediately. Such close temporal proximity between the appellant’s protected activity/disclosure and the Commander’s decision to report the appellant further evinces his motive to retaliate. See Russell, 76 M.S.P.R. at 326. Additionally, the Commander testified at the hearing that he was upset about the appellant’s language in the disclosure memorandum. HT-2 at 160-61 (testimony of the Commander). As set forth above, it is unclear whether the Commander was aware of the lack of a specific agency policy regarding who could serve as a management official in an EEO mediation or whether he knew of the DCRO’s approval of that activity. An agency’s failure to investigate a charge sufficiently before bringing an action might indicate an improper motive. Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 30 (2011). Similarly, we find that a failure to undertake sufficient factual inquiries before reporting 21 potential misconduct or initiating an investigation may indicate an improper motive. ¶32 Nonetheless, we acknowledge that the record establishes that the Commander did not suffer any negative consequences as a result of the appellant’s OSC and OIG/JIC complaints against him and, to the contrary, he was moved to a different position that required a higher level of responsibility following a selection by the Secretary of the Department of Homeland Security. HT-2 at 162 (testimony of the Commander). That the Commander did not suffer any negative consequences from the appellant’s complaints, though, does not diminish the considerable amount of evidence suggesting a strong motive to retaliate. Accordingly, this factor weighs heavily against the agency. Carr Factor 3 ¶33 Turning to the third Carr factor, which considers whether the agency reported misconduct or initiated investigations into similarly situated nonwhistleblowers, the Commander testified at considerable length regarding the incidents at issue here, yet he provided no testimony regarding whether he reported another employee who was not a whistleblower and who engaged in the same or similar conduct as the appellant. Nor has the agency put forth any evidence to further support that proposition. Although the Commander testified that he did not have a problem with anyone who complained to OSC and that it is a process he could also “avail [him]self to,” such testimony sheds no light on whether he or other agency officials reported or investigated other employees for similar conduct. HT-2 at 161 (testimony of the appellant). Further, the deciding official’s testimony that he considered the “likes and similars” in determining the appropriate penalty also sheds no light on whether the agency reported or initiated an investigation for the same alleged conduct when the employee was not a whistleblower. HT-1 at 38 (testimony of the deciding official). Although the investigative field officer with OPR testified that “serious misconduct” must be reported pursuant to agency policy, and the Commander testified that he 22 considered the appellant’s actions “serious misconduct,” this testimony nonetheless does not address whether a nonwhistleblower similarly would have been reported and investigated. HT-2 at 101-02, 154-55 (testimony of the investigative field officer and the Commander). ¶34 The agency had an opportunity to question the Commander about whether he reported nonwhistleblower employees and requested investigations, but it did not ask those types of questions. Thus, we find that the agency submitted little to no evidence showing that the kind of matter reported here would have otherwise been reported and investigated had the employee not been a whistleblower. When the agency fails to introduce relevant comparator evidence, such an omission may serve to tip the scales against the agency. Whitmore, 680 F.3d at 1374; Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 42. ¶35 The agency’s burden of proving by clear and convincing evidence that it would have reported the appellant and requested an investigation in the absence of protected whistleblowing or activity requires it to produce in the mind of the trier of fact a firm belief as to the allegations sought to be established. Salazar v. Department of Veterans Affairs, 2022 MSPB 42, ¶ 34; Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 28 (2011); 5 C.F.R. § 1209.4(e). Here, we are not left with the firm belief that the agency would have initiated an investigation into the appellant absent her protected whistleblowing activity. Although the Commander had some sound reasons to request an investigation, his motive to retaliate was strong, and the agency failed to present evidence showing that it reported and initiated investigations into non-whistleblower employees for similar conduct. Therefore, we find that the agency failed to prove by clear and convincing evidence that it would have reported and initiated an investigation into the appellant’s conduct absent her whistleblowing. Accordingly, we grant the appellant’s request for corrective action with respect to her claim of a retaliatory investigation and her subsequent suspension. See Russell, 76 M.S.P.R. at 328. 23 ORDER ¶36 We ORDER the agency to cancel the appellant’s 15-day suspension effective January 8, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶37 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶38 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶39 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶40 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 24 are attached. The agency is ORDERED to 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. ¶41 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 (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. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204. In addition, the Whistleblower Protection Enhancement Act of 2012 authorized the award of compensatory damages, including interest, reasonable 25 expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), 1221(g)(1)(A)(ii), which you may be entitled to receive. If you believe you are entitled to these damages, you must file a motion for consequential damages and/or compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214(f). NOTICE OF APPEAL RIGHTS 14 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 14 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. 26 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: 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. 27 (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 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. 28 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 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.15 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). 15 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. 29 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. 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. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g., TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/Young_JanieDE-1221-18-0335-W-2_Opinion_and_Order.pdf	Issuance Date: June 11, 2020 MSPB Docket Number: AT-1221-19-0574-W-1 WHISTLEBLOWER PROTECTION ACT - JURISDICTION, GENERALLY - PROTECTED “DISCLOSURE” The Internal Revenue Service removed the appellant before the end of her probationary period. The appellant filed a complaint with the Office of Special Counsel (OSC), alleging that her removal was the product of whistleblower retaliation. After OSC closed the matter, the appellant filed an individual right of action (IRA) appeal with the Board. In her IRA appeal, the appellant identified a number of alleged disclosures, ranging from attendance violations to a failure to accommodate her disabilities, but those allegations lacked specificity. The administrative judge issued an order explaining the appellant’s jurisdictional burden and instructing her to meet that burden. She ordered the appellant to provide additional argument and evidence about her alleged disclosures. The appellant did not respond. The administrative judge dismissed the appeal, finding that the appellant failed to present nonfrivolous allegations of a protected disclosure. Holding: The appellant’s petition was properly before the court, and the Board correctly dismissed the appellant’s IRA appeal for lack of jurisdiction. The court first addressed the Supreme Court’s decision in Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017), which held that a Board dismissal of a “mixed case” for lack of jurisdiction is appealable to a United States district court. After describing the relevant statutory schemes, the court concluded that Perry had no impact on IRA appeals, because IRA appeals never constitute “mixed case” appeals. Therefore, the appellant’s IRA appeal was rightly before the Federal Circuit, rather than a district court. Turning to the merits, the court agreed with the administrative judge’s conclusions. First, the appellant’s allegations of time and attendance violations were conclusory in nature, without identifying particular instances of the violations. Second, although the appellant asserted that the agency subjected her to EEO reprisal, those allegations are covered by 5 U.S.C. § 2302(b)(9)(A)(ii) and, therefore, fall outside the Board’s jurisdiction in an IRA appeal. Third, the appellant’s alleged disclosures concerning the agency’s failure to accommodate her disabilities did not reflect a “substantial and specific danger to public health and safety.” Lastly, to the extent that the appellant identified disclosures that were not exhausted before OSC, those matters are outside the court’s purview. NONPRECEDENTIAL: Cerulli v. Department of Defense, No. 2019-2022 (Fed. Cir. June 9, 2020) (MSPB Docket No. SF-1221-18-0624-W-1): The court affirmed the administrative judge’s decision, which denied the appellant’s request for corrective action in an individual right of action appeal. Although the appellant presented a prima facie case of reprisal concerning a single protected disclosure and two personnel actions, the agency proved that it would have taken the same personnel actions in the absence of the protected disclosure. The court was not persuaded by the appellant’s various arguments regarding additional alleged disclosures, the administrative judge’s credibility findings, or her analysis of the agency’s burden. Bussey v. Esper, No. 19-2116 (10th Cir. June 5, 2020) (MSPB Docket No. DE 0752-16-0165-I-1): The court upheld the district court’s decision, which affirmed a decision by an administrative judge for the Board, sustaining the appellant’s removal and denying claims of discrimination and whistleblower reprisal. On review, the appellant raised new allegations of protected disclosures but the court declined to consider them. The court also rejected the appellant’s assertion that the administrative judge somehow erred by identifying the disputed issues, allowing the parties to identify any others, then limiting the scope of the appeal to those matters. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
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 MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 17 Docket No. CH-0714-22-0256-A-1 Tammie Morley, Appellant, v. Department of Veterans Affairs, Agency. November 20, 2024 Christopher Forasiepi , Esquire, and Carson S. Bailey , Esquire, Dallas, Texas, for the appellant. Nicholas Peluso , Esquire, Hines, Illinois, for the agency. Stephanie Macht and Grant T. Swinger , Esquire, Westchester, Illinois, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the addendum initial decision that denied her motion for attorney fees. For the reasons discussed below, we DENY the petition for review and AFFIRM the initial decision. The appellant’s motion for attorney fees is DENIED. 2 BACKGROUND ¶2 The agency (DVA or VA) removed the appellant from her position as a Registered Respiratory Therapist under 38 U.S.C. § 714, based on the charge of failure to meet position requirements. Morley v. Department of Veterans Affairs, MSPB Docket No. CH-0714-22-0256-I-1, Initial Appeal File (IAF), Tab 1 at 1, 8. The appellant appealed her removal to the Board, and the administrative judge issued an initial decision finding that the agency proved its charge. IAF, Tab 27, Initial Decision (ID) at 4. He also found that the appellant did not prove her affirmative defenses that the agency retaliated against her for taking leave authorized by the Family and Medical Leave Act or violated her constitutional due process rights in effecting her removal. ID at 7-12. However, the administrative judge determined that the agency failed to give bona fide consideration to the Douglas factors in making its penalty determination and remanded the matter to the agency to “re-issue a decision regarding the appellant’s removal,” or, rather, “for a proper penalty determination consistent with this decision and relevant precedent.” ID at 12-16; see also Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 relevant factors to be considered in determining the appropriateness of an imposed penalty).1 The administrative judge’s initial decision became the final decision of the Board when neither party petitioned the Board for review. 5 C.F.R. § 1201.113. ¶3 The appellant thereafter filed a motion for attorney fees seeking $18,120.00 for the two attorneys who represented her in her removal appeal. Morley v. Department of Veterans Affairs, MSPB Docket No. CH-0714-22-0256-A-1, Attorney Fees File (AFF), Tab 1. The administrative judge subsequently issued 1 In 2021, the U.S. Court of Appeals for the Federal Circuit decided Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021), wherein it found that the DVA and the Board must consider and apply the Douglas factors to the selection and the review of penalties in DVA disciplinary actions taken under 38 U.S.C. § 714. Connor, 8 F.4th at 1326-27. 3 an addendum initial decision denying the appellant’s motion, finding that the appellant did not qualify as a “prevailing party” and, in any case, that she did not show that an award of attorney fees was warranted in the interest of justice. AFF, Tab 5, Addendum Initial Decision (AID) at 4-7. He thus found it unnecessary to evaluate the reasonableness of the fees sought. AID at 7 n.2. ¶4 The appellant has filed a petition for review challenging the addendum initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 5. The appellant has filed a reply. PFR File, Tab 6. ANALYSIS ¶5 To establish entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), an appellant must show that: (1) she was the prevailing party; (2) she incurred attorney fees pursuant to an existing attorney-client relationship; (3) an award of attorney fees is warranted in the interest of justice; and (4) the amount of attorney fees claimed is reasonable. See Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 5 (2015). On review, the appellant reargues that she was the prevailing party, PFR File, Tab 1 at 6-10, and that she showed that attorney fees were warranted in the interest of justice, id. at 10-12. There is no dispute in this case that an attorney-client relationship existed, and the appellant does not challenge the administrative judge’s finding that it was unnecessary to evaluate the reasonableness of the fees sought. PFR File, Tab 1, Tab 6 at 10. The administrative judge correctly determined that the appellant was not the prevailing party. ¶6 The determination of an award of attorney fees is based on the final decision of the Board and whether, by the final decision, the appellant is a prevailing party. Baldwin v. Department of Veterans Affairs, 115 M.S.P.R. 413, ¶ 11 (2010). The Board has expressly adopted the standard set forth by the U.S. Supreme Court that an appellant is considered to have prevailed in a case 4 and to be entitled to attorney fees only if she obtains an “enforceable order” resulting in a “material alteration of the legal relationship of the parties.” Id. (citing Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 604 (2001)). A plaintiff “prevails” when actual relief on the merits of her claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff. Id. An appellant is, or is not, a prevailing party in the case as a whole, and whether she may be deemed a prevailing party depends on the relief ordered in the Board’s final decision. Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 9 (2011). ¶7 In her motion for attorney fees, the appellant argued that she was the prevailing party because the administrative judge’s initial decision materially altered the legal relationship between the parties by “obligating the [a]gency to rescind its prior decision with the option of reissuing a decision which adequately applie[d] the Douglas [f]actors.” AFF, Tab 1 at 5. She further claimed that the agency’s first decision to remove her from her position was “no longer enforceable.” Id. at 6. In the addendum initial decision, however, the administrative judge concluded the opposite, reasoning that the appellant was not the prevailing party. AID at 2. Specifically, the initial decision did not materially alter the legal relationship between the parties because the initial decision did not vacate the agency’s decision or direct the agency to cancel the removal while the agency was in the process of issuing a new decision, and because it did not directly benefit the appellant. AID at 5. The administrative judge further explained that the initial decision did not provide the appellant with any of the relief she requested and noted that the appellant had not challenged the reasonableness of the agency’s penalty on appeal. AID at 5. He then analogized the facts at issue here to those presented in a comparable Board decision. AID at 5-6 (citing McKenna v. Department of the Navy, 104 M.S.P.R. 22, ¶¶ 2, 7 (2006) (finding that where the administrative judge ordered the agency to 5 consider the appellant’s qualification for higher-graded positions and to place him in one if he was found to be qualified, the appellant was not the prevailing party because he did not achieve his objective of obtaining a position at a higher grade and remained “exactly where he was when he filed the underlying appeal”)). ¶8 On review, the appellant reargues that the initial decision materially altered the existing relationship between her and the agency by “obligating” the agency to “rescind” its prior decision. PFR File, Tab 1 at 7. In this regard, she asserts that although the administrative judge emphasized that the initial decision directed the agency to “re-issue” the prior decision instead of “rescind” it, this distinction “is not material for the appropriate legal analysis,” and the initial decision was an enforceable judgement that, as a matter of law, was “adequate to constitute a material alteration” of the legal relationship between the parties. Id. at 8. She also contends that the administrative judge erred in finding that she did not directly benefit from the initial decision because she did not receive any of the relief she requested. Id. at 8-9. She further asserts that she received “a favorable outcome” in this case because a “plain reading of the instructions to the [a]gency to ‘re-issue’ the decision to remove [her] indicates that the [a]gency would need to rescind its prior decision before re-issuing the decision again,” thus entitling her to “backpay, an expungement of her personnel file of the prior decision, and reinstatement until the new decision could be issued.” Id. at 10. ¶9 The appellant’s arguments lack merit. Contrary to the appellant’s characterizations, the initial decision in this case only vacated the agency’s penalty analysis and remanded that specific issue back to the agency for a proper penalty determination consistent with relevant precedent. ID at 16. As the administrative judge correctly explained, the initial decision did not direct the agency to vacate the appellant’s removal outright, nor did it otherwise specifically “obligate” the agency to “rescind” its first removal decision. ID at 16; AID at 5. The administrative judge’s order is consistent with how our reviewing court has directed the Board to handle such cases. See, e.g., Connor v. 6 Department of Veterans Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (stating that “[a]bsent mitigation authority . . . if the Board determines that the VA failed to consider the Douglas factors . . . the Board must remand to the VA for a redetermination of the penalty”). Further, although the appellant emphasizes that she believes that the administrative judge’s initial decision was an enforceable judgement that was “adequate to constitute a material alteration” to the parties’ legal relationship, her argument ignores the full scope of what the Board considers when determining whether an appellant is a prevailing party. PFR File, Tab 1 at 7-8. Specifically, as stated above, an appellant prevails “when actual relief on the merits of [her] claim materially alters the legal relationship between the parties by modifying the [agency’s] behavior in a way that directly benefits the [appellant,]” considering the case as a whole. Baldwin, 115 M.S.P.R. 413, ¶ 11 (emphasis added); see also Farrar v. Hobby, 506 U.S. 103, 109-12 (1992) (stating that a plaintiff may be considered a prevailing party if they succeed on any significant issue in litigation that achieves some of the benefit the parties sought in bringing suit, and that they must obtain at least some relief on the merits of their claim); Driscoll, 116 M.S.P.R. 662, ¶ 9. ¶10 Significantly, the administrative judge here still found that the agency proved its charge and that the appellant did not prove her affirmative defenses. ID at 4-12. Regardless of whether the appellant specifically challenged the reasonableness of the penalty on appeal, she did not receive any of the other actual relief she sought—outright reversal of her removal based on the merits or cancellation of her removal based on an alleged affirmative defense. See ID at 5; IAF, Tab 1 at 6; Tab 25, Hearing Testimony at 29:00 (the appellant’s closing argument). Contrary to the appellant’s claims, the initial decision did not obviously require the agency to rescind its first removal decision, thus entitling her to backpay, expungement of the prior decision, and reinstatement until the new decision could be issued. PFR File, Tab 1 at 10. As stated above, we agree with the administrative judge that the initial decision in this case did not 7 specifically obligate the agency to rescind its first removal decision, nor did it in fact direct the agency to vacate the appellant’s removal outright. ID at 16; Morley v. Department of Veterans Affairs, MSPB Docket No. CH-0714-22-0256- C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID) at 4-5; see also In re Sang-Su Lee, 277 F.3d 1338, 1346 (Fed. Cir. 2002) (agreeing that vacatur and remand are different forms of relief). In this regard, we agree with the administrative judge that at the end of her appeal the appellant still found herself in the exact same place as when she started—separated from her agency. AID at 6; see also McKenna, 104 M.S.P.R. 22, ¶ 7. In addition, following the initial decision, the agency updated its prior final decision and again removed the appellant from Federal service. See CF, Tab 3 at 7. ¶11 Moreover, as the administrative judge correctly observed, although the appellant may have obtained “some additional process” as a result of the initial decision, she did not receive any relief on the merits of her claim. AID at 6. The appellant did not receive a final decision from the Board on the merits that awarded her any relief that materially changed the legal relationship of the parties. See Baldwin, 115 M.S.P.R. 413, ¶ 11. Accordingly, we agree with the administrative judge that the appellant was not the prevailing party and that this finding dictates that her motion for attorney fees be denied. See AID at 6. We agree with the administrative judge that, in any event, the appellant did not show that attorney fees were warranted in the interest of justice. ¶12 To prove entitlement to an attorney fees award, an appellant who is a prevailing party must also show that an attorney fees award is in the interest of justice. Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 427 (1980). An award of attorney fees may be warranted in the interest of justice when: (1) the agency engaged in a prohibited personnel practice; (2) the agency action was clearly without merit or wholly unfounded, or the employee is substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error that prolonged the proceeding or severely 8 prejudiced the employee; or (5) the agency knew or should have known that it would not prevail on the merits when it brought the proceeding. Id. at 434-35. ¶13 In the addendum initial decision, the administrative judge explained that, even if the appellant had proved that she was the prevailing party, she would still not be entitled to fees because she did not make any argument as to why fees were warranted in the interest of justice. AID at 7. On review, the appellant alleges that the administrative judge erred in finding that she did not make any legal arguments regarding the interest-of-justice standard, seemingly because she believes that this case “involved a finding” that the agency engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by failing to follow the procedures established in Douglas.2 Id. at 11. Additionally, she claims that, if the administrative judge had concerns about deficiencies in her motion for attorney fees, then he should have afforded her an opportunity to address the matter. PFR File, Tab 6 at 9. ¶14 As an initial matter, we agree with the administrative judge that the appellant is not the prevailing party. Nevertheless, we find that, even viewing the whole attorney fee file and the appellant’s legal arguments in context, the appellant did not meet her burden. AID at 7. Although the appellant maintains on review that the administrative judge should have afforded her an opportunity to address this issue if he had concerns, the case that she relies on in support of her argument concerns an administrative judge’s responsibilities when analyzing the reasonableness of the amount of attorney fees claimed, not when assessing whether an appellant is the prevailing party or whether they established that fees are warranted in the interest of justice. See Guy v. Department of the Army, 118 M.S.P.R. 45, ¶ 11 (2012). In any event, the administrative judge here properly notified the appellant of her burden to establish entitlement to fees in his 2 Under 5 U.S.C. § 2302(b)(12), it is a prohibited personnel practice to “take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles” set forth at 5 U.S.C. § 2301. 9 acknowledgement order, and the agency specifically discussed this very issue in detail in its response to the appellant’s motion for fees. AFF, Tab 2, Tab 3 at 7. However, the appellant neglected to address the issue in either her motion for attorney fees or her reply to the agency’s response. AFF, Tabs 1, 4. Additionally, not only is the appellant’s claim that this case involved a finding that the agency engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) inaccurate, but she also failed to raise any such argument below. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (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).3 ¶15 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). 3 In the addendum initial decision, the administrative judge remarked that, even had the appellant met the definition of a prevailing party and put forward an argument on the interest-of-justice issue, the small degree of relief one could interpret the initial decision as providing her was de minimis at most and insufficient to satisfy the interest-of-justice standard. AID at 7. To this end, the appellant also alleges on review that the administrative judge erred in stating that she “would only gain a de minimis benefit from obtaining attorney’s fees” because, if her motion had been granted, she would have gained significantly more than simply a de minimis benefit. PFR File, Tab 1 at 11-12. However, the Board has held that under the interest-of-justice standard, a fee award may not be warranted where the relief obtained is de minimis. See Montalvo v. U.S. Postal Service, 122 M.S.P.R. 687, 694 (2015). This proposition refers to the relief obtained through the initial decision, not relief through the awarding of attorney fees. Id. 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 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: 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. 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 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 12 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 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 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 13 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. 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. 14 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/Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf	Issuance Date: November 20, 2024 ATTORNEY FEES - PREVAILING PARTY ATTORNEY FEES - INTEREST OF JUSTICE The agency removed the appellant from her position under 38 U.S.C. § 714, based on a charge of failure to meet position requirements. The administrative judge issued an initial decision finding that the agency proved its charge but failed to give bona fide consideration to the relevant Douglas factors in determining the removal penalty. After that initial decision became final, the appellant filed a motion for attorney fees for her removal appeal. The administrative judge issued an addendum initial decision denying the appellant’s fee request, finding that the appellant did not qualify as a prevailing party, and alternatively, that she had not shown that an award of attorney fees was warranted in the interest of justice. Holding: The administrative judge correctly concluded that the appellant was not a prevailing party. 1. A party that has prevailed in a case may be entitled to attorney fees only if she obtains an enforceable order resulting in a material alteration of the legal relationship of the parties. 2. The appellant argued below and on review that she obtained a “material alteration of the legal relationship” between herself and the agency because the agency was forced to rescind its prior decision and to reissue a decision that applied the Douglas factors. 3. However, as the administrative judge correctly explained, the initial decision did not direct the agency to vacate the appellant’s removal outright and did not provide her with any of the relief she had requested. 4. As a result, the Board agreed with the administrative judge that the appellant had not established that she received “actual relief on the merits of [her] claim,” considering the case as a whole, and instead the appellant still found herself in the exact same position at the end of her appeal as she was in at the beginning of her appeal; therefore, she was not a “prevailing party” for the purpose of an award of attorney fees. Holding: The administrative judge correctly determined, in the alternative, that the appellant failed to show that attorney fees were warranted in the interest of justice. 1. An award of attorney fees may be warranted in the interest of justice when: (1) the agency engaged in a prohibited personnel practice; (2) the agency action was clearly without merit or wholly unfounded, or the employee is substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error that prolonged the proceeding or severely prejudiced the employee; or (5) the agency knew or should have known that it would not prevail on the merits when it brought the proceeding. 2. The administrative judge provided the appellant with notice of how to establish that attorney fees were warranted in the interest of justice and he correctly determined that she failed to make any argument on this point. 3. The appellant argued on review that this case “involved a finding” that the agency engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). The Board was not persuaded by this argument. The appellant failed to raise it below and, in any event, there was no such finding. COURT DECISIONS NONPRECEDENTIAL: Thurston v. Office of Personnel Management, 2024-1519 (Fed. Cir. November 15, 2024) (CH-844E-18-0480-I-1) (per curiam). The court affirmed the Board’s decision affirming the Office of Personnel Management’s (OPM) reconsideration decision denying the petitioner’s application for disability retirement benefits under Federal Employees’ Retirement System (FERS), concluding that the Board had not erred in its disability determination by declining to provide the petitioner with a hearing on her appeal after she withdrew her hearing request, by concluding that her neck and back conditions were not included in her application, or by failing to consider the additional evidence the petitioner submitted with her petition for review. Coppola v. Department of Veterans Affairs, 2022-2192 (Fed. Cir. November 18, 2024) (SF-1221-17-0027-M-2). The court affirmed the Board’s decision denying the petitioner’s request for corrective action in his individual right of action (IRA) appeal. The court found no error in the Board’s findings that even though the petitioner proved his prima facie case of whistleblower retaliation, the agency nevertheless proved by clear and convincing evidence that it still would have terminated the petitioner from his temporary position and declined to select him for a permanent position even in the absence of his protected disclosures based, in part, on the strength of the agency’s evidence supporting its decisions. McLean v. Department of Veterans Affairs, 2024-1812 (Fed. Cir. November 19, 2024) (DE-1221-22-0142-W-2) (per curiam). The court affirmed the Board’s decision denying the petitioner’s request for corrective action in his IRA appeal. The court rejected the petitioner’s allegations of factual and procedural errors in the Board’s decision denying corrective action and determined that substantial evidence supported the Board’s conclusion that the agency proved by clear and convincing evidence that it would have suspended and subsequently removed the petitioner following his loss of operating privileges in the absence of his protected whistleblowing activity. The court also found no error in the Board’s finding that the petitioner had not been subjected to a personnel action in connection with his claim that he was restricted from working with and evaluating or instructing surgical residents. MSPB \| Case Reports \| Recent Decisions \| Follow us on X (Formerly Twitter) \| MSPB Listserv
11-18-2024	2024 MSPB 16	Eric T Bryant	https://www.mspb.gov/decisions/precedential/Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 16 Docket No. AT-0714-23-0137-I-1 Eric Terrell Bryant, Appellant, v. Department of Veterans Affairs, Agency. November 18, 2024 Michael Fallings , Esquire, Austin, Texas, for the appellant. Mary Sellers , Esquire, Montgomery, Alabama, for the agency. Joy Warner , Esquire, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we GRANT the petition for review, REVERSE the initial decision, and DO NOT SUSTAIN the appellant’s removal. BACKGROUND ¶2 The appellant was employed as a Police Officer with the Veterans Health Care System in Tuskegee, Alabama. Bryant v. Department of Veterans Affairs, MSPB Docket No. AT-0714-20-0709-I-1, Initial Appeal File (0709-I-1 IAF), 2 Tab 5 at 59. On June 19, 2020, the agency proposed the appellant’s removal pursuant to the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (DVA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714), based on the charge of conduct unbecoming a Federal employee. 0709-I-1 IAF, Tab 5 at 47-50. In the proposal notice, the agency alleged that the appellant acted improperly towards officers of a local police department when they attempted to serve the appellant with a temporary protective order. Id. The appellant replied to the proposal notice in writing and included with his reply a Douglas1 factors analysis supporting a penalty less than removal. Id. at 29-32. On July 9, 2020, the deciding official issued a decision finding that the charge as set forth in the proposal notice was supported by substantial evidence and imposing the appellant’s removal effective July 17, 2020. Id. at 14, 20-23. Neither the proposal notice nor the decision notice included a Douglas factors analysis, nor 1 In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board articulated a nonexhaustive list of factors relevant to the penalty determination in adverse actions. Those factors include: (1) the nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; (2) the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (3) the employee’s past disciplinary record; (4) the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; (5) the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties; (6) consistency of the penalty with those imposed upon other employees for the same or similar offenses; (7) consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the reputation of the agency; (9) the clarity with which the employee was on notice of any rules that were violated in committing the offense or had been warned about the conduct in question; (10) potential for the employee’s rehabilitation; (11) mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 3 was there any evidence that the proposing or the deciding officials otherwise engaged in one. Id. ¶3 The appellant filed an appeal with the Board challenging his removal and raising the affirmative defenses of reprisal for union activity and whistleblower reprisal. 0709-I-1 IAF, Tab 1, Tab 22 at 2-4. After holding a hearing, an administrative judge issued a January 22, 2021 initial decision sustaining the charge and finding that the appellant failed to prove his affirmative defenses. 0709-I-1 IAF, Tab 25 at 2-11. Regarding the penalty of removal, the administrative judge found that, pursuant to 38 U.S.C. § 714(d)(2)(B), the Board lacked the authority to mitigate the penalty selected by the agency and that the agency proved by substantial evidence that the appellant’s misconduct warranted removal. Id. at 11. In making this finding, the administrative judge did not address the Douglas factors. ¶4 After that initial decision became final because neither party filed a petition for review with the Board, the appellant sought judicial review before the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). While that matter was pending before the Federal Circuit, that court decided Rodriguez v. Department of Veterans Affairs, wherein it found that the agency erred when it applied the substantial evidence burden of proof, instead of preponderant evidence, to its internal review of a disciplinary action taken under 38 U.S.C. § 714. Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021). The same day it decided Rodriguez, the Federal Circuit also decided Connor v. Department of Veterans Affairs, wherein it found that “§ 714 precludes the Board only from mitigating the agency’s chosen penalty. It does not alter the penalty review with respect to the Douglas factors.” Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (citation omitted) (emphasis in original). ¶5 On February 24, 2022, the Federal Circuit issued a precedential decision regarding the appellant’s removal and applied Rodriguez and Connor. Bryant v. 4 Department of Veterans Affairs, 26 F.4th 1344, 1347-48 (Fed. Cir. 2022). In its decision in Bryant, the court found that the deciding official applied the incorrect standard in sustaining the charged misconduct and that the deciding official and the Board failed to apply the Douglas factors to the penalty analysis. Id. Accordingly, the court vacated the administrative judge’s findings regarding the removal action and remanded the appeal to the Board for further proceedings.2 Id. at 1348. ¶6 The Board then remanded the appeal to the Atlanta Regional Office for further adjudication by the administrative judge consistent with the Federal Circuit’s decision. Bryant v. Department of Veterans Affairs, MSPB Docket No. AT-0714-20-0709-M-1, Appeal File, Tab 3. The administrative judge issued an initial decision remanding the matter to the agency for the deciding official to determine “whether the evidence as to the charge against the appellant satisfies the requisite preponderance-of-the-evidence standard of proof . . . and for the application of the Douglas factors as provided in Connor.” Bryant v. Department of Veterans Affairs, MSPB Docket No. AT-0714-20-0709-M-1, Initial Decision at 4 (Nov. 7, 2022). Thereafter, on December 16, 2022, the deciding official issued a new decision on the June 19, 2020 proposed removal, finding that the charge was supported by preponderant evidence and including an analysis of the Douglas factors supporting the penalty of removal. Bryant v. Department of Veterans Affairs, MSPB Docket No. AT-0714-23-0137-I-1, Initial Appeal File (0137 IAF), Tab 9 at 15-18, 20-27. The appellant’s removal remained effective in July 2020.3 Id. at 15, 29. 2 The Federal Circuit affirmed the administrative judge’s findings regarding the appellant’s affirmative defense of whistleblower reprisal. Bryant, 26 F.4th at 1348. 3 The July 2020 decision notice stated that the appellant’s removal was effective July 17, 2020. 0709-I-1 IAF, Tab 5 at 20. The December 16, 2022 removal decision stated that the appellant’s removal was effective July 20, 2020. 0137 IAF, Tab 9 at 15. We have not located any evidence in the record showing that the original date was changed, and it appears that the July 20, 2020 date in the 2022 decision was a typographical error. 5 ¶7 The appellant filed an appeal of the new removal decision with the Board. 0137 IAF, Tab 1. He argued that the agency failed to establish by preponderant evidence that he engaged in conduct unbecoming a police officer or that a nexus exists between the alleged misconduct and the efficiency of the service. Id. at 16. He also asserted that the agency failed to properly balance the Douglas factors. Id. Finally, he contended that the agency violated his constitutional due process rights in the new removal decision. Id. ¶8 After holding the appellant’s requested hearing on the new removal decision, the administrative judge issued an initial decision affirming the removal action. 0137 IAF, Tab 24, Initial Decision (ID). She found that the deciding official properly considered the evidence as required under Rodriguez and the applicable Douglas factors as required under Connor. ID at 3-7. Regarding the agency’s burden of proof before the Board, she adopted all the findings regarding the charge as set forth in the January 22, 2021 initial decision and again found that the agency proved the misconduct before the Board by substantial evidence. ID at 4. The initial decision did not address the appellant’s due process argument.4 ¶9 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 3. The agency has responded to the petition for review, and the appellant has replied to the response. PFR File, Tabs 6-7. ANALYSIS The agency was the proper authority to reconsider the removal decision in the first instance. ¶10 The Board’s remanding of the matter to the agency is consistent with the approach articulated by the Federal Circuit in similar cases. In Connor, for example, the court explained that, absent mitigation authority, if the Board determines that the agency failed to consider the Douglas factors or if the 4 None of the agency’s filings below addressed the appellant’s due process arguments. 0137 IAF, Tabs 9, 18. 6 agency’s penalty is unreasonable, the Board must remand to the agency for a redetermination of the penalty. Connor, 8 F.4th at 1326. Similarly, in Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1325 (Fed. Cir. 2021), the court explained that, because the Board cannot mitigate or independently set penalties in actions taken under section 714, if the Board concludes that the agency’s penalty determination is not supported by substantial evidence, then the Board should remand to the agency for further proceedings. The agency violated the appellant’s due process rights when it failed to provide him with notice and an opportunity to respond to all of the aggravating factors considered by the deciding official in determining the penalty. ¶11 In his petition for review, the appellant reiterates his argument from below that the agency violated his due process rights when he was not afforded an opportunity to respond to the new proposed removal in light of the different burden of proof before the agency and the requirement that the agency consider the Douglas factors. PFR File, Tab 3 at 12-13. It is well settled that a tenured Federal employee, such as the appellant, has a property interest in continued employment, and the Government cannot deprive him of that interest without due process. Wilson v. Department of Homeland Security, 120 M.S.P.R. 686, ¶ 7 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); Johnson v. Department of the Navy, 62 M.S.P.R. 487, 490 (1994); see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985); Dieter v. Department of Veterans Affairs, 2022 MSPB 32, ¶ 11 n.7. The essential requirements of due process are prior notice of the charges against the employee and a meaningful opportunity to respond to those charges. Loudermill, 470 U.S. at 546. As the Supreme Court explained, the need for a meaningful opportunity for the employee to present his side of the story is important for two reasons. First, an adverse action will often involve factual disputes, and consideration of the employee’s response may clarify such disputes. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (citing Loudermill, 470 U.S. at 543). Second, 7 “[e]ven where the facts are clear, the appropriateness or necessity of the discharge may not be.” Id. (quoting Loudermill, 470 U.S. at 543). Thus, “the employee’s response is essential not only to the issue of whether the allegations are true, but also with regard to whether the level of penalty to be imposed is appropriate.” Id. ¶12 The Federal Circuit has applied the due process requirement articulated in Loudermill in cases such as Stone and Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011). In those cases, the court held that a deciding official violates an employee’s due process rights when he relies on new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. Ward, 634 F.3d at 1279-80; Stone, 179 F.3d at 1376-77; Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 23. An employee’s due process right to notice extends to both ex parte information provided to a deciding official and information personally known to the deciding official if the information was considered in reaching the decision and was not previously disclosed to the appellant. Singh, 2022 MSPB 15, ¶ 23; Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). In addressing due process rights, the Board has further explained that, when an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official. Solis, 117 M.S.P.R. 458, ¶ 7; Vena v. Department of Labor, 111 M.S.P.R. 165, ¶ 9 (2009); see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 304 (1981). If an employee has not been given notice of an aggravating factor supporting an enhanced penalty, a constitutional due process violation may have occurred. Ward, 634 F.3d at 1280; Solis, 117 M.S.P.R. 458, ¶ 7. ¶13 The Board has applied these due process requirements in adverse actions taken under 5 U.S.C. chapter 75 and performance-based actions taken under 5 U.S.C. chapter 43. See, e.g., Mathis v. Department of State, 122 M.S.P.R. 507, 8 ¶¶ 1, 6-16 (2015) (considering whether an agency provided an employee constitutional due process in a removal proceeding under chapter 43); Silberman v. Department of Labor, 116 M.S.P.R. 501, ¶¶ 2, 14 (2011) (reversing an adverse action taken pursuant to chapter 75 when an agency violated an employee’s constitutional due process rights). We discern no reason why the due process requirements would not be equally applicable to actions taken under the DVA Accountability Act, the legal authority cited by the agency in removing the appellant. The Federal Circuit has recognized that the DVA Accountability Act maintains due process protections for Federal employees. Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1376-77 (Fed. Cir. 2020) (citing 163 Cong. Rec. S3268, 3276, 3280 (daily ed. June 6, 2017) (remarks of Senators Tester, Nelson, and Rubio)); see Brenner, 990 F.3d at 1324. In addition, the Board has recognized that 38 U.S.C. § 714 cannot be considered in a vacuum and that it must consider other legal authorities in interpreting the statute. Richardson v. Department of Veterans Affairs, 2023 MSPB 1, ¶ 20. ¶14 Nonetheless, not all ex parte communications rise to the level of a due process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8; see Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. In Stone, the Federal Circuit identified the following factors to be used to determine whether ex parte information is new and material such that its consideration deprived an employee of due process: (1) whether the ex parte information introduced cumulative, as opposed to new, information; (2) whether the employee knew of the information and had an opportunity to respond; and (3) whether the communication was “of the type likely to result in undue pressure on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. The ultimate inquiry “is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. A due process violation is not subject to the harmful 9 error test; instead, if a violation occurred, the employee is automatically entitled to a new, constitutionally correct removal proceeding. Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1377; Solis, 117 M.S.P.R. 458, ¶ 8. ¶15 The June 19, 2020 notice of proposed removal and the July 9, 2020 decision notice contained little explanation of the reasoning behind the imposition of the penalty of removal.5 0709-I-1 IAF, Tab 5 at 20-23, 47-48. The Federal Circuit observed that the deciding official did not conduct a Douglas factors analysis of the appropriateness of the penalty. Bryant, 26 F.4th at 1347. Only on remand from the Federal Circuit and the Board did the agency provide a full penalty analysis, including a Douglas factors worksheet, wherein the deciding official explained what factors he considered to support the penalty of removal. 0137 IAF, Tab 9 at 15-18, 20-27. In response to the appellant’s argument that this violated his due process rights because he was not afforded an opportunity to respond to the penalty analysis, the agency stated that it simply followed the Federal Circuit’s and the Board’s instructions to consider the Douglas factors and that “no new evidence was considered.” PFR File, Tab 6 at 11. However, as explained above, a deciding official’s consideration of information of which the appellant was unaware constitutes an ex parte communication because the employee is not on notice of the evidence relied on by the agency in imposing the penalty. See Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 7. Because the appellant was not provided notice of the information that the deciding official would consider in selecting the penalty, we find that the deciding official considered ex parte information when completing the Douglas factors worksheet and issuing the new removal decision. ¶16 As discussed above, not all ex parte communications rise to the level of a due process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8; 5 We have not considered whether removal is the appropriate penalty for the alleged misconduct. Our analysis is focused solely on whether the agency afforded the appellant constitutionally mandated due process as required by the Supreme Court and the Federal Circuit. 10 see Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. Thus, we must now consider whether the ex parte information in this appeal is so substantial and so likely to cause prejudice to the appellant that he cannot fairly be subjected to a deprivation of property under such circumstances. See Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. Applying the factors set forth in Stone, we first consider whether the ex parte information constituted new evidence or whether such evidence was merely cumulative. See Stone, 179 F.3d at 1377. A deciding official does not commit a due process violation when he considers ex parte information that merely “confirms or clarifies information already contained in the record.” Blank v. Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001); Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 11 (2014). It is clear that the deciding official’s Douglas factor worksheet, dated November 15, 2022, is entirely new and that such an analysis was never provided to the appellant. 0137 IAF, Tab 9 at 20-27. However, some of the information contained in the worksheet, as well as the new removal decision, was included in the notice of proposed removal. Compare 0709-I-1 IAF, Tab 5 at 47-50, with 0137 IAF, Tab 9 at 15-18, 20-27. For instance, the proposal notice discussed that the appellant’s 5 years of service, the nature and seriousness of the offense, the appellant’s position as a police officer, and agency officials’ loss of confidence in his ability to perform the duties of his position all played a role in the ultimate penalty determination. 0709-I-1 IAF, Tab 5 at 47-48. Such information as considered in the Douglas factors worksheet and the new removal decision is therefore cumulative of information contained in the proposal notice and does not constitute a due process violation. See Blank, 247 F.3d at 1229; Grimes, 122 M.S.P.R. 36, ¶ 11. ¶17 However, the Douglas factors worksheet and the new removal decision also include discussions of aggravating factors that were not included in the proposal notice. For example, in the new removal decision, the deciding official explained that he considered that the appellant’s actions could “potentially invite conflict” 11 between the agency’s police and the local municipal police due to the critical role played by local police and the necessary interaction between the two police departments. 0137 IAF, Tab 9 at 15. Although the proposal notice discussed that local officers feared for their safety as a result of the appellant’s comments while they were serving the protective order and they were subsequently “purposefully kept away from” the clinic to which the appellant was assigned, this discussion was limited to the appellant’s interactions with specific local officers, while the deciding official’s statements relate to potential future conflict between the agency’s police department and the local department as a whole. Compare 0709-I-1 IAF, Tab 5 at 48, with 0137 IAF, Tab 9 at 15. We find the deciding official’s consideration of a potential future and broader conflict to be new information and not cumulative of the discussion in the proposal notice. ¶18 Second, the deciding official considered in his Douglas factors worksheet whether alternative sanctions would be sufficient to deter future misconduct, but he concluded that no lesser penalty would be effective. 0137 IAF, Tab 9 at 26. He considered this to be an aggravating factor. Id. This was not discussed, however, in the proposal notice. 0709-I-1 IAF, Tab 5 at 47-50. It is, therefore, new information. Similarly, the deciding official explained in the Douglas factors worksheet that the penalty of removal was consistent with the agency’s table of penalties, and that fact was an aggravating factor. 0137 IAF, Tab 9 at 24. The proposal notice did not indicate that the agency intended to rely on the table of penalties as an aggravating factor. 0709-I-1 IAF, Tab 5 at 47-50. Notably, the appellant asserted in his June 30, 2020 reply to the proposal notice that he was never provided with the agency’s table of penalties. Id. at 31. Thus, the agency’s consideration of the removal’s consistency with the table of penalties as an aggravating factor is new and not cumulative. ¶19 In sum, the deciding official considered at least three matters that constituted new information about which the appellant was not informed prior to 12 his receipt of the new decision and accompanying Douglas factors checklist. This strongly suggests a due process violation. ¶20 The second factor set forth in Stone for determining if a due process violation occurred concerns whether the employee knew of the information and had an opportunity to respond to it. Stone, 179 F.3d at 1377. Although the appellant was aware of the Douglas factors as a means of analyzing the appropriate penalty for an act of misconduct, he did not know which factors the deciding official would rely on in determining the penalty. The Douglas factors analysis that the appellant provided with his response to the earlier proposed removal was thus made in a vacuum. 0709-I-1 IAF, Tab 5 at 29-32. The agency did not provide the appellant with a Douglas factors analysis until over 2 years later, after the administrative judge’s remand to the agency. 0137 IAF, Tab 9 at 20-27. Based on the foregoing, we find that the appellant did not know of the ex parte information, nor did he have an opportunity to respond to it. This factor also weighs in favor of finding a due process violation. ¶21 The third factor set forth in Stone concerns whether the ex parte communications were “of the type likely to result in undue pressure on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377. Here, there is no evidence in the record that the ex parte information resulted in undue pressure on the deciding official to remove the appellant. Nonetheless, this consideration is only one factor and not the ultimate inquiry. Ward, 634 F.3d at 1280 n.2. Specifically, the Federal Circuit has acknowledged that this factor is “less relevant” when the deciding official admits that the ex parte information “influenced [the] determination.” Young v. Department of Housing and Urban Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013). Here, it is undisputed that the ex parte information influenced the deciding official’s penalty decision because he cited the information in the decision notice and the Douglas factors checklist. Thus, we find this factor to be less relevant to the overall analysis than the prior two Stone factors. 13 ¶22 The appellant was entitled to “procedural fairness at each stage of the removal proceedings,” not just upon review of the agency’s action. Young, 706 F.3d at 1377 (quoting Stone, 179 F.3d at 1376). Based on the foregoing, we find that the deciding official’s consideration of the ex parte information set forth above was so substantial and so likely to cause prejudice that the agency’s failure to notify the appellant in advance of its consideration in the selection of the penalty of removal and to provide him with an opportunity to respond to the information violated his right to due process.6 See Kolenc v. Department of Health and Human Services, 120 M.S.P.R. 101, ¶¶ 18-22 (2013) (concluding that the weight of evidence with regard to the first two Stone factors can outweigh the third factor when the third factor is less relevant, resulting in a finding of a due process violation). Accordingly, we reverse the initial decision and do not sustain the appellant’s removal. The agency may not remove the appellant unless and until he is afforded a new constitutionally correct removal procedure.7 See Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377; Gray v. Department of Defense, 116 M.S.P.R. 461, ¶ 12 (2011). ORDER ¶23 We ORDER the agency to cancel the removal action and to restore the appellant effective July 17, 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 20 days after the date of this decision. ¶24 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s 6 An agency may cure a potential due process violation based on the deciding official’s knowledge of ex parte information by providing the appellant with notice of the information and an opportunity to respond to the deciding official about it. 7 Because we are reversing the appellant’s removal on due process grounds, we do not address his remaining arguments on review. 14 efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶25 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶26 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶27 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. ¶28 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). 15 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 (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 requirements, 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. NOTICE OF APPEAL RIGHTS 8 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. 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 16 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 17 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 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 18 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 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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 9 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. 19 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Gina K. Grippando Clerk of the Board Washington, D.C. DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g., TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf	Issuance Date: February 24, 2022 Title 38 U.S.C. § 714 Whistleblowing Reprisal The agency removed Mr. Bryant under 38 U.S.C. § 714 on a charge of conduct unbecoming a Federal employee. In the decision letter, the deciding official found that “the charge as stated in the notice of proposed removal was supported by substantial evidence.” The deciding official sustained the proposed removal without mentioning the Douglas factors. Mr. Bryant filed a Board appeal, in which he contested whether the charged misconduct occurred and whether removal was an appropriate penalty under the Douglas factors. He also raised an affirmative defense of whistleblowing reprisal. The administrative judge found that the agency proved the charge by substantial evidence, and upheld the removal penalty. However, like the deciding official, the administrative judge did not conduct a Douglas factors analysis. The administrative judge further found that Mr. Bryant failed to establish his affirmative defense. The initial decision subsequently became the final decision of the Board. On appeal to the Federal Circuit, Mr. Bryant argued that the agency’s decision was flawed because the deciding official applied a substantial evidence standard instead of determining whether the charge was established by a preponderance of the evidence, as required under Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir 2021). Mr. Bryant further argued that the Board’s decision to uphold the penalty was contrary to law because the agency and the Board failed to properly consider the Douglas factors, as required under Connor v. Department of Veterans Affairs, 8 4th 1319 (Fed. Cir. 2021). Finally, Mr. Bryant contested the Board’s findings on his affirmative defense. Holding: Applying Rodriguez and Connor, the court vacated the portion of the Board’s decision that sustained the charge and penalty and remanded for further proceedings under the correct legal standard. The court affirmed the portion of the Board’s decision finding that the appellant failed to prove his defense of whistleblowing reprisal. 1. The court explained that it held in Rodriguez that the agency may not use a “substantial evidence” standard in taking an action under § 714. Rather, under § 714, the agency must use a “preponderance of the evidence” standard in determining whether the alleged misconduct occurred. The references to “substantial evidence” in § 714 “are all explicitly directed to the standard of review to be applied by administrative judges and the Board.” 2. Because the deciding official used the incorrect standard of proof in reaching the final decision, the court vacated for further proceedings under the correct legal standard. The court suggested that this would involve a remand to the agency: “Presumably those further proceedings will include the Board requiring the VA’s deciding official to determine whether the evidence as to the charge against Mr. Bryant satisfied the requisite preponderance-of-the-evidence standard of proof.” 3. The court further found that the Board’s penalty analysis was legally erroneous under Connor, because the Board (and the agency) failed to apply the Douglas factors. Accordingly, for that independent reason, the court vacated the penalty portion of the Board’s decision and remanded for further proceedings under the correct legal standard. Because the court was remanding the case under Rodriguez in any event, the court declined to address the agency’s argument that the failure of the agency and the Board to consider the Douglas factors was harmless error. 4. Finally, the court found no basis for disturbing the Board’s conclusion that Mr. Bryant failed to show that his whistleblowing activity was a contributing factor to the personnel action. Accordingly, the court affirmed the Board’s decision with respect to the affirmative defense. NONPRECEDENTIAL: Allbee v. Department of Homeland Security, No. 21-1608 (Fed. Cir. Feb.22, 2022) (DA-0752-20-0238-I-1) The agency removed the appellant from his Supervisory Border Patrol Agent position for unauthorized travel expenses (25 specifications), making unauthorized cash withdrawals on a government travel card, and failure to cooperate in an official investigation. On appeal, the administrative judge (AJ) found that the agency proved only charge 1, and only 20 of the 25 underlying specifications. However, the AJ determined that the agency had demonstrated a nexus between Mr. Albee’s misconduct and the efficiency of the service, and that the removal penalty was reasonable. On appeal to the Federal Circuit, the appellant argued the following: (1) that the AJ erred in ruling that the agency did not have to prove that the appellant had fraudulent intent when he submitted the vouchers at issue in charge 1; (2) that the AJ erred in finding that the agency proved 20 of the 25 specifications by a preponderance of the evidence; (3) that the agency failed to demonstrate a nexus between the misconduct alleged in charge 1 and the efficiency of the service; and (4) that the AJ erred in finding that the removal penalty was reasonable. Regarding the first argument, the court agreed with the AJ that neither the charges nor the underlying specifications referred to any intent on the part of Mr. Albee. The court further found that the AJ’s findings on the 20 sustained specifications of charge 1 were supported by substantial evidence. The court also agreed with the AJ that the agency established nexus, and found that, contrary to the appellant’s arguments, the 6-year delay between the misconduct and the removal was not relevant to determining nexus. Finally, the Board agreed with the AJ that the agency had considered the relevant Douglas factors and that the penalty of removal was reasonable. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
11-14-2024	2024 MSPB 15	Robert J MacLean	https://www.mspb.gov/decisions/precedential/MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 15 Docket No. DC-1221-22-0590-W-3 Robert J. MacLean, Appellant, v. Department of Homeland Security, Agency. November 14, 2024 Robert J. MacLean , Leesburg, Virginia, pro se. Christina Bui , Esquire, Springfield, Virginia, for the agency. Kelleen O’Fallon , Esquire, Philadelphia, Pennsylvania, for the agency. Daniel Collado , Esquire, White Plains, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. OPINION AND ORDER ¶1 This matter is before the Board on interlocutory appeal from the April 2, 2024 Order of the administrative judge staying the proceedings in this individual right of action (IRA) appeal and certifying for Board review her finding that two of the appellant’s whistleblower reprisal claims must be dismissed for adjudicatory efficiency because they concern the same personnel actions that are 2 at issue in the appellant’s prior, still pending IRA appeal, even though the appellant asserts that those actions were based on different alleged acts of protected whistleblowing. For the reasons set forth below, we FIND that the doctrines of res judicata and adjudicatory efficiency may bar an appellant from raising new theories of whistleblower reprisal regarding personnel actions that were the subject of an earlier IRA appeal. We AFFIRM the administrative judge’s dismissal of one of the appellant’s whistleblower reprisal claims, but we VACATE the dismissal of the other claim at issue in this interlocutory appeal. We TERMINATE the administrative judge’s order staying the proceedings and RETURN the appeal to the administrative judge for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 The appellant was a Federal Air Marshal with the agency. MacLean v. Department of Homeland Security, MSPB Docket No. SF-0752-06-0611-M-1, Redacted Initial Decision at 1 (Nov. 3, 2015). The agency removed the appellant in 2006, and, after a successful IRA appeal, he was reinstated to the agency in 2015. Id. at 1-2, 10; MacLean v. Department of Homeland Security, MSPB Docket No. SF-0752-06-0611-C-1, Compliance File, Tab 9 at 26-27. On March 21, 2019, the agency again removed the appellant from Federal service for misconduct. MacLean v. Department of Homeland Security, MSPB Docket No. DC-1221-20-0235-W-2, Redacted Initial Decision (0235 ID) at 106 (Feb. 7, 2023). On December 16, 2019, he filed an IRA appeal (2019 IRA) with the Board asserting whistleblower reprisal in connection with his 2019 removal and other personnel actions. Id. at 1 & n.1, 6. The alleged retaliatory personnel actions included nonselections for two lateral reassignments, an order to undergo a fitness-for-duty evaluation, and a hostile work environment. Id. at 6. ¶3 While the 2019 IRA appeal was pending before an administrative judge, the appellant filed the instant IRA appeal in August 2022. MacLean v. Department of 3 Homeland Security, MSPB Docket No. DC-1221-22-0590-W-1, Initial Appeal File (IAF), Tab 1. The administrative judge dismissed the appeal without prejudice twice pending a decision in the appellant’s 2019 IRA appeal. MacLean v. Department of Homeland Security, MSPB Docket No. DC-1221-22-0590-W-3, Appeal File (W-3 AF), Tab 44 at 2. On February 7, 2023, the administrative judge issued an initial decision in the 0235 appeal, wherein she denied corrective action on the merits. 0235 ID at 2, 216. The appellant filed a timely petition for review of the 0235 initial decision, which is currently pending before the Board. MacLean v. Department of Homeland Security, MSPB Docket No. DC-1221-20- 0235-W-2, Petition for Review File, Tab 7. ¶4 On April 6, 2023, the appellant refiled the instant appeal. W-3 AF, Tab 1. The agency moved to dismiss based on the doctrines of res judicata and/or adjudicatory efficiency, asserting that the appellant is seeking to relitigate matters that were, or could have been, raised in his 2019 IRA appeal. IAF, Tab 20; W-3 AF, Tab 13. The appellant filed several pleadings in response, wherein he asserted, among other things, that he had new evidence. E.g., W-3 AF, Tabs 14-16, Tab 31 at 4-5, Tab 50 at 3, 7, 13, 15. The administrative judge issued an order finding that the appellant nonfrivolously alleged that he made several protected disclosures, engaged in protected activity, and was subjected to personnel actions. W-3 AF, Tab 24 at 6-20. As relevant here, the administrative judge dismissed the appellant’s claims regarding two of the alleged personnel actions, identified as items (a) and (j), based on adjudicatory efficiency. Id. at 20-21. She found that those personnel actions, nonselections for certain positions in 2015, and the forcing of the appellant to use 2 months of sick leave for a fitness-for-duty evaluation in 2017, were previously litigated in the 2019 IRA appeal. Id. at 8-9, 20-21. The administrative judge concluded that the appellant was precluded from pursuing a second IRA appeal regarding those actions, although he was now alleging that they were based on additional alleged disclosures and activity that were not before the Board in the 2019 IRA appeal. 4 Id. at 21. Finally, the administrative judge stated that she was unable to make a determination regarding the contributing factor element because of the limited information provided by the appellant, and she ordered him to provide further evidence and argument in that regard. Id. at 21-23. The appellant and the agency responded to the administrative judge’s order on jurisdiction. W-3 AF, Tabs 26-27, 30-31. ¶5 The administrative judge later issued another order on jurisdiction, wherein she concluded that the appellant satisfied the contributing factor criterion at the jurisdictional stage as to some of the alleged personnel actions. W-3 AF, Tab 34 at 6-10. The administrative judge granted, in part, and denied, in part, the appellant’s request for reconsideration of certain jurisdictional rulings and denied the agency’s request for reconsideration of certain rulings on res judicata. Id. at 2-6. ¶6 Thereafter, both parties requested certification of interlocutory appeals on different issues, which the administrative judge denied. W-3 AF, Tab 44 at 4-8. Sua sponte, the administrative judge certified for interlocutory appeal her ruling that the claims concerning personnel actions (a) and (j) must be dismissed based on adjudicatory efficiency. Id. at 9-10; see 5 C.F.R. § 1201.91. She explained that the issue involved an important question of law or policy about which there is a substantial ground for difference of opinion and that an immediate ruling would advance the overall efficient processing of the case given the scale of the litigation. W-3 AF, Tab 44 at 9-10. ANALYSIS ¶7 An administrative judge will certify a ruling for review on interlocutory appeal only if the record shows the following: (a) the ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and (b) an immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause 5 undue harm to a party or the public. 5 C.F.R. § 1201.92. We find that the administrative judge applied these criteria and did not abuse her discretion in certifying this interlocutory appeal. ¶8 The legal issue presented on interlocutory appeal is whether the doctrines of res judicata or adjudicatory efficiency may bar a second IRA appeal following an earlier IRA appeal regarding the same personnel actions but based on different protected disclosures or activity. We find that these doctrines may bar multiple IRA appeals in such circumstances. Although res judicata and adjudicatory efficiency are distinct concepts, they are related here, and we discuss both in this Opinion and Order. ¶9 Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties or their privies based on the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995). The doctrine precludes the parties from relitigating issues that were, or could have been, raised in the prior action, id.; accord Stearn v. Department of the Navy, 280 F.3d 1376, 1380 (Fed. Cir. 2002), and will be applied if the following elements are met: (1) the prior decision was rendered by a forum with competent jurisdiction; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases, Ryan v. Department of the Air Force, 113 M.S.P.R. 27, ¶ 11 (2009); accord Carson v. Department of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005). Res judicata serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980). ¶10 Because res judicata requires a final decision on the merits, the doctrine will not apply if the prior decision has not yet become final. For example, when an appellant files an appeal that raises claims raised in an earlier appeal after the initial decision in the earlier appeal has been issued but before the full Board has 6 acted on the appellant’s petition for review, it is appropriate to dismiss the subsequent appeal on the grounds of adjudicatory efficiency, but not based on the grounds of res judicata. Zgonc v. Department of Defense, 103 M.S.P.R. 666, ¶ 6 (2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007). ¶11 The material issue in this appeal is whether the appellant’s two IRA appeals involve the same causes of action. The Board’s regulations define the issue before the Board in an IRA appeal, or the cause of action, as whether the appellant has demonstrated that whistleblowing or other protected activity was a contributing factor in one or more covered personnel actions and, if so, whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action(s) in the absence of such whistleblowing or protected activity. 5 C.F.R. § 1209.2(c). This is consistent with our case law, which has defined a cause of action as a set of facts giving the appellant the right to seek relief from an agency. Jennings v. Social Security Administration, 123 M.S.P.R. 577, ¶ 25 (2016); Navarro v. Office of Personnel Management, 105 M.S.P.R. 278, ¶ 4, aff’d, 252 F. App’x 316 (Fed. Cir. 2007). An appellant may seek relief from the Board in an IRA appeal, also referred to as corrective action, “with respect to any personnel action taken, or proposed to be taken . . . as a result of a prohibited personnel practice” as described in 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(a). Thus, both statute and the Board’s regulations support a finding that the cause of action in an IRA appeal is the personnel action. ¶12 The concept that the cause of action in an IRA appeal is centered around the personnel action is also supported by our case law. It is well settled that an employee who appeals his or her removal directly to the Board is precluded from later filing an IRA appeal challenging the same removal action, i.e., the same personnel action. Ryan, 113 M.S.P.R. 27, ¶ 13; Page v. Department of the Navy, 101 M.S.P.R. 513, ¶ 2 n.1 (2006); Sabersky v. Department of Justice, 91 M.S.P.R. 210, ¶¶ 7-8 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 2003). This is because the 7 employee could have raised a whistleblower reprisal defense in the original appeal. Sabersky, 91 M.S.P.R. 210, ¶¶ 7-8. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has endorsed this concept. In a nonprecedential decision1 in Wyeroski v. Department of Transportation, the Federal Circuit stated that the preclusion of the appellant’s IRA appeal by res judicata based on his prior removal appeal pursuant to chapter 75 was “in line” with the Board’s decisions in Sabersky, 91 M.S.P.R. 210, and Ryan, 113 M.S.P.R. 27, and “fully consistent with settled law.” Wyeroski v. Department of Transportation, 465 F. App’x 956, 957 (Fed. Cir. 2012) (citing Spears v. Merit Systems Protection Board, 766 F.2d 520, 523 (Fed. Cir. 1985)). The U.S. Court of Appeals for the Tenth Circuit held in a nonprecedential decision that res judicata barred an appellant’s IRA appeal against his employing agency concerning his separation because, even though he did not, he could have raised a whistleblower reprisal claim in his prior arbitration of that same agency action.2 Johnson v. Department of Veterans Affairs, 611 F. App’x 496, 497-99 (10th Cir. 2015). The court explained that the cases involved the same cause of action because the two proceedings were based on the same event, i.e., the employee’s separation from the agency. Id. at 498. ¶13 An appellant may not circumvent res judicata’s bar on filing multiple appeals challenging the same personnel action by asserting that his claims are based on different legal theories. This is true “even though ‘the several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different measures of liability or different 1 The Board may follow nonprecedential decisions of the Federal Circuit that it finds persuasive, as we do here. See, e.g., Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 14 (2010). 2 The All Circuit Review Act, signed into law on July 7, 2018, allows appellants to file petitions for judicial review of Board decisions in certain whistleblower reprisal cases with the Federal Circuit or any other circuit court of appeals of competent jurisdiction. Pub. L. No. . 115-195, 132 Stat. 1510. There are no precedential decisions in any circuit court of appeals addressing the precise issues in this interlocutory appeal. 8 kinds of relief.’” Resource Investments, Inc. v. United States, 785 F.3d 660, 667 (Fed. Cir. 2015) (citation omitted); see also Sabersky, 91 M.S.P.R. 210, ¶ 8 (holding that the final order rendered by the Board after the appellant’s first appeal precluded the appellant from challenging the same personnel action in a new appeal under a new legal theory); Garduque v. Office of Personnel Management, 84 M.S.P.R. 300, ¶ 2 (1999) (holding that the petitioners were not entitled to return to the Board on the basis that they had developed a new theory of their cases). In finding that an appellant is barred from challenging the same personnel action in serial IRA appeals based on a different legal theory, the Board has addressed in a nonprecedential order facts similar to the ones here. In Ryan v. Department of the Air Force, MSPB Docket No. DA-1221-11-0239-W-1, Final Order at 4-6 (Mar. 25, 2013), the Board held that the doctrine of adjudicatory efficiency, and the related doctrine of res judicata, precluded the appellant from challenging, in a second IRA appeal, the same personnel actions that were the subject of a prior IRA appeal, despite the appellant’s assertion that he was challenging the personnel actions under a new legal theory. ¶14 We note that res judicata would not bar an appellant in a second IRA appeal from alleging that different personnel actions were taken in retaliation for protected disclosures that were raised in a prior IRA appeal. Groseclose v. Department of the Navy, 111 M.S.P.R. 194, ¶ 29 (2009) (finding that the appellant was not barred from alleging that new personnel actions were taken in retaliation for alleged protected disclosures raised in his prior IRA appeal). In that situation, the cause of action would not be the same because the appeals involve different personnel actions. See Inman v. Department of Veterans Affairs, 115 M.S.P.R. 41, ¶¶ 14-15 (2010) (finding that a prior IRA appeal concerning a nonselection did not bar a later IRA appeal concerning performance evaluations because the later appeal concerned a different cause of action). These cases further support the concept that the cause of action is tied to the personnel action, rather than the alleged protected disclosures or activity. 9 ¶15 We hold that the doctrines of res judicata and adjudicatory efficiency may bar a second IRA appeal raising whistleblower reprisal claims involving the same personnel actions that were the subject of a prior IRA appeal. Our holding promotes the general purposes of res judicata, which are to relieve parties of the cost and vexation of multiple appeals, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Allen, 449 U.S. at 94; Peartree, 66 M.S.P.R. at 336-37. To find otherwise would allow appellants to continue to challenge, in serial IRA appeals, the same cause of action based on different legal theories, in violation of our well-established precedent. See Sabersky, 91 M.S.P.R. 210, ¶ 8; Garduque, 84 M.S.P.R. 300, ¶ 2. ¶16 We briefly discuss three other matters. First, in the administrative judge’s order certifying an interlocutory appeal, W-3 AF, Tab 44 at 9, she appears to question whether a separate opinion by then-Member Slavet in Rusin v. Department of the Treasury, 92 M.S.P.R. 298, 313-14 & n.6 (2002), is consistent with the Board’s decision in Sabersky. We find no such inconsistency with Sabersky or any other case discussed in this decision, and, in any event, that separate opinion is not binding on the Board. ¶17 Second, the appellant has made various claims about new evidence. E.g., W-3 AF, Tab 14 at 5-16, Tab 15, Tab 50 at 3, 7, 13, 15. The Board and the Federal Circuit have generally rejected claims that purported new evidence should defeat the preclusion of a subsequent appeal based on res judicata. See, e.g., Francisco v. Office of Personnel Management, 80 M.S.P.R. 684, 686-88 (1999) (finding that the petitioners’ appeal was barred by res judicata and denying their request to reopen the prior appeal based on new evidence). The Federal Circuit has explained that newly discovered facts relating to a previously litigated claim form the basis of a new claim only on rare occasions, such as in the case of negligent misrepresentation by the other party. Detrich v. Department of the Navy, 463 F. App’x 934, 936 (Fed. Cir. 2012) (citing Restatement (Second) of Judgments § 26 cmt. J (1982)); see also SynQor, Inc. v. Vicor Corp., 988 F.3d 10 1341, 1355 (Fed. Cir. 2021) (explaining that collateral estoppel applies even if new evidence exists and that an unsuccessful litigant “does not get a second bite at the apple” based on the discovery of new and arguably more persuasive evidence or witnesses). Even considering this potential exception, however, the court in Detrich explained that, when the newly discovered facts were revealed during the pendency of the prior case, such purported new evidence was insufficient to defeat a finding that the employee’s subsequent appeal was barred by res judicata. Detrich, 463 F. App’x at 936. We find the court’s reasoning to be persuasive. Here, the appellant’s 2019 IRA appeal, in which he is represented by counsel, is still pending before the Board. In fact, at the time he filed this appeal, the administrative judge had not yet issued an initial decision in the 2019 IRA appeal. Under these circumstances, any purported new evidence pertaining to the claims raised in the appellant’s 2019 IRA appeal are insufficient to defeat a finding that adjudicatory efficiency or res judicata should preclude this appeal.3 See id.; see also Francisco, 80 M.S.P.R. at 686-88 (finding that the petitioners’ alleged new evidence did not preclude a dismissal for res judicata when, among other things, the petitioners did not show that such evidence was unavailable during the prior proceedings). ¶18 Third, the parties have requested permission to file briefs addressing the question presented on interlocutory appeal. W-3 AF, Tabs 45, 50. We find that briefing of the issue is not necessary, and we therefore deny the parties’ requests.4 3 It is unclear which, if any, of the purported new evidence the appellant is alleging pertains to the claims dismissed by the administrative judge for adjudicatory efficiency. Although the appellant repeatedly references the charges leading to his 2019 removal, that claim is not at issue in this appeal and therefore is not relevant to the issue of claim preclusion. E.g., W-3 AF, Tabs 14-15, Tab 16 at 4-8, Tab 50 at 3-4, 13. 4 Since the certification of interlocutory appeal, the parties have filed various motions and responses thereto. Any motions not decided in this Opinion and Order or in the order dated May 1, 2024, issued by the Clerk of the Board, should be considered and decided by the administrative judge. Future submission of all motions and evidence must comply with all applicable orders issued by the administrative judge. 11 ¶19 Based on the above analysis, we find no error in the administrative judge’s dismissal of the appellant’s claim regarding personnel action (j) based on adjudicatory efficiency because the claim was or could have been brought in a prior proceeding. It is not clear which nonselections the appellant is challenging as part of personnel action (a). W-3 AF, Tab 24 at 8, 21 & n.10. After the case is returned to the administrative judge for adjudication, the appellant should clarify the vacancy numbers of the nonselections he is challenging as part of his whistleblower reprisal claim concerning personnel action (a). The administrative judge should then determine whether personnel action (a) may be dismissed based on adjudicatory efficiency or on any other basis. ORDER ¶20 Accordingly, we terminate the order that stayed the proceedings of this matter, and we return the appeal to the regional office for further adjudication consistent with this Opinion and Order. Gina K. Grippando Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf
10-30-2024	2024 MSPB 14	Latisha Zepeda	https://www.mspb.gov/decisions/precedential/Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf	Nuclear Regulatory Commission	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 14 Docket No. DA-0432-19-0539-I-1 Latisha A. Zepeda, Appellant, v. Nuclear Regulatory Commission, Agency. October 30, 2024 Kevin C. Crayon Jr. , Esquire, Kennesaw, Georgia, for the appellant. Michael Gartman , Esquire, and Vinh Hoang , Esquire, Rockville, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member OPINION AND ORDER ¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which reversed the appellant’s performance-based removal but denied her affirmative defenses. For the reasons discussed below, we DENY the petition for review and the cross petition for review. Except as expressly MODIFIED to incorporate the appropriate analytical framework for the appellant’s disability discrimination claim, we AFFIRM the initial decision. 2 BACKGROUND ¶2 The following facts, as further detailed in the initial decision, are not disputed. The appellant has a lengthy history of Federal employment, most recently as a Special Agent for the agency’s Office of Investigations. Initial Appeal File (IAF), Tab 1 at 1, Tab 28 at 4, Tab 51, Initial Decision (ID) at 3. In that position, her permanent first-line supervisor was the Special Agent in Charge (SAIC). IAF, Tab 28 at 4; ID at 3. However, an Acting SAIC supervised the appellant from March to June 2018. IAF, Tab 28 at 4; ID at 4. During that period, the agency issued a performance improvement requirements memorandum (PIRM), which placed the appellant under a performance improvement period (PIP) based on unacceptable performance in three critical elements: (1) planning and preparation for assigned investigations; (2) conduct of investigations/assists to staff; and (3) preparation of reports of investigation and assists to staff closure memoranda. IAF, Tab 19 at 35-46; ID at 4. Upon expiration of the PIP, the agency proposed the appellant’s removal for unacceptable performance in the same three critical elements. IAF, Tab 15 at 79-85; ID at 4. After the appellant responded to the proposal, the deciding official sustained her removal, effective October 2018. IAF, Tab 18 at 4-12; ID at 4-5. ¶3 The appellant unsuccessfully challenged her removal in a formal equal employment opportunity (EEO) complaint with the agency. IAF, Tab 5 at 6-32; ID at 5 n.5. Upon receipt of the final agency decision, she filed the instant appeal to challenge her performance-based removal and raise several affirmative defenses. IAF, Tab 1 at 1, Tab 5 at 6. ¶4 The administrative judge developed the record and held a 2-day hearing before reversing the appellant’s removal based on the agency’s failure to prove that its performance standards were valid. ID at 3, 8-12. The administrative judge also considered but rejected the appellant’s claims of a due process violation, ID at 5-7; discrimination based on race, sex, and national origin, along 3 with associated EEO reprisal, ID at 12-21; and disability discrimination, ID at 22-26. ¶5 The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1. The appellant has filed a response, PFR File, Tab 3, and the agency has replied, PFR File, Tab 5. The appellant has also filed a cross petition for review, PFR File, Tab 3, to which the agency has responded, PFR File, Tab 6. ANALYSIS The agency failed to prove that its performance standards were valid. ¶6 At the time the initial decision was issued, the Board’s case law stated that, to prevail in an appeal of a performance-based removal under chapter 43, the agency must establish the following by substantial evidence:1 (1) the Office of Personnel Management (OPM) approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards were valid under 5 U.S.C. § 4302(b)(1); (4) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to demonstrate acceptable performance; and (5) the appellant’s performance remained unacceptable in one or more of the critical elements for which she was provided an opportunity to 1 Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). 4 demonstrate acceptable performance.2 Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). The administrative judge applied this standard and found that the agency proved the first two elements, ID at 7-8, but failed to prove the third—the validity of its performance standards, ID at 8-12. Therefore, the administrative judge reversed the appellant’s removal without addressing the remaining elements. Since that third element is the crux of the arguments on review, our analysis will be similarly focused. The performance standards in the appellant’s performance plan were invalid. ¶7 Under certain performance appraisal systems, including the one at issue in this appeal, performance of a critical element may fall between “fully successful” and “unacceptable.” Jackson-Francis v. Office of Government Ethics, 103 M.S.P.R. 183, ¶ 6 (2006). However, performance falling between those levels, e.g., “minimally successful” performance, would not support removal under chapter 43; only “unacceptable” performance is actionable under the statute. Id., ¶¶ 6-7. Performance standards are not valid if they do not set forth the minimum level of performance that an employee must achieve to avoid removal for unacceptable performance under chapter 43. Id., ¶ 8. Absent valid performance standards, the Board cannot consider charged performance deficiencies. Id. ¶8 As the administrative judge noted, the appellant’s performance plan included a five-tier rating system that consisted of unacceptable, minimally 2 During the pendency of the petition for review in this case, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in Santos v. National Aeronautics and Space Administration, 990 F.3d 1355, 1360-61, 1363 (Fed. Cir. 2021), that in addition to the five elements of the agency’s case set forth above, the agency must also “justify the institution of a PIP” by proving by “substantial evidence that the employee’s unacceptable performance ‘continued’—i.e., it was unacceptable before the PIP.” The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. However, given our disposition, we need not remand for adjudication of the element described in Santos. 5 successful, fully successful, excellent, and outstanding performance. ID at 3-4; IAF, Tab 19 at 47-57. However, the plan only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal under chapter 43. ID at 8; IAF, Tab 19 at 47-57. Therefore, the administrative judge found that the standards provided in the appellant’s performance plan were facially invalid. ID at 8-9. ¶9 On review, the agency disagrees that the performance standards provided in the appellant’s performance plan were facially invalid. PFR File, Tab 1 at 7-9. According to the agency, it only needed to define fully successful performance. Id. at 7-8 (citing, e.g., 5 C.F.R. §§ 430.206(b)(8)(i)(B), 430.208(d)(1)). This argument misses the mark. ¶10 Although the regulations and guidance the agency cites only require that its performance plan establish the standard for “fully successful” performance, an agency’s obligations do not necessarily end there if it wishes to pursue removal under the chapter 43 statutory scheme. Compare 5 C.F.R. § 430.206(b)(8)(i)(B) (requiring that a performance plan establish fully successful performance), with Sherrell v. Department of the Air Force, 47 M.S.P.R. 534, 539 (1991) (recognizing this requirement in a prior version of the regulation, but also that an agency’s performance standards are invalid if they require projection of more than one level to determine a specific level of performance), aff’d, 956 F.2d 1174 (Fed. Cir. 1992) (Table). Performance standards “must set forth in objective terms the minimum level of performance which an employee must achieve to avoid, inter alia, removal for ‘unacceptable performance’” under chapter 43. Eibel v. Department of the Navy, 857 F.2d 1439, 1441 (Fed. Cir. 1988). A single standard in a five-tier performance plan violates the statutory requirement of objectivity because it requires extrapolation more than one level above and below the written standard, rendering the standard facially invalid. Henderson v. National Aeronautics and Space Administration, 116 M.S.P.R. 96, ¶ 13 (2011). 6 Accordingly, the standards in the appellant’s performance plan, which defined fully successful performance but not minimally successful performance, were not valid for purposes of this removal action. The performance standards in the appellant’s PIRM, or PIP notice, were also invalid. ¶11 While the appellant’s performance plan did not suffice for meeting the agency’s burden of proving that its performance standards were valid under 5 U.S.C. § 4302, our analysis does not stop there. Facially invalid standards such as the ones at issue in this appeal may be cured through subsequent communications to the employee. Henderson, 116 M.S.P.R. 96, ¶ 13. An agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP. Id., ¶ 18. However, at whatever point in the process they are communicated, standards that fail to inform an employee of what is necessary to obtain an acceptable level of performance and instead describe what she should not do are invalid backwards standards. Van Prichard v. Department of Defense, 117 M.S.P.R. 88, ¶ 18 (2011), aff’d per curiam, 484 F. App’x 489 (Fed. Cir. 2012); see Eibel, 857 F.2d at 1441-42 (finding that invalid backwards standards read more like unacceptable standards, rather than acceptable ones, and literally can be met by doing nothing); Henderson, 116 M.S.P.R. 96, ¶ 12 n.3 (explaining that backwards standards are ones that identify unacceptable performance, rather than acceptable performance). ¶12 The administrative judge noted that the PIRM, or PIP notice, did elaborate on the deficient performance plan by providing a definition of minimally successful performance for each standard underlying the three critical elements at issue in this removal action. ID at 9-10; IAF, Tab 19 at 35, 39-43. The administrative judge discussed just the first critical element, “planning of and 7 preparation for assigned investigations,” but explained that the measures were similar for the others. ID at 9-10. ¶13 For each of the critical elements at issue in this appeal, including the first, the appellant’s performance was measured by four criteria: quality, supervision needed/independence, timeliness, and quantity. IAF, Tab 19 at 39-40. However, for the “quality” criterion under that critical element, the PIRM provided that “[a] rating of minimally successful means that . . . components of assignment investigations were of less than good quality.” Id. at 39. The “supervision” criterion described minimally successful performance as that which included “more than normal discussion with the [SAIC].” Id. The “quantity” criterion described minimally successful performance as “a less than expected quantity of planning and preparation activities . . . completed within the time frames set forth.” Id. at 40. ¶14 Using the “quantity” criterion as an example, the administrative judge found that it described unacceptable performance, rather than minimally acceptable performance, because its requirement that the appellant produce “a less than expected quantity” could be satisfied by producing nothing at all. ID at 10. The administrative judge determined that each of these criteria were backwards standards, and they were therefore invalid. ID at 10-12; see Eibel, 857 F.2d at 1441-42; Van Prichard, 117 M.S.P.R. 88, ¶ 18; Henderson, 116 M.S.P.R. 96, ¶ 12 n.3. ¶15 The final criterion under each critical element, timeliness, was notably different than the others. Again, using the first critical element as an example, the PIRM indicated that minimally successful performance meant that “generally assigned investigative plans are completed on schedule within the first 15-30 days of the assignment; however, occasional delays that do not adversely affect Agency operations or schedules in submitting non-complex assignments are acceptable.” IAF, Tab 19 at 40. The administrative judge found that the agency’s timeliness criteria were not backwards on their face, but they were nevertheless 8 invalid because they were inextricably intertwined with the other three backwards standards included in each critical element. ID at 11-12. She explained that the Acting SAIC who oversaw the appellant’s PIP and proposed her removal confirmed that he did not consider the appellant’s work timely if it was lacking in quality or required excessive supervision. Id. ¶16 On review, the agency argues that the administrative judge erred by finding its quality, supervision needed, and quantity standards to be backwards. PFR File, Tab 1 at 10. The agency contends that the administrative judge improperly considered isolated phrases in the PIRM rather than viewing the phrases in context. Id. We disagree. ¶17 The appellant’s performance plan and her PIRM do not explain what was necessary for the appellant to be rated minimally successful and avoid the removal action before us. IAF, Tab 19 at 35-58. Once again, we will use the first critical element and the underlying “quantity” criterion as an example. The performance plan describes the first critical element, and it describes the underlying “quantity” criterion, but the performance plan only defines fully successful performance for the same. Id. at 49. Specifically, the performance plan provides as follows: A rating of fully successful means that the expected quantity of planning and preparation activities is completed within the time frames set forth in the [Office of Investigation’s] performance measures. The complexity and priority of cases are considered in determining what quantity of work is expected. Generally, the planning and preparation activities are completed upon assignment of an investigation with a normal level of discussion with the Special Agent in Charge or Task Leader. Note that for this grade level a minimal level of assistance from the Special Agent in Charge or Task Leader and monthly status checks are expected. Id. (emphasis added). 9 ¶18 The PIRM contains the same description for the first critical element and the same description for the underlying “quantity” criterion, but the PIRM then provides: A rating of minimally successful means that a less than expected quantity of planning and preparation activities is completed within the time frames set forth in the [Office of Investigation’s] performance measures. The complexity and priority of cases are considered in determining what quantity of work is expected. Generally, the planning and preparation activities are completed upon assignment of an investigation with more than normal discussion with the Special Agent in Charge or Task leader. Note that for this grade level a minimal level of assistance from the Special Agent in Charge or Task leader and monthly status checks are expected. Id. at 40 (emphasis added). ¶19 Although the agency argues that the additional context shows that its performance standards were valid, we find that the additional context only illuminates the agency’s error. Read together, the performance plan provides that a fully successful rating requires “the expected quantity,” while the PIRM provides that a minimally successful rating requires “a less than expected quantity.” Id. at 40, 49. However, there is no other difference between the ratings described in those two documents, and neither differentiates between minimally successful and unacceptable performance. In other words, the agency failed to give the appellant an indication of how much “less than expected” she could produce in terms of quantity while still avoiding an unacceptable rating that would lead to her removal. 10 ¶20 With its argument on review, the agency uses a different example—the third critical element, which is “preparation of reports of investigation and assists to staff closure memoranda.” PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. In particular, the agency recounts the “quality” criterion, for which the PIRM provided as follows: A rating of minimally successful means that closure documents are of a less than expected quality in terms of being accurate, clear, organized, concise, and grammatically correct. The written product adequately supports and leads to logical conclusions and effectively communicates the intended information. It complies with Investigative Procedures Manual and Investigative Guidance Memoranda report writing requirements. PFR File, Tab 1 at 11-12; IAF, Tab 19 at 42. The agency suggests that the latter phrases cure or at least improve on the “less than expected” language, which is more subjective. PFR File, Tab 1 at 12-13. But this argument seems to overlook the fact that the latter phrases are also contained, verbatim, in the performance plan’s explanation of fully successful performance. The only difference between the agency’s explanation of its performance standards for this metric is that “fully successful means that generally the closure documents are accurate, clear, organized, concise, and grammatically correct,” IAF, Tab 19 at 2, while “minimally successful means closure documents are of a less than expected quality in terms of being accurate, clear, organized, concise, and grammatically correct,” id. at 42. ¶21 The agency’s standards for minimally successful performance are indistinguishable from comparable standards that we have found to be impermissibly backwards and invalid. For example, in Van Prichard, the Board considered the following language to describe marginal performance, i.e., the minimal level of performance needed in that case to avoid removal under chapter 43: “less than Fully Successful and supervisory guidance and assistance is more than normally required.” Van Prichard, 117 M.S.P.R. 88, ¶ 17. The Board explained that although the standard in that case was written at the 11 “minimally successful” level, it was backwards and invalid because the standard failed to inform the employee of what was necessary to obtain an acceptable level of performance. Id., ¶ 18. As a practical matter, the agency in Van Prichard failed to distinguish between minimally successful and unacceptable performance. Id. The same is true of the agency’s performance standards in this case. ¶22 The agency separately argues that although language such as “less than expected” is somewhat subjective, that was permissible because of the nature of the appellant’s work. PFR File, Tab 1 at 13. We disagree. The fact that the performance standard may call for a certain amount of subjective judgment on the part of the employee’s supervisor does not automatically invalidate it. Henderson, 116 M.S.P.R. 96, ¶ 23. However, the performance standards must be sufficiently precise and specific as to invoke a general consensus as to its meaning and content and provide a firm benchmark toward which the employee may aim her performance. Id. Here, the agency’s explanation of minimally successful performance fails to do so. The agency did not give the appellant any indication, for example, how much “less than good” her quality could be or “less than expected” her quantity could be while still avoiding unacceptable performance that would lead to her removal. ¶23 Next, the agency argues about the timeliness standards. PFR File, Tab 1 at 14. Once again, the administrative judge did not find the timeliness standards backwards on their face, but she found them inextricably intertwined with other standards that were. Supra ¶ 15. The agency contends that there is no requirement that performance standards be entirely discrete or independent from one another. PFR File, Tab 1 at 15-16 (referencing, e.g., Mendez v. Department of the Air Force, 62 M.S.P.R. 579 (1994), overruled on other grounds by Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13 (2004)). But the administrative judge did not find the timeliness standard invalid because it was related to the other standards; she found it invalid because the Acting SAIC acknowledged that he did not consider the appellant’s work timely if it was 12 lacking as to the backwards standards, such as those concerning quality and supervision required. ID at 11. The agency has not presented any persuasive argument to the contrary, and it has not shown that the administrative judge erred by finding the timeliness standards invalid as a result. The agency has not shown that it cured its invalid performance standards. ¶24 The agency’s final assertion about the validity of its performance standards is that any deficiencies were cured during the PIP. PFR File, Tab 1 at 16-21. This argument is twofold. First, the agency contends that precedent from the Board and the U.S. Court of Appeals for the Federal Circuit demonstrates that its invalid standards could be cured rather than entirely rewritten. Id. at 16-19. Second, the agency contends that the standards at issue in this appeal were sufficiently cured during the PIP. Id. at 19-21. ¶25 As stated above, the Board has recognized that an agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP. Henderson, 116 M.S.P.R. 96, ¶ 18. However, Henderson and many other cases like it involved standards that were invalid for reasons different than the agency’s backwards standards in this appeal. E.g., id., ¶¶ 16-21 (considering whether the agency cured performance standards that included five possible ratings and set forth what was required to meet expectations, but failed to set forth what was required to meet the lower rating that would still preclude removal); Thompson v. Department of the Army, 89 M.S.P.R. 188, ¶¶ 18-19 (2001) (considering whether the agency cured performance standards that were absolute, i.e., a single performance error warranted an unacceptable rating). ¶26 In Eibel, our reviewing court considered backwards standards such as the ones currently before us. Eibel, 857 F.2d at 1441-42. The court explained that the backwards standards in Eibel were not the kind that “inherently require a degree of subjective judgment by the supervisor [and] may be ‘fleshed out’ and 13 ‘clarified’ during counseling.” Id. at 1443. Instead, the court explained that the backwards standards in that appeal “would have to be totally rewritten, not supplemented.” Id. In several subsequent cases, the Board cited Eibel and similarly found that agencies’ backwards performance standards would have to be entirely rewritten, not just fleshed out. Jackson-Francis, 103 M.S.P.R. 183, ¶ 10; Burnett v. Department of Health and Human Services, 51 M.S.P.R. 615, 617-18 (1991); Ortiz v. Department of Justice, 46 M.S.P.R. 692, 695 (1991). Although the Board has entertained the idea of an invalid backwards standard being cured, we found no example of an agency doing so.3 Van Prichard, 117 M.S.P.R. 88, ¶ 18 (finding that the agency’s standards were backwards and indicating that the agency did not identify anything in the record that cured the deficiency); Ortiz, 46 M.S.P.R. at 696 (finding that, to the extent the agency could have clarified its backwards standards, it failed to do so). ¶27 Turning back to the facts of this appeal, we find no basis for concluding that the agency’s backwards performance standards, which needed more than simple fleshing out, were entirely rewritten or otherwise cured. While arguing to the contrary, the agency has once again relied on the language of the PIRM, asserting that it provided sufficient content to cure any defect. PFR File, Tab 1 at 16-17, 19 (referencing IAF, Tab 19 at 35-46). But, for the reasons discussed above, we disagree. The PIRM provided numerous examples of the appellant’s unacceptable performance, IAF, Tab 19 at 36-38, and then provided backwards standards for minimally successful performance, id. at 39-43. We recognize that the PIRM went on to describe examples of the appellant’s “typical duties and the activities 3 The agency has cited three nonprecedential cases—two from the Federal Circuit and one from a district court—to assert that backwards performance standards can be cured without being rewritten. PFR File, Tab 1 at 19. However, two of those cases involved standards that were not backwards, Thompson v. Department of the Navy, 84 F. App’x 61, 63-64 (Fed. Cir. 2003); Gallegos v. White, No. CIV-O3-384, 2004 WL 7337514, at 5 (D.N.M. Oct. 6, 2004), and the third involved a two-paragraph opinion upholding an employee’s chapter 43 removal without detailing the performance standards at issue, except to describe them as “poorly written” and “partially backward,” but understood by the parties, Sesko v. Department of the Navy, 878 F.2d 1444 (Fed. Cir. 1989) (Table). 14 necessary to demonstrate minimally successful performance.” Id. at 43-45. However, those examples are little more than a list of duties. While testifying, the Acting SAIC simply described them as the tasks in the appellant’s workload. IAF, Tab 38, Hearing Recording, Day 1, Part 2 at 28:00-30:00 (testimony of Acting SAIC). They do not “set forth in objective terms the minimum level of performance which an employee must achieve” regarding the agency’s quality, supervision needed, and quantity standards for the relevant critical elements. See Eibel, 857 F.2d at 1441. ¶28 The agency has also referenced communications during the PIP between the appellant and the Acting SAIC. PFR File, Tab 1 at 17, 20-21 (referencing, e.g., IAF, Tab 19 at 12-33). It highlighted two notations, in particular. The first was the Acting SAIC’s handwritten comment in the margin of a document the appellant produced, where he stated, “We need to show what process [subject] used with his records and clearly and concisely identify a sub[stantiate] or no sub[stantiate] call. Again, if you have questions ask.” PFR File, Tab 1 at 20 (referencing IAF, Tab 35 at 56). The second is a single comment within the Acting SAIC’s record of meetings he had with the appellant during the PIP, in which he stated that “it is an expectation per your elements and standards defined under critical element 1 that you are able to identify and develop your own steps toward proper planning and preparation of your work to demonstrate that you are capable at the minimally successful level.” PFR File, Tab 1 at 20 (referencing IAF, Tab 19 at 22). Although the evidence cited shows that the agency continuously warned the appellant that her performance was unacceptable and provided some limited instruction for improvement during the PIP, it does not rewrite or otherwise cure the agency’s backwards performance standards. Because the agency has failed to establish any basis for us to overturn the administrative judge’s decision and find that the agency proved the validity of its performance standards, we need not consider the parties’ competing arguments 15 about the remainder of the agency’s burden. PFR File, Tab 1 at 22-28, Tab 3 at 3-21, Tab 5 at 5-13. The appellant did not prove her affirmative defenses. ¶29 The administrative judge considered, but rejected, the appellant’s claims of a due process violation, ID at 5-7, discrimination based on race, sex, and national origin, along with associated EEO reprisal, ID at 12-21, and disability discrimination, ID at 22-26. In her cross petition for review, the appellant reasserts only her claims of race discrimination, sex discrimination, and EEO reprisal. PFR File, Tab 3 at 21-24. ¶30 Concerning the Title VII discrimination and EEO reprisal claims that the appellant reasserts on review, the administrative judge identified and applied the standard set forth in Savage v. Department of the Army, 122 M.S.P.R. 612 ¶¶ 41-42, 51 (2015), as clarified by Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016). ID at 15-17. Under that standard, when an appellant asserted an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board would first inquire whether she had shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. Such a showing was sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Id. If the appellant met her burden, the Board then would inquire whether the agency had shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., it still would have taken the contested action absent the alleged discriminatory or retaliatory motive. Id. If the Board found that the agency made that showing, its violation of 42 U.S.C. § 2000e-16 would not require reversing the action. Id. Ultimately, the administrative judge found that the appellant failed to meet her initial burden of proving that any characteristic or activity protected under Title VII was a motivating factor in the agency’s removal action. ID at 12-21. 16 ¶31 Following the issuance of the initial decision in this case, the Board issued Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, 30, which overruled parts of Savage and clarified the proper analytical framework to be applied to affirmative defenses of Title VII discrimination and retaliation. Specifically, the Board explained in Pridgen that for status-based discrimination claims, in order to obtain full relief, the appellant must show that discrimination or retaliation was the “but-for” cause of the personnel action. Pridgen, 2022 MSPB 31, ¶¶ 21-22, 30. The Board also clarified the expansive scope of potentially relevant evidence. Id., ¶¶ 23-25. ¶32 Based on our review of the record, we conclude that the outcome of this appeal under the standard set forth in Pridgen would be the same as that arrived at by the administrative judge. On review, the appellant suggests that she met her initial burden by simply establishing that the officials involved in her removal had knowledge of her protected EEO activity. PFR File, Tab 3 at 21-22. We disagree. In making this argument, the appellant seems to conflate the standards for an EEO reprisal claim with the standards for a whistleblower reprisal claim. Compare Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30 (explaining that claims of retaliation for opposing discrimination in violation of Title VII are analyzed under the same framework as used for Title VII discrimination claims), with Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 12, 18 (2015) (describing how an appellant may establish a prima facie case of whistleblower reprisal by simply proving that the official taking the personnel action had knowledge of the employee’s protected disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action). ¶33 Aside from her mistaken reliance on an inapplicable standard, the only arguments the appellant presents about her Title VII discrimination and reprisal claims are brief ones recounting and recharacterizing hearing testimony. PFR File, Tab 3 at 22-24. This primarily concerns testimony about whether certain 17 management officials treated subordinates differently based on characteristics such as race. Id. The appellant has not identified any other evidence in support of her disagreement with the administrative judge. See 5 C.F.R. § 1201.115(a)(2) (requiring that a petitioner explain why a challenged factual determination is incorrect and identify specific evidence demonstrating the error). ¶34 Accordingly, after reviewing the record, we find that the appellant has presented no basis for us to reach a conclusion different than the administrative judge as to her Title VII discrimination and reprisal claims.4 We therefore agree with the administrative judge that the agency failed to meet its burden of proving the validity of the appellant’s performance standards and the appellant failed to prove any of her affirmative defenses. ORDER ¶35 We ORDER the agency to cancel the removal and to retroactively restore the appellant effective October 19, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶36 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this 4 As previously mentioned, the appellant did not reassert her disability discrimination claim on review. However, we make the following observations about the claim and recent case precedent. The administrative judge indicated that the appellant had the initial burden of proving by preponderant evidence that her disability was a motivating factor in the removal action and, if she met that burden, the burden would shift to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the improper motive. ID at 22-23 (citing, e.g., Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 23 (2013)). However, the Board in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 42, clarified that the standards and methods of proof applicable to Title VII claims are also applicable to status-based disability discrimination claims. Nevertheless, the administrative judge provided well-reasoned findings as to why the appellant failed to prove that her disability was a motivating factor in the removal action, and the appellant has not reasserted the matter on review. Therefore, the administrative judge’s mistaken application of Southerland is of no consequence, and we need not reach the question of “but-for” causation. 18 decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶37 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶38 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶39 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. ¶40 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). 19 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 (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 requirements, 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. NOTICE OF APPEAL RIGHTS 5 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. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 20 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 21 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 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 22 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 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 23 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Gina K. Grippando Clerk of the Board Washington, D.C. DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g., TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf
10-29-2024	2024 MSPB 13	LaDonna Collier	https://www.mspb.gov/decisions/precedential/Collier_LaDonnaNY-1221-23-0093-W-1_Opinion_And_Order.pdf	Small Business Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 13 Docket No. NY-1221-23-0093-W-1 LaDonna Collier, Appellant, v. Small Business Administration, Agency. October 29, 2024 LaDonna Collier , Staten Island, New York, pro se. Claudine Landry , Andrew D. Howell , Esquire, Bryan A. Upshur , Esquire, and Trevonne V. Walford , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. OPINION AND ORDER ¶1 The appellant petitions for review of the initial decision that dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the following reasons, we DENY the petition and AFFIRM the initial decision, except as expressly MODIFIED to supplement the administrative judge’s analysis as to why the appellant did not nonfrivolously allege that her disclosures evidenced an abuse of authority. In so doing, we overrule one aspect of the Board’s decision in Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005). 2 BACKGROUND ¶2 The appellant asserted that, in reprisal for disclosures alleging, among other things, that various employees failed to follow internal procedures to accurately detect and report instances of fraudulent activity, the agency subjected her to several personnel actions, including terminating her employment and creating a hostile work environment. Initial Appeal File (IAF), Tabs 1, 5, 10, 29. The administrative judge dismissed the appeal for lack of jurisdiction on finding that, although the appellant exhausted her remedies with the Office of Special Counsel (OSC), she did not nonfrivolously allege that she reasonably believed that any of her disclosures were protected under 5 U.S.C. § 2302(b)(8) as a violation of law, rule, or regulation, an abuse of authority, or gross mismanagement. IAF, Tab 35, Initial Decision (ID) at 1-2, 6-7, 9-39, 42. The administrative judge also found that the appellant did not nonfrivolously allege that any activity she engaged in was protected. ID at 29-30, 33, 37, 39. ¶3 The appellant has petitioned for review, the agency has filed a response, and the appellant has filed a reply. Petition for Review File, Tabs 1, 4, 5. ANALYSIS ¶4 The appellant has not established any basis for granting her petition for review. See 5 C.F.R. § 1201.115 (setting forth the criteria for granting a petition for review). Therefore, we deny the petition for review and affirm the initial decision.1 Nevertheless, we modify the initial decision to clarify the Board’s analysis in determining whether an appellant has nonfrivolously alleged an abuse of authority. ¶5 The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and made nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) 1 Because we agree with the administrative judge’s conclusion that the appellant did not nonfrivolously allege that she disclosed gross mismanagement, an abuse of authority, or violations of law, rule, or regulation, it is unnecessary to address her claims concerning alleged personnel actions and contributing factor. 3 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 as defined under 5 U.S.C. § 2302(a). Williams v. Department of Defense, 2023 MSPB 23, ¶ 8. The disclosures described under 5 U.S.C. § 2302(b)(8)(A) include, among other things, an “abuse of authority.” Section 2302 does not define an abuse of authority. However, the Board has long held that an “abuse of authority” occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to the Federal official, employee, or some preferred other persons. See Wheeler v. Department of Veterans Affairs, 88 M.S.P.R. 236, ¶ 13 (2001). That definition is based on OSC’s definition of the term in prior regulations, as well as a presumption that Congress was aware of OSC’s definition when it enacted the Whistleblower Protection Act but did not express an intention to give the term a different meaning. See D’Elia v. Department of the Treasury, 60 M.S.P.R. 226, 232 (1993), overruled on other grounds by Thomas v. Department of the Treasury, 77 M.S.P.R. 224 (1998), overruled on other grounds by Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000). ¶6 In the initial decision, the administrative judge included a statement from the Board’s decision in Mc Corcle, 98 M.S.P.R. 363, ¶ 24, that an appellant’s own personal complaints about how she was treated by the agency do not qualify as nonfrivolous disclosures of an abuse of authority. ID at 9. The Board stated that, “[t]aken as whole, the appellant’s rambling allegations of abuses of authority are fundamentally his own personal complaints and grievances about how he was treated by the agency . . . and therefore do [not] constitute . . . a nonfrivolous allegation of a protected disclosure.”2 Mc Corcle, 98 M.S.P.R. 363, ¶ 24. 2 Mc Corcle also held that “mere debatable disagreements with the agency’s policy decisions” do not constitute nonfrivolous allegations of a protected disclosure. 98 M.S.P.R. 363, ¶ 24. That holding must now be read in conjunction with the applicable statute as amended by the Whistleblower Protection Enhancement Act 4 ¶7 To the extent that Mc Corcle and any other Board decisions have held that a disclosure of an alleged abuse of authority is not protected simply because it involves personal complaints or grievances about how the agency treated an appellant, without assessing whether it meets the definition of “abuse of authority” set forth above, they are overruled. The interpretation of a statute begins with the language of the statute itself. Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16. There are no exceptions in the applicable statute for disclosures of abuses of authority that are personal complaints or grievances about treatment by an agency, nor does the Board’s definition include such an exception. This is consistent with the principle that the definition of “abuse of authority” does not contain a de minimis standard or threshold, unlike disclosures involving the other types of wrongdoing set forth at 5 U.S.C. § 2302(b)(8)(A)(ii). Wheeler, 88 M.S.P.R. 236, ¶ 13. The key question in determining whether a nonfrivolous allegation of an abuse of authority has been made is whether there is an allegation of an arbitrary or capricious exercise of power by a Federal official or employee that adversely affected the rights of “any person,” including an appellant, or that resulted in personal gain or advantage to the Federal official, employee, or some other preferred person. D’Elia, 60 M.S.P.R. at 232. ¶8 Moreover, the statement at issue in Mc Corcle was supported by a citation to Willis v. Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998). Mc Corcle, 98 M.S.P.R. 363, ¶ 24. The Senate report on the proposed legislation that later was enacted as the Whistleblower Protection Enhancement Act of 2012 expressed concerns over decisions, including Willis, that narrowed the scope of the definition of a protected disclosure. S. Rep. No. 112-155, at 4-6 (2012). The of 2012. See 5 U.S.C. § 2302(a)(2)(D) (stating that “disclosure” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015). 5 report concluded that the strong national interest in protecting good-faith whistleblowing required broad protection of whistleblower disclosures, notwithstanding any concern that management of the Federal workforce could be “unduly burdened if employees [could] successfully claim whistleblower status in ordinary employment disputes.” Id. at 6. The committee concluded that the focus of the whistleblower analysis, therefore, should be on whether the employee reasonably believed that she disclosed a category of wrongdoing under 5 U.S.C. § 2302(b)(8), rather than whether her disclosure of information met the statutory definition of “disclosure.” Id. at 6-7. ¶9 Although the initial decision in this case cited Mc Corcle for the principle that has now been overruled, the administrative judge nevertheless correctly addressed the issue of whether the appellant made a nonfrivolous allegation of an abuse of authority by applying the definition of abuse of authority to the allegations in this case. The administrative judge found that the appellant did not nonfrivolously allege that the actions in question were arbitrary or capricious, nor did the appellant nonfrivolously allege that the actions affected the rights of any person or resulted in personal gain to anyone. ID at 11-15, 21-39. As explained above, the appellant has shown no error in these findings. ¶10 Accordingly, we affirm the initial decision’s dismissal of this appeal for lack of jurisdiction. ORDER ¶11 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). 6 NOTICE OF APPEAL RIGHTS 3 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). 3 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. 7 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 8 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 9 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.4 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 4 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. 10 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/Collier_LaDonnaNY-1221-23-0093-W-1_Opinion_And_Order.pdf
10-25-2024	2024 MSPB 12	Jerry M Sprouse	https://www.mspb.gov/decisions/precedential/Sprouse_Jerry_M_PH-0714-20-0258-I-1_Opinions_And_Order.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 12 Docket No. PH-0714-20-0258-I-1 Jerry Michael Sprouse, Appellant, v. Department of Veterans Affairs, Agency. October 25, 2024 Elchonon Reizes , Houston, Texas, for the appellant. Christine Beam , Esquire, and Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal, taken under the authority of 38 U.S.C. § 714. For the reasons set forth below, we GRANT the agency’s petition, VACATE the initial decision, and REMAND this appeal to the Northeastern Regional Office for further adjudication in accordance with this Opinion and Order. BACKGROUND ¶2 Prior to his removal, the appellant was employed by the agency’s Veterans Health Administration as a GS-11 Supervisory Inventory Management Specialist 2 at the Butler Health Care Center (HCC) in Butler, Pennsylvania. Initial Appeal File (IAF), Tab 5 at 8, 200. In this position, he was authorized to certify the agency’s inventories of certain controlled substances and narcotics. Id. at 39. In August 2019, the appellant’s wife, who was also an agency employee and was separated from the appellant, contacted agency police and informed them of her suspicion that the appellant was engaging in illicit drug transactions and consuming alcohol on agency property. IAF, Tab 5 at 21, Tab 12 at 11-12, Tab 13 at 22-25. She explained that she had read text messages between the appellant and another agency employee, which she believed concerned drug transactions. IAF, Tab 13 at 22-25. Based on her statements, agency police commenced an investigation into possible criminal activity on agency property. IAF, Tab 13 at 19-20, 30-31, Tab 18 at 4. ¶3 On November 17, 2019, agency police installed a hidden video camera in the appellant’s office. IAF, Tab 13 at 28, Tab 18 at 5. Although the appellant was the only individual assigned to the office and regularly kept his door shut, there was a community printer in the office, and other employees would occasionally enter to retrieve printouts or make copies. IAF, Tab 18 at 5. Before installing the hidden camera, agency police obtained the approval of the Director of the facility. IAF, Tab 12 at 17, Tab 18 at 5. However, agency police did not obtain a search warrant or notify the appellant that the camera had been installed. IAF, Tab 18 at 5. ¶4 On December 11, 2019, the appellant was captured on video crushing and snorting pills and consuming alcohol in his office. Id. On December 13, 2019, the appellant’s manager and another agency official confronted him with this information. IAF, Tab 5 at 21, Tab 18 at 5. At that point, the appellant admitted to consuming alcohol and pills in the office, and to purchasing pills from another employee (employee A) on agency property. IAF, Tab 5 at 19, 21, Tab 18 at 5-6. ¶5 After a brief break, during which the appellant’s manager alerted an agency police officer that the appellant was in possession of alcohol, the officer joined 3 the meeting. IAF, Tab 5 at 22, 28. The appellant agreed to the officer’s request for permission to open the appellant’s personal backpack, which contained a bottle of alcohol, and to submit to a breathalyzer test, which showed a result of 0.062. Id. at 19, 23, 28. The police officer gave the appellant a verbal warning that day for bringing “beverages or narcotics” to agency property. Id. at 27. ¶6 The appellant agreed to the police officer’s request to help with the investigation of employee A. IAF, Tab 5 at 24, Tab 13 at 38. The agency opened a criminal investigation into employee A. IAF, Tab 22 at 12. On December 17, 2019, and again on January 14, 2020, the appellant provided voluntary witness statements concerning his transactions with employee A to agency police. IAF, Tab 5 at 29-32. In the latter statement, he acknowledged that video recordings taken at other locations in the facility on October 24 and December 12, 2019, showed him meeting with employee A to purchase oxycodone. Id. at 19-20, 29-30. ¶7 The agency removed the appellant effective March 28, 2020, based on the following three charges: (1) conduct unbecoming a Federal employee, with four underlying specifications; (2) possession of alcohol; and (3) use of alcohol. Id. at 8-13, 15-18. In the first three specifications under charge 1, the agency alleged that the appellant purchased employee A’s prescribed oxycodone pills on HCC premises twice on October 24, 2019, and once on December 12, 2019. Id. at 15-16. The agency explained in the proposed removal that the evidence underlying these specifications was the appellant’s January 14, 2020 admission, obtained when shown recordings of him and employee A meeting on HCC premises on the dates in question, that employee A was selling him drugs. Id. at 15-16, 29-31. The agency alleged under specification 4 of charge 1 that, during the December 13, 2019 discussion with his manager, the appellant acknowledged that he had crushed and snorted either oxycontin or oxycodone pills while in his office on agency property. Id. at 15-16. Under charges 2 and 3, the agency stated that, on December 13, 2019, the appellant admitted to 4 possession of alcohol and produced a bottle of alcohol from his backpack. Id. at 16. Further, he consented to a breathalyzer test, which showed a blood alcohol level of 0.062. Id. ¶8 This appeal followed. IAF, Tab 1. The appellant did not dispute the substance of the charges, but he argued that the penalty was unreasonable and that the agency had violated his Fourth Amendment rights and discriminated against him on the basis of sex. IAF, Tab 5 at 14, Tab 13 at 8-9, Tab 14 at 1, Tab 18 at 5-6. The appellant elected to waive his right to a hearing. IAF, Tab 14 at 1. ¶9 The administrative judge reversed the removal action, finding that agency police violated the appellant’s Fourth Amendment rights by placing a hidden camera in his office for the purpose of conducting a criminal investigation without obtaining a warrant. IAF, Tab 29, Initial Decision (ID) at 1, 8-10. In determining that the appellant’s Fourth Amendment rights were implicated by the agency police’s actions, the administrative judge found that the appellant had a reasonable expectation of privacy in his office from police searches, and the HCC Director’s consent to the placement of the camera did not excuse the police from the requirement of obtaining a warrant. ID at 8-10. The administrative judge further concluded that the exclusionary rule applied to Board proceedings and that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) had overruled the Board’s prior decision to the contrary, Delk v. Department of the Interior, 57 M.S.P.R. 528 (1993). ID at 6 & n.1. He found that the appellant failed to establish his discrimination claim. ID at 10-11. Because the administrative judge reversed the action on Fourth Amendment grounds, he did not address the appropriateness of the penalty. ID at 10. ¶10 The agency has filed a petition for review in which it contests the administrative judge’s findings on the Fourth Amendment claim. Petition for Review (PFR) File, Tab 1. The appellant has filed a response, to which the agency has replied. PFR File, Tabs 3, 5. 5 ANALYSIS The Board’s decision in Delk that the exclusionary rule does not apply to Board proceedings remains good law. The Federal Circuit has not overruled the Board’s prohibition on applying the exclusionary rule. ¶11 As set forth above, the administrative judge determined in the initial decision that the exclusionary rule applied to Board proceedings and that the Board’s prior decision to the contrary, Delk, 57 M.S.P.R. at 530-32, had since been overruled by the Federal Circuit in Wiley v. Department of Justice, 328 F.3d 1346 (Fed. Cir. 2003). ID at 6 & n.1. On review, the agency argues that the administrative judge’s reliance on Wiley was misplaced because the court did not address the exclusionary rule in Wiley. PFR File, Tab 1 at 12. We agree. ¶12 In criminal proceedings, the exclusionary rule prohibits using evidence obtained in violation of the Fourth Amendment against the subject of the violating search and seizure. United States v. Calandra, 414 U.S. 338, 347 (1974). It “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right.” Id. at 348. In Wiley, 328 F.3d at 1347-49, 1353-57, the Federal Circuit concluded that the Board improperly sustained the removal of a Federal employee that was based on his refusal to submit to a search of his car because the search, if conducted, would have violated the Fourth Amendment. However, the court reached this conclusion without addressing the application of the exclusionary rule to Board proceedings. Id. at 1357. Therefore, the administrative judge erred in finding that the Federal Circuit overruled Delk.1 1 In an unpublished decision issued 17 years later, the Federal Circuit observed that the Board has held that the exclusionary rule does not apply in Board proceedings. Martin v. Department of Homeland Security, 810 F. App’x 867, 870-71 & n.1 (Fed. Cir. 2020) (per curiam). However, the court did not address the propriety of this holding. Id. 6 We affirm the longstanding rule that the exclusionary rule does not apply in Board proceedings. ¶13 In Delk, 57 M.S.P.R. 528, the Board grappled with the very issue presented here—whether to expand the scope of the exclusionary rule to include Board proceedings. Specifically, at issue in Delk was the admissibility of evidence obtained by the U.S. Park Police (USPP) that the National Park Service (NPS) relied on in suspending Mr. Delk, namely, the discovery of NPS property during a search of Mr. Delk’s home after obtaining a search warrant. Id. at 529-30. Although the Board administrative judge found that the USPP violated Mr. Delk’s Fourth Amendment rights because it exceeded the scope of the search warrant, he nonetheless concluded, and the Board affirmed, that the evidence was admissible because the exclusionary rule does not apply to Board proceedings. Id. at 529-32 & n.1. In reaching this conclusion, the Board observed that, as stated by the Supreme Court, “[i]n the complex and turbulent history of the [exclusionary] rule, the Court never has applied it to exclude evidence from a civil proceeding, [F]ederal or state.” Id. at 531 (quoting United States v. Janis, 428 U.S. 433, 447 (1976)). This statement remains as true today as it was when the Delk decision was issued 30 years ago. In fact, the Supreme Court has, to date, consistently declined to apply the exclusionary rule outside of criminal trials—even when the proceedings are tangential to a criminal trial. Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 364-69 & n.4 (1998) (declining to apply the rule to parole revocation hearings); Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1041-50 (1984) (declining to apply the rule to civil alien deportation proceedings); Janis, 428 U.S. at 447-60 (declining to apply the rule to Federal civil tax proceedings); see Calandra, 414 U.S. at 349-55 (declining to apply the rule to grand jury proceedings). ¶14 Furthermore, the Board reasoned that application of the exclusionary rule would not have a deterrent effect on the NPS officials who initiated the adverse action, because they played no role in the unlawful search, or on future unlawful 7 police conduct, since the “zone of primary interest” for agency police was criminal investigation and prosecution, not investigating employee misconduct. Delk, 57 M.S.P.R. at 531-32; see Scott, 524 U.S. at 368 (concluding that the application of the exclusionary rule to parole revocation proceedings would have a minimal deterrent effect on police officers, whose zone of primary interest was “obtaining convictions of those who commit crimes”) (citation omitted). The Board also concluded that any marginal deterrent value on police behavior by suppressing illegally seized evidence in administrative proceedings was outweighed by the societal cost of retaining Government employees who engage in improper conduct. Delk, 57 M.S.P.R. at 532. ¶15 On review, the appellant argues that the deterrent effects of the exclusionary rule are served here. PFR File, Tab 3 at 8-11. Citing to what he identifies as an agency standard operating procedure (SOP), the appellant argues that, unlike the USPP who conducted the search at issue in Delk, the “zone of primary interest” of agency police located at his former duty station included employee activities. PFR File, Tab 3 at 8. However, the appellant has not suggested that the agency police’s primary interest extends beyond criminal matters. Id. Further, there is no evidence that agency police are primarily tasked with investigating employee misconduct for the purposes of taking an administrative action. In fact, the SOP does not refer to employee misconduct. IAF, Tab 12 at 19-22. Instead, the SOP states that the focus of agency police investigations is alleged crimes occurring on agency property, and investigations are authorized “to the extent necessary to determine whether a crime has been committed and to collect and preserve basic information and evidence relative to the incident.” Id. at 19. Therefore, like the USPP police in Delk, agency police focus on crimes occurring on agency property, rather than employee misconduct. Delk, 57 M.S.P.R. at 531. ¶16 In sum, we reaffirm our longstanding holding that the exclusionary rule does not apply in Board proceedings. Therefore, regardless of whether the agency’s installation of the camera in the appellant’s office violated the Fourth 8 Amendment, the evidence on which the appellant’s removal was premised will be considered in determining the propriety of that action.2 We must remand this appeal for further development of the evidence. ¶17 As indicated above, the appellant elected not to proceed to a hearing. IAF, Tab 14 at 1. The parties stipulated to many of the facts underlying the agency’s charges. IAF, Tab 5 at 15-16, Tab 18. Nonetheless, we decline to resolve whether the agency proved those charges. At the direction of the administrative judge, the parties primarily focused on the Fourth Amendment issue in their closing submissions. IAF, Tab 14 at 1, Tabs 19-22. Therefore, they should be provided with an opportunity to more thoroughly address the charges and penalty on remand. ¶18 In addition, since the administrative judge issued the initial decision, the Federal Circuit held that it is error for a deciding official to sustain an action taken under 38 U.S.C. § 714 by substantial, instead of preponderant, evidence. Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1298-1301 (Fed. Cir. 2021). Here, the decision letter reflects the deciding official’s conclusion that the charges “were supported by substantial evidence.” IAF, Tab 5 at 8. The administrative judge and the parties did not have the benefit of the Rodriguez decision below. Therefore, we must remand this issue to the administrative judge for a determination of whether the deciding official’s use of the substantial evidence standard was harmful. See Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶¶ 21-23. On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument addressing whether the agency’s use of the substantial evidence standard in the removal decision constituted harmful error. Id., ¶ 24. The administrative judge should then address this affirmative defense in his remand initial decision. Id. 2 Accordingly, because the exclusionary rule does not apply to Board proceedings, we need not resolve in this case whether the appellant had a reasonable expectation of privacy in his office or other issues related to the Fourth Amendment. 9 ¶19 On review, the parties have not challenged the administrative judge’s finding that the appellant did not prove his claim of disparate treatment based on sex. ID at 6-8, 10-11. Although the appellant has not identified any reversible error in the administrative judge’s analysis, we find that further adjudication of this claim is warranted. Specifically, the administrative judge adjudicated the appellant’s defense under the standards set forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), but during the pendency of the petition for review, the Board overruled, in part, and clarified, in part, the Savage decision. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. The Board further clarified the burdens of proof in Title VII disparate treatment discrimination claims in Wilson v. Small Business Administration, 2024 MSPB 3, ¶ 11. On remand, the administrative judge shall reassess the appellant’s affirmative defense of sex discrimination in accordance with Pridgen, 2022 MSPB 31, ¶¶ 21-24, and Wilson, 2024 MSPB 3, ¶¶ 11-19. The administrative judge should advise the parties of their burden and afford them an additional opportunity to submit relevant evidence and argument on this issue, but he may incorporate his previous findings of fact to the extent appropriate. Semenov, 2023 MSPB 16, ¶ 32. ¶20 Finally, because he reversed the agency’s action based on his determination that it violated the appellant’s Fourth Amendment rights, the administrative judge did not reach the issue of whether removal was an appropriate penalty. ID at 10. If the administrative judge reaches this issue on remand, he should determine whether the agency proved by substantial evidence that it properly applied the relevant Douglas factors and whether the agency’s penalty was reasonable and, if not, remand the appellant’s removal to the agency for a new decision. Semenov, 2023 MSPB 16, ¶ 50; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 10 305-06 (1981) (providing a nonexhaustive list of factors relevant to penalty determinations).3 ORDER ¶21 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Opinion and Order. Gina K. Grippando Clerk of the Board Washington, D.C. 3 If remanded to the agency, the agency should be mindful of its obligations to provide the appellant with the necessary due process. See Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1324 (Fed. Cir. 2021) (observing that the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 maintains due process protections for employees); Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375-77 (Fed. Cir. 1999).	https://www.mspb.gov/decisions/precedential/Sprouse_Jerry_M_PH-0714-20-0258-I-1_Opinions_And_Order.pdf
09-13-2024	2024 MSPB 11	Anthony Salazar	https://www.mspb.gov/decisions/precedential/Salazar_AnthonySF-3330-18-0470-I-1_Opinion_and_Order.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 11 Docket No. SF-3330-18-0470-I-1 Anthony G. Salazar, Appellant, v. Department of Veterans Affairs, Agency. September 13, 2024 Anthony G. Salazar , Pico Rivera, California, pro se. Dévora Mas , Esquire, Houston, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member 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 denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA) for failure to timely file a complaint with the Department of Labor (DOL). For the reasons set forth below, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal for further adjudication in accordance with this Opinion and Order. 2 BACKGROUND ¶2 The appellant, a 10-point preference-eligible veteran, applied for two positions advertised by the agency. Initial Appeal File (IAF), Tab 4 at 50, 52, 63, 75, 84. The first position was a GS-12 Support Services Supervisor position and was advertised under vacancy announcement number 344-17-24-TS-1955448. Id. at 56-61. The second position was a GS-7 Veterans Service Representative (VSR) position advertised under vacancy announcement number VB 1990725-FEB. Id. at 88-93. On August 9, 2017, the agency informed the appellant that he had been rated ineligible for the Support Services Supervisor position for failure to meet the specialized experience requirement. Id. at 63, 70-72. On October 4, 2017, the agency informed him that he had not been selected for the VSR position. Id. at 95. ¶3 On October 1 or 2, 2017, the appellant filed a complaint with the Office of Special Counsel (OSC) concerning his nonselection for the Support Services Supervisor position. Id. at 21-36. He identified himself as a “ten-point veteran preference applicant” and alleged that he had been improperly denied consideration for the position in reprisal for whistleblowing or because his former supervisor provided “negative feedback” about the appellant to the hiring officials.1 Id. at 31. Beginning on January 24, 2018, the appellant reached out to OSC via email to request that it act on his complaint. Id. at 43. On 1 The appellant referenced this “negative feedback” in connection with his February 4, 2015 removal by the agency for unacceptable performance. Salazar v. Department of Veterans Affairs, 2022 MSPB 42, ¶ 5; IAF, Tab 4 at 31; Salazar v. Department of Veterans Affairs, MSPB Docket No. SF-1221-15-0660-W-1, Initial Appeal File, Tab 5 at 16. The appellant filed an individual right of action (IRA) appeal with the Board challenging a number of agency actions, including his removal. Salazar, 2022 MSPB 42, ¶¶ 5-6. Following a Board-ordered remand of that appeal, an administrative judge issued a remand initial decision denying corrective action. Salazar, 2022 MSPB 42, ¶¶ 1, 37; Salazar v. Department of Veterans Affairs, MSPB Docket No. SF-1221-15- 0660-B-1, Remand Initial Decision at 1, 48 (Mar. 15, 2024). The appellant has filed a petition for review, which is currently pending before the Board. Salazar, MSPB Docket No. SF-1221-15-0660-B-1, Remand Petition for Review File, Tab 1. The disposition of the appellant’s IRA appeal does not impact the timeliness issue currently before us. 3 February 13, 2018, the assigned investigator, who had been on military duty until that time, responded to the appellant that he had returned to the office and would turn to the appellant’s complaint shortly. Id. at 40-41. Eight days later, on February 21, 2018, the investigator advised the appellant of OSC’s preliminary findings. Id. at 40, 44. The appellant responded on February 23 and February 26, 2018.2 Id. at 44. ¶4 By letter dated March 5, 2018, OSC informed the appellant that it was closing its investigation into his complaint and provided him with notice of his Board appeal rights. Id. at 44-45. The investigator acknowledged the appellant’s claims that his former supervisor “willfully obstruct[ed] [him] with respect to [his] right to compete for employment” in violation of 5 U.S.C. § 2302(b)(4) and that the agency did not select the appellant in reprisal for filing complaints with the Inspector General and OSC in violation of 5 U.S.C. § 2302(b)(9). Id. The investigator also acknowledged that “[i]n [the appellant’s] response, [he] alleged that [his] non-selections may have violated Veterans preference rules,” which the investigator identified as a prohibited personnel practice arising under 5 U.S.C. § 2302(b)(11). Id. The investigator advised the appellant that “OSC defers” allegations of VEOA violations to DOL and that he could file a complaint on that claim with DOL.3 Id. at 45. 2 Neither party has submitted into the record OSC’s February 21, 2018 determination letter or the appellant’s February 2018 responses. 3 VEOA tasks DOL with investigating claims by a preference eligible that an agency may have violated the claimant’s rights under any law or regulation relating to veterans’ preference. 5 U.S.C. § 3330a(b). However, the statute also amended 5 U.S.C. § 2302 and made it a prohibited personnel practice to “knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement” or to “knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement.” Pub. L. No. 105-339, 112 Stat. 3187 (codified at 5 U.S.C. § 2302(b)(11)). OSC is responsible for the investigation of alleged prohibited personnel practices. 5 U.S.C. § 1214. OSC and DOL have entered into a Memorandum of Understanding, submitted into the record by the appellant, that prescribes the roles and responsibilities of the two agencies in carrying out their obligations under the statute. IAF, Tab 4 at 14-19. 4 ¶5 The same day that OSC issued this letter, the appellant filed a complaint with DOL alleging that the agency violated his veterans’ preference rights in connection with his nonselections. Id. at 47. Approximately 1 month later, DOL informed the appellant that it had completed its investigation into his complaint and found no violation of his rights under VEOA. Id. at 47-48. The letter informed the appellant of his right to appeal DOL’s decision to the Board. Id. at 48. ¶6 The appellant timely filed the instant VEOA appeal challenging his nonselection for the two positions and requested a hearing on his appeal. IAF, Tab 1 at 1-5. The administrative judge issued an order informing the parties of the appellant’s burden of showing, as relevant here, that he timely filed his DOL complaint within 60 days of the alleged VEOA violation or, if not, that circumstances warranted equitable tolling of the deadline. IAF, Tab 3 at 5-6. The order instructed the parties to file evidence and argument on those issues and advised them that the record on timeliness would close in 3 weeks. Id. at 6-7. ¶7 After the parties responded and the record on timeliness closed, the administrative judge issued an initial decision denying corrective action based on the written record. IAF, Tabs 4, 6, Tab 13, Initial Decision (ID) at 2, 21. The administrative judge concluded that the appellant established jurisdiction over his VEOA appeal. ID at 10-11. The administrative judge nevertheless concluded that the appellant failed to show that he timely filed his complaint with DOL within 60 days of the challenged actions as required under 5 U.S.C. § 3330a(a)(2)(A) or that he was entitled to equitable tolling of the deadline. ID at 11-21. Because the administrative judge concluded that there was no genuine dispute of material fact regarding these dispositive issues, he denied corrective action without holding the appellant’s requested hearing. ID at 1-2, 21. ¶8 The appellant has timely filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1, Tab 2 at 1 n.1. The agency has filed a 5 response to the petition for review, and the appellant has filed a reply. PFR File, Tabs 3-4. ANALYSIS The 60-day time limit for filing a complaint with DOL is not jurisdictional and is subject to equitable tolling. ¶9 The Board’s jurisdiction over VEOA claims arises under 5 U.S.C. § 3330a(d)(1). Shaver v. Department of the Air Force, 106 M.S.P.R. 601, ¶ 9 (2007). That provision states that “[i]f [DOL] is unable to resolve a complaint” within a specified time period, “the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board.” 5 U.S.C. § 3330a(d)(1). The “complaint” referred to in this provision is a VEOA complaint that the veteran “must . . . file[] [with DOL] within 60 days after the date of the alleged violation.” 5 U.S.C. § 3330a(a)(2)(A). ¶10 The administrative judge found that the 60-day deadline to file a complaint in 5 U.S.C. § 3330a(a)(2)(A) is not jurisdictional. ID at 9. Without specifically disputing the administrative judge’s finding, the agency states on review that the “exhaustion requirement is a jurisdictional element of a VEOA appeal.”4 PFR File, Tab 3 at 5. We agree with the administrative judge. ¶11 Statutes setting forth time limitations for filing claims generally are not jurisdictional unless Congress “clearly states” that they are.5 Harrow v. Department of Defense, 601 U.S. 480, 483-84 (2024). Here, the statutory language of 5 U.S.C. § 3330a does not “plainly show that Congress imbued [the rule] with jurisdictional consequences.” Id. at 484 (quoting United States v. 4 The parties do not otherwise dispute the administrative judge’s determination that the Board has jurisdiction over this appeal, and we discern no basis to disturb that finding. ID at 1, 7-11. 5 The U.S. Supreme Court has recognized that the deadline for filing an appeal from a Federal district court decision in a civil case is an exception to this general rule. Harrow v. Department of Defense, 601 U.S. 480, 488-89 (2024). That exception does not apply here. 6 Wong, 575 U.S. 402, 409-12, 420 (2015)). Consistent with this line of cases, both the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board have concluded that the 60-day deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) is not jurisdictional. Kirkendall v. Department of the Army, 479 F.3d 830, 835-36 & n.2 (Fed. Cir. 2007) (en banc); Garcia v. Department of Agriculture, 110 M.S.P.R. 371, ¶¶ 8-13 (2009). We reaffirm that holding here. ¶12 Further, “nonjurisdictional limitations periods are presumptively subject to equitable tolling.” Boechler, P.C. v. Commissioner of Internal Revenue, 596 U.S. 199, 209 (2022) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92, 94-96 (1990) (holding that once Congress waives the Government’s sovereign immunity, the Court will presume that equitable tolling is available, and applying the presumption to conclude that courts could equitably toll the requirement in 42 U.S.C. § 2000e-16(c) (1990) that “[w]ithin thirty days of receipt of notice of final action . . . [by] the Equal Employment Opportunity Commission . . . a[] [Federal] employee or applicant . . . may file a civil action”)). The Federal Circuit and the Board have recognized this and concluded that equitable tolling applies to 5 U.S.C. § 3330a(a)(2)(A). Kirkendall, 479 F.3d at 837-38, 841-42 (finding that the deadline under section 3330a(a)(2)(A) would bar suit if equitable tolling were not permitted and concluding that the deadline may be equitably tolled); Garcia, 110 M.S.P.R. 371, ¶ 12 (recognizing the holding in Kirkendall that the 60-day deadline in 5 U.S.C. § 3330a(a)(2)(A) may be equitably tolled); 5 C.F.R. § 1208.21(b) (providing that the 60-day deadline to file a VEOA complaint with DOL may be equitably tolled). The parties have not disputed the administrative judge’s determination that the 60-day deadline under 5 U.S.C. § 3330a(a)(1)(A) may be equitably tolled, and we agree with this conclusion for the foregoing reasons. ID at 9. 7 The Board reviews de novo DOL’s determinations as to whether a VEOA complaint was timely filed and whether to equitably toll the deadline. ¶13 DOL’s determination on the appellant’s VEOA complaint was silent as to whether his complaint was timely filed or warranted equitable tolling. IAF, Tab 4 at 47-48. The administrative judge concluded that, notwithstanding DOL’s silence and the implication that such silence amounted to a waiver of the untimeliness of the appellant’s complaint, the Board had the authority to consider whether DOL erred in tolling the deadline. ID at 14-17. On review, the appellant argues that the administrative judge should not have reached the timeliness issue because it was not addressed by OSC or DOL. PFR File, Tab 1 at 7. We disagree. As explained below, the Board must review DOL’s timeliness and equitable tolling decisions de novo. ¶14 The Federal Circuit is the Board’s reviewing court in VEOA appeals, and the Board is bound to follow its precedential decisions. See Kirkendall v. Department of the Army, 573 F.3d 1318, 1320-21 (Fed. Cir. 2009) (predicating review of a Board decision on a VEOA claim on 28 U.S.C. § 1295(a)(9), which conveys exclusive jurisdiction over final Board decisions to the Federal Circuit); Oram v. Department of the Navy, 2022 MSPB 30, ¶¶ 6, 17 (holding that the Federal Circuit’s precedential decision in a VEOA appeal was binding authority). In Kirkendall, 479 F.3d at 834, DOL rejected the petitioner’s VEOA complaint as untimely filed. The Board found that it was without authority to revisit DOL’s determination not to waive the 60-day deadline. Id. On review, the Federal Circuit disagreed, stating that “[b]ecause the question of whether section 3330a(a)(2)(A) is subject to equitable tolling was at issue, the [B]oard had the authority and the obligation to consider whether DOL’s action was in error.” Id. at 835; see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 388-90, 392-94, 398 (1982) (concluding that a Federal district court properly declined to dismiss a class action lawsuit alleging sex discrimination against a private employer because, although some of the class members did not timely file a charge of 8 discrimination with the EEOC, the timeliness requirement was “subject to waiver, estoppel, and equitable tolling”). ¶15 Section 3330a(d)(1) of Title 5 of the U.S. Code provides that if DOL fails to resolve a VEOA complaint within 60 days after the filing date, a complainant “may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe.” As this language makes clear, it is the VEOA violation, and not DOL’s determinations, that the Board reviews. Shaver, 106 M.S.P.R. 601, ¶ 8 n.4. The Board has previously interpreted this language as providing that a VEOA appeal before the Board is a de novo proceeding in which the Board is not required to defer to DOL’s findings regarding the merits of the individual’s complaint. Id. And a decision that an appellant did not fulfill the procedural requirements for bringing an appeal to the Board is “on the merits.” Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4; see Semtek International Inc. v. Lockheed Martin Corporation, 531 U.S. 497, 501-03, 506 (2001) (explaining that “over the years the meaning of the term ‘judgment on the merits’ ‘has gradually undergone a change’” and “it has come to be applied to some judgments . . . that do not pass upon the substantive merits of a claim” and that “‘adjudication on the merits’ . . . is simply that, unlike a dismissal ‘without prejudice,’ the dismissal in the present case barred refiling of the same claim” in the same court) (internal citations omitted) (emphasis in original).6 6 Although the Board denies corrective action on the merits of a VEOA appeal when it determines that an appellant did not timely file his DOL complaint and is not entitled to equitable tolling, Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4, “disposition on the merits” has a different meaning for purposes of res judicata, see Semtek, 531 U.S. at 501-06 (finding that a court’s decision to dismiss a case as barred by the applicable statute of limitations did not have “claim-preclusive effect in other courts”); Muyco v. Office of Personnel Management, 114 M.S.P.R. 694, ¶¶ 9-10 (2010) (concluding that the Board’s determination that the Office of Personnel Management properly dismissed a request for reconsideration as untimely is not a decision on the merits for purposes of applying the doctrine of res judicata). 9 ¶16 Consistent with its statutorily granted authority under section 3330a(d)(1) to prescribe procedures for VEOA appeals, the Board has issued regulations regarding such appeals. 5 C.F.R. §§ 1201.57(a)(2), 1208.21-1208.26. These regulations state that the Board reviews the merits of a VEOA appeal for preponderant evidence. See 5 C.F.R. § 1201.57(c)(4). This burden of proof is synonymous with de novo review. See Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Cir. 2012) (interpreting the language in 5 U.S.C. § 7701(c)(1) that the Board reviews a chapter 75 adverse action to determine “if the agency’s decision . . . is supported by a preponderance of the evidence” as requiring that the Board review the merits of the agency’s action de novo); Licausi v. Office of Personnel Management, 350 F.3d 1359, 1364 (Fed. Cir. 2003) (concluding that a Board regulation placing the burden on an appellant to prove by preponderant evidence entitlement to retirement benefits “makes clear that the appeal proceeding before the Board [challenging a reconsideration decision by the Office of Personnel Management to deny benefits] constitutes a de novo proceeding”). ¶17 The regulation at 5 C.F.R. § 1208.21(a) reiterates the statutory exhaustion requirement and cites the 60-day deadline for filing a DOL complaint. Even when the Board originally contemplated adopting this timeliness provision, its Federal Register notice did not suggest any deference to DOL’s timeliness findings. See Practices & Procedures for Appeals Under the Uniformed Services Employment and Reemployment Rights Act & the Veterans Employment Opportunities Act, 65 Fed. Reg. 5410-01, 5411 (Feb. 4, 2000) (“VEOA establishes statutory filing time limits for each stage of the redress procedure. . . . VEOA does not provide for waiver of any of its statutory filing time limits for good cause.”). ¶18 The Board later added 5 C.F.R. § 1208.21(b) to reflect the ruling in Kirkendall, 479 F.3d 830, that the 60-day deadline for filing a VEOA complaint is subject to equitable tolling. Practices & Procedures, 77 Fed. Reg. 33663-01, 10 33670, 33681 (June 7, 2012). Section 1208.21(b) states that the 60-day filing deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) “is subject to the doctrine of equitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing.” By stating that equitable tolling “permits the Board to extend the deadline,” this provision plainly contemplates that the Board will make its determination regarding tolling independent of DOL’s findings on the issue. ¶19 Before, and even after, the 2007 decision in Kirkendall and the Board’s 2012 Federal Register notice recognizing the import of Kirkendall, the Board issued decisions suggesting that it would defer to DOL regarding timeliness and waiver; in some instances, the Board found such deference appropriate even when DOL had only implicitly considered the issue. See, e.g., Gingery v. Department of the Treasury, 119 M.S.P.R. 43, ¶ 19 (2012) (suggesting that the Board can deny corrective action based on the untimeliness of a DOL complaint only if DOL has not recognized the timeliness issue, excused the appellant’s lateness, and investigated the substance of the complaint); Alegre v. Department of the Navy, 118 M.S.P.R. 424, ¶ 16 n.3 (2012) (not addressing the issues of timeliness or waiver on the assumption that, because DOL addressed an untimely VEOA complaint on the merits, DOL had elected to waive the timeliness requirement); Letchworth v. Social Security Administration, 101 M.S.P.R. 269, ¶ 4 n.2 (2006) (concluding that an administrative judge erred in dismissing a VEOA appeal based on an appellant’s untimely filed DOL complaint because, as relevant here, DOL waived any timeliness issue by issuing a decision on the merits); Waddell v. U.S. Postal Service, 94 M.S.P.R. 411, ¶ 11 (2003) (determining that the Board lacked the authority to review DOL’s determination that a VEOA complaint was timely filed or, if not, to waive the deadline). In conducting de novo review, the Board does not defer to DOL’s findings, regardless of whether they are implicit or explicit. Shaver, 106 M.S.P.R. 601, ¶ 8 n.4.; see Elias v. Department of Defense, 114 F.3d 1164, 1166-67 (Fed. Cir. 1997) (explaining that when the Board 11 conducts de novo proceedings, it does not defer to an agency’s decision not to extend a deadline). We overrule prior Board decisions that conditioned Board review of the timeliness and equitable tolling of a DOL complaint on whether DOL had addressed the issue. The administrative judge properly concluded that the appellant’s VEOA complaint was untimely filed. ¶20 On review, the appellant reasserts that his DOL complaint should be deemed timely filed in October 2017, when he filed his OSC complaint as to his nonselection for the Support Services Supervisor position.7 PFR File, Tab 1 at 7; IAF, Tab 4 at 5-6, 14, 17. We affirm the administrative judge’s finding that the appellant untimely filed his DOL complaint. ¶21 As the administrative judge correctly observed, it is undisputed that the appellant learned that he was not selected for a Support Services Supervisor position on August 9, 2017, and that he was not selected for the VSR position on October 4, 2017. ID at 13; IAF, Tab 4 at 63, 95; PFR File, Tab 1 at 6-7. Therefore, his March 5, 2018 complaint to DOL was untimely filed by over 4 months and over 3 months, respectively. ID at 13. Further, although the appellant argues that he timely filed his DOL complaint in the wrong forum, we agree with the administrative judge that this assertion implicates equitable tolling rather than the timeliness of the complaint. PFR File, Tab 1 at 7; see Kerr v. Merit Systems Protection Board, 908 F.3d 1307, 1312 (Fed. Cir. 2018) (recognizing that it may be appropriate to equitably toll a filing deadline when a 7 To the extent that the appellant argues on review that the administrative judge erred by raising the timeliness issue sua sponte, we disagree. PFR File, Tab 1 at 7. An administrative judge has broad authority to control the proceedings before him, including the authority to ensure that the record on significant issues is fully developed and to adjudicate the case. 5 C.F.R. § 1201.41(b)(5)(ii)-(iii), (9); see Lopes v. Department of the Navy, 119 M.S.P.R. 106 (2012) (recognizing that an administrative judge has broad discretion to control the proceedings before him); 5 C.F.R. § 1201.115(e) (stating that, although the Board generally only considers issues raised by the parties on review, it reserves the authority to consider any issue in an appeal before it). 12 party files “in the wrong forum”) (citing, among other cases, Irwin, 489 U.S. at 96 (providing examples of situations in which tolling might be appropriate) (citations omitted), and Burnett v. New York Central Railroad Company, 380 U.S. 424, 424-26, 434-35 (1965) (concluding that a Federal district court erred by not tolling the filing period for an untimely complaint when the plaintiff had previously mistakenly filed his complaint in state court before the deadline passed)); Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶¶ 8-9, 13-14 (2009) (finding that it was inappropriate to equitably toll an untimely filed VEOA complaint when the appellant did not show, as relevant here, that he timely raised his veterans’ preference claim in another forum). Accordingly, we affirm the administrative judge’s finding that the appellant did not timely file his DOL complaint. ¶22 On review, the appellant argues that the administrative judge should have granted him a hearing on the timeliness issue. PFR File, Tab 1 at 6, Tab 3 at 7-8. VEOA appellants do not have an unconditional right to a hearing before the Board. Oram, 2022 MSPB 30, ¶ 9; 5 C.F.R. § 1208.23(b). Instead, the Board has the authority to decide a VEOA appeal on the merits, without a hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law. Oram, 2022 MSPB 30, ¶ 9. ¶23 As addressed above, we agree with the administrative judge that determinations regarding the timeliness of a DOL complaint and whether to equitably toll the deadline are determinations on the merits and thus may be decided without a hearing if there is no genuine dispute of material fact. ID at 1-2, 11-12; see Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4. Because there is no factual dispute over the date the appellant filed his DOL complaint or the dates he received notice that he had not been selected for the two positions, we discern no error by the administrative judge in finding, based on the written record, that the appellant untimely filed his DOL complaint. 13 The administrative judge should have held the appellant’s requested hearing on the issue of equitable tolling as to the Support Services Supervisor position . ¶24 The administrative judge found that the appellant did not establish a dispute of material fact that would entitle him to a hearing on the issue of whether the delay in filing his DOL complaint should be equitably tolled. ID at 13-21. In doing so, he concluded that the appellant had not raised his VEOA claims with OSC until late February 2018. ID at 18-21. The appellant challenges this finding on review only as to the Support Services Supervisor vacancy.8 PFR File, Tab 1 at 7-9. As explained below, we disagree with the administrative judge’s finding that the appellant did not establish a genuine dispute of material fact as to the Support Services Supervisor position and remand for a hearing on the question of whether the delay in filing the complaint as to the nonselection for that position should be equitably tolled. ¶25 Filing a claim in the wrong court may be a basis to equitably toll a deadline when “the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period.” Kerr, 908 F.3d at 1313 (quoting Irwin, 498 U.S. at 96 & n.3). In the analogous circumstance of a plaintiff who filed a lawsuit in a court that had jurisdiction over his claim but was not the correct venue, the U.S. Supreme Court found that the statute of limitations was tolled during the period that the plaintiff’s action was pending before the wrong court. Burnett, 380 U.S. at 427-28, 434-35. ¶26 The appellant filed his OSC complaint within 60 days of learning of his nonselection for the Support Services Supervisor position. IAF, Tab 4 at 21, 63. 8 The only evidence in the record that the appellant raised the VSR vacancy to OSC is OSC’s March 5, 2018 letter advising him of its final decision to close its file and identifying the VSR vacancy for this first time. IAF, Tab 4 at 44-45. He could not have raised his nonselection for the VSR vacancy in October 2017, when he filed his OSC complaint, because he did not learn of it until 2 to 3 days later. Id. at 21, 95. Further, OSC did not begin processing his complaint until February 2018. IAF, Tab 1 at 11, Tab 4 at 7, 40-43. Thus, the record supports the administrative judge’s finding that, more likely than not, the appellant first raised the VSR vacancy to OSC in February 2018. 14 In a sworn statement below, the appellant asserted that he raised a VEOA claim in his OSC complaint. Id. at 4, 7. The appellant’s statement relied on his OSC complaint; therefore, we look to the complaint itself to determine if the appellant raised a violation of his veterans’ preference rights. Id. at 7, 21-36. In his complaint, the appellant identified himself “[a]s a ten-point veteran preference applicant” and asserted that he was “denied being considered for a position for which [he] believe[d] [he was] qualified.” Id. at 25-26, 31. Specifically as to his qualifications, he asserted that the agency failed to account for relevant job experience that he listed on the résumé that he submitted with his job application for the Support Services Supervisor position. Id. at 25-26, 65, 70-71. The Board has jurisdiction over an appellant’s claim that a hiring agency did not comply with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to “adequately consider[]” his “experience and work history” when reviewing his application. Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1361, 1365-67 (Fed. Cir. 2016). This scenario is precisely what the appellant alleged occurred in his OSC complaint. IAF, Tab 4 at 25-26, 31. ¶27 We recognize that, as the administrative judge observed, the appellant went on to allege that the agency did not credit his experience in reprisal for whistleblowing. ID at 17-19; IAF, Tab 4 at 26, 31. Further, the appellant did not draw a connection in his OSC complaint between his status as a preference eligible and the agency’s decision not to hire him. IAF, Tab 4 at 25-26, 31. However, we disagree with the implication that the appellant was required to specifically allege that the agency violated VEOA or his veterans’ preference rights in his OSC complaint or cite to 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d). ¶28 The purpose of 5 U.S.C. § 3330a is “to assist veterans in obtaining gainful employment with the federal government and to provide a mechanism for enforcing this right.” Kirkendall, 479 F.3d at 841. The Board has declined to find that an appellant failed to state a claim under VEOA when he did not identify 15 the statute or regulation that he believed an agency violated, as required under 5 C.F.R. § 1208.23(a)(3). Young v. Federal Mediation and Conciliation Service, 93 M.S.P.R. 99, ¶ 7 (2002), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Similarly, in the context of a VEOA claim, the Board has favorably analogized to the rule applicable to claims arising under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) that an appellant can establish Board jurisdiction without making explicit reference to USERRA or any of its provisions, so long as the appellant articulates facts sufficient to assert a claim. Id., ¶ 6 (citing Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1485 (Fed. Cir. 1998) (finding that an appellant established jurisdiction over a USERRA appeal based on her factual allegations before the Board even though she did not “mention USERRA or . . . make any allegation of discrimination” based on her uniformed service)). By alleging that he was a preference eligible and that the agency’s conduct in connection with his nonselection violated an identifiable veterans’ preference requirement, the appellant raised a VEOA claim in his OSC complaint as to the Support Services Supervisor job. Therefore, we remand the appeal to the administrative judge for further proceedings, including the appellant’s requested hearing, and a determination as to whether the circumstances here warrant equitably tolling the deadline. IAF, Tab 1 at 2. ¶29 As to the VSR position, the administrative judge determined that the appellant did not raise a genuine dispute of material fact in support of his argument that the unavailability of the OSC investigator handling the appellant’s complaint caused him to miss his DOL complaint filing deadline. ID at 17, 19-20; IAF, Tab 4 at 7, 40-43. The appellant disputes that finding on review. PFR File, Tab 1 at 8-9. For the reasons explained below, we agree with the administrative judge. ¶30 The appellant has the burden of establishing that equitable tolling is warranted under the circumstances. Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶ 12. Equitable tolling is a rare remedy that is to be applied in 16 unusual circumstances and generally requires a showing that the appellant has been pursuing his rights diligently and some extraordinary circumstances stood in his way. Id., ¶ 8. One of the bases for equitably tolling a deadline is if an agency misleads an appellant into missing a deadline by providing inaccurate information. Hemann v. Department of Veterans Affairs, 2022 MSPB 46, ¶¶ 1, 7, 9-20 (finding that the deadline for filing the appeal would be equitably tolled when the appellant’s former employing agency inaccurately advised him that he had 30 days, instead of 10 business days, to appeal his removal under 38 U.S.C. § 714). Here, the appellant does not state that OSC provided him with inaccurate information. Rather, his claim is that the OSC investigator was not available to advise the appellant to file a DOL complaint within 60 days of his nonselection. IAF, Tab 4 at 7. We agree with the administrative judge that the appellant’s assertions do not provide a basis for concluding that he exercised due diligence or that extraordinary circumstances stood in his way.9 ¶31 Accordingly, we remand this case to the Western Regional Office. On remand, the administrative judge shall allow the parties to submit further evidence and argument and hold a hearing on the issue of whether to equitably toll the appellant’s untimely filed DOL complaint as to his nonselection for the Support Services Supervisor position. The administrative judge shall then issue a remand initial decision. In his remand initial decision, the administrative judge should incorporate his findings that the appellant’s DOL complaint was untimely filed and that he did not establish a dispute of material fact entitling him to 9 A factual dispute is “material” for purposes of creating a genuine dispute of material fact entitling an appellant to a hearing on the merits of his VEOA appeal if, under the governing law, its resolution could affect the outcome. Oram, 2022 MSPB 30, ¶ 9 & n.5. The appellant’s assertions here, even if true, do not provide a basis for tolling the 60-day deadline as to the VSR position and, therefore, are not material to that issue. The administrative judge essentially found as much. ID at 19-21. To the extent that the administrative judge found, in the alternative, that the appellant’s statements were not credible, that determination was unnecessary to his decision not to equitably toll the deadline. ID at 18-20. Therefore, we do not address the appellant’s arguments on review contesting the administrative judge’s credibility findings. PFR File, Tab 1 at 8. 17 equitable tolling of his untimely complaint as it concerns the VSR position, as modified to eliminate his reliance on credibility determinations. ORDER ¶32 For the reasons discussed above, we remand this case to the 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/Salazar_AnthonySF-3330-18-0470-I-1_Opinion_and_Order.pdf
05-30-2024	2024 MSPB 10	Christopher Andreski	https://www.mspb.gov/decisions/precedential/Andreski_Christopher_J_CH-0752-22-0331-I-1__Opinion_And_Order.pdf	Department of Justice	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 10 Docket No. CH-0752-22-0331-I-1 Christopher J. Andreski, Appellant, v. Department of Justice, Agency. May 30, 2024 Scott Graham , Esquire, Portage, Michigan, for the appellant. Simon Caine and Cedric D. Bullock , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his chapter 75 removal appeal based on his prior election of remedies under 5 U.S.C. § 7121(g). For the reasons discussed below, we DENY the petition for review and AFFIRM the initial decision as MODIFIED by this Opinion and Order to clarify when an election of the remedy under 5 U.S.C. § 7121(g)(3)(C) is binding. BACKGROUND ¶2 On April 8, 2022, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency took several personnel actions against 2 him in reprisal for his protected whistleblower activity. Andreski v. Department of Justice, MSPB Docket No. CH-1221-22-0418-W-1, Initial Appeal File (0418 IAF), Tab 1 at 7, 15. Effective May 7, 2022, the agency removed the appellant from his GS-13 Criminal Investigator, Deputy U.S. Marshal position based on a charge of medical inability to perform. Andreski v. Department of Justice, MSPB Docket No. CH-0752-22-0331-I-1, Initial Appeal File (0331 IAF), Tab 9 at 11, 13-16. The agency’s removal decision notified the appellant of his right to appeal the agency’s action with the Board or by filing a complaint with OSC and of the effect that his election would have on his appeal rights before the Board. Id. at 14-15. The appellant amended his OSC complaint at some point in May 2022 to include his removal. 0418 IAF, Tab 16 at 21, 24-26. On June 2, 2022, OSC advised the appellant that it was terminating its inquiry and provided him with notice of his right to file an individual right of action (IRA) appeal to seek corrective action from the Board. 0418 IAF, Tab 1 at 15. ¶3 On June 6, 2022, the appellant filed the instant Board appeal challenging his removal under chapter 75 and requested a hearing. 0331 IAF, Tab 1 at 2. He did not indicate that he filed a whistleblower complaint with OSC on his appeal form. Id. at 7. Subsequently, on August 12, 2022, he filed an IRA appeal wherein he also challenged his removal and requested a hearing. 0418 IAF, Tab 1 at 2. During the pendency of the instant appeal, the administrative judge became aware that he filed a complaint with OSC challenging his removal before he filed this appeal. 0331 IAF, Tab 17 at 1-2. For this reason, she issued an order notifying the parties of the election of remedies issue. Id. She explained that the appellant’s direct appeal of his removal under chapter 75 may be precluded by 5 U.S.C. § 7121(g)(2) because he filed his OSC complaint first. Id. She also allowed the parties to submit briefs on the issue, but neither party responded. Id. On October 27, 2022, the administrative judge held a status conference to discuss the election of remedies issue with the parties. 0331 IAF, Tab 18 at 1. During 3 this conference, the appellant indicated that he understood the election of remedies issue and elected to proceed with his IRA appeal. Id. ¶4 Subsequently, the administrative judge issued an initial decision dismissing the instant appeal. 0331 IAF, Tab 22, Initial Decision (0331 ID) at 2, 7. She concluded that the appellant made a knowing election to challenge his removal through the OSC complaint process, precluding this chapter 75 appeal under 5 U.S.C. § 7121(g)(2). 0331 ID at 6. She also found that the appellant confirmed his election to proceed with his IRA appeal during the October 27, 2022 status conference. Id.; 0331 IAF, Tab 18 at 1. Accordingly, the administrative judge dismissed the instant appeal based on the appellant’s election of remedies and advised that the challenge to his removal would be adjudicated in the context of his IRA appeal. 0331 ID at 6. The administrative judge then dismissed the appellant’s IRA appeal for lack of jurisdiction, and the Board denied the appellant’s petition for review of that initial decision. Andreski v. Department of Justice, MSPB Docket No. CH-1221-22-0418-W-1, Final Order (May 30, 2024). ¶5 The appellant has filed a petition for review of the initial decision dismissing his removal appeal. Andreski v. Department of Justice, MSPB Docket No. CH-0752-22-0331-I-1, Petition for Review (PFR) File, Tab 1 at 3-5. The agency has filed a response addressing the appellant’s IRA appeal. PFR File, Tab 3. ANALYSIS We clarify that an election to pursue a remedy with OSC is effective upon making a complaint to OSC and is not contingent on whether the Board has jurisdiction over the appellant’s subsequent IRA appeal. ¶6 Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action appealable to the Board and alleges that he has been affected by a prohibited personnel practice other than a claim of discrimination under 5 U.S.C. § 2302(b)(1) may elect one, and only one, of the following remedies: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under the 4 provisions of a negotiated grievance procedure; or (3) a complaint following the procedures for seeking corrective action from OSC under 5 U.S.C. chapter 12, subchapters II and III. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013); see 5 C.F.R. § 1209.2(d)(1). Whichever remedy is sought first is deemed an election of that procedure and precludes pursuing the matter in either of the other two forums. Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 12 (2015). However, for an election of an option to be binding, it must be knowing and informed. Agoranos, 119 M.S.P.R. 498, ¶ 16. ¶7 An individual who first requests corrective action from OSC will be deemed to have made a binding election to proceed in that forum. Agoranos, 119 M.S.P.R. 498, ¶ 14; 5 C.F.R. § 1209.2(d). In such a case, the procedures for an IRA appeal apply, even if the contested personnel action would have been directly appealable to the Board. 5 C.F.R. § 1209.2(d)(2). In adjudicating the merits of such an IRA appeal, the Board will limit its inquiry to issues listed at 5 U.S.C. § 1221(e) and will not consider affirmative defenses. 5 C.F.R. § 1209.2(c). On review, the appellant challenges the administrative judge’s finding that his chapter 75 appeal was precluded by 5 U.S.C. § 7121(g)(2) because he made a knowing election to seek corrective action with OSC by asserting that “the [administrative judge] did not correctly apply the law to the facts.” PFR File, Tab 1 at 4. The appellant’s argument is without merit. ¶8 The undisputed record evidence shows that before filing his direct appeal with the Board under chapter 75, the appellant amended his existing OSC complaint to allege that the agency removed him in reprisal for his protected whistleblowing. 0331 ID at 5-6; 0418 IAF, Tab 1 at 7-8, 15, Tab 6 at 4-5, Tab 16 at 21. Further, the appellant decided to proceed with his IRA appeal during the October 27, 2022 status conference. 0331 ID at 6; 0331 IAF, Tab 18 at 1. Therefore, we find no error in the administrative judge’s finding that the appellant made a knowing election to pursue corrective action with OSC. 0331 ID at 6. However, it does not appear that the Board has made a 5 pronouncement in a precedential decision as to whether an appellant’s election of remedy to proceed with OSC is binding when, as here, his subsequent IRA appeal is dismissed for lack of jurisdiction. Accordingly, although neither party specifically disputes this election of remedies issue, we take the opportunity to address the issue here. ¶9 There is case law stating that a forum that lacks jurisdiction is not a true election and, thus, is not binding. E.g., Kerr v. Merit Systems Protection Board, 908 F.3d 1307, 1315 (Fed. Cir. 2018) (stating that, “[u]nder our precedent, election of a review route that cannot afford a remedy (e.g., no jurisdiction over the claim) will generally not foreclose access to a route that can provide a remedy”); Shannon v. Department of Homeland Security, 100 M.S.P.R. 629, ¶ 17 (2005) (analyzing 5 U.S.C. § 7121(g)(4)(A) to find that, if jurisdiction never attached, the original appeal was not a true choice among viable alternatives and, thus, cannot serve as an election of remedies under section 7121(g)). In such cases, however, the employees’ election of remedies was not binding because the elected forum did not have and could not assert jurisdiction over the employees’ claims. We find that this is inapplicable here because the Board has jurisdiction over an IRA appeal if the appellant establishes the jurisdictional requirements. See McCray v. Department of the Army, 2023 MSPB 10, ¶ 11; see also 5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1); 5 C.F.R. § 1209.2. ¶10 Therefore, we take this opportunity to clarify that the clear language of 5 U.S.C. § 7121(g)(4)(C) provides that an election of the remedy to seek corrective action with OSC is effective upon making a complaint to OSC. The election is not contingent on whether the Board has jurisdiction over an appellant’s subsequent IRA appeal. Thus, under the statute, the appellant’s election is binding upon making a complaint to OSC even when, as here, the Board finds that it lacks jurisdiction over the appellant’s subsequently filed IRA appeal. Based on the above analysis, we deny the appellant’s petition for review 6 and find that his binding election precludes Board jurisdiction over his removal appeal. ORDER ¶11 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS1 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 1 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. 7 court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 8 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 9 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.2 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. 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. 2 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Gina K. Grippando Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Andreski_Christopher_J_CH-0752-22-0331-I-1__Opinion_And_Order.pdf
05-28-2024	2024 MSPB 9	Alan Tabakman	https://www.mspb.gov/decisions/precedential/Tabakman_AlanNY-831M-19-0127-I-1__Opinion_And_Order.pdf	Office of Personnel Management	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 9 Docket No. NY-831M-19-0127-I-1 Alan Tabakman, Appellant, v. Office of Personnel Management, Agency. May 28, 2024 Susan Tylar , Esquire, Syosset, New York, for the appellant. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 The appellant has petitioned for review of an initial decision that affirmed the final decision of the Office of Personnel Management (OPM) finding that he had been overpaid in his retirement annuity and was not entitled to a waiver of the overpayment. For the following reasons, we GRANT the appellant’s petition for review and AFFIRM the initial decision AS MODIFIED by this Opinion and Order to find that the appellant was without fault in the creation of the overpayment and further address why collection of the overpayment would not be against equity and good conscience. We still FIND, therefore, that the appellant is not entitled to a waiver of the overpayment. 2 BACKGROUND ¶2 The appellant’s employing agency, the Department of the Treasury, Internal Revenue Service (IRS), removed him from his position for misconduct, effective August 23, 2013. Initial Appeal File (IAF), Tab 7 at 49. Because he was eligible to do so, the appellant elected to voluntarily retire under the Civil Service Retirement System (CSRS), id. at 58, 75, and he began to receive annuity payments on September 1, 2013, id. at 57. However, he also challenged the IRS’s removal action before the Board. During the adjudication of that appeal, on June 3, 2014, the parties entered into a settlement agreement that provided, in relevant part, that the appellant’s removal would be mitigated to a 75-day suspension without pay, from August 23, 2013, through November 6, 2013, followed by a period of leave without pay beginning November 7, 2013, through the day before his return to duty on June 15, 2014.1 Id. at 26-32. ¶3 The IRS notified OPM on July 16, 2014, that it had restored the appellant to its rolls and that he “will not be receiving any back pay.” Id. at 48. On July 25, 2017, OPM advised the IRS that it had terminated the appellant’s annuity payments retroactive to the date they began, September 1, 2013. Id. at 47. On July 31, 2017, OPM notified the appellant that he had been overpaid in the amount of $56,789.30, explaining that, as a result of the cancellation of his removal and his return to employment, his annuity should have terminated on September 1, 2013, but that, due to delay, OPM was not able to terminate his annuity until July 1, 2014. Id. at 37. The appellant requested reconsideration on August 25, 2017. Id. at 22-25. On February 27, 2019, OPM affirmed its initial decision on reconsideration as to the existence of the debt and the mathematical correctness of the amount of the overpayment, id. at 13, and it denied a waiver of the overpayment upon finding that the appellant was not without fault in causing 1 An addendum was signed on October 30, 2014, but it did not change the agreement in any way that affects our decision. IAF, Tab 7 at 33-34. 3 or contributing to the overpayment and that recovery would not be against equity and good conscience, id. at 14. ¶4 On appeal, the appellant asserted that he was not at fault in causing the overpayment and that it should be waived. IAF, Tab 1 at 5. He requested a hearing, id.at 2, but subsequently withdrew his request, IAF, Tab 18, after which the parties made additional submissions before the close of the record, IAF, Tabs 21-22. In an initial decision affirming OPM’s final decision, the administrative judge first found that, in the absence of a challenge by the appellant, OPM had proven by preponderant evidence that an overpayment occurred. IAF, Tab 23, Initial Decision (ID) at 4 n.1. Agreeing with OPM’s reasoning, the administrative judge then found that the appellant failed to prove by substantial evidence that he was without fault in creating the overpayment, ID at 5-6, and that he was not entitled to a waiver of the overpayment,2 ID at 7. ¶5 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 3, and the agency has responded in opposition, PFR File, Tab 6. ANALYSIS ¶6 Recovery of payments under the CSRS retirement fund may not be made from an individual when, in the judgment of OPM, the individual is without fault and recovery would be against equity and good conscience. 5 U.S.C. § 8346(b); 5 C.F.R. § 831.1401. A recipient of an overpayment is without fault if the individual performed no act of commission or omission which resulted in the overpayment. 5 C.F.R. § 831.1402. Pertinent considerations in finding fault are (1) whether payment resulted from the individual’s incorrect but not necessarily fraudulent statement, which should have been known to be incorrect; (2) whether payment resulted from the individual’s failure to disclosure material facts in the individual’s possession which the individual should have known to be material; or 2 The administrative judge further found that, because the appellant had not submitted any documentation to the Board, he did not show that the repayment schedule should be adjusted based on income and expenses. 5 C.F.R. § 831.1401; ID at 7. 4 (3) whether the individual accepted a payment which the individual knew or should have known to be erroneous. 5 C.F.R. § 831.1402(a). ¶7 In finding that the appellant was not without fault in creating the overpayment, the administrative judge found that his actions caused the circumstances of the overpayment because the applicable statutes and regulations did not permit him to use the retirement fund intermittently as “short-term insurance against discipline.” ID at 5. Further, the administrative judge found that the appellant did not rebut OPM’s argument that he accepted the retirement funds for a period during which, as it turned out, he was not retired but simply awaiting “a mitigation of his removal” that occurred when his settlement agreement converted his retirement period into a suspension and period of approved leave. ID at 5-6. ¶8 On review, the appellant asserts that he filed for retirement benefits when he was entitled to do so and that, once he became aware that he was no longer entitled to those benefits, he acted in good faith by notifying OPM on June 5, 2014, requesting that all pension payments and all deductions associated with them cease and asking if there was any other criterion that he needed to meet. PFR File, Tab 3 at 13; IAF, Tab 7 at 56. The appellant further contends that on July 7, 2014, he notified OPM that, on July 1, 2014, he received by direct deposit a pension “payment I should not have received” and asked what he should do regarding that payment. PFR File, Tab 3 at 14, IAF, Tab 16 at 6. The appellant claims that the record lacks evidence that he knew or should have known, when he was receiving retirement benefits, that they would much later be considered an overpayment. PFR File, Tab 3 at 14-15. As set forth below, we agree with the appellant that he is without fault in creating the overpayment. ¶9 Congress made specific provision for the appellant’s actions under 5 U.S.C. § 7701(j), which permits retirement-eligible individuals to receive the benefits that they have earned at the same time that they are challenging a removal action. Civil Service Due Process Amendments, Pub. L. No. 101-376, § 3, 104 Stat. 461, 5 462-63 (1990); see Mays v. Department of Transportation, 27 F.3d 1577, 1580-81 (Fed. Cir. 1994) (holding that, under 5 U.S.C. § 7701(j), an employee who is “stigmatized with an adverse final decision reflected in her government employment record, may challenge the final removal decision while also opting to retire”). Congress has also specified that the Board may, by regulation, provide for one or more alternative methods for settling matters before the Board, which “shall be applicable at the election of . . . an employee . . . .” 5 U.S.C. § 7701(h). The Board’s administrative judges have the authority to hold prehearing conferences for the settlement and simplification of issues, 5 C.F.R. § 1201.41(b)(12), and may initiate attempts to settle the appeal informally at any time, 5 C.F.R. § 1201.41(c)(1). If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal. 5 C.F.R. § 1201.41(c)(2). The Board has recognized the long-established public policy favoring settlement agreements, which avoid unnecessary litigation and encourage fair and speedy resolution of issues, thereby benefitting the parties, the Board, and the taxpayer. See Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶¶ 17, 20 (2017). Reading sections 8346(b), 7701(j), and 7701(h) as a whole, see Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 8, and acknowledging the public policy benefits of a settlement agreement in cases pending before the Board, regardless of the terms of the agreement, we find that the appellant is without fault in this case. ¶10 OPM’s regulations support this result. As set forth above, a recipient of an overpayment is without fault if he “performed no act of commission or omission which resulted in the overpayment.” 5 C.F.R. § 831.1402. Such acts of “commission or omission” are not directly defined, but the regulation does provide “pertinent considerations in finding fault” that clarify the nature of such an act of commission or omission. 5 C.F.R. § 831.1402(a); see King v. Department of the Air Force, 122 M.S.P.R. 531, ¶ 7 n.4 (2015) (holding that a general word or phrase is held to refer to things of the same kind as those that are 6 specifically enumerated). Here, the overpayment did not result from the appellant’s incorrect but not necessarily fraudulent statement, which he should have known to be incorrect, nor did it result from his failure to disclose material facts in his possession that he should have known to be material. Further, the appellant did not accept a payment that he knew or should have known to be erroneous. We therefore find that the appellant performed no act of commission or omission similar to those specified in the regulation. ¶11 When, as here, OPM proves by preponderant evidence an overpayment of benefits, an appellant may prove, by substantial evidence, eligibility for waiver or adjustment. 5 C.F.R. § 1201.56(b)(2)(ii). Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). Under the above circumstances, the appellant has shown by substantial evidence that he is without fault. ¶12 Nevertheless, we agree with the administrative judge’s alternative finding that recovery of the overpayment is not against equity and good conscience. ID at 6-7. Recovery is against equity and good conscience when any of the following three factors are present: (1) recovery would cause financial hardship; (2) the recipient of the overpayment can show that, due to the notice that such payment would be made, the recipient relinquished a valuable right or changed positions for the worse; or (3) recovery would be unconscionable under the circumstances. 5 C.F.R. § 831.1403. The appellant does not challenge factor (1) on review, PFR File, Tab 3 at 17-20, and we therefore do not address it because, as the administrative judge found, the appellant elected not to submit a statement of his income and expenses necessary to support such a claim. ID at 7. ¶13 The administrative judge did not consider the appellant’s claim under factor (2) that, due to notice of the overpayment, he relinquished a valuable right and changed positions for the worse. Because the appellant makes that argument on review, PFR File, Tab 3 at 7-9, 17, 20, we address it now. The basis of the 7 appellant’s argument is that he paid taxes on the retirement annuity payments he received in tax years 2013 and 2014 but was unable to file amended returns based on the assessed overpayment because the date for doing so had passed, IAF, Tab 16 at 34, and that he has therefore suffered an irrevocable loss. PFR File, Tab 3 at 7-9, 17, 20. Assuming that the appellant’s tax burden was increased, any such harmful result of the overpayment would not constitute detrimental reliance or meet the criteria described in 5 C.F.R. § 831.1403(a)(2) and in the part of OPM’s published policy guidelines interpreting its regulations that concerns detrimental reliance. IAF, Tab 7 at 96-98, OPM’s Policy Guidelines on the Disposition of Overpayments under the Civil Service Retirement System and Federal Employees Retirement System (Policy Guidelines), § I.E.1 (1995). Those criteria do not apply to all situations in which an error or other circumstances cause a person’s position to change for the worse. Slater v. Office of Personnel Management, 42 M.S.P.R. 510, 520 (1989). Instead, they apply to situations in which an action by one party misleads the other party and thereby induces the latter to act in a particular manner. Id. Here, although OPM’s actions may have put the appellant in a position in which he was required to pay more taxes than he otherwise would have been required to pay, it did not do so by misleading him or inducing him to change his position. See id. ¶14 The administrative judge considered the appellant’s claim under factor (3), that the recovery of the overpayment would be unconscionable. She found that he would receive a windfall if he were allowed to collect back pay from the retirement fund for a period of time he negotiated away in his settlement agreement with his employer and that the retirement fund itself would thereby be unfairly diminished. ID at 6-7. She did not, however, address the appellant’s claim that unconscionability is established in this case because it took OPM 3 years to assess the overpayment. PFR File, Tab 3 at 18. ¶15 Under exceptional circumstances, gross or egregious errors or delays by OPM may lead to a finding that it is inequitable to recover an overpayment. 8 Granting a waiver under these circumstances requires a determination that OPM’s handling of a case was so offensive—so monstrously harsh and shocking to the conscience—that one’s sense of equity forbids recovery. IAF, Tab 7 at 98-99, Policy Guidelines, § I.F.1. The Board considers “all relevant factors using a ‘totality-of-the-circumstances’ approach in order to determine whether recovery of an annuity overpayment is unconscionable in a given case.” Aguon v. Office of Personnel Management, 42 M.S.P.R. 540, 550 (1989). ¶16 In support of his claim, the appellant relies on Gordon v. Office of Personnel Management, 689 F. App’x 977 (Fed. Cir. 2017). PFR File, Tab 3 at 19. There, the court found that, when an appellant is without fault and a wholly unexplained delay of 3 years and almost 11 months in responding to a request for reconsideration follows an earlier 3-year delay in finalizing its calculations of the appellant’s benefits, recovery of the overpayment is unconscionable when the appellant was deprived of the opportunity to pursue and receive other benefits he likely would have received during those delays. Gordon, 689 F. App’x at 988-89. The Board may rely on unpublished decisions of the U.S. Court of Appeals for the Federal Circuit, like Gordon, if it finds the court’s reasoning persuasive. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011). We decline to rely on Gordon in this case. Although OPM notified the appellant of the overpayment approximately 3 years after the IRS notified OPM that the appellant had been returned to duty, and OPM responded to his request for reconsideration approximately 18 months after he made that request, there is no indication that these delays deprived the appellant of the opportunity to pursue and receive other benefits he likely would have received during that period. ¶17 Based on the totality of the circumstances, we find that OPM’s delay in assessing the overpayment in this case does not meet the high standard of being 9 so monstrously harsh and shocking to the conscience that equity forbids recovery.3 We therefore agree with the administrative judge that the appellant failed to show by substantial evidence that recovery of the overpayment would be against equity and good conscience. Accordingly, he is not entitled to a waiver. ORDER ¶18 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 RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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 3 To the extent that, under an earlier version of OPM’s Policy Guidelines, recovery of that portion of an overpayment that accrued more than 3 years before the date of the initial overpayment notice was deemed unconscionable, Aguon, 42 M.S.P.R. at 550; Policy Guidelines, § I.F.4 (1985), that provision does not appear in the current version. 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 11 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 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. 12 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 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). 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 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Tabakman_AlanNY-831M-19-0127-I-1__Opinion_And_Order.pdf
04-23-2024	2024 MSPB 8	Macaulay Williams	https://www.mspb.gov/decisions/precedential/Williams_MacaulayDC-0752-17-0595-I-1_Opinion_and_Order.pdf	Department of Commerce	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 8 Docket No. DC-0752-17-0595-I-1 Macaulay Williams, Appellant, v. Department of Commerce, Agency. April 23, 2024 Macaulay Williams , South River, New Jersey, pro se. Josh Hildreth , Esquire, and Chieko Clarke , Esquire, Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal for excessive absences. 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 Board’s case law on the requirements for proving a charge of excessive absences. BACKGROUND ¶2 The appellant was a Patent Examiner with the U.S. Patent and Trademark Office. Initial Appeal File (IAF), Tab 1 at 1. On July 7, 2016, the agency proposed his removal for improper conduct, including, among other things, 2 excessive absences. IAF, Tab 8 at 68-75. The proposal notice indicated that the appellant had been absent with no foreseeable end for over 1 year, or 2,840 hours, due to his health condition and had been granted a significant amount of leave without pay (LWOP). Id. As described in the initial decision and undisputed by the parties, the appellant orally responded to the proposed removal, indicating that he was ready to return to work, and later provided a medical note in support. IAF, Tab 59, Initial Decision (ID) at 4. He later returned to work on a part-time intermittent schedule from September 6 to November 3, 2016. Id. Thereafter, the appellant began requesting leave again due to his medical condition. ID at 4-5. On March 1, 2017, the agency rescinded the July 7, 2016 notice of proposed removal and issued a new proposal to remove the appellant for excessive absences. IAF, Tab 7 at 37-44. The March 1, 2017 proposal charged the appellant with being absent from work for 2,741.25 hours since July 7, 2015, excluding leave taken pursuant to the Family and Medical Leave Act (FMLA). Id. at 37-40. On May 9, 2017, the appellant presented an oral and written reply. Id. at 21, 25-36. The deciding official sustained the charge and removed the appellant effective June 7, 2017. Id. at 21-22. ¶3 The appellant filed a Board appeal challenging his removal and raising affirmative defenses of whistleblower reprisal, retaliation for equal employment opportunity (EEO) activity, failure to accommodate, and discrimination based on age, race, and national origin.1 IAF, Tabs 1, 45. After the appellant withdrew his request for a hearing, IAF, Tab 45 at 16, Tab 51 at 1, the administrative judge issued an initial decision sustaining the removal on the written record, see ID. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. 1 The appellant also argued that the agency constructively suspended him. The administrative judge found that the appellant did not prove his constructive suspension claim, and the appellant has not contested this finding on review. See 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed petition or cross petition for review.”). 3 ANALYSIS ¶5 As a general rule, an agency may not take an adverse action based on an employee’s use of approved leave. Coombs v. Social Security Administration, 91 M.S.P.R. 148, ¶ 12 (2002). However, an exception exists when the following criteria are met: (1) the employee was absent for compelling reasons beyond his control so that agency approval or disapproval of leave was immaterial because he could not be on the job; (2) the absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless he became available for duty on a regular, full-time or part-time basis; and (3) the agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis. Cook v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). This exception is applicable only under unusual circumstances, such as when the employee is unable to return to duty because of the continuing effects of illness or injury. Id. ¶6 In this case, the administrative judge found that all three of these criteria were met and that the agency proved excessive, approved absences of more than 2,300 hours between July 14, 2015, and February 3, 2017. ID at 12, 14, 20, 25. We agree with the administrative judge that the appellant was on approved leave during the time periods she indicated and that his absences were for compelling reasons beyond his control. However, we find that the appellant was not adequately notified, until well after this period began, that he could be disciplined for excessive, approved absences. We hold that, to prove a charge of excessive approved absences, an agency cannot rely on absences that predate the warning. The Board’s case law has previously suggested as much, see Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 31 (2015), overruled in part on other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25, but in this case we make such a holding explicit. ¶7 In support of this finding, we observe that the primary dictionary definition of “warn” is “to give notice to beforehand especially of danger or evil.” Warn, 4 Merriam-Webster.com, https://www.merriam-webster.com/dictionary/warn (last visited Apr. 23, 2024). It would be a stretch to consider a notification of potential discipline as a “warning” to the extent that the notice was given after the underlying conduct already occurred. Furthermore, under that interpretation, the notice of proposed adverse action itself could satisfy the warning requirement, thereby rendering this criterion superfluous. ¶8 This is not to say that an agency is required to ignore any absences that predated the warning. Prewarning absences may still be relevant for other purposes, such as evaluating medical evidence or determining whether the absences have a foreseeable end. However, they cannot be used to support the charge itself. Rather, a charge of excessive absences will only be sustained when the post-warning absences were themselves excessive. ¶9 In this case, the agency first warned the appellant of the possibility of attendance-related discipline on July 8, 2015. IAF, Tab 9 at 26-27. However, this letter warned the appellant that he was in an absence without leave (AWOL) status and that he could be disciplined for AWOL. It said nothing about discipline for approved absences and therefore did not satisfy the notice requirement of the Cook exception. Id.; see Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 32 (2014). ¶10 The next time that the agency attempted to warn the appellant about attendance-related discipline was on February 10, 2016. IAF, Tab 8 at 78-80. The February 10, 2016 letter was of the type contemplated in Cook. Id. It would have constituted adequate notice had the appellant received it, but the appellant denied receiving it. IAF, Tab 56 at 7. Nevertheless, in her initial decision, the administrative judge found it more likely than not that the appellant received the agency’s letter. ID at 21-24. Her conclusion was based on several factors, including that the appellant’s statement to the contrary was unsworn. Id. On petition for review, the appellant points out that his denial of receipt was supported by a sworn declaration. PFR File, Tab 1 at 11-12; IAF, Tab 56 at 23. 5 Because the administrative judge overlooked this evidence, we must reexamine the issue on review. ¶11 The Board has held that sworn statements that are not rebutted are competent evidence of the matters asserted therein. Aldridge v. Department of Agriculture, 110 M.S.P.R. 21, ¶ 9 (2008). We have considered the appellant’s sworn statement that he did not receive the February 10, 2016 letter, but we find that this statement is still insufficient in light of the other considerations identified by the administrative judge. The record shows that the letter was delivered to the appellant’s street address on February 12, 2016, and left at the front door.2 IAF, Tab 8 at 81-82. Furthermore, in neither of his responses to the notices of proposed removal did the appellant deny receiving the letter, even though his receipt of the letter was clearly at issue both times. IAF, Tab 7 at 25-26, 39, Tab 8 at 66-67, 73; see Reynolds v. Department of Justice, 63 M.S.P.R. 189, 195 (1994) (finding the appellant’s allegations less credible when he raised them for the first time during his Board appeal); Abatecola v. Veterans Administration, 29 M.S.P.R. 601, 607 n.3 (same), aff’d, 802 F.2d 471 (Fed. Cir. 1986) (Table). Also, during the second oral response, the appellant’s representative affirmatively stated that the appellant had received the letter, and the appellant said nothing to correct or contradict his representative’s statement. IAF, Tab 7 at 26. For these reasons, and in light of all the evidence on the issue, including the appellant’s sworn declaration, we find it more likely than not that the appellant received the agency’s letter on February 12, 2016, when it was delivered to his home. ¶12 The agency charged the appellant with being absent from work in a leave status for a total of 2,741.25 hours during various specified periods from July 7, 2015, through February 3, 2017. IAF, Tab 7 at 37-38. For the reasons explained above, because the appellant was not warned of the possibility of discipline for 2 The delivery notice does not indicate that the letter was delivered to a specific unit of the building. ID at 23. However, there is insufficient evidence about the nature of the building for the Board to judge how likely this would have been to result in nonreceipt. 6 approved leave until February 12, 2016, the leave that he took on or before that date cannot be used to support the charge. Therefore, we do not sustain the specifications concerning 264 hours of leave from July 7 through August 27, 2015; 584 hours of leave from September 7 through December 15, 2015; and 344 hours of leave from December 16, 2015, through February 12, 2016. IAF, Tab 7 at 37, Tab 8 at 29-33. Still, the remaining specifications concern an alleged 1,549.25 hours of leave taken over about 1 year from February 13, 2016, through February 3, 2017. The administrative judge found preponderant evidence to prove that the appellant was on LWOP for at least that many hours during that period. ID at 14-19. We agree, for the most part;3 however, for the following reasons, we find that only 1,109.25 hours of leave taken from February 13, 2016, through February 3, 2017, are appropriately considered towards the excessive absences charge.4 ¶13 The appellant argues that some of these absences were covered under the FMLA and therefore cannot be used to support his removal. PFR File, Tab 1 at 8-11; see McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 11 (2011) (holding that FMLA-covered leave cannot be used to support an excessive absences charge). The record contains the following evidence on the issue. On 3 The administrative judge observed that the timesheets that the agency submitted reflected a greater amount of LWOP for certain periods than did the notice of proposed removal. She found that the agency proved LWOP as reflected in the timesheets. ID at 15 & nn.10-11. However, the timesheets show the appellant in an LWOP status on several Federal holidays, IAF, Tab 8 at 33, 41, 44, 54, 57-58, and this appears to be the reason for the discrepancy. In any event, regardless of what the timesheets indicate, we decline to consider any absences that were not included in the charge. See Fitzgerald v. Department of the Army, 61 M.S.P.R. 426, 428-29 (1994) (“[T]he Board will not sustain an action on the basis of charges that the agency could have brought but did not.”). 4 The administrative judge relied, in part, on the parties’ stipulations in finding that the appellant was on LWOP on the days and times alleged. ID at 14-17. On review, the appellant argues, correctly, that some of the stipulations upon which the administrative judge relied had been withdrawn. PFR File, Tab 1 at 4-6; IAF, Tab 45 at 3-8, Tab 50 at 5-6. We have therefore reevaluated the agency’s evidence without regard to the withdrawn stipulations. We find that the timesheets themselves are sufficient to support the agency’s allegations. IAF, Tab 8 at 33-59. 7 November 10, 2016, the appellant requested leave for the period beginning November 4, 2016. IAF, Tab 47 at 45-46. The appellant’s supervisor informed him that the leave would be covered under the FMLA and requested that the appellant provide an end date. Id. at 45. The appellant responded that he wished to take leave until January 24, 2017, and he provided a health professional’s note to support the request. Id. at 44-45. ¶14 The administrative judge acknowledged that the supervisor’s email at least implied that the appellant’s leave would be covered under the FMLA. ID at 18-19. However, she found that the appellant was ineligible for FMLA protection because he had not worked at least 1,250 hours in the preceding 12 months. ID at 19. This analysis is incorrect because, like most non-Postal Service Federal employees, the appellant was covered under FMLA Title II, which does not contain the 1,250-hour eligibility requirement. See 5 C.F.R. § 630.1201(b); compare 29 U.S.C. § 2611(2) (eligibility requirements for Title I employees), with 5 U.S.C. § 6381(1) (eligibility requirements for Title II employees). Furthermore, even if the appellant were for some other reason not entitled to FMLA-covered leave for this period, we would still decline to include it in the calculation; by assuring the appellant that his leave would be FMLA-covered, the appellant’s supervisor was effectively promising him that he could not be disciplined for taking it. Therefore, none of the leave charged to the appellant between November 4, 2016, and January 24, 2017, will be considered towards sustaining the excessive absences charge.5 ¶15 The agency did not charge the appellant with any leave taken from November 4 to 13, 2016. IAF, Tab 7 at 38. But it did charge him with leave from November 14, 2016, through January 24, 2017. Id. Although the appellant’s timesheets show that he was carried in a LWOP status for 416 hours during that period, we will not consider these hours towards sustaining the excessive 5 This is a period of slightly less than 12 weeks, but it is all that the appellant’s request encompassed. 8 absences charge. IAF, Tab 8 at 54-59. Further, although the appellant was carried in an LWOP status on three Federal holidays (February 15, May 30, and July 4, 2016) during the remaining period of fairly charged excessive absences, we will exclude those 24 LWOP hours from our consideration. Id. at 33, 36, 44. Therefore, we find that the agency’s charge is supported by 1,109.25 hours of approved LWOP (1,549.25 – 416 – 24 = 1,109.25) that the appellant took between February 13, 2016, and February 3, 2017. Although these absences are less extensive than the total number of absences with which the appellant was charged, we nevertheless find that they continued beyond a reasonable time.6 See Gartner v. Department of the Army, 104 M.S.P.R. 463, ¶ 10-11 (2007) (sustaining an excessive absences charge based on 333.5 hours of absence during a 6-month period). ¶16 Regarding the final requirement of the Cook exception, we agree with the administrative judge that the appellant’s position needed to be filled by an employee available for duty on a regular basis. ID at 24-25. The appellant argues that the agency had 51 other Patent Examiner vacancies that it was unable to fill. PFR File, Tab 1 at 12-13. However, we agree with the administrative judge that the existence of these vacancies is immaterial and does not mean that the agency did not need to fill the appellant’s position. This is particularly so considering evidence that the agency had a backlog of cases and was attempting to hire hundreds of new Patent Examiners to handle them. ID at 24-25. We therefore find that all of the Cook criteria are satisfied, and we sustain the charge. ¶17 The appellant raised several affirmative defenses, including claims of discrimination based on race, age, national origin, and disability (under a 6 The appellant alleges that an agency regulation requires employees to obtain prior approval from their director before taking LWOP in excess of 5 days and that his supervisor approved extended LWOP without the director’s permission. He argues that the charge cannot be sustained because the LWOP was not approved by the correct official. PFR File, Tab 1 at 6; IAF, Tab 57 at 5. Even assuming that such a regulation exists, the appellant’s argument would require the Board to add a fourth condition to the Cook exception, i.e., that the leave was approved according to correct procedures. We decline to do so. 9 reasonable accommodation theory), retaliation for EEO activity, and whistleblower retaliation.7 For the reasons explained in the initial decision, we agree with the administrative judge that the appellant did not prove these claims.8 ID at 27-36. ¶18 The appellant does not otherwise challenge the administrative judge’s finding that the penalty of removal was within the tolerable limits of reasonableness, and we affirm that finding on review. ID at 36-39. Although we have not sustained certain specifications of the excessive absences charge, we find that the analysis of the reasonableness of the penalty is not materially affected. As we have explained above, the agency established that the appellant was absent from work for 1,109.25 hours, or about 138 days, in a 1-year period, which is a substantial amount of absence. We have considered the appellant’s arguments on review and the record in this matter, and we find that the penalty of removal is reasonable given the proven specifications of the excessive absences charge and the relevant penalty factors. E.g., Byers v. U.S. Postal Service, 78 M.S.P.R. 456, 463-64 (1998) (holding that, when all of an agency’s charges are sustained, but not all of the underlying specifications, the agency’s selected penalty is entitled to due deference and should be reviewed to determine its reasonableness for the sustained specifications). 7 Regarding the appellant’s claim of retaliation for EEO activity, to the extent that this activity was protected under the Rehabilitation Act, the appellant would need to prove that retaliation was a but-for cause of his removal. Pridgen, 2022 MSPB 31, ¶¶ 45-46. The administrative judge’s finding that the appellant failed to prove motivating factor causation necessarily means that he failed to prove but-for causation. See Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33. 8 The appellant argues, among other things, that the administrative judge should have granted his motion to compel discovery of information pertaining to a potential comparator. PFR File, Tab 1 at 15. However, the appellant has not explained what information he was denied or how it would have changed the outcome of the appeal. In any event, because the agency provided most of the requested information and indicated that the remainder was not in its possession, we find that the administrative judge did not abuse her discretion in denying the motion. IAF, Tabs 35, 43. 10 ORDER ¶19 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 9 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). 9 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. 11 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 12 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 13 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.10 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 10 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. 14 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/Williams_MacaulayDC-0752-17-0595-I-1_Opinion_and_Order.pdf	Issuance Date: July 6, 2023 ARBITRATION PENALTY Ms. Williams appealed an arbitration decision that upheld her removal from her position as a correctional officer. The court vacated and remanded the arbitration decision, finding that the arbitrator erred in his penalty analysis. To this end, although the arbitrator had sustained only one of the two charges against Ms. Williams, he nonetheless deferred to the deciding official’s penalty determination. The court explained that, because the arbitrator had sustained fewer than all of the agency’s charges and the agency had not indicated that it desired a lesser penalty than removal if only the sustained charge was upheld, the arbitrator was required to independently determine the maximum reasonable penalty by analyzing and balancing the relevant Douglas factors. The court also found that the arbitrator had erred by deferring to the deciding official’s findings of fact, which the arbitrator himself had rejected. NONPRECEDENTIAL: Trimble v. Department of Veterans Affairs, No. 2023-1306 (Fed. Cir. June 30, 2023) (DA-3330-22-0254-I-1) The court affirmed the Board’s decision denying Ms. Trimble’s request for corrective action under VEOA. The court found that (1) substantial evidence supported the Board’s conclusion that Ms. Trimble had an opportunity to compete for a position for which she had applied, but was not selected and (2) Ms. Trimble failed to identify any violations that would give rise to a viable VEOA claim. The court also found unavailing Ms. Trimble’s claim that the Board had violated her due process rights by not holding a hearing, explaining that the Board may decide a VEOA appeal on the merits without a hearing when there is no genuine dispute of material fact. Trimble v. Department of Veterans Affairs, No. 2023-1307 (Fed. Cir. June 30, 2023) (DA-4324-22-0350-I-1) The court affirmed the Board’s decision denying Ms. Trimble’s request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994. The court found that substantial evidence supported the Board’s conclusion that Ms. Trimble’s military service was not a motivating factor in her nonselection for the position for which she had applied. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
04-09-2024	2024 MSPB 7	Michelle Gilewicz	https://www.mspb.gov/decisions/precedential/Gilewicz_MichelleDE-1221-20-0091-P-1_and_DE-1221-20-0091-P-2_Opinion%20and%20Order.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 7 Docket Nos. DE-1221-20-0091-P-1 DE-1221-20-0091-P-2 Michelle Gilewicz, Appellant, v. Department of Homeland Security, Agency. April 9, 2024 Michelle Gilewicz , Wichita, Kansas, pro se. John F. Dymond , Esquire, North Charleston, South Carolina, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 The agency has filed a petition for review of the addendum initial decision, which awarded the appellant $100,000 in compensatory damages and $6,169.75 in consequential damages. For the reasons discussed below, we GRANT the agency’s petition for review, VACATE the compensatory damages award, and REMAND the compensatory damages proceeding to the Denver Field Office for further adjudication in accordance with this Opinion and Order. We AFFIRM the consequential damages award. 2 BACKGROUND ¶2 On December 3, 2019, the appellant filed an individual right of action (IRA) appeal alleging that, among other things, she was subjected to a hostile work environment because of her protected disclosures and protected activities. Gilewicz v. Department of Homeland Security, MSPB Docket No. DE-1221-20- 0091-W-1, Initial Appeal File (IAF), Tab 1. After holding a hearing, the administrative judge issued an initial decision granting in part the appellant’s request for corrective action. IAF, Tab 77, Initial Decision (ID) at 1-2. The administrative judge found that the appellant was entitled to corrective action regarding her claim that she was subjected to a hostile work environment1 while employed as an Immigration Officer in the agency’s Philadelphia Field Office because of her protected disclosures concerning an Immigration Analyst being improperly issued an Immigration Officer’s badge and performing work outside of the scope of her job duties, including conducting site visits. ID at 6-9, 14-17. However, the administrative judge denied corrective action regarding the appellant’s claims that, because of her protected disclosures and protected activity, the agency subjected her to a hostile work environment in the Wichita Field Office, did not select her for several positions, and gave her a negative job reference. ID at 17-20. Neither party filed a petition for review of the initial decision, which became the Board’s final decision. ¶3 On November 5, 2020, the appellant filed a motion for damages, which the administrative judge docketed as two separate addendum proceedings: (1) a consequential damages proceeding, Gilewicz v. Department of Homeland Security, MSPB Docket No. DE-1221-20-0091-P-1, Appeal File (P-1 AF), Tab 1; and (2) a compensatory damages proceeding, Gilewicz v. Department of Homeland Security, MSPB Docket No. DE-1221-20-0091-P-2, Appeal File 1 Allegations of a hostile work environment may establish a personnel action under 5 U.S.C. § 2302(a)(2)(A) if they meet the statutory criteria, i.e., constitute a significant change in duties, responsibilities, or working conditions. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. 3 (P-2 AF), Tab 1.2 The appellant sought $300,000 in nonpecuniary compensatory damages and $6,169.75 in consequential damages for the cost of a forensic economic analysis.3 P-2 AF, Tab 1 at 6. The administrative judge issued a single addendum initial decision based on the written record, awarding the appellant $100,000 in nonpecuniary compensatory damages and $6,169.75 in consequential damages. P-1 AF, Tab 9, Addendum Initial Decision (AID) at 8-21, 23; P-2 AF, Tab 8, AID at 8-21, 23. ¶4 The agency has filed a petition for review listing both docket numbers and asserting that the compensatory damages awarded are excessive.4 Petition for Review (PFR) File, Tab 3. The Office of the Clerk of the Board processed the agency’s pleading as a petition for review in both addendum proceedings.5 PFR File, Tab 4 at 1 n.. The appellant has not responded to the agency’s petition. ANALYSIS ¶5 As the prevailing party in a Board appeal in which the administrative judge ordered corrective action based upon a finding of whistleblower reprisal, the appellant is entitled to an award of “backpay and related benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).” 5 U.S.C. § 1221(g)(1)(A)(ii); see King v. Department of the Air Force, 122 M.S.P.R. 531, ¶ 7 & n.3 (2015). Compensatory damages 2 To reduce citation clutter, we will generally only cite to the P-2 files when items appear in both files. 3 The appellant also requested various other forms of relief, which the administrative judge denied. P-2 AF, Tab 1 at 5-6, Tab 8, Addendum Initial Decision at 5-7, 21-23. The appellant has not filed a cross petition for review challenging the administrative judge’s findings in this regard. 4 The agency does not present any discernable challenge to the administrative judge’s award of consequential damages. 5 To this point, there has not been an explicit order joining the appeals, although they have been treated as such without objection from either party. We expressly do so now because it would expedite processing without adversely affecting the interests of the parties. See 5 C.F.R. § 1201.36. 4 include pecuniary losses and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Hickey v. Department of Homeland Security, 766 F. App’x 970, 976-77 (Fed. Cir. 2019);6 5 C.F.R. §§ 1201.201(d), 1201.202(c). Compensatory damages are designed to compensate the appellant for actual harm, not to punish the agency. Hickey, 766 F. App’x at 977. We clarify that it is appropriate for the Board to consider cases and guidance from the Equal Employment Opportunity Commission (EEOC) as persuasive authority in adjudicating compensatory damages pursuant to 5 U.S.C. § 1221(g). ¶6 Here, in assessing the appellant’s claim of compensatory damages, the administrative judge noted that there was limited precedent from the U.S. Court of Appeals for the Federal Circuit.7 AID at 12. We agree that case law regarding compensatory damages in whistleblower reprisal cases is underdeveloped; indeed, the Board has yet to issue a precedential decision substantively addressing such damages.8 The Board has, however, addressed compensatory damages in another context, i.e., as authorized by section 102 of the Civil Rights Act of 1991 (42 U.S.C. § 1981a). E.g., Edwards v. Department of Transportation, 117 M.S.P.R. 222, ¶¶ 9-10, 27 (2012); see 5 C.F.R. § 1201.202(c). In this context, the Board has adopted the EEOC’s criteria for proving both the 6 The Board may follow a nonprecedential decision of a court when, as here, it finds the reasoning persuasive. Edwards v. Department of Labor, 2022 MSPB 9, ¶ 16 n.6, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). 7 Historically, the Board has not been bound by circuit court decisions other than those of the Federal Circuit. See Mynard v. Office of Personnel Management, 108 M.S.P.R. 58, ¶ 14 (2008). However, as a result of changes initiated by the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 108, 126 Stat. 1465, 1469 (2012), extended for 3 years in the All Circuit Review Extension Act, Pub. L. No. 113-170, § 2, 128 Stat. 1894 (2014), and eventually made permanent in the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018), the appellant may seek review of the Board’s final decision before any appropriate court of appeal. Edwards, 2022 MSPB 9, ¶ 15 n.5; see 5 U.S.C. § 7703(b)(1)(B). 8 Compensatory damages in IRA appeals first became available with the December 27, 2012 enactment of the Whistleblower Protection Enhancement Act of 2012. See Hickey, 766 F. App’x at 976 n.6; King, 122 M.S.P.R. 531, ¶ 7 n.3. 5 entitlement to and the amount of compensatory damages. Edwards, 117 M.S.P.R. 222, ¶ 9. ¶7 We take this opportunity to clarify that, in adjudicating compensatory damages in whistleblower reprisal cases, it is appropriate to apply the case law pertaining to compensatory damages in EEOC cases by analogy and to give persuasive authority to the regulatory guidance of the EEOC as it pertains to compensatory damages. Accordingly, to receive an award of compensatory damages pursuant to 5 U.S.C. § 1221(g), an appellant must show that she has been harmed as a result of the agency’s unlawful retaliatory activities and must establish the extent, nature, and severity of the harm, as well as the duration or expected duration of the harm. See id., ¶ 10 (stating that, to receive an award of compensatory damages pursuant to section 102 of the Civil Rights Act, an appellant must demonstrate that she has been harmed as a result of the agency’s discriminatory action and must establish the extent, nature, and severity of the harm, as well as the duration or expected duration of the harm); see also Hickey, 766 F. App’x at 978 (noting that Mr. Hickey’s request for compensatory damages included all of his original claims in his IRA appeal, instead of the three instances of misconduct for which the Board determined that he was entitled to corrective action, and concluding that he was only entitled to compensatory damages for those three instances). ¶8 An award of compensatory damages for nonpecuniary losses should reflect the extent to which the agency directly or proximately caused the harm and the extent to which other factors also caused the harm. Hollingsworth v. Department of Commerce, 117 M.S.P.R. 327, ¶ 13 (2012). A nonpecuniary damages award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be generally consistent with the amount awarded in similar cases. Id. (citing Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483, 1999 WL 139427, at 6 (Mar. 4, 1999)). To achieve consistency with the amount awarded in similar cases, it is appropriate to 6 consider EEOC decisions that present similar factual scenarios. E.g., Heffernan v. Department of Health and Human Services, 107 M.S.P.R. 97, ¶ 13 (2007). ¶9 In so clarifying, however, we caution that the Civil Rights Act limits the compensatory damages that may be awarded to a complainant for future pecuniary losses and nonpecuniary losses according to the number of individuals employed by the respondent employer. 42 U.S.C. § 1981a(b)(3). For an agency with more than 500 employees, as here, the limit of liability for such damages is $300,000. 42 U.S.C. § 1981a(b)(3)(D); see Nia G. v. Department of Homeland Security, EEOC Appeal No. 0120160716, 2018 WL 1061871, at *5 (Feb. 6, 2018) (indicating that, because the Department of Homeland Security has more than 500 employees, the limit of liability for future pecuniary and nonpecuniary damages was $300,000). No such monetary cap exists for an award issued pursuant to 5 U.S.C. § 1221(g). See Hickey, 766 F. App’x at 976 n.6. Thus, to the extent the Board considers any decisions, EEOC or otherwise, wherein nonpecuniary damages have been ordered pursuant to 42 U.S.C. § 1981a, it must remain cognizant that an award of such damages under 5 U.S.C. § 1221(g) is not capped and may exceed $300,000. We remand the compensatory damages issue for further adjudication. ¶10 Turning to the facts of this case, the administrative judge determined that the appellant was entitled to a partial award of the nonpecuniary compensatory damages she sought, in the amount of $100,000. AID at 20. The administrative judge arrived at this amount after considering the appellant’s written statement and two medical notes and comparing a range of EEOC decisions on compensatory damages. AID at 8-20. He concluded that the appellant proved that she became angry, anxious, depressed, fearful, unable to participate in activities she previously enjoyed, and she contemplated suicide. AID at 13-14. The administrative judge also determined that the most analogous precedent was Fivecoat v. Department of the Air Force, EEOC Appeal No. 0720110035, 7 2012 WL 1893699 (May 15, 2012), which similarly awarded $100,000 in compensatory damages. AID at 14. ¶11 On review, the agency asserts that the administrative judge erred in awarding $100,000 in compensatory damages because it was based on an erroneous finding regarding the total duration of the hostile work environment in Philadelphia and improperly relied on Fivecoat, which was not an analogous case, but rather involved more egregious acts by the agency over a longer duration of time. PFR File, Tab 3 at 13-20. For the reasons set forth below, we find that remand is necessary for proper assessment of the extent to which the appellant’s emotional harm was caused by the unlawful retaliatory hostile work environment in Philadelphia as opposed to emotional distress associated with the litigation process or the appellant’s unproven claim that she was subjected to a retaliatory hostile work environment in the agency’s Wichita office. ¶12 The administrative judge granted corrective action regarding the appellant’s claim that she was subjected to a hostile work environment in the agency’s Philadelphia office, which the administrative judge found to be “fairly limited in scope” and based on the following: (1) the appellant’s supervisor failed to require her colleagues to go out with her on site visits as part of her training, which adversely affected her development as an Immigration Officer, and told her to “deal with it”; (2) the appellant’s supervisor gave her a “lower performance appraisal grade” for the teamwork element, despite his knowledge that her team members would not work with her; (3) the appellant’s supervisor attempted to interfere with her work on a high-profile case; and (4) the appellant missed a training session after her return from deployment because no one told her about it. ID at 15; AID at 3-5. ¶13 As the agency points out on review, the total duration of the hostile work environment in Philadelphia appears to have been 9 months, between April 2017, when the appellant made her protected disclosures, ID at 7 n.7, and April 2018, when she began reporting to the Potomac Service Station, excluding the 8 approximately 3 months between September and December 2017, when she was deployed with the Surge Capacity Force, PFR File, Tab 3 at 14; IAF, Tab 4 at 10, 91, Tab 62 at 87. However, the appellant’s statement in support of her motion for compensatory damages, the primary evidence of the emotional harm she suffered, reflects that she attributes her emotional distress to the agency’s treatment of her over a total period of almost 4.5 years, including many of the original allegations raised in her appeal for which the administrative judge did not find unlawful retaliation and did not grant corrective action. P-2 AF, Tab 1. For example, the administrative judge found that the appellant failed to prove that her alleged hostile work environment in the Wichita Field Office was due to whistleblower reprisal. ID at 17-18. Notwithstanding such a finding, the appellant’s statement in support of her claim for compensatory damages describes emotional distress caused by the agency’s alleged actions in Wichita. P-2 AF, Tab 1 at 11-12, 14-16, 20 (stating that the environment in Wichita is “significantly worse than the one in Philadelphia” and “makes Philadelphia seem like a rose garden”). ¶14 In the addendum initial decision, the administrative judge acknowledged that the appellant claimed damages based on the agency’s treatment of her over a period of 4.5 years, but he summarily stated without analysis that she “did not distinguish clearly between the damages caused by whistleblower retaliation and those caused by the litigation.” AID at 10 & n.6. As a result, it is unclear whether the administrative judge’s award of compensatory damages improperly compensated the appellant for emotional distress stemming from litigation. P-2 AF, Tab 1 at 10-12, 19-20 (referencing her emotional state during or as a result of the trial); see, e.g., Knussman v. Maryland, 272 F.3d 625, 641-42 (4th Cir. 2001) (finding that, generally, litigation-induced emotional distress is not a compensable element of damages). Similarly, it is unclear whether the administrative judge awarded damages for emotional distress based on the appellant’s unsuccessful claim that she suffered a hostile work environment in 9 Wichita.9 Although the administrative judge stated that he was not awarding damages for any alleged Wichita hostile work environment, AID at 22, he considered the appellant’s medical conditions, such as nausea, headaches, stress, and anxiety, which appear to stem from alleged incidents in Wichita, AID at 10-11 (stating that the appellant described herself as anxious and depressed as well as “described how her focus and concentration has been greatly diminished, and she now feels nauseated and has headaches on a daily basis ‘as this ordeal has dragged on now for almost four and a half years’”); P-2 AF, Tab 1 at 11-12 (referencing that she now has anxiety as a result of constant questioning from management in Wichita). ¶15 Although we do not question the sincerity of such conditions, the appellant has not clearly indicated the dates or duration she suffered from these medical conditions, rendering it difficult to assess whether they were actually caused by the agency’s unlawful conduct in Philadelphia, particularly given that her statement fails to focus solely on the hostile work environment in Philadelphia.10 See Hickey, 766 F. App’x at 978. In addition to her statement, the appellant also submitted two 1-page medical documents in support of her claims that she suffered from anxiety and depression.11 P-2 AF, Tab 1 at 79-80. An October 8, 9 In his analysis, the administrative judge properly excluded compensatory damages that the appellant sought based on her other unproven claims, including her claims that her coworkers told lies about her and insinuated that she wanted to date a married coworker, her supervisor gave her a derogatory reference, she was held to a different standard than other employees, she was assigned more difficult cases, she was publicly denigrated in an attempt to humiliate her, and she was not promoted. AID at 9-10 nn. 4-5. 10 In contrast, the appellant clearly states that she began experiencing insomnia and depression in Philadelphia as a result of the hostile work environment. P-2 AF, Tab 1 at 5, 10-11. 11 The appellant also submitted two statements from her siblings, P-2 AF, Tab 4 at 3-4, which the administrative judge did not consider, AID at 12 (finding that the appellant’s personal statement and her two medical treatment notes were the only evidence of the extent, nature, severity, or duration of the appellant’s harm). On remand, the administrative judge shall consider such statements in assessing the appellant’s request for compensatory damages. 10 2020 note from a licensed clinical social worker states that the appellant presented on that date “with significant anxiety symptoms” that were “negatively impacting her daily functioning” and that she was also experiencing “depression symptoms for which she received counseling support from [a] social worker and therapist.” Id. at 79. In a second note dated October 27, 2020, a mental health social worker indicated that the appellant had established care on that date for symptoms of depression and anxiety that were “severely impacting her daily functioning.” Id. at 80. However, it is not clear whether or to what degree such conditions are the result of the hostile work environment the appellant experienced in Philadelphia in 2017-2018 because the medical notes, which are dated October 8 and 27, 2020, are temporally closer to the appellant’s unproven claim that she suffered a hostile work environment in Wichita, beginning January 6, 2019. ¶16 Based on the foregoing, we find it appropriate to remand for reevaluation of the appropriate amount of compensatory damages for harm actually caused by the hostile work environment in Philadelphia. Although the administrative judge did not hold a hearing on damages, he did hold a hearing on the merits of the appellant’s whistleblowing claims in which he heard testimony and made credibility findings concerning the Philadelphia hostile work environment. Given such findings, the administrative judge is in the best position to reevaluate the evidence and determine the proper amount of compensatory damages based solely on emotional distress caused by the Philadelphia hostile work environment. Cf. Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 8 (2006) (remanding because the administrative judge who decided the case on the merits was in the best position to judge the reasonableness of the requested attorney fees). ¶17 On remand, the administrative judge shall issue a new addendum initial decision that addresses the issues raised herein and evaluates the appellant’s entitlement to compensatory damages based only on her proven claim that she 11 was subjected to a hostile work environment in Philadelphia. The administrative judge, in his discretion, may reopen the record to allow the parties to present evidence and/or argument regarding the proper amount of compensatory damages or to hold a hearing on the appellant’s motion for compensatory damages. ORDER ¶18 For the reasons discussed above, we remand the compensatory damages matter, Gilewicz v. Department of Homeland Security, MSPB Docket No. DE-1221-20-0091-P-2, to the Denver Field Office for further adjudication in accordance with this Opinion and Order. ¶19 We ORDER the agency to pay the appellant $6,169.75 in consequential damages. The agency must complete this action no later than 20 days after the date of this decision. ¶20 We ORDER the appellant to cooperate in good faith in the agency’s efforts to carry out the Board’s Order. We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶21 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). ¶22 This is the final decision of the Merit Systems Protection Board regarding the award of consequential damages in MSPB Docket No. DE-1221-20-0091-P-1. 12 Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS FOR MSPB DOCKET NO. DE-1221-20-0091-P-1 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. NOTICE OF APPEAL RIGHTS FOR MSPB DOCKET NO. DE-1221-20-0091-P-112 Although the Board is remanding for further adjudication regarding the compensatory damages award in MSPB Docket No. DE-1221-20-0091-P-2, you may obtain review of the Board’s final decision regarding the award of consequential damages in MSPB Docket No. DE-1221-20-0091-P-1. 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 12 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. 13 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: 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. 14 (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 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. 15 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 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.13 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). 13 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. 16 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. 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/Gilewicz_MichelleDE-1221-20-0091-P-1_and_DE-1221-20-0091-P-2_Opinion%20and%20Order.pdf
03-22-2024	2024 MSPB 6	Lois Starkey	https://www.mspb.gov/decisions/precedential/Starkey_Lois_A_DC-315H-18-0258-I-4_Opinion_and_Order.pdf	Department of Housing and Urban Development	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 6 Docket No. DC-315H-18-0258-I-4 Lois A. Starkey, Appellant, v. Department of Housing and Urban Development, Agency. March 22, 2024 John J. Rigby , Esquire, Arlington, Virginia, for the appellant. Nicole Y. Drew , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s probationary termination. For the reasons discussed below, we DENY the agency’s petition for review and AFFIRM the initial decision. BACKGROUND ¶2 The appellant filed the instant appeal, asserting that the agency terminated her competitive-service probationary appointment for partisan political reasons. Starkey v. Department of Housing and Urban Development, MSPB Docket 2 No. DC-315H-18-0258-I-1, Initial Appeal File (IAF), Tab 1 at 6. The administrative judge held the requested hearing before issuing an initial decision. Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-3, Appeal File (I-3 AF), Hearing Transcript (HT)1; Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-4, Appeal File (I-4 AF), Tab 4, Initial Decision (ID). ¶3 The following facts, as further described in that initial decision, are not materially disputed. In June 2017, the Trump administration named a new political appointee as General Deputy Assistant Secretary for Housing (GDASH). HT at 171 (testimony of the GDASH). Prior to this political appointment, some of the appointee’s professional experience included working for Republicans in both houses of Congress. Id. at 171-72. ¶4 The next month, in July 2017, the agency hired the appellant as a GS-14 Manufactured Housing Specialist, a career competitive-service position, within the agency’s Office of Manufacturing Housing Programs (OMHP), in Washington, D.C. IAF, Tab 11 at 23. The appellant’s prior professional experience included several positions with the Manufactured Housing Institute, most recently as the Vice President of Regulatory Affairs, as well as a Legislative and Policy Associate position with the National Council of State Housing Agencies. I-3 AF, Tab 7 at 20-24. In addition, the appellant had worked as a Legislative Assistant for a Democratic Congressional representative, served as a political appointee for the Carter administration, held an elected position as a member of her local Democratic committee, and managed the campaign of her husband, who ran for elected office as a Democrat. E.g., I-3 AF, Tab 7 at 24-25; 1 We note that the table of contents to the transcript identifies incorrect page numbers for the testimony of the appellant’s first-level supervisor and altogether omits the testimony of another witness, the Senior Advisor. Compare HT at 3 (table of contents), with HT at 225-26 (introducing the appellant’s first-level supervisor and placing her under oath), 269-70 (introducing the Senior Advisor and placing her under oath). However, there is no reason to believe that the transcript is otherwise incomplete or inaccurate. 3 HT at 10-12 (testimony of the appellant). The appellant’s first-, second-, and third-level supervisors held career positions with the agency. HT at 108-09 (testimony of the second-level supervisor), 227 (testimony of the first-level supervisor), 371-72 (testimony of the third-level supervisor). Notably, though, the second-level supervisor had political ties that included running for office as a Republican in the 1990s, but more recently running as a Democrat in 2011. HT at 109 (testimony of the second-level supervisor). ¶5 Just days after the appellant began working for the agency, the head of a Washington, D.C.-based industry group—the Manufactured Housing Association for Regulatory Reform (MHARR)—sent a complaint to several agency officials, including the agency’s White House Liaison, advisors to the President, and the Chief of Staff to the Secretary of Housing and Urban Development. IAF, Tab 6 at 15-16, 19-20, 29. In this letter, MHARR complained that the agency had retained the appellant’s second-level supervisor, “an Obama Administration holdover,” and hired the appellant, “an Obama donor herself,” whom he further described as having connections to “Obama supporter, Warren Buffet.” Id. at 15-16. He attached public contribution records to evidence the appellant’s contributions to “Obama for America” in 2012. Id. at 17. Among other things, the MHARR complaint described the agency’s actions in this regard as “amazingly ill-considered, offensive and arguably scandalous,” surmising that both individuals would “defy and resist” the administration’s policies. Id. at 15. ¶6 In August 2017, the month after the agency hired the appellant, she met with her first- and second-level supervisors to discuss an ongoing dispute between the agency and a state partner, the Oregon State Administrative Agency. IAF, Tab 6 at 11-12; HT at 123 (testimony of the second-level supervisor). The appellant suggested that it might be helpful to discuss the matter with the Oregon Manufactured Housing Association to assist in resolving the dispute, and her second-level supervisor agreed. The second-level supervisor tasked the appellant with contacting the Oregon Manufactured Housing Association. HT 4 at 123-24 (testimony of the second-level supervisor). This was not well received by the agency’s state partners in Oregon. ¶7 In September 2017, the agency’s state partners in Oregon sent a letter to the Secretary of Housing and Urban Development, threatening to withdraw from their partnership, in part due to the appellant’s alleged sharing of “sensitive government-to-government discussions with outside parties.” IAF, Tab 11 at 17-21. When this complaint reached the appellant’s second-level supervisor, she issued an internal memorandum to the appellant’s third-level supervisor and the GDASH, defending OMHP’s action and assuring them that the appellant had not shared any confidential or sensitive information. IAF, Tab 6 at 31-32. ¶8 In October 2017, the head of MHARR sent another complaint to the agency that was the subject of discussions among the appellant’s first-, second-, and third-level supervisors. I-3 AF, Tab 9 at 98-99. However, it is not apparent whether that complaint, like the prior MHARR complaint, involved anyone’s political affiliation. Id. ¶9 In a November 2017 performance appraisal by her first- and second-level supervisors, the agency rated the appellant “outstanding,” the highest possible rating, and described her as an “invaluable asset.” I-3 AF, Tab 7 at 26-37. Yet, despite the support from her immediate chain of command, the appellant’s third-level supervisor terminated the appellant soon thereafter, after consulting with the GDASH and others. IAF, Tab 1 at 9-10; HT at 188-89 (testimony of the GDASH), 341-45 (testimony of the third-level supervisor). The reason for the December 19, 2017 termination, as described in the termination letter, was the appellant’s alleged release of sensitive information to industry stakeholders in Oregon, as described in the complaint by the agency’s partners from Oregon State Government. IAF, Tab 1 at 9, Tab 11 at 17-18. The day before, the GDASH also detailed the appellant’s second-level supervisor from her GS-15 position as Administrator of OMHP to a position described as comparable to that of an 5 administrative assistant. HT at 109, 131 (testimony of the second-level supervisor), 181 (testimony of the GDASH). ¶10 The appellant filed the instant appeal, arguing that the agency impermissibly terminated her for partisan political reasons. IAF, Tab 1 at 6. The administrative judge agreed and reversed the probationary termination, finding that officials cited the Oregon complaint as a mere pretext to remove the appellant for known political affiliations. ID at 38-49. ¶11 The agency filed a petition for review. Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-4, Petition for Review (PFR) File, Tab 1. The appellant filed a response, and the agency replied. PFR File, Tabs 5, 9. The parties also submitted competing arguments, evidence, and pleadings regarding interim relief. PFR File, Tab 5 at 4, Tabs 6-7, Tab 9 at 4- 5. ANALYSIS The agency failed to comply with its interim relief obligations. ¶12 The Board’s regulations provide that, if an appellant was the prevailing party in the initial decision, and the initial decision granted the appellant interim relief under 5 U.S.C. § 7701(b)(2)(A), an agency’s petition for review must be accompanied by a certification that the agency has complied with the interim relief order. Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 15 (2015); 5 C.F.R. § 1201.116(a). The Board’s regulations further contemplate that if an agency fails to submit the required certification with its petition, the Board may, in its discretion, dismiss the agency’s petition for review. Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-33 (Fed. Cir. 2004) (discussing how the regulatory provisions required dismissal until May of 1999, when the Board amended the regulation to establish that dismissal was discretionary); Thome, 122 M.S.P.R. 315, ¶¶ 15-16; 5 C.F.R. § 1201.116(e). 6 ¶13 A separate provision explains that an appellant may request dismissal of an agency’s petition for failing to provide the required interim relief, but the Board will dismiss the appellant’s motion if it is not filed within 25 days of the date of service of the agency’s petition, unless the appellant shows that the motion is based on information not readily available before the close of the time limit. 5 C.F.R. § 1201.116(d). ¶14 Here, although the appellant requested dismissal of the agency’s petition for its failure to provide interim relief, she did not do so within the allotted time, and we have no reason to conclude that her untimely motion was based upon new information. See PFR File, Tab 7. Accordingly, we dismiss the appellant’s motion, pursuant to 5 C.F.R. § 1201.116(d). The question remains, however, whether the Board should dismiss the agency’s petition on its own accord. See 5 C.F.R. § 1201.116(a), (e); see also Harding v. Department of Veterans Affairs, 451 F. App’x 947, 950 (Fed. Cir. 2011) (stating that “even without a timely challenge to the agency’s interim relief, the Board remains obligated to ensure that the agency has complied with the interim relief order”).2 ¶15 In the initial decision, dated October 21, 2019, the administrative judge ordered the agency to provide interim relief and warned of the consequences for failing to do so. ID at 51. Nevertheless, the agency did not include certification regarding interim relief with its November 22, 2019 petition for review, as required under the Board’s regulations. PFR File, Tab 1; 5 C.F.R. § 1201.116(a). Instead, the agency waited until after the appellant requested dismissal of its petition for review before submitting a “Notice of Interim Relief,” nearly 3 months after the issuance of the initial decision and 2 months after the agency filed its petition for review. PFR File, Tab 6. In that pleading, the agency indicated that the appellant “will receive the same grade, pay, and employment benefits as her previous position” and “will return to duty on January 21, 2020.” 2 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the Federal Circuit when, as here, it finds it to be persuasive. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 24 n.11 (2015). 7 Id. at 4. The agency also attached a Standard Form 52, dated the day before, retroactively placing the appellant in an interim appointment as of the date of the initial decision in this appeal.3 Id. at 7. Simply put, nearly 3 months after the order to do so, the agency had still not provided the appellant with all of her interim relief and had only just begun the process of doing so. Compare ID at 51, with PFR File, Tab 6 at 7. The agency provided no explanation for its delay. Nevertheless, we find that the appellant will not be prejudiced by a decision on the merits of the agency’s petition, and considering the totality of the circumstances, we decline to dismiss the agency’s petition for failure to provide interim relief. We clarify the legal standard for an appeal brought under 5 C.F.R. § 315.806(b). ¶16 An individual in the competitive service who, like the appellant, is serving an initial probationary period and has not completed 1 year of current continuous service has no statutory right of appeal to the Board. Marynowski v. Department of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); IAF, Tab 1 at 4, 9; see 5 U.S.C. § 7511(a)(1)(A). However, under certain limited circumstances, there may be a regulatory right of appeal under 5 C.F.R. § 315.806. As relevant here, such an individual “may appeal . . . a termination not required by statute which he or she alleges was based on partisan political reasons or marital status.” 5 C.F.R. § 315.806. To establish Board jurisdiction under that provision, the appellant must prove by preponderant evidence that her termination was, in fact, based on partisan political reasons or marital status.4 Marynowski, 118 M.S.P.R. 321, ¶ 5. 3 The agency indicated that it would not return the appellant to her previous office with OMHP because it had determined that her presence there would be unduly disruptive. PFR File, Tab 6 at 4, 7 (citing 5 U.S.C. § 7701(b)(2)(A)(II)). We will not review that determination. Cook v. Department of the Army, 105 M.S.P.R. 178, ¶ 7 (2007) (stating that the Board does not have the authority to review the merits of the agency’s determination that his return would be unduly disruptive). 4 An appellant has the right to a hearing on the jurisdictional issue only if she first makes a nonfrivolous allegation of jurisdiction, i.e., allegations of fact that, if proven, would establish that her termination was based on partisan political reasons or marital status. Green-Brown v. Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). An 8 ¶17 In adjudicating appeals under this provision, the Board and the U.S. Court of Appeals for the Federal Circuit have found that an appropriate analytical framework can be adapted from Title VII Federal sector discrimination law. Stokes v. Federal Aviation Administration, 761 F.2d 682, 686-87 (Fed. Cir. 1985); McClintock v. Veterans Administration, 6 M.S.P.R. 475, 478 (1981). We reaffirm that approach, while noting one important difference between Title VII and the regulatory appeal right at issue here, i.e., the difference between motivating factor and but-for causation. ¶18 Under Title VII, Federal personnel actions “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The Board has interpreted this language as setting forth a motivating factor standard of causation. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-21; see also Babb v. Wilke, 589 U.S. 399, 406-07 (2020) (interpreting “shall be made free from” to mean motivating factor causation in the context of the Federal sector provision of the Age Discrimination in Employment Act). To prove motivating factor causation, the appellant need only show that the prohibited consideration played any part in the way the decision was made, even if the agency would ultimately have made the same decision in the absence of the discriminatory motive. Wilson v. Small Business Administration, 2024 MSPB 3, ¶ 11; Pridgen, 2022 MSPB 31, ¶ 21. In contrast to Title VII, under 5 C.F.R. § 315.806(b), the appellant must prove that her termination was “based on” partisan political reasons or marital status. We hold that, under this regulation, the appellant is required to prove that the prohibited consideration was a but-for cause of her termination. In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176-77 (2009), the Supreme Court found that 29 U.S.C. § 623(a)(1), which prohibits discrimination “because of age” in private sector employment, should be read as requiring that the plaintiff prove but-for appellant who establishes Board jurisdiction under 5 C.F.R. § 315.806(b) thereby prevails on the merits. 9 causation. The Court further found that the statutory phrases “based on” and “because of” have the same meaning in this regard. Id. (citing Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64 & n.14 (2007)). But-for causation is a higher standard than motivating factor and requires proof that the prohibited consideration was necessary to the outcome of the agency’s decision. Bostock v. Clayton County, 140 S. Ct. 1731, 1740 (2020); Wilson, 2024 MSPB 3, ¶ 15; Pridgen, 2022 MSPB 31, ¶¶ 21-22 & n.4. ¶19 Notwithstanding these differences between Title VII and 5 C.F.R. § 315.806(b), Title VII analytical frameworks remain applicable to the extent that they may be used to prove but-for causation. As far as section 315.806(b) is concerned, the appellant may proceed in at least two ways. First, in cases involving at least some circumstantial evidence, an appellant may use the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Wilson, 2024 MSPB 3, ¶¶ 16-17 (explaining how McDonnell Douglas may be used to prove but-for causation in a Title VII claim). Second, the appellant may prove but-for causation under a mixed-motive framework. See id., ¶ 18. The appellant may also choose to proceed under both theories simultaneously. See id., ¶ 19. ¶20 In this case, the appellant proceeded under the McDonnell Douglas framework. See I-4 AF, Tab 3. To prove but-for causation under McDonnell Douglas, the appellant must first establish a prima facie case of discrimination. Wilson, 2024 MSPB 3, ¶ 16. To establish a prima facie case, an appellant must generally show that (1) she is a member of a protected class, (2) she suffered an adverse employment action, and (3) the unfavorable action gives rise to an inference of discrimination. Id.; see Furnco Construction Corp. v. Waters, 438 U.S. 567, 575-77 (1978). If the appellant makes out a prima facie case, then the burden shifts to the agency to provide a nondiscriminatory explanation for the action. Wilson, 2024 MSPB 4, ¶ 17. If the agency fails to give a nondiscriminatory explanation or the appellant proves that the agency’s 10 explanation was pretext, then the appellant has proven that discrimination was a but-for cause of the action. Id. The appellant met her burden of proof. ¶21 Broadly speaking, the administrative judge found that the appellant’s termination was unusual, not justified, and notably comparable to the reassignment of the other individual targeted by MHARR’s partisan political complaints—the appellant’s second-level supervisor. ID at 41-49. He also found that the GDASH was responsible for both actions, and he did not credit the GDASH’s testimony that she knew of the second-level supervisor’s political affiliation but not the appellant’s. ID at 38-41. Under these circumstances, as further discussed in the initial decision, the administrative judge concluded that the appellant’s termination was based on partisan political reasons and that the Oregon incident was merely used as a pretext for doing so. ID at 49. For the following reasons, we agree. The decision to terminate the appellant’s appointment was unusual and unjustified. ¶22 The stated reason for the appellant’s termination was her alleged sharing of sensitive information with the Oregon Manufactured Housing Association, as described in the Oregon complaint. IAF, Tab 1 at 9-10, Tab 11 at 17. Yet the appellant’s second-level supervisor, who was both an attorney and the Administrator of OMHP, responded by issuing a contemporaneous intra-agency memorandum to explain otherwise. IAF, Tab 6 at 31-32; HT at 106-09 (testimony of the second-level supervisor). That memorandum was directed to the appellant’s third-level supervisor and the GDASH. IAF, Tab 6 at 31-32. ¶23 During the hearing, the appellant’s second-level supervisor further discussed the appellant’s handling of the ongoing dispute between the agency and its Oregon partner. Among other things, she described how the appellant had not shared confidential or sensitive information, and in fact had acted in accordance with advance instructions from her chain of command and existing OMHP policy, 11 which was set by the second-level supervisor herself. HT at 125-29, 133, 138-52 (testimony of the second-level supervisor). The second-level supervisor also explained that a prior Deputy Administrator of OMHP had used the same policy and that OMHP had recently handled a comparable situation with another state partner, Michigan, in a similar manner. Id. at 124, 132, 138, 150-52, 161. ¶24 The appellant’s first-level supervisor, who was Deputy Administrator of OMHP during the relevant period and was also serving as Acting Administrator of OMHP by the time of hearing, provided additional support for the appellant’s actions. HT at 246, 248-53 (testimony of the first-level supervisor). She testified that the second-level supervisor was responsible for establishing the policy, she agreed with the policy at the time, and the appellant carried out the policy in good faith, notwithstanding the negative reaction from their state partner in Oregon. Id. This individual indicated that upon taking over as Acting Administrator, she ran OMHP somewhat differently than the outgoing Administrator to “cover” herself and avoid repercussions stemming from the politics surrounding OMHP work. Id. at 247-49, 262-64. ¶25 The appellant provided a written statement and testimony similar to that of her first- and second-level supervisors. IAF, Tab 6 at 11-12; HT at 28-30 (testimony of the appellant). She indicated that her second-level supervisor, as Administrator of OMHP, had broad authority and exercised that authority in a manner comparable to years past, when different officials were in control of OMHP and the appellant was on the receiving end of those policies in the private sector. HT at 34-37 (testimony of the appellant). ¶26 Neither of the appellant’s immediate supervisors was involved in the appellant’s termination. The first-level supervisor testified that she first learned of the appellant’s termination after it had already occurred and that no one ever explained to her the reason for the termination or who made the decision. HT at 232-33, 238-39, 251, 261 (testimony of the first-level supervisor). The first-level supervisor described those circumstances as unusual, indicating 12 that she had never experienced a similar situation and she was not aware of anything similar involving other agency employees and their supervisors. Id. at 233, 261-62. The appellant’s second-level supervisor testified that she, too, was not consulted on the appellant’s termination and was shocked to learn about it, after the fact. HT at 129-30, 133-34, 155-56 (testimony of the second-level supervisor). ¶27 The administrative judge found the appellant and her first- and second-level supervisors to be credible witnesses. ID at 15 n.23, 19 n.29, 22 n.36. To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail why he found the chosen version more credible, considering such factors as: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) the witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). In fact, the Board must give “special deference” to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016). ¶28 In this matter, the administrative judge properly considered the Hillen factors and made demeanor-based credibility determinations. Concerning the appellant, he noted that her version of events was internally consistent and 13 corroborated in material part with the other credible evidence of record. Moreover, he observed that the appellant appeared sincere and responsive when testifying. ID at 15 n.23. The administrative judge determined that the first-level supervisor was an “extremely credible witness” who had no apparent motive to lie or fabricate her testimony. He found that her testimony was “straightforward, sincere, unrehearsed, and consistent with the credible record evidence.” ID at 22 n.36. Additionally, the administrative judge concluded that the second-level supervisor’s testimony was corroborated by other record evidence and that she testified in a believable and straightforward manner without a sign of improper bias. ID at 19 n.29. There are no “sufficiently sound” reasons for overturning the administrative judge’s demeanor-based credibility determinations in this case. Therefore, we defer to them. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301. ¶29 In contrast to the appellant’s first- and second-level supervisors—the ones who were not consulted but had OMHP expertise, a detailed understanding of what occurred, the authority to direct the appellant’s actions, and a firm belief that the appellant was an outstanding employee who had acted appropriately—agency officials involved in the appellant’s termination, including the appellant’s third-level supervisor, the Senior Advisor to the GDASH, the GDASH, and the Acting Associate General Counsel, lacked or ignored the relevant facts and expertise. ¶30 The appellant’s third-level supervisor, who signed the appellant’s termination letter, indicated that she lacked expertise in OMHP matters and was unsure whether the appellant’s information sharing was appropriate. HT at 335-36, 338, 352 (appellant’s third-level supervisor). The third-level supervisor also testified that she failed to realize that the second-level supervisor had instructed the appellant to engage in the information sharing and, in hindsight, she acknowledged the appellant should not have been blamed. Id. at 350-51, 375. She did, however, recall that the appellant’s second-level 14 supervisor defended the appellant’s actions as consistent with existing OMHP policy. Id. at 350. Once again, the second-level supervisor’s defense is reflected in her memorandum to the third-level supervisor and the GDASH. IAF, Tab 6 at 31-32. According to her meeting notes and hearing testimony, the third-level supervisor discussed the second-level supervisor’s defense of the appellant when summoned to a meeting with the GDASH and the Senior Advisor to consider terminating the appellant. HT at 335-36 (testimony of the third-level supervisor); I-3 AF, Tab 12 at 4. However, she described the GDASH and the Senior Advisor as insisting that the appellant’s actions were incorrect and contrary to law. HT at 335-36 (testimony of the third-level supervisor); I-3 AF, Tab 12 at 4. ¶31 The Senior Advisor to the GDASH, who testified that she first raised the idea of terminating the appellant in the aforementioned meeting, indicated that she had many years of experience within the agency but no experience working with OMHP. HT at 274, 276, 279, 284-85 (testimony of the Senior Advisor). Nevertheless, she concluded that the appellant should be terminated based on the Oregon complaint alone, without additional investigation or information, including whether the appellant had simply followed existing policy and instructions from her chain of command. Id. at 275-76, 279-82, 291-92 (testimony of the Senior Advisor). The Senior Advisor disputed the third-level supervisor’s meeting notes and testimony, asserting that the third-level supervisor did not disclose that the appellant’s chain of command approved of the appellant’s conduct. Compare id. at 290-91, 298-302, with HT at 335-36 (testimony of the third-level supervisor); IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. She instead described the third-level supervisor as a passive participant in the meeting who essentially agreed to carry out the termination without explanation or objection. HT at 302, 304-06 (testimony of the Senior Advisor). Nonetheless, the Senior Advisor suggested that the circumstances of the termination were somewhat unusual because a first- or second-level supervisor 15 would ordinarily be involved, but she indicated that it was not required. HT at 312-14, 323 (testimony of the Senior Advisor). ¶32 The GDASH indicated that she was not an expert in the field and she had a limited understanding of OMHP policy. HT at 212-15 (testimony of the GDASH). She also acknowledged that the appellant’s second-level supervisor had broad discretion to set OMHP policy. Id. at 222. However, the GDASH could not recall the second-level supervisor’s memorandum defending the appellant’s actions, which was addressed to the GDASH and assured her that the appellant had acted appropriately. Id. at 179-80; IAF, Tab 6 at 31-32. Similarly, the GDASH could not recall pertinent details of the termination meeting with the appellant’s third-level supervisor and the Senior Advisor, including whether there was a discussion about the second-level supervisor’s defense of the appellant. Compare HT at 179-80, 195-97 (testimony of the GDASH), with IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. The GDASH did, however, recall coming to the conclusion that the appellant’s actions were grounds for dismissal. HT at 185-91, 195-99 (testimony of the GDASH). The GDASH indicated that she came to this conclusion after reviewing the Oregon complaint and consulting with others, such as the appellant’s third-level supervisor, her Senior Advisor, and the Acting Associate General Counsel. Id. at 186-87, 214-15. ¶33 The Acting Associate General Counsel attended a meeting (different than the one discussed above) with the Senior Advisor and the appellant’s third-level supervisor to discuss the Oregon complaint. I-3 AF, Tab 12 at 4; HT at 324 (testimony of the Senior Advisor). During the hearing, this Acting Associate General Counsel testified that, although her office was the program counsel for OMHP, OMHP did not regularly seek their counsel during the relevant time period. HT at 394-95, 406-09 (testimony of the Acting Associate General Counsel). As a result, OMHP tended to take actions that she was late to learn about, and she found many of those actions concerning. Id. at 405-09. 16 She testified that when the Oregon complaint was brought to her attention, she was again surprised and concerned. Id. at 396-401. However, to the extent that her concern involved the appellant, it largely centered on what the appellant might have shared during a conference call referenced in the Oregon complaint. Id. at 401-05, 438-39. She described this unknown as warranting follow-up to determine whether the appellant’s information sharing was “exceedingly bad” versus something that creates “an appearance of impropriety” and “does not appear to be consistent with what [the agency] should be releasing.” Id. at 439. Yet, the Acting Associate General Counsel did not know whether any follow-up actually occurred. Id. at 427-28, 439-40. She also acknowledged that she did not know whether the appellant’s information sharing was consistent with existing OMHP policy or her supervisor’s instructions. Id. at 413, 427-30, 435-36, 438-39. ¶34 Approximately 1 week after the meetings discussed above, without any further investigation or inquiry, the agency terminated the appellant’s appointment. Compare I-3 AF, Tab 12 at 4-5 (emails indicating that the termination meetings occurred on December 11, 2017), with IAF, Tab 1 at 9-10 (December 19, 2017 termination notice), and HT at 291-93 (testimony of the Senior Advisor). Although the GDASH, the Senior Advisor, and the Acting Associate General Counsel all testified that they did not realize the appellant’s second-level supervisor had authorized the appellant’s information sharing, they nevertheless indicated that the appellant’s termination remained warranted because the appellant should have known not to follow those instructions. HT at 209 (testimony of the GDASH), 281-82, 293-94 (testimony of the Senior Advisor), 414-17 (testimony of the Associate General Counsel). The administrative judge disagreed, finding no persuasive support for that conclusion. ID at 44 n.68. ¶35 Unlike his determination that the appellant, her first-level supervisor, and her second-level supervisor were credible witnesses, the administrative judge 17 expressed varying degrees of reservation concerning the credibility of those involved in the appellant’s termination. He found the Acting Associate General Counsel’s testimony to be largely credible, though hyperbolic at times. ID at 35 n.58, 38 n.63. He found the appellant’s third-level supervisor to be somewhat credible but concluded that she colored her testimony to try to justify the appellant’s termination and her involvement in the same. ID at 34 n.56. The administrative judge found that the Senior Advisor and the GDASH were not credible. ID at 26 n.43, 29-30 n.47. He determined that the Senior Advisor’s memory was foggy regarding a number of relevant facts and that the justifications she offered based on her own experience to support her conclusion that the appellant had engaged in misconduct were “somewhat misleading and unsound.” ID at 29-30 n.47. He also made demeanor-based credibility findings regarding the GDASH. ID at 26 n.43. In reaching these conclusions, the administrative judge appropriately considered the Hillen factors and relied on his observations of the witnesses’ demeanor. Accordingly, we defer to his credibility findings. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301; Hillen, 35 M.S.P.R. at 458. ¶36 On review, the agency argues that the appellant’s termination was warranted and that the administrative judge erred by concluding otherwise. PFR File, Tab 1 at 6-7, 14-15. The agency notes that the appellant’s first-level supervisor5 indicated that Oregon’s threat to withdraw from its partnership with the agency was unusual. Id. at 6 (citing HT at 244, 255-56 (testimony of the first-level supervisor)). However, the testimony that the agency references merely describes Oregon’s threat to withdraw from its partnership with the agency as unusual; it does not suggest that the appellant acted unusually or inappropriately. ¶37 The agency also recounts how the Acting Associate General Counsel testified that the sharing of information described in the Oregon complaint was 5 In making this argument, the agency described this individual as the appellant’s second-level supervisor. PFR File, Tab 1 at 6. However, upon further review, it appears that the agency intended to refer to the appellant’s first-level supervisor, not her second-level supervisor, given the testimony referenced. 18 both unusual and something the agency should not do.6 PFR File, Tab 1 at 6-7, 14-15 (citing HT at 395-96, 398, 429 (testimony of the Acting Associate General Counsel)). But again, this same official also indicated that she was not aware of any specific prohibition against the appellant’s information sharing and she did not know whether OMHP policy permitted the same; she instead expressed her opinion that OMHP policies and the appellant’s chain of command should not have authorized the appellant’s information sharing. HT at 428-30, 435-38 (testimony of the Acting Associate General Counsel). In other words, the Acting Associate General Counsel expressed disagreement with the policies and decisions of the OMHP Administrator, another attorney who had acted within her designated authority. Moreover, as previously mentioned, the Acting Associate General Counsel was most concerned with what the appellant may have shared during a conversation referenced in the Oregon complaint, yet the agency failed to conduct any substantive follow-up about the same. Id. at 439. ¶38 The agency next argues that the appellant’s sharing of information regarding Oregon was not comparable to how OMHP handled the situation with Michigan because only Oregon responded by threatening to withdraw from their partnership. PFR File, Tab 1 at 7 (citing HT at 151-52 (testimony of the second-level supervisor), 257 (testimony of the first-level supervisor)). However, we are not persuaded that the different reactions from these two state partners are particularly relevant. What is most relevant is evidence that OMHP handled these state partners similarly. ¶39 In sum, the evidence of record supports a finding that the appellant acted in accordance with past practices by OMHP, existing OMHP policy, and the instructions of her second-level supervisor, the Administrator of OMHP. Nevertheless, roughly 3 months after the Oregon complaint, officials who lacked or ignored those facts convened to abruptly terminate the appellant’s 6 The agency’s petition for review states that this individual found the appellant’s information sharing “very usual,” but it is apparent that the agency intended to state that she found the information sharing unusual. PFR File, Tab 1 at 6. 19 appointment, without any investigation and without consulting the appellant’s first- or second-level supervisors. The GDASH was responsible for the appellant’s termination. ¶40 As the administrative judge discussed, there is some conflicting evidence regarding the degree to which the GDASH—the only political appointee involved in this matter—was responsible for the appellant’s termination.7 ID at 24-25, 31-33 & n.51, 56. Again, the appellant’s second-level supervisor responded to the Oregon complaint by issuing an internal memorandum to the appellant’s third-level supervisor and the GDASH, defending the appellant’s actions and assuring them that the appellant had not shared any confidential or sensitive information. IAF, Tab 6 at 31-32. The third-level supervisor testified that she believed this explanation. HT at 332-33, 335 (testimony of the third-level supervisor). However, she was reportedly convinced otherwise by the GDASH, her Senior Advisor, and the Acting Associate General Counsel. E.g., I-3 AF, Tab 12 at 4; HT at 276-79 (testimony of the Senior Advisor), 335-39 (testimony of third-level supervisor), 412-15 (testimony of the Acting Associate General Counsel). The third-level supervisor initially indicated that she made the termination decision herself but later testified that she was instructed to terminate the appellant’s appointment during a meeting with the GDASH, the Senior Advisor, and an Employee Labor Relations Specialist. HT at 343-44, 389-91 (testimony of the third-level supervisor). ¶41 The Senior Advisor characterized the third-level supervisor as a passive participant when summoned to the meeting to discuss the appellant’s termination. HT at 302, 304-06 (testimony of the Senior Advisor). She also indicated that she, herself, first raised the idea of termination. Id. at 276, 279. The GDASH denied directing the third-level supervisor to terminate the appellant’s appointment but 7 Unlike the GDASH, who was a Republican political appointee, the political affiliations or preferences of others involved in the appellant’s termination are not apparent based on the record. 20 acknowledged that she consented to the action, was accountable for it, and was happy to take responsibility for it. HT at 188-91 (testimony of the GDASH). ¶42 After reviewing these accounts, the administrative judge concluded that the GDASH, in consultation with the Senior Advisor and an Employee Labor Relations Specialist, was the agency official who made the termination decision and directed the third-level supervisor to carry it out. ID at 38. He noted that others were involved, but the GDASH was the only official with the authority to direct the third-level supervisor to act. ID at 38 n.64. As mentioned above, he also found that the third-level supervisor colored her testimony in an attempt to justify the GDASH’s directive, notwithstanding her own concerns about the legitimacy and abnormality of the termination. ID at 33 n.56. ¶43 On review, the agency does not dispute the GDASH’s responsibility over the termination, and we discern no reason to disturb the administrative judge’s conclusion on the point. The GDASH called a meeting with her subordinate—the third-level supervisor—for the purpose of recommending that she effectuate the appellant’s probationary termination. The third-level supervisor abruptly did so, just days later, in the unusual manner described above. The administrative judge correctly found that the GDASH’s testimony denying that she knew of the appellant’s political affiliation was not credible. ¶44 It is undisputed that the appellant has extensive personal and professional ties to the Democratic Party, which were included in her resume and discussed during an office-wide introduction on her first day of work. I-3 AF, Tab 7 at 24-25; HT at 10-15 (testimony of the appellant), 111-12 (testimony of the second-level supervisor). It is also undisputed that, after her appointment, the head of an industry group, MHARR, sent at least one written complaint to the agency about the political leanings of the appellant. IAF, Tab 6 at 15-17; I-3 AF, Tab 9 at 98-99; HT at 112-13, 240-43 (testimony of the second-level supervisor). 21 ¶45 The appellant’s first-level supervisor testified that she knew the appellant previously held a political appointment. I-3 AF, Tab 7 at 24-25; HT at 228 (testimony of the first-level supervisor). Her second-level supervisor testified that the appellant gave a full history of her background, including her political affiliation with the Democratic Party, during an office-wide meet-and-greet event on the appellant’s first day of work at the agency. HT at 111-12 (testimony of the second-level supervisor). ¶46 In contrast, the officials involved in the termination all denied knowing of the appellant’s political affiliation and indicated that they could not recall seeing anything that would have revealed her political affiliation. HT at 210-12 (testimony of the GDASH), 284 (testimony of the Senior Advisor), 372 (testimony of the third-level supervisor), 423 (testimony of the Acting Associate General Counsel). Despite some indication that the third-level supervisor may have been involved in the office-wide introduction where the appellant discussed her background, the third-level supervisor said she did not recall the meeting. HT at 111-12 (testimony of the second-level supervisor), 228-30 (testimony of the first-level supervisor), 328 (testimony of the third-level supervisor). She also could not recall any MHARR complaint targeting the appellant but acknowledged seeing complaint letters from MHARR, including some “attacking” the appellant’s second-level supervisor. HT at 328-30 (testimony of the third-level supervisor). ¶47 Like the third-level supervisor, the Acting Associate General Counsel acknowledged seeing MHARR complaints targeting the appellant’s second-level supervisor but could not recall whether any targeted the appellant. HT at 423-26 (testimony of the Acting Associate General Counsel). Generally, she testified that the MHARR complaints against the second-level supervisor were well known and that she “would be shocked” if the GDASH was not aware of them. Id. at 426-27. The Senior Advisor could not recall whether she had seen any letters from MHARR. HT at 287 (testimony of the Senior Advisor). 22 ¶48 The GDASH testified that she was familiar with MHARR sending many letters to the agency, and she also acknowledged having meetings with the head of MHARR.8 HT at 176-78, 202-03, 218-19 (testimony of the GDASH). Yet, she indicated that she could not recall any specific MHARR complaint about the appellant, provided no details about her meetings with the head of MHARR, and denied knowing anything about the appellant’s political affiliation. Id. at 211-12, 218-19, 221-22. The administrative judge did not find this testimony credible, instead concluding that the GDASH knew of the appellant’s political affiliation during the relevant period. ID at 26 n.43, 40-41. Specifically, he found that her testimony that she did not recall any facts concerning her interactions with the head of MHARR or the substance of his numerous letters to “stretch the bounds of credulity.” ID at 41. He reached this conclusion based upon numerous factors, including the GDASH’s demeanor and the inherent improbability of her testimony because MHARR’s complaints were so well known, frequent, and likely to be raised during the meetings between the GDASH and the head of MHARR. ID at 26 n.43, 40-41. ¶49 On review, the agency argues that the administrative judge erred in finding that the GDASH was aware of the appellant’s political affiliation. PFR File, Tab 1 at 11-14. The agency asserts that there is no evidence to prove that the GDASH reviewed the appellant’s resume, that she was present during the meet-and-greet event in which the appellant discussed her background, or that she reviewed any specific MHARR letter complaining about the appellant’s politics. Id. ¶50 We are not persuaded by the agency’s arguments. There is ample evidence that the head of MHARR was quite focused on the politics of the appellant and her second-level supervisor—so much so that he regularly lodged complaints about them that were well known and widely distributed. HT at 18-19 (testimony 8 It is unclear whether any other officials were present at the meetings between the GDASH and the head of MHARR. The GDASH’s Senior Advisor testified that she could not recall any such meetings. HT at 287 (testimony of the Senior Advisor). 23 of the appellant), 156-58 (testimony of the second-level supervisor), 240-43 (testimony of the first-level supervisor), 329-31 (testimony of the third-level supervisor), 449-51 (testimony of the Acting Associate General Counsel). The agency has not articulated a sufficiently sound reason for overturning the administrative judge’s determination that it is improbable that the GDASH was unaware of the appellant’s political affiliation, either from her review of MHARR’s correspondence or from her direct meetings with the head of MHARR. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301. The circumstances of the second-level supervisor’s reassignment are relevant to this appeal. ¶51 The record shows that, the day before the appellant’s probationary termination, the GDASH reassigned the appellant’s second-level supervisor to an administrative position. The agency argued below that the second-level supervisor’s reassignment is not relevant to the instant appeal. I-2 AF, Tab 2 at 26-27. However, we agree with the administrative judge that it is both relevant and material. ID at 47 n.73. Evidence of similarly situated individuals whom the employer treated similarly is commonly known as “me too” evidence, and its relevance and admissibility “depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 388 (2008); see Didinger v. Allsteel, Inc., 853 F.3d 414, 424 (8th Cir. 2017). ¶52 In this case, both the appellant and her second-level supervisor were targets of MHARR’s partisan political complaints, the official who decided to reassign the second-level supervisor was the same official who decided to terminate the appellant’s appointment, these personnel actions were taken almost simultaneously, neither personnel action was subject to the kind of deliberation that might normally be expected, and, as with the termination, the agency’s justification for the reassignment was weak at best. ID at 25-26 & n.43, 47-48; HT at 109, 131, 156 (testimony of the second-level supervisor), 181-84 24 (testimony of the GDASH), 316, 323 (testimony of the Senior Advisor), 387-88 (testimony of the third-level supervisor). Furthermore, the evidence closely correlates with and supports the appellant’s theory of the case, i.e., the GDASH acquiesced to pressure from MHARR to get rid of certain OMHP officials, including the appellant, based on their political affiliation. On petition for review, the agency argues that, for various reasons, the second-level supervisor’s reassignment does not suggest partisan political discrimination against the appellant. PFR File, Tab 1 at 8-10. We have considered the agency’s arguments, but the agency has not identified any facts or circumstances that would alter our assessment of the reassignment and how it relates to the appellant’s case or our overall conclusion that the appellant’s termination was based on partisan political reasons. ¶53 To conclude, the agency has presented no basis for disturbing the administrative judge’s findings of fact. We therefore affirm the initial decision. The evidence supports the conclusion that the appellant’s termination was not justified, an innocent mistake, or otherwise excusable. Instead, the record before us indicates that, more likely than not, the termination was impermissibly based on partisan political reasons. The appellant proved, by preponderant evidence, that partisan political reasons were a but-for cause of her probationary termination. Accordingly, the probationary termination is reversed. ORDER ¶54 We ORDER the agency to cancel the probationary termination and to retroactively restore the appellant effective December 19, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶55 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this 25 decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶56 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶57 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶58 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. ¶59 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). 26 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. NOTICE OF APPEAL RIGHTS 9 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 9 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. 27 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 28 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 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 29 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 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.10 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 10 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. 30 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Gina K. Grippando Clerk of the Board Washington, D.C. DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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). 2 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/Starkey_Lois_A_DC-315H-18-0258-I-4_Opinion_and_Order.pdf
03-20-2024	2024 MSPB 5	Vera Davis-Clewis	https://www.mspb.gov/decisions/precedential/Davis-Clewis_Vera_DA-0752-23-0162-I-1_Opinion_and_Order.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 5 Docket No. DA-0752-23-0162-I-1 Vera Davis-Clewis, Appellant, v. Department of Veterans Affairs, Agency. March 20, 2024 Lawrence G. Widem , Esquire, West Hartford, Connecticut, for the appellant. Mackenzie Novak and Daniel Morvant , Denver, Colorado, for the agency. Brandi Powell , New Orleans, Louisiana, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 This case is before the Board on interlocutory appeal from the June 27, 2023 Order of the administrative judge staying the proceedings and certifying for Board review her finding that the Board lacks the authority to address the appellant’s constitutional challenge regarding statutory restrictions on the removal of Board administrative judges. Initial Appeal File (IAF), Tab 48. For the reasons set forth below, we AFFIRM the administrative judge’s ruling, VACATE her order staying the proceedings, and RETURN the appeal to the regional office for further adjudication consistent with this Opinion and Order. 2 BACKGROUND ¶2 The appellant filed this appeal in January 2023. IAF, Tab 1. In response to the administrative judge’s jurisdictional order, IAF, Tab 15, the appellant submitted a pleading arguing, in part, that the administrative judge had not been properly appointed under the Appointments Clause of the U.S. Constitution, IAF, Tab 22 at 4-5 (citing U.S. Const. art. II, § 2, cl. 2). The administrative judge construed the appellant’s argument regarding her appointment as a motion to disqualify her under 5 C.F.R. § 1201.42(b). IAF, Tab 30. The administrative judge denied the motion to disqualify her, finding that the Board had ratified her appointment by order dated March 4, 2022. IAF, Tabs 29-30. The appellant moved to certify the Appointments Clause issue for interlocutory review, IAF, Tab 32, but in May 2023, the administrative judge issued an order denying that motion, IAF, Tab 33. ¶3 A few weeks later, the appellant filed another motion for certification of an interlocutory appeal. IAF, Tab 41. In her second motion for certification, the appellant raised issues regarding the timeliness of the appeal, the Board’s jurisdiction over the action at issue, and several procedural matters. Id. at 5-14. She also argued that the Board’s administrative judges cannot properly adjudicate administrative cases because they are not subject to removal by the President at will and without cause. Id. at 14. ¶4 The administrative judge issued an order finding that the Board lacks the authority to address the appellant’s constitutional challenge to its administrative judges’ removal protections. IAF, Tab 48 at 1-2. She certified that ruling for interlocutory review.1 Id. at 2. The administrative judge acknowledged the other arguments the appellant raised in her second motion for certification but found 1 The administrative judge indicated that she was certifying her ruling for interlocutory review on her own motion under 5 C.F.R. § 1201.91, rather than on the appellant’s motion, because the appellant had moved for certification of an interlocutory appeal before the administrative judge had ruled on the removal protections issue. IAF, Tab 48 at 2. 3 that those matters did not warrant certification of an interlocutory appeal. Id. at 2 n.. While this matter was pending before the Board on interlocutory review, the appellant filed a Motion to Amend the Judgment, in which she challenged the administrative judge’s failure to certify for interlocutory review whether the Board’s ratification of the appointments of its administrative judges complies with the Appointments Clause of the U.S. Constitution. IAF, Tab 49 at 4-5. ANALYSIS ¶5 An administrative judge will certify a ruling for review on interlocutory appeal only if the record shows that: (a) the ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and (b) an immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public. 5 C.F.R. § 1201.92. We find that the administrative judge properly applied these criteria in certifying her finding that the Board lacks the authority to address the appellant’s constitutional challenge regarding statutory restrictions on the removal of Board administrative judges.2 2 In her Motion to Amend the Judgment, the appellant argues that the administrative judge should have certified the Appointments Clause issue for interlocutory review. IAF, Tab 49 at 5-7. To the extent the appellant is requesting review of the administrative judge’s decision not to certify this issue, her motion is denied. Issues not certified are beyond the scope of our review at this time. Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 13 (2014); 5 C.F.R. § 1201.91 (reflecting that the Board will decide an issue on interlocutory appeal if it has been certified by the administrative judge). A party may not obtain independent review of the denial of interlocutory certification; instead, she may raise the matter at issue in a petition for review filed after the initial decision is issued. Simonelli v. Department of Housing and Urban Development, 47 M.S.P.R. 452, 455 (1991); 5 C.F.R. § 1201.93(b). We do not address the administrative judge’s denial of the appellant’s request for interlocutory review of jurisdictional, timeliness, and procedural issues for the same reason. IAF, Tab 41 at 5-14, Tab 48 at 2 n.. The issues of the Board’s jurisdiction over the appellant’s alleged involuntary demotion and the timeliness of the appeal are as yet unresolved, and the regional office should address those issues during the ordinary course of the appeal. IAF, Tab 36 at 1-4. 4 ¶6 The agency argued that certifying an interlocutory appeal would delay adjudication of this case. IAF, Tab 47 at 5. The Board will not reverse an administrative judge’s decision regarding certification absent an abuse of discretion. Ryan v. Department of the Air Force, 117 M.S.P.R. 362, ¶ 5 n.1 (2012). Because the parties and the administrative judge need to know whether the administrative judge can proceed to adjudicate this case, we agree that certification was proper. See Van Lancker v. Department of Justice, 119 M.S.P.R. 514, ¶ 5 (2013) (finding an administrative judge appropriately certified her ruling concerning whether the Board had jurisdiction over an appellant’s whistleblower reprisal claim because the parties and the administrative judge needed to know the scope of discovery and evidence to be presented at the hearing). Further, although the administrative judge’s certification ruling may have delayed the case in the short term, it is likely to expedite case processing overall. Here, the appellant raised constitutional challenges to the administrative judge’s authority in three separate motions. IAF, Tab 22 at 4-5, Tab 32, Tab 41 at 14. The administrative judge issued three orders addressing those challenges, including the order certifying the issue for interlocutory review that is before us now. IAF, Tabs 30, 33, 48. Further, the agency responded opposing certification, IAF, Tab 47, and the appellant filed a pleading seeking to expand the scope of the issues certified, IAF, Tab 49. Our decision today will allow the parties and the Board’s regional office to adjudicate the remaining issues in this appeal without expending additional time and resources on the constitutional issues raised by the appellant. Further, it will provide guidance to parties in pending cases involving the same or similar constitutional challenges. See King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 7 (2013) (considering as a factor favoring certification of an issue for interlocutory review that it would materially advance the completion of other pending appeals involving the same issue). ¶7 The appellant argues that the removal protections of the Board’s administrative judges violate the Constitution because the administrative judges 5 “do not serve at the pleasure of the President” and “[t]he President cannot remove any of them at will and without cause.” IAF, Tab 41 at 14. She cites Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), and Jarkesy v. Securities and Exchange Commission, 34 F.4th 446 (5th Cir. 2022), cert. granted, 143 S.Ct. 2688 (2023), in support of her position. ¶8 In Free Enterprise Fund, the Supreme Court held unconstitutional a statutory framework under which members of the Public Company Accounting Oversight Board (PCAOB) could be removed only in very limited circumstances by the Securities and Exchange Commission (SEC), whose Commissioners could only be removed by the President for good cause. 561 U.S. at 486-87, 495-98. In Jarkesy, the U.S. Court of Appeals for the Fifth Circuit applied Free Enterprise Fund in holding that SEC administrative law judges are improperly insulated from Presidential control by two layers of for-cause removal protection. Jarkesy, 34 F.4th at 463-65. ¶9 Both Free Enterprise Fund and Jarkesy involved constitutional challenges to statutory removal protections. In challenging the constitutionality of removal protections for the Board’s administrative judges, the appellant is asking the Board to resolve a similar challenge. The members of the Board “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1202(d). “[T]he Board’s administrative judges can only be removed ‘for such cause as will promote the efficiency of the service.’” McIntosh v. Department of Defense, 53 F.4th 630, 640 (Fed. Cir. 2022) (quoting 5 U.S.C. § 7513(a)). The removal protections afforded to both members of the Board and its administrative judges derive from the Board’s organic statute, the Civil Service Reform Act of 1978, Pub. L. No. 95-454, §§ 202(a), 204(a), 92 Stat. 1111, 1122, 1136. Thus, the appellant is asking the Board to invalidate one or more provisions of the statute that created it. However, the Board has held that it lacks the authority to adjudicate the constitutionality of statutes. Special Counsel v. Jackson, 119 M.S.P.R. 175, ¶ 10 (2013); see Carr v. Saul, 593 U.S. 83, 92 6 (2021) (concluding that “agency adjudications are generally ill suited . . . to entertain constitutional challenges to statutes” (citing, among other cases, Free Enterprise Fund, 561 U.S. at 491 (determining that the petitioners’ claims related to the constitutionality of the statutory removal protections for the PCOAB members was beyond the “competence and expertise” of the SEC))). We therefore agree with the administrative judge that the Board lacks the authority to address the appellant’s constitutional challenge regarding removal protections.3 3 The appellant argues that because she was required to raise her constitutional challenges before the administrative judge to preserve them for review, she “is entitled to a Board determination” on those issues. IAF, Tab 49 at 6. Board regulations generally require that a party first raise issues, including constitutional challenges to an administrative judge’s authority to decide a case, before the administrative judge prior to raising the same issues before the full Board on petition for review. McClenning v. Department of the Army, 2022 MSPB 3, ¶¶ 11-15; 5 C.F.R. §§ 1201.59(c), 1201.115(d). These regulations do not entitle appellants to Board findings on the constitutionality of Federal statutes. The appellant’s arguments do not convince us otherwise. 7 ORDER ¶10 Accordingly, we vacate the order that stayed the proceedings of this matter, and we return the appeal to the regional office for further adjudication consistent with this Order. Gina K. Grippando Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Davis-Clewis_Vera_DA-0752-23-0162-I-1_Opinion_and_Order.pdf
03-19-2024	2024 MSPB 4	Abenayaa Lane	https://www.mspb.gov/decisions/precedential/Lane_Abenayaa_DE-0752-23-0001-I-1_Opinion_and_Order_Remand.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 4 Docket No. DE-0752-23-0001-I-1 Abenayaa Lane, Appellant, v. Department of the Army, Agency. March 19, 2024 Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Beverly G. Schneider , Fort Harrison, Montana, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal for failure to state a claim upon which relief could be granted. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Denver Field Office for further adjudication in accordance with this Opinion and Order. BACKGROUND ¶2 The appellant was employed by the Montana National Guard in Helena, Montana in the excepted-service position of Military and Family Readiness Specialist. Initial Appeal File (IAF), Tab 16 at 9-10. On September 23, 2021, the 2 agency issued a decision removing her from her position. IAF, Tab 5 at 106-10. That same day, the parties entered into a last chance settlement agreement (LCSA), which held the removal action in abeyance. Id. at 55-57. Nearly 1 year later, on September 16, 2022, the agency reinstated the removal, alleging that the appellant engaged in misconduct, thereby violating the terms of the LCSA. Id. at 22-23. The removal was effective September 24, 2022. Id. at 20. ¶3 The appellant timely appealed her removal to the Board. IAF, Tab 1. Following the submission of briefs regarding the Board’s jurisdiction as it relates to the parties’ LCSA, IAF, Tab 2 at 2-3, Tabs 4, 6-7, the administrative judge found that the appellant made nonfrivolous allegations of Board jurisdiction and was, thus, entitled to a hearing on the issue of jurisdiction, IAF, Tab 9. Before that hearing was held, however, the agency filed a motion to dismiss the appeal for failure to state a claim upon which relief could be granted. IAF, Tab 13. In its motion, the agency argued that the Board only has authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or employee” to comply with corrective action and that the Montana Adjutant General, the senior official in the Montana National Guard, is not a Federal employee, nor is the Montana National Guard a Federal agency. Id. at 4-7. Thus, the agency argued that the Board lacks the authority to order corrective action that is enforceable against the Montana National Guard. Id. In response, the appellant asserted that she is a Title 5 employee of the Department of the Army and that part of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2017 NDAA), amended applicable law to provide for the enforcement of a Board decision involving a state National Guard. IAF, Tab 14. ¶4 Before holding the hearing on the issue of jurisdiction as it relates to the parties’ LCSA, the administrative judge issued an initial decision finding that the Board lacked the authority to order effective relief, pursuant to Singleton v. Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001). IAF, Tab 22, Initial Decision (ID) at 3-7. He acknowledged that the 2017 NDAA amended relevant 3 law to require the National Guard of the relevant jurisdiction to “defend any administrative complaint, grievance, claim, or action,” to “promptly implement all aspects of any final administrative order, judgement, or decision,” and to pay for any settlement, judgment, or costs arising from an action from appropriate funds allocated to it. ID at 5-6 (quoting 10 U.S.C. § 10508, as amended by the 2017 NDAA). Nonetheless, he concluded that it did not amend relevant law to designate state National Guards as Federal agencies or adjutants general as Federal employees and that the Board’s ability to order relief was still limited to Federal agencies and Federal employees, as set forth in 5 U.S.C. § 1204(a)(2). ID at 6. Accordingly, he found that he could not “order effective relief in this matter,” and he dismissed the appeal for failure to state a claim upon which relief could be granted. Id. ¶5 The appellant has filed a petition for review of the initial decision arguing that the administrative judge misinterpreted the 2017 NDAA amendments and, therefore, erred in finding that the Board lacked the authority to grant relief. Petition for Review (PFR) File, Tab 1. The agency has filed a response.1 PFR File, Tab 3. 1 After the close of record in this matter, the appellant filed two separate motions to present supplemental authority and corresponding argument based on the U.S. Supreme Court’s decision in Ohio Adjutant General’s Department v. Federal Labor Relations Authority, 598 U.S. 449 (2023), and the Board’s recent Opinion and Order in Erdel v. Department of the Army, 2023 MSPB 27. PFR File, Tabs 4, 6. The Board generally does not permit an additional pleading after the close of the record on review unless the party demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(5) (requiring that a motion for leave to file an additional pleading on review “describe the nature of and need for the pleading”). We already addressed the Supreme Court’s decision in the recent Opinion and Order in Erdel, 2023 MSPB 27, ¶ 14 & n.7, which was issued after the appellant filed his first motion. Additionally, the application of Erdel to this appeal is discussed in this Opinion and Order. Because there is no need for additional argument on either case at this stage of the proceedings, we deny the appellant’s motions. 4 ANALYSIS The Board has the authority to grant relief in this appeal. ¶6 The Board has the authority to “order any Federal agency or employee to comply with any order or decision issued by the Board” in matters falling within its jurisdiction. 5 U.S.C. § 1204(a)(2). In Singleton, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) addressed the “hybrid” state-Federal character of the National Guard and held that the Board could not order an adjutant general to provide relief to a National Guard technician employee because the adjutant general is not a Federal employee, and a state National Guard, even if an agency, “can act only through its adjutant general.” Singleton, 244 F.3d at 1333, 1336-37. As noted above, the administrative judge applied the holding in Singleton and determined that neither the 2017 NDAA nor the appellant’s status as a Title 5 civilian employee compelled a different outcome. ID at 5-6. We disagree. ¶7 The holding in Singleton that the Board lacks the authority to issue enforceable orders to remedy improper employment actions taken against National Guard dual-status technicians has been abrogated by 32 U.S.C. § 709. Erdel v. Department of the Army, 2023 MSPB 27, ¶¶ 11-16. The appellant, however, was not a dual-status technician appointed pursuant to 32 U.S.C. § 709. Rather, the agency appointed the appellant under the authority of section 932 of the 2017 NDAA. IAF, Tab 16 at 9. Therefore, the Federal Circuit’s decision in Singleton and our decision in Erdel are not controlling here. ¶8 Section 932, the appellant’s appointment authority, amended 10 U.S.C. § 10508 to authorize the Chief of the National Guard Bureau to employ individuals within the National Guard Bureau and the National Guard of each state and territory under certain listed sections of Title 5 or Title 32. 130 Stat. at 2363 (codified as amended at 10 U.S.C. § 10508(b)(1)). The National Guard Bureau is a component within the Department of Defense (DOD) and is a “joint activity of the [DOD].” 10 U.S.C. § 10501. The Chief of the National Guard 5 Bureau is not an employee of a state National Guard or an adjutant general. Rather, he is a military officer appointed by and serving at the will of the President, and “a member of the Joint Chiefs of Staff.” 10 U.S.C. § 10502(a)-(b), (d). Section 932 of the 2017 NDAA authorizes the Chief of the National Guard Bureau to designate adjutants general to appoint and employ National Guard employees. 130 Stat. at 2363 (codified at 10 U.S.C. § 10508(b)(2)). In exercising this delegated authority, the adjutant general for each jurisdiction is tasked with taking and defending any “adverse actions under [T]itle 5” against such employees. Id. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)). Under this arrangement, a state National Guard acts through the authority delegated to it by the National Guard Bureau and its Chief, which are integrated into the DOD. ¶9 Turning to administrative actions taken by a state National Guard against employees, the amended statute expressly provides that an employee appointed under 10 U.S.C. § 10508(b), such as the appellant, may file “an administrative complaint, grievance, claim or action” challenging a Title 5 adverse action. 130 Stat. at 2363 (codified at 10 U.S.C. § 10508(b)(3)). It would be implausible for Congress to have specifically provided for an administrative remedy for adverse actions under Title 5, but for there to be no relief available from the Board, which has jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB 27, ¶ 11 (observing that it would be “beyond strange” for Congress to have specifically amended two statutory provisions in different titles of the U.S. Code to provide for Board appeal rights to National Guard technicians, but for there to be no relief available from the Board). Further, in the 2017 NDAA, Congress provided that the applicable adjutant general and National Guard “shall promptly implement all aspects of any final administrative order, judgment, or decision” in connection with an administrative proceeding challenging its adverse action against an individual hired under section 10508(b). 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(B)). This language effectively authorizes the Board to enforce orders against the various National Guards. 6 ¶10 Moreover, the 2017 NDAA provides that any “settlement, judgment, or costs . . . shall be paid from appropriated funds allocated to the National Guard of the jurisdiction concerned,” thereby eliminating any concern that state funds will be burdened. 130 Stat. at 2364 (codified at 10 U.S.C. § 10508(b)(3)(E)). In fact, if an adverse action is challenged in “any court . . . , the United States shall be the sole defendant or respondent,” and the U.S. Attorney General “shall defend” it. 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(C)-(D)). ¶11 Based on the foregoing, we conclude that the Board may order relief in this appeal. We vacate the initial decision which came to the opposite conclusion. ORDER ¶12 For the reasons discussed above, we remand this case to the Denver Field Office for further adjudication in accordance with this Opinion and Order. On remand, the administrative judge should hold the jurisdictional hearing to which he initially found the appellant was entitled to determine whether the Board has jurisdiction over the appeal in light of the parties’ LCSA. Gina K. Grippando Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Lane_Abenayaa_DE-0752-23-0001-I-1_Opinion_and_Order_Remand.pdf
01-25-2024	2024 MSPB 3	Carmencita Wilson	https://www.mspb.gov/decisions/precedential/Wilson_CarmencitaDC-0752-20-0420-I-1_Opinion_And_Order.pdf	Small Business Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 3 Docket No. DC-0752-20-0420-I-1 Carmencita Wilson, Appellant, v. Small Business Administration, Agency. January 25, 2024 Carmencita Wilson , McDonough, Georgia, pro se. Claudine Landry , Esquire, and Kenneth M. Bledsoe , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that sustained her removal. For the reasons discussed below, we GRANT the petition for review, VACATE the initial decision, CLARIFY the burdens of proof in Title VII disparate treatment discrimination cases, and REMAND the appeal to the regional office for further adjudication in accordance with this Opinion and Order. BACKGROUND ¶2 The appellant occupied a GS-14 Supervisory Administrative Specialist position with the agency’s Office of Disaster Assistance, Administrative Services 2 Center, in Herndon, Virginia. Initial Appeal File (IAF), Tab 6 at 35. On May 21, 2019, the appellant suffered a compensable injury and began a prolonged leave of absence. Id. at 37. She had surgery on June 19, 2019, and continued to receive follow-up care. IAF, Tab 30 at 4. On September 3, 2019, the appellant’s physician cleared her to return to work with restrictions. IAF, Tab 9 at 41. ¶3 However, the appellant did not return to duty. The appellant requested a reasonable accommodation. IAF, Tab 30 at 5. She also requested various combinations of sick leave, annual leave, and leave without pay (LWOP) to cover her absences, but in each case her supervisor denied her requests, apart from requests to cover scheduled appointments. IAF, Tab 11 at 51-77, Tab 30 at 5. By the time the appellant returned to work on January 6, 2020, she had accumulated 400 hours of absence without leave (AWOL) on the following dates: September 9, 13, 23, 25-26, and 30, 2019; October 5, 7, 9, 11, 14-18, 21-25, and 28-31, 2019; November 1, 5-6, 8, 12-15, 18-20, 22, 25, and 29, 2019; December 5-6, 11, 13, 16, 26-27 and 30, 2019; and January 3, 2020. IAF, Tab 11 at 51-77, Tab 30 at 5. ¶4 On March 2, 2020, the agency removed the appellant based on charges of: (1) delay, failure, or refusal to follow the legal instruction or direction of the supervisor or other agency manager in authority; and (2) AWOL. IAF, Tab 7 at 58-61, Tab 8 at 11-19. Both charges contained nine specifications, broken down by pay period, and were based on the same dates listed above. IAF, Tab 8 at 12-18. ¶5 The appellant filed a Board appeal raising numerous affirmative defenses, including discrimination based on disability (both reasonable accommodation and disparate treatment theories), sex, and race, whistleblower reprisal, and retaliation for filing equal employment opportunity (EEO) and Office of Inspector General (OIG) complaints. IAF, Tab 1 at 3, 5, Tab 14 at 5-7. After a hearing, the administrative judge issued an initial decision sustaining the appellant’s removal. IAF, Tab 34, Initial Decision (ID). The administrative judge merged the two 3 charges into a single charge of AWOL and found that the agency met its burden on the issues of the charge, nexus, and the penalty.1 ID at 7, 12-13, 25-27. The administrative judge further found that the appellant did not prove disability discrimination, race or sex discrimination, retaliation for EEO activity, or retaliation for filing an OIG complaint and a grievance. ID at 14-25. ¶6 The appellant has filed a petition for review disputing the administrative judge’s analysis of several issues and submitting evidence concerning some of her claimed protected activity. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS This appeal is remanded for further adjudication of the charge. ¶7 The Board has generally stated that, in order to prove a charge of AWOL, an agency must show “that the appellant was absent, and that [her] absence was not authorized, or that [her] request for leave was properly denied.” E.g., Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009) (emphasis added); see Rojas v. U.S. Postal Service, 74 M.S.P.R. 544, 548 (1997), aff’d, 152 F.3d 940 (Fed. Cir. 1998) (Table). However, the Board has also cautioned that this formulation is imprecise and open to misinterpretation. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 28 n.5 (2015), overruled on other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31. On a literal reading, the use of the word “or” suggests that an agency could prove an AWOL charge merely by showing that it did not authorize an employee’s absences, even if the employee made a request for leave that the agency did not properly deny. See id. However, in a case such as this, where the employee 1 The agency initially objected to the merger of the charges, but later withdrew that objection. IAF, Tab 16 at 4. For the reasons explained by the administrative judge, we agree that merger was proper. IAF, Tab 13 at 3; see Alvarado v. Department of the Air Force, 103 M.S.P.R. 1, ¶ 18 (2006) (holding that, when two charges are based on the same facts and proof of one charge automatically constitutes proof of the other, the charges should be merged). 4 requested leave to cover her absences, an AWOL charge will be sustained only if the agency establishes that it properly denied those leave requests. Id., ¶ 28; see, e.g., Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 5 (2010) (holding that an AWOL charge resulting from the denial of sick leave will not be sustained if an appellant presents administratively acceptable evidence to show that she was incapacitated for duty during the relevant time and she had sufficient sick leave to cover her absences); Joyner v. Department of the Navy, 57 M.S.P.R. 154, 159 (1993) (holding that, when disciplinary action results because LWOP is denied and the employee is placed on AWOL, the Board will review the circumstances to determine if the denial was reasonable). ¶8 Here, the administrative judge sustained the AWOL charge solely on the grounds that “the appellant was scheduled to work, she was absent, and the appellant’s absence was not authorized.” ID at 13. She further stated that the appellant “did not seem to dispute” that the agency could prove the charge. Id. However, as discussed above, the agency must also establish that it properly denied the appellant’s requests for leave. See, e.g., Dobert v. Department of the Navy, 74 M.S.P.R. 148, 150 (1997) (holding that the Board will review an agency’s denial of a request for annual leave in connection with an AWOL charge); Benally v. Department of the Interior, 71 M.S.P.R. 541-42 (1996) (considering the expected length of the absence and its impact on the workplace in assessing an agency’s denial of annual leave). Whether the agency properly denied the appellant’s leave requests—which included requests for sick leave, annual leave, and LWOP—is a matter in dispute. To the extent the appellant contends that the denial of her leave requests was the result of a prohibited personnel practice under 5 U.S.C. § 2302(b), and thus improper, further adjudication is needed to determine the merits of the prohibited personnel practice claims for the reasons discussed below.2 Furthermore, the question of 2 In this regard, an appeal of a removal based on an AWOL charge is analogous to an appeal of a removal based on a failure to accept a direct reassignment, wherein the agency bears the burden of showing that the reassignment was for a legitimate 5 whether the agency properly denied the appellant’s leave requests may turn in part on the credibility of hearing testimony, which the administrative judge is in the best position to decide in the first instance. Accordingly, on remand, the administrative judge must make new findings on the AWOL charge. The appeal is remanded for adjudication of the appellant’s affirmative defenses. ¶9 As set forth above, the appellant raised claims of discrimination based on disability, sex, and race, reprisal for whistleblowing, and retaliation for filing EEO and OIG complaints.3 The administrative judge issued an Order and Summary of Status Conference explaining that a violation of Title VII is established if an appellant shows that discrimination or retaliation was a motivating factor in the contested personnel action, noting that the Board has addressed the differences between direct and circumstantial evidence, and ordering the parties to submit “specific evidence and argument” in support of their respective burdens. IAF, Tab 13 at 4-5. The order did not, however, set management reason. In such a case, the agency fails to prove its charge if the appellant shows that the directed reassignment constituted a prohibited personnel practice, and was therefore not based on a legitimate management reason. See Richard v. Department of Defense, 66 M.S.P.R. 146, 158-59 (1995) (remanding for a determination of whether the appellant’s evidence regarding her allegation of EEO retaliation was sufficient to cast doubts on the bona fides of the reassignment), modified on other grounds by Buckler v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 497 (1997); Umshler v. Department of the Interior, 44 M.S.P.R. 628, 629, 634 (1990) (vacating and remanding an initial decision sustaining a removal for failure to accept a directed reassignment when, among other things, the administrative judge failed to address the appellant’s assertions that his reassignment constituted a prohibited personnel practice); Craighead v. Department of Agriculture, 6 M.S.P.R. 159, 161-62 (1981) (considering the appellant’s claim of marital status discrimination in determining whether the agency-directed reassignment was based on legitimate management reasons). 3 The appellant’s September 8, 2019 email to the EEO office, in which she specifically asked to “file a formal EEO complaint” against her supervisor, constitutes protected activity under 42 U.S.C. § 2000e-16, regardless of whether the agency processed a formal EEO complaint as the appellant requested. IAF, Tab 15 at 23-24. The fact that this pro se appellant used the terms “grievance” and “complaint” interchangeably does not yield a different result. The email also shows that, contrary to the initial decision, the appellant’s contact with the EEO office was separate from the administrative grievance she filed against her supervisor. See id. at 24. 6 forth the kind of evidence required to meet those burdens. It also did not set forth the standards and burdens of proof for claims of disability discrimination and reprisal for whistleblowing or filing an OIG complaint. Id. at 3-5; see IAF, Tab 20. Although the agency explained in its response to the appellant’s submission why it believed that she did not prove her affirmative defenses, it too did not comprehensively set forth the applicable burdens and the kind of evidence required to meet those burdens. IAF, Tab 29. ¶10 The Board has required its administrative judges to apprise appellants of the applicable burdens of proving a particular affirmative defense, as well as the kind of evidence required to meet those burdens. E.g., Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 7 (2015); Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 10 (2013). Because the administrative judge did not fully inform the appellant of her burdens of proof and the means by which she could prove her affirmative defenses, the appellant did not receive a fair and just adjudication of her affirmative defenses. Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 15 (2006); see Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 24 (“When an appellant raises an affirmative defense of disparate treatment discrimination under Title VII, the administrative judge should notify her of the various standards and methods of proof, including the respective levels of relief available under each standard.”). Thus, this case must be remanded. See Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8 (2010); Miles, 102 M.S.P.R. 316, ¶¶ 15-18. On remand, the administrative judge must advise the parties of the applicable burdens of proving all of the appellant’s affirmative defenses, including the standards set forth in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30-33, which was issued after the issuance of the initial decision. The administrative judge should also provide the parties with an opportunity to present evidence and argument, hold a supplemental hearing on the appellant’s affirmative defenses to permit the parties to address the applicable standards, and 7 apply those standards in the remand initial decision.4 See Lin v. Department of the Air Force, 2023 MSPB 2, ¶ 25. The burdens of proof in Title VII disparate treatment discrimination claims are clarified. ¶11 We also take this opportunity to clarify the burdens of proof in Title VII disparate treatment discrimination claims that arise before the Board. As explained in Pridgen, 2022 MSPB 31, ¶ 20, the substantive standard for Title VII claims in the Federal sector provides that all personnel actions affecting covered employees “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16. The Board in Pridgen noted that the Supreme Court in Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020), interpreted the identical statutory language in the context of a Federal sector age discrimination claim and held that a plaintiff may prove such a claim by showing that discrimination played any part in the way a decision was made. Pridgen, 2022 MSPB 31, ¶ 21. The Board held that such a finding is the same as a finding of “motivating factor.” Id. Proof that discrimination was a motivating factor in an appealable action is a violation even if the agency would have made the same decision in the absence of the discriminatory motive. Id. Relying on Babb, the Board further held that, while an appellant who proves motivating factor and nothing more may be entitled to injunctive or other “forward-looking relief,” to obtain the full measure of relief under the statute, including status quo ante relief, compensatory damages, or other forms of relief related to the end result of an employment decision, the appellant must show that discrimination was a but-for cause of the action.5 Id., ¶ 22. Thus, there are two standards for proving 4 In connection with the appellant’s claim of disability discrimination, the administrative judge was unable to assess the sufficiency of the September 28, 2019 medical certification the appellant provided to the agency in support of her request for leave under the Family and Medical Leave Act. ID at 16. The parties did not submit that document into the record and were not advised of the need to do so. We encourage the parties to provide that document on remand. 8 Title VII disparate treatment discrimination: motivating factor and but-for causation. Methods of Proving Discrimination ¶12 An appellant may prove discrimination under either of those different standards of proof by various methods, and no one method is the exclusive path to a finding of liability. Pridgen, 2022 MSPB 31, ¶ 23. The Board in Pridgen set forth those methods, which may include: (1) direct evidence6; (2) circumstantial evidence, which may include (a) evidence of “suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn,” also known as a “convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic . . . on which an employer is forbidden to base a difference in treatment received systematically better treatment”; (c) evidence that the agency’s stated reason for its action is “unworthy of belief, a mere pretext for discrimination” (i.e., the burden-shifting standard under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination of direct and indirect evidence. Id., ¶ 24. Thus, an appellant may proceed by showing that discrimination was a motivating factor in the agency’s action or by showing that discrimination was a but-for cause of the agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 21-25. An appellant may also proceed under both standards simultaneously. See id., ¶¶ 29, 42 (directing the administrative judge to consider on remand evidence of discrimination “according to the standards set forth 5 Babb arose in the context of a claim of discrimination brought by a plaintiff in U.S. district court. 140 S. Ct. at 1171-72. The Board did not address in Pridgen whether the applicable statutes permit the Board to award such injunctive or other forward-looking relief. We need not, however, resolve that question at this time. 6 Direct evidence may be any statement by an employer that reflects directly the alleged discriminatory attitude and bears directly on the contested employment discrimination. Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 40 (2012). 9 above,” and noting that the remedies available to the appellant will vary based on the level of causation). There is no burden shifting if an appellant is only trying to prove that discrimination was a motivating factor in the appealed action ¶13 Given the “sweeping statutory language” of 42 U.S.C. § 2000e-16, id., ¶ 21, as well as the Court’s holding in Babb that a plaintiff may prove discrimination simply by showing that such discrimination played any part in the way a decision was made, there is no basis for applying shifting burdens in determining whether an appellant proved that discrimination was a motivating factor in an appealable action. In other words, the McDonnell Douglas or any other shifting-burden framework does not apply in determining whether discrimination was a motivating factor in an employment decision. See Pridgen, 2022 MSPB 31, ¶ 21 n.4 (holding that “an appellant in a motivating factor regime need not fully rebut the agency’s proffered motives as pretext”); see also Babb v. Department of Veterans Affairs, 992 F.3d 1193, 1204 (11th Cir. 2021). There is the potential for burden shifting if an appellant is trying to prove that discrimination was a but-for cause of the appealed action ¶14 Nevertheless, shifting burdens, i.e., either the agency articulating or producing a legitimate, nondiscriminatory reason for the action under McDonnell Douglas, or the agency proving that it would have taken the same action absent the discrimination, may still be used in determining but-for causation. Pridgen, 2022 MSPB 31, ¶¶ 24-25; see Ford v. DeJoy, No. 4:20-cv-00778-NAD, at 10, 2021 WL 6113657 (N.D. Ala. 2021) (“Because full relief requires a showing of but-for causation, the McDonnell Douglas frameworks . . . still apply in determining whether circumstantial evidence is sufficient to support a finding that a plaintiff is entitled to full relief under § 2000e-16(a).”). The Board noted in Pridgen, 2022 MSPB 31, ¶ 25, for example, that the McDonnell Douglas framework is a sensible, orderly way to evaluate the relevant evidence that has been introduced. Similarly, the Equal Employment Opportunity Commission 10 (EEOC) has held that the Supreme Court’s decision in Babb “does not state that the McDonnell Douglas standard does not apply to [Age Discrimination in Employment Act of 1967 (ADEA)] cases,” and the EEOC therefore has continued to apply that standard in age discrimination and Title VII disparate treatment cases. See Dortha G. v. Social Security Administration, EEOC Appeal No. 2022003175, 2022 WL 18280366, at 4 (Dec. 19, 2022); Marguerite L. v. Social Security Administration, EEOC Appeal No. 2021002765, 2022 WL 1631452, at 5 (Apr. 27, 2022). We defer to the EEOC on this matter of substantive discrimination law. See Pridgen, 2022 MSPB 31, ¶ 40. As explained below, the Board will apply the proof frameworks that the EEOC and the courts generally use to determine but-for causation in Title VII Federal sector disparate treatment discrimination cases. Frameworks for proving but-for causation ¶15 The “but-for” standard generally requires a showing that the harm would not have occurred in the absence of—that is, but for—the discriminatory conduct. University of Texas Southwest Medical Center v. Nassar, 570 U.S. 338, 346-47 (2013). Accordingly, an employee may proceed in at least one of two ways to establish but-for causation. Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010). ¶16 First, in cases involving at least some circumstantial evidence, an employee may use the McDonnell Douglas evidentiary framework to establish that a Title VII-protected characteristic was a but-for cause of the challenged personnel action. Ford, 629 F.3d at 201, 207. Under that framework, the employee has the initial burden of proving a prima facie case of discrimination based on disparate treatment.7 See Hodges v. Department of Justice, 121 M.S.P.R. 337, ¶ 19 (2014); 7 Establishing a prima facie case under the McDonnell Douglas test is not the same as proving that discrimination was a motivating factor in an action. See Green v. Department of Energy, EEOC Appeal No. 0120121775, 2013 WL 874672, at 1 (Feb. 28, 2013) (rejecting the complainant’s assertion that the Commission erred in applying the three-part McDonnell Douglas analysis and should have instead applied a “motivating factor” standard for disparate treatment cases). In fact, the Supreme Court has noted that the motivating factor test was not introduced into Title VII practice until 11 Marguerite L., 2022 WL 1631452, at 3. To establish a prima facie case, an employee must generally show that (1) she is a member of a protected class, (2) she suffered an adverse employment action, and (3) the unfavorable action gives rise to an inference of discrimination. Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 35 (2014). Although the necessary elements of a prima facie case of prohibited discrimination may vary according to the particular facts and circumstances at issue, an appellant may establish a prima facie case by presenting facts that, if unexplained, reasonably give rise to an inference that the action was based on an impermissible criterion. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 41 (2010). The methods of proving discrimination set forth above, such as comparator evidence, may be one way of establishing a prima facie case. Id.8 ¶17 Once the appellant has made out a prima facie case, the agency bears the burden of articulating a nondiscriminatory explanation for the action. Ford, 629 F.3d at 201. The appellant, however, bears the ultimate burden of proving, throughout the analysis, that discriminatory animus was a determining, or but-for, cause of the personnel action. Id.; see Emerita v. Department of Homeland Security, EEOC Appeal No. 2021005082, 2022 WL 18280308, at 3 (Dec. 13, 2022). An appellant may satisfy this burden by showing that the employer’s reason is pretextual or by showing that it was more likely than not that the agency was motivated by discrimination. Ford, 629 F.3d at 201. This approach has been years after McDonnell Douglas, and that McDonnell Douglas therefore does not mention the motivating factor test let alone endorse its use. Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S. Ct. 1009, 1018-19 (2020). 8 We note that in cases involving only direct evidence, there is no longer the need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Past v. Department of Homeland Security, EEOC Appeal No. 01A60565, 2006 WL 1725425, at 3 n.2 (June 16, 2006) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)). Direct evidence eliminates the need to apply the McDonnell Douglas shifting burdens of proof. Trans World Airlines, Inc. v. Thurston, 469 U.S. at 121. 12 described as the “single motive” or “pretext” theory9 of discrimination, Ponce v. Billington, 679 F.3d 840, 844 (D.C. Cir. 2012), whereby proof of pretext is equated with but-for causation, McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n.10 (1976); Foster v. University of Maryland-Eastern Shore, 787 F.3d 243, 249, 252 (4th Cir. 2015) (stating that the McDonnell Douglas framework “already incorporates a but-for causation analysis”). The established order of analysis for this proof framework need not, however, be followed in all cases. When an agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the analysis, i.e., the ultimate issue of whether the appellant has shown by preponderant evidence that the agency’s reason for its action was a pretext for discrimination, and therefore motivated by discrimination. Hodges, 121 M.S.P.R. 337, ¶ 19; Marguerite L., 2022 WL 1631452, at 3-4. ¶18 Second, an employee may prevail even when the employer acted with mixed motives, i.e., when there is evidence that discrimination was one of multiple motivating factors for an employment action such that the employer acted on the bases of both lawful and unlawful reasons. Ford, 629 F.3d at 203; see Ward B. v. U.S. Postal Service, EEOC Appeal No. 2022002280, 2023 WL 4294818, at 2 (June 12, 2023). The Supreme Court has held that the “motivating factor” standard is “more forgiving” than the but-for standard, and that “liability can sometimes follow even if [the protected characteristic] wasn’t a but-for cause of the employer’s challenged decision.” Bostock v. Clayton County, 140 S. Ct. 1731, 1740 (2020). Under this approach, even if an employee shows that discrimination was a motivating factor in an employment decision, she will not be 9 Courts have used the “pretext” and “single-motive” labels interchangeably. However, the term “single-motive” is something of a misnomer. The Supreme Court has explained that events often have multiple but-for causes, and these can be deduced by changing one thing at a time and seeing whether the outcome changes. Bostock v. Clayton County, Georgia, 140 S. Ct.1731, 1739 (2020). This is so regardless of whether the plaintiff proceeds under a mixed-motive or pretext theory. Id. As explained below, either theory will offer an avenue for proving but-for causation. 13 entitled to damages or status quo ante relief if the employer proves that it would have made the same decision absent the discrimination. Ford, 629 F.3d at 203-04; see Sean T. v. U.S. Postal Service, EEOC Appeal No. 0120150928, 2017 WL 6422301, at 4 (Dec. 5, 2017); Tellez v. Department of the Army, EEOC Request No. 05A41133, 2005 WL 689373, at 6 (Mar. 18, 2005). The purpose of this inquiry, which asks if the employer would have taken the same action absent the discriminatory animus, is to determine whether the discriminatory animus was a but-for cause, or real reason, for the decision. The Supreme Court in Babb did not elaborate on the method or methods of proving but-for causation under 42 U.S.C. § 2000e-16, and thus did not identify whether the burden of persuasion shifts to the agency under this mixed-motive framework. Deferring to the EEOC, however, we find that it does. See Jarvis M. v. Department of Health and Human Services, EEOC Petition No. 0320170006, 2023 WL 4653539, at 5 (July 5, 2023); Tellez, 2005 WL 689373, at 6. Thus, if an appellant proves motivating factor and the agency does not prove by preponderant evidence that it would have taken the same action in the absence of discrimination, the appellant has established but-for causation and will be eligible for full relief under the statute, including status quo ante relief and damages. Jazmine F. v. Department of Defense, EEOC Petition No. 0320170007, 2023 WL 4653604, at 8-9 (July 5, 2023). If an agency proves its same action defense under the mixed-motive framework, however, the action is not reversed and the appellant may not receive reinstatement, back pay, or damages.10 Pridgen, 2022 MSPB 31, ¶ 22. ¶19 An appellant may choose to show but-for causation under the pretext framework or under the mixed-motive framework, or by proceeding under both theories simultaneously. Ponce, 679 F.3d at 845; see Jones v. Department of the 10 In EEOC proceedings, at least, other forms of relief may be available that do not relate to the end result of the employment action, including declaratory relief, injunctive relief, costs, and attorney fees. See Ward B., 2023 WL 4294818, at 2. For example, the EEOC may order an agency to post notices, provide EEO training, and not discriminate or retaliate against an employee in the future. See, e.g., Sean T., 2017 WL 6422301, at *6. 14 Army, 68 M.S.P.R. 398, 403 (1995) (recognizing that discrimination claims may be proven under a “pretext” or “mixed-motive” framework). Although selecting among all of the options set forth in this decision may assist an appellant in presenting a claim of discrimination before the Board, making and articulating such a selection is not required, nor is it binding. An appellant who is raising a claim of disparate treatment discrimination under Title VII should submit for the Board’s consideration all of the types of evidence set forth above in support of such a claim. Not all of those types of evidence will be needed in every case. Pridgen, 2022 MSPB 31, ¶ 24. Each type of evidence may be sufficient by itself to support a judgment for the employee, or they can be used together. Id. Upon consideration of all of the relevant evidence, the administrative judge and the Board, if a party files a petition for review of an initial decision, will apply the appropriate proof framework(s) and adjudicate the claim. See Nuskey v. Hochberg, 730 F. Supp. 2d 1, 4 (D. D.C. 2010) (“The question of whether the evidence presented supports only a ‘single motive’ theory or a ‘mixed motive’ theory (or possibly both) need not be finally resolved until after both sides have presented their cases to the jury and the Court has evaluated the evidence.”). 15 ORDER ¶20 Accordingly, we remand this appeal to the regional office for further adjudication consistent with this Opinion and Order.11 Jennifer Everling Acting Clerk of the Board Washington, D.C. 11 The administrative judge may adopt her previous finding that the agency’s delay in providing the appellant with a copy of the table of penalties did not constitute harmful procedural error under 5 U.S.C. § 7701(c)(2)(A). See Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991) (holding that an agency’s procedural error is harmful only where the record shows that it was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error).	https://www.mspb.gov/decisions/precedential/Wilson_CarmencitaDC-0752-20-0420-I-1_Opinion_And_Order.pdf	Issuance Date: December 7, 2016 Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Adverse actions – Removal Security clearances The petitioner was a civilian Resource Analyst for the Nuclear Propulsion Directorate – a position requiring a security clearance. On July 25, 2014, the Department of Energy revoked the petitioner’s security clearance based on several instances of alleged misconduct. On September 12, 2014, the Department of the Navy removed the petitioner for failure to maintain a security clearance. The petitioner appealed his removal to the Board, arguing that the security clearance determination, and therefore resultant removal, was based on his uniformed service. The Board affirmed the removal, finding that the agency had provided the petitioner the procedural protections of 5 U.S.C. § 7513(b), there was no requirement for the agency to reassign the petitioner to a position that did not require a security clearance, and the Board was precluded from determining whether the security clearance determination was based on the petitioner’s uniformed service. The petitioner appealed to the court Holding: The court affirmed. 1. Although the petitioner argued that USERRA authorizes review of security clearance determinations, the court found that, under well-settled Supreme Court precedent, neither the court nor the Board has the authority to determine whether discrimination was the reason for a security clearance revocation. 2. The petitioner argued that the Board may review the reasons for initiating a security clearance action without reaching the merits of the action. The court, however, found this to be a distinction without a difference. 3. The petitioner argued that USERRA entitles him to reemployment, but the Court found that this entitlement pertains only to reemployment after an absence related to uniformed service. If an employee is removed due to antimilitary animus, he has no reemployment claim under USERRA, even if a USERRA discrimination claim might otherwise be available. NONPRECEDENTIAL: Sutton v. Department of Veterans Affairs, No. 2016-2205 (Dec. 8, 2016) (MSPB No. DC-300A-14-0641-I-1) (affirming the Board’s decision that dismissed the petitioner’s employment practice claim for lack of jurisdiction and denied his VEOA claim; the petitioner failed to identify any employment practice that he was challenging, and his VEOA claim was disposed of in a prior Board decision for which the time for seeking judicial review had already elapsed). Ahuruonye v. Department of the Interior, No. 2016-2493 (Dec. 8, 2016) (MSPB No. CH-1221-15-1172-W-1) (affirming the Board’s decision denying the petitioner’s IRA appeal on the merits because the petitioner failed to establish that his disclosure was a contributing factor in the personnel action). Carpenter v. Navy, No. 2016-2180 (Dec. 7, 2016) (MSPB No. DC-0752-13-2215 B-1) (affirming the Board’s decision that upheld the petitioner’s 6-day furlough; the Board did not abuse its discretion in limiting the petitioner’s discovery to information pertaining to similarly-situated employees, and substantial evidence supported the Board’s finding that the furlough was taken for such cause as to promote the efficiency of the service). Lundberg v. Merit Systems Protection Board, No. 2016-2536 (Dec. 6, 2016) (MSPB No. CH-3443-15-0448-I-1) (affirming the Board’s decision finding that the petitioner was collaterally estopped from establishing jurisdiction over his appeal concerning improper charge of annual leave). MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
01-10-2024	2024 MSPB 2	Sergio Luna	https://www.mspb.gov/decisions/precedential/Luna_SergioDA-0752-15-0498-I-1_Opinion_and_Order.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 2 Docket No. DA-0752-15-0498-I-1 Sergio Luna, Appellant, v. Department of Homeland Security, Agency. January 10, 2024 Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant. Nina Fantl , San Antonio, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that sustained his removal for failure to cooperate in an investigative interview. For the reasons set forth below, we DENY the petition for review and AFFIRM the initial decision. The appellant’s removal is SUSTAINED. BACKGROUND ¶2 The material facts of this appeal are undisputed. The appellant was an Immigration Enforcement Agent for the agency. Initial Appeal File (IAF), Tab 4 at 26. In 2014, the agency’s Office of Professional Responsibility (OPR) investigated the appellant concerning allegations of disreputable associations and 2 illicit activities. Id. at 162-64, 264. As part of the investigation, the agency directed the appellant to appear for an OPR interview on June 18, 2014. Id. at 259. Prior to the interview, the agency notified the appellant that he would be required to cooperate fully with the OPR investigator and to answer all relevant and material questions. Id. at 259, 261. It warned him that failure to cooperate in the interview could result in disciplinary action, up to and including removal. Id. at 259, 261-62. The agency further represented to the appellant that neither the answers he gave to the interview questions nor any information gathered by reason of those answers could be used against him in a criminal prosecution, except that the appellant could be prosecuted for any false answers that he might give. Id. at 261-63. ¶3 On March 18, 2015, the agency proposed the appellant’s removal based on a charge of failure to cooperate in an official investigation, with two specifications. Id. at 152-56. Under Specification 1, the agency alleged that, during the June 18, 2014 interview, the appellant refused to candidly answer questions about an incident with law enforcement in Mexico. Id. at 153-54. Under Specification 2, the agency alleged that the appellant and his representative abruptly terminated the interview and walked out before the interview had concluded. Id. at 154. After the appellant responded, the deciding official issued a decision sustaining both specifications and removing the appellant effective June 17, 2015.1 Id. at 26, 34-40. ¶4 The appellant filed a Board appeal challenging the merits of the removal and raising several affirmative defenses. IAF, Tab 1 at 6, 11-12, Tab 15 at 4-12, Tab 32 at 1-2. Among other things, the appellant argued that the agency could 1 Prior to the proposal at issue in this appeal, on October 31, 2014, the agency proposed to remove the appellant for failure to cooperate in another administrative investigation. IAF, Tab 18 at 79-85. The two separate removal proceedings ran parallel with each other, and the deciding official addressed them in the same June 16, 2015 decision letter. IAF, Tab 4 at 34. Although the deciding official removed the appellant pursuant to the March 18, 2015 proposal, he did not sustain the charges in the October 31, 2014 proposal, and that case was closed without action. Id. 3 not discipline him for failing to answer questions with criminal implications absent a “declination to prosecute” from the Department of Justice (DOJ), which the agency failed to provide. IAF, Tab 15 at 11. ¶5 After a hearing, the administrative judge issued an initial decision sustaining the appellant’s removal. IAF, Tab 48, Initial Decision (ID). She found that the appellant failed to cooperate, as charged, and that the agency was not required to obtain assurance of immunity directly from DOJ before compelling the appellant to answer questions. ID at 5-15. The administrative judge further found that the removal penalty was reasonable, and that the appellant did not prove any of his affirmative defenses. ID at 15-30. ¶6 The appellant has filed a petition for review contesting the administrative judge’s findings and analysis. Petition for Review (PFR) File, Tab 5. The agency has filed a response. PFR File, Tab 7. ANALYSIS ¶7 For the reasons explained in the initial decision, we agree with the administrative judge that the appellant refused to cooperate in the OPR investigation as alleged. ID at 4-15. However, that is not the end of the inquiry. 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. The Fifth Amendment provides in relevant part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”2 Essentially, the Government may not support a criminal proceeding with statements that it obtained from a public employee under threat of removal from office. See Garrity v. New Jersey, 385 U.S. 493, 496-500 (1967). 2 The Fifth Amendment right to remain silent attaches only when there is a reasonable belief that elicited statements will be used in a criminal proceeding. Ashford v. Department of Justice, 6 M.S.P.R. 458, 467 (1981). Although there had been no criminal proceeding initiated against the appellant as of the June 18, 2014 interview, there is no dispute that the interview concerned allegations of conduct that carry criminal penalties under Federal law. 4 ¶8 The contrapositive of this rule is that the Government may not remove an employee from public office for refusing to give statements that could subsequently be used against him in a criminal proceeding. Devine v. Goodstein, 680 F.2d 243, 246 (D.C. Cir. 1982). The Fifth Amendment privileges an individual not to answer official questions put to him in any proceeding, civil or criminal, formal or informal, when the answers might incriminate him in future criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Nevertheless, a public employee subjects himself to dismissal if he refuses to account for his performance of his public trust, after proper proceedings, which do not involve an attempt to coerce him to relinquish his constitutional rights. Uniformed Sanitation Men Association v. City of New York, 392 U.S. 280, 285 (1968). The Government may accomplish this by giving the employee adequate notice both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be employed against him in a criminal case.3 Kalkines v. United States, 200 Ct. Cl. 570, 574 (1973). Thus, the Court of Claims held that an employee may be removed for not answering questions posed by his employing agency if he is adequately informed both that he is subject to discharge for not answering and that his replies and their fruits cannot be used against him in a criminal case.4 Id.; see Haine v. Department of the Navy, 41 M.S.P.R. 462, 469 (1989); Weston v. Department of Housing and Urban Development, 14 M.S.P.R. 3 The immunity contemplated in Kalkines is commonly known as “use immunity.” Use immunity prevents the Government from using compelled statements or any evidence derived from those statements in a subsequent criminal prosecution, but it does not prevent the Government from using other evidence to conduct a prosecution. This is contrasted with transactional immunity, which categorically precludes the Government from prosecuting the individual for offenses to which the compelled testimony relates. See Kastigar v. United States, 406 U.S. 441, 443 (1972). 4 The holdings of the U.S. Court of Claims, announced before the close of business September 30, 1982, are binding precedent in the U.S. Court of Appeals for the Federal Circuit. South Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc). These decisions of the U.S. Court of Claims are, in turn, binding on the Board. Social Security Administration v. Mills, 73 M.S.P.R. 463, 469-70 (1996), aff’d, 124 F.3d 228 (Fed. Cir. 1997). 5 321, 324, aff’d, 724 F.2d 943 (Fed. Cir. 1983); Ashford v. Department of Justice, 6 M.S.P.R. 458, 465 (1981). The issue in this appeal is what constitutes “adequate” notice of immunity. ¶9 The appellant argued below, as he does on review, that the agency’s notices of use immunity were inadequate, and that absent documentation of immunity from DOJ, his Fifth Amendment right to remain silent still obtained. PFR File, Tab 5 at 25-26; IAF, Tab 15 at 11. The agency argues that the notices of immunity that it provided to the appellant were sufficient under Kalkines, and that there was no requirement for it to also obtain documented approval of that immunity from DOJ. PFR File, Tab 7 at 1; IAF, Tab 4 at 259, 261-62, 264-65, Tab 18 at 4-6. ¶10 The administrative judge agreed with the agency. ID at 14. She reasoned that the appellant was urging her to add an additional condition to the Board’s holding in Haine, and that she was not free to do so. Id.; see Rose v. Department of Justice, 118 M.S.P.R. 302, ¶ 8 (2012) (“An administrative judge is bound by Board precedent and is not free to substitute his views for Board law.”). She also observed that the appellant’s requested documentation from DOJ would be redundant to the extent that, under Garrity, any statements compelled under the threat of removal would be inadmissible in a criminal proceeding regardless of whether DOJ assented to immunity in advance. ID at 14. ¶11 For the following reasons, we agree with the administrative judge and we hold that adequate assurance of immunity under Kalkines does not require assent, written or otherwise, from DOJ. First, just as the administrative judge was not free to impose additional requirements on the agency beyond those set forth by the Board, the Board is not free to impose additional requirements beyond those set forth by the U.S. Court of Appeals for the Federal Circuit. See Gende v. Department of Justice, 35 M.S.P.R. 518, 523 (1987). Having reviewed the notices that the agency provided to the appellant prior to the interview, we find that they were adequate to satisfy the requirements of Kalkines; the agency 6 clearly notified the appellant that his failure to cooperate in the interview could result in administrative discipline, up to and including removal, and that neither the answers he gave to the interview questions nor any information gathered by reason of those answers could be used against him in a criminal prosecution. IAF, Tab 4 at 259, 261-623. ¶12 Second, we agree with the administrative judge that the assurance of immunity that the appellant received from his employing agency was binding on the Government even absent the explicit assent of DOJ. See Gardner v. Broderick, 392 U.S. 273, 278 (1968); Uniformed Sanitation Men, 392 U.S. at 284; Garrity, 385 U.S. at 496-500. Consistent with this Supreme Court precedent, the Federal Circuit has held that, when an employee is prospectively granted immunity through the Garrity exclusion rule, he may be removed for failure to cooperate with an agency investigation. Modrowski v. Department of Veterans Affairs, 252 F.3d 1344, 1350-51 (2001); Weston v. Department of Housing and Urban Development, 724 F.2d 943, 947 (1983). ¶13 There are some situations in which a prospective grant of immunity under Garrity is not sufficient for the Government to compel testimony. Specifically, Title II of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, 926-32 (codified as amended at 18 U.S.C. chapter 601), sets forth specific procedural requirements that the Government must follow in order to compel testimony in various judicial, administrative, and congressional proceedings. The section concerning administrative proceedings provides as follows: (a) In the case of any individual who has been or who may be called to testify or provide other information at any proceeding before an agency of the United States, the agency may, with the approval of the Attorney General, issue, in accordance with subsection (b) of this section, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, 7 such order to become effective as provided in section 6002 of this title.[5] (b) An agency of the United States may issue an order under subsection (a) of this section only if in its judgment– (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. 18 U.S.C. § 6004. Thus, a formal grant of immunity under this section cannot be given without “approval of the Attorney General.”6 The Supreme Court has held that, for proceedings in which such a formal grant of immunity is available, this is the only way for the Government to compel testimony over a Fifth Amendment objection. Pillsbury Co. v. Conboy, 459 U.S. 248, 253-64 (1983). Prospective immunity granted by the court or agency conducting the proceeding is insufficient. United States v. Doe, 465 U.S. 605, 615-17 (1984). Therefore, if the agency’s June 18, 2014 interview were covered by 18 U.S.C. chapter 601, the documentation advising the appellant of his Kalkines rights would have been insufficient to overcome his Fifth Amendment objection; the agency would have instead had to have followed the statutory procedure and issue a formal order with the approval of the Attorney General. ¶14 However, we find that the investigative interview was not a proceeding covered by 18 U.S.C. chapter 601. Specifically, 18 U.S.C. § 6001(3) defines “proceeding before an agency of the United States” as “any proceeding before such an agency with respect to which it is authorized to issue subpoenas and to take testimony or receive other information from witnesses under oath.” There is 5 Section 6002 of Title 18 of the United States Code provides that if the Government issues an order under this chapter, the subject witness may not refuse to testify on the basis of his privilege against self-incrimination, but no truthful testimony or other information compelled under the order, or any information derived therefrom, may be used against the witness in a criminal case. 6 The Attorney General has, by regulation, delegated this approval authority to certain other officers within DOJ, depending on the circumstances. 28 C.F.R. § 0.175. 8 no indication in this case that the agency had such authority, and at this time we are unaware of any Federal agency that would be authorized to issue a subpoena in an employment-related investigation of one of its own employees. ¶15 We therefore hold that the procedures of 18 U.S.C. chapter 601 do not apply to the agency’s investigation into the appellant’s work performance or fitness for duty, and we join numerous courts in holding that a Government employee is not entitled to formal immunity before being compelled to answer his employer’s questions. Speilbauer v. County of Santa Clara, 199 P.3d 1125, 1132-40 (Cal. 2009); Aguilera v. Baca, 510 F.3d 1161, 1171-1172 (9th Cir. 2007); Hill v. Johnson, 160 F.3d 469, 471 (8th Cir. 1998); Harrison v. Wille, 132 F.3d 679, 683 (11th Cir.1998); Wiley v. Mayor and City Council of Baltimore, 48 F.3d 773, 777 (4th Cir. 1995); Arrington v. County of Dallas, (5th Cir. 1992). Public employees “are not relegated to a watered-down version of constitutional rights.” Garrity, 385 U.S. at 500. Nevertheless, there is an “important public interest in securing from public employees an accounting of their public trust.” Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). Therefore, “[p]ublic employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity.” Id. The appellant in this case was not required to surrender his constitutional immunity; instead, he was accurately informed of that immunity and of the administrative discipline that he would face if he chose to remain silent. IAF, Tab 4 at 259, 261-62. This notice was sufficient under Kalkines, and nothing more was required. Because the appellant refused to answer the agency’s questions despite having received adequate notice under Kalkines, the ensuing removal action did not violate his constitutional rights. ¶16 We have considered the remaining arguments that the appellant raised on petition for review, but find that none of them provide a basis to disturb the initial decision. 9 ¶17 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 7 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). 7 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.8 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 8 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 . Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Luna_SergioDA-0752-15-0498-I-1_Opinion_and_Order.pdf
01-05-2024	2024 MSPB 1	Kristopher Kelly	https://www.mspb.gov/decisions/precedential/Kelly_Kristopher_D_AT-0752-15-0064-A-1_Opinion_and_Order.pdf	Tennessee Valley Authority	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2024 MSPB 1 Docket No. AT-0752-15-0064-A-1 Kristopher D. Kelly, Appellant, v. Tennessee Valley Authority, Agency. January 5, 2024 Jennifer Morton , Esquire, and Pat Kelly , Knoxville, Tennessee, for the appellant. Jennifer L. Grace , Knoxville, Tennessee, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the addendum initial decision, which granted the appellant’s motion for attorney fees. For the reasons discussed below, we DENY the agency’s petition for review; GRANT the appellant’s cross petition for review; AFFIRM the addendum initial decision in part and VACATE it in part; MODIFY the administrative judge’s computation regarding the number of hours spent by the appellant’s attorneys and award for costs; and REMAND the appeal for further adjudication consistent with this Opinion and Order. 2 BACKGROUND ¶2 Effective September 11, 2014, the agency removed the appellant from his position as a Senior Nuclear Security Officer (NSO) at the Tennessee Valley Authority Watts Bar Nuclear Plant, based on a charge of failure to meet the requirements of the Senior NSO position due to medical restrictions. Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, Initial Decision (Sept. 9, 2015). The appellant filed a Board appeal challenging the removal action, and the administrative judge issued an initial decision reversing the removal and finding that the agency discriminated against the appellant based on his disability. Id. ¶3 Following the issuance of the initial decision, on September 30, 2015, the appellant signed a “Retainer agreement for [F]ederal MSPB administrative process,” whereby he agreed to have his attorney and her associate represent him in his pending Board appeal. Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-A-1, Attorney Fee File (AFF), Tab 1 at 24-26. The agreement provided that the appellant would pay his attorney a discounted rate of $300 per hour and her associate a rate of $250 per hour. Id. at 24. The agreement further provided that, should the appellant receive a monetary settlement or recovery, his attorney would reimburse the appellant any fees that he paid and seek payment for attorney fees from the agency at the “current market rate for attorneys’ fees in this area.” Id. ¶4 Thereafter, the agency filed a petition for review of the September 9, 2015 initial decision, to which the appellant filed a response. Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, Petition for Review File, Tabs 1, 8. On June 16, 2016, the Board issued a final order affirming the administrative judge’s decision to reverse the appellant’s removal. Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, Final Order (June 16, 2016). 3 ¶5 On August 12, 2016, the appellant’s attorney filed the instant motion in connection with the removal action. AFF, Tab 1. The administrative judge granted the appellant’s motion for fees, finding that the appellant was the prevailing party, he incurred fees pursuant to an existing attorney-client relationship, and that an award of fees is warranted in the interest of justice. AFF, Tab 13, Addendum Initial Decision (AID) at 2-4. Regarding the reasonableness of the fees, the administrative judge found that the $350 hourly rate for the appellant’s attorney is the prevailing community rate. AID at 4-7. However, she reduced the prevailing hourly rate for the attorney’s associate from $300 to $250. Id. The administrative judge found that both attorneys spent a total of 102.95 hours on the appellant’s case from September 28, 2015, through August 12, 2016. AID at 8. Specifically, the administrative judge found that the appellant’s attorney had spent 52.25 hours on the case and that the associate had spent 50.80 hours. AID at 8-9. Based on the above, she found that the total amount of fees recoverable by the appellant was $30,987.50. AID at 9. The administrative judge declined to consider the appellant’s second supplement for attorney fees, finding that it was untimely filed after the close of the record below. AID at 8 n.5; AFF, Tab 10. Additionally, the administrative judge found that the appellant is entitled to claimed costs in the amount of $932.24. AID at 9-10. The administrative judge ordered the agency to pay attorney fees and costs in the amount of $31,590.50.1 AID at 10. ¶6 The agency has filed a petition for review. Petition for Review (PFR) File, Tab 6. The appellant has filed a response and a cross petition for review. PFR File, Tab 11. The agency filed a reply to the appellant’s response to the petition for review and a response in opposition to the appellant’s cross petition for review. PFR File, Tabs 16-17. 1 This total does not include a hotel cost of $329.24, which the administrative judge awarded but neglected to include in her calculations. AID at 10. 4 ANALYSIS The administrative judge erred in failing to apply the attorney fee standard under 5 U.S.C. § 7701(g)(2), and we modify the addendum initial decision accordingly. ¶7 In finding that fees were warranted, the administrative judge applied the attorney fee standard under 5 U.S.C. § 7701(g)(1), which authorizes the award of fees under an interest of justice standard. AID at 1-4. However, in cases in which prohibited discrimination under 5 U.S.C. § 2302(b)(1) has been found, the award of attorney fees is properly made under 5 U.S.C. § 7701(g)(2). See Kelly v. Department of the Navy, 43 M.S.P.R. 430, 433 (1990). That provision states that, if an employee “is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of [Title 5], the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)).” 5 U.S.C. § 7701(g)(2). In turn, 42 U.S.C § 2000e-5(k) states that a court “in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . and the United States shall be liable for costs . . . .” The Supreme Court has interpreted this provision to entitle a prevailing plaintiff to an award of attorney fees “in all but special circumstances.” Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 417 (1978); see E.E.O.C. v. Harris Farms, Inc., EEOC Appeal No. CIV F 02-6199 AWI LJO, 2006 WL 1028755, at 1 (E.D. Cal. 2006); Agonafer v. Rubin, 35 F. Supp. 2d 300, 305 (S.D.N.Y. 1998); Perez v. Federal Bureau of Investigation, 707 F. Supp. 891, 927 (W.D. Tex. 1988). ¶8 Thus, the Board has authority under 5 U.S.C. § 7701(g)(2) to award fees in accordance with the broader standards prescribed under the Civil Rights Act of 1964. See Kelly, 43 M.S.P.R. at 433; see also Raney v. Federal Bureau of Prisons, 222 F.3d 927, 935 (Fed. Cir. 2000) (noting that section 7701(g)(2) “broadens the scope of the reasonable attorney fee recovery in those cases”). Fees may be awarded by the Board under section 7701(g)(2) if the appellant is the 5 prevailing party, but there is no application of the interest of justice standard to such a fee award. Kelly, 43 M.S.P.R. at 433. Instead, as noted above, the Board, “in its discretion,” may award a reasonable attorney fee. Under this broader standard, all costs may also be awarded. Id. at 433 n.3. ¶9 Here, the Board found that the agency’s removal action resulted from disability discrimination. Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, Final Order (June 16, 2016). We find, therefore, that 5 U.S.C. § 7701(g)(2) is the section of the statute applicable to the question of whether the appellant is entitled to an award of attorney fees and that the administrative judge erred in requiring the appellant to establish that a fee award is otherwise warranted in the interest of justice.2 Cason v. National Aeronautics and Space Administration, 46 M.S.P.R. 401, 403-04 (1990); Kelly, 43 M.S.P.R. at 433. We therefore vacate the administrative judge’s analysis on the interest of justice standard. The appellant remains the prevailing party, and we find that he is entitled to an award of attorney fees. ¶10 While the agency does not otherwise dispute the appellant’s prevailing party status, it argues that he would no longer be the prevailing party if the Board grants its request, included in the petition for review in Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-C-1, to set aside or reverse the Final Order in the underlying appeal. PFR File, Tab 6 at 5, 27. We have not granted that request, however, and the Board’s decision in Kelly v. Tennessee Valley Authority, MSPB Docket No. AT-0752-15-0064-I-1, finding that the agency committed disability discrimination, remains final. Moreover, we find no special circumstances present in this case that weigh against exercising our 2 On review, the agency contends that, because the ruling in the appellant’s favor was based on his discrimination claim, the administrative judge erred by not applying the “stricter” attorney fee standards and costs under 5 U.S.C. § 7701(g)(2), rather than § 7701(g)(1). PFR File, Tab 6 at 3-6. While we agree that 5 U.S.C. § 7701(g)(2) applies in this case, as set forth above, the Board has found it is a broader standard than that under 5 U.S.C. § 7701(g)(1). 6 discretion to award the appellant attorney fees. Thus, the appellant is the prevailing party for purposes of this attorney fee motion, and we find that he is entitled to recover fees and costs. Accordingly, we will not disturb the administrative judge’s finding that the appellant is the prevailing party for purposes of this attorney fee petition. We remand the appeal for a determination regarding the current market rates for the appellant’s attorney and associate attorney. ¶11 Having determined that the appellant is the prevailing party, we now turn to the reasonableness of the attorney fees request. The computation of a reasonable attorney fee is the same regardless of whether the award is authorized by 5 U.S.C. § 7701(g)(1) or (g)(2). Kelly, 43 M.S.P.R. at 436 n.6; see McGovern v. Equal Employment Opportunity Commission, 42 M.S.P.R. 399, 412 (1989) (applying the framework of the Board's case law under section 5 U.S.C. § 7701(g)(1) to an attorney fees request governed by section 7701(g)(2)). The Board assesses the reasonableness of an attorney fees request by using two objective variables: the customary billing rate and the number of hours reasonably devoted to the case. Casali v. Department of the Treasury, 81 M.S.P.R. 347, ¶ 9 (1999). To establish the appropriate hourly rate, the attorney fee motion must be accompanied by a copy of the fee agreement, if one exists, as well as evidence of the attorney’s customary billing rate for similar work. Id. The customary billing rate may be established by showing the hourly rate at which the attorney actually billed other clients for similar work during the period for which the attorney seeks fees, or, if the attorney has insufficient billings to establish a customary billing rate, by providing affidavits from other attorneys in the community with similar experience stating their billing rate for similar clients. Id. The relevant market rate for determining the reasonableness of the attorney fee request is the forum of the litigation. Id. The burden of establishing the reasonableness of the hours claimed in an attorney fee request is on the party moving for an attorney fees award. Id., ¶ 13. 7 ¶12 When it is agreed that a specific fee be paid to an attorney for legal services rendered on behalf of an appellant in a Board case, the Board presumes that the amount agreed upon represents the maximum reasonable fee which may be awarded. Krape v. Department of Defense, 97 M.S.P.R. 430, ¶ 12 (2004). Nevertheless, this presumption is rebuttable by convincing evidence that the agreed-upon rate was not based on marketplace considerations and that the attorney's rate for similar work was customarily higher, or by showing that she had agreed to such a rate only because of the employee's reduced ability to pay and that her customary fee for similar work was significantly higher. Id. ¶13 Here, the appellant submitted a fee agreement that provided that, if he should receive a monetary settlement or recovery, the appellant’s attorney would reimburse the appellant for any fees that he paid, and she would seek payment for attorney fees from the agency at the “current market rate.” AFF, Tab 1 at 24-26. We interpret the retainer agreement as a whole. See Restatement (Second) of Contracts § 202(2) (1981). Under the fee agreement in this case, there are two separate billing rates contingent on the outcome of the case: if the appellant prevails, the billing rate would be the prevailing community rate; if he does not, the billing rate would be the discounted $300 per hour rate. AFF, Tab 1 at 24-26. Whether the appellant would be responsible for the attorney fees would only be known if he is the prevailing party. Id. The appeal is now resolved, and the appellant is the prevailing party. Therefore, under the terms of the retainer agreement, the fees sought would be at the current market rate. ¶14 We agree with the administrative judge that the appellant presented sufficient evidence to rebut the presumption that the agreed-upon rate in the fee agreement represents the maximum reasonable hourly fee for the appellant’s attorney. See Krape, 97 M.S.P.R. 430, ¶¶ 12-16. The appellant’s fee agreement reflects that his attorney fees would be reduced for him if he were to lose his appeal and pay the fees himself. AFF, Tab 1 at 24-26, Tab 7 at 48-56. Further, the record includes copies of similar fee agreements that his attorney has had with 8 other clients that all reflect that $350 was her customary hourly fee at that time. AFF, Tab 7 at 48-56. We find that these documents rebut the presumption that the amount agreed upon represents the maximum reasonable hourly fee, and we instead conclude that the customary hourly fee is the relevant rate. See Krape, 97 M.S.P.R. 430, ¶¶ 12-16. We likewise discern no basis for disturbing the administrative judge’s determination regarding the prevailing rate for the associate attorney at the time. AID at 7. ¶15 However, the work performed on this case by the appellant’s counsel occurred between 2015 and 2017, and there has been a significant delay in adjudication of this motion for attorney fees. As part of our inquiry into the reasonableness of the attorney fees requested, we must determine whether it is appropriate to apply current, rather than historic, hourly rates. See Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 282 (1989) (discussing when an enhancement for delay in payment is warranted as part of a “reasonable attorney’s fee”). The Supreme Court has held that “interest cannot be recovered in a suit against the Government in the absence of an express waiver of sovereign immunity from an award of interest.”3 In Library of Congress v. Shaw, 478 U.S. 310, 311 (1986), the Court held that a party prevailing in a Title VII suit against the Government was not entitled to interest on attorney fees because the provision permitting the award of attorney fees did not expressly waive sovereign immunity from such liability. Several years later, in Jenkins, the Court found that an appropriate adjustment for delay in payment—whether by the application of current rather than historic hourly rates or otherwise—was within the contemplation of the Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. § 1988), which provided 3 Applying this “no-interest rule,” the Board in Krape rejected attorney fee enhancement requests for attorney fees petitions filed pursuant to 5 U.S.C. § 7701(g)(1). 97 M.S.P.R. 430, ¶¶ 9-10. Specifically, the Board found that 5 U.S.C. § 7701(g)(1) does not explicitly provide for interest on attorney fees. However, the Board declined to decide whether an enhancement for delay in the payment of attorney fees was permitted under 5 U.S.C. § 7701(g)(2) when an appellant, such as here, files a petition for attorney fees as a prevailing party following a decision based on a finding of discrimination prohibited under 5 U.S.C. § 2302(b)(1). Id. ¶ 10 n.4. 9 for "a reasonable attorney's fee as part of the costs."4 Subsequently, and importantly with respect to this case, Congress amended section 114 of the Civil Rights Act of 1991, to explicitly provide that “the same interest to compensate for delay in payment shall be available [in actions brought by [F]ederal employees] as in cases involving nonpublic parties.”5 See 42 U.S.C. § 2000e-16(d).6 ¶16 In addition to controlling statutory authority, the Equal Employment Opportunity Commission has awarded enhanced attorney fee billing rates based 4 The Court reasoned that attorney fees awarded under the statute were to be based on market rates for the services rendered and that compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation— is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. See Jenkins, 491 U.S. at 283-84. 5 Following passage of the 1991 amendments to the Civil Rights Act, 42 U.S.C. § 2000e-16(d) read as follows: Section 2000e–5(f) through (k) of this title applicable to civil actions The provisions of section 2000e–5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder, and the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties. Arguably, on its face, and by its plain language, the availability of interest to compensate for delay in payment of attorney fees in section 2000e-16(d) appears to apply only to civil court proceedings. However, the heading of the provision indicates that it is applicable to several specific statutory provisions, including 42 U.S.C. § 2000e-5(k). As noted above, section 2000e-5(k) governs entitlement to attorney fees when a Board decision is based on a finding of discrimination, pursuant to 5 U.S.C. § 7701(g)(2), and section 7701(g)(2) already referred the Board to the standard in 42 U.S.C. § 2000e-5(k) in 1991, when section 2000e-16(d) was amended. Thus, we find that the amendment of section 2000e-16(d) to allow interest on attorney fee awards to compensate for delay in payment applies to an award of fees by the Board under 5 U.S.C. § 7702(g)(2). See Parker Drilling Management Services, Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (concluding that “Congress legislates against the backdrop of existing law”); Lorillard v. Pons, 434 U.S. 575, 581 (1978) (stating that, when “Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the [administrative or judicial] interpretation given to the incorporated law, at least insofar as it affects the new statute”). 6 In Krape, the Board noted that the 1991 amendments to Title VII, which provide for the same interest to compensate for delay in payment in public sector litigation as in cases involving nonpublic parties, were enacted in response to the holding in Shaw that 10 on current, as opposed to historic, rates. See Jimenez v. Sebelius, Sec'y, Department of Health and Human Services, EEOC App. No. 0120083765, 2012 WL 2356788, at 5 (June 12, 2012) (awarding current rather than historic hourly rates when the complainant established that the agency engaged in disability discrimination); Mareno v. Department of Veterans Affairs, EEOC Appeal No. 01943104, 1996 WL 73888, at *3 (Feb. 14, 1996) (reaffirming its position that the proper customary hourly rate is the reasonable hourly rate in effect at the time of the award and not at the time the services are provided). ¶17 Based on the foregoing, the Board may award attorney fees under 5 U.S.C. § 7701(g)(2) based on current rates at the time of the award, rather than historic rates. We find that it is appropriate to do so here given the significant delay at issue. See Jenkins, 491 U.S. at 283 (stating that “compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings”). We therefore remand for a finding on the appellant’s attorneys’ current market rates rather than those that were in effect when the services were performed. Sowa v. Department of Veterans Affairs, 96 M.S.P.R. 408, ¶ 11 (2004) (recognizing that an administrative judge is in the best position to evaluate attorney fee requests). We modify the administrative judge’s calculation regarding the relevant number of hours expended by the appellant’s attorneys. ¶18 The Board has held that the administrative judge who adjudicated the case on the merits is in the best position to determine whether the number of hours expended is reasonable, and, absent a specific showing that the administrative judge’s evaluation was incorrect, the Board will not second guess it. Wightman v. Department of Veterans Affairs, 111 M.S.P.R. 109, ¶ 11 (2009). Here, the interest on attorney fees cannot be recovered in a suit against the government. 97 M.S.P.R. 430, ¶ 10. 11 administrative judge considered the agency’s arguments, reviewed the hours challenged, and concluded that the billing statements were “sufficiently detailed, and not duplicative, padded, or representative of ‘block billing.’” AID at 8-9. On review, the agency continues to challenge the number of hours spent by the appellant’s attorneys, arguing that the hours claimed are unreasonable and insufficiently documented. PFR File, Tab 6 at 11-16, 22-26. The agency’s arguments on review fail to provide a basis for disturbing the administrative judge’s determination that the hours claimed were reasonable. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (declining to disturb the administrative judge’s findings when the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). ¶19 Nonetheless, we modify the hours in the administrative judge’s calculation regarding the number of hours spent by the appellant’s attorneys for the reasons set forth in the appellant’s cross petition for review. Specifically, the appellant filed a cross petition for review asserting that the administrative judge’s addendum initial decision contains two mathematical errors that cost him almost $4,000 in fees. PFR File, Tab 11. The appellant asserts that the addendum initial decision contains inadvertent mathematical errors which resulted in the duplicate reduction of 11.25 hours of his attorney’s billable hours. In particular, the appellant’s attorney fees motion reflects that his attorney had billed 63.5 hours, and it states that she had voluntarily reduced her time, reflecting the time she spent on research. Thus, the appellant contends that the hours for his attorney already had been reduced to reflect this amount and that the administrative judge inadvertently reduced, for a second time, the same 11.25 billable hours. PFR File, Tab 11 at 29. The agency argues that the appellant has failed to show a math error in the attorney fees calculation. PFR File, Tab 17 at 5. ¶20 The administrative judge found in the addendum initial decision that the total itemized hours spent by the attorney’s firm on the appellant’s case from 12 September 28, 2015, through August 12, 2016, was 127.50. AID at 7. The administrative judge then correctly identified the allocation of the hours as 76.70 for his attorney and 50.80 for the associate attorney. AID at 8. The administrative judge then reduced the billable hours for the appellant’s attorney to 63.50, noting that the reduced hours were related to the appellant’s compliance case and not directly related to the petition for review in the underlying appeal. AID at 8 n.4. The administrative judge then stated that the appellant’s attorney voluntarily reduced her bill by 11.25 hours for time spent on related research and proceeded to reduce the hours by this amount, finding that it “appears” that the total time spent by his attorney preparing the petition for review was 52.25. AID at 8. ¶21 However, the record shows that the appellant’s attorney voluntarily reduced her total hours by 11.25 for time spent on research, prior to totaling the hours requested. AFF, Tab 1 at 16. Indeed, the itemized billing statement indicates that the original total number of hours worked by his attorney was 87.95 and that she only billed a total of 76.70 hours. Id. at 23. Thus, the record clearly shows that the hourly fees for the appellant’s attorney were reduced prior to the total amount identified being included in the motion for fees. Id. ¶22 Therefore, we agree with the appellant that the administrative judge inadvertently miscalculated the billable hours. AFF, Tab 1 at 16, 23. We find that the correct amount of the hours billed by the appellant’s attorney, after the appropriate reduction of hours spent relating to the compliance case, is 63.50. We likewise modify the award for costs. ¶23 Regarding the award for costs, the agency contends that the appellant claimed costs without accounting or proof and asserts that the $525.00 the appellant paid for an initial consultation with a law firm that was not named in the motion and who did not provide a receipt or billing statement should not be reimbursed. PFR File, Tab 6 at 24-26. The agency contends that the administrative judge improperly considered the appellant’s receipt from this law 13 firm when he submitted it with his reply to the agency’s response below. Id. However, the record reflects that the appellant did not raise a new argument in his reply to the agency’s response to the appellant’s motion. AFF, Tab 7 at 17. Instead, he provided a receipt to support his request, which was in response to the agency’s argument. AFF, Tab 6 at 9-10, Tab 7 at 17. The agency has shown no error by the administrative judge in considering this evidence. ¶24 However, we agree with the appellant that the administrative judge made computational errors in calculating the award for costs, and we modify the addendum initial decision accordingly. On cross petition for review, the appellant argues that the administrative judge made a computational error in summarizing the total amount of fees and costs the agency owed to the appellant. PFR File, Tab 11 at 29-30. Specifically, the appellant requested a total of $932.24 in costs to cover expenses, i.e., a legal consultation fee of $525, round trip bus fare of $78, and hotel accommodations of $329.24, totaling $932.24. Id. The appellant asserts that, although the administrative judge granted all of the requested costs, the administrative judge appears to have inadvertently failed to include the hotel fee of $329.24. Id. at 30. The agency concedes that the administrative judge did not include the hotel fees in her calculations. PFR File, Tab 17 at 5. We agree. Accordingly, the fees and costs should total $932.24. The administrative judge correctly declined to consider the appellant’s supplemental motion for fees. ¶25 Finally, the appellant argues that the administrative judge erred in failing to consider and grant his supplemental motion for fees. PFR File, Tab 11 at 30-32. The appellant admits that the supplemental motion was filed after the close of the record below, but he requests that the Board waive the filing deadline for the supplemental motion. Id.; AFF, Tab 10. ¶26 The administrative judge’s August 22, 2016 Acknowledgment Order specifically stated that “the record will close 40 calendar days from the date of this Order,” which was October 1, 2016. AFF, Tab 2. The Order also advised the 14 appellant that he “must submit any claim for the time your attorney spent on preparing this motion for attorney fees with your last submission.” Id. at 2. The appellant filed his second supplemental motion on November 12, 2016, approximately 6 weeks after the filing deadline. AFF, Tab 10. The administrative judge correctly found that this submission was untimely filed with no showing of good cause for the delay. AID at 8 n.5. Accordingly, we find that the appellant has shown no error by the administrative judge in not considering the untimely filed supplemental motion for additional attorney fees. See Wilson v. U.S. Postal Service, 58 M.S.P.R. 653, 662 n.5 (1993) (declining to consider the appellant’s supplement to his attorney fees petition when it was untimely filed, and the appellant did not establish good cause for the delay). ORDER ¶27 Accordingly, we remand this case for a determination by the administrative judge on the current market rates for the appellant’s attorney and associate attorney. On remand, the administrative judge shall allow the parties to submit evidence and argument on this issue. In analyzing the reasonableness of the fee award, the administrative judge shall adopt the Board’s findings regarding the hours expended by the appellant’s attorneys. The administrative judge shall likewise adopt the Board’s findings on costs. Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Kelly_Kristopher_D_AT-0752-15-0064-A-1_Opinion_and_Order.pdf	Issuance Date: July 24, 2014 Appeal Type: Adverse Action Action Type: Furlough Furlough Determined by RIF Regulations Furlough and Individual Due Process Considerations Use of Overtime During Furlough Consistency of Number of Furlough Days Between Agencies Furlough Reliance on General Global Agency Advice The appellant challenged his furlough from his GS-12 Engineering Technician position on a number of procedural and substantive grounds. The AJ affirmed the furlough based on a finding that the agency provided a detailed factual basis for the furlough by showing that it was a reasonable management solution to the financial restrictions placed on it, and that it determined which employees to furlough in a fair and even manner. Holding: The Board affirmed the initial decision as modified, and affirmed the furlough actions. 1. In accordance with RIF rules, the agency was not required to have subdivided personnel and furloughed employees based on their tenure group, veterans’ preference within each group, length of service, and performance because there was no release of the appellant from his competitive level for more than 30 days. 2. The agency’s procedures satisfied the requirement of due process, because the agency presented a factual basis for the furlough, and the deciding official made individual determinations as to whether there was a basis for an exemption. 3. The agency’s policy under which it permitted the use of overtime to meet mission-critical needs was a matter within the agency’s sound discretion and there was no showing that the agency used overtime to relieve certain employees, but not others, of the financial consequences of the furlough to the point where the furlough would not be viewed as meeting the efficiency of the service standard. 4. The inconsistency of the number of furlough days throughout the federal sector is irrelevant to the analysis of whether a particular agency provided that the furlough promoted the efficiency of the service. 5. The Army Corp of Engineer’s reliance on a “global” DOD memo rather than guidance specific to its agency functions did not, in and of itself, show that the furlough was improper. The U.S. Court of Appeals for the Federal Circuit Issued the Following Precedential Opinions:
12-12-2023	2023 MSPB 27	Kenneth Erdel	https://www.mspb.gov/decisions/precedential/Erdel_Kenneth_AT-0752-22-0590-I-1_Opinion_and_Order.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 27 Docket No. AT-0752-22-0590-I-1 Kenneth W. Erdel, Appellant, v. Department of the Army, Agency. December 12, 2023 Bienvenido Banchs , Abita Springs, Louisiana, for the appellant. Christopher E. Barton , Columbia, South Carolina, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for failure to state a claim upon which relief could be granted. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND this matter to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant was employed as a WS-10 Aircraft Systems Supervisor and held that position as a dual status National Guard technician with the South Carolina Army National Guard (SCANG) pursuant to 32 U.S.C. § 709. Erdel v. 2 Department of the Army, MSPB Docket No. AT-0752-22-0590-I-1, Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 12, 20; Erdel v. Department of the Army, MSPB Docket No. AT-0752-22-0165-I-1, Initial Appeal File (0165 IAF), Tab 11 at 20. On March 28, 2022, an official of the South Carolina Office of the Adjutant General proposed the appellant’s removal based on charges of failure to observe written regulations when the safety of others was involved, lack of candor, and conduct unbecoming a National Guard employee. IAF, Tab 4 at 12-17. After the appellant responded to the proposal, id. at 18-19, the SCANG Chief of Staff issued a decision dated August 23, 2022, removing the appellant from his position, effective that day, id. at 20-25. ¶3 On August 28, 2022, the appellant filed the instant appeal.1 IAF, Tab 1. The agency moved to dismiss the appeal for failure to state a claim upon which relief could be granted, arguing that pursuant to the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v. Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board could not grant the appellant any relief because it lacked authority over the SCANG adjutant general. IAF, Tab 7 at 6-8. The administrative judge then ordered the appellant to show cause why his appeal should not be dismissed pursuant to the decision in Singleton. IAF, Tab 8 at 3-5. After the parties responded, IAF, Tabs 10-11, the administrative judge issued an initial decision dismissing the appeal without holding the appellant’s requested hearing, IAF, Tab 12, Initial Decision (ID) at 1, 7. The administrative judge found that the Board has jurisdiction over the appeal, citing statutory changes made as part of the National Defense 1 The agency previously removed the appellant effective January 7, 2022, but after the appellant filed an appeal with the Board, the agency rescinded the action. 0165 IAF, Tab 1 at 15, Tab 11 at 17-18, 20, Tab 20 at 4-7. The appellant withdrew his appeal, 0165 IAF, Tab 23, and in a June 13, 2022 initial decision, the administrative judge dismissed the appeal, Erdel v. Department of the Army, MSPB Docket No. AT-0752-22- 0165-I-1, Initial Decision (0165 ID) at 1-2 (June 13, 2022); 0165 IAF, Tab 24, 0165 ID. That decision became the final decision of the Board when neither party filed a petition for review. 3 Authorization Act for Fiscal Year 2017, Pub L. No. 114-328, 130 Stat. 2000 (2017 NDAA), but also finding that the appeal must be dismissed for failure to state a claim upon which relief could be granted. ID at 3-7. Specifically, he found that pursuant to the Federal Circuit’s decision in Singleton, the Board did not have the authority to issue enforceable orders against state adjutants general and so the Board could not provide any effective relief regarding the appellant’s removal. ID at 4-6. The administrative judge further reasoned that nothing in the 2017 NDAA modified or overruled Singleton or altered the Board’s inability to direct adjutants general to provide relief. ID at 6. ¶4 The appellant argues on petition for review that the Federal Circuit’s holding in Singleton that the Board lacks the authority to order adjutants general to provide relief to National Guard technicians was abrogated by provisions of the 2017 NDAA. Petition for Review (PFR) File, Tab 1 at 5-11, 15-18. Accordingly, he contends that the Board has jurisdiction over his appeal and can issue an enforceable decision. Id. The agency has responded in opposition to the petition for review, contending, among other things, that the 2017 NDAA did not alter the holding in Singleton.2 PFR File, Tab 3 at 7-13, 16-20. ANALYSIS The administrative judge correctly found that the Board has chapter 75 jurisdiction over the appellant’s removal. ¶5 The Board has jurisdiction to adjudicate an appeal when an agency takes an “action” under 5 U.S.C. § 7512 against an individual who meets the definition of an “employee” under 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Moncada v. Executive Office of the President, Office of Administration, 2022 MSPB 25, ¶ 13. As relevant here, an “employee” over whom the Board has chapter 75 jurisdiction 2 To the extent that the parties cite Board initial decisions to support their respective views about the Board’s jurisdiction and legal authority, PFR File, Tab 1 at 6, Tab 4 at 9-13, initial decisions have no precedential value. Richardson v. Department of Veterans Affairs 2023 MSPB 1, ¶ 17 n.8; Special Counsel v. Greiner, 117 M.S.P.R. 117, ¶ 11 n.5 (2011). 4 includes an individual in the excepted service who is “(i) not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or (ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.” 5 U.S.C. § 7511(a)(1)(C). As discussed below, the analysis of whether an individual meets the statutory definition of an “employee” is more complicated when the individual is a National Guard technician. ¶6 Dual status National Guard technicians “occupy a unique space between [F]ederal/state organizations and civilian/military status,” and work in a “variety of roles with National Guards but are designated employees of the U.S. Army or Air Force.” Dyer v. Department of the Air Force, 971 F.3d 1377, 1380 (Fed. Cir. 2020); see 32 U.S.C. § 709(e); Ohio Adjutant General’s Department v. Federal Labor Relations Authority, 598 U.S. 449, 453-54 (2023). They must be a military member of the National Guard and wear a uniform while working, but, except when participating as National Guard members in part-time drills, training, or active-duty deployments, they work in a Federal civilian capacity and receive a civil service salary. Ohio Adjutant General’s Department, 598 U.S. at 453-54; Dyer, 971 F.3d at 1383. The governor of each state is in charge of the state’s National Guard units except when the unit is called into active Federal service. Maryland for the use of Levin v. United States, 381 U.S. 41, 47, vacated on other grounds, 382 U.S. 159 (1965). In most instances, a state’s National Guard is administered by the state adjutant general. Id.; see 32 U.S.C. § 314. ¶7 Prior to 2016, 5 U.S.C. § 7511(b)(5) (2016) excluded from the definition of an “employee” with Board appeal rights individuals employed as National Guard technicians. Instead, 32 U.S.C. § 709(f)(3) and (4) (2016) provided that any right of appeal by a National Guard technician who suffered an employment action, including “a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in 5 rank or compensation,” did not “extend beyond the adjutant general of the jurisdiction concerned.” ¶8 The 2017 NDAA amended 32 U.S.C. § 709(f) to add a new paragraph (5), providing that National Guard technicians may appeal “any activity not covered by paragraph (4),” and that the provisions of sections 7511, 7512, and 7513 of Title 5 shall apply. 2017 NDAA § 512(a), 130 Stat. 2112. Sections 7511, 7512, and 7513 of Title 5 all address appeals to the Board. Paragraph (4) of subsection 709(f), in turn, was amended by adding language narrowing the right of appeal to the adjutant general to “when the appeal concerns activity occurring while the member is in a military pay status, or concerns fitness for duty in the reserve components.” 2017 NDAA § 512(a), 130 Stat. 2112. The 2017 NDAA also amended 5 U.S.C. § 7511 to conform with the amended 32 U.S.C. § 709(f) by striking section 7511(b)(5), which previously excluded National Guard technicians from the definition of an “employee” with Board appeal rights.3 2017 NDAA § 512(c), 130 Stat. 2112. In other words, by amending provisions in Title 5 and Title 32, the 2017 NDAA afforded Board appeal rights to National Guard technicians when the appeal concerned activity that did not occur while the technician was in a military pay status and did not concern fitness for duty in the reserve components.4 3 There is other language in the 2017 NDAA that, at first blush, appears to be incongruent with the provisions discussed here. Section 932(b)(3) of the 2017 NDAA provides that “all personnel actions or conditions of employment, including adverse actions under title 5, pertaining to a person appointed, employed, or administered by an adjutant general under this subsection shall be accomplished by the adjutant general of the jurisdiction concerned.” 2017 NDAA, 130 Stat. 2363. The provision then states that the “National Guard of the jurisdiction concerned shall be considered the employing agency of the individual and the sole defendant or respondent in any administrative action.” Id. This language does not apply, however, to National Guard technicians, such as the appellant, appointed and employed under the authority of 32 U.S.C. § 709. Specifically, the statutory language is applicable to individuals appointed and employed under 5 U.S.C. §§ 2103, 2105, and 3101, and 32 U.S.C. § 328. 2017 NDAA § 932(b)(1), 130 Stat. 2363. 4 The legislative history of the 2017 NDAA provides scant insight regarding the statutory amendments, other than stating that the purpose of section 512 was “to clarify 6 ¶9 Turning back to the instant appeal, the appellant was removed from his position with the SCANG, and a removal is one of the types of “actions” appealable to the Board. IAF, Tab 4 at 20-25; see 5 U.S.C. § 7512(1). Regarding whether the appellant met the definition of an “employee,” it is undisputed that he occupied an excepted-service position and that he was not serving in a probationary or trial period under an initial appointment pending conversion to the competitive service at the time of his removal. See 0165 IAF, Tab 11 at 20-21. It is also undisputed that at the time of his removal the appellant had been employed in his National Guard technician position since March 18, 2007. Id. at 38. Further, the appeal is not precluded from the Board’s chapter 75 jurisdiction based on 32 U.S.C. § 709(f)(4); the removal was based entirely on misconduct that occurred while the appellant was serving in his technician position and was not based on his fitness for duty to serve in the reserves, or as the result of actions occurring while he was in a military pay status. IAF, Tab 4 at 12-14, 20-21.5 Thus, we agree with the administrative judge that the Board has jurisdiction over this appeal.6 the employment rights and protections of military technicians” and that, under certain conditions, National Guard technicians “may appeal adverse employment actions” to the Board and the Equal Employment Opportunity Commission. H.R. Rep. No. 114-840, at 1016-17 (2016). 5 All of the events related to the appellant’s removal occurred after the December 23, 2016 enactment of the 2017 NDAA, so there is no question that the statute is applicable. IAF, Tab 4 at 12-14, 20-21; cf. White v. Department of the Army, 2023 MSPB 17, ¶¶ 5-10 (concluding that the amendments to 32 U.S.C. § 709 included in the 2017 NDAA did not apply retroactively to conduct that predated the 2017 NDAA’s enactment date). 6 In Dyer, 971 F.3d at 1378-79, the Federal Circuit considered whether a National Guard technician, who was removed from his civilian technician position because he was no longer a military member of the National Guard, could appeal his removal to the Board. The court found that National Guard membership is a fundamental requirement for a National Guard technician and that loss of that membership concerns fitness for duty in the reserves. Id. at 1382-84. Thus, the court concluded that the Board lacked jurisdiction over an appeal of such an action. Id. at 1384. The facts in this appeal are different than those in Dyer, and it is not controlling here. 7 The administrative judge erred in dismissing the appeal for failure to state a claim upon which relief can be granted. ¶10 As discussed above, while the administrative judge correctly found that the Board has jurisdiction over the appellant’s removal, he nevertheless concluded that the appeal must still be dismissed for failure to state a claim upon which relief can be granted. ID at 3-7. In support of that conclusion, the administrative judge relied on the Federal Circuit’s 2001 decision in Singleton, which the agency also relies on heavily in its arguments on review. ID at 4-5; PFR File, Tab 3 at 7-13, 16-20; see Singleton, 244 F.3d 1331. The court in Singleton considered whether the Board could provide relief to a National Guard technician seeking corrective action for allegations of reprisal for whistleblowing. Singleton, 244 F.3d 1331. It reasoned that the language of 32 U.S.C. § 709(f), as it existed prior to the 2017 NDAA, imposed “severe and significant restrictions” on a National Guard technician’s rights under the whistleblower protection statutes to seek corrective action from the Board. Singleton, 244 F.3d at 1334-36. The court further found that the Board lacked the authority to order an adjutant general, a state Government employee, to comply with a Board order in an employment dispute. Id. at 1336-37. ¶11 To be clear, however, Singleton was decided over 15 years prior to passage of the 2017 NDAA and the revocation of the total exclusion of Board appeal rights for National Guard technicians. By statute, National Guard technicians may now appeal a number of personnel actions to the Board. 32 U.S.C. § 709(f)(4), (5). It would be beyond strange for Congress to have specifically amended two statutory provisions in different Titles of the U.S. Code to provide for Board appeal rights, but for there to be no relief available from the Board. See, e.g., Franklin v. Gwinnet County Public Schools, 503 U.S. 60, 66 (1992) (explaining that the concept that a remedy must be available for a violation of a right dates to the earliest days of the Republic); Barrett v. Holmes, 102 U.S. 657, 2 (1880) (finding that a “right without a remedy is unknown to the law”); In re 8 Mrs. Alexander’s Cotton, 69 U.S. 404, 413 (1864) (determining that “there should be no right without a remedy”); Peck v. Jenness, 48 U.S. 612, 12 (1849) (finding that “a legal right without a remedy would be an anomaly in the law”). ¶12 Title 5, U.S. Code, section 1204 sets forth the powers and functions of the Board. Subsection (a)(1) authorizes the Board to “hear, adjudicate, or provide for the hearing or adjudication, of all matters within [its] jurisdiction.” 5 U.S.C. § 1204(a)(1). The very next provision grants the Board the authority to “order any Federal agency or employee to comply with any order or decision issued by the Board under the authority granted under paragraph (1) of this subsection and enforce compliance with any such order.” 5 U.S.C. § 1204(a)(2). ¶13 As the Federal Circuit reasoned in Singleton, state adjutants general are not Federal employees because, with the exception of the adjutant general of the District of Columbia, they “are appointed locally and perform such duties as are prescribed by the laws of the pertinent local jurisdiction.” Singleton, 244 F.3d at 1333-34. For example, the South Carolina adjutant general is appointed by the governor, with the advice and consent of the state senate. S.C. Const. art. VI, § 7. This appointment authority is important because, unless specifically addressed elsewhere, to be considered a Federal employee, among other things, an individual must be appointed to the position in question by one of the individuals set forth in 5 U.S.C. § 2105(a)(1)(A)-(F). These individuals are the President; a Member or Members of Congress, or the Congress; a member of a uniformed service; an individual who is an employee under this section; the head of a Government controlled corporation; or an adjutant general designated by the Secretary of the Army or Air Force under section 709(c) of Title 32. Although adjutants general may appoint Federal employees, because they themselves are not appointed by one of the individuals enumerated in the statute, adjutants general are not Federal employees. See 5 U.S.C. § 2105(a)(1)(A)-(F). Thus, the Board lacks the authority under 5 U.S.C. § 1204(a)(2) to order them to take employment actions regarding National Guard technicians. 9 ¶14 As discussed previously, National Guard technicians are Federal employees of the Department of the Army or the Department of the Air Force, as the case may be. 32 U.S.C. § 709(e); Ohio Adjutant General’s Department, 598 U.S. at 454; Dyer, 971 F.3d at 1380. The Supreme Court has recognized that, “[w]hile it is state adjutants general who ‘employ and administer’ dual-status technicians working for their respective State National Guard units, they can only do so pursuant to an express ‘designat[ion]’ of authority by the Secretary of the Army or the Secretary of the Air Force.” Ohio Adjutant General’s Department, 598 U.S. at 454 (citations omitted); see 32 U.S.C. § 709(e). The Court further explained that it is that designation that constitutes the “sole basis” for state adjutants general to employ Federal employee National Guard technicians and in that role they act pursuant to delegated Federal authority and subject to the Federal civil service requirements.7 Id. at 458. Because National Guard technicians are ultimately employees of the Department of the Army and the Department of the Air Force, the Board has the authority to order the employing agency of a National Guard technician to take an employment action.8 5 U.S.C. § 1204(a)(2). Accordingly, contrary to the administrative judge’s finding, we find that the Board has the authority to provide relief to the appellant.9 7 We recognize that the Supreme Court in Ohio Adjutant General’s Department was interpreting a different provision of Title 5 than the one at issue in this appeal, but the Court’s findings on the employment status of National Guard technicians and the relationship between adjutants general and technicians’ Federal employers are equally applicable here. In fact, Justice Alito noted in his dissenting opinion that the Court’s decision “may have odd spillover effects” and cited, as one example, the Federal Circuit’s decision in Singleton. See Ohio Adjutant General’s Department, 598 U.S. at 462 (Alito, J., dissenting). 8 The agency argues that the power reserved to the states over militias in the Constitution precludes the Federal Government from exercising authority over the National Guard, except when the National Guard has been called to service of the United States. PFR File, Tab 3 at 21-28; see U.S. Const. art. I, § 8, cl. 16. This argument is not persuasive in the context of this appeal because National Guard technicians are Federal employees and it is in that capacity that the Board is exercising its statutory authority regarding their employment. 5 U.S.C. § 1204(a). 10 ¶15 Finally, the regulations the Office of Personnel Management (OPM) promulgated to reflect the changes to 32 U.S.C. § 709 set forth in the 2017 NDAA also support our conclusion that the Board has the authority to order relief in favor of covered National Guard technicians. 5 C.F.R. § 752.401; see 87 Fed. Reg. 67765, 67779, 67783 (Nov. 10, 2022). Among other things, OPM revised 5 C.F.R. § 752.401(b), which identifies actions excluded from coverage under chapter 75, to add subsection (17), excluding “[a]n action taken against a technician in the National Guard concerning any activity under 32 U.S.C. § 709(f)(4), except as provided by 32 U.S.C. § 709(f)(5).” In so doing, OPM explained that the revision was necessary because the 2017 NDAA “added MSPB appeal rights for National Guard technicians for certain adverse actions taken against them.” 87 Fed. Reg. at 67779. OPM also noted section 512(c) of the 2017 NDAA repealed 5 U.S.C. § 7511(b)(5), which excluded National Guard technicians from the definition of an “employee.” 87 Fed. Reg. at 67769. These actions by OPM incorporating the revisions made by the 2017 NDAA into its regulations defining the scope and character of the Board’s review authority over adverse actions are consistent with our conclusion that the 2017 NDAA expanded the Board’s adjudicatory authority over certain actions taken against National Guard technicians, and, by extension, the Board’s authority to order relief in favor of those technicians.10 9 The Board has found that an action taken by an adjutant general pursuant to 32 U.S.C. § 709 was done based on the authority delegated by the relevant Department of Defense component agency. See Stuart v. Department of the Air Force, 104 M.S.P.R. 297, ¶ 1 n.1 (2006) (recognizing that, although the state Air National Guard issued the challenged retirement decision, it did so in its role as the “administrator of the [N]ational [G]uard technicians,” and issued the decision “on behalf of, and under the authority of, the Secretary of the Department of the Air Force”). 10 OPM also revised its regulations regarding performance-based actions taken under chapter 43 of Title 5. 87 Fed. Reg. at 67769. Specifically, OPM recognized that, although the 2017 NDAA did not specifically address the potential extension of Board appeal rights over performance-based actions taken against National Guard technicians, it nevertheless was required to “update[] coverage [of 5 C.F.R. § 432.102] to align with the [2017 NDAA].” 87 Fed. Reg. at 67769. Consequently, OPM revised 11 ¶16 Based on the foregoing analysis, we find that, for purposes of chapter 75 Board appeal rights, a dual status National Guard technician’s employing agency is the Department of the Army or the Department of the Air Force, as the case may be, and that the Board may issue enforceable orders against those agencies. The fact that the adjutants general of the relevant jurisdictions take employment actions against such technicians based on the authority delegated to them by the Secretaries of the Army and the Air Force does not undermine this conclusion. Consequently, we find that the holding in Singleton finding that the Board lacked the authority to issue enforceable orders to remedy improper employment actions against National Guard technicians is incompatible with the statutory provisions as amended by the 2017 NDAA. Thus, we conclude that Singleton and cases that rely on it for the above-discussed proposition have been abrogated by the amended statute. ¶17 Accordingly, we vacate the initial decision dismissing the appeal on the grounds that the Board cannot order any relief in this appeal, and we remand the appeal for further adjudication. Because the administrative judge determined that the appeal must be dismissed for failure to state a claim upon which relief can be granted, he stayed the discovery deadlines and did not hold the appellant’s requested hearing or otherwise consider the merits of the appeal. IAF, Tab 9; ID at 1, 6-7. On remand, among other things, the administrative judge shall allow the parties to conduct discovery, shall develop the record, including by holding the hearing requested by the appellant, and shall issue an initial decision addressing all relevant issues. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of subsections (b) and (f) of 5 C.F.R. § 432.102 to extend Board appeal rights to National Guard technicians in order to “reflect that certain performance-based actions against dual status National Guard technicians are no longer excluded.” 87 Fed. Reg. at 67769; see 5 C.F.R. § 432.102(b)(16) (excluding from the definition of performance-based actions “[a]n action taken against a technician in the National Guard concerning any activity under 32 U.S.C. § 709(f)(4), except as provided by 32 U.S.C. § 709(f)(5)”). 12 credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). ORDER ¶18 For the reasons discussed above, we remand this case to the administrative judge for further adjudication in accordance with this Order. Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Erdel_Kenneth_AT-0752-22-0590-I-1_Opinion_and_Order.pdf
11-28-2023	2023 MSPB 26	Ronald Moulton	https://www.mspb.gov/decisions/precedential/Moulton_Ronald_L_DE-0841-18-0053-I-1_Opinion_and_Order.pdf	Office of Personnel Management	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 26 Docket No. DE-0841-18-0053-I-1 Ronald L. Moulton, Appellant, v. Office of Personnel Management, Agency, and Director of the Office of Personnel Management,1 Intervenor, and Jill Moulton,2 Intervenor. November 28, 2023 Ronald L. Moulton , Longmont, Colorado, pro se. Jessica Johnson , Nicole M. Lohr , and Tynika Faison Johnson , Washington, D.C., for the agency and for the intervenor, the Director of the Office of Personnel Management.3 Jill Moulton , Oro Valley, Arizona, pro se. 1 The now-former Director of the Office of Personnel Management (OPM) intervened below. 2 Although the Board originally identified Jill Kuryvial as a potential intervenor, that individual has referred to herself as Jill Moulton, and thus we have done so here. 3 It appears that the agency’s representatives in this matter are also appearing as representatives for the Director of the OPM as intervenor. Petition for Review (PFR) File, Tab 20 at 15. 2 BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The Office of Personnel Management (OPM) petitions for review of the initial decision reversing its final decision recalculating the apportionment of the appellant’s Federal Employees’ Retirement System (FERS) benefit payable to his former spouse. For the following reasons, we DENY OPM’s petition and AFFIRM the initial decision as MODIFIED by this Opinion and Order, which supplements the initial decision and still reverses OPM’s final decision. BACKGROUND ¶2 The appellant and his former spouse (hereinafter “intervenor”) were married on November 11, 1988. Initial Appeal File (IAF), Tab 13 at 54. On July 12, 2004, a Colorado state court entered a decree of dissolution of marriage and a domestic relations court order awarding the intervenor a pro rata share of the appellant’s “gross monthly annuity” under FERS, including “any benefit the Employee earns based on special ATC [Air Traffic Controller] service.” Id. at 53-57. Effective May 31, 2010, the appellant retired with over 25 years of creditable service as an ATC with the Federal Aviation Administration. Id. at 9, 43, 45, 101-03. OPM thereafter granted the appellant’s application for immediate retirement under FERS and determined that he was entitled to a basic annuity under the statutory provision for ATCs and an annuity supplement under 5 U.S.C. § 8421. Id. at 9, 14, 43, 101. In December 2010, OPM notified the appellant and the intervenor that it would pay the intervenor a pro rata share of the appellant’s basic annuity as provided for in the court order. Id. at 5, 28-29. At that time, OPM did not include the appellant’s FERS annuity supplement in its computation of the intervenor’s court-ordered apportionment. Id. at 5. 3 ¶3 Nearly 6 years later, OPM issued August 25, 2016 letters to the appellant and the intervenor informing them that it had incorrectly calculated the benefit the intervenor was receiving under the court order. IAF, Tab 13 at 24-27. OPM indicated that the appellant’s FERS annuity supplement “is to be treated the same way” as the FERS basic annuity for purposes of calculating the benefit paid to the intervenor, and that the amount he receives under the FERS annuity supplement provisions must be included in the calculation of the benefit paid to the intervenor. Id. at 24. Thus, OPM notified the appellant and the intervenor that the appellant’s annuity payment would be prospectively reduced, and the intervenor’s benefit prospectively increased, due to the change in calculation, and that OPM would also retroactively collect the additional benefits due the intervenor back to June 1, 2010, which was the date the appellant’s FERS annuity supplement payments began. Id. at 24-29. This retroactive treatment resulted in an underpayment the appellant owed to the intervenor in the amount of $24,535.30, to be deducted by OPM in installments from the appellant’s annuity. Id. After the appellant requested reconsideration of the decision, id. at 9, 25, OPM issued a December 12, 2017 final decision affirming its initial decision. OPM concluded that it is required under 5 U.S.C. § 8421(c) and the terms of the domestic relations court order to include the appellant’s FERS annuity supplement in the computation of the court-ordered division of his FERS annuity, and that this determination did not involve a “policy change” by OPM.4 Id. at 8-12. OPM noted that it would take no action to collect the $24,535.30 overpayment until after the appellant exhausted his administrative and appeal rights, and OPM notified him of his right to appeal to the Board. Id. at 12. 4 OPM issued reconsideration decisions on February 23, 2017, and October 16, 2017, reaching the same conclusion, but notifying the appellant of its intent to temporarily suspend its collection efforts. IAF, Tab 13 at 15-23, Tab 30, Initial Decision (ID) at 2-3, 5-6. OPM rescinded those decisions, and the December 12, 2017 reconsideration decision is the subject of this appeal. IAF, Tab 13 at 9, 15-23; ID at 2-3. 4 ¶4 On appeal, the appellant asserted that OPM erred in providing his former spouse a pro rata share of his annuity supplement because the domestic relations court order did not expressly provide for a division of his annuity supplement, as required by 5 U.S.C. § 8467, and OPM’s decision to apportion such payments constituted a new “legislative rule” that required notice and comment rulemaking before implementation. IAF, Tab 17 at 17-18, Tab 29 at 4. ¶5 The appellant submitted with his appeal a February 5, 2018 Management Advisory issued by OPM’s Office of the Inspector General (OIG), Office of Legal & Legislative Affairs, addressing its review of OPM’s “Non-Public Decision to Prospectively and Retroactively Re-Apportion Annuity Supplements.” IAF, Tab 17. The Management Advisory, which resulted from a complaint OIG received from the Federal Law Enforcement Officers Association (FLEOA), noted that, for almost 30 years until July 2016, OPM applied the state court-ordered marital share to the basic annuity only and not to the annuity supplement except when the state court order expressly addressed the annuity supplement. Id. at 5, 15. OIG disagreed with OPM’s assertion—that it was required by law to effect the above change—because the “language of the statute simply does not mandate the conclusion that the Basic Annuity and the Annuity Supplement should be deemed to be one and the same.” Id. at 15-16. OIG indicated that, while OPM’s approach is one possible interpretation of the statute, section 8421(c) could also be reasonably construed to mean that the annuity supplement is subject to division by a state court order in divorce proceedings “in the same way” that the basic annuity may be subject to division in those proceedings. Id. at 16. OIG noted that OPM’s regulations, as well as court decisions, require it to perform purely ministerial actions in carrying out a court’s instructions, and that “it is not a ‘ministerial’ function to create a division of payment that the court order does not expressly contain.” Id. at 16-17. Rather, OIG opined that OPM created a new rule regarding allocation of the annuity supplement that is subject to notice and comment rulemaking and that may not be given retroactive effect. Id. at 17-20. 5 OIG recommended that OPM, among other things, cease applying the state court- ordered marital share to annuity supplements unless the court order expressly so provides, and make whole all annuitants affected by OPM’s re-interpretation of the statute. Id. at 21-23. ¶6 OPM responded to the Board appeal by asserting that the unambiguous language of 5 U.S.C. § 8421(c) required it to apportion the annuity supplement “in the same way” as the basic annuity for purposes of computing a court-ordered division of a FERS retirement benefit. IAF, Tab 13 at 10, Tab 27 at 13-17. Alternatively, OPM asserted that if the statute were ambiguous, its interpretation was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). IAF, Tab 13 at 10, Tab 27 at 13-17. The appellant withdrew his request for a hearing. IAF, Tab 11 at 1. ¶7 After the close of the record, the administrative judge reversed OPM’s final decision.5 IAF, Tab 30, Initial Decision (ID) at 3. He found that 5 U.S.C. § 8421(c) was not unambiguous, as OPM alleged, but instead was subject to multiple interpretations. ID at 10-11. He further found that OPM’s regulations, purportedly requiring it to apportion the appellant’s annuity supplement, were not entitled to deference under Chevron because they did not directly address the purpose of section 8421(c) or otherwise interpret that section. ID at 11-13. The fact that OPM’s regulations do not differentiate between a basic annuity and an annuity supplement “could just as easily reflect the agency’s conclusion that the annuity supplement was” a Social Security benefit and thus presumptively not allocable between an employee and a former spouse. ID at 13. The administrative judge therefore read section 8421(c) to require OPM to divide an annuity supplement between a FERS employee and his or her former spouse only if the court order expressly provided for such division, as required by 5 U.S.C. § 8467. ID at 16. After reviewing the terms of the court order, the administrative 5 The administrative judge granted the Director of OPM’s request to intervene as a matter of right under 5 U.S.C. § 7701(d) and permitted the appellant’s former spouse to intervene in this matter. IAF, Tabs 26, 28. 6 judge determined that it did not expressly provide for the division of the appellant’s annuity supplement. ID at 16-21. He therefore found that the appellant proved by preponderant evidence that OPM erred in recalculating the intervenor’s share of the appellant’s FERS annuity. ID at 21. The administrative judge ordered OPM to rescind its final decision and refund all previously apportioned annuity supplement amounts to the appellant. ID at 22. The administrative judge declined to consider the appellant’s claims of harmful error, age discrimination, and reprisal for protected disclosures and activity, as well as the appellant’s request for interim relief. ID at 21-22. ¶8 OPM has filed a timely petition for review arguing that the administrative judge erred in reversing its reconsideration decision. Petition for Review (PFR) File, Tab 8. OPM reasserts that section 8421(c) unambiguously requires it to apportion the annuity supplement in the same way it apportions the appellant’s basic annuity and, alternatively, that its interpretation of the statute as establishing that requirement is entitled to deference. Id. at 8-19. The appellant has filed a response to OPM’s petition for review. PFR File, Tab 9. ¶9 After the parties submitted their pleadings, the Acting Clerk of the Board issued an Order directing OPM to clarify its position regarding how it categorizes a supplemental annuity and to submit relevant documents, including specifically identified policy statements addressing its approach to apportioning supplemental annuities. PFR File, Tab 13. OPM and the Director of OPM submitted a pleading that contends, among other things, that its regulations support what it claims are the “clear, unambiguous provisions of 5 U.S.C. § 8421(c).” PFR File, Tab 20 at 6-11. In a separate submission, the Director of OPM asserts that the portion of the Acting Clerk’s Order seeking documents was improper and not in accordance with the Board’s regulations, and moves for the Board to vacate that portion of 7 the Order.6 PFR File, Tab 21 at 5-7. The appellant has filed a response in which he also reasserts his age discrimination claim.7 PFR File, Tab 23. ANALYSIS ¶10 OPM asserts on review that 5 U.S.C. § 8421(c) is clear and the administrative judge improperly read ambiguity into the statute by looking beyond its text. PFR File, Tab 8 at 8-13. OPM further asserts that, if the Board must look beyond the plain language of the statute, the placement of section 8421(c) within the FERS “Basic Annuity” subchapter shows that Congress intended for the basic annuity and the annuity supplement to be treated as indivisible components of the entire annuity. Id. at 9. OPM also claims that, for FERS benefits to replicate Civil Service Retirement System (CSRS) benefits as Congress intended, OPM must treat the basic annuity and the annuity supplement as a unitary entitlement. Id. at 15-16. ¶11 An employee who is separated from the service, except by removal for cause on charges of misconduct or delinquency, after completing 25 years of service as an ATC or after becoming 50 years of age and completing 20 years of service as an ATC, “is entitled to an annuity.” 5 U.S.C. § 8412(e). Under 5 U.S.C. § 8415(a), entitled “Computation of basic annuity,” “the annuity” of an 6 The Board may order “any Federal agency” to comply with “any order” issued by the Board under its authority. 5 U.S.C. § 1204(a)(1)-(2). In any case that is reviewed, the Board may require that briefs be filed and take any other action necessary for final disposition of the case. 5 C.F.R. § 1201.117(a). OPM was afforded an opportunity to provide evidence to support its final decision in this case but chose not to do so. Given our resolution of this appeal on the existing record, the motion of the Director of OPM to vacate a portion of the Acting Clerk’s Order is now moot. 7 The appellant asserts that, “I believe that the OPM has discriminated against me and other retired annuitants based on our age . . . .” PFR File, Tab 23 at 5. An appellant may prove a claim of age discrimination by showing that such discrimination was a motivating factor in the contested action. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 21. There are various methods of proving such a claim. Id., ¶¶ 23-24. Having reviewed the appellant’s arguments on this issue, e.g., IAF, Tab 1 at 5, Tab 29 at 5, we find that he has not met his burden of proving by preponderant evidence that age was a motivating factor in OPM’s final decision in this case. 8 employee retiring under subchapter II of chapter 84, Title 5, United States Code, is 1% of that individual’s average pay multiplied by such individual’s total service. For individuals with ATC service like the appellant, the computation involves a higher percentage multiplied by total service. 5 U.S.C. § 8415(f). In general, an individual shall, if and while entitled to “an annuity” under 5 U.S.C. § 8412(e), “also be entitled to an annuity supplement under this section.” 5 U.S.C. § 8421(a)(1). The annuity supplement is designed to replicate the Social Security benefit (based on Federal civilian service) available at age 62 for those employees retiring earlier, and is subject to the same conditions as payment of the Social Security benefit. Henke v. Office of Personnel Management, 48 M.S.P.R. 222, 227 (1991). The annuity supplement, therefore, ceases no later than the last day of the month in which such individual attains age 62. 5 U.S.C. § 8421(a)(3) (B). Thus, the formula for calculating the annuity supplement incorporates the amount of old-age insurance benefit that would be payable under the Social Security Act upon attaining age 62. 5 U.S.C. § 8421(b). ¶12 When a Federal employee and the employee’s spouse divorce, additional statutes come into play. Section 8467 of Title 5, United States Code, addresses “Court orders.” Under 5 U.S.C. § 8467(a)(1), payments under 5 U.S.C. chapter 84 that would otherwise be made to an annuitant based on the service of that individual shall be paid to another person “if and to the extent expressly provided for in the terms of . . . any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.” Section 8421 is entitled “Annuity supplement.” Under 5 U.S.C. § 8421(c), “[a]n amount under this section shall, for purposes of section 8467, be treated in the same way as an amount computed under section 8415.” These two statutes are at issue in this case. ¶13 The interpretation of a statute begins with the language of the statute itself. Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16. If the language 9 provides a clear answer, the inquiry ends and the plain meaning of the statute is regarded as conclusive absent a clearly expressed legislative intent to the contrary. Id. Further, the whole of the statute should be considered in determining its meaning. Johnson v. Department of Veterans Affairs, 91 M.S.P.R. 405, 408 (2002). The provisions of a statute should be read in harmony, leaving no provision inoperative or superfluous or redundant or contradictory. Id. A section of a statute should not be read in isolation from the context of the whole Act, and the Board, in interpreting legislation, must not be guided by a single sentence or part of a sentence, but should look to the provisions of the whole law and to its object and policy. Joyce v. Department of the Air Force, 83 M.S.P.R. 666, ¶ 14 (1999), overruled on other grounds by Sacco v. Department of Justice, 90 M.S.P.R. 37 (2001). Reading the relevant provisions as a whole, we find that the plain language of the applicable statutes provides a clear answer and there is no clearly expressed legislative intent to the contrary. ¶14 We begin by considering how an amount “computed under section 8415” is “treated,” so as to then determine how an annuity supplement must also be treated, “in the same way,” for purposes of section 8467.8 See 5 U.S.C. § 8421(c). As set forth above, 5 U.S.C. § 8415 addresses the manner in which a basic annuity is computed, and thereby becomes a “[p]ayment under this chapter which would otherwise be made to an employee . . . .” 5 U.S.C. § 8467(a). As a “[p]ayment under this chapter,” the basic annuity shall be paid (in whole or in part) to another person “if and to the extent expressly provided for” in the terms of, among other things, any court decree, court order, or court-approved property settlement agreement. 5 U.S.C. § 8467(a)(1). An amount under section 8421, i.e., an annuity supplement, shall be treated in the same way. That is, an amount 8 We interpret the “for purposes of section 8467” language of section 8421(c) as simply meaning “when applying section 8467.” See In re Hill, No. 06-50972, 2007 WL 2021897 at *12 (Bankr. E.D. Tenn. July 6, 2007) (holding, under a straightforward reading of a statute, that the phrase “for purposes of paragraph (5)” simply means “when applying paragraph (5)”). Thus, an annuity supplement amount shall, when applying section 8467, be treated in the same way as a basic annuity amount. 10 computed under 5 U.S.C. § 8421(b) is a payment under chapter 84 that would otherwise be made to an employee pursuant to 5 U.S.C. § 8421(a). See 5 U.S.C. § 8467(a). To be treated in the same way when applying section 8467, that payment shall be paid to another person “if and to the extent expressly provided for in the terms of,” among other things, any court decree, court order, or court-approved property settlement agreement. A basic annuity amount computed under section 8415 shall be paid to another person only when the “expressly provided for” requirement in section 8467(a) is met. Similarly, an annuity supplement amount under section 8421 shall be paid to another person only when it, too, meets the “expressly provided for” requirement of section 8467(a). ¶15 OPM’s interpretation to the contrary would improperly read section 8421(c) in isolation from section 8467(a), see Joyce, 83 M.S.P.R. 666, ¶ 14, render the “expressly provided for” language of section 8467(a) inoperative or superfluous, and not read the statutory provisions as a whole and in harmony. In this regard, we note that Congress could have used different language to reach the result OPM proposes in this case. For example, Congress could have specified in section 8467(a) that, “except as provided for in 5 U.S.C. § 8421(c),” payments under this chapter which would otherwise be made to an employee shall be paid to another person if and to the extent expressly provided for in the terms of a court decree, court order, or court-approved property settlement agreement. There is, however, no such proviso language in section 8467(a), and the Board will not supply such language in interpreting the statute. See, e.g., Crockett v. Office of Personnel Management, 783 F.2d 193, 195 (Fed. Cir. 1986) (rejecting a statutory interpretation that would add to statutory language requirements that are not specified or reasonably implied in the statute); Acting Special Counsel v. U.S. Customs Service, 31 M.S.P.R. 342, 347 (1986) (declining to read an exclusion into a statute). In fact, section 8467(a) applies to “[p]ayments under this chapter . . . based on service of that individual,” and an annuity supplement qualifies under that broad language. See 5 U.S.C. § 8421(b)(3)(A) (basing the 11 amount of an annuity supplement in part on a fraction that includes “the annuitant’s total years of service”). Alternatively, Congress could have provided in section 8421(c) or elsewhere that an amount under section 8421 shall, for purposes of section 8467, be “considered a part” of the payment made to another person under section 8467(a), shall be “included” in the amount of the payment made to another person under that section, or shall “extend to” such an amount. However, the statute does not so provide. Instead, it provides that such an amount shall be “treated in the same way” as an amount computed under 5 U.S.C. § 8415. As set forth above, that means that it shall be paid to another person when the “expressly provided for” requirement is met. ¶16 Congress knew how to speak more directly to this issue in a separate section of the same public law that enacted sections 8421 and 8467. When it enacted the FERS provisions at issue in this appeal, Congress also addressed how to treat the annuity supplement for former spouses of employees of the Central Intelligence Agency (CIA). Section 506 of the Federal Employees’ Retirement System (FERS) Act of 1986, Pub. L. No. 99-335, 1986 U.S.C.C.A.N. (100 Stat.) 514, 624, amended the Central Intelligence Agency Retirement Act of 1964 by providing for the participation of certain CIA employees in the FERS. In section 304(g) of the amendment, covering “Special Rules for Former Spouses,” Congress provided that “[t]he entitlement of a former spouse to a portion of an annuity of a retired officer or employee of the Agency under this section shall extend to any supplementary annuity payment that such officer or employee is entitled to receive under section 8421 of title 5, United States Code.”9 Id. at 626-27. The legislative history confirms that section 304(g) “provides that the entitlement of a retired CIA FERS employee’s former spouse to a portion of the employee’s annuity extends to any annuity supplement the employee receives 9 The current version of the applicable statutes similarly indicates that an annuity supplement is to be included in the “benefits payable” to an employee for purposes of determining a former spouse’s share of those benefits. See 50 U.S.C. § 2154(c)(1)-(2). 12 under section 8421 of title 5, United States Code (as added by section 101 of the conference agreement).” H.R. Rep. No. 99-606, at 157-58 (1986) (Conf. Rep.). ¶17 When Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. Russello v. United States, 464 U.S. 16, 23 (1983); see Hyundai Steel Co. v. United States, 19 F.4th 1346, 1353 (Fed. Cir. 2021). Here, the fact that Congress specifically provided that annuity supplements shall be included in the benefits payable to a former spouse of a CIA employee shows that it decided to do so for those individuals but chose not to do so for others, see, e.g., Weed v. Social Security Administration, 112 M.S.P.R. 323, ¶18 (2009); Ellefson v. Department of the Army, 98 M.S.P.R. 191, ¶ 10 (2005), instead allowing for court decrees, court orders, or court-approved property settlement agreements to resolve that question under 5 U.S.C. § 8467(a) and 5 U.S.C. § 8421(c). ¶18 OPM asserts that, if the Board must look beyond the plain language of the applicable statutes, the placement of section 8421(c) within the FERS “Basic Annuity” subchapter shows that Congress intended for the basic annuity and the annuity supplement to be treated as indivisible components of the entire annuity. PFR File, Tab 8 at 9. Although the title and headings of a statute may be permissible indicators of meaning and can aid in resolving an ambiguity in the legislation’s text, a wise rule of statutory interpretation is that the title of a statute and the heading of a section cannot limit the plain meaning of the text. Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 11 n.8. As explained above, the plain meaning of the statute does not support OPM’s interpretation. Moreover, although OPM claims that it must treat the basic annuity and the annuity supplement as a unitary entitlement to replicate CSRS benefits, such considerations do not outweigh the statutory text. ¶19 Even if the applicable statutory provisions could be viewed as ambiguous, i.e., as susceptible of differing, reasonable interpretations, see Pastor v. 13 Department of Veterans Affairs, 87 M.S.P.R. 609, ¶ 18 (2001), we agree with the reasoning set forth by the administrative judge that OPM’s regulations and internal instructions are not entitled to deference. As the administrative judge found, OPM’s regulations, among other things, address other types of annuities but not the annuity supplement, either in the regulations themselves or in the rulemaking process implementing those regulations. ID at 11-13. In any event, the Board will decline to give effect to OPM’s interpretation of a regulation when, as here, there are compelling reasons to conclude that such interpretation is erroneous, unreasonable, or contrary to the law that it purports to interpret. Evans v. Office of Personnel Management, 59 M.S.P.R. 94, 104 (1993). We also agree with the administrative judge’s determination that OPM’s internal instructions, which OPM chose not to submit into the record, are not persuasive. ID at 14-16. As the administrative judge explained, ID at 15-16, those instructions were not issued under formal notice-and-comment rulemaking procedures, and are therefore not entitled to the deference given to regulations, but may be entitled to some weight based on their formality and persuasiveness and the consistency of the agency’s position. See Brandt v. Department of the Air Force, 103 M.S.P.R. 671, ¶ 14 (2006). However, OPM did not submit those documents into the record, even after being ordered to do so by the Acting Clerk of the Board. PFR File, Tab 13 at 3. Information relating to that previous interpretation is essential to evaluating the persuasiveness of OPM’s current guidance. ¶20 Finally, while this appeal was pending before the Board, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision that addressed, in a different context, OPM’s apportioning of the annuity supplement in these types of cases. In Federal Law Enforcement Officers Association v. Ahuja, 62 F.4th 551, 554 (D.C. Cir. 2023), FLEOA brought an action against OPM in district court claiming that its apportioning method violated the Administrative Procedure Act. The circuit court vacated the district court’s orders and remanded with instructions to dismiss the case for lack of jurisdiction. Id. at 555. In so doing, 14 the court held that the Civil Service Reform Act and the FERS Act precluded district court review of FLEOA’s claims because judicial review of OPM’s method of apportioning retirement benefits was available only in the U.S. Court of Appeals for the Federal Circuit following administrative exhaustion before the Board. Id. at 557-60, 567. We therefore find that this court decision does not require a different result in this case. ¶21 Having determined that apportionment of an annuity supplement must be expressly provided for under 5 U.S.C. § 8467(a), we agree with the administrative judge that the specific terms of the court order in this case do not expressly provide for a division of the appellant’s annuity supplement. ID at 16-21; see Thomas v. Office of Personnel Management, 46 M.S.P.R. 651, 654 (1991) (describing a provision as “express” when it is “clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous”); cf., e.g., Hayward v. Office of Personnel Management, 578 F.3d 1337, 1345 (Fed. Cir. 2009) (holding, in interpreting similar “expressly provided for” language, that the intent to award a survivor annuity “must be clear”); Davenport v. Office of Personnel Management, 62 F.3d 1384, 1387 (Fed. Cir. 1995) (“The statute requires that the pertinent court order or property settlement ‘expressly’ provide for a survivor benefit, so as to ensure that OPM will not contrive a disposition that the state court did not contemplate.”). ¶22 Accordingly, we find that OPM improperly included the appellant’s FERS annuity supplement in its computation of the court-ordered division of his FERS annuity. OPM’s reconsideration decision is, therefore, reversed. ORDER ¶23 We ORDER OPM to rescind its December 12, 2017 final decision, stop apportioning the annuity supplement, and refund all previously apportioned annuity supplement amounts to the appellant. OPM must complete this action no later than 20 days after the date of this decision. 15 ¶24 We also ORDER OPM 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 OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). ¶25 No later than 30 days after OPM 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 OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a). ¶26 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 (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 requirements, 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. 16 NOTICE OF APPEAL RIGHTS 10 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: 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 17 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 18 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 19 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.11 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. 11 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. 20 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 . Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/Moulton_Ronald_L_DE-0841-18-0053-I-1_Opinion_and_Order.pdf
08-30-2023	2023 MSPB 25	Calvin Turner	https://www.mspb.gov/decisions/precedential/TURNER_CALVIN_WESLEY_DC_1221_21_0292_W_2_OPINION_AND_ORDER_2064323.pdf	Department of Agriculture	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 25 Docket No. DC-1221-21-0292-W-2 Calvin Wesley Turner, Jr., Appellant, v. Department of Agriculture, Agency. August 30, 2023 Janel Quinn, Esquire, Nicholas Woodfield, Esquire, and R. Scott Oswald, Esquire, Washington, D.C., for the appellant. Christian E. Pagan, Esquire, and Stephanie Ramjohn Moore, Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied corrective action in his individual right of action (IRA) appeal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND this matter to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The appellant was the Director of the National Finance Center (NFC), a component of the Office of the Chief Financial Officer of the U.S. Department of 2 Agriculture (USDA). Turner v. Department of Agriculture, MSPB Docket No. DC-1221-21-0292-W-2, Appeal File (W-2 AF), Tab 8 at 7, 14.1 NFC is a nonappropriated fund (NAF) instrumentality, meaning that its budget is solely derived from the fees it charges its customers for the services it provides. W-2 AF, Hearing Transcript, Sept. 27, 2021 (HT 1), at 16 (testimony of the appellant). Specifically, NFC provides human resource management and administrative services, such as payroll, billing, collections, recordkeeping, and financial information management, to other components of USDA and other Federal entities. W-2 AF, Tab 8 at 8. NFC and its customers enter into contracts, known as Interagency Agreements (IAs), which set forth the anticipated cost of NFC’s services based on an estimation of direct costs attributable to the individual customer, as well as indirect costs, i.e., administrative or overhead expenses, which are distributed across all NFC customers using a cost allocation methodology.2 HT 1 at 16-19 (testimony of the appellant). ¶3 In or around January 2017, NFC provided an IA to the Associate Chief Financial Officer (CFO) for USDA’s Financial Management Services (FMS), which estimated the cost of NFC’s administrative services for FMS at $10.2 million. Id. at 21-22, 31 (testimony of the appellant). The proposed FMS IA encompassed the same level of administrative services that NFC had provided to FMS during the previous fiscal year (FY), i.e., FY16, which had cost 1 The appellant resigned from his position on January 29, 2021. W-2 AF, Tab 8 at 14-17. There is no evidence that the appellant raised his resignation to the Office of Special Counsel. Furthermore, his resignation is not identified as a personnel action at issue in this appeal in the administrative judge’s prehearing order, and, despite being afforded the opportunity, the appellant did not raise any objection to the order’s characterization of his claim. W-2 AF, Tab 11. The appellant also did not object on review to the administrative judge not addressing his resignation in her initial decision. Thus, we do not address his resignation. 2 The background regarding the agency’s operations is largely drawn from the appellant’s hearing testimony. The agency does not contest this testimony. 3 $8.7 million, but for which FMS was only charged $5.4 million. Id. at 150-52 (testimony of the appellant); W-2 AF, Tab 10 at 40-41. FMS objected to the $10.2 million IA, asserting that the rates were too high, and stating that it only had approximately $5.9 million available to pay for NFC’s services in 2017. Id. at 21-22 (testimony of the appellant). Therefore, the appellant worked with his supervisor, the Acting Deputy CFO at the time, as well as the Associate CFO for FMS, to determine what services could be pared back so that the IA’s cost could be lowered. Id. at 23-24, 26-29 (testimony of the appellant). ¶4 However, on April 19, 2017, NFC’s CFO emailed the appellant, requesting that he sign an IA for FMS for FY17, which had an estimated cost of $5.9 million, with no reduction in services. Id. at 31-32 (testimony of the appellant); W-2 AF, Tab 10 at 74-75. The appellant forwarded the email to his supervisor, explaining his concerns that, by reducing the overall cost but not the services provided to FMS, NFC would not be able to recover the actual cost of its services, and “[NFC would be] subsidizing FMS operations with a combination of 4% profit and other customers’ money.”3 HT 1 at 32-33 (testimony of the appellant); W-2 AF, Tab 10 at 74. ¶5 The appellant continued to express concerns about the $5.9 million FMS IA, requesting that his supervisor confirm that the parties agreed that $5.9 million was only a portion of the $10.2 million that NFC’s services would cost, and that NFC would provide FMS with a modified IA for the remaining balance. W-2 AF, Tab 10 at 73-74. His supervisor agreed that the $5.9 million was only a part of the total cost of services, but claimed that NFC should recalculate its cost methodology to determine the remaining balance. Id. at 73. Nevertheless, she still urged the appellant to sign the IA, stating, among other things, that “[w]e 3 The appellant explained in his testimony that NFC is allowed to retain a 4% profit, which is intended to be used for capital investments. HT 1 at 19-20 (testimony of the appellant). 4 need to move past this barrier, so that we can get to the next one. If you do not sign [the IA], there is no executable agreement or funds for [NFC] to repay [its] capital expenses.” Id. at 72. The appellant also emailed the NFC’s Working Capital Fund Director about his concerns, stating that signing the $5.9 million FMS IA was “not only unethical and illegal, but it [would] further cripple NFC’s financial position,” and that he believed he was being “pressured to do something illegal.”4 W-2 AF, Tab 4 at 10-13. ¶6 Several years later, on October 19, 2020, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency retaliated against him for his disclosures regarding the $5.9 million FMS IA by taking certain personnel actions, including: (1) revoking his authority to sign IAs over $5 million in September 2017; (2) lowering his rating to exceeds fully successful5 in October 2017; (3) issuing him a letter of counseling in October 2019; (4) lowering his rating to exceeds fully successful in October 2019; (5) subjecting him to a random drug test in November 2019; (6) placing him on administrative leave in June 2020; and (7) issuing him a letter of reprimand in July 2020. Turner v. Department of Agriculture, MSPB Docket No. DC-1221-21-0292-W-1, Initial Appeal File (IAF), Tab 1 at 7, Tab 12 at 10-39. After OSC notified the appellant that it had concluded its investigation, the appellant filed an IRA appeal with the Board, asserting the same claims he raised before OSC. IAF, Tab 1. The 4 Eventually, in August 2017, the appellant signed a $6.3 million FMS IA, which contained modified language setting forth the exact services provided to FMS, when those services would terminate, and stating that anything outside of those services would be subject to a new agreement. HT 1 at 59-61, 179-80 (testimony of the appellant). 5 Although the appellant alleges that he received a “superior” rating on his FY17 and FY19 performance evaluations, IAF, Tab 6 at 7-9, 11-12, the agency’s performance management system does not have a “superior” rating, but instead, the second from the top rating is an “exceeds fully successful” rating, W-2 AF, Tab 4 at 50. We will use the terminology reflected in the agency’s performance management system. 5 administrative judge issued a jurisdictional order in which she apprised the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordered him to submit evidence and argument establishing Board jurisdiction. IAF, Tab 3. The appellant responded to the order, IAF, Tabs 6-12, and the administrative judge found that the appellant exhausted his administrative remedies and made a nonfrivolous allegation of jurisdiction, IAF, Tab 26. ¶7 After holding a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. W-2 AF, Tab 23, Initial Decision (ID). Specifically, the administrative judge found that the appellant failed to establish that he held a reasonable belief that his disclosures about the $5.9 million FMS IA evidenced a violation of law, rule, or regulation. ID at 10-12. Thus, she found that the appellant failed to establish by preponderant evidence that he made a protected disclosure and denied his request for corrective action.6 ID at 12-13. ¶8 The appellant has filed a petition for review, arguing that his disclosures regarding the $5.9 million FMS IA were protected because he held a reasonable belief that they evidenced a violation of the Antideficiency Act, which governs the expenditure of Federal funds. Petition for Review (PFR) File, Tab 1 at 6-27. The appellant also asserts that the reasonableness of his belief is supported by the 6 The appellant also alleged to OSC and before the administrative judge that he made protected disclosures when, from August 2017 through 2019, he raised concerns that NFC’s computer systems were not secure and that the agency needed to fill critical information technology positions. IAF, Tab 1 at 22, Tab 26 at 1-2. However, the appellant seemingly abandoned this disclosure prior to the hearing, as he did not object to the prehearing order which did not include the disclosure, the disclosure is not addressed in the initial decision, and the appellant has not raised it as an issue on review. See Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 18 (summarizing factors to be considered when determining whether an appellant waived or abandoned an affirmative defense, to include the degree to which the appellant pursued the defense after raising it, and whether the appellant objected to the defense’s exclusion from the summary of issues to be decided). Accordingly, we do not address it. 6 testimony of three witnesses, which the administrative judge failed to consider. Id. at 10-18, 26-27. The agency responded in opposition to the appellant’s petition for review, and the appellant replied to the agency’s response. PFR File, Tabs 3-4. ANALYSIS NAF employees of non-military instrumentalities meet the definition of employee under 5 U.S.C. § 2105(a) and therefore can file IRA appeals. ¶9 First, because we are presented with the unique situation of an NAF employee who is not employed by a military exchange or instrumentality, we take this opportunity to clarify that NAF employees of non-military instrumentalities may file IRA appeals. The Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board, as well as the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), broadly have held that NAF employees have no right to file IRA appeals with the Board. See Clark v. Merit Systems Protection Board, 361 F.3d 647, 650-51 (Fed. Cir. 2004) (finding that employees serving in NAF positions have no right to file IRA appeals); DeGrella v. Department of the Air Force, 2022 MSPB 44, ¶¶ 9-15 (same); Clark v. Army and Air Force Exchange Service, 57 M.S.P.R. 43, 44-46 (1993) (same). However, the cases cited address the Board’s jurisdiction over IRA appeals filed by NAF employees of military exchanges or instrumentalities. It does not appear that the Board has ever made a pronouncement in a precedential decision as to its jurisdiction when, as here, the NAF employee does not work for a military exchange or instrumentality. Accordingly, although neither party disputes the Board’s jurisdiction, we take the opportunity to address the basis of the jurisdiction here. ¶10 The right to file an IRA appeal with the Board derives from 5 U.S.C. § 1221(a), which provides a right to seek corrective action from the Board to “an employee, former employee, or applicant for employment.” Maloney v. Executive 7 Office of the President, 2022 MSPB 26, ¶ 33. To be an employee under section 1221(a), an individual must meet the definition of employee under 5 U.S.C. § 2105. Id. Under 5 U.S.C. § 2105(a), an “employee” is an officer and an individual: (1) who is appointed in the civil service by one of the types of individuals enumerated in the statute acting in their official capacity; (2) engaged in the performance of a Federal function under authority of law or an Executive act; and (3) subject to the supervision of an authorized official while engaged in the performance of the duties of his position. Id. ¶11 As relevant to our discussion here, section 2105 also excludes certain categories of individuals from the definition of employee. For instance, pursuant to 5 U.S.C. § 2105(c), an NAF employee of “the Army and Air Force Exchange Service, Navy Ships Stores Program, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces,” with certain exceptions not applicable here, are excluded from the definition of “employee” for the purpose of laws administered by the Office of Personnel Management.7 The Board and the Federal Circuit have held that, for the purpose of laws administered by the Office of Personnel Management, NAF employees of military instrumentalities cannot file IRA appeals because they do not meet the definition of employee under 5 U.S.C. § 2105. Clark, 361 F.3d at 650-51; DeGrella, 2022 MSPB 44, ¶¶ 9-15; Clark, 57 M.S.P.R. at 44-46. However, when, as here, an appellant is an NAF employee of a non-military instrumentality, the exclusion set forth in 5 U.S.C. § 2105(c) does not apply. Thus, the Board has 7 The Board and the Federal Circuit have found that the statutory provisions that allow an employee to seek corrective action from the Board by filing an IRA appeal, 5 U.S.C. §§ 1214(a)(3) and 1221(a), make them applicable to “employees” as defined in 5 U.S.C. § 2105. DeGrella, 2022 MSPB 44, ¶¶ 9-15; Clark, 57 M.S.P.R. at 44-46; see Clark, 361 F.3d at 650-51. 8 jurisdiction over appeals filed by NAF employees of non-military instrumentalities. The appellant established that he held a reasonable belief that his disclosures evidenced a violation of law. ¶12 Under the Whistleblower Protection Enhancement Act (WPEA), at the merits stage of the appeal, the appellant must prove by preponderant evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or activity was a contributing factor in an agency’s personnel action. Smith v. Department of the Army, 2022 MSPB 4, ¶ 13. If the appellant meets that burden, the agency is given an opportunity to prove by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure or activity. Id.; see 5 U.S.C. § 1221(e)(1)-(2). ¶13 The administrative judge found that the appellant did not hold a reasonable belief that his disclosures regarding the $5.9 million FMS IA evidenced a violation of law, rule, or regulation, finding that: (1) NFC charges were not established by law and could be changed; (2) the appellant and his supervisor worked together to ensure that NFC would fully recover its costs from FMS; and (3) IAs were part of a negotiation process that “inherently involve[d] estimating costs” which could be modified later. ID at 10-12. On review, the appellant disputes these findings, contending that his disclosures about the $5.9 million FMS IA evidenced a violation of law, rule, or regulation,8 pointing to the Antideficiency Act as an example of such a law. PFR File, Tab 1 at 6-19, 23-28. 8 Although the subheading in the appellant’s petition for review states that his disclosures about the $5.9 million FMS IA evidenced a substantial and specific danger to public safety, both on review and before the administrative judge, the appellant has only argued that his disclosures evidenced a violation of law, rule, or regulation. PFR File, Tab 1 at 23-26; W-2 AF, Tab 3 at 13-14. As this appears to be a typographical error, we do not address it further. 9 ¶14 A protected disclosure is a disclosure that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Smith, 2022 MSPB 4, ¶ 14. A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the actions of the Government evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Smith, 2022 MSPB 4, ¶ 14. The appellant need not prove that the matter disclosed actually established one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, he must only show that the matter disclosed was one that a reasonable person in his position would believe evidenced any of the situations specified in section 2302(b)(8)(A). Id. Furthermore, the Board has found that an employee need not wait until an actual violation of law occurs for his disclosure to be protected under whistleblower protection statutes. Covington v. Department of the Interior, 2023 MSPB 5, ¶ 38.9 ¶15 We find that a disinterested observer could reasonably conclude that the appellant’s disclosures regarding the $5.9 million FMS IA evidenced a violation of a law, rule, or regulation. While it is expected that IAs include only an estimate of the cost of services, which can be modified if needed, the initial estimation should nevertheless be based on actual projections of the anticipated 9 When, as here, a disclosure concerns a potential violation of law, as opposed to an event that has already taken place, an appellant must prove that he reasonably believed the potential wrongdoing was real and immediate. Covington, 2023 MSPB 5, ¶ 38. In order to strike a balance between preventing Government wrongdoing on the one hand and encouraging “healthy and normal” discussions of “possible courses of action” that may avoid such wrongdoing on the other hand, the determination of whether the disclosure is protected “depends on the facts.” Id. (quoting Reid v. Merit Systems Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007)). Under the circumstances present here, we find that the potential for wrongdoing was real and immediate. 10 cost of services. Here, NFC knew that $5.9 million was not representative of the actual cost of the services being provided to FMS when it requested the appellant sign the IA. HT 1 at 20-23 (testimony of the appellant), 270 (testimony of the appellant’s supervisor); W-2 AF, Tab 4 at 10-13, Tab 10 at 72-74. Thus, it appears that NFC was capitulating to what FMS was willing or able to pay for those services. HT 1 at 21-22 (testimony of the appellant); W-2 AF, Tab 4 at 10-13. ¶16 The appellant’s concerns are further supported by the fact that, according to the appellant, FMS had a history of not paying fully for the actual cost of NFC’s services. For instance, according to the appellant, in FY16, FMS only paid $5.4 million for administrative services which, in reality, cost $8.7 million.10 HT 1 at 150-51 (testimony of the appellant); W-2 AF, Tab 10 at 40-41. Additionally, the appellant testified that, although FMS had stated that it would remove certain services, i.e., human resource servicing, from NFC’s purview to reduce the cost, FMS never did so. HT 1 at 34-36 (testimony of the appellant). Therefore, according to the appellant, NFC continued to provide the same level of service even though FMS was unwilling to compensate NFC for that level of service. Id. at 21-23, 34-36 (testimony of the appellant). ¶17 The appellant has testified without dispute that NFC is a business center, which derives its budget solely from the fees it charges to its customers. HT 1 at 16 (testimony of the appellant). Using those fees, NFC must cover its own administrative and overhead expenses, and ideally obtain up to a 4% profit margin, which it can then use for capital investments. Id. at 16-20 (testimony of the appellant). Should FMS not pay the actual cost of NFC’s services, then NFC would have to subsidize FMS’s failure either by (1) reallocating funds from other 10 The appellant was not Director of NFC at the time the FY16 FMS IA was negotiated, and he testified that he did not know how FMS was able to pay less than $8.7 million. HT 1 at 147. 11 Federal agency customers (thus potentially increasing the cost of services for other agencies); (2) by covering the loss with its own profit margin; or (3) a combination thereof. Id. at 32-33, 41-42 (testimony of the appellant); IAF, Tab 6 at 37-38; W-2 AF, Tab 10 at 74. ¶18 The appellant claimed that allowing FMS to only pay $5.9 million would be illegal because other customers, which were funded by appropriated funds, would have to pay more than services to them cost in order to subsidize the discount to FMS. IAF, Tab 6 at 37-38; W-2 AF, Tab 10 at 74; HT 1 at 32-33, 41-42 (testimony of the appellant). Three witnesses, all of whom had knowledge of the FMS IA negotiation process, testified, among other things, that they would not have signed an IA under similar circumstances because it would violate the Antideficiency Act. Hearing Transcript, Sept. 28, 2021, at 11-12, 32, 35 (testimony of the agency’s former Deputy Director of the Government Employees Services Division), 80-82, 90-91 (testimony of the agency’s former Director of Information Technology Services Division), 144-45 (testimony of the agency’s Acting Director of NFC). Although not dispositive, the fact that other knowledgeable agency employees and former employees shared the appellant’s concerns lends some support to the reasonableness of his belief. See Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) (explaining the fact that other similarly situated employees shared the same belief “may be of some relevance” in determining whether an appellant’s belief was reasonable). Furthermore, on its face, it is not unreasonable to believe charging a customer $5.9 million for services worth $10.2 million, which would cause NFC to experience financial strain and/or lead to overcharging other Federal clients, violates a law, rule, or regulation. See HT 1 at 150-52 (testimony of the appellant); W-2 AF, Tab 10 at 40-41. Accordingly, we find that the appellant proved by preponderant evidence that his $5.9 million FMS IA disclosures were protected because he held 12 a reasonable belief that his disclosures evidenced a violation of law, rule, or regulation.11 The appeal must be remanded for further proceedings. ¶19 The administrative judge made no findings beyond finding that the appellant did not prove that he made a protected disclosure. Although the record is well developed, the administrative judge, as the hearing officer, is in the best position to make factual findings and credibility determinations. Salazar v. Department of Veterans Affairs, 2022 MSPB 42, ¶ 35. Therefore, we find it appropriate to remand this matter for the administrative judge to determine whether the appellant established that his protected disclosures were a contributing factor in the identified personnel actions,12 and, if so, whether the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the protected disclosures.13 5 U.S.C. § 1221(e)(1)-(2). 11 One part of the whistleblower protection statutory scheme makes it a prohibited personnel practice to take an action against an employee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D); see Fisher v. Department of the Interior, 2023 MSPB 11, ¶¶ 11-12. Although the events set forth by the appellant could implicate this provision, the appellant, who has been represented by counsel throughout these proceedings, has not argued that this provision applies. Thus, we need not consider it. 12 The administrative judge should also consider whether the fifth accepted personnel action, selection for random drug testing, is, in fact, a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), i.e., a significant change in duties, responsibilities, or working conditions. W-2 AF, Tab 11 at 4. 13 An issue that the administrative judge may need to address on remand is whether the appellant’s disclosures were made during the normal course of his duties. In a prior version of the statute enacted in the WPEA, 5 U.S.C. § 2302(f)(2) provided that disclosures “made during the course of duties of an employee” are protected if the appellant shows that the agency took a personnel action “in reprisal for” the disclosures. Salazar, 2022 MSPB 42, ¶ 10 (citing 5 U.S.C. § 2302(f)(2)). The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA) amended section 2302(f)(2), adding language that the provision applies to employees whose “principal job function . . . is to regularly investigate and disclose wrongdoing.” Pub. 13 ORDER ¶20 For the reasons discussed above, we remand this case to the administrative judge for further adjudication in accordance with this Remand Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). As the Board held in Salazar, 2022 MSPB 42, ¶¶ 15-21, the 2018 NDAA clarified the intent of 5 U.S.C. § 2302(f)(2), and therefore, the language of that subsection, as amended by the 2018 NDAA, applies retroactively to all pending cases, even if the events at issued occurred before the 2018 NDAA was enacted.	https://www.mspb.gov/decisions/precedential/TURNER_CALVIN_WESLEY_DC_1221_21_0292_W_2_OPINION_AND_ORDER_2064323.pdf
08-24-2023	2023 MSPB 24	Iris Cooper	https://www.mspb.gov/decisions/precedential/COOPER_IRIS_DC_1221_15_1168_W_1_OPINION_AND_ORDER_2062519.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 24 Docket No. DC-1221-15-1168-W-1 Iris Cooper, Appellant, v. Department of Veterans Affairs, Agency. August 24, 2023 Scott Oswald, Esquire, and Nicholas Woodfield, Esquire, Washington, D.C., for the appellant. Richard Johns, Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member 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 case to the regional office for further adjudication in accordance with this Opinion and Order. BACKGROUND ¶2 The appellant was formerly employed by the Department of Veterans Affairs (VA or agency) as the Associate Deputy Assistant Secretary for 2 Acquisitions, a Senior Executive Service position, until January 2014 when she accepted a position with the Department of the Treasury. Initial Appeal File (IAF), Tab 1 at 6, 19. On September 18, 2015, she filed this IRA appeal alleging that the agency took various personnel actions against her in reprisal for protected disclosures she made between 2009 and 2014. IAF, Tab 1. In particular, she alleged that from June 2012 to December 2014, her former supervisor, the Deputy Assistant Secretary for the Office of Acquisitions and Logistics, caused the VA Office of Inspector General (VA OIG) to investigate her, dissuaded the VA OIG from abandoning its investigation, caused the VA OIG to issue a report containing false conclusions about her conduct related to a particular Government contract, and threatened that he wanted to send the report to the Department of the Treasury to ruin her career. IAF, Tab 7 at 6, 13-15, 17-18; Tab 14 at 12. The appellant also alleged that, following the issuance of the VA OIG report in December 2014, the Department of the Treasury conducted its own investigation regarding the allegations against her, during which time it temporarily withheld her 2014 raise and bonus. IAF, Tab 7 at 33. Additionally, she alleged that, also following the VA OIG report, in February 2015, the VA retroactively downgraded her 2012 performance evaluation from an Outstanding rating to an Unsatisfactory rating. Id. at 35. Finally, she alleged that her former VA supervisor removed her responsibility for approving Federal Acquisition Certification for Contracting (FAC-C) certifications for interns. Id. at 8; IAF, Tab 1 at 47-48. ¶3 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 19, Initial Decision (ID). The administrative judge found that the appellant failed to nonfrivolously allege that the removal of her ability to grant FAC-C certifications to interns constituted a significant change in duties, responsibilities, or working conditions because it appeared from her submissions that this job duty 3 arose once per year, which did not suggest that it was significant in relation to her overall duties.1 ID at 5-7. Next, the administrative judge found that the VA OIG investigation, including its initiation, continuation, and ultimate report of investigation, did not amount to a personnel action under 5 U.S.C. § 2302(a)(2). ID at 4. He further concluded that the appellant’s allegations concerning the OIG investigation did not provide a basis for Board jurisdiction because the appellant did not identify any personnel action related to the OIG investigation. ID at 4-5. Although he considered the appellant’s claim that, in March 2015, following the issuance of the VA OIG report in December 2014, the VA retroactively downgraded her 2012 performance evaluation, he found that she failed to prove that she exhausted this personnel action before the Office of Special Counsel (OSC). Id. Finally, the administrative judge found that the appellant’s allegation that the agency threatened to remove her from her position at the Department of the Treasury failed to constitute a nonfrivolous allegation that she was subjected to a personnel action because the VA lacked the authority to remove her from her position at another agency. ID at 5 n.2. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition, and the appellant has filed a reply. PFR File, Tabs 3-4. 1 The appellant does not challenge this finding on review, and we discern no error in the administrative judge’s analysis, considering the standard set forth in Skarada v. Department of Veterans Affairs, 2022 MSPB 17, which was decided after the issuance of the initial decision. See Skarada, 2022 MSPB 17, ¶¶ 15-16 (holding that to constitute a significant change under 5 U.S.C. § 2302(a)(2)(A)(xii), an agency action must have practical and significant effects on the overall nature or quality of an employee’s working conditions, responsibilities, or duties). 4 ANALYSIS The appellant has established that she exhausted before OSC some, but not all, of her alleged personnel actions. ¶5 Under 5 U.S.C. § 1214(a)(3), to establish Board jurisdiction over an IRA appeal, an appellant must prove by preponderant evidence that she exhausted administrative remedies with OSC before seeking corrective action from the Board. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The substantive requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Id. The purpose of the exhaustion requirement is to give OSC the opportunity to take corrective action before involving the Board in the case. Id. Thus, the Board’s jurisdiction in an IRA appeal is limited to those issues that have been raised with OSC. Id. An appellant, however, may give a more detailed account of the whistleblowing or protected activity before the Board than was given to OSC. Id. ¶6 The record reflects that the appellant alleged in her OSC complaint that, in reprisal for her alleged disclosures, her former VA supervisor caused the VA OIG to investigate her actions related to the award of a contract to a particular contractor, dissuaded the VA OIG from abandoning its investigation, caused the VA OIG to issue a report containing untrue allegations about her, and threatened to send the report to the Department of the Treasury to ruin the appellant’s career. IAF, Tab 1 at 26-52. Thus, we find that she exhausted such claims before OSC. ¶7 However, nothing in the record indicates that she raised before OSC her claim that, in February 2015, following the December 2014 OIG report, the VA downgraded her 2012 performance evaluation. IAF, Tab 7 at 35. On review, the appellant has not presented any evidence that such a claim was raised before OSC; rather, she asserts that, had OSC pursued an investigation of her claims, it would have discovered the downgrade of her 2012 performance evaluation. PFR File, Tab 1 at 12. Although an appellant can give a more detailed account of her whistleblowing activities before the Board than she did to OSC, see Chambers, 5 2022 MSPB 8, ¶ 10, we find that the appellant’s claim regarding her performance evaluation amounts to a new allegation that was not presented to OSC. In Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 10 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015), the Board found that an appellant’s claims were not exhausted because he presented new allegations rather than providing a more detailed account of the claims presented to OSC. Consistent with Miller, we agree with the administrative judge that the appellant has not shown that she exhausted her administrative remedies with OSC regarding her performance evaluation.2 ID at 5. The appellant has nonfrivolously alleged that she was subjected to a threat of removal. ¶8 In addition to exhausting remedies with OSC as discussed above, to establish Board jurisdiction over an IRA appeal, an appellant must make nonfrivolous allegations3 that: (1) she 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. 2 If the appellant has filed or intends to file an OSC complaint regarding the downgrade of her 2012 performance evaluation, she may file a new IRA appeal regarding such a claim. Such an appeal must be filed consistent with law and the Board’s regulations. Under 5 U.S.C. § 1214(a)(3), an appellant may file an IRA appeal with the Board once OSC closes its investigation into her complaint and no more than 60 days have elapsed since notification of the closure was provided to her or 120 days have elapsed since she sought corrective action from OSC and she has not been notified by OSC that it shall seek corrective action on her behalf. Wells v. Department of Homeland Security, 102 M.S.P.R. 36, ¶ 6 (2006). 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1368 (Fed. Cir. 2020). 6 § 2302(a)(2)(A).4 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Chambers, 2022 MSPB 8, ¶ 14; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. § 1201.57(a)(1), (b), (c). We start our analysis by discussing whether a personnel action was threatened against the appellant, including whether a personnel action can be considered threatened when the two individuals involved work for different Federal agencies. We then turn to whether the appellant made a protected disclosure and whether a protected disclosure was a contributing factor in a personnel action. ¶9 “Personnel actions” are defined as follows: (i) appointments; (ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements; (vi) restorations; (vii) reemployments; (viii) performance evaluations under 5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or awards, or involving education or training if it reasonably may be expected to lead to an appointment, promotion, performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing or examination; (xi) implementations or enforcements of any nondisclosure policy, form, or agreement; and (xii) any other significant changes in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A). Absent any disciplinary action, however, the mere threat of disciplinary action can amount to a personnel action. 5 U.S.C. § 2302(b)(8)-(9); see Spivey v. Department of Justice, 2022 MSPB 24, ¶ 7; Hoback v. Department of the Treasury, 86 M.S.P.R. 4 This appeal involves events that occurred both before and after the December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, §§ 101(b)(1)(A), 202, 126 Stat. 1465, 1476, which expanded the Board’s IRA jurisdiction. However, the changes made by the WPEA do not affect our jurisdictional analysis because the appellant’s claims of reprisal that occurred before the effective date of the WPEA all arise under section 2302(b)(8). 7 425, ¶¶ 9-10 (2000) (clarifying that a threat of discipline is a covered personnel action); 5 C.F.R. §§ 1209.2(a), 1209.6(a)(5)(i). ¶10 The appellant alleged that her former supervisor at the VA threatened to have her removed from the Department of the Treasury based on the following actions: (1) in June 2012, he filed an anonymous complaint with the VA OIG alleging that she improperly awarded a contract based on her personal association with an owner of the company; (2) he caused the VA OIG to continue its investigation of her after she left the agency, notwithstanding the VA OIG’s intent to abandon its investigation; (3) he caused the VA OIG to issue a report on December 8, 2014, that contained untrue statements about her; and (4) he stated to the appellant’s former coworker that he pressured the VA OIG to issue the report, that he was going to send a copy of the VA OIG report to the Department of the Treasury, that he wanted to ruin the appellant’s career, and that he hoped that she would end up in jail. IAF, Tab 7 at 13-15, 17-18; Tab 14 at 12. The administrative judge, in a footnote, found that the appellant failed to raise a nonfrivolous allegation that she was subjected to a threat of removal because the VA lacked the authority to take or effect any employment action after the appellant became employed by the Department of the Treasury. ID at 5 n.2. On review, the appellant asserts that the administrative judge erred in finding that she failed to nonfrivolously allege that she was subjected to a personnel action and that her subsequent transfer to work for the Department of the Treasury does not preclude Board jurisdiction over her claims. PFR File, Tab 1 at 25-29. ¶11 We find that the appellant has nonfrivolously alleged that her former supervisor had the authority to recommend a personnel action. The administrative judge did not cite any authority in support of his finding that the agency lacked the authority to take or effect any action against her. Under 5 U.S.C. § 2302(b), it is a prohibited personnel practice for “[a]ny employee who has the authority to take, direct others to take, recommend, or approve any personnel action” to “take or fail to take, or threaten to take or fail to take, a 8 personnel action” because of an employee’s protected disclosures or activities. 5 U.S.C. § 2302(b)(8)-(9). The Board has construed the exercise of supervisory or personnel authority under 5 U.S.C. § 2302(b) quite broadly to include instances where a manager’s recommendation or threat that an employee be removed is given some weight and consideration, even if no action was ultimately taken against the employee. See Caster v. Department of the Army, 62 M.S.P.R. 436, 443 (1994) aff’d sub nom. Manning v. Merit Systems Protection Board, 59 F.3d 180 (Fed. Cir. 1995) (Table). Moreover, the Board has held that an employee need not be employed by the agency alleged to have retaliated against her so long as she meets the definition of an “employee.” See Weed v. Social Security Administration, 113 M.S.P.R. 221, 227 (2010). Here, at the time of the alleged retaliatory actions, the appellant was employed by the VA and, as of January 2014, the Department of the Treasury, neither of which is excluded from the definition of agency under 5 U.S.C. § 2302(a)(2)(C). ¶12 Next, we address whether the appellant has nonfrivolously alleged that she was subjected to a threat of a personnel action. As set forth below, we conclude that the appellant raised a nonfrivolous allegation that her former supervisor threatened to have her removed. The Board has held that the term “threaten” in section 2302 should be given a fairly broad interpretation. Campo v. Department of the Army, 93 M.S.P.R. 1, ¶ 5 (2002). In Gergick v. General Services Administration, 43 M.S.P.R. 651, 654 (1990), an agency investigation resulted in a record of inquiry in which the agency notified the appellant that it appeared that he had violated the agency’s standards of acceptable conduct or behavior, which could result in disciplinary action. The Board found that the record of inquiry amounted to a threat to take a personnel action, reasoning that, although the record of inquiry did not state that any discipline was being proposed, the language nonetheless indicated that discipline was possible. Id. at 654-57. The Board further highlighted that the likelihood of discipline was not insignificant 9 given that the record of inquiry was issued following an investigation of the appellant’s activities that resulted in a substantial file. Id. at 657. ¶13 Here, although the VA OIG report did not recommend any discipline because the appellant was no longer employed at the VA, IAF, Tab 7 at 221, the possibility of the appellant being disciplined based on the severity of the substantiated allegations against her as a high-ranking Government official would not be insignificant. Additionally, the appellant further alleged that her former supervisor made the complaint to the VA OIG that caused the OIG to investigate her, that he routinely threatened other employees that he would have the VA OIG investigate them, and that, due to his control over a supply fund which partially funded the salaries of VA OIG employees, he exerted control and/or influence over the VA OIG. IAF, Tab 7 at 14-15. Finally, the appellant alleged that her former supervisor admitted to another employee that he had convinced the VA OIG to issue the December 2014 report, notwithstanding the VA OIG’s stated intent to abandon its investigation after the appellant left the VA, and that he was going to send the report to the Department of the Treasury because he wanted to ruin the appellant’s career and see her go to jail. Id. at 33-34. Moreover, the Department of the Treasury conducted its own investigation and concluded that “witness testimony consistently indicated that the VA OIG was directed by a senior official at the VA to conduct the VA OIG investigation, and have it released months after [the appellant] left the VA, in an effort to ruin [her] career and reputation.” IAF, Tab 14 at 17. We find that such allegations, taken together, amount to a nonfrivolous allegation of a threat to remove the appellant. See 5 U.S.C. § 2302(a)(2)(A)(iii) (listing an action under chapter 75 as a personnel action). In so finding, under the circumstances of this case, we broadly interpret the word “take” in 5 U.S.C. § 2302(b)(8), given that the section covers employees who also have the authority to recommend personnel actions, see Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 23 (construing the whistleblower statutes liberally to embrace all cases fairly within their scope), 10 and given the ordinary, contemporary, and common meaning of the word “take,” see Webster’s Third New International Dictionary 2330 (1993) (defining “take” as, among other things, “undertake” or “set in motion”); see also Maloney, 2022 MSPB 26, ¶ 13 (referring to dictionary definitions in the absence of a statutory definition or clear guidance in the legislative history). Although we acknowledge that the Department of the Treasury’s report of investigation completely exonerated the appellant, IAF, Tab 14, the fact that it declined to carry out the threat to remove her is not dispositive because whether a threatened action is carried out or not does not determine the Board’s jurisdiction in an IRA appeal, see Hoback, 86 M.S.P.R. 425, ¶ 9. Accordingly, we find that the appellant has nonfrivolously alleged that she was subjected to a personnel action.5 5 On review, the appellant also asserts that the administrative judge erred in failing to address her argument that the VA OIG investigation, including its initiation, continuation, and ultimate report of findings, amounted to a significant change in her working conditions. PFR File, Tab 1 at 16. She alleges that the VA OIG report cast a shadow over her many successes in her career and received media attention, and she was forced to undergo a second investigation by the Department of the Treasury, during which they temporarily withheld her 2014 raise and bonus. IAF, Tab 7 at 30, 33; PFR File, Tab 1 at 23-24. We find that such assertions fail to amount to a nonfrivolous allegation of a “significant change” personnel action because the appellant has not alleged any practical or significant effects that the investigation had on the overall nature of her working conditions, duties, or responsibilities. See Spivey, 2022 MSPB 24, ¶ 13 (finding that the appellant did not nonfrivolously allege that she suffered a significant change in duties, responsibilities, or working conditions based on her participation in an interview and preparation of an affidavit as part of an agency investigation); Skarada, 2022 MSPB 17, ¶¶ 15-16; S. Rep. No. 112-155, at 20 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 608 (explaining that agency investigations come within the definition of a personnel action only if they result in a significant change in job duties, responsibilities, or working conditions, or have effects that otherwise fit within one of the items listed under the statutory definition of “personnel action”). Furthermore, although the Department of the Treasury’s 2014 withholding of the appellant’s raise and bonus would qualify as a personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix), there is no evidence that the appellant exhausted this claim before OSC. 11 The appellant has nonfrivolously alleged that she made protected disclosures. ¶14 We now turn to whether the appellant nonfrivolously alleged that she made a protected disclosure. A protected disclosure is one which the employee “reasonably believes evidences: (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). The proper test for determining whether an employee had a reasonable belief that her disclosure was protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8). Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 28 (2014). The test for protected status is not the truth of the matter disclosed but whether it was reasonably believed. Id. A reasonable belief that a violation of law is imminent is sufficient to establish a protected disclosure. Reid v. Merit Systems Protection Board, 508 F.3d 674, 676-78 (Fed. Cir. 2007). A disclosure of a violation of a Federal Acquisition Regulation (FAR) can evidence a violation of law, rule, or regulation. See McCarthy v. International Boundary and Water Commission, 116 M.S.P.R. 594, ¶ 37 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 20 (2010). ¶15 Because the administrative judge found that the appellant failed to raise a nonfrivolous allegation that she was subjected to a personnel action, he did not address whether she raised nonfrivolous allegations that she made a protected disclosure. Thus, we do so now. 12 ¶16 Regarding disclosures of alleged FAR violations, the appellant contended that she disclosed the following: (1) in December 2010,6 she informed her former supervisor that efforts to rewrite a technical evaluation so that it would result in the type of furniture they wanted were improper because technical evaluation requirements cannot be altered unless the solicitation is amended and all vendors have the opportunity to revise their proposals; (2) in 2011 and 2012, she disclosed to her former supervisor and her former second-level supervisor, among others, that a contractor was working outside the original scope of its contract to provide acquisition policy support; (3) in June 2012, she disclosed to her former supervisor, among others, that delaying awarding contracts to big businesses and placing the money in the supply fund to hold until the next fiscal year was illegal; and (4) in 2013, she disclosed to her former second-level supervisor and the Director of Policy that the agency’s use of the services of a support contractor on a sole-source basis was improper because the services they provided for acquisition policy support were not unique enough to justify a sole-source contract. IAF, Tab 7 at 23-28, 179. ¶17 Regarding disclosure 1, the appellant alleges that she reasonably believed that she disclosed a violation of law because having a contractor provide significant changes to the furniture from what was competed violated the requirements in the FAR that all quotes received be fairly considered and the award be made in accordance with the basis for selection in the request for quotes. Id. at 24-25, 182-83. Regarding disclosure 2, the appellant contends that the contractor was working outside of its contract by holding outreach events to train vendors on the VA acquisition process, an inherently governmental function. Id. at 25. Regarding disclosure 3, the appellant asserts that she reasonably 6 The appellant also alleged that she later made this same disclosure during her testimony before an Administrative Investigative Board (AIB) on October 30, 2013. IAF, Tab 7 at 16, 129-32. 13 believed that this action would violate the FAR provision which prohibits the Government from requesting a proposal that it could not or did not intend to award or fund, as well as appropriations laws that she understood to allot money to agencies on a yearly basis and to take away money not spent at the end of the fiscal year. Id. at 27-28, 179-80. Regarding disclosure 4, the appellant contends that she reasonably believed she was disclosing a violation of the FAR provision that requires the Government to ensure that companies compete for Government contracts. Id. at 23. We find that the appellant was in a position to reasonably believe that her disclosures evidenced FAR violations given her background experience and employment as the Associate Deputy Assistant Secretary for Acquisitions. See, e.g., Kalil v. Department of Agriculture, 96 M.S.P.R. 77, 84-85 (2004) (considering the appellant’s status as an attorney in determining whether he reasonably believed his disclosures amounted to violations of law). Moreover, any doubt or ambiguity as to whether the appellant has made a nonfrivolous allegation of a reasonable belief should be resolved in favor of affording the appellant a hearing. Id. at 85; Ivey v. Department of the Treasury, 94 M.S.P.R. 224, ¶ 13 (2003). Thus, regarding these matters, we find that the appellant nonfrivolously alleged that she made a disclosure concerning a violation of law, rule, or regulation. ¶18 The appellant also alleges that she disclosed additional violations of law, rule, or regulation, including: (5) in September 2009 and October 2010, she disclosed to her former supervisor that his request that she grant FAC-C Level 1 certifications to interns after completing 1 year at the VA Acquisition Academy was a violation of certification requirements;7 and (6) in 2011 and 2012, she objected to her second-level supervisor that a contractor was being used as an industry advisory group to circumvent the requirements of the Federal Advisory 7 The appellant also alleged that she later made this same disclosure during her testimony before an AIB on October 30, 2013. IAF, Tab 7 at 16, 134-35. 14 Committee Act (FACA) which established a process for setting up advisory groups through the General Services Administration (GSA). IAF, Tab 7 at 20-21, 25-26. Regarding disclosure 5, the appellant asserts that the interns’ experience was predominately classroom-based and lacked the hands-on experience required to meet the 1 year of contract work experience requirement. Id. at 20-21, 179. The appellant’s belief that proper certification required 1 year of work experience based on the Contract Specialist (GS-1102) Qualification Standard is purportedly supported by the Federal Acquisition Institute (FAI)’s Certification Requirements as well as a 2014 memorandum regarding revisions to the FAC-C Certification from the Office of Federal Procurement Policy. Id. at 21-22; see GSA, FAI, FAC-C (Legacy) Certification Requirements, https://www.fai.gov/certificati on/fac-c/contracting-fac/fac-c-legacy-cert-reqs (last visited Aug. 8, 2023); Memorandum for Chief Acquisition Officers Senior Procurement Executives from Lesley A. Field, Acting Administrator of the Office of Management and Budget (May 7, 2014), https://www.fai.gov/sites/default/files/2014-05-07-FAC- C_Refresh.pdf.8 Thus, regarding this matter, we find that the appellant has nonfrivolously alleged that she disclosed a violation of a rule. See Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 25 (2013) (stating that the Board has suggested that “rule” includes established or authoritative standards for conduct or behavior); Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶¶ 15-16 (2002) (finding that alleged disclosures of violations of an agency’s procurement instruction memorandum and a Government commercial credit card program constituted nonfrivolous allegations of violations of rules). Regarding disclosure 6, the appellant asserts that she had a reasonable belief that her former supervisors used a contractor to set up an advisory group in conjunction with a major university without obtaining GSA approval because she heard her former 8 The links to these documents that the appellant provided with her jurisdictional submission in 2015 appear to be no longer available. IAF, Tab 7 at 20-21. 15 supervisor boast in meetings that he had circumvented FACA. IAF, Tab 7 at 179. As with the appellant’s above-referenced alleged violations of law, we find that, given her experience and position, she nonfrivolously alleged that she had a reasonable belief that she was disclosing a violation of law, rule, or regulation. ¶19 We also find that the appellant nonfrivolously alleged that she disclosed an abuse of authority by her former supervisor during her October 30, 2013 testimony before an Administrative Investigative Board (AIB).9 In particular, the appellant alleges that, during her testimony, she disclosed that her former supervisor used the VA OIG as a form of intimidation against anybody who dared cross him as well as made abusive comments and engaged in alleged harassment and intimidation. IAF, Tab 7 at 15-16, 111. She also alleges that, from Spring 2012 through January 2014, she disclosed monthly to her former supervisor and her former second-level supervisor that her former supervisor was refusing to correct inaccurate data presented during monthly meetings with her peers across the agency and manipulating data to discredit and embarrass her. Id. at 26-27. We find such allegations amount to a nonfrivolous allegation of a disclosure of an abuse of authority. See Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 27 (2015) (explaining that an abuse of authority occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons), aff’d, 9 Effective December 12, 2017, the National Defense Authorization Act of 2018 (2018 NDAA) amended 5 U.S.C. § 2302(b)(9)(C) to provide that, in addition to the Inspector General of an agency or the Special Counsel, a disclosure to “any other component responsible for internal investigation or review” is also protected. Pub. L. No. 115-91, § 1097(c)(1), 131 Stat. 1283, 1618 (2017). We need not decide whether the appellant’s 2013 AIB testimony also falls within the coverage of the amended section 2302(b)(9)(C) because the statutory provision is not retroactive. Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 29-33, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). In any event, we find, as discussed here, that the appellant nonfrivolously alleged that she made a protected disclosure. 16 652 F. App’x 971 (Fed. Cir. 2016); Murphy v. Department of the Treasury, 86 M.S.P.R. 131, ¶ 6 (2000) (stating that a supervisor’s use of his influence to denigrate other staff members in an abusive manner and to threaten the careers of staff members with whom he disagrees constitutes an abuse of authority). Accordingly, in sum, we find that the appellant nonfrivolously alleged that she disclosed violations of law, rule, or regulation and an abuse of authority.10 The appellant has nonfrivolously alleged that her alleged disclosures were a contributing factor in the agency’s decision to threaten her removal. ¶20 An appellant may meet her jurisdictional burden regarding the contributing factor element if she nonfrivolously alleges that the official who took or threatened to take the personnel action at issue knew of the protected whistleblowing disclosures or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosures or activity were a contributing factor in the personnel action. Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 7 (2014). The Board has found that personnel actions alleged to have begun within 1 to 2 years of the appellant’s protected whistleblowing disclosures or activity satisfy the timing prong of this knowledge/timing test. See, e.g., Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 20-22 (2015). ¶21 Except for the appellant’s alleged disclosures regarding a contractor being improperly used on a sole-source basis and a second contractor being improperly used as an industry advisory group, and alleged disclosures made during her AIB testimony, the appellant’s remaining alleged disclosures were all made to her 10 To the extent the appellant alleges that she engaged in protected activity by filing an equal employment opportunity complaint (EEO) against her former supervisor, IAF, Tab 7 at 28, we find such an allegation fails to amount to a nonfrivolous allegation that she engaged in protected activity under section 2302(b)(9), see Edwards, 2022 MSPB 9, ¶ 25 (holding that complaints to the EEO office regarding discrimination are not within the purview of section 2302(b)(9)(A)(i) and the Board lacks jurisdiction to consider such allegations in the context of an IRA appeal). 17 former supervisor, whom she alleges threatened her removal. Thus, her former supervisor had knowledge of such disclosures. Many of these alleged disclosures occurred between approximately October 201011 and June 2012, within 2 years prior to when the appellant’s former supervisor is alleged to have initiated the OIG investigation in July 2012. Although the VA OIG report and the appellant’s former supervisor’s comments regarding his intent to harm the appellant’s career did not occur until December 2014, we find that the appellant has nonfrivolously alleged that such actions were part of a continuum of related actions that commenced with the July 2012 OIG complaint. See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 22-23 (2013) (finding that an appellant could satisfy the timing prong of the knowledge/timing test by showing that the personnel actions at issue were part of a continuum of related performance-based actions, the first of which occurred within 2 years of the appellant’s disclosure). Moreover, the appellant also made alleged disclosures between Spring 2012 and January 2014 to her former supervisor, which were followed within 2 years by the December 2014 report. ¶22 Accordingly, we find that the appellant has nonfrivolously alleged that she made at least one protected disclosure that was a contributing factor in at least one covered personnel action. See Fitzgerald v. Department of Agriculture, 97 M.S.P.R. 181, ¶ 10 (2004). Thus, we find that she has established jurisdiction over this IRA appeal and is entitled to a hearing on the merits.12 Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(4). 11 Although one of the appellant’s alleged disclosures to her former supervisor occurred in September 2009, she alleges that she made the same disclosure on October 10, 2010. IAF, Tab 7 at 20, 47-48. 12 Because the appellant need only nonfrivolously allege that she made at least one protected disclosure that was a contributing factor in at least one personnel action to establish jurisdiction and entitlement to a hearing, we need not address the appellant’s remaining alleged protected disclosures. On remand, the administrative judge shall also address whether the appellant met her contributing factor burden under the 18 ORDER ¶23 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. knowledge/timing test or pursuant to the factors set forth in Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012) with respect to her alleged disclosures regarding a contractor being improperly used on a sole source basis, a second contractor being improperly used as an industry advisory group, and the appellant’s AIB testimony.	https://www.mspb.gov/decisions/precedential/COOPER_IRIS_DC_1221_15_1168_W_1_OPINION_AND_ORDER_2062519.pdf
08-17-2023	2023 MSPB 23	Nikesha Williams	https://www.mspb.gov/decisions/precedential/WILLIAMS_NIKESHA_YVETTE_PH_1221_18_0073_W_1_OPINION_AND_ORDER_2060311.pdf	Department of Defense	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 23 Docket No. PH-1221-18-0073-W-1 Nikesha Yvette Williams, Appellant, v. Department of Defense, Agency. August 17, 2023 Nikesha Yvette Williams, Yorktown, Virginia, pro se. Kimberly J. Lenoci, Hanscom Air Force Base, Massachusetts, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member 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 petition, REVERSE the initial decision, and REMAND for adjudication on the merits. BACKGROUND ¶2 On November 30, 2015, the appellant received an excepted-service appointment to a Quality Assurance Specialist (QAS) (Electronics) position with the Defense Contract Management Agency. Initial Appeal File (IAF), Tab 10 2 at 6. Her official duty station was at the Raytheon facility in Andover, Massachusetts. Id. As a QAS, her duties included “risk based surveillance” of supplier quality systems and notifying contracting offices of deficient contract and technical requirements. IAF, Tab 5 at 37-38. ¶3 Effective October 28, 2016, the agency terminated the appellant’s employment during her probationary period based on alleged performance and conduct issues. Id. at 55. The appellant subsequently filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC). IAF, Tab 1 at 18-44. In her complaint, she alleged that, in her role as QAS, she disclosed to management various instances of nonconformance during inspections at Raytheon, and that the agency terminated her employment in retaliation for those disclosures. Id. On November 3, 2017, OSC informed the appellant that it was closing its investigation into her complaint and advised her of her Board appeal rights, noting that her disclosures were subject to a higher evidentiary burden and citing 5 U.S.C. § 2302(f)(2). Id. at 138. ¶4 The appellant filed a timely IRA appeal and requested a hearing. IAF, Tab 1 at 1-5. The administrative judge informed the appellant of her burden of proof on jurisdiction and directed her to submit evidence and argument on the issue. IAF, Tab 4. Both parties responded to the order. IAF, Tabs 11-20. ¶5 In an initial decision dated February 2, 2018, the administrative judge dismissed the appeal for lack of jurisdiction without conducting the appellant’s requested hearing. IAF, Tab 21, Initial Decision (ID). The administrative judge found that the appellant had exhausted her administrative remedies with OSC concerning six alleged protected disclosures. ID at 4. He further found that the appellant nonfrivolously alleged that she reasonably believed two of those disclosures evidenced a violation of law, rule, or regulation, specifically, the Federal Acquisition Regulations. ID at 4-9; see 5 U.S.C. § 2302(b)(8)(A)(i). In addition, he found that the appellant made a nonfrivolous allegation that those 3 two disclosures were a contributing factor in her probationary termination. ID at 9-10. ¶6 However, the administrative judge further found that the appellant’s disclosures, which were made in the normal course of her duties, fell within the scope of 5 U.S.C. § 2302(f)(2), and would be excluded from protection under section 2302(b)(8) absent a showing that the agency took, failed to take, or threatened to take or fail to take a personnel action “in reprisal” for those disclosures.1 ID at 11. The administrative judge further reasoned that, in order to establish jurisdiction under these circumstances, the appellant was required to make a nonfrivolous allegation that the agency terminated her with an improper retaliatory motive. ID at 11-12. He concluded that the appellant failed to make such a nonfrivolous allegation, and thus failed to establish jurisdiction over her appeal. ID at 12-13. ¶7 The appellant filed a timely petition for review, in which she argues that the administrative judge erred in finding that she failed to nonfrivolously allege an improper retaliatory motive. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS Section 2302(f)(2) does not limit the Board’s IRA jurisdiction. ¶8 It is well settled that the Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations2 that (1) she made a protected disclosure described under 1 Lacking the benefit of the Board’s subsequent decision in Salazar v. Department of Veterans Affairs, 2022 MSPB 42, the administrative judge did not address whether the appellant’s principal job function was to investigate and report wrongdoing. 2 The Board’s regulation at 5 C.F.R. § 1201.4(s) defines a “nonfrivolous allegation” as “an assertion that, if proven, could establish the matter at issue” and specifies that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that: (1) is more than conclusory; (2) is 4 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 as defined under 5 U.S.C. § 2302(a). Smolinski v. Merit Systems Protection Board, 23 F.4th 1345, 1350 (Fed. Cir. 2022); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her claim, which she must prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. ¶9 In dismissing this appeal for lack of jurisdiction, the administrative judge assumed that in order for the appellant to nonfrivolously allege that her disclosures were protected under 5 U.S.C. § 2302(b)(8), she also had to make a nonfrivolous allegation that her disclosures were not excluded from protection by operation of 5 U.S.C. § 2302(f)(2). For the reasons discussed below, we find that 5 U.S.C. § 2302(f)(2) does not impose an additional jurisdictional requirement, but rather should be considered during the merits phase of adjudication. ¶10 The current version of 5 U.S.C. § 2302(f)(2), which specifically addresses disclosures made in an employee’s normal course of duties, provides: If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail plausible on its face; and (3) is material to the legal issues in the appeal. For purposes of determining IRA jurisdiction, “the question of whether the appellant has non-frivolously alleged protected disclosures that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020). 5 to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.3 The Whistleblower Protection Enhancement Act of 2012 (WPEA) first introduced the statutory language in 5 U.S.C. § 2302(f)(2) that a disclosure made in the normal course of duties is protected if the agency “took, failed to take, or threatened to take or fail to take a personnel action with respect to” an employee “in reprisal for the disclosure.” Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (2012). The legislative history of the WPEA makes clear that this language was intended as an “extra proof requirement,” such that an employee must “show not only that the agency took the personnel action ‘because of’ the disclosure, but also that the agency took the action with an improper, retaliatory motive.” S. Rep. No. 112-155, at 5-6 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 593-94; see also S. Rep. No. 115-74, at 8 (2017) (explaining that the 2018 NDAA amendment clarifies that a disclosure within the scope of section 2302(f)(2) will not be excluded from whistleblower protection laws “if the employee can demonstrate that a personnel action taken against him or her was in reprisal for a disclosure”). ¶11 However, we find nothing in the language of 5 U.S.C. § 2302(f)(2) or its legislative history to suggest that Congress intended for the extra proof requirement to limit the scope of the Board’s IRA jurisdiction, which only requires a nonfrivolous allegation that a disclosure or activity is protected and was a contributing factor in a personnel action. Rather, the use of the term “demonstrates” in the statute indicates that this is a merits consideration. “Demonstrate” is defined as “to show clearly,” and “to prove or make clear by 3 This version of 5 U.S.C. § 2302(f)(2) was enacted in December 2017 as part of the National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA), prior to the relevant events in this matter. Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). However, the Board has held that this version of 5 U.S.C. § 2302(f)(2) applies retroactively because the changes made to the statute by the 2018 NDAA merely clarified the existing law. Salazar, 2022 MSPB 42, ¶¶ 13-21. 6 reasoning or evidence.” Merriam-Webster’s Collegiate Dictionary 307 (10th ed. 2002). Furthermore, the word “demonstrates” in 5 U.S.C. § 2302(f)(2) is the same term used in 5 U.S.C. § 1221(e)(1), which describes the employee’s burden of proof on the merits of a claim under 5 U.S.C. § 2302(b)(8) or (b)(9). See 5 U.S.C. § 1221(e)(1) (providing that the Board shall order corrective action if the appellant “has demonstrated” that a protected disclosure or activity was a contributing factor in the contested personnel action); Watson v. Department of Justice, 64 F.3d 1524, 1527-28 (Fed. Cir. 1995) (equating “demonstrates” in section 1221(e)(1) with “proves”). Generally, “[a] word or phrase is presumed to bear the same meaning throughout a text.” Intel Corporation v. Qualcomm Incorporated, 21 F.4th 784, 793 (Fed. Cir. 2021) (quoting Antonin Scalia & Bryan A. Garner, Reading Law, 170 (2012)); see also Gustafson v. Alloyd Company, 513 U.S. 561, 568 (1995) (“In seeking to interpret the term ‘prospectus,’ we adopt the premise that the term should be construed, if possible, to give it a consistent meaning throughout the Act. That principle follows from our duty to construe statutes, not isolated provisions.”). We therefore conclude that for purposes of 5 U.S.C. § 2302(f)(2), to “demonstrate” means to prove by a preponderance of the evidence.4 See Langer v. Department of the Treasury, 265 F.3d 1259, 1264-65 (Fed. Cir. 2001) (explaining that an appellant in an IRA appeal must prove his prima facie case by preponderant evidence). ¶12 Under the whistleblower protection statutes, “whether [an] allegation can be proven is a question on the merits that does not properly form a part of the 4 The courts have similarly found that the term “demonstrate,” as used in other whistleblower protection statutes, entails proof by a preponderance of the evidence. See Allen v. Administrative Review Board, 514 F.3d 468, 476 n.1 (5th Cir. 2008) (interpreting “demonstrates” in the whistleblower protection provision of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, as requiring proof by preponderant evidence); Dysert v. U.S. Secretary of Labor, 105 F.3d 607, 609-10 (11th Cir. 1997) (interpreting “demonstrate” in a whistleblower protection provision of the Energy Reorganization Act, 42 U.S.C. § 5851, as requiring proof by preponderant evidence). 7 jurisdictional inquiry.” Johnston v. Merit Systems Protection Board, 518 F.3d 905, 911 (Fed. Cir. 2008) (emphasis added) (quoting Reid v. Merit Systems Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007)). The requirement of proof by preponderant evidence implies a weighing of all relevant and competent evidence, which can be accomplished only after development of the record, including a hearing if one has been requested. 5 C.F.R. § 1201.4(q) (defining “preponderance of the evidence” as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue); see Chiles v. Bowen, 695 F. Supp. 357, 360 (S.D. Ohio 1988) (“[T]he preponderance of the evidence standard necessarily involves the consideration of the evidence both in support of and contrary to a proposition and the weighing of each to determine which represents the preponderance; this standard requires that all the evidence be examined in relation to the other to determine the balance.”) (emphasis in original). Accordingly, we conclude that the potential applicability of 5 U.S.C. § 2302(f)(2) is not part of the jurisdictional analysis in an IRA appeal. The appeal is remanded for adjudication on the merits. ¶13 As noted above, the administrative judge found that the appellant proved by preponderant evidence that she exhausted her remedies with OSC, and made nonfrivolous allegations that two of her disclosures were protected under section 2302(b)(8) and were a contributing factor in her probationary termination. We discern no error in those findings, and the parties do not contest them on review. Accordingly, we conclude that the Board has jurisdiction over this appeal, and that the appellant is entitled to a hearing on the merits of her claim. Salerno, 123 M.S.P.R. 230, ¶ 5. ¶14 On remand, the appellant must demonstrate by a preponderance of the evidence that her disclosures were protected under 5 U.S.C. § 2302(b)(8) and that they were a contributing factor in the contested personnel action. 5 U.S.C. § 1221(e)(1). If the appellant’s principal job function was to regularly investigate 8 and disclose wrongdoing and she made her disclosures in the normal course of her duties, to establish that her disclosures were protected, the appellant must also prove that the agency had an improper, retaliatory motive for terminating her. 5 U.S.C. § 2302(f)(2); S. Rep. No. 112-155, at 5-6. ¶15 In conducting that analysis, the administrative judge should first determine whether: (1) the appellant’s primary job function at the time of the disclosure was to investigate and disclose wrongdoing; and (2) the disclosure was made in the normal course of the appellant’s duties. The administrative judge may consider these questions in whichever order is more efficient, and the parties should be provided an opportunity to submit relevant evidence and argument. If either condition is unsatisfied, then section 2302(f)(2) does not apply, and the appellant’s disclosures would fall under the generally applicable 5 U.S.C. § 2302(b)(8). Salazar v. Department of Veterans Affairs, 2022 MSPB 42, ¶ 22. ¶16 If conditions (1) and (2) are both satisfied, the administrative judge should next determine whether the appellant can meet her additional burden under section 2302(f)(2) by demonstrating that the agency took the contested personnel action “in reprisal” for her disclosures. In doing so, the administrative judge should consider the totality of the evidence. 5 C.F.R. § 1201.4(q) (stating that the record as a whole should be considered when determining whether a party has met the preponderance of the evidence standard); see Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (“It is error for the MSPB to not evaluate all the pertinent evidence in determining whether an element of a claim or defense has been proven adequately.”). In addition to any direct evidence of retaliatory animus, the administrative judge should consider circumstantial evidence, including the following factors: (1) whether the agency officials responsible for taking the personnel action knew of the disclosures and the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosures were in reprisal for the personnel action; (2) the strength or weakness of the agency’s reasons for taking the personnel 9 action; (3) whether the disclosures were personally directed at the agency officials responsible for taking the action; (4) whether the acting officials had a desire or motive to retaliate against the appellant; and (5) whether the agency took similar personnel actions against similarly situated employees who had not made disclosures. See 5 U.S.C. § 1221(e)(1) (explaining that an individual can prove that her disclosure was a contributing factor in a personnel action through circumstantial evidence, including the knowledge/timing test); Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (setting forth the factors for determining whether an agency has met its clear and convincing burden); Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013) (listing factors to be considered in determining whether an appellant has demonstrated contributing factor where the knowledge/timing test has not been satisfied). ORDER ¶17 We remand this appeal to the regional office for further adjudication consistent with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/WILLIAMS_NIKESHA_YVETTE_PH_1221_18_0073_W_1_OPINION_AND_ORDER_2060311.pdf	Issuance Date: July 6, 2023 ARBITRATION PENALTY Ms. Williams appealed an arbitration decision that upheld her removal from her position as a correctional officer. The court vacated and remanded the arbitration decision, finding that the arbitrator erred in his penalty analysis. To this end, although the arbitrator had sustained only one of the two charges against Ms. Williams, he nonetheless deferred to the deciding official’s penalty determination. The court explained that, because the arbitrator had sustained fewer than all of the agency’s charges and the agency had not indicated that it desired a lesser penalty than removal if only the sustained charge was upheld, the arbitrator was required to independently determine the maximum reasonable penalty by analyzing and balancing the relevant Douglas factors. The court also found that the arbitrator had erred by deferring to the deciding official’s findings of fact, which the arbitrator himself had rejected. NONPRECEDENTIAL: Trimble v. Department of Veterans Affairs, No. 2023-1306 (Fed. Cir. June 30, 2023) (DA-3330-22-0254-I-1) The court affirmed the Board’s decision denying Ms. Trimble’s request for corrective action under VEOA. The court found that (1) substantial evidence supported the Board’s conclusion that Ms. Trimble had an opportunity to compete for a position for which she had applied, but was not selected and (2) Ms. Trimble failed to identify any violations that would give rise to a viable VEOA claim. The court also found unavailing Ms. Trimble’s claim that the Board had violated her due process rights by not holding a hearing, explaining that the Board may decide a VEOA appeal on the merits without a hearing when there is no genuine dispute of material fact. Trimble v. Department of Veterans Affairs, No. 2023-1307 (Fed. Cir. June 30, 2023) (DA-4324-22-0350-I-1) The court affirmed the Board’s decision denying Ms. Trimble’s request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994. The court found that substantial evidence supported the Board’s conclusion that Ms. Trimble’s military service was not a motivating factor in her nonselection for the position for which she had applied. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
08-02-2023	2023 MSPB 22	Pere Jarboe	https://www.mspb.gov/decisions/precedential/JARBOE_PERE_J_CB_7521_18_0009_T_1_OPINION_AND_ORDER_2055789.pdf	Department of Health and Human Services	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 22 Docket No. CB-7521-18-0009-T-1 Department of Health and Human Services, Petitioner, v. Pere J. Jarboe, Respondent. August 2, 2023 Pere J. Jarboe, Annapolis, Maryland, pro se. Elizabeth Mary Hady, Esquire, and Jacqueline Zydeck, Esquire, Chicago, Illinois, for the petitioner. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The respondent has filed a petition for review of the initial decision, which found good cause for his removal under 5 U.S.C. § 7521. For the reasons set forth below, we DENY the respondent’s petition and AFFIRM the initial decision as MODIFIED to (1) address the respondent’s argument regarding the authority of his employing agency to bring this complaint before the Board, (2) address the respondent’s additional argument regarding the potential disqualification of the presiding administrative law judge (ALJ), and (3) clarify that the agency has discretion to take any action consistent with the Board’s good cause determination. 2 BACKGROUND ¶2 The agency has employed the respondent as an ALJ since 2006. Complaint File (CF), Tab 1 at 78-79. He served most recently as a supervisory ALJ. Id. at 81. In January 2018, the agency filed a complaint with the Board seeking to remove the respondent for his alleged failure to properly adjudicate Medicare appeals, supervise his staff, and follow supervisory instructions. Id. at 3. Regarding the respondent’s adjudication of Medicare appeals, the agency specified that the respondent had failed to properly conduct hearings and failed to produce legally sufficient and comprehensible decisions on more than 30 occasions and that he engaged in improper ex parte communications with a party. Id. at 7. Regarding the respondent’s supervision of staff, the agency specified that the respondent failed to assign sufficient work to two employees under his supervision, failed to cooperate with management’s efforts to address performance issues, and failed to alter an employee’s performance standards to accurately reflect the agency’s expectations for her performance. Id. at 20. As to the respondent’s alleged failure to follow instructions, the agency specified that the respondent failed to follow instructions to provide a plan for managing a subordinate employee’s work and that he failed to provide information during an interview regarding his assignment of work to the same subordinate employee. Id. at 30. ¶3 After holding a hearing on the agency’s complaint, the Board’s presiding ALJ issued an initial decision finding good cause for the respondent’s removal. CF, Tab 164, Initial Decision (ID). Specifically, he found that the agency proved three of its five specifications of failure to properly adjudicate Medicare appeals and both specifications of failure to follow instructions, but that it failed to prove any specifications of failure to properly supervise staff. ID at 17-74. The presiding ALJ further found that the respondent failed to prove any of his affirmative defenses. ID at 74-80. Then, after analyzing the relevant Douglas factors and other considerations, the presiding ALJ determined that good cause 3 existed to remove the respondent. ID at 80-93. Notably, in his initial summary of the decision, the presiding ALJ further stated that the respondent “is removed from his position as an ALJ.” ID at 4. ¶4 The respondent has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 3. He argues that the entity that sought his removal before the Board lacked delegated authority to do so. Id. at 4. The respondent further argues that the presiding ALJ improperly considered certain records in violation of the Privacy Act. Id. He also argues that the presiding ALJ should have recused himself due to a conflict of interest and that the presiding ALJ did not have properly delegated authority to hear the appeal. Id. at 13-14, 19-25. The agency has filed a response in opposition to the petition for review, PFR File, Tab 9, and the respondent has filed a reply, PFR File, Tab 12. ANALYSIS ¶5 The respondent first argues that the Office of Medicare Hearings and Appeals (OMHA) lacked delegated authority to seek his removal. PFR File, Tab 3 at 4. Specifically, he argues that by statute he and other ALJs are under the direct supervision of the Department of Health and Human Services and that the Secretary of Health and Human Services did not delegate authority to OMHA to initiate actions like the present complaint. Id. The respondent raised essentially this same argument below, IAF, Tab 4 at 2-3, but the presiding ALJ did not specifically address this argument in the initial decision. Instead, the presiding ALJ briefly addressed several of the respondent’s other claims and found that his “pleadings lack focus or merit, and [that] he abandoned some of his purported defenses by withdrawing them or presenting no evidence in support.” ID at 75. It is unclear whether the presiding ALJ intended that general finding to address the respondent’s argument regarding the authority of OMHA. However, given 4 that the respondent specifically raises that argument on review, we modify the initial decision to address it specifically. ¶6 Under 5 U.S.C. § 7521, “the agency in which the [ALJ] is employed” may take an action against the ALJ upon a finding of good cause by the Board. 5 U.S.C. § 7521(a). The statute does not require that the complaint be signed or authorized by any particular individual. Thus, we find that the complaint in this matter, which was filed by attorneys from the Department of Health and Human Services on behalf of that agency and its subagency OMHA, IAF, Tab 1 at 1, 3, is consistent with the governing statute. Moreover, as we recently clarified in Social Security Administration v. Levinson, 2023 MSPB 20, ¶¶ 37-38, the Board’s finding of good cause for removal does not bind the employing agency to actually remove the respondent, but instead only authorizes the employing agency to remove the respondent. We therefore need not opine on which agency official may exercise removal authority after the Board has made its good cause determination. ¶7 Additionally, even if the respondent could show that the complaint was not signed by the proper individual or that there was some other problem with the delegations of authority relating to the filing of his complaint, such procedural error would only warrant reversal of the initial decision if the respondent could show that it was harmful, i.e., that the complaint likely would not have been filed in the absence of that error. See Canary v. U.S. Postal Service, 119 M.S.P.R. 310, ¶¶ 9-12 (2013) (treating a claim regarding the replacement of the proposing and deciding officials in a chapter 75 removal action as a claim of harmful procedural error). Applying that standard, we find that the appellant has not shown that any error by the agency regarding the authority to file the complaint in this matter was harmful.1 1 The appellant also argues that the presiding ALJ did not have proper delegated authority to adjudicate his case. PFR File, Tab 3 at 19-24. However, the Board has 5 ¶8 The respondent also argues that the presiding ALJ improperly considered personnel records that should have been destroyed years earlier. PFR File, Tab 1 at 4. On petition for review, he fails to explain how the consideration of these records was improper or why any error in considering the records was harmful. We therefore find that the respondent failed to show that the presiding ALJ’s consideration of those documents warrants reversal of the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). ¶9 The respondent next argues that the removal was improper because the only action the agency took before seeking his removal was a counseling. PFR File, Tab 1 at 5. We have, in certain cases, wrongly suggested that the Board “selects” or makes the “choice” of penalty in a case arising under 5 U.S.C. § 7521. See, e.g., Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 47 (2010) (stating that “it is the Board, rather than the employing agency, which selects the appropriate penalty”), aff’d, 635 F.3d 526 (Fed. Cir. 2011); Social Security Administration v. Steverson, 111 M.S.P.R. 649, ¶ 18 (2009) (stating that “the choice of the penalty is for the Board”), aff’d per curium, 383 F. App’x 939 (Fed. Cir. 2010). However, the Board clarified in Levinson that its finding of good cause for removal does not bind the employing agency to actually remove the respondent, but merely authorizes it to do so. See Levinson, 2023 MSPB 20, ¶¶ 37-38. The employing agency retains discretion to take the Board-approved action, impose a lesser sanction, or take no action at all. To the extent we specifically delegated authority to ALJs to adjudicate agency complaints under 5 U.S.C. § 7521. See 5 C.F.R. § 1201.140(a); MSPB, Organization Functions and Delegations of Authority at 20-21 (2011), https://www.mspb.gov/foia/files/Organization_Functions_ and_Delegations_of_Authority_1279407.pdf (last visited Aug. 2, 2023). We therefore find that the respondent has not shown that the presiding ALJ lacked delegated authority. 6 previously have stated otherwise, we hereby overrule those decisions in part with regard to this issue. ¶10 It remains the case, however, that in original jurisdiction cases under 5 U.S.C. § 7521, when determining whether good cause exists to take the agency’s requested action, the Board considers the factors articulated in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1980). Levinson, 2023 MSPB 20, ¶¶ 41-49; Long, 113 M.S.P.R. 190, ¶¶ 47-54; Steverson, 111 M.S.P.R. 649, ¶¶ 18-20. Here, the presiding ALJ noted the respondent’s lack of disciplinary history other than a single counseling. ID at 85. Thus, in weighing the relevant aggravating and mitigating factors, the presiding ALJ found that the respondent’s lack of prior discipline was a significant mitigating factor. Id. However, the presiding ALJ found that the mitigating factors in this case were outweighed by the nature and seriousness of the petitioner’s proven misconduct and the adverse effect of his actions on agency operations. ID at 92; see Levinson, 2023 MSPB 20, ¶ 42 (the Board considers first and foremost among the Douglas factors the seriousness of the misconduct and its relationship to the employee’s position and duties). We find no error in the presiding ALJ’s consideration of the relevant factors or his determination that good cause exists for the petitioner’s removal. ¶11 During the processing of the complaint, the respondent requested that the presiding ALJ disqualify himself. IAF, Tab 107. He offered several justifications for his request. First, he noted that the presiding ALJ had been quoted in a news article regarding the interpretation of the U.S. Supreme Court’s decision in Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018), in which the Court held that ALJs of the Securities and Exchange Commission are officers of the United States whose appointments must comply with the Appointments Clause of the U.S. Constitution. IAF, Tab 107 at 2, 9-14. The respondent also asserted that the presiding ALJ’s activities as a member and officer of the Federal Administrative Law Judge Conference warranted his 7 disqualification from this matter. Id. at 3. The presiding ALJ issued an order addressing each of the respondent’s asserted grounds for disqualification and denying his request. IAF, Tab 115. The respondent then requested that the presiding ALJ certify the disqualification issue for interlocutory appeal to the Board, IAF, Tab 125, but the presiding ALJ denied that request as well, IAF, Tab 131. On petition for review, the respondent reiterates several of the grounds for disqualification he raised below, and further argues that the presiding ALJ should have recused himself because one of the agency’s witnesses in this case was the presiding ALJ’s superior at another agency several years before the events at issue in this case. PFR File, Tab 3 at 13-14. ¶12 In determining whether an administrative judge should be disqualified on grounds other than bias, the Board’s policy is to follow the standard set out at 28 U.S.C. § 455(a).2 Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 20 (2010). Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Although the Board is not bound by section 455(a), inasmuch as the Board is not a court, the Board has held that it “see[s] no reason not to look to the rule and case law arising from 28 U.S.C. § 455 where relevant . . . .” The goal of section 455(a) is to avoid even the appearance of partiality. Thus, the test applied under section 455(a) is not whether a judge is in fact biased or prejudiced, but whether a judge's impartiality might reasonably be questioned. In enacting section 455(a), Congress created an objective standard under which disqualification of a judge is required when a reasonable person, 2 Although this matter was heard by an ALJ rather than an administrative judge, we see no reason to apply a different standard for disqualification to ALJs. As we noted in Lee, at least one court of appeals has held that ALJs who are employed by the agencies whose actions they review cannot be held to the “mere appearance of impropriety” standard of 28 U.S.C. § 455(a). Lee, 115 M.S.P.R. 533, ¶ 20 n.2 (citing Greenberg v. Board of Governors of Federal Reserve System, 968 F.2d 164, 167 (2d Cir. 1992)). However, that rationale does not apply to Board ALJs who are reviewing the proposed actions of other agencies. See id. 8 knowing all the facts, would question the judge’s impartiality. In applying this standard, it is critically important to identify the facts that might reasonably cause an objective observer to question the judge’s impartiality. Shoaf v. Department of Agriculture, 97 M.S.P.R. 68, ¶ 7 (2004) (internal citations omitted), aff’d, 158 F. App’x 267 (Fed. Cir. 2005). Applying that standard to the facts of this case, we find that the presiding ALJ did not abuse his discretion in denying the respondent’s request for disqualification. We agree with the presiding ALJ that neither his statements regarding Lucia, nor his activities as part of a professional organization, would lead a reasonable person to question his impartiality. We have also considered the respondent’s assertion that the presiding ALJ previously worked at another agency with one of the witnesses in this matter, but again we find no basis for disqualification. See Lee, 115 M.S.P.R. 533, ¶ 22 (finding that the administrative judge’s prior employment at another agency with the agency counsel did not provide a basis for questioning her impartiality in the present appeal). ¶13 We further find that the presiding ALJ did not abuse his discretion in denying the respondent’s request to certify the disqualification issue for interlocutory appeal. The Board’s regulations provide in part that a judge should certify a ruling for interlocutory review if it “involves an important question of law or policy about which there is substantial ground for difference of opinion.” 5 C.F.R. § 1201.92(a). The respondent’s request to disqualify the presiding ALJ does not present an important question of law or policy, as the Board’s standards for disqualification are well established. See Lee, 115 M.S.P.R. 533, ¶ 23. ¶14 Having reviewed the record as a whole and the respondent’s arguments on review, we concur with the presiding ALJ that the petitioner established good cause for the respondent’s removal. We note, however, that the presiding ALJ erred in further stating that the respondent “is removed from his position as an ALJ.” ID at 4. The Board itself does not have the authority to remove the respondent. See 5 U.S.C. § 7521(a) (providing that “the agency in which the 9 administrative law judge is employed” may take an action against an ALJ only upon a finding of good cause by the Board). Moreover, our determination that good cause exists to remove the respondent does not bind the agency to remove the respondent, but merely authorizes it do so. Levinson, 2023 MSPB 20, ¶¶ 37-38. As stated above, the agency is free to remove the respondent, impose a lesser sanction, or take no action at all. ORDER ¶15 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 RIGHTS3 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 3 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 11 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 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 12 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 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.4 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: 4 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/JARBOE_PERE_J_CB_7521_18_0009_T_1_OPINION_AND_ORDER_2055789.pdf
08-01-2023	2023 MSPB 21	Pere Jarboe	https://www.mspb.gov/decisions/precedential/JARBOE_PERE_J_CB_7521_21_0017_T_1_OPINION_AND_ORDER_2055404.pdf	Depatment of Health and Human Services	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 21 Docket No. CB-7521-21-0017-T-1 Pere J. Jarboe, Appellant, v. Department of Health & Human Services, Agency. August 1, 2023 Pere J. Jarboe, Annapolis, Maryland, pro se. Elizabeth Mary Hady, Esquire, and Jacqueline Zydeck, Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his complaint under 5 U.S.C. § 7521 for lack of jurisdiction. For the reasons set forth below, we DENY the appellant’s petition and AFFIRM the initial decision as MODIFIED to correct the jurisdictional analysis and VACATE the alternative finding that the complaint is barred by res judicata. BACKGROUND ¶2 The appellant is employed by the agency as an administrative law judge (ALJ). Jarboe v. Department of Health and Human Services, MSPB Docket 2 No. CB-7521-21-0017-T-1, Complaint File (CF), Tab 1 at 1. On January 19, 2018, the agency filed a complaint pursuant to 5 U.S.C. § 7521, asking the Board to find good cause to remove the appellant from his ALJ position for his alleged failure to properly adjudicate Medicare appeals, supervise his staff, and follow supervisory instructions. Department of Health and Human Services v. Jarboe, MSPB Docket No. CB-7521-18-0009-T-1, Initial Decision (Feb. 3, 2020). The complaint was assigned to a presiding ALJ, who issued an initial decision finding good cause for the appellant’s removal. Id. The appellant filed a petition for review of that decision, and the agency’s complaint remains pending before the Board. Department of Health and Human Services v. Jarboe, MSPB Docket No. CB-7521-18-0009-T-1, Petition for Review File, Tab 3. ¶3 Shortly thereafter, the appellant filed a complaint alleging that he had suffered a constructive removal. Department of Health and Human Services v. Jarboe, MSPB Docket No. CB-7521-20-0011-T-1, Initial Decision (May 12, 2020). The appellant subsequently filed a request to withdraw his complaint, and the presiding ALJ dismissed the complaint as withdrawn. Id. The presiding official’s decision in that complaint became final when neither party filed a petition for review. ¶4 On July 2, 2021, the appellant filed the instant complaint, again alleging that he had been constructively removed. CF, Tab 1. The agency moved to dismiss the complaint, arguing that the Board lacked jurisdiction over the appellant’s constructive removal claim because he remained employed in his ALJ position, albeit on administrative leave. CF, Tab 7. In the alternative, the agency argued that the complaint was barred under the doctrine of res judicata. Id. The presiding official granted the agency’s motion and dismissed the complaint on both grounds identified by the agency. CF, Tab 9, Initial Decision. The appellant filed the instant petition for review, to which the agency has responded. Jarboe v. Department of Health and Human Services, MSPB Docket No. CB- 7521-21-0017-T-1, Petition for Review File, Tabs 1, 4. 3 ANALYSIS ¶5 Title 5 U.S.C. § 7521(a) provides that an “action” may be taken against an ALJ by the employing agency only for good cause established and determined by the Board on the record, after an opportunity for a hearing. The actions covered by the statute include: (1) a removal; (2) a suspension; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less. 5 U.S.C. § 7521(b). An agency seeking to take such an action against an ALJ may file a complaint with the Board under the procedures set forth at 5 C.F.R. § 1201.137. If, following an opportunity for a hearing, the Board determines that the agency has established good cause to take an action under 5 U.S.C. § 7521(b), the agency may take the approved action, though it is not required to do so. See Social Security Administration v. Levinson, 2023 MSPB 20, ¶¶ 37-38 (explaining that “when the Board makes a good cause determination, it authorizes but does not require the petitioner to act”). ¶6 In the case of In re Doyle, 29 M.S.P.R. 170, 174-75 (1985), the Board held that the term “removal,” as used in 5 U.S.C. § 7521, may extend to agency actions that impair an ALJ’s qualified judicial independence. Some years later, the Board codified the holding of Doyle in a new regulation, following notice and comment rulemaking procedures. See 62 Fed. Reg. 48449-01 (Sept. 16, 1997). The new regulation provided that an ALJ “who alleges that an agency has interfered with the judge’s qualified decisional independence so as to constitute an unauthorized action under 5 U.S.C. § 7521 may file a complaint with the Board” under the same procedures applicable to an agency complaint. 5 C.F.R. § 1201.142 (1998). ¶7 Subsequently, in Tunik v. Social Security Administration, 93 M.S.P.R. 482 (2003) (Tunik I), rev’d in part, vacated in part, and remanded, 407 F.3d 1326 (Fed. Cir. 2005) (Tunik II), the Board determined that Doyle had been incorrectly decided. The Board reasoned that, under the Doyle rule, an agency would have to first seek the Board’s permission, with the opportunity for a full evidentiary hearing, every time it wants to take actions involving such things as case 4 processing matters and training requirements. Id., ¶ 30. The Board was not persuaded that this sort of micromanagement, and the likely slowdown in the agency’s work that it would cause, is what Congress intended when it used the word “removal” in 5 U.S.C. § 7521. Tunik I, 93 M.S.P.R. 482, ¶ 31. The Board concluded that, in order to establish a constructive removal under 5 U.S.C. § 7521, the ALJ must have actually been separated or reassigned from the position of ALJ and must show that the decision to leave was involuntary under the same test for involuntariness applicable to constructive removal claims under 5 U.S.C. § 7512. Tunik I, 93 M.S.P.R. 482, ¶ 32. Because Tunik was not separated from his ALJ position when he filed his complaint, the Board dismissed his constructive removal claim for lack of jurisdiction. Id. Following Tunik I, the Board similarly dismissed other constructive removal complaints filed by sitting ALJs. See Schloss v. Social Security Administration, 93 M.S.P.R. 578, ¶ 9 (2003), rev’d and remanded sub nom. Tunik II, 407 F.3d 1326; Dethloff v. Social Security Administration, 93 M.S.P.R. 574, ¶¶ 7-8 (2003), rev’d and remanded sub nom. Tunik II, 407 F.3d 1326. ¶8 In a consolidated appeal involving Tunik I and the cases that followed it, the U.S. Court of Appeals for the Federal Circuit agreed with the Board’s reasoning that the plain language of 5 U.S.C. § 7521 “reasonably can be read to apply only to cases of actual separation from employment as an ALJ.” Tunik II, 407 F.3d at 1339. The court found, however, that the regulation that codified the holding of Doyle was controlling, and the Board lacked authority to overrule it by adjudication. Tunik II, 407 F.3d at 1341-46. Accordingly, the court reversed and remanded the Board decisions that had followed the holding of Tunik I.1 The court observed that its decision did not foreclose the Board from repealing its 1 The court vacated Tunik I itself, reasoning that ALJ Tunik had retired before the issuance of the Board’s decision, thus rendering it an advisory opinion prohibited under 5 U.S.C. § 1204(h). Tunik II, 407 F.3d at 1331-32. 5 regulation adopting the Doyle rule in accordance with the notice and comment rule making procedures required under 5 U.S.C. § 553. Tunik II, 407 F.3d at 1346. ¶9 Following the court’s suggestion, the Board proposed an amendment to 5 C.F.R. § 1201.142 to repeal the Doyle rule, and published the proposed change for comments. 70 Fed. Reg. 48081-01 (Aug. 16, 2005); see also 70 Fed. Reg. 61750-01 (Oct. 26, 2005) (extending the deadline for comments). After considering the comments received, the Board adopted the rule as proposed, thereby overruling Doyle. 71 Fed. Reg. 34231-01 (June 14, 2006); see Mahoney v. Donovan, 721 F.3d 633, 637 (D.C. Cir. 2013) (noting the regulatory repeal of Doyle); 5 C.F.R. § 1201.142 (2007).2 As the Board has not since issued a precedential decision acknowledging the regulatory overruling of Doyle, we do so now, and hereby clarify that a sitting ALJ may not bring a constructive removal complaint under 5 U.S.C. § 7521. ¶10 It is undisputed that the appellant remains employed in his ALJ position. Accordingly, we affirm the presiding ALJ’s finding that the Board lacks jurisdiction over the appellant’s constructive removal complaint. Because we lack jurisdiction, we vacate the presiding ALJ’s alternative finding that the complaint is barred by res judicata. See Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 7 (2003) (holding that the Board must have jurisdiction over a case to apply the doctrine of res judicata). ORDER ¶11 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). 2 In its revised form, 5 C.F.R. § 1201.142 allows for the filing of a complaint by an ALJ “who alleges a constructive removal or other action by an agency in violation of 5 U.S.C. § 7521[.]” 6 NOTICE OF APPEAL RIGHTS3 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: 3 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. 7 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 8 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 9 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.4 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 4 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. 10 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/JARBOE_PERE_J_CB_7521_21_0017_T_1_OPINION_AND_ORDER_2055404.pdf
07-12-2023	2023 MSPB 20	Michael Levinson	https://www.mspb.gov/decisions/precedential/LEVINSON_MICHAEL_L_CB_7521_17_0023_T_1_OPINION_AND_ORDER_2048875.pdf	Social Security Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 20 Docket No. CB-7521-17-0023-T-1 Social Security Administration, Petitioner, v. Michael L. Levinson, Respondent. July 12, 2023 Aminah M. Collick, Esquire, Atlanta, Georgia, for the petitioner. David B. Myers, New York, New York, for the petitioner. Harvey Linder, Esquire, Atlanta, Georgia, for the respondent. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 Both parties have filed petitions for review of the initial decision, which found good cause to suspend the respondent for 2 years and downgrade him to a lower-level position. For the reasons discussed below, we DENY the respondent’s petition for review, GRANT the petitioner’s petition for review, in part, and AFFIRM the initial decision AS MODIFIED by this Opinion and Order to authorize the petitioner to remove the respondent. 2 BACKGROUND ¶2 The petitioner appointed the respondent to the position of Administrative Law Judge (ALJ) for the petitioner’s Office of Disability Adjudication and Review (ODAR) in 2004. Initial Appeal File (IAF), Tab 1 at 6, Tab 120 at 4, Tab 122, Initial Decision (ID) at 2. The respondent adjudicates applicants’ appeals regarding requests for Social Security benefits. IAF, Tab 1 at 5-7, Tab 9 at 7. The respondent began his tenure with the petitioner in the Macon, Georgia hearing office, transferred to the Birmingham, Alabama hearing office, and eventually returned to the Macon hearing office. IAF, Tab 1 at 6; ID at 2. The Hearing Office Chief Administrative Law Judges (HOCALJs) at both offices were involved in the instant matter. IAF, Tab 1 at 6; ID at 2. ¶3 On June 28, 2017, the petitioner’s representative, the Chief Administrative Law Judge (CALJ) for ODAR, signed a complaint seeking from the Board its determination that good cause existed for petitioner’s intent to (1) suspend the respondent from the date of the complaint through the date of the Board’s final decision and (2) remove the respondent from service. IAF, Tab 1. Before turning to the petitioner’s charges, we recount some of the background alleged in the petitioner’s complaint. ¶4 In late 2014, the Birmingham HOCALJ directed the respondent to stop circumventing staff and engaging in off-the-record contact with expert witnesses to determine their availability for hearings. IAF, Tab 1 at 8-9, 17-19. This written directive warned the respondent that failure to comply could result in discipline. Id. The petitioner explained that the respondent could have experts testify during an individual’s disability hearing but that other staff had the responsibility of scheduling from a roster of experts on a rotational basis. IAF, Tab 1 at 17-18. ¶5 In late 2015, the petitioner conducted a focused quality review of a sampling of the respondent’s decisions. In doing so, the petitioner identified the respondent’s noncompliance with requirements in several policy areas. Id. at 9, 3 20. Consequently, the Macon HOCALJ met with the respondent in early 2016 to present a self-guided training curriculum. Id. The respondent indicated that he had completed this month-long training on May 25, 2016. Id. at 9, 20. On June 28, 2016, the Macon HOCALJ directed the respondent to issue policy-compliant decisions going forward. Id. at 9, 20-24. This written directive also warned the respondent that failure to comply with the HOCALJ’s directives could result in discipline. Id. ¶6 In the second half of 2016, the respondent repeatedly refused or otherwise failed to heed the Macon HOCALJ’s repeated instructions to attend sensitivity training. Id. at 10. This led to a reprimand, followed by a written directive warning the respondent that failure to attend the training could result in further discipline. Id. at 10, 26. ¶7 Between this period and the beginning of 2017, the petitioner asserts that the respondent repeatedly lashed out at the Macon HOCALJ. Id. at 11-12. For example, the petitioner alleges that, over 3 different days, the respondent called the Macon HOCALJ a “Nazi,” a “liar,” and “the worst.” Id. at 11. The petitioner alleges that, on another date, the respondent walked away as the Macon HOCALJ attempted to give him a verbal directive. Id. at 11-12. The petitioner also contends that, on yet another day, the respondent blocked a door to physically prevent the Macon HOCALJ from handing him a written directive before ultimately ripping up the document in front of her and an expert witness. Id. at 12. ¶8 On June 28, 2017, the petitioner filed the complaint at issue in this case. Id. at 4, 15. It charged the respondent with (1) neglect of duties; (2) failure to follow a directive; and (3) conduct unbecoming an ALJ. Id. at 12-15. The neglect of duty charge alleged that the respondent continued to hold hearings and issue decisions that failed to meet certain delineated obligations after completing the month-long training about those issues. Id. at 12-13. The failure to follow a directive charge alleged that the respondent failed to follow the directives 4 regarding the contact with expert witnesses, compliance with obligations surrounding the issuance of decisions, and attendance at sensitivity training. Id. at 13-14. The conduct unbecoming charge cited numerous instances when the respondent lashed out at the Macon HOCALJ. Id. at 14-15. ¶9 The ALJ assigned to adjudicate this case held a hearing over 14 intermittent days between August 2018 and November 2019. He then issued the initial decision that is before us on review. The ALJ first found that the petitioner proved each of its charges. ID at 10-21. Next, he denied the respondent’s affirmative defenses and other challenges. ID at 22-39. Among other things, this included the respondent’s claim of discrimination based on age and religion, ID at 24-30, his claim of reprisal for engaging in equal employment opportunity (EEO) activity, ID at 30-32, his request for dismissal based on an alleged discovery violation, ID at 32, and the respondent’s challenge to the constitutionality of the petitioner’s complaint, ID at 33-39. Lastly, the ALJ found that there was good cause to discipline the respondent but that the appropriate penalty was a 2-year suspension and downgrade, not the suspension and removal requested by the petitioner. ID at 39-48. ¶10 The respondent has filed a petition for review, to which the petitioner has responded, and the respondent has replied. Petition for Review (PFR) File, Tabs 11, 14, 17. The petitioner has also filed a petition for review, to which the respondent has responded, and the petitioner has replied.1 PFR File, Tabs 12, 15-16. In short, the respondent argues that the ALJ erred by approving any 1 The Board typically construes competing pleadings in which each party objects to the initial decision as a petition for review and cross petition for review. See 5 C.F.R. § 1201.114(a) (describing the pleadings allowed on review). However, because the parties filed their petitions for review on the same date, the Office of the Clerk of the Board acknowledged both as petitions for review. PFR File, Tab 13. This decision will as well. 5 discipline, while the petitioner argues that the ALJ erred by approving a lesser penalty than requested.2 ANALYSIS The presiding ALJ properly determined that the petitioner proved its charges. ¶11 The ALJ found that the petitioner proved each of its charges: (1) neglect of duty, ID at 10-11; (2) failure to follow directives, ID at 11-16; and (3) conduct unbecoming an ALJ, ID at 16-21. On review, the respondent only disagrees that the petitioner proved the second and third charges.3 PFR File, Tab 11 at 16-20, 26-27. Our decision will be similarly focused. See Social Security Administration v. Steverson, 111 M.S.P.R. 649, ¶ 5 (2009) (declining to revisit an ALJ’s decision to sustain certain charges when the respondent’s petition did not contest those findings on review), aff’d per curiam, 383 F. App’x 939 (Fed. Cir. 2010). For the reasons that follow, we discern no basis for reaching a conclusion different than that of the ALJ about the petitioner’s proof of its charges. 2 The petitioner also argues that we should deny the respondent’s petition for review and strike his response to the petitioner’s petition for review because both exceed the Board’s word limit for such pleadings. PFR File, Tab 14 at 5-6 (referencing PFR File, Tab 11 at 5-34), Tab 16 at 5 (referencing PFR File, Tab 15 at 4-33); see 5 C.F.R. § 1201.114(h). At the same time, the respondent argues that we should dismiss the petitioner’s response to his petition because the petitioner mailed that response to the respondent’s former address before sending it to his new address 4 days later. PFR File, Tab 17 at 8-9 (referencing PFR File, Tab 14). Regarding the respondent’s alleged error, we need not reach this issue because we deny his petition for review on the merits. Regarding the petitioner’s alleged error, it was quickly remedied, and the petitioner properly and timely served the respondent’s attorney. PFR File, Tab 14 at 19. We find that the circumstances do not warrant dismissal of the petitioner’s response. See Costin v. Department of Health and Human Services, 64 M.S.P.R. 517, 523 (1994) (declining to dismiss an agency’s petition for review when the agency did not properly serve the appellant until 3 days later, but this belated service did not prejudice the appellant), vacated on other grounds by 72 M.S.P.R. 525 (1996), modified by 75 M.S.P.R. 242 (1997). 3 We discern no basis to disturb the ALJ’s determination that the petitioner proved the charge of neglect of duties. ID at 10-11. 6 Failure to Follow Directives ¶12 Regarding the failure to follow directives charge, we note that ALJs may be disciplined for failing to follow directives unrelated to their decisional independence. See, e.g., Abrams v. Social Security Administration, 703 F.3d 538, 545-46 (Fed. Cir. 2012); Social Security Administration v. Burris, 39 M.S.P.R. 51, 55-57 (1988), aff’d per curiam, 878 F.2d 1445 (Fed. Cir. 1989) (Table). The ALJ found that the respondent failed to follow directives as alleged by the petitioner and that these directives did not interfere with the respondent’s decisional independence. ID at 11-16. The respondent does not dispute these particular findings, and we decline to disturb them. He also does not dispute the presiding ALJ’s finding that the petitioner proved its specification that he failed to follow a directive when he continued to issue decisions that did not comply with the Macon HOCALJ’s June 28, 2016 directive to issue legally sufficient decisions. ID at 13-15; IAF, Tab 106 at 7-10. We discern no basis to disturb this finding. ¶13 The respondent argues, however, that the remaining two directives underlying the charge were, despite the ALJ’s findings to the contrary, improper for reasons other than his decisional independence. PFR File, Tab 1 at 16-20; ID at 11-13, 15-16. The first of these directives was to cease directly contacting potential expert witnesses to determine their ability to testify. IAF, Tab 1 at 13, Tab 104 at 15-17. The second was the directive to attend sensitivity training on a specified date, which followed several prior directives to the respondent by the petitioner to attend this training. IAF, Tab 1 at 14, Tab 108 at 4. ¶14 To enable agencies to effectively manage the workplace, the Board has long held that an employee is required to comply with an agency order, even when he may have substantial reason to question it, while taking steps to challenge its validity through whatever channels are appropriate. Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶ 16, aff’d per curiam, 343 F. App’x. 605 (Fed. Cir. 2009). Put another way, an employee is expected to comply with a lawful order 7 and grieve the propriety of that order later. E.g., Dias v. Department of Veterans Affairs, 102 M.S.P.R. 53, ¶ 14 (2006), aff’d per curiam, 223 F. App’x. 986 (Fed. Cir. 2007); Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 407-08, aff’d, 73 F.3d 380 (Fed. Cir. 1995) (Table). Recognized exceptions apply in extreme or unusual circumstances, such as ones involving orders that would require an individual to violate a law, rule, or regulation, or orders that would place an employee in a dangerous situation or cause irreparable harm. Fisher v. Department of the Interior, 2023 MSPB 11, ¶¶ 11-12; Pedeleose, 110 M.S.P.R. 508, ¶¶ 8, 17-18. Here, we find no basis for concluding that the directives the respondent ignored constituted such extreme or unusual circumstances. ¶15 According to the respondent, the directive about limiting his contact with expert witnesses outside of hearings was not proper because it was a nefarious attempt to line the pockets of his HOCALJ’s son, who was an attorney that routinely handled disability cases.4 PFR File, Tab 11 at 16-18. The presiding ALJ considered this argument but concluded that “the record does not establish that [the HOCALJ] was taking part in any improper scheme.” ID at 12. On review, the respondent still has not presented any supportive evidence, nor has he explained how limiting his contact with expert witnesses outside of hearings would aid anyone’s financial interests. ¶16 The respondent’s arguments inaccurately described the contents and nature of the aforementioned directive. While the respondent asserts that the HOCALJ 4 The petitioner argues that this and many other arguments within a large portion of the respondent’s petition are lacking in terms of references to the record or applicable law, so these portions should be stricken. PFR File, Tab 14 at 6-7 (referencing PFR File, Tab 11 at 16-34). The Board’s regulations require that a petition for review be supported by references to applicable laws or regulations and by specific references to the record. 5 C.F.R. § 1201.114(b). Statements of a party’s representative in a pleading, such as those here, do not constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995). We will not strike any portion of the respondent’s petition, but we will note where the respondent has made cursory or otherwise unsupported arguments and analyze those arguments accordingly. 8 directed him to give the HOCALJ full authority to choose the respondent’s experts, the directive says nothing of the sort. It instead recognizes that, pursuant to the petitioner’s Hearings, Appeals, and Litigation Law Manual (HALLEX), the respondent and other judges, presumably including the HOCALJ, should “avoid any off-the-record discussions with expert witnesses.” IAF, Tab 104 at 15-16. The directive then describes how the petitioner has nonadjudicative staff responsible for scheduling any expert a judge may need and how those schedulers will select individual experts on a rotational basis. Id. ¶17 The respondent also argues that the directive about expert witnesses improperly relied on the HALLEX. PFR File, Tab 11 at 17. He references the HALLEX provisions cited in the petitioner’s directive, sections I-2-5-36 and I-2-5-38. Id. (referencing IAF, Tab 104 at 15-21). We are not persuaded. Without more, the respondent’s reliance on unspecified “cross examination” hearing testimony does not establish any error on the part of the petitioner or the presiding ALJ as to the directive. The HALLEX provisions the respondent has referenced unambiguously contemplate the ALJ’s role as one where he requests a particular type of expert while other staff then selects a specific individual expert based on the type requested, experts’ availability, and a requirement that experts be selected on a rotational basis. E.g., IAF, Tab 104 at 18, 20. Even if the HALLEX provisions do not explicitly preclude the respondent from directly contacting expert witnesses, the respondent has presented no basis for us to conclude that the petitioner was bound by HALLEX and was unable to impose further requirements on the respondent. See Abrams, 703 F.3d at 540-43, 546 (affirming the Board’s finding of good cause to authorize the removal of an ALJ for his failure to follow multiple directives to process cases that had been lingering or justify his inability to do so); Social Security Administration v. Anyel, 58 M.S.P.R. 261, 269 n.13 (1993) (finding that ALJs are required to follow agency policies) (citing Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989) (a Social Security Administration (SSA) “ALJ is a creature of statute and, as such, is 9 subordinate to the [petitioner head] in matters of policy and interpretation of law”)); see also Brennan v. Department of Health and Human Services, 787 F.2d 1559, 1562 (Fed. Cir. 1986) (finding that decisional independence does not prohibit “appropriate administrative supervision that is required in the course of general office management”). ¶18 Turning to the directive to attend sensitivity training, the respondent argues that it was improper because the training was not needed or warranted. PFR File, Tab 11 at 18-20. He asserts that this directive stemmed from a complaint by a claimant’s attorney that had no merit. Id. at 18-19. But the merits of this complaint or lack thereof are not particularly relevant. The respondent has failed to point us to anything that precluded the petitioner from deciding that he should attend sensitivity training and directing him to do so. ¶19 The ALJ specifically found that the directives the respondent challenges on review were, in fact, proper. ID at 11-13, 15-16. The respondent’s conclusory or otherwise unsupported arguments do not persuade us otherwise, nor do they establish that the directives at issue were ones he could unilaterally ignore, rather than obey now and grieve later. Conduct Unbecoming an ALJ ¶20 ALJs may be disciplined for conduct unbecoming. See, e.g., Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 46 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Such conduct is that “which was improper, unsuitable, or detracting from one’s character or reputation.” Id., ¶ 42. ¶21 Here, the petitioner included 10 specifications underlying its conduct unbecoming charge, all of which concerned the respondent’s outbursts over the course of 5 days between August 2016 and January 2017. IAF, Tab 1 at 14-15. Among other things, this included the respondent calling his HOCALJ a “Nazi.” Id. ¶22 On review, the respondent does not dispute that he engaged in the alleged conduct. He instead asserts that the HOCALJ instigated each of his outbursts. 10 PFR File, Tab 11 at 26-27. But the respondent’s argument is a cursory one, unsupported by any references to evidence of record. He also points out that the 10 specifications concerned 5 incidents. Id. Neither of these arguments persuades us that the ALJ erred in sustaining the petitioner’s conduct unbecoming charge. If anything, they are better suited to our penalty analysis. See, e.g., Long, 113 M.S.P.R. 190, ¶ 51 (considering a respondent’s claim of provocation as part of the Board’s penalty analysis); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (recognizing factors that may be relevant to a penalty determination, such as provocation on the part of others involved in the matter). ¶23 In sum, the respondent has not provided a basis to disturb the ALJ’s determination that the petitioner proved all three of its charges. The respondent failed to prove his claims of age discrimination, discrimination based on religion, or EEO reprisal. ¶24 In the initial decision, the ALJ separately addressed claims that the petitioner subjected the respondent to disparate treatment by placing him on administrative leave from January to March 2017, ID at 25-27, that the petitioner’s investigation of respondent that began in January 2017 was tainted by discrimination based on age and religion, ID at 27-28, and that the petitioner subjected the respondent to age- or religion-based discrimination in the form of a hostile work environment, ID at 28-30. Lastly, the ALJ considered a claim that the petitioner filed the complaint before us in retaliation for the respondent’s EEO activity. ID at 30-32. The ALJ found that the respondent failed to meet his burden concerning each claim. ID at 25-32. ¶25 On review, the respondent reasserts that the petitioner created a hostile work environment and retaliated against him for filing EEO complaints by placing him on administrative leave and investigating an alleged complaint about the respondent harassing another employee, which was ultimately not substantiated. PFR File, Tab 11 at 20-23, 25-26. He also argues that the 11 petitioner subjected him to a hostile work environment and discrimination based on age and religion. Id. at 27-32. ¶26 The respondent’s arguments regarding discrimination and EEO reprisal contain limited references to the record, such that the arguments primarily rely on conclusory assertions. PFR File, Tab 11 at 20-23, 25-32. For example, the respondent describes the petitioner as engaging in “blind desperation” and an “all-out war” by placing the respondent on administrative leave for the period between his repeated lashing out at his HOCALJ, e.g., calling her a “Nazi,” and the petitioner’s filing of the complaint before us. PFR File, Tab 11 at 20-21 (emphasis in original). According to the respondent’s petition for review, while the respondent was on administrative leave, the petitioner investigated him without “due process or fairness,” which was “discriminatory, retaliatory, and harassing.” Id. at 21. The petition for review also asserts that discrimination and reprisal are further evidenced by the fact that the petitioner ultimately concluded that some allegations were not substantiated after it investigated the respondent’s alleged misconduct. Id. at 21-23 (referencing IAF, Tab 116 at 30-31, Tab 117 at 5-6). ¶27 We find that, taken together, the respondent’s allegations do not prove that discrimination or retaliation was a motivating factor in the petitioner’s actions. See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-21, 30 (holding that, to prove discrimination based on age or religion or to prove retaliation for protected EEO activity in a Board appeal under 5 U.S.C. § 7701, an employee must prove at least that discrimination or retaliation was a motivating factor in the contested action). Most of the respondent’s misconduct occurred in the latter half of 2016 and early 2017, culminating with his outbursts on December 13, 2016, January 9, 2017, and then January 11, 2017, at which point the petitioner took just days to place the respondent on administrative leave before filing the complaint before us. IAF, Tab 1 at 11-12, Tab 116 at 27. Under 12 the circumstances, we do not find that the petitioner’s timely response to the respondent’s misconduct was motivated by discrimination or retaliation. ¶28 We further note that the respondent’s petition for review contains only one reference to age and religion and one associated reference to the record. PFR File, Tab 11 at 28. That reference to the record directs us to the hearing testimony of the respondent’s union representative, who was also an agency ALJ, stating that the petitioner “seem[ed] to be going after” the respondent and that this “could have been” because of the respondent’s age or religion. Id. (referencing Hearing Transcript (HT), May 8, 2019, at 313-14 (testimony of the respondent’s peer)). However, that testimony is not persuasive evidence that age or religion was a motivating factor in the petitioner’s request to suspend and remove the respondent. The Board has held that an individual’s speculations about a petitioner’s motives are not probative of the petitioner’s motive. Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 9 (2012). ¶29 Specific to his claim of EEO reprisal, the respondent alleges that he spoke to an EEO counselor in the summer of 2016, he filed a complaint with the petitioner’s General Counsel in September 2016, and he then filed a formal EEO complaint in April 2017. PFR File, Tab 11 at 25-26. But again, the respondent’s petition for review has pointed us to no evidence that any of this activity was a motivating factor in the petitioner’s request to suspend and remove him. The same is true of his closing brief below. IAF, Tab 120 at 24-25. The ALJ concluded that the official responsible for the matter before us had no knowledge of the respondent’s EEO complaint. ID at 31 (citing, e.g., HT, May 7, 2019, at 123-25, 211-15 (testimony of the CALJ)). The respondent has not given us any reason to find otherwise, nor has he presented any other substantive argument or evidence about EEO activity being a motivating factor in the complaint before us. ¶30 Accordingly, we find that the respondent did not prove that discrimination based on his religion or age, or retaliation for his prior EEO activity, was a 13 motivating factor in the petitioner subjecting him to an allegedly hostile work environment or filing the instant complaint. The respondent failed to prove his claim of a Constitutional violation. ¶31 For the respondent’s Constitutional challenge to the complaint before us, the ALJ first found that SSA ALJs, like the respondent, are inferior officers. ID at 35. However, he further found that the Constitutional limits on who may appoint inferior officers did not prevent Congress from enacting the statutory scheme in place for their removal. ID at 35-37. Finally, the ALJ found that the then-Acting Commissioner had the statutory authority to delegate to the CALJ the authority to sign the instant complaint and that she presumptively did so. ID at 37-39. ¶32 On review, the respondent reasserts his Constitutional claim. PFR File, Tab 11 at 6-16 (citing, e.g., Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018)). He argues that, when the petitioner placed him on administrative leave and issued its complaint seeking to remove him, neither the CALJ that signed it nor the Acting Commissioner who delegated the authority to take these actions to the CALJ was properly appointed. Id. at 6-13. Consequently, there was no one within the petitioner’s reporting structure that had the authority to remove him from his position. Id. The respondent also suggests that the reporting structure at the petitioner agency is altogether improper because the CALJ reported to the Deputy Commissioner for Hearings and Operations, who is not an officer. Id. at 6-10. Because, for the reasons stated below, no actual removal has yet taken place, this argument has no bearing on the matter before us, i.e., the petitioner’s complaint seeking our good cause determination. ¶33 The petitioner argues that the Acting Commissioner was properly appointed, the Acting Commissioner properly appointed the CALJ and delegated authority to 14 him, and the CALJ properly exercised that authority to bring this matter before the Board.5 PFR File, Tab 14 at 7-11. As described below, we find the respondent’s Constitutional challenge unavailing for reasons different than that described in the initial decision, and we modify the initial decision accordingly. ¶34 In the June 2018 Lucia decision, the Supreme Court held that Securities and Exchange Commission (SEC) ALJs are inferior officers subject to the Appointments Clause. 138 S. Ct. at 2049, 2052-55. Because SEC ALJs were appointed by SEC staff members, rather than the Commission itself, the Court held that the appointment of those ALJs violated the Appointments Clause. Id. at 2050-51, 2053-55. The Court further held that because the petitioner had made a timely challenge to the Constitutional validity of the appointment of the ALJ who adjudicated the SEC’s claim that he misled investors, he was entitled to relief in the form of a new hearing before a different, properly appointed official. Id. at 2049-50, 2055. ¶35 Soon after Lucia, the President issued an executive order which provided that “at least some—and perhaps all—ALJs are ‘Officers of the United States’ and thus subject to the Constitution’s Appointments Clause.” Exec. Order No. 13,843, 83 Fed. Reg. 32755 (July 10, 2018). Around that same time, the petitioner’s Acting Commissioner ratified the appointments of the petitioner’s ALJs to address any associated Appointments Clause questions. See Cody v. Kijakazi, 48 F.4th 956, 959 (9th Cir. 2022) (citing Social Security Ruling 19-1p, 84 Fed. Reg. 9582-02, 9583 (Mar. 15, 2019)); Social Security Emergency Message 18003 REV 2, § B (Aug. 6, 2018), https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM (last visited July 12, 2023). 5 As both parties have acknowledged, two different individuals held the Acting Commissioner position during the relevant period. One held the position at the time of the CALJ’s appointment, while another held the position when the CALJ signed the complaint before us. E.g., PFR File, Tab 11 at 12, Tab 14 at 8. 15 ¶36 In cases that followed, including this one, the petitioner did not contest arguments that SSA ALJs are inferior officers who were not properly appointed before the petitioner’s post-Lucia ratification of its ALJs. PFR File, Tab 14 at 7 n.4, 9-11; e.g., Ramsey v. Commissioner of Social Security, 973 F.3d 537, 547 (6th Cir. 2020). The ALJ presiding over this case also found that the respondent, as an SSA ALJ, is an inferior officer. ID at 34-35. However, we find it unnecessary to decide that question. ¶37 The statute governing this case provides that a removal “may be taken against an [ALJ] . . . by the [petitioner] in which the [ALJ] is employed only for good cause established and determined by the [Board].” 5 U.S.C. § 7521(a), (b)(1); see 5 C.F.R. § 930.211 (reflecting the same proposition). A Board decision finding good cause “on a proposed [petitioner] action . . . against an [ALJ] will authorize the [petitioner] to take a disciplinary action.” 5 C.F.R. § 1201.140(b). Accordingly, when the Board makes a good cause determination, it authorizes but does not require the petitioner to act. E.g., Avery, 120 M.S.P.R. 150, ¶¶ 13-14 (finding good cause under 5 U.S.C. § 7521 and “authoriz[ing]” the petitioner to furlough respondent ALJs); Long, 113 M.S.P.R. 190, ¶¶ 42, 55 (finding good cause under 5 U.S.C. § 7521 and “authoriz[ing]” the petitioner to remove the respondent ALJ); Steverson, 111 M.S.P.R. 649, ¶¶ 20-21 (same). Therefore, even if the respondent were correct to argue that he is an inferior officer and can only be removed by a principal officer, that may very well be what happens after the Board issues this decision. A principal officer or other appropriate official for the petitioner may act on our good cause determination and remove the respondent. For this reason, we cannot determine that someone other than a principal officer improperly removed the respondent. ¶38 Put another way, the complaint before us merely sought the Board’s determination that good cause for removing the respondent exists. Neither the complaint nor this decision removes the respondent because the Board’s finding of good cause for removal does not bind the petitioner agency to remove the 16 respondent, but merely authorizes it to do so. We thus need not opine on which petitioner agency official may exercise removal authority once the Board has found good cause for removal. To the extent any of our prior decisions have suggested that the Board takes, or directs an employing agency to take, an action against an ALJ under 5 U.S.C. § 7521, they are overruled. ¶39 Below, the respondent also raised claims that the petitioner had (1) failed to state a claim upon which relief could be granted, (2) failed to satisfy a condition precedent to its charges, and (3) was estopped from bringing the charges. IAF, Tab 9 at 4-5. The presiding ALJ found that the respondent failed to prove, and in some instances even failed to support, his claims. ID at 22-24. The respondent also argued that the petitioner violated a criminal statute pertaining to the deprivation of an individual’s rights protected by the Constitution or laws of this country. IAF, Tab 120 at 29. The presiding ALJ found that the Board lacks jurisdiction over this claim. ID at 33. The respondent does not reraise any of these particular claims on review, and we decline to consider them further.6 6 The respondent states on review that he “testified that, in retrospect, he believes that he grossly erred in not filing a [F]ederal Whistleblower action which would have protected him from the resultant retaliation.” PFR File, Tab 11 at 18. We find no indication that the respondent raised whistleblower retaliation as an affirmative defense below. IAF, Tab 9 at 4-5. The testimony cited by the respondent reflects that, after receiving the November 2014 instruction not to conduct any off-the-record discussions with medical expert witnesses, he told the Birmingham HOCALJ that it was a “disservice” not to allow the respondent to continue to do so. HT, Nov. 5, 2019, at 47-50 (testimony of the respondent); IAF, Tab 104 at 15-17. Regardless of the merits of any whistleblower reprisal claim, 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). The respondent’s attorney acknowledged in his closing statement that the respondent had elected not to raise a whistleblower reprisal claim. HT, Nov. 7, 2019, at 87-88 (closing argument of the respondent’s attorney). The respondent was presumably aware of his own alleged disclosures prior to the hearing, and his failure to raise such a claim below does not demonstrate due diligence. Therefore, to the extent the appellant is now attempting to raise such a claim, we decline to grant review on that basis. 17 We find good cause for the petitioner’s chosen penalty of removal. ¶40 The petitioner’s initial complaint sought permission to suspend the respondent for the period between the date of its complaint and our final decision, as well as to remove the respondent. IAF, Tab 1 at 4. The ALJ instead found that there was good cause to suspend the respondent for 2 years and demote him. ID at 39-48. In its petition for review, the petitioner argues that we should authorize the respondent’s removal rather than the lesser penalty identified by the ALJ. PFR File, Tab 12 at 12-21 (referencing ID at 39-48). For the reasons that follow, we find good cause for the petitioner’s selected penalty of removal.7 ¶41 In original jurisdiction cases such as this one, under 5 U.S.C. § 7521, the Board looks to the factors articulated in Douglas, 5 M.S.P.R. at 305-06, to guide its penalty analysis. Long, 113 M.S.P.R. 190, ¶ 47. In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors relevant to penalty determinations. The presiding ALJ considered the Douglas factors in this case and found that a 2-year suspension, rather than the petitioner’s chosen penalty of removal, was most appropriate. ID at 39-48. Among other things, he decided that the respondent held a position of prominence and his misconduct was serious, but mitigating factors including his length of service, prior performance, and job tensions warranted the lesser penalty. Id. Although we agree with portions of the ALJ’s analysis, we disagree with other portions and with his final conclusion. ¶42 The Board considers first and foremost among the Douglas factors the seriousness of the misconduct and its relationship to the employee’s position and 7 The petitioner separately argued that the Board should depart from existing precedent and find that the petitioner’s penalty determination is entitled to deference if we deem the respondent an inferior officer under the Appointments Clause. PFR File, Tab 12 at 21-24 (referencing Anyel, 58 M.S.P.R. at 274 n.23); see Long, 113 M.S.P.R. 190, ¶ 47 (explaining that the Board selects the appropriate penalty in an action taken under 5 U.S.C. § 7521 and does not give deference to the petitioner’s preferred penalty). We need not substantively address this argument because we find the proposed removal proper, regardless of any deference to the petitioner. 18 duties. Long, 113, M.S.P.R. 190, ¶ 48. Like the presiding ALJ, we find that the respondent’s offenses varied but were all serious. ID at 40-41. Despite the petitioner’s extensive efforts to provide him with detailed feedback and training, the respondent repeatedly neglected his duties. E.g., IAF, Tab 109 at 4-5, Tab 110 at 4-14; ID at 3-4, 10-11. He also repeatedly and defiantly failed to follow directives about multiple topics. E.g., ID at 4-5, 11-16. This includes the respondent’s blatant refusal to attend training, even when the petitioner had already reprimanded him for refusing to attend this training on earlier dates and despite warnings that this could lead to further discipline. Id. Lastly, the respondent repeatedly engaged in conduct unbecoming in ways that are disruptive and unacceptable for any professional, much less a judge. E.g., ID at 5-6, 16-21; see Social Security Administration v. Brennan, 27 M.S.P.R. 242, 251 (1985) (recognizing that the position of ALJ is one of prominence, whose incumbents usually engender great respect and whose cooperation within the office should be taken for granted), aff’d sub nom. Brennan v. Department of Health and Human Services, 787 F.2d 1559 (Fed. Cir. 1986). This unbecoming conduct included the respondent calling his supervisor a “Nazi” and physically preventing her from giving him a written directive before ultimately taking the directive, only to tear it to pieces in her presence. Id. We have considered the respondent’s arguments discussed above, some of which the ALJ considered under other Douglas factors, including arguments that the respondent’s supervisor provoked his conduct and that the conduct occurred over a short period of time, along with his explanations for failing to follow certain directives. Nonetheless, we do not find that any of these arguments or alleged facts meaningfully lessens the severity of the respondent’s offenses. 19 ¶43 The petitioner disputes several of the ALJ’s findings about other Douglas factors.8 For example, the petitioner argues that it was inconsistent for the ALJ to decide that the respondent was not likely capable of rehabilitation because the respondent had shown little or no remorse, yet find that a penalty less than removal would deter the respondent in the future. PFR File, Tab 12 at 15-16. We agree. ¶44 One of the Douglas factors is the potential for the employee’s rehabilitation. 5 M.S.P.R. at 305. The Board considers expressions of remorse as reflecting rehabilitative potential and thus militating in favor of a lesser penalty. E.g., Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 22 (2014). Conversely, an individual’s rationalizations and lack of remorse may reflect little rehabilitative potential and thus be aggravating factors. Neuman v. U.S. Postal Service, 108 M.S.P.R. 200, ¶ 26 (2008). Here, the respondent has expressed little or no remorse. E.g., IAF, Tab 120. To illustrate, the respondent testified that his supervisor “truly was worse than a Nazi.” E.g., HT, Nov. 6, 2019, at 34 (testimony of the respondent). As another example, the respondent continued to characterize the petitioner’s requirement that he attend training related to his performance as “a total waste of [his] time,” and its requirement that he attend separate sensitivity training as so unwarranted that “it made [him] sick.” Id. at 27, 80-81; IAF, Tab 9 at 10. We find that this lack of remorse suggests that there is very little potential for the respondent’s rehabilitation if he is given a penalty less than removal. 8 The petitioner also argues that returning the respondent to work after 6 years away from his ALJ duties would require retraining. PFR File, Tab 12 at 15. This argument does not implicate any of the Douglas factors and is not an appropriate penalty question. Rather, it concerns the scope of appropriate relief when the Board reverses an agency’s action. Cloude v. Department of the Navy, 83 M.S.P.R. 184, ¶¶ 6-7 (1999) (finding that status quo ante relief included training that the agency had improperly denied the appellants prior to removing them). Because we are not reversing an action, we do not reach this argument. 20 ¶45 The petitioner also argues that the ALJ erred in analyzing the respondent’s past disciplinary record and past work record to find that those factors warranted a lesser penalty. PFR File, Tab 12 at 16-19. These are also factors that, under Douglas, may be relevant to a penalty determination. 5 M.S.P.R. at 305. The petitioner asserts that the ALJ erred by indicating that the respondent had no history of discipline when the respondent had previously been reprimanded for some of the very same misconduct the ALJ sustained in this matter. PFR File, Tab 12 at 16-17 (referencing ID at 41). We agree. The Board may rely on a prior reprimand as past discipline. See, e.g., Byers v. Department of Veterans Affairs, 89 M.S.P.R. 655, ¶¶ 14-19 (2001) (finding that a prior reprimand could be considered as past discipline in determining the penalty); Buniff v. Department of Agriculture, 79 M.S.P.R. 118, ¶ 10 & n.4 (1998) (considering an employee’s prior reprimand in analyzing the reasonableness of a petitioner’s penalty). Here, the ALJ failed to account for a prior reprimand that was relevant to the charges now before the Board. Compare IAF, Tab 108 at 7-9 (reprimanding the respondent in September 2016 for failing to follow a directive to attend sensitivity training), with IAF, Tab 1 at 10, 13-14 (charging the respondent with failure to follow a directive to attend the same training in October 2016), and ID at 15-16 (sustaining that charge).9 ¶46 Turning to the respondent’s past work record, the ALJ found that this factor supported a lesser penalty because, inter alia, the respondent’s unbecoming conduct occurred over a short period of time. ID at 42. The petitioner disagrees. PFR File, Tab 12 at 18-19. We find that the amount of time between the 9 Under Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981), the Board’s review of a prior disciplinary action is limited to determining whether that action is clearly erroneous, the employee was informed of the action in writing, the action is a matter of record, and the employee was permitted to dispute the charges before a higher level of authority than the one that imposed the discipline. Here, the letter of reprimand satisfies those prerequisites, IAF, Tab 108 at 7-9, and the respondent has not shown that it was clearly erroneous. 21 respondent’s instances of misconduct, as well as the respondent’s allegations that his misconduct was instigated by his HOCALJ, are more appropriately analyzed when weighing the nature and severity of the offenses. We find that the short period of time in which the offenses occurred does not meaningfully lessen the seriousness of the respondent’s misconduct. ¶47 Regarding the respondent’s past work record, the petitioner argues that the ALJ mischaracterized the respondent as performing satisfactorily prior to the incidents giving rise to this action despite contrary evidence. PFR File, Tab 12 at 18. However, the petitioner has oversimplified the ALJ’s findings. The presiding ALJ recognized the respondent’s recent performance issues, including evidence of the same, while concluding that these issues were not necessarily reflective of his 12-year career with the petitioner. ID at 42. The petitioner has not given us a reason to conclude otherwise. On this point, though, we note that the ALJ accounted for the respondent’s 12 years of service in his position when analyzing his past work record. ID at 42. But it appears to be unrebutted that the respondent began his Federal service in 1969 or 1970 and left Federal service approximately 6 years later. PFR File, Tab 11 at 5; HT, Nov. 5, 2018, at 10-13 (testimony of the respondent). He resumed Federal service in 2004, when he became an ALJ for the petitioner. HT, Nov. 5, 2018, at 25 (testimony of the respondent); IAF, Tab 1 at 6. An employee’s length of service can be a mitigating factor in determining a reasonable penalty. Douglas, 5 M.S.P.R. at 305; see Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, ¶ 19 (2002) (noting that the Board has disapproved of treating lengthy service as an aggravating factor), modified on other grounds by Lewis v. Department of Veterans Affairs, 113 M.S.P.B. 657 (2010), overruled by Singh v. U.S. Postal Service, 2022 MSPB 15. Such service includes all Federal civilian and military service. Tartaglia v. Department of Veterans Affairs, 858 F.3d 1405, 1409 (Fed. Cir. 2017). Accordingly, we have considered the entirety of the respondent’s approximately 19 years of Federal service that predated the petitioner’s June 2017 complaint, not 22 just his service in his current position, as a mitigating factor. See Wentz, 91 M.S.P.R. 176, ¶ 19 (treating 13 years of service as a significant mitigating factor). ¶48 The petitioner next argues that the ALJ improperly viewed the respondent’s mental impairment as a mitigating factor, when the sole evidence in the record about the respondent’s mental health was his own testimony indicating that he was free of any mental impairment. PFR File, Tab 12 at 19-20 (referencing ID at 47; HT, May 7, 2019, at 156-58 (testimony of the respondent)). We agree. During the hearing, the presiding ALJ described the respondent as exhibiting “unusual and sometimes disruptive behavior indicative of a mental impairment.” ID at 47. However, absent a claim or evidence of a mental impairment, it was improper for the presiding ALJ to find that the respondent had such an impairment and rely on that as a mitigating factor. See Smith v. Defense Logistics Agency, 15 M.S.P.R. 611, 612-13 (1983) (concluding that a presiding official abused his discretion in finding that an appellant’s alleged mental impairment was a basis for mitigating the penalty when the appellant failed to present evidence that her misconduct was the result of mental illness). ¶49 We recognize that the respondent worked for the petitioner for many years, most of which were seemingly successful and without incidents like those at issue in this matter. We also credit the ALJ’s determination that the respondent genuinely felt mistreated during his final years of work and was experiencing other personal stressors. ID at 47. But these factors do not outweigh those that support the respondent’s removal, particularly the nature of the offenses and their impact on the petitioner, as well as the respondent’s lack of rehabilitative potential. See, e.g., Social Security Administration v. Carr, 78 M.S.P.R. 313, 343 (1998) (finding good cause to authorize the removal of an ALJ where, inter alia, she lacked potential for rehabilitation), aff’d, 185 F.3d 1318 (Fed. Cir. 1999); Burris, 39 M.S.P.R. at 64-65 (finding good cause to authorize the removal of an 23 ALJ for a pattern of outrageous conduct that made the possibility of rehabilitation extremely unlikely).10 ¶50 We briefly address the petitioner’s request for a good cause determination for suspending the respondent for the period between the petitioner’s complaint and our final decision. IAF, Tab 1 at 4. The petitioner does not pursue this request in its petition for review. PFR File, Tab 12. Nevertheless, section 7521(a) advises that a petitioner may only take an action against an ALJ after the Board determines that the petitioner has established good cause. 5 U.S.C. § 7521(a); see, e.g., Social Security Administration v. Boham, 38 M.S.P.R. 540, 546-47 (1988) (finding that SSA proved good cause to suspend the respondent ALJ for 75 days based on his refusal to comply with reasonable orders concerning case scheduling), aff’d per curiam, 883 F.2d 1026 (Fed. Cir. 1989) (Table). Moreover, the Board has held that the imposition of a time-served suspension is arbitrary and cannot be sustained. Milligan v. U.S. Postal Service, 106 M.S.P.R. 414, ¶ 13 (2007); see Greenstreet v. Social Security Administration, 543 F.3d 705, 709 (Fed. Cir. 2008) (“[T]he length of a suspension is arbitrary when it is based solely on the suspended employee’s ‘time served’ awaiting decision.”). For these reasons, we find that it is not appropriate to interpret the statute as authorizing a time-served or retroactive suspension. 10 The respondent has asserted that the presiding ALJ’s penalty determination is a “valid and irreversible use of judicial discretion.” PFR File, Tab 15 at 5-8. We disagree. The respondent has failed to articulate any persuasive reason why the Board would be bound by the ALJ’s penalty analysis, particularly when we have identified several shortcomings in that penalty analysis. Nor has he articulated any persuasive reason why we would depart from our practice of reviewing a presiding ALJ’s determination regarding penalty. See, e.g., Long, 113 M.S.P.R. 190, ¶¶ 5, 47-54 (disagreeing with an ALJ’s initial decision, which found good cause for a 45-day suspension, and authorizing a respondent’s removal); Steverson, 111 M.S.P.R. 649, ¶¶ 16, 19-21 (disagreeing with an ALJ’s decision to approve of just a 35-day suspension and authorizing a respondent’s removal). 24 ¶51 In sum, we find that the petitioner’s choice of removal is an appropriate penalty. We find that the petitioner has not demonstrated good cause to suspend the respondent for the period between its complaint and this decision. The ALJ did not abuse his discretion by denying the respondent’s request for dismissal as a sanction for an alleged discovery violation. ¶52 On review, the respondent disagrees with the presiding ALJ’s ruling about an alleged discovery violation and the respondent’s request for dismissal of this case as a sanction. PFR File, Tab 11 at 23-25. We are not persuaded. ¶53 The Board’s regulation, 5 C.F.R. § 1201.41(b), gives its administrative judges broad discretion. Guzman v. Department of Veterans Affairs, 114 M.S.P.R. 566, ¶ 12 (2010). Such discretion includes the authority to impose sanctions as necessary to serve the ends of justice. Id.; 5 C.F.R. §§ 1201.41(b)(11), 1201.43. The ALJ may impose the sanction of dismissal with prejudice if a party fails to prosecute or defend an appeal. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2015); see 5 C.F.R. § 1201.43(b). Such a sanction should be imposed only when a party has (1) failed to exercise basic due diligence in complying with Board orders; or (2) exhibited negligence or bad faith in its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Absent an abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. Id. ¶54 The Board has original jurisdiction over cases involving ALJ removals under 5 U.S.C. § 7521(a). Long, 113 M.S.P.R. 190, ¶ 12. In adjudicating cases within its original jurisdiction, the Board generally applies the same procedural regulations as in those falling under its appellate jurisdiction. Special Counsel v. Department of Homeland Security, 101 M.S.P.R. 505, ¶ 8 (2006); 5 C.F.R. § 1201.121(b)(1). Therefore, we find it appropriate to apply the same abuse of discretion standard to our review of the presiding ALJ’s sanctions determination. ¶55 Below, the ALJ considered but rejected an argument the respondent made in his closing brief requesting dismissal of this case, with prejudice, as a sanction 25 for the petitioner’s alleged failure to produce certain documents during discovery. ID at 32 (referencing IAF, Tab 116 at 31, Tab 117 at 5-24); IAF, Tab 120 at 22-24. These documents consist of several unsigned letters that discuss unnamed individuals’ harassment complaints against the respondent and the petitioner’s conclusion that the respondent’s conduct did not meet the legal definition of harassment. IAF, Tab 116 at 31, Tab 117 at 5-24. The ALJ found that the respondent obtained these documents through other means, so the respondent was not prejudiced by this alleged discovery violation, which the ALJ described as “harmless.” ID at 32. The ALJ further found that dismissal of the petitioner’s complaint was “not the correct remedy for a discovery violation.” Id. ¶56 On review, the respondent disputes the ALJ’s findings. PFR File, Tab 11 at 23-25. The respondent argues that he was prejudiced because the petitioner “intentionally” kept these documents from him, and he only came into their possession after the hearing in this case had already begun. Id. at 23-24. The respondent also summarily asserts that dismissal of the petitioner’s complaint is an appropriate sanction under the “statute.” Id. at 25. ¶57 The respondent has presented us with little more than bare assertions about this alleged discovery violation and the propriety of dismissal as a sanction. To illustrate, the respondent’s petition for review does not clearly direct us to anywhere in the voluminous record where we might find the discovery request at issue or the petitioner’s alleged deficient response. In addition, although he has described the petitioner as intentionally withholding the documents, he has not provided any evidentiary support or explanation. The respondent has also failed to provide us with further details about when he obtained the documents. This is particularly noteworthy because, although the respondent vaguely described receiving them after the hearing had already begun, that hearing spanned approximately 15 months, and the respondent had approximately 6 months after the hearing ended to submit his closing brief. HTs (documenting hearing dates spanning August 2018 to November 2019); IAF, Tab 120 (the respondent’s May 26 2020 closing brief). Lastly, the respondent has not presented a persuasive explanation about the relevance of the documents at issue or any persuasive explanation about how he was prejudiced by the delayed receipt. For all of these reasons, we find that the respondent has failed to show that the ALJ abused his discretion by considering the alleged discovery violation and finding that it did not warrant dismissal of this case or any other sanctions. See Wagner v Department of Homeland Security, 105 M.S.P.R. 67, ¶¶ 5-6, 13-15 (2007) (observing that sanctions should be proportionate to the offense and finding that the sanction imposed by an administrative judge for a particular discovery violation was excessive). In light of this finding, we need not address the ALJ’s suggestion that dismissal is never an appropriate sanction for a discovery violation or the respondent’s argument to the contrary. ORDER ¶58 The Board authorizes the petitioner to remove the respondent for good cause shown, pursuant to 5 U.S.C. § 7521. 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 RIGHTS11 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 11 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. 27 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: 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 28 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 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 29 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 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for 12 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. 30 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. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 31 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/LEVINSON_MICHAEL_L_CB_7521_17_0023_T_1_OPINION_AND_ORDER_2048875.pdf
07-06-2023	2023 MSPB 19	Marnie Golden	https://www.mspb.gov/decisions/precedential/GOLDEN_MARNIE_B_CH_3330_16_0556_I_1_OPINION_AND_ORDER_2047078.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 19 Docket No. CH-3330-16-0556-I-1 Marnie B. Golden, Appellant, v. Department of Veterans Affairs, Agency. July 6, 2023 Marnie B. Golden, Little Rock, Arkansas, pro se. Jason F. Rudie, Esquire, Minneapolis, Minnesota, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her Veterans Employment Opportunities Act of 1998 (VEOA) appeal for lack of jurisdiction. For the following reasons, we AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still dismissing the appeal for lack of jurisdiction. BACKGROUND ¶2 The appellant filed a VEOA complaint with the Department of Labor (DOL) concerning a nonselection for a Housekeeping Aide position at the Department of Veterans Affairs (DVA or agency). Initial Appeal File (IAF), Tab 1 at 2, 6, 39. 2 On August 9, 2016, DOL issued a letter informing the appellant that it was closing its case because it had determined that she failed to meet the eligibility requirements for veterans’ preference under 5 U.S.C. § 2108. Id. at 23. This appeal timely followed.1 Id. at 1. ¶3 In response to the acknowledgment order, the agency argued that the appellant was not entitled to veterans’ preference under 5 U.S.C. § 2108 because she was separated under “uncharacterized” conditions and that, as a consequence, it did not violate her veterans’ preference rights. IAF, Tab 10 at 5-6. Without holding the requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). She found that the appellant failed to make a nonfrivolous allegation that she was a preference eligible under 5 U.S.C. § 2108. Id. ¶4 In her petition for review, the appellant reiterates the arguments she set forth below, asserting that she is a preference eligible due to her receipt of disability benefits from the agency. Petition for Review (PFR) File, Tab 1 at 2-3. She also provides further details regarding her discharge from the military. Id. The agency did not respond. The appellant attempted to file two subsequent pleadings but, because she failed to file the required motions explaining the nature and need for the additional pleadings, we have not considered them. PFR File, Tabs 3-4; see 5 C.F.R. § 1201.114. ANALYSIS ¶5 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the 1 The appellant filed her Board appeal identifying DOL as the respondent agency. IAF, Tab 1 at 2. However, because the appellant alleged that DVA failed to select her for a position, the administrative judge identified DVA as the respondent agency. IAF, Tab 5. 3 burden of proving Board jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i). To establish Board jurisdiction over her VEOA claim, the appellant must show that she exhausted her administrative remedy with DOL and make nonfrivolous allegations of the following: (1) she is a preference eligible within the meaning of VEOA; and (2) the agency violated her rights under a statute or regulation relating to veterans’ preference.2 Davis v. Department of Defense, 2022 MSPB 20, ¶ 5 n.1; see 5 U.S.C. § 3330a(a)(1)(A). For purposes of Title 5 of the U.S. Code, “preference eligible” means, among other things, a “disabled veteran.” 5 U.S.C. § 2108(3)(C). A “disabled veteran,” in turn, “means an individual who has served on active duty in the armed forces,” “has been separated therefrom under honorable conditions,”3 and “has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department . . .” 5 U.S.C. § 2108(2). The Office of Personnel Management has promulgated regulations further defining the above terms for purposes of preference in Federal employment. 5 C.F.R. § 211.102. That regulation indicates that “[t]he Department of Defense is responsible for administering and defining military discharges.” 5 C.F.R. § 211.102(g). ¶6 We agree with the administrative judge that the appellant failed to nonfrivolously allege that she is a preference eligible within the meaning of VEOA. ID at 3-5. As set forth above, for a disabled veteran—like the 2 The administrative judge found it undisputed that the appellant exhausted her remedy with DOL. ID at 3. 3 The statute sets forth an exception to this requirement under 5 U.S.C. § 2108a, which applies when a certification is submitted indicating that the individual is expected to be separated from active duty in the armed forces under honorable conditions no later than 120 days after the submission of the certification. There is no indication that this exception applies under the facts of this case. 4 appellant—to be considered a preference eligible, she must have been separated under honorable conditions. ID at 4; see 5 U.S.C. § 2108(2); 5 C.F.R. § 211.102(b). The appellant’s DD Form 214 (DD-214) Certificate of Release or Discharge from Active Duty, shows that she served on active duty for 95 days, from November 9, 2004, to February 11, 2005, and reflects the character of the appellant’s service as “uncharacterized.” IAF, Tab 1 at 15. The appellant identifies nothing on review to indicate that the classification of the character of her service has changed.4 ¶7 The appellant’s DD-214 cites Army Regulation (AR) 635-200, Active Duty Enlisted Administrative Separations, chapter 11, as the authority for her separation,5 and describes the reason for her separation as “entry level.” IAF, Tab 1 at 15. Chapter 3 of AR 635-200 describes the four types of characterization of service or description of separation that are authorized. The first is “[s]eparation with characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions.” The second is “[e]ntry level status,” and provides that such “[s]ervice will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in paragraph 3-9a.” Thus, AR 635-200 from the start treats honorable and under honorable condition characterizations of service or descriptions of separation as distinct from “uncharacterized” descriptions. Chapter 3-9a provides for several 4 The record indicates that the appellant has attempted and failed before the Board for Correction of Military Records to have her Department of Army records altered. IAF, Tab 1 at 42. Although she similarly has requested that the Board correct her records, PFR File, Tab 1 at 3, we are unaware of, and she has not provided, any authority under which we may do so. 5 AR 635-200, Active Duty Enlisted Administrative Separations (June 28, 2021), https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30496-AR_635-200-000-WEB- 1.pdf (last visited July 5, 2023). We take official notice of AR 635-200, which is readily available to the public. See Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 20 n.10 (2013). 5 exceptions to an entry-level separation with service uncharacterized for soldiers whose processing is initiated while in entry-level status, but there is no indication that the Department of the Army made such a determination in the appellant’s case. Chapter 11 is entitled Entry Level Performance and Conduct, and lists several reasons for separation under this authority. It specifies that this reason for separation applies to soldiers who are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous active duty, as did the appellant when the agency discharged her. Chapter 10-8 of AR 635-200 provides that, “[w]hen characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized.” Thus, although an “uncharacterized” discharge is not necessarily one that occurred under other than honorable conditions, and we make no such characterization of the appellant’s service here, it is clear that a designation of “uncharacterized” does not indicate that the discharge at issue was under honorable conditions for the purpose of veterans’ preference statutes and regulations.6 Accordingly, we find that the appellant has not met her burden on jurisdiction and that the administrative judge properly dismissed the appeal for lack of jurisdiction. ¶8 The appellant provides numerous documents with her petition for review, some of which she submitted in her appeal below and all of which appear to be dated before the close of the record below. PFR File, Tab 1 at 5-39. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable 6 In Ferguson v. Office of Personnel Management, 100 M.S.P.R. 347, ¶ 10 (2005), a case involving a negative suitability determination, the Board stated that “the appellant received an uncharacterized (i.e., less than honorable) discharge from the United States Army because he did not demonstrate self-discipline, the ability to work as a team member, and other solidierly qualities.” We hereby clarify that the statement in Ferguson applied only to the facts of that case, and does not suggest that every uncharacterized discharge from the U.S. Army is necessarily “less than honorable.” 6 before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant makes no such showing, and in any event, the documents she submits on review do not show that she is a preference eligible under 5 U.S.C. § 2108, and therefore, they do not aid her in meeting her burden to establish jurisdiction over her VEOA claim. PFR File, Tab 1 at 5-39. Accordingly, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction. ORDER ¶9 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 RIGHTS7 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. 7 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. 7 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: 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 8 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 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: 9 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 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.8 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). 8 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. 10 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/GOLDEN_MARNIE_B_CH_3330_16_0556_I_1_OPINION_AND_ORDER_2047078.pdf	Issuance Date: July 6, 2023 VEOA/VETERANS’ RIGHTS JURISDICTION The appellant filed a Veterans Employment Opportunities Act of 1998 (VEOA) complaint with the Department of Labor (DOL) regarding her nonselection for a position with the agency. After DOL issued a letter informing the appellant that it was closing her case because it had determined that she failed to meet eligibility requirements for veterans’ preference under 5 U.S.C. § 2108, the appellant timely appealed to the Board. The administrative judge issued an initial decision dismissing the matter for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that she was a preference eligible under 5 U.S.C. § 2108. The appellant filed a petition for review. Holding: For a disabled veteran to be considered a preference eligible under 5 U.S.C. § 2108, she must have been separated under honorable conditions. 1. The Board explained that the appellant’s DD Form 214 (DD-214) Certificate of Release or Discharge from Active Duty reflected the character of her service as “uncharacterized” and that she had identified nothing on review to indicate that the classification of the character of her service had changed. 2. The Board explained that the appellant’s DD-214 cited Army Regulation 635-200, which treats honorable and under honorable condition characterizations of service or descriptions of separation as distinct from “uncharacterized” descriptions. The Board reasoned that, although the applicable regulation indicated that an “uncharacterized” discharge is not necessarily one that occurred under other than honorable conditions, it was clear that a designation of “uncharacterized” does not indicate that a discharge was under honorable conditions for the purpose of veterans’ preference statutes and regulations. 3. Accordingly, the Board concluded that the appellant had not met her jurisdictional burden and that the administrative judge had properly dismissed the matter for lack of jurisdiction. COURT DECISIONS PRECEDENTIAL:
05-16-2023	2023 MSPB 18	Troy Stewart	https://www.mspb.gov/decisions/precedential/STEWART_TROY_J_DC_315H_18_0729_I_1_OPINION_AND_ORDER_2031895.pdf	Department of Transportation	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 18 Docket No. DC-315H-18-0729-I-1 Troy J. Stewart, Appellant, v. Department of Transportation, Agency. May 16, 2023 Kristin D. Alden, Esquire, Washington, D.C., for the agency. Justine Casselle and Stephen Andrew Hench, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision that reversed the appellant’s involuntary separation on due process grounds. For the reasons discussed below, we DENY the petition for review. Except as expressly MODIFIED by this Opinion and Order to clarify that the administrative judge lacked the authority to address interim relief in an erratum, we AFFIRM the initial decision. 2 BACKGROUND ¶2 Effective January 22, 2017, the agency awarded the appellant a career-conditional appointment in the competitive service to the position of GS-12 Safety Recall Specialist, subject to a 1-year initial probationary period. Initial Appeal File (IAF), Tab 25 at 6-7, 18; see 5 C.F.R. § 315.801(a). The appellant’s work schedule was Monday through Friday, 7:00 a.m. to 3:30 p.m. IAF, Tab 9 at 16. As the anniversary of the appellant’s appointment was approaching, on January 11, 2018, the Recall Management Division Chief recommended that he be terminated for postappointment reasons. IAF, Tab 29 at 13-14. She informed the appellant that, unless he resigned his position on or before January 15, 2018, he would be terminated. IAF, Tab 35, Hearing Compact Disc (HCD) at 11:55 (testimony of the Division Chief). On January 16, 2018, the appellant tendered his letter of resignation, to be effective Monday, January 22, 2018. IAF, Tab 29 at 15; HCD at 16:25 (testimony of the Division Chief), 1:13:45 (testimony of the appellant). ¶3 The Division Chief notified the Office of Human Resources of the impending resignation and stated that the termination action would no longer be necessary. IAF, Tab 29 at 18. However, the Office of Human Resources advised that the resignation date could not be January 22 because, by that date, the appellant’s probationary period would have expired. Id. at 17-18; HCD at 49:00 (testimony of the Lead Employee and Labor Relations Specialist). The Division Chief therefore requested that the appellant change his resignation date to Friday, January 19, 2022, and complete a Standard Form (SF)-52 requesting a resignation action on that date. IAF, Tab 29 at 16-17; HCD at 18:35 (testimony of the Division Chief), 1:15:20 (testimony of the appellant). The appellant, however, declined to change the date of his resignation. HCD at 51:20 (testimony of the Lead Employee and Labor Relations Specialist), 1:19:20 (testimony of the appellant). At the end of his tour of duty on January 18, 2018, the appellant returned at least some of his agency-issued equipment, including his laptop, and 3 his personal identity verification card. HCD at 53:35 (testimony of the Lead Employee and Labor Relations Specialist), 1:21:55 (testimony of the appellant). ¶4 The following day, Friday, January 19, 2018, was the final regularly scheduled workday in the appellant’s probationary period. On that date, the Office of Human Resources obtained the signatures from the relevant officials and completed the paperwork necessary to effect the termination action. IAF, Tab 9 at 13-14, 25; HCD at 55:45 (testimony of the Lead Employee and Labor Relations Specialist). However, the appellant was not in the office that day because he had taken sick leave scheduled in advance. IAF, Tab 9 at 16; HCD at 1:23:45 (testimony of the appellant). The agency elected to deliver the termination notice to him by email at his work email address, and by overnight delivery to his home address. IAF, Tab 9 at 14-15, 26; HCD at 56:10 (testimony of the Lead Employee and Labor Relations Specialist). The agency processed the appellant’s termination, effective January 19, 2016. IAF, Tab 25 at 25; HCD at 57:40 (testimony of the Lead Employee and Labor Relations Specialist). The appellant received notice of his termination by overnight delivery the following day. HCD at 1:24:35 (testimony of the appellant). ¶5 The appellant filed a Board appeal, and after a hearing, the administrative judge reversed his termination on due process grounds. IAF, Tab 36, Initial Decision (ID). She found that the agency was required to effect any termination action prior to the end of the appellant’s tour of duty on January 19, 2018, at 3:30 p.m., but that there was no credible evidence that the agency notified the appellant prior to that date and time that he was being terminated from his position during his probationary period. ID at 10. She further found that, because the appellant’s separation amounted to an adverse action under 5 U.S.C. chapter 75, and the agency took that action without prior notice and an opportunity to respond, the agency violated the appellant’s right to due process. ID at 10-11. The administrative judge found that the appeal was filed outside the 4 30-day regulatory deadline, but she waived the deadline for good cause shown. ID at 11-12. ¶6 The agency has filed a petition for review, contesting the administrative judge’s jurisdictional analysis and arguing that it lacked sufficient opportunity to develop the record on several issues. Petition for Review (PFR) File, Tab 1. The appellant has filed a substantive response to the petition for review and has requested that the petition be dismissed on interim relief grounds. PFR File, Tabs 4, 7. The agency has filed a reply to the appellant’s response and an opposition to his request for dismissal.1 PFR File, Tabs 6, 8. ANALYSIS The appellant was entitled to interim relief by operation of statute. ¶7 In appeals adjudicated under the procedures of 5 U.S.C. § 7701, the Board’s authority to award interim relief derives from 5 U.S.C. § 7701(b)(2). If the appellant was the prevailing party in the initial decision, the initial decision must contain a statement as to whether interim relief is provided effective upon the date of the decision, pending the outcome of any petition for review filed by another party. 5 C.F.R. § 1201.111(b)(4). If the initial decision grants the appellant interim relief, any petition or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order either by providing the required interim relief or by 1 Among other things, the agency contests the administrative judge’s ruling on timeliness, arguing that it lacked sufficient opportunity to pursue discovery and present evidence and argument on the issue. PFR File, Tab 1 at 12-13. However, for the reasons explained in the initial decision, we agree with the administrative judge that the undisputed documentary evidence shows good cause for waiving the deadline. ID at 12. The agency failed to notify the appellant of his right to appeal its action, and the appellant diligently pursued his appeal rights once he discovered them. See Cranston v. U.S. Postal Service, 106 M.S.P.R. 290, ¶ 14 (2007). The agency has not explained what information it hoped to obtain from further discovery that might warrant a different result. 5 satisfying the undue disruption requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B). 5 C.F.R. § 1201.116(a). An appellant may challenge an agency’s certification of compliance with the interim relief order, and an agency’s failure to establish compliance may result in the dismissal of its petition or cross petition for review. 5 C.F.R. § 1201.116(b)-(e). ¶8 In this case, the appellant was the prevailing party in the initial decision, but the initial decision was silent on the issue of interim relief. ID. Recognizing this omission, the administrative judge issued an erratum to correct the initial decision and order the agency to provide interim relief in the event that either party should file a petition for review. IAF, Tab 38. ¶9 As a threshold matter, we find it appropriate to clarify the source of the agency’s interim relief obligation. The agency accurately points out that, under the Board’s regulations, the initial decision should have addressed the interim relief issue explicitly and stated affirmatively either that interim relief was granted or not granted. PFR File, Tab 1 at 8; 5 C.F.R. § 1201.111(b)(4). Furthermore, we find that the administrative judge lacked authority to address the matter in an erratum. The Board’s regulations proscribe strictly limited situations in which an administrative judge may retain jurisdiction after issuing an initial decision: To correct transcripts, to rule on motions for attorney fees and consequential or compensatory damages, to adjudicate petitions for enforcement, and to enter a settlement agreement into the record in an appeal in which the initial decision is not yet final. 5 C.F.R. § 1201.112(a). By custom, administrative judges may also issue traditional errata that correct typographical or other minor errors. To the extent that the erratum in this case would change the substance of the initial decision by ordering additional relief, it was outside the scope of the administrative judge’s authority. See Jackson v. U.S. Postal Service, 73 M.S.P.R. 512, 517 (1997), rev’d in part on other grounds on reopening, 79 M.S.P.R. 46 (1998). 6 ¶10 Nevertheless, we agree with the appellant that, because the initial decision was silent on the issue of interim relief, he became entitled to interim relief by operation of statute. PFR File, Tab 7 at 20-21. The following statutory language provides interim relief by default: (A) If an employee or applicant for employment is the prevailing party in an appeal under this subsection, the employee or applicant shall be granted the relief provided in the decision effective upon the making of the decision, and remaining in effect pending the outcome of any petition for review under subsection (e), unless— (i) the deciding official determines that the granting of such relief is not appropriate; or (ii) (I) the relief granted in the decision provides that such employee or applicant shall return or be present at the place of employment during the period pending the outcome of any petition for review under subsection (e); and (II) the employing agency, subject to the provisions of subparagraph (B), determines that the return or presence of such employee or applicant is unduly disruptive to the work environment. 5 U.S.C. § 7701(b)(2)(A). Based on this language, we hold that when an appellant is the prevailing party in an initial decision issued under 5 U.S.C. § 7701(b), but the initial decision is silent on the issue of interim relief, the agency is required to provide interim relief by operation of statute. Generally, an agency may only be relieved of this obligation by an affirmative statement in the initial decision that interim relief is not required or by a showing of undue disruption. ¶11 Notwithstanding this default rule, the expectation remains that the Board’s administrative judges will provide an affirmative statement on interim relief as required under 5 C.F.R. § 1201.111(b)(4) when the appellant is the prevailing party. However, an administrative judge’s omission of such statement does not relieve the agency of its statutory interim relief obligation. An agency that fails 7 to provide interim relief in such a case does so at its own peril and risks having its petition or cross petition for review dismissed. See 5 C.F.R. § 1201.116(e). ¶12 In any event, regardless of whether an initial decision contains or omits a required statement on interim relief, the Board will exercise its discretionary authority to dismiss an agency’s petition or cross petition for review for failure to provide interim relief in light of all the relevant facts and circumstances. See Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-33 (Fed. Cir. 2004) (holding that, when an agency fails to comply with an interim relief order, dismissal of a petition for review by the Board is discretionary, not mandatory). Chief among these considerations will be whether the agency undertook good faith, diligent, and competent efforts to satisfy its interim relief obligation. See Donovan v. Department of Veterans Affairs, 70 M.S.P.R. 344, 348 (1996). Moreover, the Board has recognized certain situations in which interim relief may not be appropriate, even if the appellant is the prevailing party in the initial decision. These include but are not limited to retirement benefits cases and cases in which the appellant is currently receiving wage loss compensation benefits or a salary from another Federal agency. See generally Norton v. Department of Veterans Affairs, 112 M.S.P.R. 248, ¶ 6 (2009). If an administrative judge omits an interim relief statement in such a case, the agency should act in good faith according to the circumstances. ¶13 In this case, we find that the agency acted appropriately by providing interim relief despite the absence of a statement on interim relief in the initial decision. The agency’s May 30, 2019 petition for review was accompanied by a certification stating that it had cancelled the appellant’s termination and restored him to pay status effective April 26, 2019, the date of the initial decision. PFR File, Tab 1 at 19-20; see 5 C.F.R. § 1201.116(a). The certificate of compliance further represented that the appellant was expected to return to duty on June 10, 2019, pending discussions with the appellant and his representative about the specific position to which the appellant would return. PFR File, Tab 1 at 19. The 8 appellant argues that the agency’s certification is insufficient because it is not supported by documentary evidence and the agency did not actually pay him or restore him to duty as it claims. PFR File, Tab 4 at 7-9. He further argues that the agency is not permitted to belatedly correct its noncompliance after the expiration of the deadline for filing a petition for review. Id. at 9-10. ¶14 Having reviewed the evidence of record, including the evidence that the agency provided in response to the appellant’s request to dismiss the petition for review, we find that the agency has satisfied its interim relief obligation. Specifically, we find that the agency’s certificate of compliance, signed under the penalty of perjury, constitutes competent evidence of its compliance with its interim relief obligations. PFR File, Tab 1 at 19-20; see Parbs v. U.S. Postal Service, 107 M.S.P.R. 559, ¶ 18 (2007) (“Generally, a statement signed under penalty of perjury and not rebutted is competent evidence of the assertions contained therein.”) , aff’d, 301 F. App’x. 923 (Fed. Cir. 2008). The Board’s regulations do not require that a certification of compliance be accompanied by corroborating documentary evidence.2 5 C.F.R. § 1201.116(a). Furthermore, although the appellant may not have actually received any of his interim relief pay by the petition for review filing deadline, actual payment by this deadline is not necessarily required. Moore v. U.S. Postal Service, 78 M.S.P.R. 80, 83 (1998). Rather, the agency satisfies its obligation by taking appropriate administrative action by the deadline that will result in the issuance of a paycheck for the interim relief period. Id. The record shows that the agency did so here. PFR File, Tab 6 at 13, 22. Finally, although the agency did not return the appellant to duty until June 10, 2019, which was after the May 31, 2019 deadline 2 There is nothing to prevent an agency from submitting documentary evidence of compliance along with the certification if it so chooses. Additionally, if there is a challenge to the certification, the agency will have further opportunity to submit evidence of compliance. 5 C.F.R. § 1201.116(b). 9 for filing the petition for review, the record shows that the appellant specifically requested, on May 24, 2019, that the agency delay his return to duty until that date. PFR File, Tab 4 at 13. The appellant cannot argue that the agency’s petition for review should be dismissed merely because it accommodated his request. For these reasons, we find that the agency exercised good faith, diligent, and competent efforts to provide the appellant with interim relief, and that by these efforts the appellant has received the full measure of interim relief to which he was entitled. The appellant’s termination was effected after he completed his probationary period. ¶15 On petition for review, the agency disputes the administrative judge’s finding that the termination was not effective until after the appellant’s 1-year probationary period expired. IAF, Tab 1 at 13-17. When an agency decides to terminate a probationary employee for postappointment reasons, “it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action.” 5 C.F.R. § 315.804(a). The plain meaning of the regulatory language indicates that the probationary employee is not terminated until he receives such notice since it is only “by notifying him in writing” that termination of his services is accomplished. Lavelle v. Department of Transportation, 17 M.S.P.R. 8, 15 (1983), modified on other grounds by Stephen v. Department of the Air Force, 47 M.S.P.R. 672 (1991). Probation ends when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment. Herring v. Department of Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). An agency’s failure to deliver written notice of termination prior to the end of the probationary period will generally foreclose the agency from taking a termination action under 10 5 C.F.R. part 315, subpart H.3 At that point, the appointee is no longer a probationer; he is an employee with adverse action appeal rights, and the agency may not involuntarily separate him for cause without the procedural protections of 5 U.S.C. § 7513, 5 U.S.C. § 4303, or 38 U.S.C. § 714, as applicable. See Johnston v. Small Business Administration, 15 M.S.P.R. 709, 711 (1983), modified on other grounds by Stephen v. Department of the Air Force, 47 M.S.P.R. 672 (1991). Separations from Federal employment are generally effective at midnight on the effective date unless another time is specified. Toyens v. Department of Justice, 58 M.S.P.R. 634, 636 (1993); Office of Personnel Management, The Guide to Processing Personnel Actions, chapter 31-6 (March 2017), available at https://www.opm.gov/policy-data-oversight/data- analysis-documentation/personnel-documentation/processing-personnel-actions/ gppa31.pdf. ¶16 In this case, the anniversary of the appellant’s appointment was Monday, January 22, 2018. IAF, Tab 25 at 7, 18. The day before this anniversary was a Sunday, which was not a scheduled workday for the appellant. IAF, Tab 9 at 16. The Office of Personnel Management’s regulations account for this specific situation: “[W]hen the last workday is a Friday and the anniversary date is the following Monday, the probationer must be separated before the end of the tour of duty on Friday since Friday would be the last day the employee actually has to demonstrate further fitness for employment.” 5 C.F.R. § 315.804(b); see Ibrahim v. Department of Agriculture, 51 M.S.P.R. 269, 271 (1991). Because the appellant’s tour of duty ended every day at 3:30 p.m., we find that any 3 If an agency is unable to provide actual written notice to a probationary employee prior to the effective date and time of his termination, but makes intelligent and diligent efforts to do so, the termination notice will be deemed constructively received and the termination effected on the specified date and time notwithstanding the absence of actual written notification. Shaw v. United States, 622 F.2d 520, 527-28 (Ct. Cl. 1980); Lavelle, 17 M.S.P.R. at 15. 11 probationary termination action would need to be effected before 3:30 p.m. on Friday, January 19, 2019. This is so despite the fact that the appellant was on paid sick leave that day. See Herring, 72 M.S.P.R. at 100. ¶17 Looking at the documentation surrounding the termination action, the SF-50 specifies January 19, 2018 as the effective date, but it does not specify a time of day. IAF, Tab 25 at 25. However, the termination notice itself states that the termination would “be effective at the close of business on January 19, 2018.” IAF, Tab 9 at 13. Putting aside the issue of whether “close of business” can reasonably be interpreted as coinciding with the end of the appellant’s scheduled tour of duty at 3:30 p.m., we find that a termination at the end of a probationer’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty. See 5 C.F.R. § 315.804(b). We find that this case is similar to Johnston, 15 M.S.P.R. at 710-11, in which the Board found that a termination action effective at the “close of business” on the last day of the appellant’s probationary period occurred at the same time that the appellant completed his final tour of duty and was therefore not completed prior to the end of the probationary period as required. The Board has consistently followed this rule in other cases in which a termination is effected at the close of business on the last day of the appellant’s probationary period. E.g., Steinhoff v. Department of Veterans Affairs, 101 M.S.P.R. 443, ¶ 6 (2006); Johnson v. Department of the Interior, 56 M.S.P.R. 549, 552 (1993). Therefore, we find that even if the agency in this case had actually or constructively delivered the termination notice to the appellant prior to the effective date and time stated in the notice, his separation would still not have been effected before he completed his probationary period.4 4 In further support of our finding, we note the absence of any evidence that the agency cancelled any part of the appellant’s sick leave on January 19, 2019. Instead, the 12 ¶18 On petition for review, the agency argues that this case is controlled by Honea v. Department of Homeland Security, 118 M.S.P.R. 282 (2012), aff’d, 524 F. App’x 623 (Fed. Cir. 2013). PFR File, Tab 1 at 14-15. In Honea, the Board held that, when the evidence clearly establishes that the agency took all necessary actions prior to completion of the appellant’s last probationary tour of duty to carry out his termination, its failure to identify in the notice letter the time at which the separation was to go into effect is not dispositive on the question of whether the appellant’s termination was effected prior to the conclusion of his tour of duty. 118 M.S.P.R. 282, ¶ 10. In Honea, the agency delivered the appellant a termination notice on the last day of his probationary period, but it did not specify the time of day that the termination was to be effective. Id., ¶¶ 4, 7. As discussed above, these situations normally activate the default rule that a separation will occur on midnight of the date specified. However, the agency in Honea not only delivered the appellant his termination notice, but it also collected all of his agency-issued equipment and escorted him off the premises before the end of his tour of duty. Id., ¶ 7. The Board found that, notwithstanding the absence of a specific time in the termination notice, the agency’s actions were sufficient to effect the termination before the end of the appellant’s tour of duty. Id., ¶ 10. ¶19 We agree with the appellant that the instant appeal is unlike Honea because the termination notice in this case was not silent as to the effective time of the termination; rather, it specified that the termination was to be effective at the close of business. PFR File, Tab 7 at 15-16; IAF, Tab 9 at 13. Even if the appellant turned in his agency-issued property as alleged, we find that the actions of the parties leading up to the termination were insufficient to overcome the specific language of the termination notice. appellant’s time and attendance records show that he was charged sick leave that day for his entire tour of duty. IAF, Tab 9 at 16. 13 The agency removed the appellant without due process. ¶20 On petition for review, the agency argues that it did not have a full and fair opportunity to litigate the due process issue below. IAF, Tab 1 at 10-11. The essential requirements of procedural due process are prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); Schmitt v. Department of Veterans Affairs, 2022 MSPB 40, ¶ 18. In this case, the record shows that the appellant did not receive any prior notice whatsoever of the reasons for his separation, and consequently had no opportunity to respond. IAF, Tab 9 at 13-14, Tab 25 at 25. Because the agency’s procedures for effecting the appellant’s removal did not comport with his constitutional right to minimum due process, we agree with the administrative judge that the agency’s action cannot be sustained. ID at 11; see Sandoval v. Department of Agriculture, 115 M.S.P.R. 71, ¶ 15 (2010). ¶21 The agency contests this finding, arguing that the proceedings below were limited to the issue of jurisdiction, and that the administrative judge abused her discretion by ruling on the due process issue before the agency could seek discovery or develop the record on the matter. PFR File, Tab 1 at 10-11. We agree with the agency that the administrative judge at least implied that she would make a ruling on jurisdiction before proceeding to the other issues in this appeal. IAF, Tab 8. Furthermore, the prehearing conference summary does not indicate that timeliness would be an issue at the hearing. IAF, Tab 31. Nevertheless, we find that all of the relevant evidence on due process is already in the record, and the agency has not explained what evidence it hoped to obtain from further discovery that would have any bearing on the issue. See Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 451-52 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). Any error by the administrative judge in not conducting additional proceedings did not prejudice the agency’s substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). 14 The administrative judge did not err in ordering status quo ante relief. ¶22 The agency argues that the administrative judge also deprived it of the opportunity to submit evidence and argument on the proper scope of relief. PFR File, Tab 1 at 11-12. The agency argues that the appellant’s resignation letter and his insistence on an effective date of January 22, 2018, indicate that even if the agency had not terminated him, he intended to leave the agency by then. Id. Thus, the proper scope of relief might be limited. As the agency correctly argues, in the unusual circumstance in which an employee would have been separated from service by means other than the action under appeal, the issue of status quo ante relief should be examined closely to avoid putting the appellant in a better position than he would have been absent the action under appeal. Id.; see Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶¶ 46-47 (2009). ¶23 Normally, specific questions about what an agency must do to effect status quo ante relief are more properly addressed in addendum proceedings. See Moncada v. Executive Office of the President, 2022 MSPB 25, ¶ 39 n.9. However, under the particular circumstances of this case, we find it appropriate to address the issue at this time. We have considered the agency’s argument, but we find that the status quo ante relief ordered by the administrative judge was proper in scope. ID at 12-13. Although the appellant tendered his resignation to be effective the business day following the agency’s termination action, the only reason he did so was to avoid termination in the first place. Not only did the agency decline to accept the appellant’s resignation, but by going through with the termination action, it took away the only incentive that the appellant had to resign. See Levy v. Department of Homeland Security, 109 M.S.P.R. 444, (2008) (holding that an employee may withdraw a resignation at any time before its effective date unless the agency has a valid reason for refusing to permit the withdrawal); see also 5 C.F.R. § 715.202(b) (“Avoidance of adverse action proceedings is not a valid reason.”). This case is different from the situation in Baldwin, 111 M.S.P.R. 586, ¶¶ 46-47, in which the agency constructively 15 removed the appellant but had nevertheless issued a final decision effecting a removal for cause on the same date. In this case, the agency itself nullified both the impending resignation and the reasons for the resignation through its improper termination action. Under these circumstances, we find insufficient basis to limit the normal scope of status quo ante relief. Nor do we find that the agency has demonstrated prejudice with respect to its ability to present evidence and argument on this issue. See Karapinka, 6 M.S.P.R. at 127. ORDER ¶24 We ORDER the agency to cancel the appellant’s termination and to restore the appellant effective January 19, 2018. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶25 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶26 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶27 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant 16 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). ¶28 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. 17 NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described 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: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 18 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 19 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 20 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 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 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 21 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/STEWART_TROY_J_DC_315H_18_0729_I_1_OPINION_AND_ORDER_2031895.pdf
05-03-2023	2023 MSPB 17	Jeremiah White	https://www.mspb.gov/decisions/precedential/WHITE_JEREMIAH_TIMOTHY_AT_0752_20_0508_I_1_OPINION_AND_ORDER_2027583.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 17 Docket No. AT-0752-20-0508-I-1 Jeremiah Timothy White, Appellant, v. Department of the Army, Agency. May 3, 2023 Jeremiah Timothy White, Jacksonville, Florida, pro se. Guy E. Reinecke, Saint Augustine, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his alleged involuntary demotion appeal for lack of jurisdiction. For the reasons set forth below, we DENY the petition for review, MODIFY the administrative judge’s analysis as to why section 512(a) of the National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub. L. No. 114-328, 130 Stat. 2000, 211-13 (2016) (codified, as relevant here, at 32 U.S.C. § 709(f)(4)-(5), (g)(1)), does not apply retroactively to this appeal, but otherwise AFFIRM the initial decision. 2 BACKGROUND ¶2 The Department of the Air Force employed the appellant as an Aircraft Pneudraulic Systems Mechanic.1 Initial Appeal File (IAF), Tab 1 at 1, 6. The agency appointed the appellant to his position as a “dual status” technician under 32 U.S.C. § 709. IAF, Tab 1 at 6, Tab 5 at 8. In late 2014, due to what the agency described as the appellant’s “inability to perform [his] duties,” it issued him an “Employee Decision Form” which provided him with three employment options. IAF, Tab 5 at 10-12. The options were as follows: (1) a change to a lower grade; (2) extended leave without pay; or (3) a resignation. Id. At the appellant’s election, on December 14, 2014, he was demoted to the position of Tools and Parts Attendant, which reduced his grade and salary.2 IAF, Tab 1 at 6, Tab 5 at 13. ¶3 The appellant subsequently appealed his demotion to the Board, alleging that the agency violated Technician Personnel Regulation (TPR) 715, subjected him to “unfair work practices,” and discriminated against him. IAF, Tab 1 at 3. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1, 4. Therein, the 1 A dual status technician, like the appellant, “is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States.” 32 U.S.C. § 709(e); Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620, ¶ 14 (2008). Thus, although the appellant identified himself as an employee of the Florida Air National Guard, for purposes of this appeal he is an Air Force employee. IAF, Tab 1 at 1, 6. Accordingly, it appears that this case was incorrectly docketed against the Department of the Army. However, given the Florida National Guard’s participation in the case and our disposition affirming the initial decision, we find no prejudice in this error. IAF, Tab 5 at 7; Petition for Review File, Tab 3 at 8; see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding an administrative judge’s procedural error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights). 2 The agency subsequently terminated the appellant from his dual status position due to his loss of compatible military membership. IAF, Tab 5 at 8. However, the appellant does not challenge his separation from Federal service in the instant appeal. 3 administrative judge found that, at the time of the appellant’s demotion, the Board lacked jurisdiction to review adverse action and involuntary adverse action appeals from dual status technicians appointed under 32 U.S.C. § 709. ID at 2-3. In addition, the administrative judge determined that the amendments to section 709 set forth in the 2017 NDAA, which extended Board adverse action appeal rights under chapter 75 to dual status technicians under certain circumstances, did not apply retroactively, and thus did not provide for Board jurisdiction in this matter. ID at 3 n.3. Finally, the administrative judge found that, because the Board lacks jurisdiction over the underlying demotion, it does not have authority to adjudicate the appellant’s disability discrimination claim. ID at 3-4. ¶4 The appellant has filed a petition for review, alleging that he was coerced into electing a demotion, rendering it involuntary. Petition for Review (PFR) File, Tab 1 at 4-6. He further reiterates that the agency discriminated against him and asserts that the agency violated various TPRs, Florida state law, and criminal statutes. Id. at 4-8. The agency has responded to his petition for review, and the appellant has replied to its response. PFR File, Tabs 3-4. ANALYSIS The administrative judge correctly determined that the amendments to section 709 of the NDAA do not apply retroactively. ¶5 As discussed above, the administrative judge found that the amendments to section 709 of the 2017 NDAA, which extend Board appeal rights to dual status technicians under certain circumstances, do not apply retroactively.3 ID at 3 n.3. 3 The 2017 NDAA limits dual status National Guard Technician appeals of most agency actions to the adjutant general of the relevant jurisdiction “when the appeal concerns activity occurring while the member is in a military pay status, or concerns fitness for duty in the reserve components.” 32 U.S.C. § 709(f)(4). The law affords appeal rights pursuant to 5 U.S.C. §§ 7511-7513 concerning any activity not covered by subsection (f)(4). 32 U.S.C. § 709(f)(5). Office of Personnel Management regulations 4 The appellant does not challenge this finding on review. Although we agree with the administrative judge’s conclusion, we modify the initial decision to supplement the analysis on retroactivity. ¶6 Prior to the 2017 NDAA, the statutory scheme covering dual status technicians did not allow for Board appeals challenging adverse actions such as reductions in grade or pay, or removals. McVay v. Arkansas National Guard, 80 M.S.P.R. 120, 123 (1998). Section 512(a) of the 2017 NDAA amended 32 U.S.C. § 709 to provide that, when a dual status technician is in a non-military pay status, he is entitled to appeal adverse actions to the Board in certain limited circumstances. 32 U.S.C. § 709(f)(4)-(5); (g)(1); Dyer v. Department of the Air Force, 971 F.3d 1377, 1382-84 (Fed. Cir. 2020). ¶7 Here, as noted above, the appellant was demoted in December 2014, prior to the 2017 NDAA’s enactment on December 23, 2016. IAF, Tab 1 at 6. As discussed below, the amended statutory provision of section 709 is not retroactive and thus does not apply to this appeal. ¶8 The proper analytical framework for determining whether a new statute should be given retroactive effect was set forth by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994): When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new implementing the 2017 NDAA, which became effective on December 12, 2022, state that adverse actions and performance-based removals or reductions in grade of dual status National Guard Technicians are not appealable to the Board except as provided by 32 U.S.C. § 709(f)(5). 5 C.F.R. §§ 432.102(b)(16), 752.401(b)(17); see Probation on Initial Appointment to a Competitive Position, 87 Fed. Reg. 67,765, 67,782-83 (Nov. 10, 2022). 5 duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result. ¶9 When Congress intends for statutory language to apply retroactively, it is capable of doing so very clearly. King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 9 (2013) (citing Presidio Components, Inc. v. American Technical Ceramics Corp., 702 F.3d 1351, 1364-65 (Fed. Cir. 2012) (giving retroactive effect to amendments enacted in 2011 in light of express statutory language that the amendments applied to “all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act”)). Here, the 2017 NDAA, as enacted, is silent regarding the retroactivity of this amendment to section 709. Thus, applying the first part of the Landgraf test, we find that Congress has not expressly prescribed the statute’s proper reach. ¶10 Turning to the second part of the Landgraf test, we find that the 2017 NDAA would increase the agency’s liability for past conduct. As noted above, prior to the 2017 NDAA, the Board lacked jurisdiction over dual status technicians’ appeals involving adverse actions such as reductions in grade or pay. McVay, 80 M.S.P.R. at 123. Thus, to hold now that the agency’s act of demoting the appellant is subject to Board review, and potential reversal, would increase the agency’s liability.4 See Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 7 (2015) (declining to give retroactive effect to the Whistleblower Protection Enhancement Act of 2012 (WPEA) provision expanding jurisdiction over certain protected activity because doing so would increase a party’s liability for past conduct as compared to pre-WPEA liability). 4 Nothing in the 2017 NDAA or elsewhere suggests that it clarified an existing law. Cf. Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26 (2013) (observing that when legislation clarifies existing law, its application to pre-enactment conduct does not raise concerns of retroactivity). 6 Accordingly, considering the test set forth in Landgraf, we find no basis for finding that the 2017 NDAA amendments to 32 U.S.C. § 709 are retroactive. The administrative judge correctly found that the Board lacks jurisdiction over the appellant’s demotion. ¶11 The appellant argues on review that he is a Federal employee and thus the Board has jurisdiction over his appeal. PFR File, Tab 1 at 4. The administrative judge held that the Board lacked jurisdiction over appeals brought by Federal employees appointed under 32 U.S.C. § 709. ID at 2-3. We agree with the administrative judge. ¶12 Applying the language of section 709 prior to the enactment of the 2017 NDAA, the Board has consistently held that it lacked chapter 75 jurisdiction over adverse actions brought by dual status technicians appointed under section 709, like the appellant. McVay, 80 M.S.P.R. at 123; see Ockerhausen v. State of New Jersey Department of Military and Veterans Affairs, 52 M.S.P.R. 484, 489 (1992) (finding that the Board lacked jurisdiction over adverse actions brought by National Guard technicians because they are expressly excluded under the applicable statutes). As such, although the appellant is correct that he is a Federal employee, he nonetheless has failed to meet his burden of establishing jurisdiction over this appeal. ¶13 Moreover, because we lack jurisdiction over the appeal, we likewise lack jurisdiction over the appellant’s discrimination claim. ID at 3-4; see Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding prohibited personnel practices and affirmative defenses are not independent sources of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Similarly, we lack jurisdiction to consider the appellant’s claims that the agency violated various state and Federal laws. See Wren, 2 M.S.P.R. at 2. Accordingly, we affirm the initial decision as modified to supplement the administrative judge’s analysis on the retroactivity of the amendments to section 709 of the 2017 NDAA. 7 ORDER ¶14 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 RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described 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 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 9 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 10 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/WHITE_JEREMIAH_TIMOTHY_AT_0752_20_0508_I_1_OPINION_AND_ORDER_2027583.pdf
04-25-2023	2023 MSPB 16	Mikhail Semenov	https://www.mspb.gov/decisions/precedential/SEMENOV_MIKHAIL_PH_0714_19_0128_I_1_OPINION_AND_ORDER_2024916.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 16 Docket No. PH-0714-19-0128-I-1 Mikhail Semenov, Appellant, v. Department of Veterans Affairs, Agency. April 25, 2023 Mikhail Semenov, Newton, Massachusetts, pro se. Paul V. Usera, Bedford, Massachusetts, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his performance-based removal under the authority of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified at 38 U.S.C. § 714). For the reasons discussed below, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal to the regional office for further adjudication consistent with this Opinion and Order. On remand, the administrative judge should: (1) apply the substantive elements for a performance-based charge under chapter 75; (2) provide the parties with an 2 opportunity to present evidence and argument regarding whether the agency’s error in reviewing the proposed removal for substantial evidence was harmful; (3) consider the appellant’s claims of harmful procedural error regarding the validity of his performance standards and rating, as well as the authority of the proposing official; (4) address the appellant’s claim that the agency violated statutory provisions executing certain merit system principles; (5) reassess the appellant’s claim of national origin discrimination consistent with Pridgen v. Office of Management and Budget, 2022 MSPB 31; (6) address the appellant’s due process claim raised for the first time on review; (7) address the appellant’s additional disclosures and activities in analyzing his whistleblower reprisal claim; and (8) review the agency’s penalty selection by considering the Douglas factors. BACKGROUND ¶2 The appellant was a GS-13 Research Health Scientist at the Bedford, Massachusetts campus of the New England Geriatric Research Education and Clinical Center (GRECC), which was located in the Edith Nourse Rogers Memorial Veterans Hospital (Bedford VA). Initial Appeal File (IAF), Tab 9 at 9, 76. According to his position description, the appellant’s duties included overseeing research into certain aspects of neurodegenerative diseases such as Alzheimer’s disease. Id. at 86. He also was expected to “[p]eriodically . . . communicate the results of new studies by writing and publishing original scientific papers.” Id. ¶3 The appellant’s performance was rated on a fiscal year (FY) basis. IAF, Tab 12 at 22. His performance standards for FY 2017, which ran from October 1, 2016, to September 30, 2017, included the critical element of research. Id. One of the two goals under that element was publishing three or more peer-reviewed scientific papers. Id. The GRECC Director issued the appellant a letter of proposed reprimand on June 6, 2017. IAF, Tab 9 at 91-92. Among the concerns he expressed in the proposed reprimand was the appellant’s failure to demonstrate 3 that he had made progress on his publishing goal. Id. at 91. However, the first line of the letter erroneously stated that the proposed action was to “admonish” rather than “reprimand” the appellant. Id. The Director therefore rescinded the June 6 letter. IAF, Tab 24 at 49, Tab 31, Hearing Compact Disc 1 (HCD 1) (testimony of a Bedford VA Human Resources (HR) Specialist). He issued a new proposed letter of reprimand on June 23, 2017, which correctly identified the nature of the proposed action. IAF, Tab 20 at 79-80; HCD 1 (testimony of the HR Specialist). The substance of the letter otherwise remained unchanged. Compare IAF, Tab 20 at 79-80, with IAF, Tab 9 at 91-92; HCD 1 (testimony of the HR Specialist). After the appellant failed to respond to the June 23, 2017 proposed reprimand, the GRECC Director issued a decision reprimanding the appellant. IAF, Tab 9 at 94. At the end of FY 2017, the GRECC Director rated the appellant’s performance on his research goal as Unacceptable, resulting in an overall Unacceptable rating.1 IAF, Tab 12 at 25-26. ¶4 The FY 2018 performance year ran from October 1, 2017, to September 30, 2018. IAF, Tab 9 at 69. The Director provided the appellant his FY 2018 performance standards in November 2017, reflecting the goal that, as relevant here, the appellant publish five peer-reviewed scientific papers during FY 2018. Id. On November 27, 2017, the appellant sent an email to the Director in which he objected to the increased publishing goal. IAF, Tab 20 at 82-84. The Director responded, declining to change the goal. Id. at 84. He wrote, in pertinent part, “I am the Director . . . and do set the standards for the productivity so there is no need for your assistance.” Id. However, a short time later, he sent an email to the appellant and another research scientist (Employee A) stating that he was 1 The performance of Bedford VA Research Health Scientists on any particular element is rated as Exceptional, Fully Successful, or Unacceptable. IAF, Tab 9 at 112, Tab 12 at 25. An Unacceptable rating on a critical element results in a summary rating of Unacceptable. IAF, Tab 9 at 113, Tab 12 at 26. 4 considering lowering the expectation to four published peer-reviewed papers. IAF, Tab 12 at 29, Tab 20 at 81. ¶5 The Director sent the appellant an email on November 28, 2017, that purportedly included a copy of the revised standards as an attachment; however, the version of the performance standards attached to the email did not reflect that the standards had been revised. IAF, Tab 9 at 67, 69. The appellant received a copy of his revised standards on December 12, 2017. Id. at 109. These standards reflected the lowered goal of publishing four peer-reviewed scientific papers.2 Id. In October 2018, the Director rated the appellant’s performance on his research critical element for FY 2018, which included his publishing goal, as Unacceptable, and therefore rated his overall performance as Unacceptable. IAF, Tab 20 at 564-65. The record contains a copy of the appellant’s appraisal reflecting that another individual signed off on this rating as the “approval official” in November 2018. Id. at 565. ¶6 On December 11, 2018, the GRECC Director issued a notice proposing to remove the appellant pursuant to 38 U.S.C. § 714 for failing to achieve fully successful performance in his research critical element. IAF, Tab 9 at 76-78. In support of the charge, the Director alleged that the appellant did not publish a minimum of four peer-reviewed scientific papers, as required by his FY 2018 performance standards. IAF, Tab 9 at 76, Tab 20 at 561. ¶7 The appellant responded orally and in writing to the Bedford VA Director, who was the deciding official. IAF, Tab 9 at 11, 18-74. In both responses, and in a subsequent email to the deciding official, he alleged various improprieties in the issuance of his FY 2017 and FY 2018 performance standards and appraisals. IAF, Tab 9 at 20, Tab 22 at 101-05. These improprieties included an allegation 2 Both the draft goals and the final version required the appellant and Employee A to be the “first or senior author” on all but one of the published papers. IAF, Tab 9 at 67, 69, 109, Tab 12 at 29, Tab 20 at 81. 5 that the proposing official altered the appellant’s FY 2018 performance standards after digitally signing them to make it appear that he timely presented those standards to the appellant. IAF, Tab 22 at 104. The appellant also advised the deciding official that he “had notified” the agency’s Office of the Inspector General (OIG) concerning the alleged improprieties. Id. at 102. On January 3, 2019, the deciding official issued a decision finding that the charge was “supported by substantial evidence” and that removal was warranted. IAF, Tab 9 at 11-13. The appellant was removed effective January 4, 2019. Id. at 9. ¶8 The appellant filed a Board appeal challenging his removal and requested a hearing. IAF, Tab 1 at 2-3. He raised an affirmative defense of discrimination based on his Eastern European national origin. IAF, Tab 26 at 6-8, Tab 30 at 24-25. He further alleged reprisal for his disclosures to the deciding official and OIG regarding the FY 2017 and FY 2018 performance processes. IAF, Tab 26 at 4-6, Tab 30 at 73-77. ¶9 Following a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 38, Initial Decision (ID) at 2, 28. He found that the agency proved its charge by substantial evidence, ID at 17-19, and that the appellant failed to prove his affirmative defenses, ID at 20-27. The administrative judge held that he was required to affirm the removal penalty under 38 U.S.C. § 714(d)(2)(B) because the agency had proven its charge by substantial evidence. ID at 27-28. ¶10 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the petition, and the appellant has filed a reply to the agency’s response. PFR File, Tabs 3, 4. ANALYSIS We remand this appeal for the administrative judge to apply the substantive elements for a performance-based charge under chapter 75. ¶11 In analyzing whether the agency proved its charge, the administrative judge stated that, to establish that the appellant’s performance was unacceptable, the 6 agency was required to prove by substantial evidence not only that the appellant failed to meet the publishing requirement, but also that the performance standard at issue was “reasonable, realistic, [and] attainable.” ID at 18 (quoting Thomas v. Department of Defense, 95 M.S.P.R. 123, ¶ 12 (2003), aff’d per curiam, 117 F. App’x 722 (Fed. Cir. 2004)). That requirement derives from the Board’s precedent under 5 U.S.C. chapter 43. See Thomas, 95 M.S.P.R. 123, ¶ 6. For the reasons set forth below, we find that the elements for proving a performance-based charge under chapter 43 do not apply to performance-based actions under the VA Accountability Act, and that the proper elements for such cases derive from the Board’s application of 5 U.S.C. chapter 75. ¶12 Federal agencies generally may rely on one of two statutory procedures in removing a tenured employee, 5 U.S.C. chapter 75, which covers both misconduct- and performance-based actions, or chapter 43, which covers only actions based on unacceptable performance. Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1316 (Fed. Cir. 2021) (citing Harris v. Securities and Exchange Commission, 972 F.3d 1307, 1315 (Fed. Cir. 2020); Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1378-79 (Fed. Cir. 2020)). For matters that involve employee behavior occurring after the June 23, 2017 enactment of the VA Accountability Act, the Act provides the Department of Veterans Affairs with a third option when issuing a removal based on either performance or misconduct. 38 U.S.C. § 714; Brenner, 990 F.3d at 1316-18, 1327-28; see Pub. L. No. 115-41, 131 Stat. at 882 (reflecting the June 23, 2017 enactment date for the VA Accountability Act). ¶13 Chapter 75 authorizes adverse actions such as removals “only for such cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7512, 7513(a); Brenner, 990 F.3d at 1316. An agency is not required to follow chapter 43 procedures before taking a performance-based action under chapter 75. Lovshin v. Department of the Navy, 767 F.2d 826, 844 (Fed. Cir. 1985) (en banc). The procedural requirements for an action under chapter 75 begin with the agency’s 7 notice to the employee that it is proposing disciplinary action. 5 U.S.C. § 7513(b). In reviewing an action under chapter 75, the Board reviews the agency’s penalty determination and has the authority to mitigate to a lesser penalty. Brenner, 990 F.3d at 1316-17; Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). ¶14 Chapter 43 governs “the evaluation of a [F]ederal employee’s work performance.” Lovshin, 767 F.2d at 830 (emphasis omitted). It authorizes the reduction in grade or removal of an employee who has “fail[ed] to meet established performance standards in one or more critical elements of such employee’s position.” 5 U.S.C. §§ 4301(3), 4303(a). However, before taking an action under chapter 43, an agency must follow a series of procedural steps. Specifically, in order to properly remove or demote an employee under chapter 43, the agency must have (1) established a performance appraisal system approved by the Office of Personnel Management, (2) communicated the performance standards and critical elements of an employee’s position to him at the beginning of the appraisal period, (3) warned him of inadequacies in critical elements during the appraisal period, and (4) counseled and afforded him an opportunity to improve after proper notice. Lovshin, 767 F.2d at 833-34 & n.6. “Because of these procedural requirements and safeguards, [c]hapter 43 gives the agency ‘great[er] flexibility’ in its adverse action than [c]hapter 75.” Brenner, 990 F.3d at 1317 (quoting Lovshin, 767 F.2d at 842 (“Agencies have been given great flexibility in the structure of appraisal systems . . . in order to be able to experiment and develop a system or systems that meet their particular needs.”)). Specifically, an agency need not establish a nexus between the poor performance and the efficiency of the service, and the Board is not authorized to mitigate the agency’s penalty. Id. at 1317. Additionally, actions under chapter 43 must be supported by substantial evidence to be sustained by the Board, whereas 8 chapter 75 actions are subject to the higher preponderance of the evidence standard. 5 U.S.C. § 7701(c)(1); Sayers, 954 F.3d at 1378.3 Thus, to prove its case under chapter 43, an agency must show by substantial evidence that: (1) OPM approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of his position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the inadequacies of his performance during the appraisal period and gave him a reasonable opportunity to demonstrate acceptable performance; and (5) the appellant “continue[d] to have unacceptable performance” in one or more of the critical elements for which he was provided an opportunity to demonstrate acceptable performance. 5 U.S.C. § 4302(c); Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010). Additionally, an agency must prove by substantial evidence that the appellant’s performance was unacceptable before the agency provided him with notice of his performance inadequacies and an opportunity to demonstrate acceptable performance. Santos v. National Aeronautics and Space Administration, 990 F.3d 1355, 1360-61, 1363 (Fed. Cir. 2021) (interpreting 5 U.S.C. § 4302(c)(6)). ¶15 As indicated above, the VA Accountability Act provides the agency with an alternative procedure for taking disciplinary actions. Sayers, 954 F.3d at 1374 (citations omitted). The Act provides expedited procedures under which the Secretary of the Department of Veterans Affairs (“the Secretary”) “may remove, demote, or suspend” a covered agency employee “if the Secretary determines the 3 Substantial evidence is “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p). Preponderance of the evidence is “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q). 9 performance or misconduct of the covered individual warrants such removal, demotion, or suspension.” 38 U.S.C. § 714(a)(1), (c)(1)-(2); Brenner, 990 F.3d at 1317-18. Chapter 43 procedures do not apply to performance-based actions taken under the Act. 5 U.S.C. § 4303(f)(4); 38 U.S.C. § 714(c)(3). On appeal from a decision under the Act, the administrative judge and the Board “shall uphold the decision of the Secretary . . . if the decision is supported by substantial evidence.” 38 U.S.C. § 714(d)(2)(A), (3)(B). “[I]f the decision of the Secretary is supported by substantial evidence, the administrative judge [and the Board] shall not mitigate the penalty prescribed by the Secretary.”4 38 U.S.C. § 714(d)(2)(B), (3)(C). ¶16 The question before us here is what substantive standard the Board should apply to performance-based actions under the Act. The interpretation of a statute begins with the language of the statute itself. Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016). If the language provides a clear answer, the inquiry ends and the plain meaning of the statute is regarded as conclusive absent a clearly expressed legislative intent to the contrary. Id. The language of 38 U.S.C. § 714 plainly precludes the Board from applying the elements of chapter 43 to an action under the VA Accountability Act. In describing the procedures for taking an action under 38 U.S.C. § 714, the statute provides that “[t]he procedures under chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under this section.” 38 U.S.C. § 714(c)(3). The substantive standard for actions under chapter 43 is derived from the procedural requirements under that chapter. See Mahaffey v. Department of Agriculture, 105 M.S.P.R. 347, ¶ 7 (2007) (setting forth the elements for a chapter 43 performance-based action by citing the portion of Lovshin, 767 F.2d at 834 that explains chapter 43’s procedural requirements); Graham v. Department of the Air 4 Nonetheless, as discussed further below, the Board must review the agency’s choice of penalty as part of its review of the removal decision. Sayers, 954 F.3d at 1375-79. 10 Force, 46 M.S.P.R. 227, 235 (1990) (recognizing that the establishment of valid performance standards is an important substantive right of an employee under chapter 43). We therefore find that Congress did not intend that the Board apply the chapter 43 standard to performance-based actions under the Act. ¶17 In taking a chapter 75 performance-based action, an agency is not bound by any chapter 43 requirements, such as proving the validity of its performance standards, that it provided those standards in advance, or that it provided the employee with an opportunity to improve. See Shorey v. Department of the Army, 77 M.S.P.R. 239, 243-44 (1998) (finding that an administrative judge erred in applying chapter 43 standards to a chapter 75 case, including the requirement that an agency prove that its standards are valid); Fairall v. Veterans Administration, 33 M.S.P.R. 33, 40-45 (1987) (determining that an employee subject to a performance-based adverse action under chapter 75 has no right to an opportunity to improve (citing Lovshin, 767 F.2d at 844 (declining to find that the agency was required to prove the appellant’s performance deficiencies were in his critical elements because “the procedural prerequisites of a [c]hapter 43 action . . . are . . . inapplicable” to an action taken under chapter 75))), aff’d per curiam, 844 F.2d 775 (Fed. Cir. 1987); Graham, 46 M.S.P.R. at 235-36 (explaining that in a performance-based chapter 75 action, an agency is not required to prove the validity of its standards and it is not required to establish and identify those standards in advance). ¶18 In the context of actions taken under chapter 75, agencies have great discretion in setting goals, provided they do not charge an employee with failing to have performed better than was required under his chapter 43 critical elements. See Lovshin, 767 F.2d at 842-43 (recognizing that agencies that have failed to properly define or evaluate performance standards under chapter 43 are nonetheless permitted to take an action under chapter 75 if they can meet the higher burden of proof). Agencies may even take an action under chapter 75 based on ad hoc goals, meaning those that were not established and identified in 11 advance for the employee, but rather were required when the agency took the action. Graham, 46 M.S.P.R. at 235. Under chapter 75, the agency must prove only that its performance standard was reasonable and provided for accurate measurement of the appellant’s performance, and that the appellant’s performance was unacceptable according to that measurement. Id. at 235-36. We find that this standard is consistent with the VA Accountability Act’s requirement that an employee’s performance “warrant[]” the Secretary’s chosen disciplinary action. 38 U.S.C. § 714(a)(1). Thus, we find that the chapter 75 standard is appropriately applied to performance-based actions under the Act. ¶19 In the absence of any clear indication in the VA Accountability Act or its legislative history addressing the appropriate standard for performance-based actions, we conclude that the chapter 75 standard should apply. We acknowledge that the Act was intended to make it easier to discipline employees under its provisions than under chapter 75. See Sayers, 954 F.3d at 1376-77 (citation omitted). However, we find that the application of the lower substantial evidence standard and the Board’s inability to mitigate the penalty in appeals under the Act achieves the statutory intent without requiring the creation of an entirely separate substantive standard. Because the administrative judge required the agency to prove the validity of its publication standard as required in an action under chapter 43, i.e., that its standard was reasonable, realistic, and attainable, we remand the appeal for further consideration under the appropriate standard. ID at 18; see Thomas, 95 M.S.P.R. 123, ¶ 12. On remand, the agency must show by substantial evidence that its performance standard was reasonable, provided for accurate measurement of the appellant’s performance, and that the appellant’s performance was unacceptable according to that measurement. See Graham, 46 M.S.P.R. at 235. ¶20 In light of our decision to remand the appeal, we do not reach the appellant’s arguments on review regarding the agency’s proof of its charge. These arguments include that the publication goal was unreasonable and 12 unattainable and that he effectively met the goal. E.g., PFR File, Tab 1 at 9, 12-13, 21-22. To the extent the administrative judge has already considered and resolved these arguments, he may incorporate his prior determinations into his remand initial decision after considering and addressing any new argument and evidence presented by the parties on remand. ID at 11- 12, 17-18 & n.3, 22. We further remand the appeal for the administrative judge to provide the parties with an opportunity to present evidence and argument regarding whether the agency’s error in reviewing the proposed removal for substantial evidence was harmful. ¶21 The deciding official sustained the appellant’s removal based on her conclusion that substantial evidence supported the charge of failure in a critical performance element. IAF, Tab 9 at 11. After the initial decision in this case was issued, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the agency erred by applying a substantial evidence burden of proof to its internal review of a disciplinary action under 38 U.S.C. § 714. The court found that substantial evidence is the standard of review to be applied by the Board, not the agency. Id. at 1298-1300. One of the bases for the court’s conclusion was that because 38 U.S.C. § 714 requires that an agency’s deciding official “determine” whether “the performance or misconduct . . . warrants” the action at issue, the deciding official must use a preponderance of the evidence burden of proof. Id. at 1298-1301. ¶22 The Federal Circuit’s decision in Rodriguez applies to all pending cases, regardless of when the events at issue took place. See Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16 (recognizing that a new precedential Federal Circuit decision applied to all cases pending with the Board). The administrative judge and the parties did not have the benefit of Rodriguez, and therefore were unable to address its impact on this appeal. We therefore remand 13 this case for adjudication of whether the agency’s application of the substantial evidence standard of proof was harmful error.5 ¶23 Although 38 U.S.C. § 714 does not contain any language regarding the adjudication of a claim of harmful agency error, pursuant to 38 U.S.C. § 714(c)(4)(A), (d)(1), an administrative judge adjudicates an action taken under the VA Accountability Act under 5 U.S.C. § 7701(b)(1). An agency’s action “may not be sustained under [§ 7701(b)]” if the agency committed harmful error, based its decision on a prohibited personnel practice under 5 U.S.C. 2302(b), or “the decision was not in accordance with law.” 5 U.S.C. § 7701(c)(2). Thus, we find it appropriate to apply to actions taken under 38 U.S.C. § 714 the harmful error standard from 5 U.S.C. § 7701(c)(2). A harmful error is an error by the agency 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. Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant bears the burden of proving his affirmative defenses by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). 5 In Rodriguez, as here, the deciding official appeared to have applied the substantial evidence standard in sustaining the charges. Rodriguez, 8 F.4th at 1297. In remanding the case to the Board, the Federal Circuit stated that further proceedings would “[p]resumably . . . include requiring the [agency’s] deciding official to determine whether the evidence as to each of the charges . . . satisfied the preponderance of the evidence standard of proof.” Id. at 1301. We have considered whether it would be more appropriate to remand this matter to the agency for the deciding official to make this determination before the Board reviews the action. The Board has remanded some procedural error claims directly to agencies, but we find that the exceptional circumstances requiring such remands are not present here. For example, the Board has remanded a removal to an agency when it was based on the appellant’s failure to maintain eligibility to obtain access to classified information, but the agency did not follow its own procedures in terminating that eligibility. Doe v. Department of Justice, 118 M.S.P.R. 434, ¶¶ 2-4, 20, 29-33 (2012). Remand to the agency was necessary under those circumstances because eligibility for access to classified information is a matter within the agency’s sole discretion. Id., ¶¶ 28-29, 32-33. Here, there is nothing similarly within the agency’s sole discretion concerning the level of review the deciding official afforded in this matter. 14 ¶24 On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument, including a supplemental hearing, addressing whether the agency’s use of the substantial evidence standard in the removal decision constituted harmful error. See 5 U.S.C. § 7701(a)(1), (b)(1). The administrative judge should then address this affirmative defense in his remand initial decision. ¶25 Regardless of whether the appellant proves harmful error in the agency’s application of the substantial evidence burden of proof in the removal decision, if any argument or evidence on remand affects the administrative judge’s analysis of the appellant’s affirmative defenses or the agency’s penalty, he should address such argument or evidence in the remand initial decision. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). The administrative judge should consider as claims of harmful error the appellant’s arguments regarding the validity of his performance standards and rating, as well as the authority of the proposing official. ¶26 On review, the appellant reiterates his argument that his FY 2018 performance standards and rating are invalid because the agency failed to comply with the performance appraisal procedures set forth in the agency’s Handbook 5013, Performance Management Systems. PFR File, Tab 1 at 22-25; IAF, Tab 30 at 12-16. He also argues on review, as he did below, that the agency violated other provisions of Handbook 5013, chapter 43, and the VA Accountability Act by, for example, failing to encourage his participation in the development of his standards or to obtain concurrence from an approval official for his Unacceptable 15 FY 2018 rating.6 PFR File, Tab 1 at 5, 21, 25-26; IAF, Tab 30 at 11-12, 14-15, 26-27. He further reasserts his claim that his removal may not be sustained because the GRECC Director lacked the authority to propose his removal. PFR File, Tab 1 at 15-18; IAF, Tab 30 at 7-8, 77-82. ¶27 To the extent that the administrative judge analyzed these allegations, he analyzed them as challenges to the validity of the appellant’s FY 2018 performance standards. ID at 18-19. Although not entirely clear, he appears to have considered the validity of the appellant’s standards as part of the agency’s burden to prove the charge. Id. We find that these claims are more properly analyzed as allegations of harmful error, rather than as part of the agency’s case. On remand, the administrative judge should address the appellant’s various claims of procedural error under the harmful error standard. The administrative judge should address the appellant’s affirmative defense that the agency violated certain merit system principles. ¶28 On review, the appellant reiterates his argument from below that because the publication standard was “arbitrary,” the agency violated the merit system principle at 5 U.S.C. § 2301(b)(6), which provides that “[e]mployees should be retained based on the adequacy of their performance.” PFR File, Tab 1 at 21-22; IAF, Tab 30 at 29. Likewise, he restates his argument that the standard violated the merit system principle at 5 U.S.C. § 2301(b)(8)(A), which provides, in part, 6 The appellant argues on review that, during the hearing below, the administrative judge improperly admitted into evidence copies of the following two documents: (1) the appellant’s FY 2018 performance appraisal, which was signed by the approval official on November 19, 2018, IAF, Tab 20 at 565, and (2) the June 23, 2017 proposed reprimand, id. at 79-80. PFR File, Tab 1 at 25-27. An administrative judge has broad discretion to control the proceedings before him and his rulings regarding the admissibility of evidence are subject to review by the Board under an abuse of discretion standard. Lopes v. Department of the Navy, 119 M.S.P.R. 106, ¶ 11 (2012). The appellant has not shown that the administrative judge exceeded his broad authority here. Therefore, we decline to overturn the administrative judge’s evidentiary rulings. 16 that “[e]mployees should be protected against arbitrary action.” PFR File, Tab 1 at 21-22; IAF, Tab 30 at 29. ¶29 As set forth above, an agency’s action may not be sustained if it was based on any personnel practice prohibited by 5 U.S.C. § 2302(b), which includes “violat[ing] any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in [5 U.S.C. § 2301].” 5 U.S.C. §§ 2302(b)(12), 7701(c)(2)(B). These principles include the two identified by the appellant regarding employee retention and arbitrary actions. The administrative judge did not directly address the appellant’s claims regarding the agency’s violation of these merit system principles.7 Therefore, on remand, he must do so. See Lovshin, 767 F.2d at 841-42 (recognizing that an alleged violation of the merit system principles is a defense to an action under chapter 75); Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 19 (2012) (finding that an appellant was entitled to a full opportunity to present evidence on remand regarding her claims that the agency violated 5 U.S.C. § 2302(b)(12)). The administrative judge should allow the parties to present additional evidence and argument on these claims, if appropriate. On remand, the administrative judge should reassess the appellant’s claim of national origin discrimination consistent with Pridgen. ¶30 An appellant who raises an affirmative defense of disparate treatment under Title VII, including an affirmative defense of national origin discrimination, bears the burden of proving by preponderant evidence that the prohibited consideration was a motivating factor in the agency’s action or decision. Pridgen, 2022 MSPB 7 The merit system principles are not self-executing. Unless a law, rule, or regulation implementing or directly concerning the principles is violated, the principles themselves may not be made the basis of an affirmative defense. Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569-70 (1992). The appellant in this case has tied his affirmative defense to specific statutory provisions that he argues execute the merit system principles. IAF, Tab 21 at 79-85. 17 31, ¶¶ 20-21. However, for the appellant to obtain full relief under the statute, he must prove that the prohibited consideration was a but-for cause of the action or decision. Id., ¶ 22. An appellant may prove a claim of discrimination under Title VII by any combination of direct or indirect evidence, including evidence of the agency’s treatment of similarly situated comparators outside his protected class. Id., ¶ 24. ¶31 The appellant challenges the administrative judge’s finding that he failed to prove his affirmative defense of disparate treatment based on his national origin. PFR File, Tab 1 at 13-15; ID at 20-23. Specifically, the appellant argues that the administrative judge improperly included FY 2017 performance in his comparator analysis. PFR File, Tab 1 at 13-14. However, even if the administrative judge erred in doing so, the comparators’ FY 2017 performance was merely an alternative basis for the administrative judge’s finding that they were not similarly situated to the appellant. ID at 22 n.4. For the other reasons that the administrative judge explained, we agree with him that these individuals were not similarly situated to the appellant for purposes of Title VII. ID at 22; see Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 6 (2014) (holding that employees are similarly situated for purposes of Title VII when the material aspects of their employment situation are the same, including their position, job duties, and supervisory chain). The appellant also argues that one specific comparator was similarly situated to him because this comparator also failed to produce at least three peer-reviewed papers in FY 2017. PFR File, Tab 1 at 14-15. However, unlike the appellant, this comparator improved his performance and produced the requisite number of peer-reviewed papers in FY 2018. IAF, Tab 20 at 498-505. We therefore agree with the administrative judge that this individual was not similarly situated to the appellant. ID at 22. ¶32 Although the appellant has not identified any reversible error in the administrative judge’s analysis, we find that further adjudication of the discrimination issue is warranted. Specifically, the administrative judge 18 adjudicated the appellant’s defense under Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), but during the pendency of the petition for review, the Board overruled the holding in Savage that the analytical framework identified in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), is inapplicable to Board proceedings. Pridgen, 2022 MSPB 31, ¶ 25. On remand, the administrative judge shall reassess the appellant’s affirmative defense of national origin discrimination in accordance with Pridgen, 2022 MSPB 31, ¶¶ 21-24. The administrative judge should afford the parties an additional opportunity to submit relevant evidence and argument on this issue, but he may incorporate his previous findings of fact to the extent appropriate. On remand, the administrative judge should address the appellant’s due process claim raised for the first time on review. ¶33 The appellant also raises a due process claim on review, alleging for the first time that the deciding official improperly considered evidence pertaining to his FY 2017 performance deficiencies in deciding to remove him. PFR File, Tab 1 at 13-14, 27. He reasons that neither the notice of proposed removal nor the evidence file that the proposing official provided to the deciding official included evidence about the appellant’s 2017 performance deficiencies. Id. ¶34 Generally, the Board will not consider an argument raised for the first time on 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). The appellant has not made such a showing. However, because we are remanding the appeal to the administrative judge to reopen the record on other grounds, we exercise our discretion to instruct the administrative judge to permit the parties to present evidence and argument on this issue on remand. See Powers v. Department of the Treasury, 86 M.S.P.R. 256, ¶ 10 n.3 (2000) (rejecting an agency’s argument that an administrative judge lacked the authority to sua sponte raise the issue of a violation of procedural due process) (citing Robinson v. Department of Veterans 19 Affairs, 72 M.S.P.R. 444, 449 n.3 (1996) (recognizing that both administrative judges and the Board have, sua sponte, refused to turn a blind eye to clear error that affected an appellant’s rights)); 5 C.F.R. § 1201.115(e) (reserving to the Board the authority to consider any issue in an appeal before it). The administrative judge should address the appellant’s due process claim in his remand initial decision. In analyzing the appellant’s whistleblower reprisal claim on remand, the administrative judge should address the appellant’s additional disclosures and activities. ¶35 In a chapter 43 or chapter 75 appeal, the Board adjudicates an appellant’s claim of whistleblower reprisal as an affirmative defense. Pridgen, 2022 MSPB 31, ¶ 49; Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 11 (2016). In such instances, once the agency proves its adverse action case, the appellant must prove by preponderant evidence that he made a protected disclosure or engaged in protected activity and that the disclosure or activity was a contributing factor in the personnel action at issue. Pridgen, 2022 MSPB 31, ¶ 49; Campbell, 123 M.S.P.R. 674, ¶ 11. If the appellant meets this burden, the agency must prove by clear and convincing evidence that it would have taken the same action absent the protected disclosure or activity. Pridgen, 2022 MSPB 31, ¶ 49; Campbell, 123 M.S.P.R. 674, ¶ 12. In determining whether the agency has met this burden, the Board will consider all the relevant factors, including the following: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials involved in the decision; and (3) any evidence that the agency takes similar actions against employees who did not engage in such protected activity, but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). ¶36 We find that this analytical framework is appropriate for adjudicating a claim of whistleblower reprisal raised in an appeal of an action taken pursuant to 20 the VA Accountability Act. We have previously observed that, under the Act, Congress generally intended to retain existing protections for agency employees. Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 22 (citations omitted); see Sayers, 954 F.3d at 1377 (concluding that Congress “intend[ed] to maintain” employees’ due process rights in connection with actions taken under 38 U.S.C. § 714 (citations omitted)). More specifically, Congress intended to preserve, and in fact expand, the preexisting protections for whistleblowers. E.g., 163 Cong. Rec. H4867-07, H4868 (daily ed. June 13, 2017) (statement of Rep. Buck that the VA Accountability Act “bolsters protection for whistleblowers” by creating a new office within the agency to protect them and by holding supervisors accountable for how well they protect whistleblowers); 163 Cong. Rec. H4863-02, H4864 (daily ed. June 13, 2017) (statement of Rep. Roby that the VA Accountability Act “also increases protections for whistleblowers who put themselves at risk to improve the lives and care for veterans”); 163 Cong. Rec. S3261-01, S3276 (daily ed. June 6, 2017) (statement of Sen. Nelson that the VA Accountability Act would “create new protections for whistleblowers”). Title I of the VA Accountability Act establishes an Office of Accountability and Whistleblower Protection within the agency. Pub. L. No. 115-41, §§ 101-103, 131 Stat. 862, 863-68 (codified at 38 U.S.C. § 323). The presidentially appointed head of this office reports directly to the Secretary of the agency. 38 U.S.C. § 323(b). The office is charged with various duties related to the protection of whistleblowers, such as recommending discipline for alleged retaliators, and is required to report to Congress annually. 38 U.S.C. §323(c), (f). ¶37 Further, when an employee files a whistleblower reprisal complaint with the Office of Special Counsel or the agency’s Office of Accountability and Whistleblower Protection, the agency’s action against that employee generally is forestalled until the investigation is complete. 5 U.S.C. § 1214(f); 38 U.S.C. § 714(e)(2). In light of Title I of the VA Accountability Act, the enhanced protection for whistleblowers set forth in 38 U.S.C. § 714(e), and the stated intent 21 of Congress to continue protections for whistleblowers, we find it appropriate to adjudicate whistleblower reprisal claims under the VA Accountability Act in the same manner as we have adjudicated them when raised in an appeal of an action taken under chapter 43 and chapter 75. ¶38 The administrative judge found that the appellant proved that he made a protected disclosure to the deciding official in responding to his proposed removal. ID at 23-24. Specifically, the administrative judge found protected the appellant’s disclosure that the proposing official altered the appellant’s FY 2018 performance standards after digitally signing them. Id.; IAF, Tab 22 at 104. The administrative judge also found that the appellant proved this disclosure was a contributing factor in the deciding official’s determination to remove the appellant approximately 2 weeks later. ID at 16, 24-25; see Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18-21 (2015) (explaining that an employee may demonstrate that a protected disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure, and that the personnel action occurred within 1 to 2 years of the disclosure). Neither party challenges these findings on review and we decline to disturb them. ¶39 The appellant, who has been pro se throughout the proceedings in this appeal, alleged below that he made a number of additional disclosures to the deciding official regarding improprieties in the issuance of his FY 2017 and 2018 performance standards and appraisals. IAF, Tab 21 at 12-22, Tab 22 at 101-04, Tab 30 at 63, 73-75. He also alleged that he contacted the agency’s OIG about these improprieties. IAF, Tab 22 at 102; Pridgen, 2022 MSPB 31, ¶ 62 (recognizing that the activity of contacting an agency’s OIG generally is protected under 5 U.S.C. § 2302(b)(9)(C) regardless of the content of what an appellant discloses to the OIG). In his prehearing conference summary, the administrative judge acknowledged the appellant’s whistleblower reprisal claim generally but did not identify the specific alleged protected disclosures and 22 activities at issue. IAF, Tab 26 at 4-6. In the initial decision, the administrative judge addressed only the disclosure discussed above. Although the appellant does not reassert his additional disclosures and activities on review, in light of the fact that we are remanding the appeal on other grounds, the administrative judge should address them in his remand initial decision. ¶40 As to the disclosure that he adjudicated, after analyzing the Carr factors, the administrative judge found that the agency proved by clear and convincing evidence that it would have removed the appellant absent this disclosure. ID at 25-27. As for the first Carr factor, the administrative judge found that the evidence supporting the appellant’s removal was “extremely compelling” because the agency proved that the appellant failed to meet a critical element of his performance standards 2 years in a row. ID at 26. Turning to the second Carr factor, the administrative judge found that the deciding official did not have a motive to retaliate against the appellant for his disclosure because she had been the Bedford VA Director for a short period of time when she issued the removal letter; thus, she would have had no motive to cover up alleged misconduct by subordinate supervisors based on a belief that it might cast her managerial skills in a negative light. ID at 26-27. As for the third Carr factor, the administrative judge found that this factor weighed in favor of the agency because there was no proof that the agency retained underperforming research health scientists who were not whistleblowers. Id. ¶41 Because the administrative judge will be revisiting the charge on remand, he also must consider on remand any additional evidence and argument concerning the charge when evaluating the first Carr factor. As to the second Carr factor, in Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012), the Federal Circuit cautioned the Board against taking an “unduly dismissive and restrictive view” of retaliatory motive, holding that, “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if 23 they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Thus, in evaluating the second Carr factor on remand, the administrative judge should consider that the appellant’s disclosures may have reflected poorly on the Bedford VA Director as a representative of the agency’s general institutional interest in the validity of its performance management, which may be sufficient to establish a significant retaliatory motive. See Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶¶ 3, 69, 71 (2011) (finding that the managers who proposed and decided to remove an appellant had a motive to retaliate because the appellant’s disclosures reflected on them as representatives of the general institutional interests of the agency). ¶42 As for the third Carr factor, the administrative judge found that this factor weighed in favor of the agency because there was no proof that the agency retained underperforming research health scientists who were not whistleblowers. ID at 27. However, in Whitmore, the court held that “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” but that the failure to produce evidence “may be at the agency’s peril” and may cause the agency to fail to meet its clear and convincing burden. Whitmore, 680 F.3d at 1374. Further, because it is the agency’s burden of proof, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 18 (citing Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018)). ¶43 In summary, on remand, the administrative judge should reconsider the appellant’s whistleblower reprisal claim. In doing so, he should consider the appellant’s additional alleged protected disclosures and activities. The 24 administrative judge should also conduct a new analysis of the Carr factors consistent with this Opinion and Order.8 On remand, the administrative judge should review the agency’s penalty selection by considering the Douglas factors.9 ¶44 The administrative judge found that because the agency proved the charge by substantial evidence, the removal penalty must be affirmed. ID at 27-28. Therefore, he found it was unnecessary to review the agency’s penalty determination or address the Douglas factors. ID at 28. At the time of the initial decision, the administrative judge did not have the benefit of the Federal Circuit’s decisions in Sayers, Brenner, and Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021). ¶45 Under the VA Accountability Act, “if the decision of the Secretary is supported by substantial evidence, the . . . Board [and its administrative judges] 8 The appellant also argues on review that the administrative judge failed to address several of his affirmative defenses; however, he does not provide any specifics regarding those claims. PFR File, Tab 1 at 28-29. Instead, he refers to those affirmative defenses by category (e.g., harmful error, prohibited personnel practices) and cites the sections of the pleading he filed below in which he raised these claims. Id. (citing IAF, Tab 30 at 10-112). The appellant is essentially attempting to incorporate by reference his submission below into his petition for review. However, the Board has held attempts to incorporate by reference pleadings that were filed below do not satisfy the requirement of 5 C.F.R. § 1201.115 that the petitioning party set forth specific objections to the initial decision. Cole v. Department of Transportation, 18 M.S.P.R. 102, 104 n.3 (1983). Therefore, we have not considered any of the appellant’s arguments not specifically raised in his petition for review. As a result, we also decline to consider the appellant’s claim that, because the administrative judge did not address each of his affirmative defenses, the decision is not “final and complete,” as required by 38 U.S.C. § 714(d)(1). 9 When a chapter 75 adverse action is challenged before the Board, the agency must prove a nexus between the alleged misconduct and the efficiency of the service. Pope v. U.S. Postal Service, 114 F.3d 1144, 1147 (Fed. Cir. 1997) (relying, in part, on 5 U.S.C. 7513(a) (restricting agencies to taking actions “only for such cause as will promote the efficiency of the service”)). The administrative judge did not make a determination as to whether this requirement applies to an action taken under 38 U.S.C. § 714 or, if so, whether the agency met its burden. Because the parties have not raised this issue on review, we decline to address it here. See Cole, 18 M.S.P.R. at 104 n.3. 25 shall not mitigate the penalty prescribed by the Secretary” in an action taken under 38 U.S.C. § 714. 38 U.S.C. §§ 714(d)(2)(B), (d)(3)(C). The Federal Circuit in Sayers clarified that, while the Board may not “mitigate the penalty,” nevertheless, “§ 714 requires the Board to review for substantial evidence the entirety of the [agency’s] removal decision—including the penalty—rather than merely confirming that the record contains substantial evidence that the alleged conduct leading to the adverse action actually occurred.” 954 F.3d at 1379. In Brenner, 990 F.3d at 1323-27, the court further held that the Board’s review must include the agency’s penalty determination whether the action is based on misconduct or performance. ¶46 Other than the requirement that the decision of the Secretary be supported by substantial evidence, the VA Accountability Act does not provide guidance for reviewing the agency’s penalty. Therefore, as with our analysis of the charge, we start by examining the standard of penalty review used by the Board in other performance-based actions. The Board does not review the agency’s penalty in chapter 43 actions, Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1565 (Fed. Cir. 1985), and the Federal Circuit has rejected applying chapter 43’s lack of penalty review to actions taken under 38 U.S.C. § 714, Brenner, 990 F.3d at 1326-27; Sayers, 954 F.3d at 1378-79. Therefore, chapter 43 cannot provide any guidance on this issue. ¶47 The Board recognized in Douglas that it inherited from its predecessor, the Civil Service Commission, the authority to review the appropriateness of agency penalties. Douglas, 280 M.S.P.R. at 298-99. This review included consideration of a nonexhaustive list of factors, both aggravating and mitigating, that are relevant to determining the propriety of a penalty. Id. at 303-06. Congress presumably was aware of this history of Board penalty review, including the application of the Douglas factors, when it enacted the VA Accountability Act. See Sayers, 954 F.3d at 1375. 26 ¶48 Although the VA Accountability Act prohibits the Board from mitigating the agency’s penalty, we find that the Board’s framework for chapter 75 penalty analysis is otherwise consistent with the Act. The Board’s penalty review is essentially to assure that the agency conscientiously considered the relevant factors and struck a responsible balance of the factors within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. If the Board sustains an agency’s charge in a chapter 75 action, it will affirm the agency-imposed penalty under Douglas unless it finds that the agency failed to weigh the relevant factors or the penalty imposed clearly exceeded the bounds of reasonableness. Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶ 14 (2006), aff’d per curiam, 218 F. App’x 1001 (Fed. Cir. 2007). ¶49 Our determination is consistent with the Federal Circuit’s decision in Connor. In that case, the Federal Circuit determined that the Board must consider and apply the Douglas factors when reviewing penalties under the VA Accountability Act. Connor, 8 F.4th at 1325-26. The court held that, although the VA Accountability Act precludes the Board from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas factors.” Id. at 1326. Because the Board cannot mitigate the penalty, “if the Board determines that the [agency] failed to consider the Douglas factors or that the chosen penalty is unreasonable, the Board must remand to the [agency] for a redetermination of the penalty.” Id. at 1326-27 (citing Brenner, 990 F.3d at 1325 (determining that “if the [Board] concludes that the [agency’s] removal decision is unsupported by substantial evidence, the [Board] should remand to the [agency] for further proceedings”)). ¶50 The deciding official referenced some of the Douglas factors in making her removal decision. IAF, Tab 9 at 11, 76-77. The appellant suggested, below, that she did review all of the relevant factors and disagreed with the weight she gave to the factors she expressly considered in the removal decision. IAF, Tab 30 at 101-103. Because he did not have the benefit of the Federal Circuit’s recent 27 decisions regarding the Board’s obligation to review the penalty in an action taken under the VA Accountability Act, the administrative judge did not identify the penalty as an issue to be adjudicated below or provide guidance to the parties on the penalty issue. IAF, Tab 26 at 3-8. On remand, he should permit the parties to submit additional evidence and argument on the penalty issue. In reviewing the penalty, the administrative judge should determine whether the agency proved by substantial evidence that it properly applied the relevant Douglas factors and whether the agency’s penalty was reasonable and, if not, remand the appellant’s removal to the agency for a new removal decision. See Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d at 1375-76, 1379 (identifying the Board’s scope of review of the penalty in an action taken under the VA Accountability Act as substantial evidence); see Wiley, 102 M.S.P.R. 535, ¶ 14. ORDER ¶51 We vacate the initial decision and remand the appeal to the regional office for further adjudication consistent with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SEMENOV_MIKHAIL_PH_0714_19_0128_I_1_OPINION_AND_ORDER_2024916.pdf
04-04-2023	2023 MSPB 15	Michelle Kaszowski	https://www.mspb.gov/decisions/precedential/KASZOWSKI_MICHELLE_E_CH_0752_16_0089_I_1_OPINION_AND_ORDER_2018058.pdf	Department of the Air Force	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 15 Docket No. CH-0752-16-0089-I-1 Michelle E. Kaszowski, Appellant, v. Department of the Air Force, Agency. April 4, 2023 Keith E. Kendall, Esquire, Harrisburg, Pennsylvania, for the appellant. Justin Strong, Youngstown Air Reserve Station, Ohio, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her 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 to the regional office for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 On November 13, 2015, the appellant filed a Board appeal challenging her removal, effective October 16, 2015, from her position as a Drug Demand Reduction Program Manager. Initial Appeal File (IAF), Tab 1. The agency 2 moved to dismiss the appeal for lack of jurisdiction on the basis that the appellant had previously elected to file a grievance concerning her removal. IAF, Tab 5. The administrative judge issued a show cause order explaining that the Board may lack jurisdiction if the appellant had elected to challenge her removal through the negotiated grievance procedure and instructed the appellant to file evidence and argument establishing Board jurisdiction over her appeal. IAF, Tab 8. In response, the appellant contended that the Board has jurisdiction because although she challenged her removal via a union-filed grievance, the union unilaterally declined to pursue arbitration on her behalf. IAF, Tab 10 at 5, 21. ¶3 Without holding a hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 25, Initial Decision (ID). The administrative judge found that there was no dispute that, prior to filing her Board appeal, the appellant had elected to challenge her removal via a union-filed grievance. Further, the administrative judge found that the union’s decision not to pursue arbitration did not render invalid the appellant’s election. ID at 3. In particular, the administrative judge noted that it was undisputed that, on October 20, 2015, the union submitted on the appellant’s behalf an informal grievance concerning the appellant’s removal. ID at 2. After the informal grievance was denied, on October 30, 2015, the union filed a step 4 grievance, noting that steps 1-3 did not pertain to the grievance because the base commander was the deciding official. Id. Thus, the administrative judge found that, pursuant to 5 U.S.C. § 7121(e), the appellant had elected to challenge her removal through the negotiated grievance procedure, which precluded her Board appeal. ID at 3. Accordingly, the administrative judge granted the agency’s motion to dismiss the appeal for lack of jurisdiction. ¶4 The appellant filed a petition for review, which the agency opposed. Petition for Review (PFR) File, Tabs 1, 3. 3 ANALYSIS The appellant’s election to file a grievance was not a binding election and did not preclude her removal appeal. ¶5 An employee subjected to an adverse action, such as a removal, and who is covered by a negotiated grievance procedure may challenge such an action by filing either a grievance under the negotiated grievance procedure or a Board appeal under 5 U.S.C. § 7701, “but not both.”1 5 U.S.C. § 7121(e)(1). An employee is deemed to have exercised an option when the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the negotiated grievance procedure, whichever event occurs first. Id. However, for an election of an option to be binding, it must be knowing and informed. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 16 (2013). The Board has held that, when an agency takes an action without informing the appellant of her procedural options under section 7121 and the preclusive effect of electing one of those options, any subsequent election by the appellant is not binding. Id., ¶ 17; cf. Johnson v. Department of Veterans Affairs, 121 M.S.P.R. 695, ¶¶ 6-7 (2014) (finding that the appellant’s election to grieve his removal was not binding because the agency’s removal decision did not inform him of his right to file a request for corrective action with the Office of Special Counsel (OSC), or of the effect that filing a grievance would have on his right to file an OSC complaint and a subsequent 1 Additional avenues of relief are available when an employee who is subjected to an action appealable to the Board alleges that she has been affected by a prohibited personnel practice. When alleging a prohibited personnel practice under 5 U.S.C. § 2302(b)(1), the employee may elect one and only one of the following: (1) a statutory procedure, i.e., a Board appeal or an equal employment opportunity complaint; or (2) a grievance under the applicable negotiated grievance procedures. 5 U.S.C. § 7121(d). When alleging a prohibited personnel practice other than under 5 U.S.C. § 2302(b)(1), the employee may elect one and only one of the following: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance under the applicable negotiated grievance procedures; or (3) a complaint seeking corrective action from the Office of Special Counsel under 5 U.S.C. chapter 12, subchapters II and III. 5 U.S.C. § 7121(g). 4 individual right of action appeal before the Board), aff’d, 611 F. App’x 496 (10th Cir. 2015).2 For this reason, the Board’s regulations require that, when an agency issues a decision notice to an employee on a matter appealable to the Board, it must provide the employee with notice of the available avenues of relief and the preclusive effect any election will have on the employee’s Board appeal rights. See 5 C.F.R. § 1201.21(d)(1). In particular, when an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with, among other things, notice of any right the employee has to file a grievance or seek corrective action under subchapters II and III of 5 U.S.C. chapter 12, including “[w]hether the election of any applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board.” Id. In proposing this regulation, the Board emphasized that “it is especially important that the agency notice of MSPB appeal rights required by 5 CFR 1201.21 fully explain the consequences of choosing the appeal or grievance procedure” and that “[g]iven the various laws and [collective bargaining agreements] that come into play, it is essential that agency notices of appeal and grievance rights state the situation clearly with respect to the particular employee against whom the action is being taken.” Practices and Procedures, 64 Fed. Reg. 58,798 (Nov. 1, 1999). ¶6 The agency’s Notice of Decision to Remove provided, in relevant part: 3. If you consider this action improper, you are entitled to: (a) Appeal this action to the Merit Systems Protection Board (MSPB) or (b) Seek corrective action before the U.S. Office of Special Counsel (OSC) or (c) File a grievance under the negotiated grievance procedure or (d) A discrimination complaint with the Equal Employment Opportunity Commission (EEOC) 2 Although Johnson is based on 5 U.S.C. § 7121(g), rather than section 7121(e), in Agoranos, 119 M.S.P.R. 498, ¶¶ 15-16, the Board made it clear that both of these statutory subsections require that elections be knowing and informed. 5 You shall be deemed to have exercised your option to appeal the adverse action at such time as you timely initiate action to appeal to the Board, or the OSC, or timely file a grievance in writing under the negotiated grievance procedure, or a discrimination complaint. If your appeal includes an allegation that the facility engaged in a prohibited personnel action in retaliation of protected whistleblowing [sic], you may elect to file an appeal to MSPB, OSC, or a negotiated grievance and your election is based on which election you file first. IAF, Tab 3 at 3. After setting forth the methods for submitting an appeal with the Board, seeking corrective action from OSC, filing a grievance, and filing a complaint of discrimination, the decision notice indicated that “[w]hichever is filed first, an appeal to the MSPB, an appeal for corrective action to OSC, a grievance under the negotiated grievance procedure, or a discrimination complaint, shall be considered an election by you to proceed under that appeal process.” Id. at 3-4. ¶7 Here, we agree with the administrative judge that the appellant elected to grieve her removal, notwithstanding the union’s purported decision not to arbitrate the appellant’s grievance of her removal. ID at 3-4; see Martinez v. Department of Justice, 85 M.S.P.R. 290, ¶ 10 (2000). Nevertheless, nothing in the record demonstrates that the agency fully explained the consequences of choosing the appeal or grievance procedure. The decision letter did not explicitly inform the appellant that she could raise the matter at issue with the Board or under the negotiated grievance procedure, “but not both,” 5 U.S.C. § 7121(e)(1), nor did it provide her with notice as to “[w]hether the election of any applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board,”3 5 C.F.R. § 1201.21(d)(1). Thus, we find that the appellant did not make a knowing and informed election and did not waive her right to file a 3 Agencies may wish to review and update, if necessary, the notice of appeal rights language in their decision notices consistent with the applicable statutes and 5 C.F.R. § 1201.21. 6 Board appeal. See Johnson, 121 M.S.P.R. 695, ¶ 7; Agoranos, 119 M.S.P.R. 498, ¶ 17; 5 C.F.R. § 1201.21(d)(1).4 Accordingly, we remand the appeal for adjudication of the merits of the agency’s removal action.5 ORDER ¶8 Based on the foregoing, we remand this case to the regional office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C. 4 During the pendency of this appeal, Congress enacted the National Defense Authorization Act of 2018 (2018 NDAA), effective December 12, 2017. Pub. L. No. 115-91, 131 Stat. 1283 (2017). The 2018 NDAA codified, with respect to an action taken under 5 U.S.C. §§ 7503(b)(1), 7513(b)(1), or 7543(b)(1), an agency’s obligation to notify an employee of her right to appeal an action brought under one of the applicable sections, the forums in which she may file her appeal, and any limitations on her rights that would apply because of her forum selection. 2018 NDAA § 1097(b)(2), 131 Stat. at 1617 (5 U.S.C. § 7503 Note). We need not consider the retroactivity of this provision and whether the agency also failed to comply with this statutory requirement given our finding that the agency did not comply with the Board’s regulatory notice requirements. 5 Section 7121(e)(1) applies to an “aggrieved employee.” Under 5 U.S.C. § 7103(a)(2), a “supervisor” or “management official” is not such an “employee.” Supervisors or management officials are, therefore, excepted from the election of remedies provisions of 5 U.S.C. § 7121. See Requena v. Department of Homeland Security, 2022 MSPB 39, ¶ 11. Although the appellant’s title is Drug Demand Reduction Program Manager, we need not address whether to apply Requena in this case because the record appears to indicate that she is not a supervisor or management official, see, e.g., IAF, Tab 7 at 98, and we have otherwise found that her election was invalid.	https://www.mspb.gov/decisions/precedential/KASZOWSKI_MICHELLE_E_CH_0752_16_0089_I_1_OPINION_AND_ORDER_2018058.pdf	Issuance Date: April 4, 2023 Appeal Type: Adverse Action Election of Remedies The agency moved to dismiss the appellant’s removal appeal on the basis that the appellant had previously elected to challenge her removal through the negotiated grievance procedure, thus waiving her Board appeal rights. In response, the appellant argued that, although she had initially pursued a union-filed grievance, the union unilaterally declined to pursue arbitration on her behalf. The administrative judge found that the appellant had made a binding election under 5 U.S.C. § 7121(e)(1) to grieve her removal, thus waiving her Board appeal rights, and that the union’s decision not to pursue arbitration did not render her election invalid. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction. The appellant petitioned for review. Holding: The Board found that the appellant’s election to challenge her removal through the negotiated grievance procedure was not binding, and thus did not preclude her Board appeal. Although the agency informed the appellant of the available methods for challenging her removal, it did not advise her that electing to file a grievance would result in waiver of her Board appeal rights. 1. Under 5 U.S.C. § 7121(e)(1), an employee subjected to an adverse action and who is covered by a negotiated grievance procedure may challenge such an action by filing either a grievance under the negotiated grievance procedures or a Board appeal under 5 U.S.C. § 7701, “but not both.” However, for an election of remedies to be binding, it must be knowing and informed. When an agency takes an action without informing the appellant of her procedural options under § 7121 and the preclusive effect of electing one of those options, any subsequent election by the appellant is not binding. 2. For this reason, the Board’s regulations require that when an agency issues a decision notice to an employee on a matter appealable to the Board, it must provide the employee with notice of the available avenues of relief and the preclusive effect any election will have on the employee’s Board appeal rights. Among other things, the agency must provide notice of any right the employee has to file a grievance or seek corrective action under subchapters II and III or 5 U.S.C. chapter 12, including “[w]hether the election of any applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board.” 5 C.F.R. § 1201.21(d)(1). 3. Here, the agency’s decision letter informed the appellant of the available methods of challenging her removal, including submitting a Board appeal, seeking corrective action from the Office of Special Counsel [OSC], filing a grievance, and filing a discrimination complaint. The letter further indicated that “[w]hichever is filed first, an appeal to the MSPB, an appeal for corrective action to OSC, a grievance under the negotiated grievance procedure, or a discrimination complaint, shall be considered an election by you to proceed under that appeal process.” 4. However, the agency did not fully explain the consequences of choosing the appeal or grievance procedures. In particular, the letter did not specifically inform the appellant that she could raise the matter at issue with the Board or under the negotiated grievance procedures, “but not both,” 5 U.S.C. § 7121(e)(1), nor did it provide her with notice as to [w]hether the election of any applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board,” 5 C.F.R. § 1201.21(d)(1). 5. Thus, the appellant did not make a knowing an informed election and did not waive her right to file a Board appeal. Accordingly, the Board remanded the appeal for adjudication on the merits. COURT DECISIONS PRECEDENTIAL:
03-23-2023	2023 MSPB 13	Darek Kitlinski	https://www.mspb.gov/decisions/precedential/KITLINSKI_DAREK_J_SF_4324_15_0088_M_1_OPINION_AND_ORDER_2014263.pdf	Department of Justice	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 13 Docket No. SF-4324-15-0088-M-1 Darek J. Kitlinski, Appellant, v. Department of Justice, Agency. March 23, 2023 Darek J. Kitlinski, Arlington, Virginia, pro se. Clairanne Mariah Porter Wise, Springfield, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 This Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal is before the Board on remand from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The sole issue before the Board is whether the administrative judge correctly found that the appellant failed to establish jurisdiction over his appeal based on his claim that the agency created a hostile work environment in retaliation for his protected activity. For the reasons set forth below, we AFFIRM the administrative judge’s findings and DISMISS the appeal for lack of jurisdiction. 2 BACKGROUND ¶2 The facts of this case are set forth more fully in the administrative judge’s initial decision and the Federal Circuit’s opinion. Kitlinski v. Department of Justice, MSPB Docket No. SF-4324-15-0088-I-1, Initial Decision (ID) at 2-5 (Feb. 13, 2015); Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374, 1376-79 (Fed. Cir. 2017). Briefly, the appellant was a Supervisory Special Agent with the agency’s Drug Enforcement Administration (DEA). ID at 2. He was also a reservist in the United States Coast Guard (Coast Guard) and had been recalled to active duty for an extended period beginning in 2011. Kitlinski, 857 F.3d at 1376. Prior to filing this appeal, the appellant had filed two USERRA appeals and an equal employment opportunity (EEO) complaint against the agency. Id. ¶3 According to the appellant, on September 23, 2014, he appeared at DEA headquarters for a deposition in his EEO case. Id. After the deposition was finished, he claimed that he returned to his car and discovered under the hood “a Blackberry device bearing a DEA sticker.” Id. “He suspected that the device had been planted by agency officials . . . and that the device was intended to be used to track his location and record his conversations.” Id. The appellant’s wife, who was also an agency employee, turned the Blackberry over to their attorney and notified the agency’s Office of Professional Responsibility (OPR) of the matter. Id. ¶4 OPR summoned the appellant’s wife to an interview and directed her to return the Blackberry to the agency. Id. Subsequently, two OPR investigators traveled to the appellant’s Coast Guard duty station and directed the appellant to turn over the Blackberry and to appear at OPR’s offices for an interview. Id. The appellant did not appear for the interview, and there is no indication in the record that either the appellant or his wife ever returned the Blackberry. Id. at 1378. The appellant does not claim that the agency took any action against him as a result. 3 ¶5 The appellant filed the instant USERRA appeal and requested a hearing. Kitlinski v. Department of Justice, MSPB Docket No. SF-4324-15-0088-I-1, Initial Appeal File (IAF), Tab 1. He raised the following four claims: (1) the agency discriminated against him in violation of 38 U.S.C. § 4311(a) by denying him a benefit of employment; (2) the agency discriminated against him in violation of 38 U.S.C. § 4311(a) by creating a hostile work environment; (3) the agency retaliated against him for his prior USERRA activity in violation of 38 U.S.C. § 4311(b) by discriminating against him and taking adverse employment actions against him; and (4) the agency retaliated against him for his prior USERRA activity in violation of 38 U.S.C. § 4311(b) by creating a hostile work environment. Kitlinski, 857 F.3d at 1379-82. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 15. He found that the appellant failed to make a nonfrivolous allegation that he was subjected to a denial of a benefit of employment or any other entitlement listed in 38 U.S.C. § 4311(a) on the basis of his uniformed service or obligation to perform such service. ID at 6-7, 15. He also found that the appellant failed to make a nonfrivolous allegation that the agency took an adverse employment action or otherwise discriminated in employment against him in retaliation for protected USERRA activity under 38 U.S.C. § 4311(b). ID at 8-12, 15. Finally, he found that the appellant failed to allege facts which, if proven, would rise to the level of a hostile work environment under either section 4311(a) or section 4311(b). ID at 12-15. The appellant filed a petition for review, and the Board issued an Opinion and Order affirming the initial decision. Kitlinski v. Department of Justice, 123 M.S.P.R. 41 (2015), aff’d in part, vacated in part, and remanded, 857 F.3d 1374 (Fed. Cir. 2017). ¶6 The appellant then filed a petition for judicial review with the Federal Circuit. Kitlinski, 857 F.3d at 1376. On review, the Board, as respondent, noted that its Opinion and Order did not address whether the appellant had made a nonfrivolous allegation that the agency subjected him to a hostile work 4 environment in retaliation for his prior USERRA activity, in violation of 38 U.S.C. § 4311(b). Id. at 1379. The Board therefore requested that the appeal be remanded for it to address this issue in the first instance. Id. The court issued an opinion affirming the Board’s final decision in part and vacating and remanding in part. Id. at 1382. The court affirmed the Board’s findings that the appellant failed to make a nonfrivolous allegation of jurisdiction with respect to the first three claims described above. Supra ¶ 5; Kitlinski, 857 F.3d at 1380-82. The court vacated the Board’s order, however, and remanded for further proceedings on the fourth claim. Kitlinski, 857 F.3d at 1382. ANALYSIS ¶7 At issue here is the appellant’s claim that, in retaliation for exercising his rights under USERRA, the agency created a hostile work environment by allegedly placing a Blackberry device under the hood of his car and summoning him to an investigative interview. IAF, Tab 12 at 12-13. The question is whether this amounts to a nonfrivolous allegation of Board jurisdiction under 38 U.S.C. § 4324. For the following reasons, we find that it does not. ¶8 USERRA’s prohibition on retaliation in 38 U.S.C. § 4311(b) provides that: [a]n employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. To establish jurisdiction over a USERRA retaliation claim under this subsection, an appellant must make nonfrivolous allegations that (1) he engaged in activity protected under 38 U.S.C. § 4311(b), (2) the agency discriminated in employment or took an adverse employment action against him, and (3) his protected activity 5 was a motivating factor in the agency’s action.1 See 38 U.S.C. § 4311(b), (c)(2); Hayden v. Department of the Air Force, 812 F.3d 1351, 1363 (Fed. Cir. 2016); 5 C.F.R. § 1201.57(a)(3), (b). In this case, it is undisputed that the appellant engaged in activity protected under 38 U.S.C. § 4311(b). Specifically, he exercised a right provided for under 38 U.S.C. § 4324(b) when he filed his two previous USERRA appeals, Kitlinski v. Department of Justice, MSPB Docket No. SF-4324-14-0184-I-1, and Kitlinski v. Department of Justice, MSPB Docket No. SF-4324-14-0687-I-1, on December 13, 2013, and July 8, 2014, respectively. The remaining question before us is whether the appellant made a nonfrivolous allegation that the agency “discriminate[d] in employment” or took an “adverse employment action” against him by creating a hostile work environment. 38 U.S.C. § 4311(b). As explained below, we answer that question in the negative. ¶9 As an initial matter, we find that, considering the legislative history and remedial purpose of USERRA, it is appropriate to interpret USERRA’s anti-retaliation provision as encompassing hostile work environment claims. The Board previously found that a hostile work environment claim may lie under USERRA’s anti-discrimination provision, set forth in 38 U.S.C. § 4311(a), to the extent that the creation of a hostile work environment amounts to the denial of a “benefit of employment.”2 Petersen v. Department of the Interior, 71 M.S.P.R. 1 If an appellant previously sought corrective action from the Department of Labor in connection with his claim under 38 U.S.C. § 4322, he also must prove by preponderant evidence that he has exhausted his administrative remedies. See 38 U.S.C. § 4322(e); Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 7 (2005); 5 C.F.R. §§ 1201.57(c)(1), 1208.11. Because the appellant filed the instant appeal directly with the Board, this jurisdictional element is inapplicable to this case. 2 Section 4311(a) states the following: [a] person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, 6 227, 235-39 (1996). In Petersen, we determined that one of the basic purposes of USERRA is to prohibit discrimination because of an individual’s service in the uniformed services, and that an expansive interpretation of the statute was intended by Congress. Id. at 235-36. Further, we noted that the courts consistently have construed other anti-discrimination statutes as proscribing harassment in the workplace, and concluded that harassment on account of uniformed service, which is sufficiently pervasive to alter the conditions of employment and create an abusive working environment, is a violation of 38 U.S.C. § 4311(a). Id. at 237-39. ¶10 We find that USERRA’s anti-retaliation provision similarly proscribes a hostile work environment. Section 4311(b) prohibits “discriminat[ion] in employment against” or “tak[ing] any adverse employment action against” individuals who engage in activity protected by that provision. In other words, an employer may not retaliate against an individual for exercising his rights under USERRA. Hayden, 812 F.3d at 1362-63. Statutes should be interpreted in a manner that is consistent with the intent of Congress. Hellebrand v. Secretary of the Department of Health and Human Services, 999 F.2d 1565, 1570-71 (Fed. Cir. 1993). The legislative history of USERRA explicitly states that it was intended “to prohibit discrimination or acts of reprisal” against individuals who file a complaint, assist in an investigation, or testify in a proceeding under that statutory scheme, and that USERRA is to be “liberally construed.” H.R. Rep. No. 103-65(I), at 17, 19, 24 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449, 2450, 2452, 2457. As the Federal Circuit has explained, any “interpretive doubt retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. 38 U.S.C. § 4311(a). USERRA defines the term “benefit of employment” as “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest . . . that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice.” See 38 U.S.C. § 4303(2). 7 is to be resolved in the veteran’s favor.” Kirkendall v. Department of the Army, 479 F.3d 830, 846 (Fed. Cir. 2007) (en banc) (citing Brown v. Gardner, 513 U.S. 115, 117-18 (1994)). ¶11 Our conclusion is confirmed by certain amendments to USERRA in 2011. Specifically, in Carder v. United Airlines, Inc., 636 F.3d 172 (5th Cir. 2011), the U.S. Court of Appeals for the Fifth Circuit held that USERRA did not create a cause of action based on a hostile work environment. Specifically, the court observed that “[i]n originally permitting a plaintiff to assert a hostile work environment claim in a Title VII case, the Supreme Court relied heavily on Title VII’s language prohibiting discrimination with respect to the ‘terms, conditions, or privileges of employment.’” Carder, 636 F.3d at 177 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63-66 (1986)). However, this language was absent from USERRA, and the court found that its omission was intentional. The court therefore declined to read the USERRA term “benefits of employment” to encompass “terms, conditions, or privileges of employment,” and thus held that the plaintiff could not raise a hostile work environment claim under USERRA. Id. at 178-81. Eight months after the Carder decision was issued, Congress clarified the term “benefits of employment” by amending 38 U.S.C. § 4303(2) to state specifically that it means “the terms, conditions, or privileges of employment.” Vow to Hire Heroes Act of 2011, Pub. L. No. 112-56, § 251, 125 Stat. 711, 729. Based on Congress’s legislative response to the Carder decision, we find unambiguous congressional intent that hostile work environment claims be cognizable under USERRA. ¶12 Moreover, we previously have recognized a prohibition against a retaliatory hostile work environment under the Whistleblower Protection Enhancement Act of 2012, a statute that similarly prohibits retaliation for protected activity. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015) (relying upon legislative history to broadly interpret a prohibition against retaliating for whistleblowing by making “any other significant change in duties, 8 responsibilities, or working conditions” to include harassment “that could have a chilling effect on whistleblowing”), overruled in part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Additionally, Federal courts have concluded that hostile work environment claims are available under other similar anti-retaliation statutory provisions. E.g., Gowski v. Peake, 682 F.3d 1299, 1311-12 (11th Cir. 2012) (recognizing the existence of retaliatory hostile work environment claims under Title VII for the first time in the U.S. Court of Appeals for the Eleventh Circuit and acknowledging that every other Federal circuit court already had recognized such claims); Floyd v. Lee, 85 F. Supp. 3d 482 (D.D.C. 2015) (acknowledging the availability of a retaliatory hostile work environment claim under the Americans with Disabilities Act). Because many of the considerations underpinning the recognition of a hostile work environment claim under 5 U.S.C. § 4311(a), see Petersen, 71 M.S.P.R. at 235-39, similarly exist for section 4311(b), we conclude that it is appropriate to permit hostile work environment claims under both USERRA’s anti-discrimination and anti-retaliation statutes. Furthermore, the Federal Circuit in this matter at least implicitly concluded that a hostile work environment claim was cognizable under 38 U.S.C. § 4311(b), as reflected in its remand of that claim to the Board for adjudication here. Kitlinski, 857 F.3d at 1382. ¶13 Having found that a hostile work environment claim is available under 38 U.S.C. § 4311(b), we consider the appropriate standard for addressing such a claim. In determining what standard to apply to hostile work environment claims arising under USERRA’s anti-discrimination provision, the Board recognized that courts that have considered this issue have looked to the elements of a hostile work environment claim under Title VII. Kitlinski, 123 M.S.P.R. 41, ¶ 18; see Montoya v. Orange County Sheriff’s Department, 987 F. Supp. 2d 981, 1012-15 (C.D. Cal. 2013). Applying those standards, the courts have held that, to establish such a claim, an employee must establish a “pattern of ongoing and persistent harassment severe enough to alter the conditions of employment,” 9 “prov[ing] that his workplace was both objectively and subjectively offensive” and that “any harassment took place on account of his protected status as a military member.” Kitlinski, 123 M.S.P.R. 41, ¶ 18 (quoting Montoya, 987 F. Supp. 2d at 1016-17, and citing Hanson v. County of Kitsap, 21 F. Supp. 3d 1124, 1146-47 (W.D. Wash. 2014)). ¶14 We similarly find here that Title VII provides a useful analog for establishing the elements of a USERRA hostile work environment claim under 38 U.S.C. § 4311(b). See Kitlinski, 123 M.S.P.R. 41, ¶ 19. Accordingly, we hold that, to establish the Board’s jurisdiction over a hostile work environment claim arising under USERRA’s anti-retaliation provision, an appellant must nonfrivolously allege that he was subjected to a pattern of ongoing and persistent harassing behavior that was sufficiently severe or pervasive to amount to an “adverse employment action” or “discriminat[ion] in employment.” See 38 U.S.C. § 4311(b); Montoya, 987 F. Supp. 2d at 1017; Kitlinski, 123 M.S.P.R. 41, ¶ 19. An appellant also must nonfrivolously allege that his protected activity was a motivating factor in the alleged acts of hostility to bring the challenged conduct within the scope of USERRA’s anti-retaliation provision. See 38 U.S.C. § 4311(c)(2) (stating that an employer violates section 4311(b) when an individual’s protected activity is a “motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such person’s enforcement action, testimony, statement, assistance, participation, or exercise of a right”); see also Hayden, 812 F.3d at 1363 (setting forth the standard for establishing jurisdiction over a USERRA retaliation claim). In considering whether an appellant has nonfrivolously alleged that he was subjected to a hostile work environment based on his protected activity under USERRA, we apply the Board’s liberal approach to determining jurisdiction in a USERRA appeal, under which the relative weakness of an appellant’s allegations concerning the seriousness of the alleged acts should not serve as a basis for 10 jurisdictional dismissal. Swidecki v. Department of Commerce, 113 M.S.P.R. 168, ¶ 6 (2010). ¶15 As the Federal Circuit found in this case, 38 U.S.C. § 4311(b) “is limited to barring acts of discrimination in employment and adverse employment actions.” Kitlinski, 857 F.3d at 1381. The appellant’s retaliatory hostile work environment claim is grounded in two agency actions—the alleged planting of the Blackberry device in his vehicle and the OPR investigators summoning him to an interview. IAF, Tab 12 at 12-13. However, the Federal Circuit in its remand decision already concluded that these two actions did not constitute “adverse employment actions” or “discrimination in employment,” as they did not deny the appellant “a benefit that inures to him by virtue of his employment with the agency.” Kitlinski, 857 F.3d at 1382. Concerning the interview, the court’s finding was at least in part due to the fact that, at the time of the investigation in question, the appellant had been on long-term leave from his employing agency and was serving with the Coast Guard. Id. Aggregating these two events in an effort to establish a hostile work environment claim under 38 U.S.C. § 4311(b) is unavailing—the two actions still had no bearing on the appellant’s employment. Thus, we find that the appellant has not made a nonfrivolous allegation that the agency discriminated in employment or took an adverse employment action against him, as required to establish jurisdiction over his retaliatory hostile work environment claim. ORDER ¶16 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). 11 NOTICE OF APPEAL RIGHTS3 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: 3 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 13 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 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.4 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 4 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/KITLINSKI_DAREK_J_SF_4324_15_0088_M_1_OPINION_AND_ORDER_2014263.pdf	Issuance Date: May 31, 2017 Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) -Jurisdiction During the relevant time, the appellant was employed by the Department of Justice (DOJ), Drug Enforcement Administration (DEA). He also served as a reservist in the U.S. Coast Guard. In 2011, he was recalled to active duty and served full-time at the Coast Guard headquarters in Washington, DC. During his employment, the appellant filed two USERRA complaints and an equal employment opportunity (EEO) complaint against the agency. On September 23, 2014, DEA representatives took the appellant’s deposition in the EEO case at the DEA headquarters. Following the deposition, the appellant returned to his car, which was parked in a secure DEA parking lot and discovered a Blackberry device bearing a DEA sticker under the hood of the car, which he suspected had been planted by DEA officials during his deposition to track him and record his conversations. He reported the incident to the Federal Bureau of Investigation and DOJ, who referred it to the DEA Office of Professional Responsibility (OPR). The appellant’s wife, who also worked for the DEA, also reported the incident to her supervisors and to OPR. In response, an OPR investigator contacted her and directed her to turn over the Blackberry and to appear at OPR offices for an interview. She alleged that the investigators interrogated her and threatened her with discipline if she did not turn over the Blackberry. Subsequently, two OPR investigators met with the appellant at the Coast Guard headquarters and directed him to turn over the Blackberry and come to the OPR offices the following day for an interview. The appellant filed a Board appeal alleging that the placement of the Blackberry and the interview of his wife constituted violations of USERRA both as independent acts of discrimination and by creating a hostile work environment. He also alleged that the investigators’ actions constituted individual acts of retaliation and created a hostile work environment in retaliation for his exercise of his rights under USERRA. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction because the appellant failed to make nonfrivolous allegations that (1) he was subjected to the denial of a benefit of employment under 38 U.S.C. § 4311(a) based on his military service, (2) the DEA took an adverse employment action or otherwise discriminated in employment against him under 38 U.S.C. § 4311(b) in retaliation for engaging in protected USERRA activity, or (3) he was subjected to a hostile work environment under either sections 4311(a) or 4311(b). On review, the Board affirmed the initial decision as modified regarding the appellant’s claim that the agency’s actions created an actionable hostile work environment under section 4311(a). First, the Board agreed with the administrative judge that the Blackberry incident did not deny the appellant a benefit of employment and therefore did not constitute discrimination under USERRA. Second, the Board held that the appellant failed to nonfrivoloulsy allege that the DEA’s conduct created a hostile work environment under section 4311(a) because the appellant failed to nonfrivolously allege that the measures alleged to have given rise to the hostile work environment were taken based on the his military status. Third, the Board held that the appellant failed to make a nonfrivolous allegation that the agency had retaliated against him for previous USERRA activity because such a claim requires proof that the employers’ allegedly retaliatory measures constituted “discrimination in employment” or “an adverse employment action.” Because the Board concluded that the agency’s actions did not constitute either, it held that it lacked jurisdiction over the retaliation claim. Holding: The Court affirmed in part, vacated in part, and remanded. 1. The Court affirmed the Board’s holding that the appellant failed to make a nonfrivolous allegation of USERRA discrimination under section 4311(a) because the agency’s actions did not fit within the categories of actions that section prohibits an agency from taking, i.e., the denial of initial employment, reemployment, retention in employment, promotion, or any benefit of employment. a. The alleged placement of the Blackberry in the appellant’s car did not constitute the denial of a benefit of employment within the meaning of section 4311(a). b. The actions taken by the OPR investigators, including meeting the appellant at the Coast Guard headquarters and insisting that he produce the Blackberry and appear for an interview at the DEA headquarters the next day, did not deny the appellant a benefit of employment. 2. The Court affirmed the Board’s finding that the appellant failed to nonfrivolously allege that the agency violated section 4311(a) by creating a hostile work environment because he failed to allege that the hostile work environment was based on his military service. 3. The Court affirmed the Board’s finding that the appellant failed to nonfrivolously allege that the discrete agency actions violated section 4311(b), USERRA’s anti-retaliation provision. a. The anti-retaliation statute is limited to barring acts of discrimination in employment and adverse employment actions. b. The Blackberry incident did not constitute an act of discrimination in employment because it did not deny him a benefit that inures to him by virtue of his employment with the agency. Nor was it an adverse employment action. c. The OPR investigation did not constitute an act of discrimination in employment or an adverse employment action where it did not relate directly to the appellant’s employment with the DEA and had no apparent effect on his employment with the DEA. 4. The Board did not address the appellant’s claim that the agency’s creation of a hostile work environment was due to retaliation under section 4311(b). The Court granted the Board’s request to remand the case to allow the Board to address that issue in the first instance. NONPRECEDENTIAL: Swartwoudt v. Department of Homeland Security, 2016-2724 (Jun. 1, 2017) (affirming the Board’s decision to sustain the appellant’s removal for inappropriate conduct and deny his affirmative defense of whistleblower reprisal). MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
03-23-2023	2023 MSPB 14	Mary Abbott	https://www.mspb.gov/decisions/precedential/ABBOTT_MARY_A_DC_0752_12_0366_X_1_OPINION_AND_ORDER_2014322.pdf	United States Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 14 Docket Nos. DC-0752-12-0366-X-1 DC-0752-12-0366-X-2 Mary A. Abbott, Appellant, v. United States Postal Service, Agency. March 23, 2023 Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant. Jasmin A. Dabney, Landover, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 This compliance proceeding was initiated by the appellant’s February 21 and October 17, 2017 petitions for enforcement of the Board’s December 20, 2016 Final Order. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12- 0366-B-1, Final Order (Dec. 20, 2016) (B-1 Final Order); Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-C-1, Compliance File (C-1 CF), Tab 1; Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-C-2, Compliance File (C-2 CF), Tab 1. On July 27, 2017, the administrative judge issued the first of two compliance initial decisions finding the agency not in 2 compliance with the Board’s order.1 C-1 CF, Tab 11, Compliance Initial Decision (C-1 CID). On April 27, 2018, the administrative judge issued the second compliance initial decision, again finding the agency not in compliance with the Board’s order. C-2 CF, Tab 10, Compliance Initial Decision (C-2 CID). ¶2 For the reasons discussed below, we REOPEN these cases on our motion under 5 C.F.R. § 1201.118 and MODIFY the compliance initial decisions to find that the appellant is not entitled to back pay for the period following her disability retirement. In addition, we now find the agency in compliance and DISMISS the petitions for enforcement. BACKGROUND The Appellant’s Suspension Appeal ¶3 The appellant was employed as an EAS-17 supervisor for the agency in Newport News, Virginia. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-I-1, Initial Appeal File (IAF), Tab 1 at 1. On January 6, 2012, the agency proposed placing the appellant on enforced leave, claiming there was no available work within her medical restrictions. IAF, Tab 8 at 61. On February 6, 2012, the agency issued a final decision effecting the enforced leave action against her, commencing February 8, 2012. Id. at 17. On February 9, 2012, the appellant appealed the agency’s enforced leave action to the Board. IAF, Tab 1. She argued that she was able to perform the essential functions of her position despite her medical restrictions and that the agency’s refusal to allow her to return to work constituted disability discrimination. IAF, Tab 12 at 2-5. 1 Due to administrative error, following the issuance of the first compliance initial decision, the appellant’s first petition for enforcement was not immediately referred to the Office of General Counsel to obtain compliance. Because the subject matter of the appellant’s first and second petitions for enforcement are substantially similar, we hereby JOIN the two petitions for enforcement. 5 C.F.R. § 1201.36(a)(2). 3 ¶4 On or about February 7, 2012, the appellant applied for disability retirement with the Office of Personnel Management (OPM). IAF, Tab 27 at 17. In April 2012, OPM prepaid to the appellant the sum of $4,487.00 as part of her disability retirement annuity. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-X-1, Compliance Referral File (CRF), Tab 6 at 6. On June 4, 2012, OPM granted the appellant’s disability retirement application, which terminated the appellant’s employment. IAF, Tab 27 at 38. ¶5 On June 23, 2014, the Board issued an opinion holding that the agency’s action constituted an enforced leave constructive suspension within the Board’s jurisdiction and remanded the appeal to the administrative judge for adjudication on the merits. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 10-11 (2014). On March 22, 2016, following remand, the administrative judge affirmed the agency’s enforced leave constructive suspension and found that the appellant failed to prove her affirmative defense of disability discrimination. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-B-1, Remand File, Tab 10, Remand Initial Decision. The appellant petitioned for review. ¶6 On December 20, 2016, the Board issued a nonprecedential final order reversing the agency’s suspension action. B-1 Final Order at 1-12. The Board found that the agency failed to prove by preponderant evidence that the appellant was unable to perform the essential functions of her position due to her medical restrictions. Id. at 10. However, the Board affirmed the administrative judge’s finding that the appellant failed to establish her affirmative defense of disability discrimination because the record supported the administrative judge’s conclusion that the agency sufficiently attempted to reasonably accommodate the appellant’s disability prior to the commencement of her disability retirement.2 2 On May 18, 2017, the Equal Employment Opportunity Commission issued a decision concurring with the Board’s finding on the appellant’s disability claim. Abbott v. U.S. 4 Id. at ¶¶ 21-22. Based on its findings, the Board ordered the agency to cancel its suspension action and to pay the appellant the correct amount of back pay, with interest, and provide other benefits as appropriate. Id. at ¶¶ 23-25. The Board’s order did not specify the appropriate time period for the back pay award. The Appellant’s First Petition for Enforcement ¶7 On February 21, 2017, the appellant filed her first petition for enforcement with the Board. C-1 CF, Tab 1. The appellant argued in her petition that the agency had not cancelled its suspension action, nor had it paid the appellant any of the back pay or other benefits she was owed. Id. at 4-5. On March 10, 2017, the agency responded to the petition for enforcement, arguing that the appellant’s choice to go on disability retirement obviated the need to reverse the enforced leave constructive suspension. C-1 CF, Tab 3 at 4-5. The agency further stated that it had not yet paid the appellant her back pay because it was waiting for additional data from OPM. Id. at 5. On March 15, 2017, the appellant replied to the agency’s response, arguing that her back pay should continue past the date her disability retirement commenced. C-1 CF, Tab 4 at 6-11. ¶8 On July 27, 2017, the administrative judge issued a compliance initial decision finding the agency not in compliance. C-1 CID at 2. The administrative judge found that the agency had not taken any action to reverse the suspension. C-1 CID at 4-5. Additionally, relying on Spencer v. Department of the Navy, 82 M.S.P.R. 149, ¶ 17 (1999), the administrative judge found that the appellant’s entitlement to back pay and other benefits was not limited by OPM’s award of disability retirement benefits and thus continued beyond the date she retired. C-1 CID at 4-5. The administrative judge did not specify an end date for the back pay and other benefits. Postal Service, MSPB Docket No. DC-0752-12-0366-B-1, Remand Petition for Review File, Tab 10. 5 The Appellant’s Second Petition for Enforcement ¶9 On October 17, 2017, the appellant filed a second petition for enforcement. C-2 CF, Tab 1. The appellant alleged that, after the issuance of the July 27, 2017 compliance initial decision, she received back pay from the agency purportedly covering the time period of February 8, 2012 (when her suspension began) to June 4, 2012 (the effective date of her disability retirement), but reasserted her position that the back pay period should continue past June 4, 2012. Id. at 5. The appellant also repeated her argument that the agency had not yet taken any steps to cancel her suspension. Id. at 6. On January 30, 2018, the agency responded to the second petition for enforcement. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-A-2, Attorney Fee File, Tab 10.3 The agency stated in an unsworn statement that the enforced leave letter which created the appellant’s suspension had been deleted from her electronic Official Personnel File. Id. at 4-5. Regarding the back pay, the agency argued that paying back pay beyond the disability retirement date would not be appropriate unless the appellant had filed an involuntary retirement appeal, which she had not done. Id. at 6-7. Moreover, the agency argued that the appellant had not shown she was ready, willing, and able to work at any time following the date of her disability retirement. Id. at 7-9. On February 6, 2018, the appellant replied to the agency’s response. C-2 CF, Tab 9. The appellant repeated her argument that the disability retirement award should not limit her back pay award and further argued that, in any event, she was ready, willing, and able to return to work. Id. at 8-15. The appellant also argued that the agency still had not provided any proof that it cancelled her suspension. Id. at 5-7. 3 It appears that, due to administrative error by the agency, the agency’s response to the acknowledgment order was inadvertently filed in a separate proceeding related to the appellant’s petition for attorney fees. 6 ¶10 On April 27, 2018, the administrative judge issued an initial decision on the second petition for enforcement and again found the agency not in compliance. C-2 CID at 2. The administrative judge found that the agency still had not provided any evidence that it cancelled the appellant’s suspension. C-2 CID at 6. With respect to the back pay, the administrative judge found that the agency failed to account for any interest owed on the back pay and also repeated her prior finding that the disability retirement award should have no impact on the appellant’s back pay award under Spencer. Id. Neither party filed a petition for review with the Board. The Joined Enforcement Proceedings Before the Board ¶11 On June 8, 2018, the Board issued an acknowledgment order in furtherance of obtaining compliance with respect to both the first and second compliance initial decisions. CRF, Tab 1; see 5 C.F.R. § 1201.183(b)-(c). ¶12 On June 23, 2018, the agency submitted a pleading which declared under penalty of perjury that the letter effecting the appellant’s suspension was removed from the appellant’s personnel file in July 2017. CRF, Tab 2 at 4-5. On August 8, 2018, the agency submitted a supplemental response which provided a narrative explanation of its back pay award, along with evidence that interest was paid on the back pay. CRF, Tab 6 at 4-27. The agency also reiterated its belief that the back pay should not continue past the date of the appellant’s disability retirement (June 4, 2012). Id. at 8-11. ¶13 On August 22, 2018, the appellant replied to the agency’s supplemental response. CRF, Tab 7. The appellant repeated her argument that her back pay award should not be limited by her disability retirement award. Id. at 7-24. The appellant further claimed that the funds the agency paid to the appellant were both inaccurate and in need of further explanation. Id. at 24. 7 ANALYSIS ¶14 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. House v. Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325, ¶ 5 (2010). ¶15 The agency’s outstanding compliance issues were its obligations to: (1) cancel the suspension action; and (2) pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service regulations. The agency has submitted multiple pleadings in its ongoing attempts to reach full compliance. The appellant has raised objections to the agency’s efforts to reach compliance on each requirement, which will be addressed in turn below. Cancellation of Suspension ¶16 The appellant argues that the agency has not provided evidence that it cancelled the suspension action. CRF, Tab 7 at 5-7. We disagree. The agency’s sworn statement that the letter which created the appellant’s suspension has been removed from her personnel file is sufficient to demonstrate compliance. CRF, Tab 2 at 4-5. The appellant’s suspension was an enforced leave constructive suspension, rather than a traditional agency-initiated suspension, meaning that the documentation reflecting that suspension would be the letter forcing her to take leave. The removal of that letter from her personnel file effectively cancelled the 8 enforced leave constructive suspension. Accordingly, we find that the agency is now in compliance with respect to the cancellation requirement. Back Pay ¶17 The appellant argues that the amount of back pay paid by the agency is incorrect, in terms of the accuracy of the amount actually paid and the scope of the award. CRF, Tab 7 at 7-24. As explained below, we find the agency to be in compliance in both aspects. Back Pay Scope ¶18 The parties’ primary disagreement pertains to the proper termination date of the back pay period. The appellant maintains that the back pay period should not be cut off by her retirement and should instead continue through the present, despite the fact that she retired. The agency argues that the appellant’s right to back pay should end on the date her disability retirement commenced. In both the first and second compliance initial decisions, the administrative judge agreed with the appellant, relying on Spencer. C-1 CID at 4-5; C-2 CID at 6-7. Upon further review of the parties’ submissions, we disagree with the administrative judge’s ruling and modify the compliance initial decisions to hold that the back pay period ends on the date the appellant retired, June 4, 2012. ¶19 We held in Spencer that the appellant’s disability retirement award did not preclude a back pay award stemming from a reversed removal decision. Spencer, 82 M.S.P.R. 149, ¶ 17. This was because, when the removal decision was reversed, the appellant was reinstated on the employment rolls and, as a result, OPM retroactively rescinded its award of disability retirement benefits. Id. The appellant now argues that this holding should be extended to her cancelled suspension. But the appellant in this case is not in the same posture as the appellant in Spencer. She was not removed, nor did she appeal—let alone obtain a reversal of—her retirement, and thus she remains on disability retirement. Applying Spencer in this manner would be beyond the bounds of the Board’s 9 authority. The Board’s authority under the Back Pay Act is limited to granting back pay for the personnel action that was corrected; here, that was the suspension. See 5 U.S.C. § 5596(b)(1)(A). To extend the back pay period beyond her disability retirement date would be to grant back pay for the termination of her employment, i.e., for a removal or constructive removal. Because the appellant did not appeal her retirement as a constructive removal, the Board is without authority to grant back pay beyond the reversed suspension. Thus, the appellant’s back pay under this appeal cannot extend beyond the date of her disability retirement. ¶20 Before the administrative judge, the appellant argued that Smith v. Department of the Army, 458 F.3d 1359 (Fed. Cir. 2006), allowed the Board to grant back pay for an unappealed personnel action. The Federal Circuit held in Smith that the Board and the Equal Employment Opportunity Commission’s (EEOC) finding that the petitioner was subjected to illegal disability discrimination required that the Board award damages not just for the personnel action at issue, but also for the discrimination. Id. at 1365-70. The Federal Circuit further found that, because the illegal discrimination directly led to a separate personnel action that was never appealed to the Board, the Board was empowered by Title VII to order back pay for that separate personnel action in order to grant relief for the discrimination, even though that personnel action was not appealed. Id. Here, Smith does not apply because both the Board and the EEOC expressly found no discrimination by the agency. As such, the Board’s authority here is limited to remedying only the actual personnel action appealed.4 4 Because we are not addressing the unappealed personnel action, we do not reach the agency’s contention that the appellant was not ready, willing, and able to work. 10 Paid Back Pay Funds ¶21 Finally, with respect to the actual amount of back pay paid by the agency, we find the agency in compliance. The agency’s documentation shows its calculations regarding salary, benefits, deductions, and interest are all accurate for the back pay period approved in the preceding section. The appellant claims that the agency improperly deducted $117.46 from her back pay for retirement, but did not add to her retirement or Thrift Savings Plan (TSP). CRF, Tab 7 at 24. This argument appears to be based on a misunderstanding of the retirement deduction. The agency’s withholding of the $117.46 was not for the appellant’s TSP contribution—it was the 0.8% retirement deduction required of all Federal employees hired prior to December 31, 2012. See 5 U.S.C. § 8422(a)(3)(A). As such, the agency’s withholding of these funds was proper. ¶22 The appellant is similarly mistaken with respect to the $4,487.00 withheld from her back pay. The appellant interprets the agency’s narrative statement to mean that it paid the appellant these funds. However, the agency’s statement indicates that the appellant was paid this amount by OPM in 2012 as a prepayment on her disability retirement award. CRF, Tab 6 at 6. As a result, the agency was required by regulation to pay those funds back to OPM to avoid her gaining a windfall. Id.; see 5 C.F.R. 550.805(e). As the appellant has not in any way disputed the agency’s statement that she originally received those funds from OPM, we find the withholding to be appropriate. ¶23 Regarding the interest owed on the back pay, the agency’s documentation demonstrates that it paid the appellant the correct amount of interest. The interest accounted for all gross back pay owed to her, minus the funds attributed to her OPM repayment and her terminal leave payment.5 CRF, Tab 6 at 19-27. 5 Terminal leave payments are not eligible for interest under the Back Pay Act. See 5 U.S.C. § 5596(b)(2)(A); see also Athey v. United States, 123 Fed. Cl. 42, 60-61 (2015), aff’d, 908 F.3d 696 (Fed. Cir. 2018). 11 Consequently, the agency has demonstrated that it is in full compliance regarding the interest owed to the appellant. ¶24 In light of the foregoing, because the agency’s combined submissions demonstrate that the agency has provided the appellant back pay and benefits for the period of her suspension through the date of her disability retirement, we find that the agency has now reached full compliance. Accordingly, the Board finds that the agency is in compliance and dismisses the petitions for enforcement. This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code of Federal Regulations, section 1201.183(b) (5 C.F.R. § 1201.183(c)(1)). 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. NOTICE OF APPEAL RIGHTS6 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). 6 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 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: 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. 13 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 14 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 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 15 of appeals of competent jurisdiction.7 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. 7 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. 16 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/ABBOTT_MARY_A_DC_0752_12_0366_X_1_OPINION_AND_ORDER_2014322.pdf
03-20-2023	2023 MSPB 12	Aimee Karnes	https://www.mspb.gov/decisions/precedential/KARNES_AIMEE_DA_1221_21_0009_W_1_OPINION_AND_ORDER_2012831.pdf	Department of Justice	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 12 Docket No. DA-1221-21-0009-W-1 Aimee Karnes, Appellant, v. Department of Justice, Agency. March 20, 2023 Lawrence Berger, Esquire, Glen Cove, New York, for the appellant. Sean Lee, Washington, D.C., for the agency. Susan E. Gibson, Arlington, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which granted the appellant’s request for corrective action and ordered her reassignment to her former position. For the reasons set forth below, we DENY the petition for review, MODIFY the administrative judge’s analysis of the factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), but agree with her ultimate conclusion, and otherwise AFFIRM the initial decision. 2 BACKGROUND ¶2 The appellant was formerly employed as a GS-13 Administrative Officer at the U.S. Marshal Service’s Eastern District of Oklahoma (EDOK). Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 8. In July and August 2019, she disclosed to the agency’s Sex Offenses Investigation Coordinator that her first-level supervisor improperly sold Government property for scrap metal and used the money for a coffee and water fund, and had fabricated timecards by certifying that he was on duty during periods that he was absent without corresponding leave. IAF, Tab 7 at 17-18, 25-34. The Investigation Coordinator contacted the Office of Special Counsel (OSC) on the appellant’s behalf, and the appellant later filed an anonymous OSC complaint regarding the same matters. Id. at 17-18. OSC subsequently contacted the agency, and the agency conducted an internal affairs (IA) review into the appellant’s claims. Id. ¶3 Following the IA investigation, the Deputy Director of the U.S. Marshal Service assembled a District Assessment Team (DAT) and sent the team to EDOK to conduct interviews regarding the work climate in the EDOK office, with the purpose of identifying any underlying issues that may have been impeding the agency’s mission in the district. IAF, Tab 8 at 11; Hearing Transcript (HT) at 128-32 (testimony of the Deputy Director), 200 (testimony of a DAT member). The DAT members interviewed all employees in EDOK and produced a written report of conclusions and recommendations. IAF, Tab 8 at 11-16. The report concluded, among other things, that the district was divided between two “factions” of employees, one of which was aligned with the appellant, and the other of which was aligned with the appellant’s first-level supervisor. Id. at 12. The report also recommended, among other things, that both the appellant and the Investigation Coordinator who contacted OSC on the appellant’s behalf be reassigned to positions in another district. Id. at 16. The Deputy Director reviewed the DAT report and issued the appellant a management directed reassignment (MDR) from her position in EDOK to a Budget Analyst position in 3 Arlington, Virginia. IAF, Tab 8 at 9-10; HT at 123 (testimony of the Deputy Director). ¶4 The appellant accepted the MDR under protest, and on May 13, 2020, she filed an OSC complaint alleging that she was reassigned in retaliation for her prior complaint to OSC disclosing wrongdoing by her supervisor. IAF, Tab 7 at 17-18, 25-34, Tab 8 at 9-10. OSC issued a close-out letter informing the appellant of her right to seek corrective action with the Board, IAF, Tab 1 at 7-8, and the appellant timely filed the instant individual right of action (IRA) appeal, id. at 1-6. ¶5 After holding the appellant’s requested hearing, IAF, Tab 27, the administrative judge issued an initial decision granting her request for corrective action, IAF, Tab 31, Initial Decision (ID) at 1, 13. The administrative judge found that the appellant exhausted her administrative remedy regarding her May 2020 OSC complaint and that she was subjected to a personnel action when she was issued the MDR. ID at 8; see 5 U.S.C. § 2302(a)(2)(A)(iv) (identifying a reassignment as personnel action for the purposes of an IRA appeal). The administrative judge further concluded that the appellant proved by preponderant evidence that her OSC complaint was a contributing factor in the agency’s decision to issue the MDR. ID at 8-10. Having found that the appellant established her prima facie case of whistleblower reprisal, the administrative judge considered whether the agency showed by clear and convincing evidence that it would have taken the same personnel action in the absence of the appellant’s protected activity and concluded that it did not. ID at 10-12. Because the agency failed to meet its burden, the administrative judge granted the appellant’s request for corrective action and ordered the agency to reassign the appellant to her former position. ID at 13. 4 ¶6 The agency has filed a petition for review of the initial decision.1 Petition for Review (PFR) File, Tab 1. The appellant has filed a response in opposition to the petition for review. PFR File, Tab 7. ANALYSIS ¶7 The parties do not dispute on review the administrative judge’s finding that the Board has jurisdiction over the appeal, and we discern no basis to disturb that finding. ID at 1, 8 n.4. On review, the agency argues that the administrative judge erred by improperly relying on speculation as the basis for her finding that the agency officials who effected the MDR had constructive knowledge of the appellant’s OSC complaint, and by concluding that the appellant’s protected activity was one of the factors that influenced the agency’s decision to issue the MDR. PFR File, Tab 1 at 11-14, 16-18. The agency further argues that the Board cases the administrative judge relied on in concluding that the relevant management officials had constructive knowledge of the appellant’s protected activity are inapposite or factually distinguishable. Id. at 14-16. Finally, the agency argues that the administrative judge erroneously concluded that it failed to prove by clear and convincing evidence that it would have reassigned the appellant in the absence of her protected activity. Id. at 18-22. Specifically, it argues that the administrative judge discounted the testimony and findings from the DAT members indicating that the appellant was a significant source of conflict in EDOK and that was the reason that she was reassigned, and not because of her protected activity. Id. 1 The agency also certified that it has provided the appellant with interim relief in accordance with 5 U.S.C. §§ 7701(b)(2)(A)-(B) by providing her with pay and benefits as of the date of the initial decision. PFR File, Tab 1 at 22. The appellant has not challenged the agency’s certification of interim relief. 5 The administrative judge did not err in finding that the appellant established that her protected activity was a contributing factor in the MDR decision. ¶8 To prevail on the merits of an IRA appeal, an appellant must meet her initial burden of proving by preponderant evidence that (1) she made a protected 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 as defined by 5 U.S.C. § 2302(a). Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The appellant “may demonstrate that the disclosure or protected activity was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—(A) the official taking the personnel action knew of the disclosure or protected activity; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.” 5 U.S.C. § 1221(e)(1)(A), (B). ¶9 As an initial matter, the agency has not challenged the administrative judge’s findings that the appellant engaged in protected activity by filing a complaint with OSC’s Disclosure Unit in 2019, and we find no reason to disturb that finding. ID at 8; see Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 62 (clarifying that, under 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OSC is protected, regardless of the content). ¶10 In determining that the appellant established that her protected activity was a contributing factor in the decision to issue the MDR, the administrative judge acknowledged that the appellant’s OSC complaint was anonymous and that there was no evidence that the members of the DAT or the Deputy Director had firsthand knowledge of her protected activity. ID at 8-9. She nevertheless concluded that there was sufficient evidence demonstrating that the appellant’s first-level supervisor believed that the appellant filed the OSC complaint. In so 6 finding, the administrative judge relied on testimony from the U.S. Marshal for EDOK, who stated that he believed that the appellant’s supervisor believed that the appellant submitted the complaint. The administrative judge also relied on the appellant’s testimony that her supervisor would have surmised that she was the source of the complaint based on the fact that she was the timekeeper and would have known about the fabricated timecards, and that she had repeatedly complained about the supervisor’s stated intention of selling the Government property for scrap metal. ID at 8-9. ¶11 The administrative judge determined that the supervisor, armed with the belief that the appellant filed the OSC complaint, influenced the DAT’s reassignment recommendation by specifically suggesting that the appellant be reassigned during his interview with the DAT, the DAT members then considered that suggestion alongside the other information obtained from the DAT interviews, and the Deputy Director accepted the DAT’s recommendation that was influenced by the supervisor’s suggestion. ID at 9-10. Given the close proximity in time between the IA investigation and the appellant’s OSC complaint, the supervisor’s recommendation to the DAT interviewers that the appellant be reassigned, and the issuance of the MDR, the administrative judge concluded that the appellant proved by preponderant evidence that her protected activity was a contributing factor in the agency’s reassignment decision. ID at 9-10. ¶12 On review, the agency argues that the administrative judge’s finding that the Deputy Director and the DAT members had constructive knowledge of the appellant’s OSC complaint was based on the appellant’s mere speculation that her first-level supervisor could have deduced that she made the anonymous complaint to OSC, and that there was no credible evidence that the supervisor was ever informed that it was the appellant who made the anonymous disclosure to OSC. PFR File, Tab 1 at 12-13. 7 ¶13 We find no error in the administrative judge’s finding that the appellant established by preponderant evidence that her protected activity of filing a complaint with OSC was a contributing factor in the agency’s decision to issue the MDR. The Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has sufficiently sound reasons for doing so. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may overturn an administrative judge’s demeanor-based credibility determinations when the judge’s findings are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). Here, although the administrative judge did not make specific demeanor-based credibility determinations in the initial decision, she did hear live testimony, and her decision to credit specific testimony must be deemed to be at least implicitly based upon witness demeanor. See Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). ¶14 Based on her review of the record and the hearing testimony, the administrative judge determined that it was more likely than not that the appellant’s supervisor believed the appellant made the disclosures that formed the basis for the IA investigation and the anonymous OSC complaint, based on testimony from the appellant and the U.S. Marshal for EDOK. ID at 8-9; HT at 53-54 (testimony of the appellant), 344-47 (testimony of U.S. Marshal for EDOK). She further concluded that the appellant’s first-level supervisor had a motive to retaliate against the appellant given that he was the subject of her complaint, and the supervisor had made known his general disdain for employee complaints and the numerous investigations that they spawned. ID at 9, 12; IAF, Tab 26 at 29-31. Thus, the administrative judge found that the appellant proved contributing factor by preponderant evidence. ID at 10. 8 ¶15 Regarding the agency’s argument that the appellant’s assertion that her supervisor believed that she made the disclosure to OSC amounted to little more than mere speculation and the administrative judge erred by relying on that speculation, this represents an oversimplification of the administrative judge’s findings in this regard. As the agency correctly notes, the appellant admitted that she did not have direct information that her supervisor learned of her disclosures or her OSC complaint. HT at 66-70 (testimony of the appellant). However, she also testified that her supervisor knew that she was the only individual who could have made the disclosure based on the unique information she possessed, given her role as the designated timekeeper for the 12-person office, and the fact that she had previously expressed concern to her supervisor regarding his intention to sell the surplus property for scrap, one of the subjects of her OSC disclosure. Id. at 53-54, 69-71 (testimony of the appellant). ¶16 The U.S. Marshal for EDOK echoed those beliefs in his testimony, stating that although he did not specifically recall directly discussing whether the appellant made the disclosure to OSC with the appellant’s supervisor, he would have found it “hard to believe” that the topic did not come up, noting that the appellant’s role as the timekeeper for the district would have given her access to the supervisor’s time records used in the disclosure, and he observed that there was a consistent source of conflict between the appellant and the supervisor. HT at 345-47 (testimony of U.S. Marshal for EDOK). ¶17 Although the agency appears to suggest that any influence the appellant’s supervisor may have had on the DAT’s recommendation to reassign the appellant was too speculative or attenuated to constitute a contributing factor, we disagree. PFR File, Tab 1 at 14-18. The administrative judge acknowledged testimony from the DAT members stating that the supervisor did not influence their recommendation, but nevertheless noted that the DAT members conceded that they based their reassignment recommendation, in part, on the supervisor’s testimony during the DAT interview, which included his recommendation that the 9 appellant should be reassigned. ID at 9; HT at 225-26 (testimony of a DAT member), 275-76 (testimony of a DAT member). She further concluded that the Deputy Director who ultimately issued the MDR “unreservedly” accepted the DAT’s recommendation that was influenced by the supervisor, citing the Deputy Director’s testimony that he “always follow[s]” the DAT’s recommendation unless there was a compelling reason not to, such as if it violated a policy or was inappropriate, and that he saw no reason to deviate from the DAT’s recommendation that the appellant be reassigned. ID at 6, 10; HT at 123, 129-30, 151, 159, 161-62 (testimony of the Deputy Director and MDR deciding official). ¶18 The agency also argues that the cases the administrative judge relied on to support her finding that constructive knowledge could be established in such a circumstance were distinguishable. PFR File, Tab 1 at 14-16. Specifically, regarding the administrative judge’s reliance on Aquino v. Department of Homeland Security, 121 M.S.P.R. 35 (2014), the agency argues that Aquino is distinguishable because it concerned a circumstance in which an individual with actual knowledge of the disclosure influenced the official taking the retaliatory personnel action, while here, the appellant’s supervisor—i.e., the agency official who influenced the official taking the retaliatory personnel action—only possessed constructive knowledge of the appellant’s disclosure. Id. at 14-15. Regarding the administrative judge’s reliance on Marchese v. Department of the Navy, 65 M.S.P.R. 104 (1994), for the proposition that contributing factor could be established by showing that an individual with either actual or constructive knowledge of a disclosure influenced the official taking the contested personnel action, the agency argues that the language in Marchese addressing constructive knowledge was merely “dicta” because the influencing official in that case had actual knowledge of the disclosure. PFR File, Tab 1 at 15-16. Finally, regarding the U.S. Supreme Court’s decision in Staub v. Proctor Hospital, 562 U.S. 411 (2011), which the administrative judge cited for the proposition that an employer could be held liable for taking a personnel action when a supervisor’s retaliatory 10 animus was the proximate cause of an adverse employment action, even if the retaliating supervisor did not make the ultimate decision on the employment action, the agency states only that the decision is “clearly inapposite” on its face. PFR File, Tab 1 at 16. ¶19 The Supreme Court has adopted the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences another agency official who is unaware of the improper animus when implementing a personnel action. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 11 (2012) (citing Staub, 562 U.S. 411). The Board has explicitly adopted the approach set forth in Staub in the context of IRA appeals. See Aquino, 121 M.S.P.R. 35, ¶¶ 5, 19-24. Under the cat’s paw theory, an appellant can establish that a prohibited animus toward a whistleblower was a contributing factor in a personnel action by showing by preponderant evidence that an individual with knowledge of the protected disclosure influenced the officials who are accused of taking the personnel actions. Id., ¶ 23. ¶20 The respondent in a corrective action appeal is the agency, not its individual officials; therefore, a lack of actual knowledge by a single official is not dispositive to the issue of contributing factor. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014); Dorney, 117 M.S.P.R. 480, ¶ 12. Additionally, the Board has specifically rejected the agency’s argument that the appellant must prove that the influencing official had actual knowledge of the disclosure in order to establish contributing factor and has instead made clear that contributing factor can be established by a showing that the influencing official had actual or constructive knowledge of the disclosure, and that official influenced the official taking the retaliatory action. See McClellan v. Department of Defense, 53 M.S.P.R. 139, 146-47 (1992) (concluding that reprisal could be shown by establishing that a person with only constructive knowledge, as opposed to actual knowledge, of an appellant’s disclosure influenced the official taking the action 11 against the appellant, in the context of an IRA appeal) (citing Frazier v. Merit Systems Protection Board, 672 F.2d 150, 166-68 (D.C. Cir. 1982)). ¶21 Finally, although not identified by the administrative judge, it is noteworthy that the supervisor’s specific recommendations that both the appellant and the Sex Offenses Investigation Coordinator be reassigned out of the district were ultimately adopted by the DAT and incorporated into its report of recommendations to the Deputy Director. Compare IAF, Tab 8 at 16, with IAF, Tab 26 at 30. As the administrative judge observed, a number of employees suggested to the DAT that the appellant’s reassignment from the district would improve morale, but no employee other than the appellant’s supervisor also recommended that the Investigation Coordinator be reassigned. IAF, Tab 26 at 20-36. The fact that the supervisor’s specific recommendations to reassign the appellant and the Investigation Coordinator were ultimately incorporated into the DAT’s recommendation also bolsters the administrative judge’s finding that the DAT was influenced by the supervisor’s recommendation. ¶22 In summary, we find no error in the administrative judge’s finding that, based on the record evidence and the hearing testimony, the following facts were established by preponderant evidence: the appellant’s first-level supervisor believed the appellant filed the OSC complaint that launched the IA investigation; the supervisor, motivated by retaliatory animus, recommended that the appellant be reassigned during his DAT interview; the DAT members were influenced by the supervisor’s recommendation and took it into account in recommending the appellant’s reassignment; and the Deputy Director “unreservedly” accepted the DAT’s recommendation that was tainted by the supervisor’s retaliatory motive in making his decision to issue the appellant the MDR. Based on the foregoing, the administrative judge reasonably concluded that the appellant established that her protected activity of filing a complaint to OSC was a contributing factor in the agency’s decision to issue the MDR. 12 We disagree with the administrative judge’s finding that the first and third Carr factors cut against the agency, but still conclude that the agency failed to establish by clear and convincing evidence that it would have reassigned the appellant in the absence of her protected activity. ¶23 Even if an appellant establishes that she made a protected disclosure or engaged in a protected activity that was a contributing factor to the agency’s personnel action, the Board will not order corrective action if the agency can show by clear and convincing evidence that it would have taken the action absent the disclosure or activity. 5 U.S.C. § 1221(e)(2); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than the “preponderance of the evidence” standard. Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4(e). ¶24 In determining whether an agency has met this burden, the Board will consider all of the relevant factors, including the following (“Carr factors”): (1) the strength of the agency’s evidence in support of the action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr, 185 F.3d at 1323.2 The Board does not view these factors as discrete elements, each of which the agency must prove by clear and 2 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 13 convincing evidence. Rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Lu, 122 M.S.P.R. 335, ¶ 7. The Board considers all of the evidence presented, including evidence that detracts from the conclusion that the agency met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). ¶25 On review, the agency argues that the administrative judge improperly discounted its evidence demonstrating that it had strong reasons to support its decision to reassign the appellant unrelated to her whistleblowing activity under the first Carr factor. PFR File, Tab 1 at 18-22. Specifically, the agency argues that the administrative judge ignored the significant evidence obtained by the DAT during the climate assessment reflecting that the appellant played a central role in the turmoil within the EDOK and so her transfer was justified. Id. at 18-19. The agency points to notes and testimony from the DAT members reflecting that several employees in EDOK expressly stated that the appellant was a problem in the office and that she should be removed from the district. Id. at 19. ¶26 We disagree with the administrative judge’s finding that the agency did not present strong reasons for its decision to reassign the appellant and with her implicit finding that the first Carr factor weighs against the agency. ID at 10-12. Instead, for reasons that follow, we conclude that the agency provided a valid explanation for its decision to reassign the appellant and so the first Carr factor weighs in the agency’s favor. We also disagree with the administrative judge’s finding that because the agency failed to produce evidence regarding its treatment of similarly situated non-whistleblowers, the third Carr factor cuts against the agency. However, because we conclude that the second Carr factor strongly weighs against the agency, we ultimately agree that the agency failed to prove by clear and convincing evidence that it would have reassigned the appellant absent her protected activity. 14 The administrative judge improperly discounted the strength of the agency’s evidence in support of the reassignment action under the first Carr factor. ¶27 Regarding the first Carr factor, addressing the administrative judge’s finding discounting the opinions of two of the employees that favored the appellant’s removal from the district based on the fact that they were also the subjects of her disclosures and thus had a motive to retaliate against the appellant, the agency points to testimony from the DAT members stating that their reassignment decision was not based on a simple headcount and was instead based on the “totality of the report” and their discussions and interviews with all of the district employees. PFR File, Tab 1 at 20-21. The agency similarly argues that the administrative judge unreasonably rejected a third employee’s statements to the DAT that were supportive of the appellant’s first-level supervisor and critical of the appellant on the grounds that the employee was new and was a probationer. Id. at 20-21. Summarizing, the agency argues that the DAT’s recommendation to reassign the appellant was based on an independent, unbiased analysis of the information obtained during the climate assessment, and so the administrative judge erred in concluding that the agency did not have strong reasons to support the reassignment decision and the first Carr factor did not favor the agency. Id. at 21. ¶28 In finding that the agency failed to present strong evidence in support of the reassignment decision, the administrative judge determined that the evidence the DAT relied on to justify its reassignment recommendation was weak. ID at 11-13. Specifically, the administrative judge noted that although the DAT determined that four employees supported the appellant’s “faction” in the office while six employees supported the appellant’s supervisor’s faction, the testimony of two of the six employees that supported the supervisor could be discounted because they were implicated in the same scrap metal sale investigation as the appellant’s supervisor and they were also the subject of the appellant’s negative 15 attention, so they had their own motives to retaliate against the appellant. ID at 11-12. Having reduced the inter-office split between the appellant and her supervisor to four employees supporting each faction, the administrative judge concluded that the “big impact” the DAT attributed to the greater number of employees supporting the appellant’s supervisor’s faction over the appellant’s faction was blunted, detracting from the strength of the DAT’s recommendation. ID at 12. ¶29 However, this is an overly simplistic approach to assessing the strength of the agency’s evidence under the first Carr factor. As the agency notes on review, although the DAT members cited the number of employees that supported each of the respective factions as playing a role in its decision to recommend the appellant’s reassignment, the DAT members also made clear that they considered all of the evidence obtained during the DAT, including their discussions and interviews with all of the EDOK employees, in making their recommendation. HT at 240-41 (testimony of a DAT member), 275 (testimony of a DAT member). The DAT members denied that the reassignment decision ultimately boiled down to a “mathematical equation” or was “strictly a numbers game,” and insisted instead that it was based on their understanding of what was occurring in the district and how the climate in the district could be improved overall. Id. ¶30 Additionally, unlike with the appellant’s first-level supervisor, there is no evidence in the record indicating that the two employees whose DAT testimony the administrative judge discounted because they were also implicated in the appellant’s disclosures were aware that the appellant engaged in protected activity, and so there is no reason to discount their DAT testimony on the basis that it was motived by retaliatory animus. IAF, Tab 8 at 11-16, Tab 26 at 7-36. Further, we agree with the agency that the administrative judge’s stated reason for discounting the DAT testimony of a third employee, his probationary status and relative newness in the district, is unpersuasive. 16 ¶31 The agency also disagrees with the administrative judge’s finding that the decision to reassign the appellant to a Budget Analyst position was “illogical” because the DAT report indicated that the appellant struggled with budget duties and lacked sufficient skills to perform in the Budget Analyst position. PFR File, Tab 1 at 18-19, 21; ID at 12. However, the DAT did not include a specific recommendation that the appellant be reassigned to a Budget Analyst position, and instead generally recommended that she be reassigned to a nonsupervisory position and moved to another district that best met the agency’s needs. IAF, Tab 8 at 16. It was the Deputy Director, with the approval of the agency Director, who ultimately recommended the reassignment to the Budget Analyst position based on input he received from the DAT and several other internal agency offices, and so additional factors other than the appellant’s prior performance as a Budget Analyst played a role in the agency’s decision to recommend her reassignment to that specific position. IAF, Tab 8 at 9-10; HT at 123-24 (testimony of the Deputy Director). ¶32 In sum, based on our review of the record evidence, we conclude that the administrative judge improperly discounted the agency’s evidence in support of its reassignment decision in concluding that the agency had not presented strong reasons for its decision to reassign the appellant and so the first Carr factor cut against the agency. Instead, we conclude that the first Carr factor weighs in the agency’s favor. The administrative judge’s finding that the second Carr factor weighs against the agency is supported by the record. ¶33 The administrative judge determined that the second Carr factor weighed against the agency, noting that the appellant’s supervisor had a strong motive to retaliate against the appellant given the nature of her disclosures and the supervisor’s comments to the DAT evidencing a general retaliatory animus toward whistleblowers, as well as the fact that the supervisor had recommended that another whistleblower, the Investigation Coordinator, also be reassigned. 17 ID at 12-13. The agency has not specifically challenged the administrative judge’s finding on this point on review. As we have found in the past, even those not directly implicated by disclosures may well be motivated to retaliate if they are responsible for the agency’s performance overall, as the criticism reflects on them in their capacities as managers and employees. Smith v. Department of the Army, 2022 MSPB 4, ¶ 28; see also Whitmore, 680 F.3d at 1371. We agree with the administrative judge’s finding that the second Carr factor strongly weighs against the agency. See Russell v. Department of Justice, 76 M.S.P.R. 317, 326 (1997) (finding that the officials involved had a strong motive to retaliate because, in pertinent part, they were the subjects of the appellant’s protected disclosures); see also Whitmore, 680 F.3d at 1371 (cautioning the Board against taking “an unduly and restrictive view of Carr factor two”). The agency failed to present any evidence regarding the third Carr factor, so this factor does not weigh in favor of the agency and is neutral. ¶34 The administrative judge also determined that the third Carr factor weighed against the agency because it presented no evidence regarding how it treated similarly situated non-whistleblowers, and the agency has not challenged this finding on review. ID at 13. We disagree with the administrative judge’s conclusion that this factor weighs against the agency and instead conclude that the lack of evidence regarding the agency’s treatment of similarly situated non-whistleblowers is a neutral factor. ¶35 The agency bears the burden of proving that it would have taken the same action in the absence of the appellant’s protected activity. Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). Because the agency bears the burden of proof, when it fails to introduce relevant comparator evidence, the third Carr factor is effectively removed from consideration, although it cannot weigh in the agency’s favor. Soto, 2022 MSPB 6, ¶ 18; see also Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Rickel v. Department of 18 the Navy, 31 F.4th 1358, 1365-66 (Fed. Cir. 2022). If the first two Carr factors either do not support a finding that the agency would have taken the same personnel action in the absence of the disclosure or protected activity, or support such a finding with respect to one of those Carr factors but not the other, the failure to present evidence of the third Carr factor may prevent the agency from carrying its overall burden. Smith, 2022 MSPB 4, ¶¶ 26-30; see also Miller v. Department of Justice, 842 F.3d 1252, 1259-63 (Fed. Cir. 2016). ¶36 Here, the agency failed to produce any comparator evidence, but it also has not identified whether any similarly situated non-whistleblower comparators exist, and there is no discussion in the record regarding the existence of potential comparators. Given the complete absence of evidence on the issue, we conclude that Carr factor 3 is removed from consideration and is a neutral factor. ¶37 After reweighing the Carr factors, we still agree with the administrative judge’s finding that the agency failed to meet its burden of proving by clear and convincing evidence that it would have reassigned the appellant absent her protected activity. Although the agency may have had valid reasons for reassigning the appellant out of the district based on her role in contributing to a tense and toxic work environment, that fact is outweighed by the significant evidence that the reassignment decision was influenced by the appellant’s first-level supervisor’s retaliatory motive. For the above-stated reasons, the agency’s petition for review is denied and the administrative judge’s initial decision ordering corrective action is affirmed. ¶38 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). ORDER ¶39 We ORDER the agency to cancel the appointment’s reassignment and return her to her former position as a GS-13 Administrative Officer, in the Eastern 19 District of Oklahoma. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶40 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. Nevertheless, it does not appear that the appellant suffered any loss of pay given the nature of the personnel action at issue in this appeal. To the extent the appellant believes that she is entitled to back pay, she may file a petition for enforcement raising the issue. ¶41 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶42 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision 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). ¶43 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and 20 Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204. In addition, the Whistleblower Protection Enhancement Act of 2012 authorized the award of compensatory damages including interest, reasonable expert witness fees, and costs, 5 U.S.C. §§ 1214(g)(2), 1221(g)(1)(A)(ii), which you may be entitled to receive. 21 If you believe you are entitled to these damages, you must file a motion for consequential damages and/or compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214(f). NOTICE OF APPEAL RIGHTS3 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 3 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. 22 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: 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. 23 (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 24 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 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.4 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). 4 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. 25 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/KARNES_AIMEE_DA_1221_21_0009_W_1_OPINION_AND_ORDER_2012831.pdf
03-16-2023	2023 MSPB 11	Arthur Fisher	https://www.mspb.gov/decisions/precedential/FISHER_ARTHUR_E_SF_0351_16_0192_I_1_OPINION_AND_ORDER_2011922.pdf	Department of the Interior	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 11 Docket No. SF-0351-16-0192-I-1 Arthur E. Fisher, Appellant, v. Department of the Interior, Agency. March 16, 2023 Arthur E. Fisher, Hailey, Idaho, pro se. Anna Roe, Portland, Oregon, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his separation pursuant to a reduction-in-force (RIF) action. After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under 5 C.F.R. § 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED by this Opinion and Order to clarify the administrative judge’s analysis of the appellant’s whistleblower reprisal affirmative defense, we AFFIRM the initial decision. 2 BACKGROUND ¶2 The appellant was a Realty Officer at the Siletz Agency within the Bureau of Indian Affairs in Siletz, Oregon. Initial Appeal File (IAF), Tab 4 at 13. On September 29, 2015, the agency notified him that his position would be abolished and he would be separated by RIF. Id. at 16-18. It informed him that the RIF was due to a decision by the agency’s Regional Director of the Northwest Region (Regional Director) to close the Siletz Agency through a reorganization. Id. at 16. The appellant’s separation was effective December 4, 2015. Id. at 13. ¶3 The appellant filed an appeal of his separation with the Board and raised affirmative defenses of age discrimination and whistleblower reprisal. IAF, Tabs 1, 29. After holding the requested hearing, the administrative judge issued an initial decision that affirmed the separation, finding that the agency invoked the RIF regulations for a legitimate reason, i.e., a reorganization resulting in the closure of the Siletz Agency, and that the agency properly applied the RIF regulations as to the appellant’s competitive level and competitive area. IAF, Tab 53, Initial Decision (ID) at 1, 3-6. The administrative judge additionally found that the appellant failed to prove his affirmative defenses. ID at 11, 19. Concerning his age discrimination claim, she found that the appellant failed to provide sufficient evidence to establish that age was a factor in his separation. ID at 7-11. Concerning his whistleblower reprisal claim, she found that the appellant failed to meet his burden of showing that he made a protected disclosure. ID at 11-15. She then found in the alternative that, if the appellant had shown that his disclosures were protected, he would have met his burden to show that they were a contributing factor in his separation because the alleged retaliating official, the Regional Director, had actual or constructive knowledge of his disclosures, and because his separation occurred less than 2 years after them. ID at 15-16. The administrative judge then determined that the agency nevertheless demonstrated by clear and convincing evidence that it would have 3 separated the appellant notwithstanding any alleged protected disclosures. ID at 16-19. ¶4 The appellant has filed a petition for review, primarily challenging the administrative judge’s findings concerning his whistleblower retaliation claim. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition to the petition for review, and the appellant has replied to the response. PFR File, Tabs 4-5. ANALYSIS The appellant failed to prove that he made a protected disclosure under 5 U.S.C. § 2302(b)(8). ¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to prevail on a prohibited personnel practice affirmative defense in a chapter 75 appeal that independently could form the basis of an individual right of action (IRA) appeal, once the agency proves its adverse action case by a preponderance of the evidence, the appellant must demonstrate by preponderant evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the disclosure or activity was a contributing factor in the adverse action. See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that, under the WPEA, an appellant may raise an affirmative defense of whistleblower retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013) (stating the foregoing proposition concerning disclosures protected by 5 U.S.C. § 2302(b)(8)). If the appellant meets this burden, then the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosure or activity. Alarid, 122 M.S.P.R. 600, ¶ 14. ¶6 Under 5 U.S.C. § 2302(b)(8), it is a prohibited personnel practice to take a personnel action because of any disclosure of information by an employee that the 4 employee reasonably believes evidences any violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. The proper test for determining whether an employee had a reasonable belief that his disclosures revealed one of the categories of misconduct listed under 5 U.S.C. § 2302(b)(8), is this: Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the Government evidence wrongdoing as defined by that statute? White v. Department of the Air Force, 95 M.S.P.R. 1, ¶¶ 27-28 (2003), aff’d, 391 F.3d 1377 (Fed. Cir. 2004); see also Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999). ¶7 Here, the administrative judge identified two alleged protected disclosures regarding the appellant’s concerns about the administration of the Grand Ronde Secretarial Election that he made to, among others, the Regional Director, the Office of Special Counsel (OSC), and his agency’s Office of Inspector General (OIG). ID at 12-13, 18-19; IAF, Tab 36 at 33-34, Tab 37 at 18-35, 59-60, 75-77, Tab 49, Hearing Compact Disc (HCD) Nos. 4-5 (testimony of the appellant). The administrative judge found, however, that the appellant failed to show that a disinterested observer could reasonably conclude that he disclosed information evidencing a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety based on the evidence adduced in this appeal. ID at 12-15. She therefore found that the appellant did not meet his burden of showing that he made a protected disclosure. ID at 15. The appellant presents no argument to challenge these findings on review, and we discern no basis to disturb them. The appellant failed to prove that his protected activity under 5 U.S.C. § 2302(b)(9)(C) was a contributing factor in his separation. ¶8 Although we agree that the appellant failed to meet his burden concerning his alleged protected disclosures under 5 U.S.C. § 2302(b)(8), we find that the 5 appellant did meet his burden of showing that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). See Alarid, 122 M.S.P.R. 600, ¶ 12. Specifically, under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity when he discloses information to the agency’s OIG or to OSC “in accordance with applicable provisions of law.” Here, the record reflects that the appellant filed complaints with OSC on May 28, 2014, IAF, Tab 37 at 28, 83, and that, when he did not receive a response from OSC, he filed copies of his OSC complaints with OIG, IAF, Tab 1 at 7 n.2, Tab 36 at 33-34. Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OIG or OSC is protected regardless of its content as long as such disclosure is made in accordance with applicable provisions of law.1 We find that the appellant’s submissions to both OSC and OIG meet that broad standard and therefore that these disclosures constitute protected activity under 5 U.S.C. § 2302(b)(9)(C). ¶9 Because the appellant established that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C), he must next establish that the protected activity was a contributing factor in his separation. See Alarid, 122 M.S.P.R. 600, ¶ 13. Although the administrative judge determined that, had the appellant established that he made protected disclosures under section 2302(b)(8), he would have met his burden of showing that the disclosures were a contributing factor in his separation, ID at 15-17, we find that the appellant fails to show that his activity under section 2302(b)(9)(C) was a contributing factor in the agency action. 1 The nature of the disclosures to OIG or OSC may be relevant at the merits stage of an IRA appeal, when an appellant must prove the contributing factor element by preponderant evidence and the agency must defend itself by providing clear and convincing evidence that it would have taken the same personnel action absent the protected activity. See Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 13 (2016) (setting forth the elements and burden of proving the merits of an IRA appeal based on a claim of reprisal for perceived activity under 5 U.S.C. § 2302(b)(9)(C)). 6 Specifically, there is nothing in the record to show that the Regional Director knew that the appellant had filed a complaint with OSC or OIG regarding his concerns about the administration of the Grand Ronde Secretarial Election prior to the Regional Director’s decision to close the Siletz Agency. Moreover, the Regional Director, whom the administrative judge found to be credible, ID at 9, testified that he did not become aware that the appellant had filed a complaint with OSC until he saw the appellant’s interrogatories in this Board appeal and that he was unaware until this appeal that the appellant had filed anything formal about his alleged whistleblowing, HCD No. 2 at 4:09-5:42 (testimony of the Regional Director). Therefore, although the administrative judge found that the appellant proved that the Regional Director had actual or constructive knowledge of his disclosures under section 2302(b)(8), we find that he has failed to show that the Regional Director knew of his protected activity under section 2302(b)(9)(C). Accordingly, we find that the appellant has not shown by preponderant evidence that his disclosures to OSC or OIG were a contributing factor in his separation. ¶10 The majority of the appellant’s arguments on review concern his challenges to the administrative judge’s alternate finding that the agency proved by clear and convincing evidence that it would have separated him in the absence of his protected activity, arguing that the closure of the Siletz Agency was a pretext for whistleblower retaliation.2 PFR File, Tab 1 at 6-15. However, because we have 2 To the extent the appellant’s challenges to the administrative judge’s findings in this regard could be construed as a challenge to the administrative judge’s determination that the agency invoked the RIF regulations for a legitimate reason, we find them unpersuasive. As the administrative judge correctly noted, an agency is accorded a great deal of discretion in making managerial decisions concerning reorganizations, see Armstrong v. International Trade Commission, 74 M.S.P.R. 349, 354 (1997), and we agree with the administrative judge’s findings that the agency established that it invoked the RIF regulations for a legitimate management reason and that the record contains no evidence that the reorganization occurred for an improper reason, ID at 3-4. 7 found that he failed to prove that his protected activity was a contributing factor in his separation by RIF, it is unnecessary to determine whether the agency proved by clear and convincing evidence that it would have taken the action at issue in the absence of his protected activity. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s findings concerning whether the agency met its clear and convincing burden. The appellant failed to prove that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D). ¶11 When the events at issue in this appeal took place, 5 U.S.C. § 2302(b)(9)(D) made it a prohibited personnel practice to take an action against an employee for “refusing to obey an order that would require the individual to violate a law.” Here, the appellant asserts that he engaged in protected activity when he refused to obey an order that would have required him to violate 25 C.F.R. part 81, which governs procedures for secretarial elections. IAF, Tab 36 at 33, Tab 37 at 32, 86. Our reviewing court held that the protection in section 2302(b)(9)(D) extended only to orders that would require the individual to take an action barred by statute. Rainey v. Merit Systems Protection Board, 824 F.3d 1359, 1361-62, 1364-65 (Fed. Cir. 2016). Thus, under the law in effect at the time the relevant events took place, the appellant’s claim that he disobeyed an order that would have required him to violate an agency regulation fell outside the scope of 5 U.S.C. § 2302(b)(9)(D). Id. ¶12 On June 14, 2017, while this matter was pending before the Board, the President signed into law the Follow the Rules Act (FTRA), which amended section 2302(b)(9)(D) by inserting after “law” the words “rule, or regulation.” Follow the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017). Therefore, under the FTRA, the appellant’s claim that he disobeyed an order that would require him to violate an agency regulation falls within the scope of 8 section 2302(b)(9)(D). Accordingly, we must determine whether the FTRA applies to events that occurred prior to its enactment. ¶13 The proper analytical framework for determining whether a new statute should be given retroactive effect was set forth by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994): When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result. ¶14 When Congress intends for statutory language to apply retroactively, it is capable of doing so very clearly. See, e.g., Presidio Components, Inc. v. American Technical Ceramics Corp., 702 F.3d 1351, 1364-65 (Fed. Cir. 2012) (giving retroactive effect to amendments enacted in 2011 in light of express statutory language applying the amendments to “all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act”). Here, the FTRA as enacted is silent regarding retroactivity.3 Thus, applying the first part of the Landgraf test, we find that Congress has not expressly prescribed the statute’s proper reach. ¶15 Turning to the second part of the Landgraf test, we find that the FTRA would operate retroactively because it would increase a party’s liability for past 3 When it was first introduced in Congress in both 2016 and 2017, the FTRA included a provision explicitly providing that it would apply only to personnel actions taken after the date of enactment. H.R. 6186, 114th Cong. (2016); H.R. 657, 115th Cong. (2017). However, that provision was removed from the version of the bill that eventually became law. FTRA; see H.R. Rep. No. 115-67, at 3-4 (2017). 9 conduct. As noted above, at the time of the appellant’s separation, it was not a prohibited personnel practice to take a personnel action against an employee for refusing to obey an order that required him to violate a rule or regulation. See Rainey, 824 F.3d at 1361-62. ¶16 There is some indication in the legislative history that Congress intended the FTRA to clarify the meaning of the original language of 5 U.S.C. § 2302(b)(9)(D), which could resolve any retroactivity concerns. See Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26 (2013).4 Specifically, the committee report accompanying the House bill that was eventually adopted by both houses of Congress and signed into law by the President states in part, “[t]he [FTRA] was introduced to clarify Congress’s original intent with respect to this provision of the Whistleblower Protection Act of 1989.” H.R. Rep. No. 115-67, at 3 (2017). However, for the reasons that follow, we find that the FTRA is not a clarification of the prior law. ¶17 First, although declarations of Congressional intent are relevant in determining whether a statutory provision is a clarification, such declarations are entitled to less weight when they appear in legislative history, rather than in the statute itself. See Cortes v. American Airlines, Inc., 177 F.3d 1272, 1284 (11th Cir. 1999). Thus, the fact that the committee report includes an expression of intent to clarify existing law is not sufficient alone to demonstrate that the FTRA is a clarification. ¶18 Additionally, we find that the Board’s decision in Day is distinguishable from the instant case. In Day, the Board held that the definition of “disclosure” 4 In his separate opinion in Day, then-Member Robbins wrote that the Board should not apply the “clarification doctrine” because that doctrine had been rejected by both the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court. Day, 119 M.S.P.R. at 602-03 (Robbins, concurring in part and dissenting in part). We assume for purposes of our analysis in this case that the Board can properly apply the “clarification doctrine.” 10 in the WPEA could be applied to pending cases without raising retroactivity concerns because it merely clarified the prior statutory language. Day, 119 M.S.P.R. 589, ¶¶ 10-26. In so holding, the Board noted that the WPEA itself included language indicating that it was a clarification of prior law. Id., ¶ 12. The Board also found that the WPEA provided a reasonable resolution to ambiguity in the prior statutory language. Id., ¶¶ 13-26. ¶19 Here, by contrast, there is nothing in the text of the FTRA itself indicating that it is intended to clarify, rather than change, prior law; in fact, the text of the law suggests the opposite. Whereas the preamble to the WPEA includes a statement that the Act was intended “to clarify the disclosures of information protected from prohibited personnel practices,” WPEA, Pub. L. No. 112-199, 126 Stat. 1465 (2012), the preamble to the FTRA indicates that it was intended “to extend certain protections against prohibited personnel practices,” FTRA (italics added). Additionally, there is no history of conflicting interpretations or other evidence that the prior statutory language was ambiguous, as there was in Day. Compare Day, 119 M.S.P.R. 589, ¶¶ 13-17 (recounting the history of Board and court decisions defining “disclosure”), with Rainey, 824 F.3d at 1361-63 (interpreting 5 U.S.C. § 2302(b)(9)(D) and citing no contrary or conflicting case law). We therefore find that the FTRA is not a clarification of prior statutory language. Accordingly, we apply the traditional presumption against retroactivity, see Landgraf, 511 U.S. at 280, and we hold that the FTRA does not apply to events that occurred before its enactment. Thus, the appellant’s claims that the agency retaliated against him for refusing to obey orders that would require him to violate agency rules or regulations are outside the scope of section 2302(b)(9)(D). ¶20 The appellant appears to have alleged below that the agency retaliated against him for refusing to obey an order that would have required him to violate a statute, a claim that does fall within the scope of the pre-FTRA version of 5 U.S.C. § 2302(b)(9)(D). IAF, Tab 37 at 5 (alleging “repeated orders that [the 11 appellant] violate the controlling secretarial election law and regulations”). In support of that allegation, the appellant cited 25 U.S.C. § 476. Id. That section, which has been transferred to 25 U.S.C. § 5123, provides general rules for secretarial elections. Id. ¶21 The essence of the appellant’s statutory claim under 5 U.S.C. § 2302(b)(9)(D) appears to be that he was improperly ordered “to stay out of the election process and to defer” to tribal attorneys. IAF, Tab 37 at 42. The appellant has not explained how such an order would have required him to violate a statute, and we find that nothing in 25 U.S.C. § 5123 prohibits an agency employee from deferring to tribal officials. We therefore find that the appellant failed to establish that he engaged in protected activity under section 2302(b)(9)(D). The appellant’s remaining arguments on review do not provide a basis for reversing the initial decision. ¶22 On review, the appellant argues that the administrative judge abused her discretion when she “prevented [him] from delivering his planned case-in-chief” by interrupting his testimony with irrelevant questions and ultimately discouraging him from continuing to testify. PFR File, Tab 1 at 15-17. It is well settled that an administrative judge has broad discretion to control the course of the hearing before her. Lopes v. Department of the Navy, 119 M.S.P.R. 106, ¶ 9 (2012). Rulings regarding the exclusion of evidence are subject to review by the Board under an abuse of discretion standard. See id., ¶ 11. We have reviewed the hearing testimony in its entirety and find no abuse of discretion in the administrative judge’s treatment of the appellant. Specifically, we find that she did not prevent him from testifying or otherwise obstruct his testimony. Even assuming she had done so, however, we find that the appellant’s rights were not prejudiced because the document he claims he was prevented from reading into the record was already contained in the record, and the appellant has not shown that the administrative judge failed to consider any relevant evidence contained in 12 the document. PFR File, Tab 1 at 6 n.2, 15; IAF, Tab 37; see Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984) (recognizing that an administrative judge’s failure to mention all of the evidence of record does not mean that she did not consider it in reaching her decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In addition, the majority of the document pertained to the appellant’s arguments concerning the agency’s alleged failure to meet its clear and convincing burden, and such evidence would not have resulted in an outcome different from that of the initial decision in light of our finding that the appellant failed to establish that his protected activity was a contributing factor in his separation. See Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (reiterating that, to obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the petitioning party must show on review that relevant evidence, which could have affected the outcome, was disallowed). ¶23 As alleged new evidence, the appellant submitted the deposition transcripts of the Regional Director and another official who testified at the hearing, a highlighted version of the prehearing statement he submitted below, and a document reflecting the status of an agency position for which he previously applied. PFR File, Tab 1 at 21-192. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not made this required showing. Even if he had, however, he has not shown that the documents are material to his appeal. See Clarke, 121 M.S.P.R. 154, ¶ 18 (explaining that evidence offered merely to impeach a witness’s credibility generally is not considered new and material); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that 13 of the initial decision); Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already a part of the record is not new). Accordingly, we have not considered these documents.5 ¶24 We have considered the remaining arguments raised by the appellant on review, including his allegations concerning the manner in which the administrative judge drafted the initial decision and analyzed the facts, PFR File, Tab 1 at 4 n.1, and we find they provide no basis for disturbing the initial decision.6 ORDER ¶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 OF APPEAL RIGHTS7 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 5 The agency also submitted alleged new evidence on review. PFR File, Tab 4 at 16-30. We find, however, that the evidence is not material to the outcome of the appeal. See Russo, 3 M.S.P.R. at 349. 6 The appellant has not challenged the administrative judge’s findings concerning his age discrimination claim, and we discern no basis to disturb these findings. 7 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 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: 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 15 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 16 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 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.8 The court of appeals must receive your 8 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. 17 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. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 18 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/FISHER_ARTHUR_E_SF_0351_16_0192_I_1_OPINION_AND_ORDER_2011922.pdf	Issuance Date: March 16, 2023 Appeal Type: Reduction in Force REDUCTION IN FORCE WHISTLEBLOWER PROTECTION ACT The appellant was a Realty Officer with the Bureau of Indian Affairs until December 4, 2015, when he was separated from the agency by a reduction in force. Prior to his separation, in or around May 2014, the appellant filed complaints with the Office of Special Counsel (OSC) and the agency’s Office of Inspector General (OIG). The appellant appealed his separation to the Board and raised affirmative defenses of age discrimination and whistleblower reprisal. After a hearing, the administrative judge affirmed the separation and found that the appellant failed to prove his affirmative defenses. Regarding the whistleblower reprisal claim, the administrative judge found that the appellant failed to prove that he made a protected disclosure under 5 U.S.C § 2302(b)(8). She found that, in the alternative, if the appellant proved that his disclosures were protected, he would have met his burden to show that they were a contributing factor in his separation, but that the agency nevertheless proved by clear and convincing evidence that it would have separated the appellant absent his protected disclosures. The appellant filed a petition for review, primarily challenging the administrative judge’s findings concerning his whistleblower reprisal defense. Holding: The appellant proved that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C). Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OIG or OSC is protected regardless of its content, as long as such disclosure is made in accordance with the applicable provisions of law. 1. The appellant did not challenge the administrative judge’s finding that he failed to prove that he made protected disclosures under 5 U.S.C. § 2302(b)(8), and the Board therefore affirmed those findings. 2. Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity when he discloses information to the agency’s OIG or to OSC “in accordance with applicable provisions of law.” The Board held that, under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OIG or OSC is protected regardless of its content as long as such disclosure is made in accordance with the applicable provisions of law. Accordingly, the appellant’s filings with OSC and the OIG qualified for protection under this provision. Holding: The appellant failed to prove that his protected activity was a contributing factor in his separation. 1. Although the administrative judge determined that, had the appellant established that he made protected disclosures under 5 U.S.C. § 2302(b)(8), he would have met his burden of demonstrating that the disclosures were a contributing factor in his separation, the Board found that the appellant failed to show that his protected activity under 5 U.S.C. § 2302(b)(9)(C) was a contributing factor in the agency’s action. 2. The Board found no evidence that the agency official responsible for the reduction in force knew of the appellant’s protected activity. Because the appellant failed to prove that his protected activity was a contributing factor in his separation, it is unnecessary to determine whether the agency proved by clear and convincing evidence that it would have taken the same action in the absence of the protected activity. Holding: The amendment of 5 U.S.C. § 2302(b)(9)(D) under the Follow the Rules Act (FTRA) is not retroactive. 1. When the events at issue in this appeal took place, 5 U.S.C. § 2302(b)(9)(D) made it a prohibited personnel practice to take an action against an employee for “refusing to obey an order that would require the individual to violate a law.” The U.S. Court of Appeals for the Federal Circuit held in Rainey v. Merit Systems Protection Board, 824 F.3d 1359, 1361-62, 1364-65 (Fed. Cir. 2016), that protection in section 2302(b)(9)(D) extended only to orders that would require the individual to take an action barred by statute, and not to orders that would require the individual to violate an agency regulation or policy. 2. On June 14, 2017, while this matter was pending before the Board, the President signed into law the FTRA, which amended section 2302(b)(9)(D) by inserting after “law” the words “rule, or regulation.” 3. In considering whether the FTRA applies retroactively, the Board considered that Congress did not expressly state that the FTRA should apply retroactively and that, if applied retroactively, the FTRA would increase a party’s liability for past conduct. Although there is some evidence that Congress intended the FTRA to clarify the meaning of the original language in section 2302(b)(9)(D), the Board found that the FTRA was not a clarification of the prior law. Although declarations of Congressional intent are relevant in determining whether a statutory provision is a clarification, such declarations are entitled to less weight when they appear in legislative history, rather than in the statute itself. Further, the Board considered that there is no history of conflicting interpretations or other evidence that the prior statutory language was ambiguous. 4. Because the Board held that the FTRA is not retroactive, the appellant’s claims that the agency retaliated against him for refusing to obey orders that would require him to violate agency rules or regulations are outside the scope of section 2302(b)(9)(D). COURT DECISIONS PRECEDENTIAL:
03-07-2023	2023 MSPB 10	Jessie McCray	https://www.mspb.gov/decisions/precedential/MCCRAY_JESSIE_AT_1221_20_0134_W_1_OPINION_AND_ORDER_2009035.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 10 Docket No. AT-1221-20-0134-W-1 Jessie McCray, Appellant, v. Department of the Army, Agency. March 7, 2023 Jennifer Duke Isaacs, Atlanta, Georgia, for the appellant. Angela Slate Rawls, Redstone Arsenal, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the following reasons, we DENY the petition for review. We AFFIRM the initial decision as to the finding that the appellant failed to nonfrivolously allege that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). We MODIFY the initial decision as set forth in this Opinion and Order to find that the appellant also failed to nonfrivolously allege he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B) or (C). We further MODIFY the initial decision to credit the appellant’s facially 2 plausible assertions, consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Hessami v. Merit Systems Protection Board, 979 F.3d 1362 (Fed. Cir. 2020). BACKGROUND ¶2 The appellant was employed by the agency as a GS-12 Human Resources Specialist at the Civilian Personnel Advisory Center (CPAC), Redstone Arsenal, Alabama. Initial Appeal File (IAF), Tab 7 at 32, 34. His 2018 performance year ran from April 1, 2017, to March 31, 2018. McCray v. Department of the Army, MSPB Docket No. AT-3443-19-0060-I-1, Initial Appeal File (0060 AF), Tab 4 at 105-06. According to the appellant, he filed a grievance in May 2018, through the agency’s administrative grievance process, alleging that his supervisor “engage[d] in discrimination against a coworker with disabilities.” IAF, Tab 1 at 5, 11, 36, 50, Tab 6 at 10. ¶3 The appellant filed a second administrative grievance on July 26, 2018, concerning his supervisor’s alleged denial for the 2018 performance year of (1) the appellant’s request to provide input regarding his accomplishments into the agency’s automated performance system, and (2) a time-off award (TOA) for performance. IAF, Tab 6 at 10, Tab 7 at 37-42. With that grievance, he submitted a report containing information regarding other employees’ TOAs. IAF, Tab 6 at 32, 34, 36-37, Tab 7 at 25-26, 37, 41. He had access to the report in order to fulfill his duties as a Human Resources Specialist. IAF, Tab 6 at 32-33, Tab 7 at 25-26. During a meeting with the appellant on August 7, 2018, his supervisor advised him that it was inappropriate to pull the TOA information of others for his personal grievance. IAF, Tab 6 at 34, 36. In response, the appellant sent an email to his supervisor the following day, instructing her, “Do not engage me on matter[s] that pertain to the on-going Administrative Grievance.” 0060 AF, Tab 4 at 5; IAF, Tab 6 at 34. 3 ¶4 Later that month, the appellant’s supervisor issued the appellant a notice proposing to suspend him for 5 days for using his official position to access the TOA information of other employees for his personal gain. IAF, Tab 6 at 32-33. The suspension also cited the appellant’s email to his supervisor not to “engage” with him on his grievance as disrespectful conduct. Id. ¶5 Also in August 2018, in response to the appellant’s July 2018 grievance, the CPAC Director provided the appellant with an opportunity to submit input regarding his 2018 performance. 0060 AF, Tab 4 at 104, 107-12, 129. That same month, the appellant received his TOA. IAF, Tab 1 at 43, Tab 6 at 26; 0060 AF, Tab 4 at 129-30. ¶6 On October 3, 2018, the CPAC Director issued a decision on the appellant’s proposed 5-day suspension, agreeing that the appellant engaged in the alleged misconduct and determining that the penalty was appropriate. IAF, Tab 6 at 9, 46-48. He served this 5-day suspension from October 4 to 8, 2018. 0060 AF, Tab 4 at 79-80. ¶7 Meanwhile, the agency selected the appellant for the position of GS-12 Personnel Support Specialist, for which he had previously applied. 0060 AF, Tab 4 at 2, 82; IAF, Tab 6 at 6, 30. According to the appellant, this selection decision was made in May 2018. 0060 AF, Tab 4 at 2; IAF, Tab 6 at 6. He further alleged below that agency procedures required the agency to make a tentative job offer within 3 business days. IAF, Tab 6 at 6. In July 2018, he asked his supervisor when he could expect this tentative job offer. Id. at 30. On September 27, 2018, the appellant received notification that he was to begin his new position on October 14, 2018. 0060 AF, Tab 4 at 82. Effective October 14, 2018, the appellant was reassigned to his new position. Id. at 73-75. ¶8 Later in October 2018, the appellant filed a Board appeal challenging his 5-day suspension. 0060 AF, Tab 1 at 3, 17-21, Tab 4 at 1. An administrative judge issued an initial decision dismissing the appeal in January 2019. 4 0060 AF, Tab 8, Initial Decision (0060 ID) at 1, 4. The administrative judge found, as relevant here, that to the extent the appellant sought to file an IRA appeal, he failed to indicate whether he had filed a complaint with the Office of Special Counsel (OSC), a jurisdictional prerequisite to filing an IRA appeal with the Board.1 0060 ID at 3 & n.1. ¶9 In February 2019, the appellant filed a complaint with OSC alleging that the agency retaliated against him for his May and July 2018 grievances. IAF, Tab 1 at 32, 42, 49-50. He asserted that the retaliatory actions began in approximately May or June 2018, and ended in October 2018. Id. at 25-26, 33-35, 43-50. These actions included initially denying him an opportunity to add his input into the performance appraisal system for his 2018 performance; delaying the issuance of his 2018 TOA; issuing him the 5-day suspension in October 2018; and taking more than 3 days to make his tentative job offer for the position of Personnel Support Specialist. Id. OSC subsequently terminated its inquiry and advised the appellant of his right to file an IRA appeal with the Board. Id. at 50-51. The appellant then filed the instant IRA appeal, reasserting these claims to the Board. IAF, Tab 1 at 1, 5-7, 11, 13-15. ¶10 Based on the written record, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1, 4-6. He found the appellant exhausted his OSC remedy. ID at 3. However, he determined that neither of the appellant’s alleged grievances constituted protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), over which the Board would have jurisdiction in an IRA appeal. ID at 4-5. Finally, the administrative judge held that, although the appellant informed OSC of his prior Board appeal concerning his 5-day suspension, and although such an 1 Neither party petitioned for review from that decision, and it is now the final decision of the Board. 5 C.F.R. § 1201.113(a)-(c) (providing that an initial decision generally becomes the Board’s final decision if neither party files a timely petition for review). 5 appeal was a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), all of the personnel actions alleged by the appellant in his OSC complaint occurred before he filed that Board appeal on October 26, 2018; thus, it could not have been a contributing factor in the actions at issue. ID at 5-6. The appellant has filed a petition for review, to which the agency has responded. Petition for Review (PFR) File, Tabs 1, 3. ANALYSIS ¶11 The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes nonfrivolous allegations that (1) he 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 activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). The parties do not dispute the administrative judge’s finding that the appellant exhausted his administrative remedies before OSC regarding his allegations that, in reprisal for his administrative grievances, the agency initially denied him the opportunity to provide input into the agency’s performance system regarding his 2018 performance, delayed his 2018 TOA, suspended him for 5 days, and took more than 3 days to make his tentative job offer.2 ID at 3-5; IAF, Tab 1 at 25-27, 32-33, 36-50. 2 The parties also do not dispute the administrative judge’s finding that the appellant’s October 26, 2018 Board appeal could not have been a contributing factor in the alleged personnel actions because it postdated those actions. ID at 5-6. It does not appear the appellant alleged retaliation for his prior Board appeal below. IAF, Tab 6 at 11-16. Nonetheless, we discern no basis to disturb the administrative judge’s contributing factor determination. See El v. Department of Commerce, 123 M.S.P.R. 76, ¶¶ 9-10 (2015) (concluding that a disclosure could not have contributed to personnel actions taken before the disclosure was made), aff’d per curiam, 663 F. App’x 921 (Fed. Cir. 2016). The administrative judge made no finding as to whether the appellant exhausted 6 ¶12 The parties also do not dispute the finding that the appellant did not allege that he sought to remedy reprisal for whistleblowing in his grievances, and thus they did not constitute protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). ID at 4-5. Section 2302(b)(9)(A)(i) includes as protected activity “the exercise of any appeal, complaint, or grievance right . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” Exercising other appeal, complaint, or grievance rights falls within the scope of 5 U.S.C. § 2302(b)(9)(A)(ii). The Board’s IRA jurisdiction includes a claim of retaliation for filing a grievance under 5 U.S.C. § 2302(b)(9)(A)(i), but not for filing a grievance under section 2302(b)(9)(A)(ii). 5 U.S.C. § 1221(a); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). Thus, the Board lacks jurisdiction over a grievance that does not seek to remedy a violation of 5 U.S.C. § 2302(b)(8), i.e., one that does not seek to remedy whistleblower reprisal. See Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 39 n.8 (2016) (determining that 5 U.S.C. § 2302(b)(9)(A)(i) prohibits retaliation for filing a Board appeal in which a claim of whistleblower reprisal was raised). ¶13 Although the record does not contain a copy of the appellant’s May 2018 grievance, he alleged that the subject matter of this grievance was his supervisor’s discrimination against a disabled coworker. IAF, Tab 1 at 5, 11, 36, 50. As described by the appellant, his supervisor directed all team members except the appellant’s visually impaired coworker “to move to a cubicle area separated by a wall.” Id. at 36. The appellant stated that this action caused the coworker to feel “isolated, . . . unwelcomed, not respected, unsupported and with OSC regarding the activity of filing his prior Board appeal. ID at 3. Because the administrative judge properly determined the appellant failed to prove contributing factor, a necessary element of his jurisdictional burden, we discern no error in the decision not to address the exhaustion element. See Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (explaining that, in an IRA appeal, the Board may find it lacks jurisdiction based on an appellant’s failure to meet any one of the jurisdictional prerequisites). 7 devalued as a team member.” Id. The appellant did not allege that he sought to remedy whistleblower reprisal in his May 2018 grievance. Id. ¶14 In his July 2018 grievance, the appellant alleged that, as of that time, his supervisor had denied his request to provide input regarding his 2018 performance into the agency’s performance appraisal system and denied his TOA for the same year.3 IAF, Tab 7 at 37-42. As to the denial of his request to provide input within the system, he acknowledged that he had previously been given the opportunity to provide written input outside the automated performance appraisal system. Id. at 37-40. However, he argued that this was insufficient because agency guidance stated, in pertinent part, that the system was “a comprehensive automated platform to . . . document” performance-related matters, including “employee input.” Id. at 40. Concerning his TOA, the appellant asserted that he was entitled to an award in light of his fully successful performance rating, he had requested the TOA, and he had not received it. Id. at 40-41. He did not allege that the agency’s actions were in reprisal for a protected disclosure. Id. at 37-42. Therefore, we discern no basis to disturb the administrative judge’s finding that the Board lacks jurisdiction over the appellant’s grievances under 5 U.S.C. § 2302(b)(9)(A)(i). ¶15 Further, the appellant has not alleged the agency’s actions were motivated by his refusal “to obey an order that would require [him] to violate a law, rule, or regulation,” activity which is protected under 5 U.S.C. § 2302(b)(9)(D). Thus, the issues before us are whether the appellant made nonfrivolous allegations that his disclosures and activity were protected under 5 U.S.C. § 2302(b)(8), (9)(B), or (9)(C). As explained below, we find that he did not. 3 As discussed above, the agency later provided the appellant with the opportunity to submit input regarding his performance, and also gave him a TOA for his 2018 performance. 8 The appellant’s disclosures are not within the Board’s jurisdiction under 5 U.S.C. § 2302(b)(8). ¶16 The appellant argues that the administrative judge “erred by failing to consider . . . entirely” his disclosure of disability discrimination against a coworker. PFR File, Tab 1 at 11; IAF, Tab 1 at 11, 36. He alleges he made this disclosure in his May 2018 administrative grievance. PFR File, Tab 1 at 11. The administrative judge acknowledged that the parties disputed whether the appellant raised disability discrimination in a May 2018 grievance as he alleged, or later, in his August 30, 2018 response to the agency’s proposal to suspend him for 5 days, as claimed by the agency.4 ID at 5; IAF, Tab 1 at 25, 50, Tab 7 at 7, 23, 26-27. As discussed above, he found that, regardless of when the appellant raised such discrimination issues to the agency, he did not seek to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8) in the grievance, and therefore his grievance was not protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). ID at 5. Thus, to the extent the appellant is arguing that the administrative judge failed to consider his May 2018 grievance, he is mistaken. PFR File, Tab 1 at 11. 4 After the initial decision was issued in this case, the Federal Circuit held in Hessami, 979 F.3d at 1368-69, that when determining IRA jurisdiction, the issue of whether an appellant has nonfrivolously alleged that he made protected disclosures that contributed to a personnel action must be determined based on whether he “alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Here, the administrative judge did not credit the appellant’s facially plausible allegation that he made the subject disclosure in a grievance in May 2018. ID at 3, 5. Nonetheless, the administrative judge credited the appellant’s claim that, at some point, he made disclosures of disability discrimination. ID at 5. As discussed below, we agree that the content of this grievance was not protected. Thus, any error by the administrative judge in failing to credit the appellant’s assertion as to when he made this disclosure was harmless. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). For purposes of our analysis, we have accepted as true the appellant’s claim that he alleged disability discrimination in a May 2018 grievance. 9 ¶17 We have considered that the appellant may be asserting that the administrative judge failed to address whether the grievance contained disclosures protected under 5 U.S.C. § 2302(b)(8). The administrative judge did not conduct such an analysis for either of the appellant’s grievances. ID at 4-5. We modify the initial decision to find that the appellant’s alleged disclosures in his administrative grievances do not afford the Board jurisdiction over his IRA appeal under section 2302(b)(8). As a result, any oversight by the administrative judge in failing to address the appellant’s potential section 2302(b)(8) claim does not affect the outcome in this case. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). ¶18 An allegation of reprisal for making a disclosure in the course of exercising a grievance right is an allegation of a prohibited personnel practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8). Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1576 (Fed. Cir. 1996), abrogated in part on other grounds by Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371-72 & n.1 (Fed. Cir. 2001); Mudd, 120 M.S.P.R. 365, ¶ 6; Fisher v. Department of Defense, 47 M.S.P.R. 585, 587-88 (1991); see Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 10 (2015) (explaining that filing a grievance and representing another employee in the grievance process are activities protected by 5 U.S.C. § 2302(b)(9)). Thus, only disclosures made outside the context of a grievance right granted by law, rule, or regulation are protected under section 2302(b)(8). Serrao, 95 F.3d at 1576; see 5 U.S.C. § 2302(b)(9)(A) (identifying the “exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation” as a protected activity), section 2302(b)(9)(B) (providing that testifying or assisting another individual in the exercise of his grievance rights under section 2302(b)(9)(A) is a protected activity). Accordingly, the appellant’s alleged disclosures in his May and July 2018 grievances cannot support a finding of Board jurisdiction under 5 U.S.C. § 2302(b)(8). 10 ¶19 Even if the appellant had made his claim of disability discrimination outside the context of his May 2018 grievance, it could not be considered a protected disclosure under section 2302(b)(8). The Board adjudicates claims of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act). Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act of 2008, have been incorporated by reference into the Rehabilitation Act and the Board applies them to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Pridgen, 2022 MSPB 31, ¶ 35. The ADA has an anti-retaliation provision, which prohibits discriminating against any individual because of protected activity. 42 U.S.C. § 12203(a); Pridgen, 2022 MSPB 31, ¶ 44. Such protected activity includes opposing unlawful disability discrimination. 42 U.S.C. § 12203(a); Pridgen, 2022 MSPB 31, ¶ 44 (identifying both requesting a reasonable accommodation and complaining of disability discrimination as activities protected by the ADA). Thus, accepting the appellant’s allegations regarding his May 2018 grievance as true, his grievance is protected activity under the Rehabilitation Act. ¶20 The Board has long held that it lacks IRA jurisdiction over disability discrimination claims. Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 14 (2011), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012); Coons v. Department of the Treasury, 85 M.S.P.R. 631, ¶ 22 (2000), overruled in part on other grounds by Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶ 7 n.1 (2001); Marren v. Department of Justice, 51 M.S.P.R. 632, 636-42 (1991), aff’d per curiam, 980 F.3d 745 (Fed. Cir. 1992) (Table), and modified in part on other grounds by Robinson v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994). In Marren, the Board considered the scope of the Whistleblower Protection Act of 1989 (WPA of 1989), Pub. L. No. 101-12, 103 Stat. 16, which first expanded the 11 Board’s jurisdiction to include IRA appeals. 51 M.S.P.R. at 636-41. The Board observed that an employee who seeks to remedy disability discrimination has at his disposal the Equal Employment Opportunity Commission (EEOC) and its long-established procedures as an avenue to seek redress. Marren, 51 M.S.P.R. at 641. It further noted that in the legislative history of the WPA of 1989, Congress did not indicate any intent to change the balance of distribution of equal employment opportunity review or diminish the primary roll afforded the EEOC in that arena. Id. at 642. ¶21 Like Federal employees seeking to remedy a violation of the Rehabilitation Act, those seeking to remedy a violation of Title VII, i.e., discrimination based on race, color, religion, sex, or national origin, may also seek redress before the EEOC. 42 U.S.C. § 2000e-16(a)-(b). In Edwards v. Department of Labor, we reaffirmed the longstanding principle that activity and disclosures protected under Title VII are not protected under 5 U.S.C. § 2302(b)(8) because employees seeking to remedy reprisal for such activity and disclosures have the right to seek redress before the EEOC. Edwards, 2022 MSPB 9, ¶¶ 10-25. This rationale in Edwards applies equally to claims of disability discrimination. For example, in Edwards, we cited to Congressional testimony by the Special Counsel expressing concern about granting IRA appeal rights to employees who also had the EEOC as an avenue to seek redress. Id., ¶ 10. That testimony did not distinguish between Title VII-based claims and other claims of discrimination that are remedied by the EEOC. Whistleblower Protection Act of 1987: Hearings on S. 508 Before the Subcomm. on Fed. Services, Post Off., & Civil Serv. of the Comm. on Governmental Affairs, United States Senate, 100th Cong. 138-39, 379-80 (1987) (containing a prior draft of legislation establishing the Board’s jurisdiction over IRA appeals and the relevant testimony of the Special Counsel regarding that language). ¶22 Therefore, we conclude that the Board’s IRA jurisdiction does not extend to claims of reprisal for complaining of practices made unlawful by the 12 Rehabilitation Act. Because the appellant’s disclosures of alleged discrimination against a disabled coworker fall within the protection of the Rehabilitation Act, the Board does not have jurisdiction over those disclosures under section 2302(b)(8). The appellant failed to nonfrivolously allege that his grievances are protected activity under 5 U.S.C. § 2302(b)(9)(B). ¶23 Under 5 U.S.C. § 2302(b)(9)(B), protected activity includes “testifying for or otherwise lawfully assisting any individual in the exercise” of any appeal, complaint, or grievance right.5 5 U.S.C. § 2302(b)(9)(A)-(B); Alarid, 122 M.S.P.R. 600, ¶ 10. The administrative judge did not address whether the appellant’s grievances were protected activity under section 2302(b)(9)(B). In addition, the parties do not raise this issue on review. However, the Board is obligated to “determine its own jurisdiction over a particular appeal.” Parrish v. Merit Systems Protection Board, 485 F.3d 1359, 1362 (Fed. Cir. 2007) (citing Cruz v. Department of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (recognizing the Board’s “jurisdiction to determine its jurisdiction”)). Therefore, we address the issue here. ¶24 In Edwards, 2022 MSPB 9, ¶ 2, the appellant alleged the agency retaliated against him for making disclosures and filing EEO complaints in which he raised allegations that the agency discriminated against employees generally, and one of his subordinates in particular, because of their race. We found no basis to conclude that the appellant’s disclosures or complaints were protected activities under 5 U.S.C. § 2302(b)(9)(B) because there was no indication in the record that 5 Differing from 5 U.S.C. § 2302(b)(9)(A)(i), which bars reprisal for an appellant’s personal exercise of any appeal, complaint, or grievance right granted by law, rule, or regulation concerning an alleged violation of section 2302(b)(8), section 2302(b)(9)(B) bars reprisal for assisting another individual in the exercise of any appeal, complaint, or grievance right granted by law, rule, or regulation, and such a proceeding need not concern remedying a violation of whistleblower reprisal under section 2302(b)(8). Alarid, 122 M.S.P.R. 600, ¶ 12 n.5. 13 the appellant’s subordinate, who purportedly was denied a promotion based on his race, or any of the other employees allegedly discriminated against based on race, filed any appeal, complaint, or grievance. Edwards, 2022 MSPB 9, ¶ 28. ¶25 Here, the appellant did not allege that he was lawfully assisting his coworker in the exercise of the coworker’s grievance right; rather the appellant alleged that he had exercised the grievance right in May 2018, in which he raised concerns about disability discrimination against his coworker. IAF, Tab 1 at 5, 7, 11, Tab 6 at 4, 6, 10. Because the appellant has not alleged that his coworker filed an appeal, complaint, or grievance in which the appellant assisted, he has not alleged that he engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(B). See Edwards, 2022 MSPB 9, ¶ 28; Alarid, 122 M.S.P.R. 600, ¶ 12 n.5 (explaining that 5 U.S.C. § 2302(b)(9)(A)(i) differs from section 2302(b)(9)(B) in part because the former bars reprisal for an appellant’s personal exercise of any appeal, complaint, or grievance right). Similarly, the appellant’s July 26, 2018 grievance, in which he challenged his supervisor’s alleged initial denial of the appellant’s request to provide input regarding his accomplishments into the agency’s automated performance system and a TOA for his 2018 performance, is not protected activity under 5 U.S.C. § 2302(b)(9)(B). IAF, Tab 6 at 10, Tab 7 at 37-42. The appellant has not alleged that he was testifying for or otherwise lawfully assisting any individual other than himself in connection with that grievance. We therefore find that the appellant has failed to make a nonfrivolous allegation regarding this statutory provision. The appellant did not nonfrivolously allege that his grievances are protected activity under 5 U.S.C. § 2302(b)(9)(C). ¶26 Prior to December 12, 2017, the whistleblower protection statutory scheme provided that “cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law,” is protected. 5 U.S.C. § 2302(b)(9)(C) (2016); Edwards, 2022 MSPB 9, ¶ 33. Section 1097(c)(1) of the National Defense 14 Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (NDAA), amended section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an agency or the Special Counsel, a disclosure to “any other component responsible for internal investigation or review” is also protected. Edwards, 2022 MSPB 9, ¶ 29. Although all of the relevant events in this appeal occurred after the December 12, 2017 enactment date of the NDAA, neither the administrative judge, nor the parties, addressed whether the appellant’s administrative grievances fell within the expanded scope of this subsection. Therefore, we do so here.6 See Parrish, 485 F.3d at 1362 (finding that the Board is obligated to determine its jurisdiction over an appeal). ¶27 The legislative history of the NDAA does not define the scope of the expanded section 2302(b)(9)(C), and the term “component responsible for internal investigation or review” is not defined elsewhere in the statute. It is unnecessary to define the term here because we can make our finding on narrower grounds. We are guided by the principle that the provisions of a statute should be read together to avoid rendering any provision inoperative or superfluous. Horner v. Merit Systems Protection Board, 815 F.2d 668, 674 (Fed. Cir. 1987). As previously discussed, section 2302(b)(9)(A) prohibits retaliation for the “exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation – (i) with regard to remedying a violation of [section 2302(b)(8)]; or (ii) other than with regard to remedying a violation of [section 2302(b)(8)].” We do not read section 2302(b)(9)(C) to include disclosures made in the course of an administrative grievance, the same activity protected under (b)(9)(A), because doing so would effectively subsume all or part of (b)(9)(A). 6 In Edwards, 2022 MSPB 9, ¶¶ 29-33, we determined that the NDAA’s expansion of section 2302(b)(9)(C) did not apply to events occurring prior to the enactment of the NDAA. Unlike in Edwards, all the relevant events here took place post-enactment and the expanded section 2302(b)(9)(C) applies to this appeal. 15 ¶28 This determination is consistent with prior interpretations of 5 U.S.C. § 2302(b). The Board and the Federal Circuit have declined to interpret the provisions of section 2302(b)(8) and (b)(9) as overlapping. For example, the Federal Circuit held that an employee’s disclosure made during the course of his EEO complaint can only be protected under section 2302(b)(9)(A), and not (b)(8), reasoning in part that reading the two subsections as covering the same activity “would render § 2302(b)(9)(A) largely irrelevant, if not completely superfluous.” See Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690-91 (Fed. Cir. 1992) (citing Horner, 815 F.2d at 674). Similarly, the Board determined that 5 U.S.C. § 2302(b)(8) did not protect an appellant from reprisal for disclosures made during an internal agency grievance. Fisher, 47 M.S.P.R. at 587-88. The Board explained that there would be no need for section 2302(b)(9) protections if it interpreted (b)(8) to override and make redundant the provisions of (b)(9). Fisher, 47 M.S.P.R. at 587-88. We likewise find that the appellant’s disclosures, made in his administrative grievances, are not protected activity under section 2302(b)(9)(C), because to find otherwise would render (b)(9)(A) irrelevant and superfluous. ¶29 In addition, the history of 5 U.S.C. § 2302 supports the conclusion that Congress did not intend activity protected under section 2302(b)(9)(C) to overlap with (b)(9)(A). Prior to the enactment of the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 101(b)(1)(A), 126 Stat. 1465 (codified in pertinent part at 5 U.S.C. § 1221(a)), (WPEA), the Board’s IRA jurisdiction only extended to protected disclosures under section 2302(b)(8), and not to any of the protected activities identified in (b)(9). The Federal Circuit cautioned against “read[ing] the scope of § 2302(b)(8) as including [protected] activities squarely within § 2302(b)(9)(A),” observing that doing so “would have the effect of reversing this carefully considered Congressional decision” to exclude protected activities, including activities under section 2302(b)(9), from the Board’s jurisdiction at that time. Spruill, 978 F.2d at 690-91. 16 ¶30 The WPEA expanded the Board’s jurisdiction over IRA appeals to include, as relevant here, activity protected under section 2302(b)(9)(A)(i), (B), (C), or (D), but not (b)(9)(A)(ii). See Mudd, 120 M.S.P.R. 365, ¶ 7 (recognizing this expansion to the Board’s jurisdiction as to section 2302(b)(9)(A)(i), but not (b)(9)(A)(ii)). As noted earlier, the Board does not have jurisdiction over claims of reprisal for activity protected under section 2302(b)(9)(A)(ii), i.e., a grievance an employee files on his own behalf that does not seek to remedy whistleblower reprisal like the ones at issue here. 5 U.S.C. 1221(a); Mudd, 120 M.S.P.R. 365, ¶ 7; cf. Elder, 124 M.S.P.R. 12, ¶ 39 n.8 (stating that 5 U.S.C. § 2302(b)(9)(A)(i) prohibits retaliation for filing a Board appeal in which a claim of whistleblower retaliation was raised under 5 U.S.C. § 2302(b)(8)). The parties do not dispute the administrative judge’s finding that the appellant’s grievances fell into this category and therefore outside the Board’s jurisdiction under section 2302(b)(9)(A)(i). ID at 4-5. We decline to read the new language in section 2302(b)(9)(C) to include claims covered by (b)(9)(A)(ii). Doing so would render the deliberate distinction between section 2302(b)(9)(A)(i) and (b)(9)(A)(ii) activity meaningless. It would also effectively subsume section 2302(b)(9)(A)(ii) into (b)(9)(C). See Horner, 815 F.2d at 674. Accordingly, because the appellant’s claims fall within the scope of section 2302(b)(9)(A)(ii), they cannot fall within the scope of (b)(9)(C). As a result, we find that he has failed to nonfrivolously allege that his grievances are protected activity under 5 U.S.C. § 2302(b)(9)(C). Based on the above analysis, we deny the appellant’s petition for review and find that the Board lacks jurisdiction over this IRA appeal.7 7 As a result of our findings here, we do not reach the appellant’s arguments regarding contributing factor or whether the agency would have taken the same actions if he had not filed administrative grievances. PFR File, Tab 1 at 11-12, 16; see Schmittling, 219 F.3d at 1336-37 (holding that, in an IRA appeal, the Board cannot assume it has jurisdiction and proceed to make a determination on the merits). 17 ORDER ¶31 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 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 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 18 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 19 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 20 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 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. 9 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. 21 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/MCCRAY_JESSIE_AT_1221_20_0134_W_1_OPINION_AND_ORDER_2009035.pdf	Issuance Date: March 7, 2023 Appeal Type: Individual Right of Action (IRA) PROTECTED DISCLOSURES PROTECTED ACTIVITIES The appellant was employed as a GS-12 Human Resources Specialist with the agency. He filed administrative grievances in May and July 2018. The May 2018 grievance included allegations that his supervisor discriminated against a disabled coworker. With the second grievance, he submitted information on other employees’ time off awards (TOAs). Effective October 3, 2018, the agency suspended the appellant for 5 days for his misuse of TOA information. He filed a Board appeal challenging the suspension, which was dismissed for lack of jurisdiction. Effective October 14, 2018, the agency reassigned the appellant to a new position for which he had previously applied and been selected. In February 2019, the appellant filed a whistleblower complaint with the Office of Special Counsel (OSC) involving the aforementioned incidents. After OSC closed his complaint, the appellant filed the instant individual right of action (IRA) appeal, reasserting the same claims. In an initial decision on the written record, the administrative judge dismissed the IRA appeal for lack of jurisdiction, finding that the appellant exhausted his remedies with OSC but that he did not nonfrivolously allege that his purported protected activities were a contributing factor in the agency’s actions—his grievances did not constitute protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), i.e. they did not seek to remedy a violation of section 2302(b)(8), and all of the alleged personnel actions occurred before his October 2018 Board appeal of his 5-day suspension. The appellant filed a petition for review. Based on his challenges and the nature of his claims, the Board identified the relevant issue on review as whether the appellant nonfrivolously alleged a protected disclosure or activity 1 under section 2302(b)(8), (b)(9)(B) or (b)(9)(C). Holding: The appellant’s alleged disclosures of disability discrimination were not a basis for finding jurisdiction under 5 U.S.C. § 2302(b)(8). 1. The Board found that, assuming as true the appellant’s facially plausible claim that he disclosed disability discrimination in his May 2018 grievance, such disclosure cannot support a finding of jurisdiction under section 2302(b)(8). Only disclosures made outside the context of a grievance right granted by law, rule, or regulation are protected thereunder. 2. Furthermore, the Board determined that, even if made outside of the context of the administrative grievance process, the appellant’s claims of reprisal for disclosing disability discrimination were protected under the Rehabilitation Act and that the Board’s IRA jurisdiction does not extend to reprisal for complaining of practices made unlawful by the Rehabilitation Act. In support thereof, the Board referenced the WPA’s legislative history, longstanding case law, and the Board’s recent analogous findings concerning alleged violations of Title VII in the context of IRA appeals. Holding: The appellant did not nonfrivolously allege that his grievances were protected under 5 U.S.C. § 2302(b)(9)(B). 1. Sua sponte, the Board considered whether the appellant’s grievances 1 The Board discerned no basis for disturbing the administrative judge’s findings concerning the appellant’s section 2302(b)(9)(A)(i) claim and found the appellant did not raise a claim of reprisal under section 2302(b)(9)(D). constituted protected activity under section 2302(b)(9)(B), i.e., whether, by engaging in such action, the appellant was “testifying for or otherwise lawfully assisting any individual in the exercise” of any appeal, complaint, or grievance right. 2. The Board found that, rather than lawfully assisting another in exercising their rights, the appellant instead was exercising his own right to file a grievance; therefore, that activity was not protected under section 2302(b)(9)(B). Holding: The appellant did not nonfrivolously allege that his grievances were protected activity under 5 U.S.C. § 2302(b)(9)(C). 1. Because all of the relevant events occurred after the amendments to section 2302(b)(9)(C) by the 2018 National Defense Authorization Act (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017), the Board, sua sponte, considered whether the appellant’s administrative grievances fell within the expanded scope of that subsection. 2. The 2018 NDAA amended section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an agency or the Special Counsel, a disclosure to “any other component responsible for internal investigation or review” also is protected. 3. The Board declined to interpret the full scope of the new phrase “component responsible for investigation or review,” instead reaching a finding on narrower grounds. The Board concluded that the appellant’s disclosures in his administrative grievance cannot fall within the expanded scope of section 2302(b)(9)(C) because they fell within section 2302(b)(9)(A)(ii). To construe the phrase as encompassing the appellant’s disclosures would allow section 2302(b)(9)(C) to effectively subsume section 2302(b)(9)(A), and (b)(9)(A)(ii) in particular, contravening Congress’s carefully considered statutory scheme and the principle that provisions of a statute should be read together to avoid rendering any provision inoperative or superfluous. Accordingly, the Board denied the appellant’s petition for review and found the Board lacked jurisdiction over the appellant’s IRA appeal. PRECEDENTIAL COURT ORDER
02-28-2023	2023 MSPB 9	Kenneth Johnson	https://www.mspb.gov/decisions/precedential/JOHNSON_KENNETH_J_CH_0752_17_0442_I_1_OPINION_AND_ORDER_2006878.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 9 Docket No. CH-0752-17-0442-I-1 Kenneth J. Johnson, Appellant, v. Department of Veterans Affairs, Agency. February 28, 2023 William J. O’Malley, Esquire, Columbus, Ohio, for the appellant. Amber Groghan, Esquire, Akron, Ohio, for the agency. Nicholas E. Kennedy, Esquire, Chillicothe, Ohio, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which mitigated the appellant’s removal to a 30-day suspension. The appellant has filed a petition for enforcement of the order for interim relief, which we consider as a motion to dismiss the petition for review. For the reasons set forth below, we GRANT the appellant’s motion and DISMISS the agency’s petition for review. 2 BACKGROUND ¶2 The agency proposed the appellant’s removal from his GS-11 Social Worker position based on the following charges: (1) Conduct Unbecoming (four specifications); and (2) Absence Without Leave (AWOL) (five instances totaling 126 hours). Initial Appeal File (IAF), Tab 9 at 4-6. After the appellant responded to the notice, IAF, Tab 12 at 14, the deciding official found the charges proven and removed the appellant. IAF, Tab 8 at 73, 78. ¶3 The appellant filed an appeal challenging his removal; he requested a hearing. IAF, Tab 1. He subsequently added, as affirmative defenses, discrimination based on race, age, disability, and gender, and retaliation for protected equal employment opportunity (EEO) activity. IAF, Tab 16. ¶4 Thereafter the administrative judge issued an initial decision in which she did not sustain any of the four specifications under the Conduct Unbecoming charge or the charge itself. IAF, Tab 20, Initial Decision (ID) at 2-15. She found that the agency proved the AWOL charge as to 120 of the 126 hours charged, and that therefore the AWOL charge was sustained. ID at 15-20. The administrative judge next carefully considered, but found unproven, all of the appellant’s affirmative defenses. ID at 20-31. The administrative judge then found that the agency proved there was a nexus between the sustained misconduct and the efficiency of the service. Finally, she addressed the penalty, noting that she had sustained only one of the two charges brought against the appellant. ID at 32. She found the testimony of the deciding official not credible regarding the extent to which he considered the relevant Douglas factors1 prior to making his decision. She further found that, even if she had found the deciding official credible, he did 1 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (holding that the Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness). 3 not address whether he would have removed the appellant if not all the charges were sustained. ID at 33. Under these circumstances, the administrative judge found the agency’s penalty determination not worthy of deference. ID at 33-34. Based on the evidence of record, including the hearing testimony regarding the sustained misconduct, the administrative judge considered all of the pertinent Douglas factors and determined that the maximum reasonable penalty in this case was a 30-day suspension. ID at 34-41. She ordered the agency to provide the appellant with interim relief if either party filed a petition for review. ID at 42. ¶5 The agency has filed a petition for review, Petition for Review (PFR) File, Tab 1, to which the appellant has responded.2 PFR File, Tab 4. The agency has replied to the appellant’s response to its petition for review. PFR File, Tab 6. The appellant has also filed a petition for enforcement of the administrative judge’s interim relief order, PFR File, Tab 3, to which the agency has responded, PFR File, Tab 5, and the appellant has replied to the agency’s response, PFR File, Tab 7. 2 The appellant has not, in a properly filed petition or cross petition for review, challenged the administrative judge’s findings that the agency proved the AWOL charge and that he (the appellant) did not establish any of his affirmative defenses. We find no basis to disturb these findings, which show that the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987). Even so, we consider an aspect of the appellant’s race, age, disability, and gender discrimination and EEO reprisal affirmative defenses not addressed in the initial decision. ID at 26-31. Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s actions, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33. 4 ANALYSIS ¶6 When an appellant is the prevailing party in an initial decision and the administrative judge has ordered interim relief under 5 U.S.C. § 7701(b)(2)(A), an agency must submit a certification with its petition for review that it has either complied with the interim relief order or that it has made a determination that the appellant’s return to, or presence in, the workplace would be unduly disruptive. 5 U.S.C. § 7701(b)(2)(A)(ii); 5 C.F.R. § 1201.116(a). An agency’s failure to provide the required certification or to provide evidence of compliance in response to a Board order may result in the dismissal of the agency’s petition for review. 5 C.F.R. § 1201.116(e).3 ¶7 There are two elements to interim relief. The first is returning the appellant to the workplace while the petition for review is pending unless the agency determines that the return or presence of the appellant would be unduly disruptive. 5 U.S.C. § 7701(b)(2)(A)(ii). The second element is providing the appellant with pay and benefits while the petition for review is pending; the agency must provide pay and benefits even if it does not return the appellant to the workplace. 5 U.S.C. § 7701(b)(2)(B). When an appellant alleges noncompliance with an interim relief order, the Board’s authority is restricted to reviewing whether an undue disruption determination was made when required, 3 The agency took its removal action in this case under the legal authority of 5 U.S.C. chapter 75, IAF, Tab 8 at 73, and the administrative judge took jurisdiction over this appeal under chapter 75, ID at 1. On June 23, 2017, the same day the agency removed the appellant, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714), was enacted into law. The VA Accountability Act contains a specific provision limiting the relief available to an employee who is challenging a removal under 38 U.S.C. § 714(c). 38 U.S.C. § 714(d)(7). Because the agency removed the appellant under chapter 75, and not under 38 U.S.C. § 714(c), that provision of the Act does not apply to this case. See 38 U.S.C. § 714(d)(7). Therefore, our decision in this case is based on the legal standards under chapter 75 and we express no view on whether the result would be the same under the VA Accountability Act. 5 and whether the appellant is receiving appropriate pay and benefits. Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 6, aff’d, 208 F. App’x 868 (Fed. Cir. 2006). The Board will not entertain a petition for enforcement of an interim relief order before a final decision is issued; rather, it will treat such a petition as a motion to dismiss the agency’s petition for review. Id.; see 5 C.F.R. § 1201.116(g) (providing for interim relief enforcement petitions in certain circumstances after a final decision is issued). ¶8 In response to the appellant’s petition regarding interim relief, the agency submitted evidence showing that it had cancelled the appellant’s removal and placed him on leave without pay. PFR File, Tab 5 at 113, 116. The agency argues that its action was appropriate because the appellant was unable to work. Id. at 4-7. We need not determine whether the agency’s actions constitute a valid undue disruption determination because it is undisputed that the agency did not provide the appellant with pay and benefits upon filing the petition for review. An undue disruption determination does not relieve the agency of its obligation to pay the appellant and provide benefits during the interim relief period. 5 U.S.C. § 7701(b)(2)(B); DeLaughter v. U.S. Postal Service, 3 F.3d 1522, 1524 (Fed. Cir. 1993). The appellant’s ability to work could affect his entitlement to back pay,4 but it has no impact on the agency’s statutory obligation to provide pay during the interim relief period. See Abbott v. Department of Veterans Affairs, 67 M.S.P.R. 124, 129 (1995) (finding an agency not in compliance with an interim relief order when it conditioned the appellants’ return to duty and pay on the submission of medical evidence); Doyle v. Department of the Air Force, 56 M.S.P.R. 240, 242 4 The agency argues in its submission regarding interim relief that the appellant is not entitled to back pay. PFR File, Tab 5 at 6-7. However, back pay is not part of the agency’s interim relief obligation because interim relief is effective upon the issuance of the initial decision. 5 U.S.C. § 7701(b)(2)(A), (C). Any dispute regarding the appellant’s entitlement to back pay can be addressed in a petition for enforcement of the Board’s final decision, if necessary. 6 (same). We therefore conclude that the agency has not complied with the interim relief order. ¶9 The resumption of pay during the interim relief period is the most fundamental element of interim relief. Bradstreet v. Department of the Navy, 83 M.S.P.R. 288, ¶ 13 (1999). Given the agency’s failure to make any effort to provide such pay, we find that dismissal of the petition for review is appropriate. See id. (dismissing an agency’s petition for review when the agency failed to pay the appellant for a period of 8 months after issuance of the initial decision). ORDER ¶10 The agency’s petition for review is dismissed. This is the final decision of the Board regarding the agency’s petition for review. The initial decision will remain the final decision of the Board regarding the merits of the appeal, as supplemented by our discussion of the appellant’s affirmative defenses. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). ¶11 We ORDER the agency to cancel the removal action and to substitute a 30-day suspension effective June 23, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶12 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. 7 ¶13 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶14 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). ¶15 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 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. 8 You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 10 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 11 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 12 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 2 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/JOHNSON_KENNETH_J_CH_0752_17_0442_I_1_OPINION_AND_ORDER_2006878.pdf	Issuance Date: September 26, 2022 DUE PROCESS EX PARTE COMMUNICATIONS REMEDY The petitioner was employed as a firefighter with the Department of the Air Force. At the time relevant to this appeal, his mother lived with him and his family, and she was taking approximately 13 pills to treat various health issues. The petitioner was also taking approximately seven or eight pills for his own health issues. As a condition of his employment, the petitioner was selected for a random drug test, on which he tested positive for oxycodone and oxymorphone. He explained to his supervisor that he believed he had accidentally taken one of his mother’s pills instead of his own. Thereafter, the agency removed him, and he challenged his removal under the applicable grievance procedures. During an arbitration hearing, the deciding official testified that, prior to arriving at his decision to remove the appellant, he had consulted his wife, who is a registered nurse, and his brother-in-law, who is a nurse practitioner, and that both confirmed that the likelihood of the appellant taking his mother’s pills “is slim to none.” Ultimately, the arbitrator denied the appellant’s grievance, finding that the petitioner’s explanation of the misconduct was not believable. He also found that there was no convincing evidence that the agency violated the petitioner’s due process rights. The petitioner requested review of the arbitration decision from the U.S. Court of Appeals for the Federal Circuit. Holding: The agency violated the appellant’s due process rights when the deciding official consulted with relatives regarding the likelihood of the appellant’s explanation of the misconduct. 1. The court concluded that the deciding official’s decision to consult with his relatives regarding the likelihood of the appellant’s explanation of the misconduct was not cumulative information, and was instead, new evidence because their opinions were not confirming anything already in the record—they were providing new opinion on the evidence. 2. The court declined to consider whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official because there were other sufficient reasons to conclude that the agency violated the appellant’s due process rights. 3. The court explained that “[f]amilial bonds are often strong and intimate, making family members arguably the most influential people in anyone’s life,” and reasoned that it was, therefore, constitutionally impermissible to allow a deciding official to receive additional material that may undermine the objectively required to protect the fairness of the process. Holding: Because the parties did not brief the remedy due to the petitioner following a finding of a due process violation, the appeal was remanded to the arbitrator to determine the proper remedy. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
02-27-2023	2023 MSPB 8	Rosemary Jenkins	https://www.mspb.gov/decisions/precedential/JENKINS_ROSEMARY_DC_0752_11_0867_B_1_OPINION_AND_ORDER_2006134.pdf	United States Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 8 Docket No. DC-0752-11-0867-B-1 Rosemary Jenkins, Appellant, v. United States Postal Service, Agency. February 27, 2023 Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant. LaDonna L. Griffith-Lesesne, Esquire, Landover, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review and the agency has filed a cross petition for review of the remand initial decision, which affirmed the agency’s August 9, 2011 enforced leave action. For the reasons set forth below, we DENY the appellant’s petition for review and the agency’s cross petition for review, VACATE both the remand initial decision and the Board’s August 5, 2014 Remand Order in MSPB Docket No. DC-0752-11-0867-I-2, and DISMISS the appeal. We FORWARD the matter to the Board’s Washington Regional Office for docketing as a new appeal under 5 C.F.R. § 353.304(c). 2 BACKGROUND ¶2 Prior to her retirement, the appellant, a preference eligible, was a 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 6, Subtab 4g at 3. She underwent surgery in June 2005, and returned to duty with restrictions. Id. On September 10, 2009, the appellant again injured her right foot and subsequently entered a leave status. Id. She filed a claim with the Office of Workers’ Compensation Programs (OWCP) for recurrence of her 2004 injury, but OWCP denied her claim, and the OWCP Branch of Hearing and Review affirmed that decision on November 29, 2010. Id. at 4-8. ¶3 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, Tab 1. The administrative judge assigned to that 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). ¶4 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 without success. Hearing Transcript at 53 (testimony of proposing official), 80-82 (testimony of deciding official); Jenkins v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0867-B-1, Remand File (RF), Tab 10 at 11-12. On July 8, 2011, the agency issued the appellant a Notice of Proposed Placement on 3 Enforced Leave, explaining that no work was available within her medical restrictions. 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. ¶5 Also on August 9, 2011, the appellant filed the instant Board appeal, arguing that the agency constructively suspended her, discriminated against her on the basis of her disability, and deprived her of her statutory rights by 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 decision1 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. Jenkins v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0867-I-2, Appeal File (I-2 AF), Tab 13 at 23. Her appeal was later 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 1 The OWCP decision was addressed to Rosemary A. Brocks of Norfolk, Virginia. IAF, Tab 10 at 4. 4 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. ¶6 While the appellant’s petition for review of that decision was pending, the Board issued its decision in Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (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. Id., ¶¶ 9-10. By order dated August 5, 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. ¶7 On remand, the administrative judge issued a new initial decision sustaining the August 9, 2011 enforced leave action.2 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 2 On remand, the appellant waived her right to a hearing. RF, Tab 21 at 3. 5 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. In so finding, the administrative judge noted that during the period following OWCP’s September 19, 2011 reconsideration decision, the agency apparently had not complied with its self-imposed rules concerning reassigning employees with compensable injuries. RID at 10-11. Specifically, the agency had restricted its search to vacant, funded positions, whereas it was obliged under section 546 of the Employee and Labor Relations Manual to search for available duties regardless of whether those duties comprised the essential functions of an established position. RID at 9-10. However, the administrative judge found “no reason to conclude that a proper search would likely have uncovered available duties within the appellant’s medical restrictions.” RID at 10-11. ¶8 The administrative judge further found that the appellant failed to prove her disability discrimination claim based on a failure to accommodate, 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 proposal of enforced leave, but that this error was neither harmful nor in violation of her due process rights. RID at 12-14. In addition, he found that the agency had not improperly withheld materials on which it relied in proposing her placement on enforced leave. RID at 14-15. ¶9 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. However, he found that the 6 case was distinguishable from Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473, ¶¶ 19-22 (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. The administrative judge noted that the parties had not had an opportunity to develop the record under a restoration theory, but advised the appellant that she was not precluded from filing a separate restoration appeal. RID at 17. ¶10 On petition for review, the appellant contests the administrative judge’s findings on the charge and harmful error defense, and contends 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 argues 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. On cross petition for review, the agency contends 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 7 at 8-10. The appellant has responded to the agency’s cross petition for review. RPFR File, Tab 9. ANALYSIS ¶11 Pursuant to congressional authority, the Office of Personnel Management (OPM) has promulgated a comprehensive scheme that identifies the rights and remedies for individuals who partially or fully recover from compensable injuries. Kinglee, 114 M.S.P.R. 473, ¶ 22; 5 C.F.R. part 353; see 5 U.S.C. § 8151. As relevant here, 5 C.F.R. § 353.301(d) provides that an agency “must make every effort to restore in the local commuting area, according to the circumstances of each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” OPM’s 7 regulations further provide that a partially recovered employee may appeal to the Board for a determination of whether the agency has acted arbitrarily and capriciously in denying restoration.3 5 C.F.R. § 353.304(c). ¶12 When an agency fails to assign work to a partially recovered employee and requires her absence from duty, the employee may not contest the agency’s action as a suspension, because her rights and remedies are subsumed in the restoration process. Bohannon v. U.S. Postal Service, 115 M.S.P.R. 629, ¶ 11 (2011); Kinglee, 114 M.S.P.R. 473, ¶¶ 16-22. As we explained in Kinglee, 114 M.S.P.R. 473, ¶ 22, this holding is consistent with the principle of excluding other avenues of relief where a comprehensive scheme exists regarding the rights and remedies at issue. Although the appellants in Kinglee and Bohannon attempted to raise constructive suspension claims, we find this principle applies equally to cases such as this one, in which the agency’s denial of restoration is couched as an enforced leave action. ¶13 The Board also 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 3 To establish jurisdiction under 5 C.F.R. § 353.304(c), an appellant must, inter alia, make a nonfrivolous allegation that the agency failed to comply with the minimum requirement of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee and to consider her for any such vacancies. Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20. Although an agency may undertake restoration efforts beyond the minimum effort required by OPM under 5 C.F.R. § 353.301(d), an agency’s failure to comply with its self-imposed obligations 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. Moreover, an appellant’s claim of prohibited discrimination or reprisal for protected activity is immaterial to the question of whether a denial of restoration was arbitrary and capricious for purposes of section 353.304(c). Id., ¶ 21. 8 compensation, and OWCP subsequently reversed its earlier decision, thus entitling him to restoration rights during the period at issue). We therefore conclude that, upon the appellant’s partial recovery from her September 10, 2009 injury, she acquired restoration rights under 5 C.F.R. § 353.301(d). From that point forward, her rights and remedies concerning her attempted return to duty were subsumed under the restoration process. See Bohannon, 115 M.S.P.R. 629, ¶ 11; Kinglee, 114 M.S.P.R. 473, ¶¶ 16-22. Hence, if the appellant believes that, subsequent to September 10, 2009, the agency arbitrarily and capriciously denied her restoration as a partially recovered employee, her exclusive avenue of remedy is an appeal under 5 C.F.R. § 353.304(c). See 5 U.S.C. § 8151. ¶14 Because this time frame encompasses the period during which the appellant was in enforced leave status, we DISMISS her chapter 75 appeal. Given this disposition, we do not reach the parties’ remaining arguments on review. While the appellant has expressed her wish to pursue a restoration claim, the parties have not had an opportunity to fully develop the record on that issue. Accordingly, rather than adjudicate a restoration claim at this time, we FORWARD the matter to the Board’s regional office for docketing as a new appeal under 5 C.F.R. § 353.304(c).4 4 In the unique circumstances of this case, we deem the appeal to be timely filed. To the extent we may have suggested in the decision in Brocks v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0628-I-1, Final Order (Aug. 22, 2012), that the appellant cannot establish jurisdiction over a restoration claim, any such statement is without preclusive effect, as we did not rely on it in dismissing the constructive suspension claim at issue in that appeal. See Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016) (observing that collateral estoppel applies when, inter alia, the issue decided in a prior action was necessary to the resulting judgment), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). 9 ORDER ¶15 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 RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described 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 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 11 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 12 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 13 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/JENKINS_ROSEMARY_DC_0752_11_0867_B_1_OPINION_AND_ORDER_2006134.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:
02-22-2023	2023 MSPB 6	Randall Desjardin	https://www.mspb.gov/decisions/precedential/DESJARDIN_RANDALL_S_SF_0353_15_0241_I_1_OPINION_AND_ORDER_2004742.pdf	U.S. Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 6 Docket No. SF-0353-15-0241-I-1 Randall S. Desjardin, Appellant, v. United States Postal Service, Agency. February 22, 2023 Randall S. Desjardin, Grove, Oklahoma, pro se. Michael R. Tita, Esquire, Sandy, Utah, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt Member Vice Chairman Harris recused herself 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 that granted in part his restoration claim on the merits. The agency has filed a cross petition for review. For the reasons discussed below, we DENY the petition for review and GRANT the cross petition for review. We AFFIRM the initial decision IN PART, AS MODIFIED by this Opinion and Order, REVERSE it IN PART, and VACATE it IN PART. More specifically, we AFFIRM AS MODIFIED the administrative judge’s finding that the agency arbitrarily and capriciously denied the appellant restoration. We REVERSE the administrative 2 judge’s finding that the agency discriminated against the appellant on the basis of his disability. We VACATE the administrative judge’s order to pay the appellant back pay for 2 hours per day for the time during which he was denied partial restoration. BACKGROUND ¶2 The appellant is employed by the agency as a City Carrier. Initial Appeal File (IAF), Tab 6, Subtab A at 2. On December 11, 2014, he submitted a written request to the agency’s local injury compensation manager to return to work following an absence due to a compensable injury. Id., Subtab B. He included a Form CA-17 (Duty Status Report) completed by his doctor that listed his medical restrictions. Id. at 2. He submitted updated paperwork over the following week. Id. at 4, 6-7, 10, 12. ¶3 On January 7, 2015, the appellant filed this Board appeal challenging the agency’s failure to restore him to duty. IAF, Tab 1. Around the time the appellant filed his Board appeal, the agency informed him by letter that it had unsuccessfully searched for available work within his medical restrictions within his facility and throughout the local commuting area. IAF, Tab 6, Subtab E. Although the letter was dated January 5, 2015, it does not appear to have been sent to the appellant until 8 days later. Id., Subtab F. Additionally, the appellant’s supervisor conceded in her hearing testimony that in fact a full search of the local commuting area had not been conducted when the agency sent the letter. Hearing Compact Disc (HCD) (testimony of S.N.). ¶4 The agency searched the local commuting area on January 15, 2015, based on restrictions that differed somewhat from those set forth by the appellant’s doctor. That search resulted in a finding of no work available within the appellant’s restrictions. IAF, Tab 17 at 31-71. Approximately 2 weeks after he filed this appeal, the appellant received and accepted a modified limited-duty assignment casing mail for up to 2 hours per day. Id. at 14. The appellant 3 accepted the modified limited-duty assignment “under protest,” asserting that there was sufficient work available for him to work a full-time schedule. Id. at 13-14. He also argued that he could perform his duties as a union steward. Id. ¶5 Effective March 24, 2015, the appellant accepted a new modified limited-duty assignment for 8 hours per day. IAF, Tab 42, Subtab BB. In accepting the offer, the appellant protested that the offer did not specifically include union steward duties. Id. However, the appellant acknowledged in his hearing testimony that he was permitted to perform those duties after accepting the March 24, 2015 limited-duty assignment. HCD (testimony of the appellant). ¶6 After holding a hearing, the administrative judge issued an initial decision granting the appellant’s request for restoration in part. IAF, Tab 61, Initial Decision (ID). Specifically, she found that the agency’s initial search for available work for the appellant was inadequate because it failed to include the entire local commuting area and was based on incorrect medical restrictions.1 ID at 7. She further found that the appellant’s partial restoration to duty in January 2015 was so unreasonable as to amount to an arbitrary and capricious denial of restoration. ID at 7-8. The administrative judge rejected the appellant’s argument that the agency was required to assign him to perform union steward duties as part of its restoration obligation. ID at 9-11. However, she found that there were at least 2 hours of work available daily within the appellant’s medical restrictions from the time he submitted his restoration request in December 2014. ID at 11-13. Accordingly, the administrative judge ordered the agency to pay the appellant back pay and benefits for 2 hours per day for the period during which 1 The administrative judge determined that the agency had searched for work based on a restriction of no walking at all, when the appellant’s walking restriction was limited to walking carrier routes. ID at 7. 4 his request for restoration was denied in its entirety and to conduct a proper search for available work retroactive to December 12, 2014. ID at 28-29. ¶7 Having found that the Board had jurisdiction over the appellant’s restoration appeal, the administrative judge then addressed the appellant’s claims of discrimination, retaliation, and harmful procedural error. She found that the appellant failed to show that the agency denied him a reasonable accommodation for his disability because he failed to identify either an accommodation that would have enabled him to perform the essential functions of his position or a vacant funded position to which he could have been reassigned. ID at 16-17. In addressing the appellant’s disparate treatment disability discrimination claim, the administrative judge applied a mixed-motive analysis and found that the appellant’s disability was a motivating factor in both the agency’s failure to immediately restore him for at least 2 hours per day, as well as its failure to restore him to full-time work. ID at 17-19. The administrative judge found that the agency proved by clear and convincing evidence that it would have denied the appellant a full-time limited-duty assignment even in the absence of his disability, but she also found that the agency failed to meet that burden regarding the failure to immediately provide 2 hours of work. ID at 19-20. ¶8 The administrative judge also found that the appellant failed to prove that his sex or prior equal employment opportunity (EEO) activity was a motivating factor in the agency’s actions. ID at 20-23. She further found that the appellant failed to show that the agency’s actions constituted retaliation for his whistleblowing or union activities. ID at 23-27. Finally, the administrative judge found that the appellant failed to show any harmful error separate from the merits of his restoration claim. ID at 27-28. ¶9 The appellant has filed a petition for review and the agency has filed a cross petition for review challenging the initial decision. Petition for Review (PFR) File, Tabs 1, 9. The appellant argues that the agency’s actions violated the applicable collective bargaining agreement, the agency’s Employee and Labor 5 Relations Manual, and the National Labor Relations Act by failing to allow him to perform union duties. PFR File, Tab 1 at 9-12. He also argues that there were sufficient nonunion duties available to restore him to full-time work. Id. at 13-17. He argues that his union duties are essential functions of his position and that the agency’s failure to restore him to perform those duties is therefore a denial of reasonable accommodation. Id. at 17. The appellant further argues that he proved his claims of harmful error, sex discrimination, and retaliation for prior EEO, whistleblowing, and union activities. Id. at 18-21. Finally, the appellant asserts that he has evidence that was not previously available.2 Id. at 21, 25-165. In its cross petition for review, the agency argues that the administrative judge erred in finding disability discrimination because it was not required under the Rehabilitation Act to offer the appellant duties that did not comprise the essential functions of a position. PFR File, Tab 9 at 10-12. The appellant has responded in opposition to the agency’s cross petition for review.3 PFR File, Tab 11. 2 We have reviewed the documents the appellant submitted for the first time on review, and we find that he has not shown that those documents were unavailable prior to the close of the record below, despite his due diligence. Therefore, the Board will not consider them. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Regarding the sworn statements submitted with the petition for review, although the statements themselves are dated after the close of the record below, the appellant has not shown that the information contained in the documents, not just the documents themselves, were unavailable despite his due diligence. See Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989); 5 C.F.R. § 1201.115(d). 3 We deny the appellant’s objection to the Clerk of the Board’s order granting the agency an extension of time to file its response to the appellant’s petition for review. PFR File, Tab 11 at 4. 6 ANALYSIS To establish jurisdiction over his restoration claim as a partially recovered employee, the appellant must show that the agency failed to meet its minimum obligation under 5 C.F.R. § 353.301(d). ¶10 The Federal Employees’ Compensation Act provides, among other things, that Federal employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Congress has explicitly granted the Office of Personnel Management (OPM) the authority to issue regulations governing the obligations of employing agencies in this regard. 5 U.S.C. § 8151(b). Pursuant to this authority, OPM has issued regulations requiring agencies to make certain efforts toward restoring employees with compensable injuries to duty, depending on the timing and extent of their recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92, ¶ 6 (1999). ¶11 The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as injured employees who, “though not ready to resume the full range” of their regular duties, have “recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements.” Section 353.301(d) requires agencies to “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” This means, “[a]t a minimum,” treating individuals who have partially recovered from a compensable injury substantially the same as other disabled4 individuals under the Rehabilitation Act, as amended. 5 C.F.R. § 353.301(d). The Board has interpreted the regulation to require that an agency 4 The regulation anachronistically refers to “handicapped” individuals. 7 must at least search within the local commuting area for vacant positions to which it can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010).5 ¶12 Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to individuals affected by restoration decisions under 5 C.F.R. § 353.301. As relevant here, the regulation provides that a partially recovered individual “may appeal to [the Board] for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304(c). Pursuant to the law and regulations in effect at the time this appeal was filed, to establish jurisdiction over a restoration appeal as a partially recovered individual, the appellant must prove the following by preponderant evidence: (1) he was absent from his position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part-time basis or to return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious.6 Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104 (Fed. Cir. 2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012), 5 Although the Rehabilitation Act may in some cases require an agency to search beyond the local commuting area, we have found that, read as a whole, section 353.301(d) requires only that an agency search within the local commuting area and that the reference to the Rehabilitation Act means that, in doing so, it must undertake substantially the same effort that it would exert under that Act when reassigning a disabled employee within the local commuting area. Sanchez, 114 M.S.P.R. 345, ¶ 18. 6 A preponderance of the evidence is “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q) (formerly codified at 5 C.F.R. § 1201.56(c)(2) (2015)). 8 overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶¶ 20-21.7 ¶13 The jurisdictional standard established by 5 C.F.R. § 353.304(c) “reflects the limited substantive right enjoyed by partially recovered employees.” Bledsoe, 659 F.3d at 1103. Whereas employees who fully recover from a compensable injury within a year have an “unconditional right to restoration under 5 C.F.R. § 353.301(a) and 5 U.S.C. § 8151(b)(1),” a partially recovered employee does not have such an unconditional right. Bledsoe, 659 F.3d at 1103. Rather, the agency only is obliged to “make every effort to restore” a partially recovered employee “in the local commuting area” and “according to the circumstances in each case.” Id.; 5 C.F.R. § 353.301(d). The Board appeal right under 5 C.F.R. § 353.304(c) is likewise conditional: “[b]ecause partially recovered employees do not have an unconditional right to restoration, they do not have the right to appeal every denial of restoration.” Bledsoe, 659 F.3d at 1103 (emphasis in original). Accordingly, the arbitrary and capricious standard of 5 C.F.R. § 353.304(c) “limits jurisdiction to appeals where the substantive rights of partially recovered [appellants] under section 353.301(d) are actually alleged to have been violated.” Id.; cf. Palmer v. Merit Systems Protection Board, 550 F.3d 1380, 1383 (Fed. Cir. 2008) (holding that a partially recovered employee alleging improper restoration “may appeal only on the limited grounds enumerated in [section 353.304(c)]”). In other words, for purposes of the fourth jurisdictional element, a denial of restoration is “rendered arbitrary and 7 After Bledsoe and Latham were issued, the Board changed its regulations and adopted a “nonfrivolous allegation” standard for restoration appeals, rather than the “preponderant evidence” standard set forth in those cases. Kingsley, 123 M.S.P.R. 365, ¶ 10. The new standard applies only in cases filed on or after March 30, 2015, Practices and Procedures, 80 Fed. Reg. 4,489, 4,496 (Jan. 28, 2015) (codified in pertinent part at 5 C.F.R. § 1201.57), and is therefore inapplicable to this appeal. 9 capricious by [an agency’s] failure to perform its obligations under 5 C.F.R. § 353.301(d).” Bledsoe, 659 F.3d at 1104. ¶14 Under the law in effect at the time this appeal was filed, an appellant who established these jurisdictional elements automatically prevailed on the merits. Latham, 117 M.S.P.R. 400, ¶ 10 n.9. In finding that the appellant established jurisdiction over, and thus the merits of, his restoration claim, the administrative judge applied the standard set forth in Latham, in which the Board held that when an agency voluntarily assumes restoration obligations beyond the “minimum” requirements of 5 C.F.R. § 353.301(d), the agency’s failure to comply with those agency-specific requirements is arbitrary and capricious for purposes of establishing Board jurisdiction. ID at 5-6; Latham, 117 M.S.P.R. 400, ¶¶ 13-14. As the Board in Latham recognized, the U.S. Postal Service’s rules obligate it to offer modified assignments when the work is available regardless of whether the duties constitute those of an established position. See Latham, 117 M.S.P.R. 400, ¶ 41. Thus, under existing precedent, the administrative judge properly considered whether the agency properly searched for and provided available duties to the appellant. ID at 7-8. ¶15 However, after the initial decision in this appeal was issued, the Board overruled Latham in Cronin. The Board in Cronin held that, although agencies may undertake restoration efforts beyond the minimum effort required by OPM under 5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed obligations 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. Rather, as explained in Cronin, the issue before the Board is limited to whether the agency failed to comply with the minimum requirement of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee 10 and to consider him for any such vacancies. See Cronin, 2022 MSPB 13, ¶ 20 (citing Sanchez, 114 M.S.P.R. 345, ¶ 12). ¶16 The Board in Cronin further held that, contrary to its prior suggestion in Latham, claims of prohibited discrimination or reprisal cannot serve as an “alternative means” of showing that a denial of restoration was arbitrary and capricious. Id., ¶ 21. The Board in Cronin held that, although an agency’s failure to comply with section 353.301(d) may well be the result of prohibited discrimination or reprisal for protected activity, whether that is so is immaterial to the question of whether a denial of restoration is arbitrary and capricious for purposes of section 353.304(c). Cronin, 2022 MSPB 13, ¶ 21. The agency violated its restoration obligation by failing to search throughout the local commuting area for vacant positions to which it could reassign the appellant, and the proper remedy is for the agency to conduct such a search retroactively. ¶17 Under Cronin, the Board’s sole jurisdictional inquiry in an appeal alleging an arbitrary and capricious denial of restoration to a partially recovered employee is whether the agency complied with its obligation under 5 C.F.R. § 353.301(d) to search within the local commuting area for vacant positions to which it can restore the employee and to consider him for any such vacancies. For restoration rights purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999). It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193 (1997). The question of what constitutes a local commuting area is one of fact. Sanchez, 114 M.S.P.R. 345, ¶ 13. The extent of a commuting area is ordinarily determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Id. 11 ¶18 Here, the administrative judge found that the agency’s initial search for available work in December 2014 was limited to the appellant’s facility and therefore did not cover the entire local commuting area. ID at 7. Under Cronin, the agency’s efforts to find work that did not constitute the essential functions of an established position cannot form the basis of a restoration claim before the Board.8 We therefore vacate the administrative judge’s findings that the agency’s actions in connection with its search for modified duties constituted an arbitrary and capricious denial of restoration within the Board’s jurisdiction.9 However, in light of both the agency’s failure to search beyond a single facility when the appellant sought to return to work, as well as its use of incorrect restrictions when searching for work, we find that the agency violated its obligation under 5 C.F.R. § 353.301(d) to search the local commuting area for vacant positions to which it could restore the appellant. See Scott v. U.S. Postal Service, 118 M.S.P.R. 375, ¶ 13 (2012) (finding an arbitrary and capricious denial of restoration when the agency based its search for work on incorrect restrictions); Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (finding a nonfrivolous allegation of an arbitrary and capricious denial of restoration when the agency’s search for available work was limited to a single facility). We therefore find that the agency violated the appellant’s restoration rights under 5 C.F.R. § 353.301(d) but only to the extent it failed to conduct a proper search for vacant positions. 8 Consistent with general principles of law, we give Cronin retroactive effect in this case, which was pending at the time Cronin was decided. Heartland By-Products, Inc. v. United States, 568 F.3d 1360, 1365 (Fed. Cir. 2009). 9 Although we find the agency’s search in this case was inadequate, we do not mean to suggest that an agency violates an employee’s restoration rights under 5 C.F.R. § 353.301(d) by searching for available duties that do not constitute the essential functions of an established position. We assume that a properly conducted search for available duties within an employee’s restrictions also would encompass available positions with duties that fell within those restrictions. The search in this case was inadequate because the agency failed to search the entire local commuting area and used incorrect restrictions. 12 ¶19 When, as in this case, the denial of restoration was arbitrary and capricious for lack of a proper job search, the Board has found that the proper remedy is for the agency to conduct an appropriate search of the local commuting area retroactive to the date of the appellant’s request for restoration, and to consider him for any suitable vacancies. Tram v. U.S. Postal Service, 118 M.S.P.R. 388, ¶ 10 (2012). The remedy of a retroactive job search will be sufficient to correct the wrongful action and substitute it with a correct one based on an appropriate search. Id. However, it will not put the appellant in a better position than the one he was in before the wrongful action because it leaves open the possibility that the agency still might be unable to find a vacant position. Id. The appellant may be entitled to back pay only if the agency’s retroactive search uncovers a position to which it could have restored him.10 Id. We therefore vacate the administrative judge’s order requiring the agency to pay the appellant back pay for the period during which she determined he was entitled to partial restoration. The Board will continue to adjudicate discrimination and retaliation claims in connection with denials of restoration over which it has jurisdiction. ¶20 The Board in Cronin declined to address how it should address claims of discrimination and retaliation in restoration appeals within its jurisdiction. Cronin, 2022 MSPB 13, ¶ 21 n.12. In Latham, the Board stated that, in restoration appeals, claims of discrimination and reprisal should be understood as “independent claims” rather than as “affirmative defenses.” Latham, 117 M.S.P.R. 400, ¶ 58 n.27. The Board indicated that the concept of an “affirmative defense” fits better in matters such as adverse action appeals when the agency bears the burden of proof on the merits.11 Id. 10 We agree with the administrative judge that the appellant’s union duties are not themselves a position to which he could have been reassigned. ID at 9-11. 11 The Board in Latham also noted the possibility that discrimination and reprisal claims could serve as alternative ways for an appellant to show that the denial of restoration was arbitrary and capricious. Latham, 117 M.S.P.R. 400, ¶ 58 n.27. However, as we 13 ¶21 Despite the Board’s criticism in Latham of the use of the term “affirmative defense” to describe the adjudication of discrimination and retaliation claims in restoration appeals, the Board has continued to adjudicate those claims in the same manner as it did before Latham. See, e.g., Davis v. U.S. Postal Service, 120 M.S.P.R. 122, ¶¶ 15-18 (2013), overruled on other grounds by Cronin, 2022 MSPB 13. We see no reason to alter that approach. Under 5 U.S.C. § 7702(a)(1), if an employee “has been affected by an action which [he] may appeal” to the Board and “alleges that a basis for the action was discrimination prohibited by” certain enumerated anti-discrimination statutes, the Board is required to “decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.” Thus, once the appellant has established that the challenged action is within the Board’s jurisdiction, the Board is required by statute to adjudicate both the action itself and any claim that the action was based on one of the enumerated categories of prohibited discrimination. Findings that the agency committed disability discrimination against injured employees in the past do not control the outcome of the disability discrimination issue in this appeal. ¶22 As we noted in Cronin, 2022 MSPB 13, ¶ 22 n.13, the Equal Employment Opportunity Commission (EEOC) held in a class action appeal that the agency had discriminated against disabled employees who were injured on duty (IOD) and assessed under the agency’s National Reassessment Program (NRP) between May 2006 and July 2011. See Velva B. v. U.S. Postal Service, EEOC Appeal Nos. 0720160006 & 0720160007, 2017 WL 4466898 (Sept. 25, 2017), request for reconsideration denied, Request Nos. 0520180094 & 0520180095, 2018 WL 1392289 (Mar. 9, 2018). Specifically, the EEOC found that “officials explained previously, that aspect of Latham is no longer good law under Cronin. Supra ¶ 16. 14 involved in the development and deployment of the NRP were motivated by unlawful considerations of the class members’ disabilities when they subjected IOD employees to NRP assessments and took follow-up actions to those assessments under the auspices of the NRP.” Id. at 14-21. Those “follow-up” actions included the withdrawal of previously granted modified work assignments from IOD employees, id. at 26, the creation of a hostile work environment, id. at 29, subjecting employees to unlawful disability-related medical inquiries, id. at 33, and disclosing confidential medical information, id. at 38. ¶23 The Board generally defers to the EEOC on issues of substantive discrimination law unless the EEOC’s decision rests on civil service law for its support or is so unreasonable that it amounts to a violation of civil service law. Alvara v. Department of Homeland Security, 116 M.S.P.R. 627, ¶ 8 (2011). However, we find that the EEOC’s decision in Velva B. does not control the outcome of the disability discrimination issue in this appeal or any other restoration appeal within the Board’s jurisdiction. ¶24 First, the EEOC made clear that the matters before it in the class action were not mixed cases, i.e., they did not involve matters appealable to the Board. Velva B., 2018 WL 1392289, at 3; see 29 C.F.R. § 1614.302(a). Any restoration appeal within the Board’s jurisdiction in which disability discrimination is claimed is, by definition, a mixed-case appeal, 29 C.F.R. § 1614.302(a)(2), and is therefore distinct from the matters addressed by the EEOC in Velva B. ¶25 Additionally, the Board’s jurisdiction over discrimination claims in mixed cases is limited to determining whether discrimination was “a basis for the action” within its jurisdiction. See 5 U.S.C. § 7702(a)(1). The Board’s jurisdiction to adjudicate a discrimination claim as to one personnel action does not include jurisdiction over all other actions the appellant alleges to be discriminatory. See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶¶ 8-13 (2005) (rejecting the EEOC’s suggestion that the Board could adjudicate discrimination claims relating to otherwise nonappealable actions if they are 15 “inextricably intertwined” with or “cannot sensibly be bifurcated” from otherwise appealable actions). Thus, in the case of an arbitrary and capricious denial of restoration to a partially recovered employee, the Board can consider only whether that particular denial of restoration was discriminatory. The Board can consider agency actions other than the appealable action only to the extent those other actions are relevant to whether the appealable action itself was discriminatory. See Deas v. Department of Transportation, 108 M.S.P.R. 637, ¶ 20 (2008) (finding in a suspension appeal that, while the Board could not adjudicate a claim that the proposal to suspend was discriminatory, it could consider whether any discrimination in the proposal could be imputed to the subsequent suspension), overruled on other grounds by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014). Here, the matter over which the Board has jurisdiction is the agency’s failure to restore the appellant due to its failure to properly search the local commuting area for vacant positions to which it could have reassigned him. In adjudicating the appellant’s discrimination claims, the Board therefore is limited to consideration of that action. Discrimination claims relating to other agency actions, including any actions relating to limited-duty assignments that do not constitute the essential functions of an established position, are matters for the EEOC, rather than the Board. ¶26 Finally, the EEOC’s findings of disability discrimination in Velva B. involve the development and implementation of the NRP, a program that ended in 2011. Velva B., 2017 WL 4466898, at 6. The events at issue in this appeal took place more than 3 years after the NRP ended, and there is no indication that the actions at issue here were affected by the NRP. Thus, the EEOC’s findings as to the NRP’s development and implementation do not affect our analysis of the disability discrimination claim in this case. The appellant did not prove his disability discrimination claims. ¶27 The appellant alleged disability discrimination under both reasonable accommodation and disparate treatment theories. The Board adjudicates claims 16 of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the standards of the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Id. Therefore, we apply those standards here to determine if there has been a Rehabilitation Act violation. Id. In particular, the ADAAA provides that it is illegal for an employer to “discriminate against a qualified individual on the basis of a disability.” 42 U.S.C. § 12112(a). The Board recently clarified that only an otherwise qualified individual with a disability is entitled to relief, whether the individual alleges disability discrimination based on a disparate treatment or reasonable accommodation theory. Haas v. Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29.12 ¶28 A qualified individual with a disability is one who can “perform the essential functions of the . . . position that such individual holds or desires” with or without reasonable accommodation. 42 U.S.C. § 12111(8). Thus, an appellant can establish that he is a qualified individual with a disability by showing that he can, with or without accommodation, perform either the essential functions of his position of record or those of a vacant funded position to which he could be assigned. See Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 11 (2014). 12 The administrative judge informed the appellant that he was required to show that he was a qualified individual with a disability to be entitled to protection under the Rehabilitation Act. IAF, Tab 51 at 5. Thus, although we are applying the Board’s decisions in Pridgen and Haas, which were issued after the initial decision in this case and clarified the relevant legal standard, the appellant had adequate notice of that standard. 17 ¶29 The appellant does not allege that he could perform the essential functions of his City Carrier position with or without accommodation, and the medical restrictions submitted by his doctor precluded “route walking. . . for the delivery of mail.” IAF, Tab 6, Subtab B at 7. We therefore find that the appellant did not establish that he was qualified based on his ability to perform the essential functions of the position he held. Thus, he would need to identify a vacant funded position to which he could have been reassigned in order to establish that he is a qualified individual with a disability. In addressing the appellant’s reasonable accommodation claim, the administrative judge found that the appellant failed to meet his burden to show that there was any vacant position he could perform within his medical restrictions, even with a reasonable accommodation. ID at 16-17. We agree with the administrative judge’s finding because the record does not show any existing vacant position to which the appellant could have been reassigned.13 We therefore find that the appellant’s disability discrimination claims under both disparate treatment and reasonable accommodation theories fail because he has not established that he is a qualified individual with a disability. The appellant failed to prove his affirmative defenses of discrimination based on his sex or retaliation for prior EEO activity. ¶30 As to the appellant’s claims of sex discrimination and retaliation for prior EEO activity, the administrative judge applied the standard set forth by the Board in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). Applying that 13 Our finding that the agency failed to conduct a proper search for available positions within the local commuting area, supra ¶ 18, does not relieve the appellant of his burden to establish the existence of a position to which he could have been reassigned in order to establish that he is a qualified individual with a disability. The agency argued before the administrative judge that the appellant had not identified a position he could perform within his medical restrictions. IAF, Tab 17 at 10. The appellant acknowledged that argument and indicated that he had requested information in discovery regarding the availability of positions he could perform. IAF, Tab 18 at 5. 18 standard, the administrative judge found that the appellant failed to prove by preponderant evidence that either his sex or prior EEO activity was a motivating factor in the agency’s actions. ID at 20-23. ¶31 Title VII of the Civil Rights Act of 1964, as amended, requires that actions “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Since the initial decision was issued, the Board has clarified that an appellant who proves that discrimination under Title VII was a motivating factor in the contested personnel action may be entitled to injunctive or other “forward-looking” relief, but to obtain the full measure of relief, including status quo ante relief, compensatory damages, or other forms of relief related to the end result of an employment decision, the appellant must show that discrimination was a “but-for” cause of the action. Pridgen, 2022 MSPB 31, ¶¶ 20-22. “But-for” causation is a higher burden than “motivating factor” causation. Id., ¶¶ 21 n.4, 22, 48. Consistent with the administrative judge’s findings, we conclude that the appellant has not shown that his sex was a motivating factor in the agency’s failure to properly search the local commuting area.14 Because the appellant did not show that his sex was a motivating factor in the agency’s failure to restore him, he necessarily failed to meet the more stringent “but-for” standard. Id. Accordingly, he is not entitled to any relief based on his allegations of sex discrimination. ¶32 Concerning the appellant’s retaliation claims, the record reflects that his prior EEO activity was based on both Title VII and the ADA. IAF, Tab 20 at 20, Tab 26 at 4, 28. Claims of retaliation for opposing discrimination in violation of 14 Administrative judges are not required to separate “direct” from “indirect” evidence and to proceed as if such evidence were subject to different legal standards, or to require appellants to demonstrate a “convincing mosaic” of discrimination or retaliation. Pridgen, 2022 MSPB 31, ¶ 24. Although the administrative judge in this case discussed different types of evidence, we find no material error and the initial decision reflects that the administrative judge properly considered the record as a whole. ID at 20-23. 19 Title VII are analyzed under the same framework used for Title VII discrimination claims, as set forth above. Pridgen, 2022 MSPB 31, ¶ 30. We see no error in the administrative judge’s findings that the appellant failed to prove that Title VII retaliation was a motivating factor in the agency’s actions.15 ¶33 To prevail in a claim of retaliation for engaging in activity protected by the ADA, as amended by the ADAAA, including filing EEO complaints based on disability discrimination, the appellant must show that retaliation was a “but-for” cause of the agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 44-47. The administrative judge, applying the now-obsolete mixed-motive analysis, found that the appellant failed to show that retaliation was a motivating factor in the agency’s denial of his restoration rights. ID at 21-22; see Pridgen, 2022 MSPB 31, ¶ 47 (overruling Southerland v. Department of Defense, 119 M.S.P.R. 566 (2013), to the extent it applied a mixed-motive standard to ADA retaliation claims). Because the appellant did not show that his protected activity was a motivating factor in the agency’s failure to restore him, he necessarily failed to meet the more stringent “but-for” standard that applies to his retaliation claims. See Pridgen, 2022 MSPB 31, ¶¶ 21 n.4, 22, 48. Thus, the appellant is not entitled to relief for his Title VII or ADA-based retaliation claims. The appellant’s claims of harmful procedural error and retaliation for whistleblowing and union activities are moot. ¶34 Having determined that the appellant is entitled to corrective action on the merits of his restoration claim, we find that we need not address some of the appellant’s additional claims. First, because the sole remedy for a finding of 15 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that sex discrimination or retaliation for engaging in EEO activity protected by Title VII was a “but-for” cause of the agency’s decision. Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30-33. 20 harmful procedural error is reversal of the agency action, see 5 U.S.C. § 7701(c)(2)(A), the appellant already is entitled to all the relief he would obtain if he were to prevail on that claim. Similarly, because the appellant would not be entitled to damages even if he were to prevail on his claims of retaliation for whistleblowing and union activities, those claims are also moot. See Hess v. U.S. Postal Service, 123 M.S.P.R. 183, ¶ 8 (2016) (dismissing as moot a Postal Service employee’s claim of whistleblower reprisal because such employees are not entitled to attorney fees or damages for whistleblower reprisal); Farquhar v. Department of the Air Force, 82 M.S.P.R. 454, 459, ¶ 11 (1999) (holding that awards of compensatory damages are not available for claims of reprisal for having filed a grievance, or any other kind of reprisal that does not implicate Title VII of the Civil Rights Act of 1964).16 ORDER ¶35 We ORDER the agency to conduct a proper job search retroactive to December 11, 2014, and to consider the appellant for any suitable positions available during that time period consistent with its restoration obligations under 5 C.F.R. § 353.301(d). The agency must complete this action no later than 30 days after the date of this decision. ¶36 In the event the agency’s restorative job search uncovers an available position to which it could have restored the appellant, we ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the 16 The appellant’s discrimination and EEO reprisal claims are not moot because the Board is authorized to award compensatory damages in connection with those claims. Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶¶ 1, 20 (2016). 21 agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶37 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶38 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶39 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. ¶40 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). 22 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 (U.S.C.), sections 7701(g), or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. NOTICE OF APPEAL RIGHTS17 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 17 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. 23 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 24 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 25 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 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.18 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: 18 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. 26 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/DESJARDIN_RANDALL_S_SF_0353_15_0241_I_1_OPINION_AND_ORDER_2004742.pdf	Issuance Date: February 22, 2023 Appeal Type: Restoration to Duty RESTORATION TO DUTY REMEDIES The appellant is employed by the agency as a City Carrier. On December 11, 2014, he submitted a request to return to work following a compensable injury. He included a medical note completed by his doctor, which identified his medical restrictions. On January 7, 2015, the appellant filed a Board appeal challenging the agency’s failure to restore him to duty. The agency asserted that it had conducted two searches for available work. As to the first search, the agency conceded that it did not conduct a full search of the local commuting area. The second search was based on restrictions that differed from the appellant’s medical documentation. After filing this appeal, the appellant accepted a series of modified limited-duty assignments. After a hearing, the administrative judge issued an initial decision granting the appellant’s request for restoration, in part. She found that the agency’s initial search was inadequate because it failed to include the entire local commuting area and was based on incorrect medical restrictions. She further found that the appellant’s partial restoration to work in January 2015 was so unreasonable as to amount to an arbitrary and capricious denial of restoration. She found that there were at least 2 hours of work available daily within the appellant’s medical restrictions from the time he submitted his restoration request in December 2014. Accordingly, she ordered the agency to pay the appellant back pay and benefits for 2 hours per day for the period during which his request for restoration was denied in its entirety and to conduct a proper search for available work retroactive to December 12, 2014. The administrative judge found that the appellant failed to show that the agency denied him a reasonable accommodation and that he failed to prove his affirmative defenses of disability discrimination, sex discrimination, and retaliation for equal employment opportunity activity, whistleblowing, and union activities. She also found that he failed to show any harmful error separate from the merits of his restoration claim. The appellant filed a petition for review and the agency filed a cross petition for review. Holding: The agency violated the appellant’s restoration rights under 5 C.F.R. § 353.301(d) only to the extent it failed to conduct a proper search for vacant positions. 1. Because partially recovered employees do not have an unconditional right to restoration, they do not have the right to appeal every denial of restoration. 2. Under Cronin v. U.S. Postal Service, 2022 MSPB 13, the Board’s sole jurisdictional inquiry in an appeal alleging an arbitrary and capricious denial of restoration to a partially recovered employee is whether the agency complied with its obligations under 5 C.F.R. § 353.301(d) to search within the local commuting area for vacant positions to which it can restore the employee and to consider him for such vacancies. 3. Under Cronin, the agency’s efforts to find work that did not constitute the essential functions of an established position cannot form the basis of a restoration claim before the Board. 4. The Board vacated the administrative judge’s findings that the agency’s actions in connection with its search for modified duties constituted an arbitrary and capricious denial of restoration within the Board’s jurisdiction. 5. However, the Board found that the agency violated its obligation under 5 C.F.R. § 353.301(d) to search the local commuting area for vacant positions to which it could restore the appellant because its search did not encompass the entire local commuting area and used incorrect medical restrictions. Holding: When the Board finds that an agency has violated 5 C.F.R. § 353.301(d), the proper remedy is for the agency to conduct an appropriate search of the local commuting area retroactive to the date of the appellant’s request for restoration and to consider him for any suitable vacancies. 1. The appellant may be entitled to back pay only if the agency’s retroactive search uncovers a position to which it could have restored him. The appellant’s union duties are not themselves a position to which he could have been reassigned. 2. The Board vacated the administrative judge’s order for the agency to pay the appellant for 2 hours per day during the period in which his request for restoration was denied. Holding: The appellant did not prove his affirmative defenses. 1. In connection with denials of restoration over which the Board has jurisdiction, it will adjudicate discrimination and retaliation claims as affirmative defenses and not as “independent claims.” 2. Findings by the Equal Employment Opportunity Commission (EEOC) in a class action appeal that the agency committed disability discrimination in the past is not dispositive to the outcome of the disability discrimination issue in this appeal because the Board has jurisdiction over different matters than the EEOC and because the findings in the EEOC case relate to a different time period. The appellant failed to prove his disability discrimination defense. 3. The appellant failed to prove his affirmative defenses of discrimination based on sex and retaliation for prior equal employment opportunity activity. 4. The appellant’s claims of harmful procedural error and retaliation for whistleblowing and union activities are moot because the appellant is entitled to corrective action on the merits of his restoration claim. COURT DECISIONS PRECEDENTIAL:
02-22-2023	2023 MSPB 7	Cory Owens	https://www.mspb.gov/decisions/precedential/OWENS_CORY_REGINALD_PH_0752_16_0349_I_1_OPINION_AND_ORDER_2004847.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 7 Docket No. PH-0752-16-0349-I-1 Cory Reginald Owens, Appellant, v. Department of Homeland Security, Agency. February 22, 2023 Cory Reginald Owens, Baltimore, Maryland, pro se. Lorna J. Jerome, Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Leavitt issues a separate dissenting opinion. OPINION AND ORDER ¶1 This case is before the Board on the agency’s petition for review of the initial decision that reversed the appellant’s removal for inability to perform the duties of his position for medical reasons. For the reasons set forth below, we DENY the petition for review and affirm the initial decision. The appellant’s removal is NOT SUSTAINED. BACKGROUND ¶2 The appellant was a WG-10 Electrician with the U.S. Coast Guard Yard in Glen Burnie, Maryland. Owens v. Department of Homeland Security, 2 MSPB Docket No. PH-0752-16-0349-I-1, Initial Appeal File (IAF), Tab 1 at 1. He sustained a work-related injury to his right ankle on March 9, 2015, and the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) approved his claim for compensation benefits. IAF, Tab 7 at 68-69, 79-80. As a result of the injury, the appellant did not return to work. Id. at 59. ¶3 On March 21, 2016, the agency issued a notice proposing to remove the appellant for inability to perform the duties of his position for medical reasons and excessive absence with no foreseeable end in sight. Id. at 57-60. After the appellant provided written and oral responses to the proposed removal, id. at 43-44, 52, the agency issued a decision letter removing the appellant effective April 23, 2016, id. at 28, 45-48. ¶4 The appellant filed a Board appeal challenging his removal and he requested a hearing. IAF, Tab 1 at 2. During a July 21, 2016 status conference, the appellant clarified that his appeal also included a claim alleging that the agency failed to return him to duty after he either fully or partially recovered from a compensable work-related injury. IAF, Tab 14 at 2. ¶5 A hearing was held on December 19, 2016, and the record closed at the end of the hearing. IAF, Tab 26 at 3. Later that day, the appellant notified the administrative judge via facsimile that when he returned home after the hearing, he received in the mail a notice from OWCP dated December 14, 2016, stating that it had terminated his wage loss compensation effective December 11, 2016, based on its determination that he had fully recovered from his work-related injury. IAF, Tab 25. The appellant asked the administrative judge to consider the notice as evidence in his appeal. Id. ¶6 The administrative judge granted the appellant’s request and reopened the record to accept the OWCP notice into evidence. IAF, Tab 26 at 3-4. The administrative judge also allowed the agency an opportunity to respond to the new submission. Id. at 4. 3 ¶7 Following the agency’s response, IAF, Tab 27, the administrative judge issued an initial decision that reversed the appellant’s removal and ordered the agency to reinstate the appellant to the Electrician position, finding that the record shows the appellant fully recovered from his injury while his removal appeal was pending before the administrative judge. IAF, Tab 28, Initial Decision (ID) at 2, 10. Accordingly, he ordered the agency to cancel the removal and to retroactively restore the appellant effective April 23, 2016. ID at 11. He also ordered the agency to provide interim relief if a petition for review were filed by either party. ID at 12. Based on his decision to reverse the appellant’s removal, the administrative judge did not address his restoration claim. ID at 10 n.3. ¶8 The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1. Instead of filing a response to the agency’s petition for review with the full Board, the appellant filed a “Motion of Enforcement” of the interim relief order with the Board’s Northeastern Regional Office, which docketed the filing as a petition for enforcement in Owens v. Department of Homeland Security, MSPB Docket No. PH-0752-16-0349-C-1. PFR File, Tab 5 at 1-6. The agency filed a response to the petition for enforcement. Id. at 7-23. The administrative judge then issued a compliance initial decision that dismissed the petition for enforcement and forwarded it to the Office of the Clerk of the Board for consideration with the agency’s petition for review. Id. at 24-32. ANALYSIS Interim Relief ¶9 The Board’s regulations do not provide for petitions for enforcement of interim relief orders; such petitions only apply to final Board decisions. 5 C.F.R. § 1201.182(a). Board regulations do, however, allow an appellant to challenge an agency’s certification that it has provided interim relief. 5 C.F.R. § 1201.116(b). We therefore deny the appellant’s petition for enforcement and 4 instead consider that pleading as a challenge to the agency’s certification of compliance. See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 8 (2015). ¶10 Ordinarily, when an appellant challenges the agency’s certification of compliance with an interim relief order, the Board will issue an order affording the agency the opportunity to submit evidence of compliance. Id.; see 5 C.F.R. § 1201.116(b). If the agency fails to provide evidence of compliance in response to such an order, the Board may, at its discretion, dismiss the agency’s petition for review. Ayers, 123 M.S.P.R. 11, ¶ 8; see 5 C.F.R. § 1201.116(e). In this case, however, we find that the agency’s petition does not meet the criteria for review in any event, and the issuance of our final decision renders moot any dispute concerning the agency’s compliance with the interim relief order. Ayers, 123 M.S.P.R. 11, ¶ 8 (reaching the same conclusion when the Board affirmed the administrative judge’s reversal of the appellant’s removal based on whistleblower reprisal). Under these circumstances, it is unnecessary to issue an order under 5 C.F.R. § 1201.116(b). If the appellant believes that the agency is in noncompliance with the Board’s final order, though, he may file a petition for enforcement in accordance with the instructions provided below. Ayers, 123 M.S.P.R. 11, ¶ 8. The Board need not consider the agency’s timeliness argument. ¶11 For the first time on review, the agency argues that the appeal was untimely because the appellant was removed effective April 23, 2016, but did not file his appeal with the Board until June 9, 2016. PFR File, Tab 1 at 4. Therefore, the agency contends, the appellant failed to file his appeal within 30 days of the date of his removal, as required by 5 C.F.R. § 1201.22(b). Id. ¶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. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The agency has made no such showing. 5 The administrative judge correctly reversed the removal. ¶13 As for the merits of the appeal, the agency does not challenge, and we discern no reason to disturb, the administrative judge’s finding that the appellant fully recovered from his work-related injury while his removal appeal was pending before the administrative judge. PFR File, Tab 1 at 7; ID at 10. Instead, the agency argues that the administrative judge erred in finding that the appellant is entitled to restoration to his previous position as a result of his recovery. PFR File, Tab 1 at 7. ¶14 In support of this argument, the agency relies on the Office of Personnel Management regulations governing the restoration rights of employees who recover from a compensable injury, which are found at 5 C.F.R. part 353, subpart C. Id. at 5-7. Under 5 C.F.R. § 353.301(a), an employee who fully recovers from a work-related injury within 1 year from the date eligibility for compensation began is entitled to restoration to his former position or an equivalent one. By contrast, an employee who separated due to a compensable injury and whose full recovery takes longer than 1 year from the date compensation eligibility began (or from the time compensable disability recurs if the recurrence begins after the injured employee resumes regular full-time Government employment), is entitled to agency-wide priority consideration for his former position or an equivalent one if he applies for reappointment within 30 days after the cessation of compensation. 5 C.F.R. § 353.301(b). The agency argues that, because the appellant did not fully recover from his work-related injury within 1 year from the date he became eligible for compensation, he is entitled to priority consideration only, not restoration to the position from which he was removed for medical inability to perform. PFR File, Tab 1 at 7. Therefore, the agency asserts, the initial decision should be reversed inasmuch as it orders the agency to restore the appellant to his former position effective April 23, 2016. Id. 6 ¶15 This argument addresses restoration rights, but not the propriety of the appellant’s removal. Therefore, it is unavailing. It is well settled that the “efficiency of the service” standard of 5 U.S.C. § 7513(a) is the “ultimate criterion” for determining both whether any discipline is warranted and whether a particular penalty may be sustained. Wren v. Department of the Army, 121 M.S.P.R. 28, ¶ 7 (2014); Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 611 (1991). The Board has held that when an appellant presents unambiguous evidence of complete recovery from the medical condition that resulted in his removal before the administrative judge has issued an initial decision in his removal appeal, the removal action does not promote the efficiency of the service. See Casillas v. Department of the Air Force, 64 M.S.P.R. 627, 634 (1994); Morgan, 48 M.S.P.R. at 613 (“Thus, when it is apparent that the appellant’s inability to perform is temporary in nature and, in fact, that the appellant has recovered even before the Board can render an initial decision in an appeal, the Board correctly and properly refuses to hold that the agency’s removal action is for the efficiency of the service.”). The Board has consistently followed this rule since it was first established in Street v. Department of the Army, 23 M.S.P.R. 335, 340-43 (1984), nearly 40 years ago. As noted above, it is undisputed that the appellant fully recovered from his work-related injury before the administrative judge issued his initial decision in this appeal. Given these circumstances, we find that the administrative judge correctly reversed the appellant’s removal. ID at 10. ORDER ¶16 We ORDER the agency to cancel the removal action and restore the appellant to his position effective April 23, 2016. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. 7 ¶17 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶18 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶19 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶20 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 8 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 (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. NOTICE OF APPEAL RIGHTS1 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 1 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 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: 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. 10 (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 11 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 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.2 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 2 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 12 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 2 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. DISSENTING OPINION OF TRISTAN L. LEAVITT in Cory Reginald Owens v. Department of Homeland Security MSPB Docket No. PH-0752-16-0349-I-1 ¶1 For the reasons set forth below, I respectfully dissent from the majority opinion in this case. ¶2 The appellant sustained a work-related injury to his right ankle on March 9, 2015. Initial Appeal File (IAF), Tab 7 at 68-69, 79-80. For approximately 1 year following his injury, the appellant submitted to the agency numerous medical notes prescribing varying work restrictions that were incompatible with the essential functions of his Electrician position. IAF, Tab 7 at 74-77, 81-92, Tab 8 at 5-7, 9-13, Tab 24, Hearing Compact Disc (HCD) (testimony of proposing and deciding officials). His medical documentation repeatedly proffered expected return to work dates, which did not come to fruition, as the appellant did not recover sufficiently to meet the requirements of his position. IAF, Tab 7 at 53, 63, 73, 81-92. ¶3 The appellant’s absence during this lengthy period was understandably burdensome to the agency. The appellant’s first-level supervisor testified the appellant’s continued absence was unsustainable because, based on the electrical shop’s workload, the agency needed to fill the appellant’s position in order for the shop to meet its production goals. HCD (testimony of proposing official). The appellant’s second-level supervisor similarly testified there was a “vast amount of work” to be done in the shop. HCD (testimony of deciding official). The appellant’s absence impaired his ability to manage the shop’s workload. Id. It placed a burden on other employees, who had to work Saturdays or evening hours. Id. Notably, his shop had one of the highest rates of overtime usage. Id. The second-level supervisor was also concerned that he would lose the 2 appellant’s full-time equivalent position to another shop if he did not fill it, since the appellant had been absent for so long, which would further hamper his ability to address the workload. Id. ¶4 After holding the appellant’s job for over a year, the agency removed him for medical inability to perform effective April 23, 2016, noting that he had never returned to work following his March 2015 injury. IAF, Tab 7 at 28, 45-48. The appellant filed a Board appeal on June 8, 2016. IAF, Tab 1. At the hearing, which was held on December 19, 2016, the appellant claimed he had fully recovered from his prior injury, but then conceded he was still receiving wage loss benefits from the Office of Workers’ Compensation Programs (OWCP) and OWCP had not cleared him to return to duty. HCD (testimony of the appellant). The record closed at the conclusion of the hearing. HCD. ¶5 After the record closed, the appellant submitted evidence showing OWCP terminated his wage loss benefits effective December 11, 2016, based on its conclusion that he was “no longer disabled from work as a result of the 03/09/2015 work injury.” IAF, Tab 25 at 3-6. The administrative judge accepted this evidence and determined it demonstrated the appellant had fully recovered. IAF, Tab 29, Initial Decision (ID) at 5, 8-10. He concluded this evidence of post-removal recovery “required” reversal of the agency’s removal action. ID at 8-10. The majority agrees. ¶6 I agree with the majority that the “efficiency of the service” standard of 5 U.S.C. § 7513(a) is the “ultimate criterion” for determining both whether any discipline is warranted and whether a particular penalty may be sustained. Wren v. Department of the Army, 121 M.S.P.R. 28, ¶ 7 (2014); Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 611 (1991). It is also true that there is a line of Board case law which stands for the proposition that, even when an agency proves by preponderant evidence that the appellant was physically unable to perform the duties of his position at the time he was removed, the removal action “may” be rescinded on the basis that such action would not promote the 3 efficiency of the service, as required by 5 U.S.C. § 7513(a), where the evidence clearly and unambiguously demonstrates that the appellant has recovered during the pendency of a Board appeal such that he is able to perform the essential duties of his position. Wren, 121 M.S.P.R. 28, ¶ 6. I do not agree, however, that this line of cases establishes a “rule” mandating reversal whenever an appellant presents unambiguous evidence of complete recovery before the administrative judge has issued an initial decision in his removal appeal.* Rather, as the Board has previously explained, the outcomes in these cases “are limited to the unique circumstances” they each present. Morgan, 48 M.S.P.R. at 612; see also Street v. Department of the Army, 23 M.S.P.R. 335, 343 (1984). ¶7 This line of cases is premised, in part, on a recognition that inherent in an action effecting a removal for physical inability to perform is that such inability will be permanent or at least long-enduring rather than temporary. Wren, 121 M.S.P.R. 28, ¶ 7 (citing Morgan, 48 M.S.P.R. at 610-13; Street, 23 M.S.P.R. at 340-43). Removal for medical inability to perform is warranted when there is no foreseeable end to an employee’s unavailability. See, e.g., Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 17 (2008). Accordingly, where there is clear, unambiguous evidence of post-removal recovery, the Board examines the unique circumstances of each case in assessing whether reversal is required to “avoid the manifest absurdity of upholding a removal for physical incapacitation when intervening events show that the appellant is no longer incapacitated.” Wren, 121 M.S.P.R. 28, ¶ 7 (citing Morgan, 48 M.S.P.R. at 610-13). * To the extent that Brown v. Department of the Interior, 121 M.S.P.R. 205 (2014), overruled on other grounds by Haas v. Department of Homeland Security, 2022 MSPB 36, and Edwards v. Department of Transportation, 109 M.S.P.R. 579 (2008), suggest otherwise, I would overrule them. 4 ¶8 For instance, in Edwards, the agency removed the appellant for medical inability to perform despite receiving a letter from the appellant’s physician before her removal indicating she was expected to return to full duty in less than 3 months. 109 M.S.P.R. 579, ¶¶ 10, 16. The Board concluded this letter demonstrated the appellant’s unavailability could not “accurately be described as having no foreseeable end at the time of the removal.” Id., ¶ 17. The Board also considered a letter the appellant submitted during the course of her appeal, wherein her physician confirmed that she had fully recovered as expected. Id., ¶ 21. Based on this medical evidence, the Board determined the appellant’s removal did not promote the efficiency of the service. Id., ¶ 22. ¶9 In Morgan, the Board found removal did not promote the efficiency of the service where evidence submitted during the processing of the appeal showed the appellant had fully recovered and the agency had reinstated her within 3 months of her removal. 48 M.S.P.R. at 613; see also Morgan v. U.S. Postal Service, 38 M.S.P.R. 676, 680 (1988). In Street, where the appellant was physically unable to perform the duties of his position at the time he was separated, the Board found removal did not promote the efficiency of the service because the appellant fully recovered within a month of his removal and continued to have no physical limitations approximately 2 months after his removal. 23 M.S.P.R. at 343, 339-40. ¶10 In assessing, based on the unique circumstances of each case, whether removal promotes the efficiency of the service, see Wren, 121 M.S.P.R 28, ¶ 7 (citing Morgan, 48 M.S.P.R. at 610-13; Street, 23 M.S.P.R. at 340-43), the Board also considers the burden that waiting for the appellant to recover would have imposed on the agency. For instance, in Edwards, where removal was reversed, the Board noted there was no indication that the agency had such an urgent need to replace the appellant that it could not wait the less than 3 months for her to recover; there were other vacancies of the same position the appellant held at the time she was removed, and such vacancies were common. Edwards, 5 109 M.S.P.R. 579, ¶ 17. By contrast, in Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 6 (2013), where removal was upheld, the evidence showed the appellant’s absence was a burden on the agency because it could not fill her position while she was on the rolls and it was not feasible to place someone in her position on an interim basis. Further, the agency filled the position after Johnson was removed, which the Board found lent further support to the agency’s assertion that her absence was a burden. Id. ¶11 While cases like Wren, 121 M.S.P.R. 28, and Brown v. Department of the Interior, 121 M.S.P.R. 205 (2014), overruled on other grounds by Haas v. Department of Homeland Security, 2022 MSPB 36, reference information submitted during “the pendency of a Board appeal,” I believe the relevant time period with respect to the efficiency of the service is from the effective date of the appellant’s removal until the date he recovered. See Wren, 121 M.S.P.R. 28, ¶ 6 (recognizing that the appellant in Street recovered “within 2 months of his removal” and the appellant in Morgan “recovered within 3 months of the effective date of his removal”); see also Edwards, 109 M.S.P.R. 579, ¶ 21 (the appellant presented evidence to the agency that she was “expected to recover . . . just over 2-1/2 months after the scheduled effective date of her removal” and also submitted post-removal evidence to the Board that she had recovered within that timeframe). This interpretation is in accordance with the requirement to assess whether the medical incapacity at issue is permanent or at least long-enduring rather than temporary, and to avoid a manifestly absurd and inefficient result. See Wren, 121 M.S.P.R. 28, ¶ 7 (citing Morgan, 48 M.S.P.R. at 610-13; Street, 23 M.S.P.R. at 340-43). ¶12 Here, the appellant did not recover until nearly 8 months after his removal became effective. This was also, notably, 1 year and 9 months after his extended absence began. In my view, requiring the agency to bear the brunt of this substantial absence is unreasonable and contrary to efficient business operations. As noted above, the agency provided a clear, reasonable explanation as to why it 6 could no longer support the appellant’s absence from duty, which had already continued for more than a year at the time of his removal. See Johnson, 120 M.S.P.R. 87, ¶ 6. Based on the foregoing, I would find the appellant’s removal promoted the efficiency of the service, notwithstanding his submission of evidence regarding his apparent recovery after the record closed below, and affirm the agency’s removal action. /s/ Tristan L. Leavitt Member	https://www.mspb.gov/decisions/precedential/OWENS_CORY_REGINALD_PH_0752_16_0349_I_1_OPINION_AND_ORDER_2004847.pdf	Issuance Date: February 22, 2023 Appeal Type: Physical Inability to Perform PHYSICAL INABILITY TO PERFORM RESTORATION TO DUTY NEXUS The appellant was removed from his WG-10 Electrician position for physical inability to perform and excessive absences after he sustained a work-related injury. The administrative judge reversed his removal, finding that the appellant fully recovered from his injury while the removal appeal was pending, and he ordered the agency to reinstate the appellant to the Electrician position, effective to the date of the removal. Because the administrative judge reversed the appellant’s removal, he did not address the restoration claim. The agency filed a petition for review, asserting that the administrative judge erred in finding that the appellant is entitled to restoration to his previous position as a result of his recovery. The appellant filed a petition for enforcement of the interim relief order. Holding: When an appellant presents unambiguous evidence of complete recovery from the medical condition that resulted in his removal before the administrative judge has issued an initial decision in his removal appeal, the removal action does not promote the efficiency of the service. 1. The Board’s regulations do not provide for petitions for enforcement of interim relief orders; such petitions only apply to final Board decisions. 2. The Board did not consider the agency’s argument that the appellant’s initial appeal was untimely because the argument was raised for the first time on review and the agency did not establish that it was based on new and material evidence that was not previously available. 3. The Board held that regulations governing the restoration rights of employees who recover from a compensable injury were not relevant to the propriety of the appellant’s removal for physical inability. 4. Rather, the Board held that it is well settled that the “efficiency of the service” standard of 5 U.S.C. § 7513(a) is the “ultimate criterion” for determining whether any discipline is warranted and whether a particular penalty may be sustained. When an appellant presents unambiguous evidence of complete recovery from the medical condition that resulted in his removal before the administrative judge has issued an initial decision in his removal appeal, the removal action does not promote the efficiency of the service. 5. Member Leavitt issued a dissenting opinion.
01-13-2023	2023 MSPB 5	Cathy Covington	https://www.mspb.gov/decisions/precedential/COVINGTON_CATHY_DE_0752_15_0169_I_1_OPINION_AND_ORDER_1993167.pdf	Department of the Interior	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 5 Docket No. DE-0752-15-0169-I-1 Cathy Covington, Appellant, v. Department of the Interior, Agency. January 13, 2023 Nina Ren, Esquire, Washington, D.C., for the appellant. Frank Lupo, Esquire, and Jared M. Slade, Albuquerque, New Mexico, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon 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 an initial decision that sustained her removal. For the reasons set forth below, we GRANT the appellant’s petition, VACATE the initial decision, and REMAND this matter for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 The appellant was employed as a Forester in the agency’s Bureau of Indian Affairs (BIA), Trust Services, Navajo Region, in Fort Defiance, Arizona. Initial 2 Appeal File (IAF), Tab 4 at 15-17, Tab 6 at 137. The Navajo Region serves the Navajo Nation, which it considers its “sole customer.” Hearing Transcript (HT) at 167 (testimony of the appellant’s first-level supervisor). The Navajo Region is concerned with maintaining a good relationship between the BIA and the Navajo Nation. Id. ¶3 Consistent with the Federal Government’s move toward greater autonomy for Indian tribes, the BIA’s Navajo Region and the Navajo Nation have entered into what are commonly known as “638 contracts” concerning timber and other trust assets. HT at 116 (testimony of a BIA Tribal Operations Specialist), 156-57, 173-74, 209-10 (testimony of the appellant’s first-level supervisor). Trust assets are assets that the Federal Government holds “in trust for Indian tribes and individual Indians.” 25 C.F.R. § 115.002. The term 638 contracts refers to contracts that are entered into under the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, § 102, 88 Stat. 2203, 2206 (1975) (codified as amended, at 25 U.S.C. § 5321); HT at 156 (testimony of the appellant’s first-level supervisor). Under these self-determination contracts, tribal organizations are permitted to self-administer certain programs that would otherwise be administered on their behalf by the Federal Government. HT at 156-57, 173-74; see 25 U.S.C. § 5321(a); Hinsley v. Standing Rock Child Protective Services, 516 F.3d 668, 670 (8th Cir. 2008). ¶4 The Navajo Region has a 638 contract with the Navajo Nation Forestry Department. HT at 157 (testimony of the appellant’s first-level supervisor). Pursuant to a self-determination agreement with the BIA, the Navajo Nation Forestry Department self-administers aspects of its forestry management operations, including issuing permits for harvesting and selling timber products on Navajo Nation lands. HT at 157, 169 (testimony of appellant’s first-level supervisor); IAF, Tab 5 at 26-33. Nevertheless, the BIA’s Navajo Region is responsible for reviewing and approving permits for harvesting timber. IAF, Tab 5 at 96-97; 25 C.F.R. §§ 163.1, 163.3, 163.10, 163.26. The BIA Navajo 3 Region’s self-determination officer oversees these 638 contracts with the assistance of awarding officials, who in turn are assisted by awarding official’s technical representatives (AOTRs) and sub-awarding technical representatives. HT at 157-58 (testimony of the appellant’s first-level supervisor). ¶5 In May 2013, while the appellant was serving a 1-year probationary period as a Supervisory Forester, the agency designated her as the AOTR for the BIA’s 638 contract with the Navajo Nation Forestry Department. IAF, Tab 5 at 36, 51. On December 2, 2013, she received a telephone call from a Navajo Nation Forestry Department official. IAF, Tab 5 at 19. He expressed concern that “timber . . . was being harvested along right-of-way [for Arizona State Highway] 264 . . . [without a] timber sale contract.” Id. at 19; HT at 378-79 (testimony of the appellant). Highway 264 runs through the Navajo Nation. HT at 163 (testimony of the appellant’s first-level supervisor). ¶6 Two days later, the appellant visited the identified location and observed the Arizona Department of Transportation (ADOT) cutting down trees along Highway 264 and loading them onto trailers. IAF, Tab 5 at 19-23, 34. She interviewed two individuals who advised her that the trees were “being hauled to the Navajo Nation Forestry Department to be processed and cut into rough cut lumber.”1 Id. at 20. She obtained a copy of a “Transportation Permit” issued by the Navajo Nation Forestry Department that allowed for removal of the timber at issue along the right-of-way. Id. at 19, 24. ¶7 The following day, the appellant wrote two memoranda notifying her first-level supervisor, the Regional Director, who was her second-level 1 Although the appellant was not aware of it at the time, ADOT was removing trees along its right-of-way to widen the highway. HT at 164-65, 170 (testimony of the appellant’s first-level supervisor). ADOT gave the trees it cut down, free of charge, to the Navajo Nation Forestry Department. HT at 165, 170-71 (testimony of the appellant’s first-level supervisor); IAF, Tab 5 at 38. The Navajo Nation later directed the Forestry Department to share the wood within the community, including with a tribal member who lost his previous home in a fire. IAF, Tab 5 at 38, 41. 4 supervisor, and the awarding official, that she had shut down this project, which she described as a “timber permit sale.” Id. at 19-20. The appellant was under the impression that the right-of-way along Highway 264 was subject to a 638 contract between the BIA and the Navajo Nation. IAF, Tab 5 at 24; HT at 380 (testimony of the appellant). Such an agreement would require the Navajo Nation to follow BIA regulations. IAF, Tab 5 at 22; HT at 380, 418 (testimony of the appellant). She believed that the Navajo Nation Forestry Department had violated these regulations by failing to have a timber sale contract in place. HT at 380 (testimony of the appellant). She shut the project down on that basis. Id. ¶8 In her December 5, 2013 memoranda, the appellant asserted that the Navajo Nation Forestry Department was not authorized to retain any revenues from the timber sale absent a tribal resolution to that effect and that it was a conflict of interest for the Navajo Nation Forestry Department to have obtained the timber sale permit for its own benefit because it distributed the permits. IAF, Tab 5 at 19-21, 51. It is undisputed that shutting down work was outside the scope of the appellant’s authority as the AOTR. HT at 160-61, 166-67 (testimony of the appellant’s first-level supervisor), 417-18 (testimony of the appellant); IAF, Tab 5 at 47-49, 52. By shutting down the Highway 264 project, she caused tensions between the BIA and the Navajo Nation. HT at 168, 172-73, 245 (testimony of the appellant’s first-level supervisor). ¶9 The Navajo Region later determined that the land from which trees were being cut was not subject to a 638 contract. HT at 170-71 (testimony of the appellant’s first-level supervisor). Instead, the agency, with the concurrence of the Navajo Nation, had provided ADOT with a right-of-way, giving it “rights and claims” within the area at issue along the highway, which apparently included the right to dispose of timber located along the right-of-way as they saw fit. HT at 170 (testimony of the appellant’s first-level supervisor); IAF, Tab 5 at 34. The Regional Director determined that “[t]he [Navajo Nation] forestry department ha[d] partnered with ADOT to collect and remove all timber to be utilized for 5 local community needs at no cost” and advised the appellant that “BIA supports this arrangement” between the two parties. IAF, Tab 5 at 38. ¶10 By letter dated March 11, 2014, the Regional Director returned the appellant to her prior nonsupervisory position based on the appellant’s actions in stopping ADOT’s work along Highway 264. Id. at 36. She faulted the appellant for making a “premature decision” and demonstrating a “lack of expert guidance” by interfering in the arrangement between ADOT and the Navajo Nation Forestry Department. Id. According to the Regional Director, the appellant’s action resulted in an “unnecessary delay of the project” and “forced [BIA] to enter into an unnecessary [memorandum of understanding] with [ADOT].” Id. The appellant returned to her prior position effective March 16, 2014.2 Id. ¶11 Between late December 2013 and early January 2014, as well as on or around June 18, 2014, the appellant reported additional alleged agency wrongdoing to the agency’s Office of Inspector General (OIG). IAF, Tab 6 at 27-29, Tab 33 at 10. She also sent a September 11, 2014 email to the Navajo Nation Forest Manager raising concerns that certain Navajo Nation-proposed tree harvesting projects did not comply with the National Environmental Policy Act (NEPA) and other Federal laws. IAF, Tab 5 at 39. The awarding official and the appellant’s first-level supervisor learned of this email to the Navajo Nation later that month. Id. at 43, 45. ¶12 On November 6, 2014, the appellant’s first-level supervisor proposed her removal based on a charge of “Failure to Safeguard Government Records.” IAF, Tab 6 at 47-48. In its first specification, the agency asserted that on July 22, 2014, despite receiving instructions requiring her to complete an inventory of 2 There is no evidence that the appellant sought to overturn this action before the Board or in any other forum. HT at 383-84 (testimony of the appellant). It is not at issue in this appeal. We mention it here for purposes of providing background for the appellant’s alleged protected disclosures. IAF, Tab 40 at 2-3. 6 documents and get approval before moving those documents from her former duty station in Fort Defiance, Arizona, to her new office in Gallup, New Mexico, the appellant “removed and disposed of confidential [G]overnment records in a public dumpster that contain[ed] the PII [Personally Identifiable Information] of individuals [such as] names and social security numbers, date[s] of birth, and [F]ederal records including Indian [Fiduciary Trust] Documents” (e.g., maps). Id. at 47-49, 158-60. The agency noted that other documents the appellant had placed in her vehicle were not recovered and it was unknown which of those files were missing because she did not complete the required inventory. Id. at 49. In its second specification, the agency alleged that on July 25, 2014, the appellant loaded inventoried records into a Government vehicle and transported them to her new office on her own, despite an instruction to travel with another employee in a different Government vehicle. Id. The appellant filed a complaint with Office of Special Counsel (OSC) on November 25, 2014, alleging retaliation for whistleblowing. Id. at 4-35. After the appellant responded to the proposal notice orally and in writing, the deciding official sustained the charge and effectuated her removal on December 29, 2014. IAF, Tab 4 at 15, 17-22. ¶13 The appellant filed a Board appeal of her removal. IAF, Tab 1. She raised affirmative defenses of reprisal for whistleblowing and equal employment opportunity (EEO) activity and alleged a violation of her right to due process. IAF, Tab 1 at 6-8, Tab 33 at 4-5, Tab 40 at 2-3, Tab 41 at 4-7, Tab 45 at 1-2. After a hearing, the administrative judge issued an initial decision affirming the removal. IAF, Tab 54, Initial Decision (ID) at 1, 36. He found that the agency proved both specifications of its charge, nexus, and the reasonableness of the penalty. ID at 7-13, 32-36. He also held that the appellant did not prove retaliation for EEO activity or a violation of her due process rights. ID at 24-32. As to the appellant’s whistleblower reprisal claim, the administrative judge held that the appellant’s December 5, 2013 and September 11, 2014 disclosures were not protected. ID at 15-17. He reasoned that she reported alleged 7 wrongdoing by the Navajo Nation, rather than the Federal Government. ID at 16-17. However, he found that her OIG complaints and OSC complaint constituted protected activity. ID at 17-18. The administrative judge also found that the appellant proved that this activity was a contributing factor in her removal, and the agency proved by clear and convincing evidence that it would have removed her absent this activity. ID at 18-24. ¶14 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 3. The agency has responded to the petition for review, and the appellant has replied. PFR File, Tabs 5-6. ANALYSIS A disclosure of wrongdoing committed by a non-Federal Government entity is protected only when the Government’s interests and good name are implicated in the alleged wrongdoing.3 ¶15 In order to prevail on her whistleblower retaliation affirmative defense, an appellant must prove by preponderant evidence that she made a whistleblowing disclosure as described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and 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)(2)(A).4 5 U.S.C. § 1221(e)(1); Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 12 & 3 On review, the parties do not challenge the administrative judge’s determination that the agency proved the charge and its nexus to the efficiency of the service and that the penalty of removal was within the tolerable limits of reasonableness. PFR File, Tabs 3, 5-6. They also do not dispute that the appellant failed to prove her claims of EEO reprisal and a due process violation. Id. We discern no basis to disturb the administrative judge’s finding regarding the due process violation claim. Moreover, because the appellant does not challenge the administrative judge’s determination that the appellant did not prove her affirmative defense of retaliation for EEO activity, we do not further address this finding here. 4 It is undisputed that the appellant’s removal, which the agency took under chapter 75, is a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii). 8 n.1 (2015). Regarding her December 5, 2013 and September 11, 2014 disclosures, the appellant argues on review that there is no statutory provision requiring that a violation of law, rule, or regulation be committed by agency personnel. PFR File, Tab 3 at 10, 13-14. She contends that she reasonably believed that her disclosures evidenced a violation of law, rule, or regulation. Id. at 12-14. ¶16 The relevant statute provides that an agency may not remove an employee because of “any disclosure” that the employee reasonably believes evidences “any violation of any law, rule, or regulation.” 5 U.S.C. § 2302(b)(8). The Board has held that a disclosure of wrongdoing committed by a non-Federal Government entity may be protected only when the Government’s interests and good name are implicated in the alleged wrongdoing, and the employee shows that she reasonably believed that the information she disclosed evidenced that wrongdoing. Miller v. Department of Homeland Security, 99 M.S.P.R. 175, ¶ 12 (2005); Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶¶ 6-7 (2001). ¶17 Relying on Arauz, 89 M.S.P.R. 529, ¶ 7, and Aviles v. Merit Systems Protection Board, 799 F.3d 457, 464-66 (5th Cir. 2015), the administrative judge found that the appellant’s December 5, 2013 and September 11, 2014 disclosures were not protected because she alleged wrongdoing by the Navajo Nation, rather than agency personnel. ID at 16-17. The appellant argues that the administrative judge erred in relying on Arauz because that decision was issued before the enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA), which reversed some judicially created limitations on whistleblower protections. PFR File, Tab 3 at 13. ¶18 In Aviles, 799 F.3d at 464-66, which was decided after enactment of the WPEA, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) agreed with the Board and held that, when enacting the WPEA, “Congress did not intend to protect disclosures of purely private wrongdoing.” As the appellant notes, Aviles is not necessarily binding on the Board. PFR File, Tab 3 at 13. Prior to late 9 2012, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) generally was the Board’s sole reviewing court in cases of alleged whistleblower reprisal. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10 n.6 (recognizing that prior to the passage of the WPEA, Pub. L. No. 112-199, 126 Stat. 1465, 1469, the Board was bound by the decisions of the Federal Circuit in adjudicating whistleblower reprisal claims). However, since that time, pursuant to 5 U.S.C. 7703(b)(1)(B), an appellant who seeks review of a final Board decision and limits any prohibited personnel practice claims to those arising under 5 U.S.C. § 2302(b)(8) and (b)(9)(A)(i), (B), (C), and (D) may seek review in any Federal circuit court of appeal of competent jurisdiction. 5 U.S.C. § 7703(b)(1)(B); Chambers, 2022 MSPB 8, ¶ 10 n.6. ¶19 Yet the appellant has pointed to no other circuit which has held contrary to the Board’s precedent in Arauz. The Federal Circuit recently had the opportunity to do so, but in a nonprecedential decision instead agreed that disclosures of purely private wrongdoing are not covered by 5 U.S.C. § 2302(b)(8), and in fact cited Aviles in its decision. Oram v. Merit Systems Protection Board, No. 2021-2307, 2022 WL 866327 (Fed. Cir. Mar. 23, 2022).5 In the absence of any higher authority rejecting the Board’s position in Arauz, we decline to revisit it here. The appellant made disclosures regarding alleged wrongdoing by the Navajo Nation Forestry Department that implicated the Federal Government’s interests and good name. ¶20 We now consider whether the Government’s interests and good name were implicated in the alleged wrongdoing. In Arauz, 89 M.S.P.R. 529, ¶¶ 5-7, the Board found that the Government’s interests and good name were implicated in a 5 The Board may rely on nonprecedential decisions of the Federal Circuit when we find their reasoning persuasive, as we do here. Alegre v. Department of the Navy, 118 M.S.P.R. 424, ¶ 15 n.2 (2012). 10 disclosure of a non-Governmental organization’s alleged violation of state voter registration laws because the organization was performing functions within the scope of a Government program and the agency was in a position to influence or exercise oversight over the organization’s performance of those functions. Similarly, in Johnson v. Department of Health & Human Services, 93 M.S.P.R. 38, ¶¶ 9-11 (2002), the Board found that the Government’s interests and reputation were implicated by the appellant’s disclosure of alleged contract violations and illegal employment practices by a Government contractor because the appellant claimed that agency officials ignored the contractor’s conduct. Finally, in Miller, 99 M.S.P.R. 175, ¶¶ 12-13, the Board found that the Federal Government’s interests and good name were implicated by an appellant’s disclosure that state officials allegedly used excessive force because the alleged wrongdoing occurred during the joint execution of a search warrant by those officials and the agency. ¶21 With this guidance, we consider the appellant’s December 2013 and September 2014 disclosures in turn. As explained below, we conclude that the appellant’s disclosures concerned purported wrongdoing by the Navajo Nation that implicated the Federal Government’s interests, reputation, and good name. The appellant’s December 5, 2013 disclosures implicated the Federal Government’s interests and good name. ¶22 The administrative judge acknowledged that allegations of private wrongdoing may constitute protected whistleblowing, citing the Board’s decision in Arauz and the Fifth Circuit’s decision in Aviles, but determined that the December 5, 2013 memoranda regarding the Navajo Nation Forestry Department’s securing of a timber harvesting permit were not protected because the appellant had not explained why she believed that agency personnel were violating rules or abusing authority, or made specific allegations of wrongdoing by agency officials. ID at 16-17. Instead, the administrative judge characterized the memoranda as expressing concerns about the Navajo Nation’s conduct. ID 11 at 17. Consequently, he concluded that the appellant failed to show by preponderant evidence that she reasonably believed that she was disclosing any wrongdoing by agency personnel. Id. ¶23 The appellant argues on review that she reasonably believed the project along Highway 264 was covered by a 638 contract, and thus subject to the statutes and regulations concerning such projects. PFR File, Tab 3 at 12-13. We find that the appellant’s December 2013 disclosures are protected because they implicate the Government’s good name. ¶24 In 1868, the United States and the Navajo Tribe entered into an agreement that established a reservation covering, as relevant here, the area around Fort Defiance that was the subject of the appellant’s disclosures. Treaty Between the United States and the Navajo Tribe of Indians, ratified July 25, 1868, 15 Stat. 667 (the Treaty of 1868); see McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 173-75 (1973) (explaining that the Treaty of 1868 set aside a reservation for the Navajo “under general [F]ederal supervision”). The Federal Government, acting through the agency, generally manages and has pervasive control over Indian timber, land, and forests on reservation land. See United States v. Mitchell, 463 U.S. 206, 207-09, 219-23 (1983) (discussing this control in the context of the Government’s 1861 treaty with the Quinault and Quileute Tribes, citing, among other authorities, 25 U.S.C. §§ 405-407, 466; 25 C.F.R. part 163). Similarly, the agency has authority to grant rights-of-way through reservation lands with Tribal or individual owner consent. Id. at 223 (citing 25 U.S.C. §§ 323-25; 25 C.F.R. part 169). This control creates a trust relationship and resulting fiduciary obligation on the part of the Government toward the Indian people as to the Government’s “management and operation” of these reservation resources. Id. at 224-26; see Navajo Nation v. U.S. Department of the Interior, 26 F.4th 794, 800, 809-12 (9th Cir. 2022) (finding that, under the Treaty of 1868, the United States had an implied trust obligation toward the Navajo Nation as it concerns its rights to access water from the Colorado River, 12 which is “appurtenant to the Nation”), cert. granted, 143 S. Ct. 398 (2022) (No. 22-51). ¶25 Although the appellant believed that the timber harvested along Highway 264 was subject to a 638 contract, she was mistaken. IAF, Tab 5 at 19-23. Instead, the area in question was subject to a right-of-way, which gave ADOT the right to remove the trees. Id. at 38; HT at 170-71 (testimony of the appellant’s first-level supervisor). As discussed above, the agency has a fiduciary duty concerning the assets on the reservation land generally and the authority to award rights-of-way, such as the right-of-way that the agency provided to ADOT along Highway 264. HT at 151, 170 (testimony of the appellant’s first-level supervisor); Mitchell, 463 U.S. at 223-26; e.g., 25 U.S.C. §§ 311, 323-35; 25 C.F.R. §§ 169.5-169.6. Accordingly, the appellant’s questioning of the activities along Highway 264 and her suggestion that the Navajo Nation Forestry Department had a conflict of interest in obtaining the timber from those activities implicated the agency’s reputation in its oversight of Indian resources and land. HT at 151 (testimony of the appellant’s first-level supervisor); see Arauz, 89 M.S.P.R. 529, ¶ 7. The appellant’s September 11, 2014 disclosure implicated the Government’s interests and good name. ¶26 The administrative judge concluded that the appellant’s September 11, 2014 email to a Navajo Nation Forest Manager raising concerns about the Navajo Nation’s proposed tree harvesting project did not constitute whistleblowing. ID at 17. He reasoned that the appellant failed to show that agency personnel were violating, or were complicit in the alleged violations of, NEPA. ID at 17. We disagree. ¶27 By statute, the Federal Government has a trust responsibility for Indian forest lands. 25 U.S.C. § 3101(2). Only the Secretary of the Interior or her designee can approve management activities on these lands, including harvesting timber and forest thinning. 25 C.F.R. §§ 163.1, 163.10; BIA, Indian Forest 13 Management Handbook 53 IAM 2-H, Forest Management Planning, §§ 2.1, 2.4 (2009), https://www.bia.gov/sites/default/files/dup/assets/public/raca/handbook/ pdf/53-IAM-2H-Forest-Management-Planning-HB_OIMT.pdf. In approving such activities, the Secretary must ensure the activities are compliant with applicable environmental laws, including NEPA. 25 C.F.R. § 163.34. Thus, the agency is responsible for ensuring that management activities on Indian forest lands are NEPA compliant. ¶28 Although not expressly stated in the record, it appears that the appellant’s September 11, 2014 disclosure concerned activities on Indian forest land. HT at 116 (testimony of a BIA Navajo Region Tribal Operations Specialist), 151-52, 210 (testimony of the appellant’s first-level supervisor). The BIA’s Navajo Region is responsible for providing services related to the activities in question, including reviewing and approving permits for harvesting timber. IAF, Tab 5 at 96-97; 25 C.F.R. §§ 163.1, 163.3, 163.10, 163.26. ¶29 In her September 2014 email, which the appellant sent to a Navajo Nation Forest Manager pursuant to her role as the AOTR for a proposed tree harvesting project on Navajo Nation land in the Assayi Lake fire area, she expressed concerns that the project did not comply with environmental laws and regulations. IAF, Tab 5 at 39-40. She put the Forest Manager “on notice” that all harvesting activities were obligated to meet the requirements under NEPA and other Federal environmental laws. Id. The appellant also noted that during a previous meeting with the Forest Manager, he seemed “agitated” about the appellant’s request for additional information to address her concerns about the project plans. Id. ¶30 In a September 15, 2014 response to the appellant’s email, the awarding official informed the appellant that if there were any potential problems that “threaten the performance of the contract, the AOTR must immediately contact the [awarding official] so that remedial measures may be taken.” Id. at 45. By suggesting the BIA may need to take actions, the awarding official acknowledged 14 that the BIA’s interests and reputation in overseeing the proposed harvesting project were implicated by the appellant’s disclosure. Id. at 45. ¶31 Based on the foregoing, we conclude that the administrative judge erred when he determined that the appellant’s disclosures concerned only the Navajo Nation. ID at 16-17. Instead, we conclude that, given the BIA’s fiduciary relationship with the Navajo Nation, as well as the oversight role and the significant amount of control it had over the Navajo Nation Forestry Department’s functions, the appellant’s disclosures implicated the Government’s reputation and good name. Miller, 99 M.S.P.R. 175, ¶¶ 12-13; Johnson, 93 M.S.P.R. 38, ¶¶ 10-11; Arauz, 89 M.S.P.R. 529, ¶ 7. The appellant reasonably believed that her December 5, 2013 disclosures evidenced wrongdoing under 5 U.S.C. § 2302(b)(8). ¶32 Because the administrative judge found that the appellant’s disclosures did not implicate the Federal Government, he did not address the reasonableness of her belief that her disclosures evidenced wrongdoing under 5 U.S.C. § 2302(b)(8). ID at 16. We find that the appellant proved she reasonably believed her December 2013 disclosures evidence wrongdoing, but did not prove the same regarding her September 2014 disclosure. The appellant’s December 5, 2013 disclosures were protected. ¶33 As to her December 2013 disclosures, the appellant argues on review that she reasonably believed the “timber harvesting” along Highway 264 violated the statutory and regulatory requirements concerning the administration of the agency’s 638 contract with the Navajo Nation. PFR File, Tab 3 at 10-14, Tab 6 at 7-10. As previously discussed, the appellant’s belief that improper harvesting was occurring rested on her faulty assumption that the land being harvested was subject to a 638 contract, when it was instead being harvested as a part of a right-of-way agreement with ADOT. Nevertheless, there is no dispute that at the time the appellant drafted the memoranda that made this disclosure, it was her 15 belief that the land at issue was subject to a 638 contract. IAF, Tab 5 at 19-23, HT at 47-49 (testimony of the appellant). ¶34 The appellant’s first-level supervisor also appears to have initially believed that the land at issue may have been subject to a 638 contract, and only discovered that it was not after the appellant made her disclosure. In her testimony, the appellant’s first-level supervisor acknowledged that, after the appellant issued the December 2013 memoranda, BIA staff in charge of 638 contracts and BIA managers “got together . . . to figure out what was going on” regarding the tree harvesting occurring on route 264. HT at 169. She indicated that BIA management was concerned with potential regulatory violations and also whether the Navajo Nation violated their 638 contract with the Federal Government by issuing a permit for the tree harvesting. HT at 169-70 (testimony of appellant’s first-level supervisor). She further testified that only after the BIA reviewed the contract documents and additional documents provided by ADOT did it discover that the land was the subject of a right-of-way agreement with ADOT and not subject to a 638 contract between the BIA and the Navajo Nation. Id. ¶35 The test for assessing the reasonableness of an appellant’s belief that her disclosure was protected is not based on after-acquired information; rather, under the statute, the test for a protected disclosure is whether the appellant had a reasonable belief that she was disclosing a violation of law, rule, or regulation at the time she made the disclosure, not in light of events or conversations occurring thereafter. Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 13 (2015) (citing 5 U.S.C. § 2302(b)(8)). As explained above, the appellant and agency management believed at the time the appellant sent her December 2013 memoranda that the trees being cut down were on land covered by a 638 contract. Further, the appellant testified without contradiction that, under this contract, the Navajo Nation was required to follow all BIA regulations. HT at 379-80 (testimony of the appellant). 16 ¶36 One of the requirements she identified in her December 2013 memoranda was that the BIA regional director sign off on all timber sale permits. IAF, Tab 5 at 21. Indeed, an agency regulation and an agency handbook provision mandate that “permits [for removal of forest products] must be approved by the Secretary [of the Interior].” 25 C.F.R. § 163.26(a); see IAF, Tab 5 at 28 (reflecting the same requirement in an agency handbook). Therefore, we find that, at the time the appellant wrote the memoranda, it was reasonable for her to conclude that the harvesting of timber with a permit that was not signed by the agency violated this requirement. IAF, Tab 5 at 21, 24, 26. We conclude that the appellant made a disclosure of conduct that she reasonably believed was a violation of law, rule, or regulation under 5 U.S.C. § 2302(b)(8). The appellant’s September 11, 2014 disclosure was not protected. ¶37 The appellant also argues on review that she reasonably believed that her September 2014 disclosure evidenced a violation of NEPA. PFR File, Tab 3 at 13-14. As discussed above, NEPA compliance is required for timber harvesting on Indian forest lands. Thus, we find that the content of the appellant’s disclosure could evidence a violation of law, rule, or regulation. See Bump v. Department of the Interior, 69 M.S.P.R. 354, 361-62 (1996) (finding that an appellant reasonably believed a proposed timber sale potentially violated Federal laws, including NEPA). ¶38 The appellant stated in her September 2014 email that “NEPA issues” existed with respect to the Navajo Nation Forestry Department’s proposed timber harvesting activity on a portion of the reservation. IAF, Tab 5 at 39-40. The Board has found that an employee need not wait until an actual violation of law occurs for her disclosure to be protected under whistleblower reprisal statutes. Ward v. Department of the Army, 67 M.S.P.R. 482, 488 (1995). Such a requirement would mean losing an opportunity to avert wrongdoing and would have a chilling effect on whistleblowing. Id. When, as here, a disclosure concerns a potential violation of law, as opposed to an event that has already 17 taken place, an appellant must prove that she reasonably believed the potential wrongdoing was real and immediate. Bump, 69 M.S.P.R. at 361; Ward, 67 M.S.P.R. at 488-89. In order to strike a balance between preventing Government wrongdoing on the one hand and encouraging “healthy and normal” discussions of “possible courses of action” that may avoid such wrongdoing on the other hand, the determination of whether the disclosure is protected “depends on the facts.” See Reid v. Merit Systems Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007). ¶39 We find, under the circumstances presented here, that the appellant has failed to prove that she reasonably believed any NEPA violation was real and imminent. Although she stated at one point in her September 2014 email that the Navajo Nation Forestry Department “may be harvesting trees,” it appears from the context of her email and other statements that she was only referencing a proposed tree harvesting project that was under consideration, rather than activity that was already taking place or imminently about to occur. IAF, Tab 5 at 39-40. ¶40 Further, the appellant’s email reflects that over the course of August 2014, she had been discussing the potential harvesting with the Navajo Nation Forest Manager and others, and had requested maps of the affected area. Id. Her September 2014 email was a summary of those prior discussions and a follow up request for maps. Id. She did not state in her email that she believed harvesting had begun or would begin before NEPA compliance was assured, id., nor did she testify at the hearing regarding the situation leading to her September 2014 email. There is no evidence in the record supporting the conclusion that the harvesting was about to occur or that the appellant reasonably believed it was. ¶41 Moreover, within an hour of the appellant sending her September 2014 email to the Navajo Nation Forest Manager, he responded by providing a proposal for a portion of the harvesting. Id. at 39. He indicated that other activities were in “the planning stages and [were] currently being GPS’d,” presumably in response to the appellant’s request for maps. Id. His response supports the 18 conclusion that the Navajo Nation was in the process of discussing the projects with the BIA and intended to comply with the law. Because the appellant has neither claimed, nor provided evidence, that she reasonably believed a NEPA violation of law was real and imminent, we find that she failed to prove her September 2014 disclosure was protected. The appellant established that her disclosures were a contributing factor in the agency’s decision to remove her. ¶42 The administrative judge found that the appellant proved her OSC and OIG complaints were contributing factors in her removal. ID at 18-19. Because the administrative judge determined that the appellant’s December 5, 2013 memoranda were not protected disclosures, he did not make any findings concerning whether the appellant met her burden to prove that they were a contributing factor in the agency’s removal decision. ID at 16-17. We conclude that she did. ¶43 To prove that a disclosure was a contributing factor in a personnel action, the appellant need only demonstrate that the fact of, or the content of, the disclosure was one of the factors that tended to affect the personnel action in any way. Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003). The knowledge-timing test allows an appellant to demonstrate that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id., ¶ 11. ¶44 Here, the timing prong of the knowledge-timing test is met because the agency removed the appellant just over 1 year after she submitted the December 5, 2013 memoranda. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that occurs within 2 years of an appellant’s disclosure satisfies the timing prong of the 19 knowledge-timing test). Further, the deciding and proposing officials were aware of the December 2013 disclosures prior to issuing the proposal and removal notices. IAF, Tab 5 at 5, 19-21, 39-40, 43-44; HT at 164-65 (testimony of appellant’s first-level supervisor), 313-14 (testimony of the deciding official). Accordingly, we conclude that the appellant has proven contributing factor. Remand is necessary for the administrative judge to conduct a new Carr factors analysis. ¶45 Because the appellant met her prima facie burden of proving that she made a whistleblowing disclosure that was a contributing factor in the agency’s decision to remove her, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s whistleblowing. 5 U.S.C. § 1221(e)(2); Scoggins, 123 M.S.P.R. 592, ¶ 26. In determining whether an agency has shown by clear and convincing evidence that it would have taken the personnel action in the absence of the protected activity, the Board will consider all of the relevant factors, including the following factors (“Carr factors”): (1) The strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who did not engage in such protected activity, but who are otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). ¶46 The administrative judge found that the agency met its burden to prove that it would have removed the appellant absent her OIG and OSC complaints. ID at 19-22. As to the appellant’s December 2013 and September 2014 disclosures, he separately stated that, even if protected, the agency had no motive to retaliate and the proposing and deciding officials credibly testified that they removed the appellant due to her misconduct. ID at 22. The appellant argues on review that 20 the administrative judge improperly excluded from his Carr factor analysis a consideration of her protected disclosures. PFR File, Tab 3 at 14-17. In light of our findings above, we agree and remand the appeal for findings on this issue. ¶47 On remand, the administrative judge should conduct a new analysis of whether the agency met its burden to prove by clear and convincing evidence that it would have removed the appellant in the absence of her protected December 2013 disclosures and her protected activities. In conducting his analysis, the administrative judge should consider the agency’s combined motive to retaliate based on all of the appellant’s protected activities and disclosures, and reweigh all the Carr factors in light of the totality of the appellant’s protected activities and disclosures. See Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (finding that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate”).6 The appellant has not shown that the agency engaged in witness intimidation during the hearing. ¶48 The appellant contends that she felt intimidated by the presence of a human resources employee at the hearing. PFR File, Tab 3 at 23-24. Although the appellant testified that she felt intimidated at the hearing, HT at 368-69 6 In conducting his analysis of the third Carr factor, whether the agency took similar actions against similarly situated nonwhistleblowers, the administrative judge found the agency treated other employees similarly to the appellant. ID at 23. However, one of the comparators identified by the agency, an agency manager who was removed for sending server or router information to his personal email account and misrepresenting himself as a Government official, had engaged in protected activity. HT at 362-63, 365, 367 (testimony of a human resources employee); Austin v. Department of the Interior, MSPB Docket No. DE-0752-13-0104-I-3, Initial Decision at 2-6, 21-22 (Apr. 21, 2017). Consequently, this employee was not a proper comparator under the third Carr factor. See Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (finding that the Board erred in considering the treatment of similarly situated whistleblowers under the third Carr factor). Evidence regarding his treatment may be relevant to Carr factor 2. Id. On remand, the administrative judge should take this fact into consideration in reanalyzing the Carr factors. 21 (testimony of the appellant), she has not alleged or shown that other witnesses felt intimidated. In any event, for the Board to find that an agency official intimidated a witness, an appellant must present evidence showing that the official threatened the witness with adverse consequences, such as disciplinary action, or suggested that the witness not testify or not testify truthfully. Gregory v. Federal Communications Commission, 84 M.S.P.R. 22, ¶ 17 (1999), aff’d per curiam, 232 F.3d 912 (Fed. Cir. 2000) (Table). The appellant has made no such showing. ORDER ¶49 We remand the appeal to the Denver Field Office for further adjudication of the appellant’s whistleblower reprisal claim consistent with this Opinion and Order. To the extent appropriate, the administrative judge may adopt his prior findings regarding the appellant’s removal and the remaining affirmative defenses in the remand initial decision. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/COVINGTON_CATHY_DE_0752_15_0169_I_1_OPINION_AND_ORDER_1993167.pdf
01-11-2023	2023 MSPB 4	Renate Gabel	https://www.mspb.gov/decisions/precedential/GABEL_RENATE_M_PH_1221_16_0256_W_1_OPINION_ORDER_1992173.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 4 Docket No. PH-1221-16-0256-W-1 Renate M. Gabel, Appellant, v. Department of Veterans Affairs, Agency. January 11, 2023 Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant. Alison M. Debes, Philadelphia, Pennsylvania, for the agency. Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member 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 set forth in this Opinion and Order, we AFFIRM the initial decision and DISMISS the appeal for lack of jurisdiction. BACKGROUND ¶2 The appellant was a Licensed Practical Nurse in the agency’s Community Based Outpatient Clinic in Gloucester, New Jersey. Initial Appeal File (IAF), 2 Tab 1 at 1, Tab 9 at 9. On or about August 27, 2015, she filed a complaint with the Office of Special Counsel (OSC) alleging that the agency retaliated against her for making protected disclosures under 5 U.S.C. § 2302(b)(8) and engaging in protected activity under 5 U.S.C. § 2302(b)(9)(A). IAF, Tab 1 at 8, Tab 8 at 10-31. On February 16, 2016, OSC issued the appellant a close-out letter informing her that it was closing the file on her complaint and advising her of her right to file a Board appeal. IAF, Tab 1 at 6-7. This appeal followed. Id. at 1. ¶3 The administrative judge issued an order explaining the appellant’s burden to establish jurisdiction over an IRA appeal and ordering her to submit evidence and argument supporting her claim. IAF, Tab 5. The appellant responded, IAF, Tabs 8-10, and the administrative judge issued an initial decision without holding the requested hearing, dismissing the appeal for lack of jurisdiction, IAF, Tab 12, Initial Decision (ID). She found that the appellant failed to make a nonfrivolous allegation that she made a protected disclosure or otherwise engaged in protected activity. ID at 6-12. She then found, in the alternative, that the appellant failed to make a nonfrivolous allegation that any of her supposed protected disclosures or her alleged protected activity was a contributing factor in any of the personnel actions taken against her. ID at 12-15. ¶4 The appellant has filed a petition for review, and the agency has responded in opposition. Petition for Review (PFR) File, Tabs 1-2, 5. ANALYSIS1 ¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the Board has jurisdiction over an IRA appeal if the appellant has exhausted her 1 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 3 administrative remedies before OSC,2 and makes nonfrivolous allegations that (1) she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board’s regulations define a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).3 As the U.S. Court of Appeals for the Federal Circuit recently put it: “[T]he question of whether the appellant has non-frivolously alleged protected disclosures [or activities] that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020).4 2 Here, the administrative judge found, and we agree, that the appellant met her burden of establishing that she exhausted her administrative remedies before OSC. ID at 5; IAF, Tab 8 at 10-31. 3 The regulation further provides that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). Pro forma allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6 (2016), aff’d per curium, 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20 n. 11. 4 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510), appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 4 The appellant failed to nonfrivolously allege that she made a protected disclosure. ¶6 A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 8 (2013). The test to determine whether a putative whistleblower has a reasonable belief in the disclosure is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidenced a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Salerno, 123 M.S.P.R. 230, ¶ 6. The disclosures must be specific and detailed, not vague allegations of wrongdoing. Id.; see El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). ¶7 Here, the appellant alleged in her OSC complaint that the agency discriminated against her based on her disability and engaged in a pattern of abuse concerning her requests for leave under the Family and Medical Leave Act of 1993 (FMLA) and requests for reasonable accommodation. IAF, Tab 8 at 27-31. She vaguely claimed that she attempted to bring this wrongdoing to her supervisors’ attention from October 2014 through August 27, 2015, the date she filed her OSC complaint. Id. at 29. As the administrative judge noted, however, the appellant failed to provide with any specificity the content of her alleged disclosures, to whom they were made, the dates they were made, or how they were made. ID at 6; IAF, Tab 8 at 27-31. After considering the evidence and argument in a light most favorable to the appellant, the administrative judge 5 concluded that the appellant failed to raise a nonfrivolous allegation that she disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). ID at 6-12. Specifically, she found that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant would not reasonably conclude that the agency’s actions evidenced gross mismanagement or an abuse of authority. ID at 11. She further found that the appellant failed to nonfrivolously allege that the agency’s actions created a substantial risk of significant adverse impact upon its ability to accomplish its mission or reflected the arbitrary or capricious exercise of power. Id. We agree that the appellant’s vague and nonspecific allegations of disclosures of wrongdoing are insufficient to constitute nonfrivolous allegations of protected disclosures.5 See Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 27 (2015) (explaining that an “abuse of authority” occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons), aff’d, 652 F. App’x 971 (Fed. Cir. 2016); Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996) (defining “gross management” as a management action or inaction that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission). 5 Subsequent to the issuance of the initial decision, the Federal Circuit held that the Board “may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether the alleged disclosures fell within the protected categories or whether the disclosures were a contributing factor to an adverse personnel action.” Hessami, 979 F.3d at 1369. Although the administrative judge here discussed the agency’s evidence and arguments regarding the appellant’s FMLA requests, ID at 7-10, insofar as the appellant’s allegations regarding her purported disclosures related thereto were vague and facially insufficient irrespective of the agency’s evidence and argument, this discussion was harmless and a different outcome is not warranted, IAF, Tab 8 at 27-31; see El, 123 M.S.P.R. 76, ¶ 6. 6 The appellant failed to nonfrivolously allege that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A). ¶8 The Board only has IRA jurisdiction over equal employment opportunity (EEO) activity covered by 5 U.S.C. § 2302(b)(9)(A)(i), meaning it seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8)). Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 24-25; Mudd, 120 M.S.P.R. 365, ¶¶ 6-7 (explaining that filing a grievance, which does not itself seek to remedy whistleblower reprisal, does not grant IRA jurisdiction under the WPEA). Here, the appellant alleged that she filed an EEO complaint with the agency alleging discrimination and retaliation, and that the agency retaliated against her as a result. IAF, Tab 8 at 6, Tab 9 at 19-40. However, the appellant did not allege that the substance of her EEO complaint concerned remedying a violation of 5 U.S.C. § 2302(b)(8). IAF, Tab 9 at 19-40. Therefore, we agree with the administrative judge that the Board lacks jurisdiction to consider her allegations of reprisal for her EEO complaint in the context of this IRA appeal. ID at 12; see Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020) (explaining that the Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)). Because we find that the appellant failed to nonfrivolously allege that she made a protected disclosure or otherwise engaged in protected activity for which an IRA appeal is authorized by the statute, she cannot meet her burden on jurisdiction and the administrative judge properly dismissed the appeal for lack of jurisdiction. See Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (holding that the administrative judge correctly dismissed the IRA appeal for lack of jurisdiction when the appellant failed to make nonfrivolous allegations that he made protected disclosures or otherwise engaged in protected activity appealable to the Board as an IRA appeal). 7 The appellant’s arguments and submissions on review fail to provide a reason to disturb the initial decision. ¶9 On review, the appellant asserts that the agency engaged in discrimination, retaliation, and “abuses of authority and gross mismanagement in connection with requests for FMLA leave,” PFR File, Tab 1 at 5, and she attaches alleged new evidence in an effort to prove her assertions, PFR File, Tab 1 at 18-59, Tab 2. Although the appellant’s argument and submissions outline in great detail the alleged pattern of abuses she claims the agency took against her and her coworkers, PFR File, Tab 1 at 5-17, she has not challenged the administrative judge’s findings that she failed to nonfrivolously allege that she made protected disclosures or otherwise engaged in protected activity appealable to the Board. The appellant, therefore, has provided no basis to disturb the administrative judge’s finding that she failed to make a nonfrivolous allegation of jurisdiction. See Graves, 123 M.S.P.R. 434, ¶ 22; Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). In the absence of Board jurisdiction, we lack the authority to review the merits of the appellant’s allegations concerning the agency actions taken against her and her coworkers. Accordingly, we affirm the initial decision. ORDER ¶10 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). 8 NOTICE OF APPEAL RIGHTS6 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: 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 10 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 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 11 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.7 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 7 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. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/GABEL_RENATE_M_PH_1221_16_0256_W_1_OPINION_ORDER_1992173.pdf
01-10-2023	2023 MSPB 3	Karl Brookins	https://www.mspb.gov/decisions/precedential/BROOKINS_KARL_DE_531D_18_0028_I_1_OPINION_AND_ORDER_1991708.pdf	Department of the Interior	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 3 Docket No. DE-531D-18-0028-I-1 Karl Brookins, Appellant, v. Department of the Interior, Agency. January 10, 2023 Karl Brookins, Fort Collins, Colorado, pro se. Deborah E. Yim, Esquire, Lakewood, Colorado, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon 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 his appeal of his within-grade increase (WIGI) denial for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Denver Field Office for further adjudication. BACKGROUND ¶2 The appellant was a Fishery Biologist for the agency. Initial Appeal File (IAF), Tab 1 at 8. On September 3, 2017, he became eligible for a WIGI from a 2 GS-12 step 5 to a step 6. Id. On September 15, 2017, the agency informed him that it was denying his WIGI because he received a “minimally successful” rating for the rating period of October 1, 2015, through September 30, 2016, and completed a performance improvement plan that resulted in his performance rating being raised from “unsatisfactory” to “minimally successful” on one of his critical elements.1 Id. at 8-9, 11-12. In the notice of his WIGI denial, the agency informed him that he could request reconsideration of its determination, which he did on September 30, 2017. IAF, Tab 1 at 9, Tab 4 at 28-38. On October 10, 2017, the agency denied his request for reconsideration. IAF, Tab 1 at 13. ¶3 On October 22, 2017, the appellant timely filed an initial appeal with the Board, alleging that, in denying his WIGI and request for reconsideration, the agency committed prohibited personnel practices (PPPs) under 5 U.S.C. § 2302(b)(2) and (b)(12). Id. at 5. The administrative judge conducted a preliminary status conference and subsequently issued a summary and order questioning the Board’s jurisdiction over the appellant’s WIGI denial because the appellant was a bargaining unit employee, WIGI denials were subject to the negotiated grievance procedures of the applicable collective bargaining agreement (CBA), and the appellant had not alleged discrimination after a final decision, as required to elect a Board appeal under 5 U.S.C. § 7121(d). IAF, Tab 8 at 1-3. The administrative judge ordered the appellant to submit evidence and argument to establish that the Board had jurisdiction over the agency’s denial of his WIGI. Id. at 3. The appellant responded to the administrative judge’s order, arguing among other things that 5 U.S.C. § 7121(g) allows for an appeal directly to the Board when the aggrieved employee alleges a violation of 5 U.S.C. 1 The memorandum denying the appellant’s WIGI referenced “Critical Element 5,” but the appellant only had four critical elements, the fourth of which was rated “minimally successful.” IAF, Tab 1 at 8, 11. 3 § 2302(b)(2)-(14) in connection with an action covered under negotiated grievance procedures. IAF, Tab 9 at 4-5. ¶4 On December 19, 2017, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 12, Initial Decision (ID) at 1. The administrative judge found that the appellant was a bargaining unit employee who was subject to the grievance procedures set forth in the CBA. ID at 4. He additionally found that the denial of a WIGI is not identified on the list of matters excluded from the grievance process, and thus the CBA allowed for grievances of such denials. Id. Under these circumstances, the administrative judge found that, if “the [CBA] provides for review of WIGI denials under the grievance procedure, then that procedure is exclusive.” ID at 3 (citing 5 C.F.R. § 531.410(d)). The administrative judge stated that the only exception to this rule is when the employee alleges discrimination under 5 U.S.C. § 2302(b)(1). ID at 3-4 (citing 5 U.S.C. § 7121(d)). Even in the presence of a claim of discrimination, the administrative judge continued, the employee must first pursue the matter through the negotiated grievance procedures and receive a final decision on the matter in order to then pursue the matter before the Board. ID at 4. The administrative judge found that, absent an allegation of discrimination, the appellant’s only avenue of recourse was through the negotiated grievance procedure, and thus the Board lacks jurisdiction to hear the matter, regardless of his claim of PPPs under 5 U.S.C. § 2302(b)(2) and (b)(12). ID at 4-6. ¶5 The appellant has filed a petition for review, arguing among other things that the grievance procedures are not his exclusive remedy because he has alleged PPPs under 5 U.S.C. § 2301(b)(2) and (12), and therefore, he may elect a direct 4 Board appeal under 5 U.S.C. § 7121(g).2 Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS ¶6 An employee occupying a permanent position under the General Schedule earns a periodic increase in pay, or WIGI, as long as his performance is at an acceptable level of competence. 5 U.S.C. § 5335(a). An agency’s decision to deny a WIGI is appealable to the Board under 5 U.S.C. § 5335(c), provided that the employee first requests reconsideration from the agency and the agency affirms the denial. Priselac v. Department of the Navy, 77 M.S.P.R. 332, 335 (1998). Nevertheless, if a WIGI denial is also grievable under a negotiated grievance procedure, then it will be subject to the election of remedies provisions of 5 U.S.C. § 7121. Generally, if an employee is covered by a CBA that includes WIGI denials in its negotiated grievance procedures, then those procedures are the exclusive procedures for appealing the denial. 5 U.S.C. § 7121(a)(1). Under the Civil Service Reform Act of 1978 as originally enacted, the only exception to this general rule was found in 5 U.S.C. § 7121(d), for cases in which the employee alleges that he has been affected by a PPP under 5 U.S.C. § 2302(b)(1).3 Pub. L. No. 95-454, § 7121, 92 Stat. 1111. It is undisputed that this exception does not apply to the instant appeal because the appellant has not alleged that the agency subjected him to a PPP under 5 U.S.C. § 2302(b)(1). PFR File, Tab 1 at 6. However, in 1994, Congress amended 5 U.S.C. § 7121 by adding a new subsection (g) and providing another exception for cases in which employees allege that they have been affected by a PPP other than under 5 U.S.C. 2 The appellant’s petition for review raises numerous other arguments in support of jurisdiction; however, because we find that his argument concerning the application of 5 U.S.C. § 7121(g) warrants remand, we decline to reach those arguments at this time. 3 Another exception exists for removals and other adverse actions that are otherwise appealable under 5 U.S.C. chapters 43 or 75. 5 U.S.C. § 7121(a)(1), (e). 5 § 2302(b)(1). Pub. L. No.103–424, § 9, 108 Stat. 4361. That is the exception that applies to the instant appeal. ¶7 Although this statute was amended in 1994, the Board has not yet issued a precedential decision addressing the section 7121(g) exception as applied to appeals of WIGI denials under 5 U.S.C. § 5335(c).4 In finding that the appellant’s only avenue to the Board was through 5 U.S.C. § 7121(d), the administrative judge considered the Board’s nonprecedential decision in Silveria v. Department of Veterans Affairs, MSPB Docket No. SF-531D-16-0042- I-1, Final Order (Jan. 6, 2017).5 ID at 4. However, the facts in Silveria, which included allegations of PPPs under 5 U.S.C. § 2302(b)(1), indicated that 5 U.S.C. § 7121(d) was the applicable exception in that case. Silveria, Final Order, ¶¶ 5, 9, 12-13, 18. The Board did not cite or discuss 5 U.S.C. § 7121(g) because that exception was not implicated by the facts of that particular case—not because that exception is unavailable as a general matter. ¶8 Nevertheless, in reaching its decision, the Board in Silveria cited to Hunt v. Department of Veterans Affairs, 88 M.S.P.R. 365, ¶ 6 (2001), in which the Board held in relevant part as follows: If an employee is covered by a CBA containing a grievance procedure that does not exclude WIGI withholdings from its coverage, and if the employee does not allege prohibited discrimination, she cannot appeal an agency’s decision to withhold a 4 The U.S. Court of Appeals for the Federal Circuit has issued one nonprecedential decision that provides some helpful guidance. Weslowski v. Department of the Army, 217 F.3d 854, *3 (Fed. Cir. 1999) (Table) (holding that 5 U.S.C. § 7121(g) is an exception to the general rule set forth in 5 U.S.C. § 7121(a)(1) that the negotiated grievance procedure is the exclusive administrative procedure for resolving disputes that fall within a CBA’s coverage). Although Weslowski is not binding on the Board, we have considered it for its persuasive value. See Jennings v. Social Security Administration, 123 M.S.P.R. 577, ¶ 25 n.2 (2016). 5 The administrative judge recognized that Silveria was not a binding decision, but he considered it for its persuasive value. ID at 4 n.3; see 5 C.F.R. § 1201.117(c)(2). 6 WIGI; instead, the negotiated grievance procedure is the exclusive means for resolving the dispute. This holding seems to suggest that, for a WIGI denial covered under a negotiated grievance procedure, the only avenue of Board review is through 5 U.S.C. § 7121(d), to the exclusion of 5 U.S.C. § 7121(g). To the extent that it does, Hunt is overruled.6 We also overrule other Board cases issued after the enactment of 5 U.S.C. § 7121(g), such as Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 8 (2007), to the extent those cases state that WIGI denials, if covered by a CBA, are not appealable to the Board even when an aggrieved employee has alleged a PPP other than a PPP under 5 U.S.C. § 2302(b)(1). ¶9 The Board in Silveria also cited to the Office of Personnel Management’s regulation at 5 C.F.R. § 531.410(d), which states as follows: When a negative [WIGI] determination is sustained after reconsideration, an employee shall be informed in writing of the reasons for the decision and of his or her right to appeal the decision to the Merit Systems Protection Board. However, for an employee covered by a collective bargaining agreement a reconsideration decision that sustains a negative determination is only reviewable in accordance with the terms of the agreement. This regulation accurately sets forth the general rule of 5 U.S.C. § 7121(a)(1), but it does not account for either of the exceptions to that rule that allow for a direct Board appeal where a PPP has been alleged, i.e. 5 U.S.C. § 7121(d) and (g). To the extent that this regulation is inconsistent with the statute, the statute controls. See Johnson v. Department of Justice, 71 M.S.P.R. 59, 67 (1996) (finding that the provisions of a statute will prevail in any case in which there is a conflict between a statute and a regulation). 6 In support of this holding, the Board in Hunt relied on Espenschied v. Merit Systems Protection Board, 804 F.2d 1233, 1236-37 (Fed. Cir. 1986). However, Espenschied was issued prior to the enactment of 5 U.S.C. § 7121(g) in 1994. 7 ¶10 Turning to the facts of this case, the appellant is a bargaining unit employee covered by a CBA with a negotiated grievance procedure that includes WIGI denials. IAF, Tab 4 at 13. Prior to filing an appeal with the Board, he requested reconsideration of the agency’s denial and the agency upheld the denial. Id. at 26-38. The appellant then timely filed an appeal with the Board, alleging that the WIGI denial constituted a PPP under 5 U.S.C. § 2302(b)(2) and (b)(12). IAF, Tab 1 at 5. There is nothing in the record to suggest that the appellant previously filed a grievance through the CBA or a complaint with the Office of Special Counsel regarding this WIGI denial.7 Therefore, it appears that the appellant may have made a valid election under 5 U.S.C. § 7121(g) to file an appeal directly with the Board, and we find that the appeal must be remanded for further adjudication of the issue. ¶11 We note that, to this point, the appellant has made only bare assertions of PPPs under 5 U.S.C. § 2302(b)(2) and (b)(12). IAF, Tab 1 at 5. Neither party has briefed whether the appellant is required to do anything more to establish the 7 On his initial appeal form, the appellant checked “Yes” next to the question of whether, “[w]ith respect to the agency personnel action or decision you are appealing, have you, or has anyone on your behalf, filed a grievance under a negotiated grievance procedure provided by a [CBA]?” IAF, Tab 1 at 4. However, in response to the following question, he stated that he filed said grievance on December 15, 2016, which was nearly 9 months before the WIGI denial at issue here. Id. Moreover, in the agency’s “declaration of collective bargaining agreement,” the agency stated in no unclear terms that “[t]he Appellant has not grieved this action.” IAF, Tab 4 at 13. Although it is not material to the outcome of this appeal, we note our disagreement with the administrative judge that an election to proceed before the Board under 5 U.S.C. § 7121(d) requires that the employee first obtain a final decision on a grievance. ID at 4. If the employee first elects to proceed with a grievance, the statute does not preclude Board review of the final decision under 5 U.S.C. § 7702(a), but the actual initial election under subsection (d) is between a negotiated procedure and any available statutory procedure, including an appeal directly to the Board. See Avila v. Defense Logistics Agency, 21 M.S.P.R. 91, 92-93 (1984). 8 Board’s jurisdiction over his appeal.8 Regardless, the appellant was not afforded notice that he needed to do anything further regarding his PPP allegations to establish jurisdiction. 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). In the absence of briefing by the parties and adequate Burgess notice for the appellant, we will not decide this issue on the current record. The administrative judge and the parties can address these issues on remand as necessary. ¶12 The administrative judge should also rule on the appellant’s three objections to the Order and Summary of Telephonic Status Conference. IAF, Tab 11 at 4-5. Because they are not material to our holding here, we decline to rule on them at this time. The appellant’s Request for Order to Preserve Computer Files is denied because he has not alleged or shown that the computer files contain information relevant to the issues in this appeal. PFR File, Tab 4 at 4; see 5 C.F.R. § 1201.72(a). However, in light of the clarified jurisdictional 8 The Board has held that, to elect its procedure under 5 U.S.C. § 7121(d), which requires an allegation of discrimination under 5 U.S.C. § 2302(b)(1), the discrimination allegation need not be nonfrivolous. See Farooq v. Corporation for National & Community Service, 109 M.S.P.R. 73, ¶ 9 (2008); Cooper v. Department of Defense, 98 M.S.P.R. 313, ¶¶ 9-11 (2005); see also 5 C.F.R. § 1201.4(s) (defining “nonfrivolous allegation”). Moreover, the Board has held on occasion that, absent express instruction from Congress, the exceptions set forth in 5 U.S.C. § 7121(d), (e), and (g) should be treated the same. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 16 (2013). However, it is potentially significant that appeals under section 7121(d) are brought under 5 U.S.C. § 7702, whereas appeals under section 7121(g) are brought under 5 U.S.C. § 7701. Cooper, 98 M.S.P.R. 313, ¶ 10. Section 7702(a)(1), unlike section 7701, specifically states that the Board “shall . . . decide both the issue of discrimination and the appealable action,” and section 7702 does not differentiate between frivolous and nonfrivolous discrimination claims. 5 U.S.C. § 7702; Bennett v. National Gallery of Art, 79 M.S.P.R. 285, 289 (1998). 9 issue, the administrative judge should afford the parties another opportunity to initiate discovery.9 ORDER ¶13 For the reasons discussed above, we remand this case to the Denver Field Office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 9 The administrative judge previously stayed discovery pending a jurisdictional ruling. IAF, Tab 8 at 3. If the administrative judge deems it appropriate, he may initially limit discovery to the jurisdictional issue.	https://www.mspb.gov/decisions/precedential/BROOKINS_KARL_DE_531D_18_0028_I_1_OPINION_AND_ORDER_1991708.pdf
01-09-2023	2023 MSPB 2	Chenshiang Lin	https://www.mspb.gov/decisions/precedential/LIN_CHENSHIANG_D_CH_0752_15_0340_I_2_OPINION_AND_ORDER_1991327.pdf	Department of the Air Force	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 2 Docket No. CH-0752-15-0340-I-2 Chenshiang D. Lin, Appellant, v. Department of the Air Force, Agency. January 9, 2023 Jeffrey Silverstein, Esquire, Dayton, Ohio, for the appellant. Daniel J. Dougherty, Esquire, Wright-Patterson Air Force Base, Ohio, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal under the agency’s Science and Technology Reinvention Laboratory Personnel Management Demonstration Project, 75 Fed. Reg. 53076-01 (Aug. 30, 2010) (Lab Demonstration Project), applicable to individuals, like the appellant, employed in the agency’s Air Force Research Laboratory (AFRL). For the reasons that follow, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Central Regional Office for 2 further adjudication of the agency’s charge and the appellant’s affirmative defenses under the standards articulated in this Remand Order. BACKGROUND ¶2 As further detailed in the initial decision, the appellant most recently held the position of Senior General Engineer, DR-III, for the AFRL. Lin v. Department of the Air Force, MSPB Docket No. CH-0752-15-0340-I-1, Initial Appeal File (IAF), Tab 9, Part 1 at 19-20; Lin v. Department of the Air Force, MSPB Docket No. CH-0752-15-0340-I-2, Refiled Appeal File (AF-2), Tab 8, Initial Decision (ID) at 1-2.1 In this position, he was subject to a contribution-based compensation system (CCS), rather than the traditional performance-based system. ID at 5; IAF, Tab 9, Part 3 at 9-10. ¶3 In the CCS that applies in this appeal, contribution in engineering positions such as the appellant’s are assessed in four “factors,” which are averaged to determine an individual’s overall CCS score: (1) Problem Solving; (2) Communication; (3) Technology Management; and (4) Teamwork and Leadership. 75 Fed. Reg. at 53090, 53093, 53102-04. For each factor, the Lab Demonstration Project contains detailed descriptions of four “broadband levels” of contribution, levels I through IV. Id. at 53084, 53086, 53102-04. An individual’s broadband level and pay dictates his expected level of contribution. Id. at 53084, 53086. For instance, the appellant held a DR-III broadband level position, so his contribution on the four factors was determined based on his DR-III broadband level, with some variance based on his actual pay 1 At the request of both parties, the administrative judge dismissed the initial appeal without prejudice for automatic refiling at a later date, resulting in the two docket numbers associated with this single matter. IAF, Tab 30. 3 within the broadband.2 IAF, Tab 9, Part 2 at 222-31, Part 3 at 4. At the time of his removal, the appellant’s expected contribution score was 3.05, i.e., a level III base score adjusted to account for his actual pay within that broadband. Id., Part 1 at 83, 93-94. The appraisal period under the Lab Demonstration Project “begins on October 1 and ends on September 30 of the following year.” 75 Fed. Reg. at 53090. ¶4 When the agency determines that an employee is inadequately contributing, one option provided in the CCS is a Contribution Improvement Plan (CIP), which is comparable to a performance improvement plan (PIP) under chapter 43. 75 Fed. Reg. at 53093-94. If an employee fails to demonstrate increased contribution during the CIP, or if his “contribution increases to a higher level and is again determined to deteriorate in any area within two years” from the start of the CIP, the Lab Demonstration Project provides management with discretion to reduce the pay of or remove the employee without a new CIP. Id. at 53093. ¶5 In January 2013, the agency placed the appellant on a 120-day CIP, citing contribution scores of 3.0 for Problem Solving, 2.9 for Communication, 2.0 in Technology Management, and 3.0 in Teamwork and Leadership for the appraisal year ending in September 2012, which resulted in an overall contribution score of 2.73, below the 3.05 score expected of him. ID at 12; IAF, Tab 9, Part 2 at 222-31, Part 3 at 4-8. In September 2013, the agency advised him that he had satisfactorily completed the CIP, but remained subject to the 2-year period in which the Lab Demonstration Project allowed for his removal if his contribution deteriorated. ID at 12; IAF, Tab 9, Part 2 at 220-21, Part 3 at 36-37; 75 Fed. Reg. at 53093. 2 The designation “DR” is a reference to the appellant’s Scientist and Engineer pay plan. 75 Fed. Reg. at 53083. Other than being one of a number of considerations that determined his expected level of contribution, it is not relevant to our discussion here. 4 ¶6 In January 2015, the agency completed the appellant’s annual contribution evaluation for the period of October 2013 to September 2014, concluding that his overall contribution score was 2.73, which was again below the 3.05 score expected of him. IAF, Tab 9, Part 1 at 83-86, 92-93, Part 2 at 4-11. Effective March 4, 2015, the agency removed him for “failure to demonstrate an adequate level of contribution commensurate with [his] compensation (salary) level for the period 1 October 2013 through 30 September 2014, within a two-year period of a [CIP].” ID at 4-5; IAF, Tab 9, Part 1 at 19-21, 92-94. The instant appeal followed. IAF, Tab 1. ¶7 The administrative judge held the appellant’s requested hearing and issued an initial decision, affirming his removal. ID at 1-2, 54; IAF, Tab 6 at 2. In determining that the agency proved its contribution-based charge, the administrative judge applied the standard applicable to a chapter 43 performance-based action, with some adjustments to account for differences between a chapter 43 appeal and the Lab Demonstration Project. ID at 5-6, 9-44. She found that the appellant failed to prove his affirmative defenses of age discrimination and reprisal for engaging in equal employment opportunity (EEO) activity. ID at 44-54. ¶8 The appellant has filed a petition for review. Lin v. Department of the Air Force, MSPB Docket No. CH-0752-15-0340-I-2, Petition for Review (PFR) File, Tab 3.3 The agency has filed a response, and the appellant has replied.4 PFR File, Tabs 5-6. 3 The appellant offers new evidence on review in the form of an affidavit from a previously unidentified witness and her supporting documents. PFR File, Tab 3 at 7, 10-52. The Board will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant asserts that that this information was “not available at the time of the hearing,” but does not provide any factual support for this claim. PFR File, Tab 3 at 5. Therefore, we have not considered this evidence. 5 ANALYSIS The appeal must be remanded for further analysis of the charge and affirmative defenses. ¶9 A tenured Federal employee like the appellant may appeal a contribution-based reduction in pay or removal under the agency’s Lab Demonstration Project to the Board. IAF, Tab 9, Part 1 at 19; 75 Fed. Reg. at 53094 (citing 5 C.F.R. § 432.106 as reflecting the appeal and grievance rights of an employee under the Lab Demonstration Project); see 5 C.F.R. § 432.106(a) (indicating that eligible employees have the right to appeal a chapter 43 removal or reduction in grade to the Board). The Lab Demonstration Project provides that the procedures for instituting a removal or reduction-in-grade action “are similar to and replace those established in 5 CFR part 432 pertaining to performance-based reduction in grade and removal actions.” 75 Fed. Reg. at 53093. It further provides that the procedures in part 432 are “waived to the extent necessary” to permit the agency’s CCS broadband system and CIP process, and to exclude appeals of “reductions in broadband level not accompanied by a reduction in pay.” 75 Fed. Reg. at 53098. Part 432 contains the regulations of the Office of Personnel Management (OPM) implementing the provisions of 5 U.S.C. chapter 43 relating to the reduction in grade or removal of an employee for unacceptable performance. 5 C.F.R. § 432.101. ¶10 When the initial decision was issued, the Board’s case law stated that, in an appeal of a typical performance-based removal under chapter 43, the agency was required to prove the following by substantial evidence: (1) OPM approved 4 A reply is limited to the factual and legal issues raised by another party in the response to the petition for review. 5 C.F.R. § 1201.114(a)(4). It may not raise new allegations of error. Id. Accordingly, we will not consider arguments first raised by the appellant in his reply, such as his assertion that removal was too harsh a penalty. PFR File, Tab 6 at 5-13; see Boston v. Department of the Army, 122 M.S.P.R. 577, ¶ 5 n.3 (2015) (declining to consider new arguments that were first raised in a reply brief). We also will not consider the evidence first presented with his reply. PFR File, Tab 6 at 15-28; see Avansino, 3 M.S.P.R. at 214. 6 its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of his position; (3) his performance standards were valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned him of the inadequacies of his performance during the appraisal period and gave him an adequate opportunity to demonstrate acceptable performance; and (5) after an adequate improvement period, his performance remained unacceptable in at least one critical element. Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 13. Agencies generally provide their employees with an opportunity to demonstrate acceptable performance by placing them on a PIP. Santos v. National Aeronautics & Space Administration, 990 F.3d 1355, 1361 (Fed. Cir. 2021). ¶11 However, while this case was pending on review, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recognized for the first time that an agency must prove an additional element to support an adverse action under chapter 43. Santos, 990 F.3d at 1360-61; Lee v. Department of Department of Veterans Affairs, 2022 MSPB 11, ¶ 14. Specifically, the agency “must justify institution of a PIP” by proving that the employee’s performance was unacceptable before the PIP. Santos, 990 F.3d at 1360-61; Lee, 2022 MSPB 11, ¶ 14. The court noted that 5 U.S.C. § 4302(c)(6) authorizes actions against employees “who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.” Santos, 990 F.3d at 1360-61 (quoting 5 U.S.C. § 4302(c)(6)). The court reasoned that proving continued unacceptable performance requires a showing that the performance was unacceptable prior to the PIP. Santos, 990 F.3d at 1360-61. This holding applies to all pending cases, regardless of when the events took place. Lee, 2022 MSPB 11, ¶ 16. For the reasons explained below, Santos is applicable to this matter. 7 The administrative judge correctly determined that chapter 43 was generally applicable to the agency’s proof of its charge. ¶12 The administrative judge analyzed the agency’s proof of its charge as if the appellant was unsuccessful in completing a PIP under chapter 43. ID at 5-6, 9-44. She modified the elements of a chapter 43 charge of unacceptable performance to account for the specific requirements of the Lab Demonstration Project. In particular, she found that the agency was required to prove by substantial evidence that (1) OPM approved the contribution system, (2) the agency communicated to the appellant his four contribution factors and expected level of contribution, (3) the four contribution factors were valid, (4) the agency warned the appellant that his contribution was inadequate and gave him a reasonable opportunity to demonstrate adequate contribution during the 2-year period following the CIP (specifically, in the instant case from October 1, 2013, to September 30, 2014), and (5) his contribution remained deficient. ID at 9-44. The parties do not dispute the administrative judge’s formulation of the agency’s burden to prove the charge. We agree that she appropriately began her analysis of the charge with the factors set forth in chapter 43. ¶13 In the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, § 601(a), 92 Stat. 1111, 1185 (codified in pertinent part at 5 U.S.C. §§ 4701(a)(4), 4703(a)), Congress authorized OPM to conduct, directly or through agencies or organizations, projects known as “demonstration projects,” to evaluate and determine whether “a specified change in personnel management policies or procedures would result in improved Federal personnel management.” Since the enactment of the CSRA, OPM has approved various demonstration projects. See, e.g., Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 3 (2015) (describing an OPM demonstration project applicable to an appellant’s position at the Department of the Army); Solamon v. Department of Commerce, 119 M.S.P.R. 1, ¶¶ 2-3 (2012) (describing a demonstration project approved by OPM for the Bureau of Economic Analysis); Guillebeau v. Department of the 8 Navy, 93 M.S.P.R. 379, ¶ 2 (2003) (analyzing removal for unsatisfactory work performance, issued under an OPM-approved demonstration project), aff’d, 362 F.3d 1329 (Fed. Cir. 2004). An agency using an OPM-approved demonstration project is not “limited . . . by any provision of [Title 5]” or any rule or regulation implementing Title 5 “which is inconsistent with [an] action” regarding, among other things, compensating, assigning, reassigning, promoting, or methods of disciplining employees. 5 U.S.C. § 4703(a). ¶14 Congress later specifically required the Secretary of Defense to implement demonstration projects in certain military laboratories, including the AFRL. National Defense Authorization for Fiscal Year 2008, Pub. L. No. 110-181, § 1107, 122 Stat. 3, 357-58 (requiring the Secretary of Defense to implement demonstration projects at certain Department of Defense laboratories (referencing 5 U.S.C. § 9902(c)(2) (listing, among other laboratories, the AFRL)); National Defense Authorization for Fiscal Year 1995, Pub. L. No. 103-337, § 342(b), 108 Stat. 2663, 2721 (1994) (providing that the Secretary of Defense may implement demonstration projects at science and technology reinvention laboratories under 5 U.S.C. § 4703 with OPM approval). It also expressly eliminated any requirement that the Secretary obtain OPM approval for such a demonstration project. National Defense Authorization Act for Fiscal Year 2001 (2001 NDAA), Pub. L. No. 106-398, app. § 1114(a), 114 Stat. 1654A-315 (2000). The agency relied on 5 U.S.C. § 4703 and the foregoing authorizations in implementing its Lab Demonstration Project. 75 Fed. Reg. at 53076. ¶15 The Lab Demonstration Project in this matter contains specific provisions for “[d]ealing with [i]nadequate [c]ontribution.” Id. at 53093-94. It waives Title 5 statutes and regulations, including 5 U.S.C. §§ 4301-4305 “to the extent necessary to allow provisions of the [CCS],” and 5 C.F.R. §§ 432.101-.105, “to the extent necessary to allow provisions of CCS and to address inadequate contribution.” 75 Fed. Reg. at 53098-99. 9 ¶16 In pertinent part, the Lab Demonstration Project procedures include providing employees with a description of the broadband level factors “so that they know the basis on which their contribution is assessed.” Id. at 53090. They also provide the methodology for assessing an employee’s contribution, warn that inadequate contribution could lead to a reduction in pay or removal, and give the employee a reasonable opportunity to improve on a CIP of at least 60 days while “offer[ing] appropriate assistance to the employee.” Id. at 53090, 53093. It is intended that these “procedures are similar to and replace those established in 5 C.F.R. part 432 pertaining to performance-based reduction in grade and removal actions.” 75 Fed. Reg. at 53093. These provisions essentially mirror, in modified form, the requirements of chapter 43 that an agency communicate to an employee his position’s performance standards and critical elements, warn him of inadequacies of his performance, and provide him with an adequate opportunity to improve. Lee, 2022 MSPB 11, ¶ 13. The Lab Demonstration Project further provides that management has the discretion to initiate a reduction in pay or removal if the employee either does not improve during the CIP or his contribution improves but deteriorates again within 2 years of the beginning of the CIP. 75 Fed. Reg. at 53093. This is comparable to the requirement in a chapter 43 action that an agency prove that the employee’s performance remained unacceptable after an adequate improvement period. Lee, 2022 MSPB 11, ¶ 13. The Lab Demonstration Project notes the similarity between it and performance-based actions taken under 5 C.F.R. part 432. 75 Fed. Reg. at 53093. ¶17 Given the parallels between the requirements of an action under chapter 43 and those under the agency’s Lab Demonstration Project, we find that the application of chapter 43 standards to the appellant’s removal, generally, is not inconsistent with the CCS. In instances when chapter 43 diverges from the Lab Demonstration Project, we find that the administrative judge properly eliminated or modified the chapter 43 requirements to the extent necessary to allow the agency to implement its CCS. See 75 Fed. Reg. at 53098-99. For example, 10 she did not require the agency to prove the appellant was held to “critical elements,” as doing so is inconsistent with the agency’s rating system. She also adopted the agency’s use of the term “contribution” instead of “performance.” ¶18 We note that one chapter 43 element is not applicable here. Specifically, OPM’s approval is not required for a Lab Demonstration Project, and therefore we disagree with the administrative judge’s determination that the agency was required to prove this element of a chapter 43 performance-based charge. ID at 9; 2001 NDAA, Pub. L. No. 106-398, app. § 1114(a), 114 Stat. 1654A-315. In any event, the administrative judge found that OPM approved the Lab Demonstration Project, and the parties do not dispute this finding on review. Id.; 75 Fed. Reg. at 53077. Therefore, any error was harmless. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). We must remand this appeal for further adjudication in light of Santos. ¶19 Next, we must determine the extent to which Santos, 990 F.3d 1355, applies to this appeal. The holding in Santos that an agency must prove that an employee’s performance was unacceptable before instituting a PIP was grounded in 5 U.S.C. § 4302(c)(6). Santos, 990 F.3d at 1360-61. Pursuant to 5 U.S.C. § 4703(a), an agency using a demonstration project is not limited by inconsistent provisions of Title 5. Further, the Lab Demonstration Project provides that chapter 43 and OPM’s implementing regulations are waived to the extent necessary to allow for the agency’s CCS. 75 Fed. Reg. at 53098-99. However, we discern no basis for concluding that 5 U.S.C. § 4302(c)(6) is inconsistent with, or impedes, the agency’s CCS rating or performance-based action processes. Section 4302(c)(6) of Title 5 and the Lab Demonstration Project both contemplate that a CIP or PIP will only be implemented after a determination is made that the employee’s contribution or performance was 11 unacceptable. 75 Fed. Reg. at 53093-94. The Lab Demonstration Project explicitly describes the implementation of a CIP, which could lead to a removal such as the appellant’s, as applying to an employee whose level of contribution has already fallen below a particular threshold. 75 Fed. Reg. at 53093. Further, in support of its proposed removal, the agency listed the appellant’s inadequate contribution during the assessment period ending in September 2012, as well as the fact that this contribution was the basis on which the appellant was placed on a CIP. IAF, Tab 9, Part 1 at 92, 94. Therefore, we find that the agency’s burden in this appeal includes proof that the appellant’s CIP was justified because his pre-CIP performance was inadequate. ¶20 Because the parties did not have an opportunity to address this element of the agency’s burden below, we remand the appeal for further adjudication. See Lee, 2022 MSPB 11, ¶ 16. On remand, the administrative judge shall accept evidence and argument, and hold a supplemental hearing if appropriate, on whether the agency proved by substantial evidence that the appellant’s pre-CIP contribution was inadequate. Id., ¶ 17. The administrative judge shall then issue a new initial decision consistent with Santos. Id. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate into her remand initial decision the prior findings from the initial decision on other elements of the agency’s case with the exception of the matters discussed below. Id. We further remand for the administrative judge to determine whether the CIP period provided the appellant an adequate opportunity to improve and to apply the correct evidentiary standards for his affirmative defenses. ¶21 On review, the appellant disputes the administrative judge’s findings that the agency proved by substantial evidence that it provided him with a reasonable opportunity to improve. PFR File, Tab 3 at 5-8. In particular, he argues that he lacked the training and background he needed to perform his assigned functions, and was disadvantaged in his performance because English was not his 12 first language. Id. He notes that he “performed admirably for 29 years in an engineering capacity” at the agency. Id. at 5, 8. In removing the appellant, the agency primarily relied on his inadequate contribution following the CIP, specifically during the period from October 2013 to September 2014. IAF, Tab 9, Part 1 at 92-93. In finding that the agency provided the appellant with a reasonable opportunity to demonstrate adequate contribution, the administrative judge considered this period. ID at 15-16, 33-44. This was in error. ¶22 In some instances, such as here, an employee is able to perform at an acceptable level while on an improvement plan, but his performance subsequently deteriorates and again becomes unacceptable. Sullivan v. Department of the Navy, 44 M.S.P.R. 646, 656 (1990), overruled on other grounds, as recognized in Thomas v. Department of Defense, 117 F. App’x 722, 724-25 (Fed. Cir. 2004). Such an individual is known as a “roller coaster” employee. Id. An agency that has implemented a PIP generally is not required to give a roller coaster employee a new PIP prior to removing him provided it takes its action based on instances of unacceptable performance in the same critical elements for which the PIP was imposed that occurred within 1 year from the inception of the PIP.5 See id. at 659 (stating that an agency may take an action based on instances of unacceptable performance following successful completion of a PIP that occur within 1 year after the advanced notice of the PIP); 5 C.F.R. § 432.105(a)(2) (providing that when an employee performed acceptably during the year following the beginning of an opportunity to demonstrate acceptable 5 The administrative judge implicitly found that under the agency’s Lab Demonstration Project, the 1-year period was extended to 2 years. ID at 8, 12, 34. The parties do not challenge this finding on review, and we find that it is supported by the record. Specifically, the Lab Demonstration Project provides that, “[i]f the employee’s contribution increases to a higher level [during the CIP] and is again determined to deteriorate in any area within two years from the beginning of the opportunity period, management has sole and exclusive discretion to initiate reduction in pay or removal with no additional opportunity to improve.” 75 Fed. Reg. at 53093. 13 performance and his performance becomes unacceptable again, the agency must provide a new opportunity to demonstrate acceptable performance before deciding to remove or reduce him in grade under chapter 43). However, absent exceptions not applicable here, in such instances, the agency must prove that the original PIP constituted a reasonable opportunity to demonstrate acceptable performance. Sullivan, 44 M.S.P.R. at 659-60. ¶23 In finding that the agency provided the appellant with a reasonable opportunity to improve, the administrative judge assessed the wrong period of time. Specifically, she considered October 2013 to September 2014, the period of inadequate contribution on which his removal was based, instead of the period of the CIP. ID at 15-33. While considering this period is appropriate for determining whether the appellant’s performance again deteriorated after the CIP, the proper period for assessing the appellant’s opportunity to improve is the CIP period itself, from January 14 to May 13, 2013. IAF, Tab 9, Part 2 at 220-22. It is unclear whether the CIP provided an adequate opportunity for the appellant to improve, as the administrative judge did not make any findings on this subject. ¶24 The administrative judge who oversaw the proceedings below and issued the initial decision is no longer employed by the Board. When there is conflicting testimony on a material issue, and a new administrative judge will decide the case, the testimony should be heard again to permit her to make credibility determinations based on witness demeanor. Stinson v. Department of Justice, 4 M.S.P.R. 521, 523 (1981). A factual dispute is “material” if, in light of the governing law, its resolution could affect the outcome. Oram v. Department of the Navy, 2022 MSPB 30, ¶ 9 n.5. Because the appellant disputes that he was given an adequate opportunity to improve, on remand, the administrative judge should accept evidence and argument, and hold a supplemental hearing, to determine if the CIP provided the appellant with this opportunity. If the agency makes the additional showing required under Santos on remand, and proves that the CIP provided the appellant with an adequate opportunity to 14 demonstrate acceptable contribution, the administrative judge may incorporate the findings from the prior initial decision on other elements of the agency’s case in the remand initial decision. ¶25 Finally, the appellant presented claims of age discrimination and EEO reprisal below, which the administrative judge found unproven. ID at 44-53. The parties do not challenge this determination on review. Nonetheless, on remand the administrative judge must further adjudicate these claims. The Federal Circuit held in Santos, 990 F.3d at 1363-64, that the Board must consider an appellant’s pre-PIP performance in the context of an affirmative defense when, as here, the validity of the agency’s proffered reason for taking the performance-based action is a factor in analyzing that claim. Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶ 28 (holding that in determining whether the agency has afforded the appellant a reasonable opportunity to improve in a chapter 43 action, relevant factors include the nature of the duties and responsibilities of the appellant’s position, including whether assignments of work were made in a discriminatory manner). Further, in the period since the administrative judge issued her initial decision, we clarified the evidentiary standards and burdens of proof for age discrimination and EEO reprisal claims in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30-33. In the proceedings on remand, the administrative judge should advise the parties of the standards set forth in Pridgen, provide them with an opportunity to present argument and evidence, and hold a supplemental hearing on the appellant’s affirmative defenses to permit the parties to address these standards, as well as any claims regarding his pre-CIP performance. She should then apply the standards set forth in Santos and Pridgen in the remand initial decision.6 ID at 21-22, 24; PFR File, Tab 3 at 7. 6 The appellant also appears to dispute the administrative judge’s determination that his demeanor and testimony was “indirect and evasive.” PFR File, Tab 3 at 8; ID at 29-30. The Board must defer to an administrative judge’s credibility determinations when they 15 ORDER ¶26 For the reasons discussed above, we GRANT the petition for review, VACATE the initial decision, and REMAND this case to the regional office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not offered such reasons here and we therefore decline to overturn the administrative judge’s credibility findings.	https://www.mspb.gov/decisions/precedential/LIN_CHENSHIANG_D_CH_0752_15_0340_I_2_OPINION_AND_ORDER_1991327.pdf
01-04-2023	2023 MSPB 1	Tammika Richardson	https://www.mspb.gov/decisions/precedential/RICHARDSON_TAMMIKA_S_AT_0714_21_0109_I_1_OPINION_AND_ORDER_1990049.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2023 MSPB 1 Docket No. AT-0714-21-0109-I-1 Tammika S. Richardson, Appellant, v. Department of Veterans Affairs, Agency. January 4, 2023 Jacqueline Turk-Jerido, Tuskegee, Alabama, for the appellant. Sophia E. Haynes, Esquire and Teri Walker, Decatur, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 This appeal is before the Board on interlocutory appeal from the April 21, 2021 Order of the administrative judge staying the proceedings and certifying for Board review his finding that the agency cannot rely on the provisions of 38 U.S.C. § 714 to remove the appellant, a hybrid employee as defined in 38 U.S.C. § 7401(3). For the reasons set forth below, we AFFIRM the administrative judge’s ruling, and FIND that the agency cannot rely on 38 U.S.C. § 714 to remove a hybrid employee appointed pursuant to 38 U.S.C. § 7401(3). If the agency wishes to remove the appellant based on the same or similar 2 allegations, it must do so pursuant to the procedures in 5 U.S.C. chapter 75, as required by 38 U.S.C. § 7403(f)(3). We VACATE the administrative judge’s order staying the proceedings, and we RETURN the appeal to the administrative judge for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 The appellant was a GS-5 Nursing Assistant hired under the legal authority of 38 U.S.C. § 7401(3). Initial Appeal File (IAF), Tab 4 at 13, 57. Accordingly, she was a hybrid employee, which is a category of Veterans Health Administration (VHA) employees who are subject to both Title 38 and Title 5. U.S. Department of Veterans Affairs v. Federal Labor Relations Authority, 9 F.3d 123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky, 284 F.3d 1310, 1314 (Fed. Cir. 2002). The parties have not disputed that the appellant qualified as a hybrid employee at the time of her removal. See IAF, Tab 6 at 8, Tab 22 at 6, Tab 23 at 2 n.2. ¶3 Pursuant to 38 U.S.C. § 714, the agency removed the appellant from her position based on charges of absence without leave and failure to follow leave request procedures. IAF, Tab 4 at 13, 15-18. The appellant filed a Board appeal challenging the removal. IAF, Tab 1. Subsequently, the administrative judge questioned whether the agency could rely on 38 U.S.C. § 714 to remove a hybrid employee, and ordered the agency to show cause why the Board should not resolve the appeal using the standards and procedures under Title 5, rather than the standards and procedures applicable to appeals adjudicated under 38 U.S.C. § 714. IAF, Tab 5 at 4. The agency filed a response. IAF, Tab 6. In the summary of telephonic prehearing conference, the administrative judge set forth the standard for a claim of harmful procedural error, and noted that the appellant raised an affirmative defense of retaliation for having filed a grievance. IAF, Tab 15 at 8-9. A hearing was held. IAF, Tabs 17, 20 (Hearing Audio Recordings). The parties submitted closing arguments. IAF, Tabs 21-22. 3 ¶4 The administrative judge then issued an Order Certifying Interlocutory Appeal finding that a question had arisen as to whether the agency was authorized to remove the appellant, a hybrid employee under 38 U.S.C. § 7401(3), using 38 U.S.C. § 714 procedures. IAF, Tab 23. After evaluating the relevant statutes, including 38 U.S.C. §§ 714, 7401(3), and 7403(f)(3), and the interplay of these provisions, the administrative judge concluded that 38 U.S.C. § 7403(f)(3) precludes the agency from using its authority under 38 U.S.C. § 714 to take an adverse action against an employee appointed under 38 U.S.C. § 7401(3). Id. at 1-10. The administrative judge also stayed further processing of the case while the interlocutory appeal was pending before the Board. Id. at 11. ¶5 More than 7 months later, on December 3, 2021, the appellant filed a submission in which she provided the Secretary of Veterans Affairs’ November 2, 2021 “Notice to All [American Federation of Government Employees (AFGE)] Employees.” IAF, Tab 24 at 4. The Notice stated that: In a recent arbitration decision, Arbitrator Hyman Cohen found that the Department of Veterans Affairs violated the Federal Service Labor-Management Relations Statute . . . when it failed in 2017 to bargain over the procedures and appropriate arrangements of the implementation of 38 U.S.C. § 714 and ordered Agency to electronically post the terms of the Award. WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL bargain, retroactively, on request of the Union with respect to all bargaining unit employees adversely affected by the Accountability Act which became effective on June 23, 2017. WE WILL make any employee whole who, in any agreement reached by the parties, is determined to have suffered a loss of pay, benefits, allowances or differentials because of the Agency’s unlawful conduct. WE WILL NOT interfere with, restrain or coerce bargaining unit employees in the exercise of the rights assured them by the Federal Services Labor-Management Relations Statute. Id. 4 ¶6 The appellant did not include the referenced arbitration decision or any other documents upon which the Secretary’s Notice was based, nor did she explain the effect of the Secretary’s Notice on this appeal. Accordingly, we ordered the parties to file additional pleadings to address these outstanding issues. IAF, Tab 25. We specifically directed the agency to address, among other things, the effect of the Secretary’s November 2, 2021 Notice on this appeal and its intentions regarding this matter going forward. Id. at 2-3. ¶7 The appellant filed a response and included the Federal Labor Relations Authority’s (FLRA) decision in American Federation of Government Employees National Veterans Affairs Council #53 v. Department of Veterans Affairs, 71 F.L.R.A. 410 (2019). IAF, Tab 27 at 8-12. There, the FLRA vacated Arbitrator Cohen’s earlier finding that the agency did not have a duty to bargain and therefore did not violate the parties’ agreement or 5 U.S.C. § 7116(a)(5) by unilaterally implementing the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, 131 Stat. 862, codified in relevant part at 38 U.S.C. § 714. Id. at 8-11. It appears that this FLRA decision led to the arbitrator’s decision referenced in the Secretary’s November 2, 2021 Notice. ¶8 The agency filed a reply, which included the March 11, 2021 arbitration decision referenced in the Secretary’s Notice. IAF, Tab 29 at 6-49. However, instead of responding to the Board’s specific inquiry about the agency’s intentions going forward, the agency asserted that the appellant “[did] not submit[] any argument on the question of jurisdiction” and argued that the appeal should be dismissed for lack of jurisdiction.1 Id. at 4. ¶9 Despite the agency’s nonresponsive narrative submission, the agency conceded in its submissions that the appellant was covered by a collective 1 The Board’s jurisdiction is not an issue in this removal appeal regardless of whether the removal is based on Title 5 or 38 U.S.C. § 714. 5 bargaining agreement between the agency and AFGE 110 Local. IAF, Tab 4 at 8. Because it is not clear how the Secretary’s November 2, 2021 Notice impacts this matter or specifically applies to the appellant, we will proceed with our analysis of the legal issue presented in the Order Certifying Interlocutory Appeal. ANALYSIS The administrative judge properly certified his ruling for interlocutory appeal. ¶10 An interlocutory appeal is an appeal to the Board of a ruling made by an administrative judge during a proceeding. 5 C.F.R. § 1201.91. An administrative judge may certify an interlocutory appeal to the Board on his own motion or upon the motion of either party. Id. The Board’s regulations provide for certification of a ruling for review when “[t]he ruling involves an important question of law or policy about which there is substantial ground for difference of opinion” and “[a]n immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public.” 5 C.F.R. § 1201.92. ¶11 The criteria for certifying an interlocutory appeal are met in this case. The issue of whether the agency has the authority under 38 U.S.C. § 714 to remove a hybrid employee is an important question of law about which there is substantial ground for difference of opinion and an immediate ruling on that question will materially advance the completion of this proceeding. Therefore, the administrative judge properly certified his ruling for interlocutory appeal. See, e.g., In re Tinker AFSC/DP v. Department of the Air Force, 121 M.S.P.R. 385, ¶¶ 11-12 (2014) (discussing the standard and finding that the administrative judge properly certified her ruling for interlocutory appeal). As a hybrid employee, the appellant is covered by 38 U.S.C. § 7403(f)(3). ¶12 Appointments of medical professionals in the VHA are governed by 38 U.S.C. § 7401. Section (3) of 7401 governs the appointments of Nursing Assistants, like the appellant, among other positions. The statute at 38 U.S.C. 6 § 7403 discusses, among other things, appointments for health care professionals, including those in positions listed in 38 U.S.C. § 7401(3). In particular, 38 U.S.C. § 7403(f)(1)(A) states that “the Secretary may . . . use the authority in subsection (a) to establish the qualifications for and . . . to appoint individuals to positions listed in section 7401(3) of this title.” Section 7403(f)(3) of Title 38 provides that: Notwithstanding any other provision of this title or other law, all matters relating to adverse actions . . . involving individuals appointed to such positions, whether appointed under this section or section 7405(a)(1)(B)2 of this title . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.3 ¶13 The clause “individuals appointed to such positions” in 38 U.S.C. § 7403(f)(3) is modified by “whether appointed under this section or section 7405(a)(1)(B) of this title.” 38 U.S.C. § 7403(f)(3). As noted above, both 38 U.S.C. § 7403(f)(1)(A) and section 7405(a)(1)(B) refer explicitly to positions listed in 38 U.S.C. § 7401(3), and not to any other positions based on other statutory provisions. ¶14 However, because the legal authority cited in the appellant’s appointment Standard Form 50 (SF-50) was 38 U.S.C. § 7401(3), IAF, Tab 4 at 57, her 2 Section 7405(a)(1)(B) of Title 38 provides that the Secretary “may employ, without regard to civil service or classification laws, rules, or regulations, personnel . . . [o]n a temporary full-time basis, part-time basis, or without compensation basis, persons in . . . [p]ositions listed in section 7401(3) of this title.” Neither party alleges, and it does not appear from the appellant’s appointment Standard Form 50, IAF, Tab 4 at 57, that this provision is applicable to the appellant. 3 Section 7403(f)(3) of Title 38 was enacted as part of the Department of Veterans Affairs Health-Care Personnel Act of 1991, the purpose of which was to amend Title 38 to “improve the capability of the [agency] to recruit and retain physicians and dentists through increases in special pay authorities [and] to authorize collective bargaining over conditions of employment for health-care employees,” among other things. Pub. L. No. 102-40, 105 Stat. 187. That Act was later modified in the Veterans Health Care, Capital Asset, and Business Improvement Act of 2003. Pub. L. No. 108-170, 117 Stat. 2042. 7 appointment SF-50 does not specifically show that she was “appointed under this section [meaning section 7403 or section 7403(f)] or section 7405(a)(1)(B),” which led us to question whether the appellant was covered by 38 U.S.C. § 7403(f)(3) prior to the enactment of the VA Accountability Act. Our reviewing court has held that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights.” Grigsby v. Department of Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984). Moreover, the agency appears to concede that, prior to the enactment of the VA Accountability Act, 38 U.S.C. § 7403(f)(3) would have required Title 5 procedures to apply to the removal of a hybrid employee like the appellant.4 IAF, Tab 6 at 5. Additionally, both the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board have acknowledged that in cases arising after 2003, but prior to the enactment of the VA Accountability Act, 38 U.S.C. § 7403(f)(3) applied to employees, like the appellant, who held positions under 38 U.S.C. § 7401(3). See, e.g., Kelley v. Merit Systems Protection Board, 379 F. App’x 983, 984 (Fed. Cir. 2010) (citing 38 U.S.C. § 7403(f)(3) and concluding that “[b]ecause [her] appointment as a Social Worker is covered by 38 U.S.C. § 7401(3), her appeal rights are governed by title 5”)5; Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶¶ 9, 12-15 (2010) (citing 38 U.S.C. § 7403(f)(3) for the proposition that employees in 38 U.S.C. § 7401(3) positions retain many Title 5 protections, including adverse action rights, and finding that Title 5 competitive veterans’ preference requirements also apply to appointments to section 7401(3) positions). Finally, 4 The agency appears to cite to the 1991 version of the statute in its response to the order to show cause. IAF, Tab 6 at 5. The agency does not contend that 38 U.S.C. § 7403(f)(3)—or the clause “appointed under this section”—was inapplicable to the appellant before the enactment of the VA Accountability Act. 5 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. E.g., Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 8 the Federal Circuit has described the agency’s hybrid employees as falling under 38 U.S.C. §§ 7401(3) and 7403(f)(1)(A). Athey v. United States, 908 F.3d 696, 698 n.1 (Fed. Cir. 2018). For these reasons, we find that 38 U.S.C. § 7403(f)(3) is applicable to the appellant. The agency cannot rely on the provisions of 38 U.S.C. § 714 to remove the appellant, a hybrid employee in a position covered by 38 U.S.C. § 7401(3). ¶15 On June 23, 2017, Congress enacted the VA Accountability Act to “improve accountability of [agency] employees.” Pub. L. No. 115-41, 131 Stat. 862, § 202. The VA Accountability Act was a response to “some situations where a few [agency] employees have done some egregious things that need to be addressed,” including a situation “that took place in Phoenix, [Arizona], in terms of appointments[6]; the rash number of suicides and mishandling of pharmaceuticals in the Atlanta office of Clairmont . . . [and] the situation of transfers in Philadelphia, [Pennsylvania], where people were transferred rather than disciplined and were paid their moving expenses and cost-of-living adjustments upward.” 163 Cong. Rec. S3261-01, S3267 (daily ed. Jun. 6, 2017) (statement of Sen. Isakson). ¶16 The VA Accountability Act provided the agency with an expedited procedure to remove employees based on misconduct or performance issues. Importantly, 38 U.S.C. § 714(a)(1) provides that “[t]he Secretary may remove, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension.” Section 714(h)(1)(B) defines a “covered individual” as, among other things, “an individual occupying a position at the Department, but does not include . . . an individual appointed pursuant to 6 The agency facility in Phoenix “had widespread mismanagement and misconduct by employees,” including a situation in which “veterans . . . died while they were stuck on secret waiting lists.” 163 Cong. Rec. S3261-01, S3280 (daily ed. Jun. 6, 2017) (statement of Sen. Rubio). 9 sections 7306, 7401(1), 7401(4), or 7405 of this title.”7 Notably, however, this provision in 38 U.S.C. § 714(h)(1)(B) does not expressly reference 38 U.S.C. § 7401(3), which covers hybrid employees like the appellant. ¶17 In its response to the order to show cause, the agency made the following arguments to support its position that it was authorized to remove a hybrid employee under 38 U.S.C. § 714: (1) Congress intended for hybrid employees to be included under the broad definition of a “covered individual” in 38 U.S.C. § 714; (2) 38 U.S.C. § 714 was enacted later in time to specifically address accountability in the agency; (3) the plain language of 38 U.S.C. § 714 supports that hybrid employees should be covered; and (4) other administrative judges have upheld actions taken against hybrid employees under 38 U.S.C. § 714. IAF, Tab 6 at 4-8. The administrative judge addressed and rejected the agency’s arguments in the Order Certifying Interlocutory Appeal.8 IAF, Tab 23 at 7-10. We have considered these arguments; however, for the following reasons, we agree with the administrative judge and conclude that the agency cannot rely on the provisions at 38 U.S.C. § 714 to remove a hybrid employee appointed pursuant to 38 U.S.C. § 7401(3). ¶18 “In a statutory construction analysis, the starting point is the plain language of the statute.” Miller v. Office of Personnel Management, 903 F.3d 1274, 1281 (Fed. Cir. 2018). It is a long-standing rule of statutory construction that the plain language of a statute must be treated as controlling absent a clear legislative intent to the contrary. Miller v. Department of the Army, 987 F.2d 1552, 1555 7 Neither party asserts that any of the exceptions in 38 U.S.C. § 714(h)(1) is applicable to this matter. 8 Regarding argument (4), we agree with the administrative judge that Board initial decisions are of no precedential value and cannot be cited or relied on as controlling authority. Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620, ¶ 15 (2008); IAF, Tab 23 at 9-10. Moreover, the initial decisions cited by the agency do not specifically analyze the issue before us or even reference 38 U.S.C. § 7403(f)(3). Therefore, the agency’s reliance on these decisions is not persuasive. 10 (Fed. Cir. 1993); Tucker v. Department of Health & Human Services, 73 M.S.P.R. 278, 286 (1997) (same). The administrative judge focused on 38 U.S.C. § 7403(f)(3) in his Order Certifying Interlocutory Appeal, finding that the plain language of section 7403(f)(3)—which specifically states that it applies to “all matters” relating to adverse actions involving hybrid employees and applies “[n]otwithstanding any other provision of this title or other law”—supports the conclusion that the agency must follow the provisions of Title 5 whenever it takes an adverse action against a hybrid employee appointed under 38 U.S.C. § 7401(3). IAF, Tab 23 at 4-5, 10. ¶19 However, the agency asserted that 38 U.S.C. § 714 is the operative statute, not 38 U.S.C. § 7403(f)(3). In pertinent part, the agency argued that by not specifically excluding hybrid employees appointed pursuant to 38 U.S.C. § 7401(3) from the definition of a “covered individual” in 38 U.S.C. § 714(h), as it did other types of employees, the statute intended to cover hybrid employees. IAF, Tab 6 at 5-7. The agency further asserted that the inclusion of hybrid employees in the definition of a covered individual “illustrates[] Congress’ plain and unambiguous intent to apply the disciplinary authority to [h]ybrid employees.” Id. at 5. We understand the agency to be applying the maxim of statutory interpretation expressio unius est exclusio alterius, meaning “the expression of one thing is the exclusion of the other.” Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016). Under this maxim, when Congress has enumerated specific things to which a statute applies, it should not be assumed that other things that could have been listed were meant to be included; rather, the specific mention of certain things implies the exclusion of others. Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 11 (2015), aff’d, 839 F.3d 1126 (Fed. Cir. 2016). Thus, when a statute enumerates certain exceptions to a general rule, it is preferable not to interpret the statute as containing other, unenumerated exceptions. Edwards v. Department of Homeland Security, 110 M.S.P.R. 243, ¶ 13 (2008); see King v. Briggs, 83 F.3d 1384, 1388 11 (Fed. Cir. 1996). Construing the plain language of 38 U.S.C. § 714, 38 U.S.C. § 7401(3) is clearly not mentioned as an exclusion to “covered individuals.” Thus, from this maxim, the specific mention of sections 7306, 7401(1), 7401(4), and 7405 as exceptions to the definition of a covered individual in 38 U.S.C. § 714(h)(1)(B) means the inclusion of 38 U.S.C. § 7401(3) in the definition. ¶20 Nevertheless, we cannot consider 38 U.S.C. § 714 in a vacuum. Indeed, Congress enacted 38 U.S.C. § 7403(f)(3) more than 26 years before it enacted 38 U.S.C. § 714. It is well settled that Congress is presumed to be aware of existing laws when it passes new legislation. Poole v. Department of the Army, 117 M.S.P.R. 516, ¶ 23 (2012); see Goodyear Atomic Corporation v. Miller, 486 U.S. 174, 184-85 (1988) (“We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.”). Moreover, “it can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change.” U.S. v. Fausto, 484 U.S. 439, 453 (1988). Yet, the plain language of 38 U.S.C. § 714 does not expressly repeal 38 U.S.C. § 7403(f)(3) or even mention that provision. In contrast to 38 U.S.C. § 714(c)(3), which specifically states that the “procedures under chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under this section,” 38 U.S.C. § 714 does not contain any similar language that would convey a congressional intent to repeal 38 U.S.C. § 7403(f)(3) or disavow the application of 5 U.S.C. chapter 75 procedures to hybrid employees appointed under 38 U.S.C. § 7401(3). ¶21 The absence of any reference in 38 U.S.C. § 714 to 38 U.S.C. § 7403(f)(3) or 5 U.S.C. chapter 75 procedures, particularly in contrast to the explicit language addressing chapter 43 procedures, is similar to the circumstances presented in Wilson v. Department of Veterans Affairs, 2022 MSPB 7. There, the Board discussed the potential impact of the 10-business-day time limit for filing a Board appeal in 38 U.S.C. § 714(c)(4)(B) on the processing of mixed cases, and it noted that the VA Accountability Act was silent regarding the procedures and time 12 limits described in 5 U.S.C. § 7702 for when employees can file mixed-case complaints of discrimination followed by appeals to the Board. Id., ¶¶ 17, 23. The Board viewed such silence—in contrast to the explicit language in 38 U.S.C. § 714(d)(10) regarding the timelines if an employee grieves an action through a collective bargaining agreement—to suggest that Congress did not intend to alter the time limits for mixed-case appeals set forth in 5 U.S.C. § 7702 when it enacted 38 U.S.C. § 714. Id., ¶ 23. The Board ultimately concluded that Mr. Wilson’s mixed-case appeal, which was filed nearly 11 months after the agency action, was timely filed pursuant to 5 U.S.C. § 7702(e)(2) and was not foreclosed by the time limit set forth in 38 U.S.C. § 714(c)(4)(B). Id., ¶¶ 11, 25. Here, we similarly find that Congress’s silence on the application of 38 U.S.C. § 7403(f)(3) or 5 U.S.C. chapter 75 procedures to hybrid employees suggests that Congress did not intend to change the 5 U.S.C. chapter 75 appeal rights provided to hybrid employees, like the appellant, who were in positions covered by 38 U.S.C. § 7401(3). For these reasons, we are not persuaded by the agency’s plain language argument regarding 38 U.S.C. § 714. ¶22 We have also considered whether 38 U.S.C. § 7403(f)(3) was repealed by implication. This is not the first time that a tribunal has confronted how a newly enacted statute affects related laws that it does not reference. In Morton v. Mancari, 417 U.S. 535, 537-39, 545 (1974), the U.S. Supreme Court addressed the alleged inconsistency between a prior act providing an employment preference for qualifying Native Americans in the Bureau of Indian Affairs with the later enacted Equal Employment Opportunity Act (EEO Act) requiring that Federal employment decisions be free from discrimination. The Court declined to find that the EEO Act repealed the preexisting statute by implication. Id. at 549-50. Rather, in the absence of an affirmative showing of an intent by Congress to repeal the prior statute, it read the statutes as permitting the employment preference for Native Americans to continue along with the “general rule prohibiting employment discrimination on the basis of race.” Id. at 550. In 13 so finding, the Court observed that repeals by implication are disfavored. Id. at 549-51. “When there are two acts upon the same subject, the rule is to give effect to both if possible.” Id. at 551 (quoting United States v. Borden Company, 308 U.S. 188, 198 (1939)). An intention by Congress to repeal a statute “must be clear and manifest.” Id. The Court concluded that, “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Id. at 551; see Isabella v. Department of State, 109 M.S.P.R. 453, ¶ 12 (2008) (same); see also Von Zemenszky v. Department of Veterans Affairs, 80 M.S.P.R. 663, 668-69, 673-74 (1999) (holding that, if Congress had intended to exempt VHA healthcare professionals appointed under 38 U.S.C. § 7401(1) from the preexisting reduction in force rules of the Veterans’ Preference Act of 1944 when it created the VHA, it would have done so in explicit terms). ¶23 The Court recognized factors that might lead to a repeal by implication, although it found them inapplicable in Morton. 417 U.S. at 550-51. These included when the statutes at issue are “irreconcilable,” or when the older statute is broader in scope than the newer, more specific statute. Id. A repeal by implication is appropriate only when statutes are irreconcilable or “the enactment so comprehensively covers the subject matter of the earlier statute that it must have been intended as a substitute”; a statute addressing a “narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Todd v. Merit Systems Protection Board, 55 F.3d 1574, 1577-78 (Fed. Cir. 1995); Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 6 (2006) (holding that specific statutory language aimed at a particular situation ordinarily controls over general statutory language). We find that is not the situation presented here. ¶24 First, 38 U.S.C. § 7403(f)(3) and 38 U.S.C. § 714 are not in irreconcilable conflict. Both statutes are reconcilable and are capable of coexistence. IAF, Tab 23 at 6-7. This is because 38 U.S.C. § 7403(f)(3) covers only adverse actions 14 against hybrid employees in positions listed in section 7401(3), while the agency may use 38 U.S.C. § 714 when it takes adverse or performance-based actions against employees covered by section 714.9 ¶25 Second, we have considered the agency’s assertion that 38 U.S.C. § 714 is a “more specific and detailed statute” than section 7403(f)(3). IAF, Tab 6 at 5. From this argument, the administrative judge acknowledged the general rule of statutory construction that a more specific statute is presumed to take precedence over a more general statute. IAF, Tab 23 at 8 (citing Glassman v. Department of Labor, 101 M.S.P.R. 373, ¶ 6 (2006)). The administrative judge concluded, however, that even though 38 U.S.C. § 714 is more specific than 38 U.S.C. § 7403(f)(3) with respect to adverse actions that are implicated therein, 38 U.S.C. § 7403(f)(3) applies to a more limited group of employees than the definition of a “covered individual” as defined in 38 U.S.C. § 714(h). IAF, Tab 23 at 8. He therefore concluded that this rule of statutory construction is contrary to the agency’s position and supports finding that 38 U.S.C. § 7403(f)(3) should take precedence over 38 U.S.C. § 714. IAF, Tab 23 at 8. We agree. Section 7403(f)(3) of Title 38 addresses a narrow, precise, specific subject— adverse actions against the agency’s hybrid employees. Section 714 covers a more generalized spectrum of situations, namely adverse and performance-based actions against any of the agency’s employees covered by section 714. Thus, 38 U.S.C. § 7403(f)(3) “is not submerged” by the later enacted 38 U.S.C. § 714. Todd, 55 F.3d at 1577-78; Bergman, 101 M.S.P.R. 607, ¶ 6. 9 Because of our plain language analysis, supra ¶¶ 18-21, and our conclusion that 38 U.S.C. § 7403(f)(3) and 38 U.S.C. § 714 can coexist, we find unpersuasive the agency’s assertion that our interpretation of these provisions would “lead to an absurd result.” IAF, Tab 6 at 5. 15 ¶26 Moreover, the legislative history cited by the agency fails to evince a clear and manifest congressional intent to repeal 38 U.S.C. § 7403(f)(3) or disavow the application of 5 U.S.C. chapter 75 procedures to hybrid employees appointed pursuant to 38 U.S.C. § 7401(3). The agency noted that there are references to the inclusion of hybrid employees in the legislative history of the VA Accountability First Act of 2017, H.R. 1259, 115th Cong. (1st Sess. 2017), an unenacted House bill that, according to the agency, was “nearly identical” to the VA Accountability Act, Pub. L. No. 115-41, 131 Stat. 862, § 202, the latter of which was codified at 38 U.S.C. § 714. IAF, Tab 6 at 5-6. The agency identified two statements made by the Honorable David P. Roe regarding the unenacted House bill. See H.R. Rep. 115-34(I), at *3, 17 (2017) (“Section 3 [dealing with the removal, demotion and suspension of employees based on performance or misconduct] would amend title 38, U.S.C., and create section 719, which would provide the VA Secretary with the authority to remove, demote, or suspend any title 5, hybrid title 38, or SES VA employee for performance or misconduct”); 163 Cong. Rec. H2114-01 (daily ed. Mar. 16, 2017) (statement of Rep. Roe) (stating that “the disciplinary procedures and avenues to appeal set up by this bill are the only avenues in place for title 5 and hybrid title 38 employees to dispute proposed removals, demotions, and suspensions for longer than 14 days”). ¶27 Notably, however, the agency has not identified any similar legislative history on this issue involving the VA Accountability Act. The two statements from Representative Roe regarding the unenacted House bill, without more, do not persuade us that there is clear and manifest legislative intent to repeal 38 U.S.C. § 7403(f)(3). See, e.g., Rodriguez v. United States, 480 U.S. 522, 525 (1987) (“Even if unrebutted, these passing references [in the legislative history of 18 U.S.C. § 3147] would not constitute the ‘clear and manifest’ evidence of congressional intent necessary to establish repeal by implication.”). ¶28 None of the agency’s arguments warrant a different outcome. For the reasons described herein, the agency has not persuaded us that it has the authority 16 under 38 U.S.C. § 714 to remove for misconduct a hybrid employee appointed under 38 U.S.C. § 7401(3). If the agency wishes to proceed with an adverse action against the appellant, it must do so in accordance with the procedures described in 5 U.S.C. chapter 75, as required by 38 U.S.C. § 7403(f)(3). ¶29 The agency based the removal action on 38 U.S.C. § 714 procedures, IAF, Tab 4 at 15, 29, and we have found that the agency cannot rely on that statutory framework to remove the appellant, a hybrid employee appointed under section 7401(3). The Federal Circuit has held that “§ 714 notably does not override § 7701(c)(2)(C), which requires the decision to accord with the law.” Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1376 (Fed. Cir. 2020). ¶30 Because we find that the removal action taken pursuant to 38 U.S.C. § 714 was not in accordance with law, we have considered whether to remand the appeal for further adjudication pursuant to 5 U.S.C. chapter 75. The administrative judge, perhaps anticipating this situation, gave the agency notice of its burden in a removal action under 5 U.S.C. chapter 75, IAF, Tab 15 at 6-8, a hearing was held, and the record appears to have closed. However, we do not believe that converting the appeal from a 38 U.S.C. § 714 action to one under 5 U.S.C. chapter 75 appeal at this stage is the appropriate course of action. Instead, if the agency wishes to take an adverse action against the appellant, it must do so in accordance with the procedures of 5 U.S.C. chapter 75, as required by 38 U.S.C. § 7403(f)(3). ¶31 In reaching this conclusion, we have considered the analogous situation in which a case began as a 5 U.S.C. chapter 43 performance-based action and, during the pendency of the appeal, the agency sought to convert, or the Board sua sponte converted, the action to one taken under 5 U.S.C. chapter 75. See, e.g., Lovshin v. Department of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc) (noting that, generally, an agency may rely on either 5 U.S.C. chapter 75 or chapter 43 to take a performance-based action). The Board has followed the 17 determination of the Federal Circuit that “[t]he Board may not simply substitute Chapter 75 for Chapter 43 or vice versa after the parties have presented their evidence” because, among other things, such “after-the-fact switches [are] inherently unfair.” Hanratty v. Federal Aviation Administration, 780 F.2d 33, 35 (Fed. Cir. 1985)10; see Wilson v. Department of Health & Human Services, 770 F.2d 1048, 1053-55 (Fed. Cir. 1985) (finding that the performance-based demotion taken under chapter 43 was improper based on an invalid performance standard and rejecting the Government’s request to remand Ms. Wilson’s appeal to the Board for reconsideration under chapter 75 on the same record as the original chapter 43 action); see also Kopp v. Department of the Air Force, 33 M.S.P.R. 624, 627-29 (1987) (holding that an agency could not first assert at the petition for review stage that a performance-based action taken under chapter 43 should also be considered under chapter 75, and finding that the agency removed the appellant under chapter 43 but did not afford him the chapter 43 procedures to which he was entitled); cf. Ortiz v. U.S. Marine Corps, 37 M.S.P.R. 359, 360, 362-63 (1988) (explaining that it was appropriate to convert a chapter 43 removal to one under chapter 75 before the hearing had occurred because the agency had not lost on an issue and then belatedly tried to prove its charges on another legal basis). ¶32 It would be “inherently unfair” in this matter to convert the 38 U.S.C. § 714 removal appeal and allow the agency to proceed under chapter 75 after the hearing was held and the record closed, Hanratty, 780 F.2d at 35, especially in light of several due process concerns. Importantly, under chapter 75, the appellant would have been entitled to “at least 30 days’ advance written notice . . . stating the specific reasons for the proposed action” and “a written 10 In Hanratty, 780 F.2d at 34-35, the court determined that the Board’s presiding official erred when he recharacterized the chapter 43 removal appeal as a chapter 75 adverse action appeal after the hearing and the close of the record. 18 decision and the specific reasons therefor.” 5 U.S.C. §§ 7513(b)(1), (4). Not only was the appellant given less than 30 days’ advance written notice, IAF, Tab 4 at 15, 29, but it also appears that she was not fully apprised of the penalty factors that the deciding official considered. For example, during the deciding official’s testimony, he revealed that, in addition to the penalty considerations mentioned in the notice of proposed removal, IAF, Tab 4 at 31, he also considered the appellant’s prior discipline, comparator evidence, and her potential for rehabilitation, IAF, Tab 17, Hearing Audio Recording, Day 1 (testimony of the deciding official). There is no indication in the record that the appellant was on notice that he would consider such evidence, which would be a potential due process violation. See, e.g., Howard v. Department of the Air Force, 118 M.S.P.R. 106, ¶¶ 4-7 (2012) (finding that the deciding official’s consideration of the appellant’s allegedly poor performance as an aggravating factor without providing such notice constituted a due process violation); Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 5 (2011) (explaining that when an agency intends to rely on aggravating factors, such as prior discipline, as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official). 19 ORDER ¶33 We affirm the administrative judge’s finding that the agency cannot rely on 38 U.S.C. § 714 to remove a hybrid employee appointed pursuant to 38 U.S.C. § 7401(3), we vacate the order that stayed processing of this matter, and we return the appeal to the administrative judge for further adjudication in accordance with this Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/RICHARDSON_TAMMIKA_S_AT_0714_21_0109_I_1_OPINION_AND_ORDER_1990049.pdf
12-20-2022	2022 MSPB 46	Jason Hemann	https://www.mspb.gov/decisions/precedential/HEMANN_JASON_CH_0714_21_0067_I_1_OPINION_AND_ORDER_1987497.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 46 Docket No. CH-0714-21-0067-I-1 Jason Hemann, Appellant, v. Department of Veterans Affairs, Agency. December 20, 2022 Jennifer Duke Isaacs, Atlanta, Georgia, for the appellant. Dane R. Roper, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for lack of jurisdiction because a statutory filing deadline was not met and equitable tolling was not appropriate. For the reasons discussed below, we GRANT the petition for review, VACATE the initial decision, FIND that equitable tolling applies to the facts before us, and REMAND the appeal to the Central Regional Office for adjudication on the merits. 2 BACKGROUND ¶2 The appellant was employed with the agency as a GS-12 Auditor in St. Louis, Missouri. Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 51. On October 14, 2020, the agency issued a decision notice informing the appellant that, effective October 23, 2020, it was removing him from his position under the authority of 38 U.S.C. § 714 based on a charge of inappropriate conduct. IAF, Tab 8 at 59. The decision notice informed the appellant of his right to appeal to the Board and stated that such an appeal could be filed “at any time” after he received the decision notice, “but not later than 30 calendar days after the separation has been effected, or 30 calendar days after the date of [his] receipt of this decision, whichever is later.”1 Id. at 59-60. ¶3 On November 23, 2020, the appellant filed the instant appeal with the Board, arguing that the decision to remove him was “unsupported” and “the result of discrimination” and that the penalty of removal was “too harsh for the conduct charged.” IAF, Tab 1 at 4. He also requested a hearing. Id. at 2. Observing that it appeared that the appeal was not filed within 10 business days of the effective date of the agency action as prescribed by 38 U.S.C. § 714(c)(4)(B), the administrative judge ordered the appellant to file evidence and/or argument showing that his appeal was timely filed, or that, because the Board cannot waive an untimely filing for good cause when the filing deadline is statutory, another basis for a waiver of the deadline, such as equitable tolling, existed. IAF, Tab 3 at 1-3. 1 At the end of the decision notice, there is a line for an employee to sign acknowledging receipt of the notice. IAF, Tab 8 at 61. In the copies of the decision notice included in the record, the appellant’s signature does not appear on that page acknowledging receipt. IAF, Tab 1 at 9, Tab 8 at 61. At no point does the appellant argue that he did not receive the decision prior to the October 23, 2020 effective date. Thus, the relevant date for a timeliness inquiry is October 23, 2020. 3 ¶4 In response to the timeliness order, the appellant argued that equitable tolling should apply because the agency’s removal decision “specifically and clearly informed [the] [a]ppellant that his deadline to file was 30 days from the effective date of his removal.” IAF, Tab 6 at 5. He asserted that, because his removal was effective October 23, 2020, the filing deadline was November 22, 2020, and that he had “attempted to file his appeal on Friday, November 20, 2020, however the MSPB’s website and e-appeal system were both down [and] remained down throughout the weekend.” Id. He further asserted that he successfully filed his appeal of his removal on Monday, November 23, 2020, “the first business day following his deadline to file.” Id. In sum, he argued that he “followed all instructions provided by the [a]gency and diligently pursued his case[] based on the information provided to him by the [a]gency” and that “improper instructions from the [a]gency are the only reason” that he missed the 10-day filing deadline set forth in section 714. Id. ¶5 Without holding the requested hearing, the administrative judge issued an initial decision finding that the appellant’s initial appeal was untimely filed under 38 U.S.C. § 714(c)(4)(B) and that equitable tolling was not warranted because, among other reasons, the agency’s inclusion of incorrect appeal rights was an “inadvertent mistake.” IAF, Tab 10, Initial Decision (ID) at 4-7. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction.2 ID at 2, 8. ¶6 The appellant has filed a petition of review, wherein he argues that the administrative judge erred in concluding that equitable tolling does not apply to 2 Both the Board and our reviewing court have held that time prescriptions are not jurisdictional. Kirkendall v. Department of the Army, 479 F.3d 830, 842 (Fed. Cir. 2007) (en banc); Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 13 (2014). Although the administrative judge found that the appeal was untimely filed and dismissed the appeal for lack of jurisdiction, ID at 2, we need not reach the question of whether this was an appropriate disposition because, as set forth below, we find that the statutory filing deadline should be equitably tolled, and we remand the case for adjudication on the merits. 4 waive the 10-day filing deadline because it was reasonable for him to rely on the appeal rights provided by the agency, and that the Board has jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1 at 7-11.3 The agency has responded in opposition to the appellant’s petition for review. PFR File, Tab 3. ANALYSIS The appeal was untimely filed. ¶7 Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension.” A “covered individual” is an individual occupying a position with the agency, with four exceptions not relevant here. Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶ 6; see 38 U.S.C. § 714(h)(1)(A)-(D). Such an individual may appeal to the Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C. § 714(c)(4)(A); Ledbetter, 2022 MSPB 41, ¶ 6. However, an appeal “may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension.” 38 U.S.C. § 714(c)(4)(B); Ledbetter, 2022 MSPB 41, ¶ 6. In calculating the filing deadline under section 714, weekends and holidays are excluded. Ledbetter, 2022 MSPB 41, ¶ 7 n.2. ¶8 Here, it is undisputed that the effective date of the appellant’s removal was October 23, 2020. IAF, Tab 8 at 59. Under 38 U.S.C. § 714(c)(4)(B), his appeal was due no later than 10 business days later, on November 6, 2020.4 The 3 In his petition for review, the appellant also reasserts his claim from below that removal was not a reasonable penalty under the circumstances. PFR File, Tab 1 at 11-16. Because we are remanding this appeal for adjudication on the merits, we need not address the penalty here. 4 As briefly explained above, the appellant contended in his initial appeal that his removal was “the result of discrimination.” IAF, Tab 1 at 4. In Davis v. Department of Veterans Affairs, 2022 MSPB 45, ¶ 17, we held that an appellant who files an appeal of 5 appellant filed his appeal on November 23, 2020, and, thus, his appeal was untimely filed by 17 calendar days. IAF, Tab 1; see 38 U.S.C. § 714 (c)(4)(B). The issue before us is whether there is any basis to waive or toll the statutory filing deadline. The statutory filing deadline should be equitably tolled in this matter. ¶9 The Board has set forth three scenarios under which it will waive a filing deadline prescribed by statute or regulation: (1) the statute or regulation itself specifies circumstances in which the time limit will be waived; (2) an agency’s affirmative misconduct precludes it from enforcing an otherwise applicable deadline under the doctrine of equitable estoppel, unless the application of equitable estoppel would result in the expenditure of appropriated funds in contravention of statute; and (3) an agency’s failure to provide a mandatory notice of election rights warrants the waiver of the time limit for making the election. Ledbetter, 2022 MSPB 41, ¶ 8; see Blaha v. Office of Personnel Management, 106 M.S.P.R. 265, ¶ 8 (2007); Speker v. Office of Personnel Management, 45 M.S.P.R. 380, 385 (1990), aff’d, 928 F.2d 410 (Fed. Cir. 1991) (Table), and modified by Fox v. Office of Personnel Management, 50 M.S.P.R. an adverse action taken pursuant to 38 U.S.C. § 714 and alleges violations of equal employment opportunity (EEO) statutes in the first instance before the Board has filed a mixed case, which is governed by the procedures and the timelines established by 5 U.S.C. § 7702 and its implementing regulations, and not 38 U.S.C. § 714. We further held that the Board’s implementing regulations, which provide for a 30-day filing period for mixed-case appeals, apply to mixed-case appeals under 38 U.S.C. § 714 that are filed directly with the Board. Davis, 2022 MSPB 45, ¶¶ 8-9, 19. Although we are unable to discern from the current state of the record whether this is a mixed case, based on his initial filing, it appears that the appellant may have been attempting to bring a mixed case. IAF, Tab 1 at 4. However, the administrative judge did not have the benefit of our holding in Davis to prompt him to further inquire into the nature of the appellant’s allegations to determine whether, in fact, the appellant brought a mixed-case appeal before the Board. Nonetheless, we need not determine whether this is a mixed case and, thus, whether it was timely filed pursuant to Davis, because a remand for adjudication on the merits is otherwise warranted based on our application of equitable tolling. 6 602, 606 n.4 (1991). Additionally, the doctrine of equitable tolling may be available under certain circumstances to toll a statutory deadline in an untimely filed appeal. Ledbetter, 2022 MSPB 41, ¶ 8; Wood v. Department of the Air Force, 54 M.S.P.R. 587, 593 (1992). ¶10 In Ledbetter, the Board concluded that the first and third bases discussed above did not apply to an appeal of an action taken under section 714. Ledbetter, 2022 MSPB 41, ¶¶ 9-10. Specifically, regarding the first basis for waiver, the filing deadline cannot be waived because 38 U.S.C. § 714 does not provide for waiver. Id., ¶ 9. Regarding the third basis, the statute does not require the agency to notify its employees of their election rights or any associated filing deadlines. Id., ¶ 10. However, the Board concluded in Ledbetter that the deadline set forth in section 714 could be subject to equitable estoppel or equitable tolling and that it was inclined to believe that equitable tolling is available in appeals of actions taken under section 714 under appropriate circumstances. Id., ¶¶ 11, 14. Given that the requirements to establish equitable tolling are less stringent than the requirements to establish equitable estoppel, we analyze whether the appellant meets the lower burden of establishing that equitable tolling is warranted under the circumstances presented here. See id., ¶ 12. ¶11 The U.S. Supreme Court has held that there is a rebuttable presumption that the doctrine of equitable tolling can be invoked in certain circumstances to excuse an untimely filed lawsuit against the Government. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Such circumstances include situations in which an appellant “has actively pursued his judicial remedies by filing a defective pleading during the statutory period,” or when an appellant “has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Id. at 96; see Ledbetter, 2022 MSPB 41, ¶ 12. As it must, the Board has followed the Supreme Court’s jurisprudence in this area. See, e.g., 7 Ledbetter, 2022 MSPB 41, ¶ 12; Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014); Wood, 54 M.S.P.R. at 593. ¶12 The administrative judge observed that “the statute makes clear it provides for an expedited appeal process,” and he concluded that equitable tolling should not apply in the instant case. ID at 6-7. In arriving at this conclusion, he reasoned that the decision notice “mistakenly cited the wrong information with regard to the filing deadline” but that there was no evidence to suggest that the mistake was “intentional or rose to the level of affirmative misconduct on the agency’s part to reach the high bar required under principles of equitable tolling.” ID at 7. He also noted the agency’s argument that language in the decision notice referred the appellant “to the MSPB website for information regarding the appeals process and procedures that must be followed.” ID at 4 (quoting IAF, Tab 8 at 60); IAF, Tab 7 at 5. He stated that the information at the Board’s website at the hyperlink provided in the decision notice specifies that an appellant has 10 business days to file an appeal following an adverse action taken under 38 U.S.C. § 714. ID at 4; IAF, Tab 8 at 60. Lastly, the administrative judge also considered that the appellant was represented by legal counsel at the outset of his appeal, but he reasoned that an appellant is personally responsible for the diligent prosecution of his appeal, even if he is represented. ID at 4-5 (citing Taylor v. U.S. Postal Service, 53 M.S.P.R. 27, 28-29 (1992)). Although he acknowledged “the confusion attributable to the erroneous information regarding filing deadlines contained in the decision letter,” the administrative judge ultimately concluded that the case did not present facts that would “serve to excuse strict adherence to the 10-day filing deadline required under § 714.” ID at 5, 7. ¶13 As noted previously, in his petition for review, the appellant reiterates his argument that equitable tolling should apply. PFR File, Tab 1 at 7-10. He argues that the administrative judge ignored the fact that he complied with the 30-day deadline set forth in the decision notice and that the administrative judge’s 8 finding that the appellant should have known the deadline was incorrect because the statute provides for an expedited process “falls well outside any reasonable expectation of due diligence on [the] [a]ppellant’s part.” Id. at 9. The appellant also claims that he “made every effort to actively pursue his [remedies before the Board] based on the information contained in the [decision notice].” Id. at 10. ¶14 Although we acknowledge that equitable tolling is a “rare remedy,” Heimberger, 121 M.S.P.R. 10, ¶ 10; see Irwin, 498 U.S. at 96, we agree with the appellant that its application is appropriate under the circumstances of this case. We have considered the administrative judge’s reasoning that the incorrect appeal rights provided by the agency were the result of an “inadvertent mistake” and that the unintentional error did not constitute affirmative misconduct sufficient to invoke equitable tolling. However, the administrative judge does not cite any legal authority to support the proposition that maliciousness or ill intent is required to invoke equitable tolling based on a claim that a party was “induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” See Irwin, 498 U.S. at 96. Nor does the agency cite to any authority to support such a proposition. ¶15 Furthermore, our research has not revealed such a requirement, and the limited jurisprudence is, at a minimum, silent on the question of motive. For example, in setting forth the scenarios to which equitable tolling applies, the Supreme Court in Irwin relied on its prior decision in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231 (1959). See Irwin, 498 U.S. at 96 n.4. In Glus, the petitioner alleged that an employer’s representative either “fraudulently or unintentionally” misled him to believe that he could bring an action within 7 years after the cause of action “accrued,” despite a statutory filing deadline of 3 years. Glus, 359 U.S. at 231-32 & n.2. Silent on the employer’s representative’s motive, the Court stated that “[t]o decide the case we need look no further than the maxim that no man may take advantage of his own wrong.” Id. at 232. The Court held that the petitioner was entitled to have his case tried 9 on the merits if he could prove his allegations that he was “justifiably misled into a good-faith belief that he could begin his action at any time within [7] years after it had accrued.” Id. at 235. Thus, in Glus, equitable tolling was applied without regard to the opposing party’s motive. ¶16 In other cases, our reviewing court and the Board have discussed what might trigger the application of equitable tolling without any discussion of the motive behind opposing parties’ actions, even when the application of equitable tolling was ultimately denied. In Frazer v. U.S., 288 F.3d 1347, 1349-50 (Fed. Cir. 2002), our reviewing court considered whether equitable tolling should be applied when former shareholders and directors of a defunct financial institution brought suit against the United States approximately 9 months after the applicable statute of limitations ran. However, the appellants did not allege any misconduct on the part of the Government, and the court ultimately did not apply equitable tolling. Id. at 1353-54. The court remarked, without mention of motive, that equitable tolling “is available only when the lateness is attributable, at least in part, to misleading [G]overnmental action.” Id. at 1353-54. Notably, the court distinguished equitable tolling from equitable estoppel, concluding that “the requirements for equitable estoppel are even more stringent; equitable estoppel requires affirmative [G]overnmental misconduct.” Id. at 1354. ¶17 Similarly, in Heimberger, after the statutory period for filing an individual right of action (IRA) appeal had passed, the appellant filed a request to reopen her case with the Office of Special Counsel (OSC), OSC denied the request, and the appellant filed an IRA appeal with the Board, arguing that she filed a timely appeal because timeliness should be calculated from the date of OSC’s denial of her request to reopen, rather than from the date of OSC’s initial close-out letter. 121 M.S.P.R. 10, ¶¶ 2-4. The Board examined the language in the original OSC close-out letter, noting that it notified the appellant of her Board appeal rights and the time limit for pursuing them, and invited her to seek reconsideration directly from OSC. Id., ¶ 12. Because the OSC letter appeared to have given the 10 appellant two options for further action, but did not inform her of the consequences of electing one versus the other, the Board acknowledged that a reasonable person might have been affirmatively misled by this language into seeking reconsideration from OSC while the filing period with the Board continued to run. Id. Without regard to OSC’s motive in drafting the close-out letter, the Board reasoned that such a circumstance would constitute at least an arguable basis for equitable tolling. Id. Nonetheless, because the appellant in Heimberger resigned herself to the close-out decision for over a year before she started to pursue the matter again with OSC, the Board concluded that the appellant failed to show a sufficient basis to toll the filing deadline. Id. ¶18 None of the above-discussed cases, or any others identified by the Board, suggest that an opposing party’s misconduct or misleading language must be committed or provided with maliciousness or ill intent in order to trigger equitable tolling. Rather, they simply suggest that when a party takes an action or provides language that misleads an adversary, that party may not benefit from that action. ¶19 Here, it cannot be reasonably disputed that the agency’s language informing the appellant that he had 30 calendar days from the effective date of his removal or 30 calendar days from his receipt of the removal notice, whichever was later, to appeal his removal to the Board misled him into believing that a 30-day filing period was permitted. The agency’s inclusion of a reference to the Board’s website, which included accurate information on the filing period, or the appellant’s reliance on counsel does not change this analysis. As such, we find that the underlying facts establish that the agency “induced or tricked” the appellant into allowing the statutorily required 10-day filing deadline to pass. See Irwin, 498 U.S. at 96. Accordingly, we find that the circumstances of this case warrant the equitable tolling of the filing deadline. 11 ¶20 Further, it appears undisputed that the appellant filed his appeal within the 30-day period provided to him by the agency,5 and the evidence suggests that he actually had attempted to file his appeal several days before the 30-day period was set to expire, but was not able to do so because the Board’s e-Appeal system was down.6 IAF, Tab 6 at 11-12. Thus, we find that the appellant acted with due diligence within the filing period that he reasonably believed to be correct. Cf. Ledbetter, 2022 MSPB 41, ¶ 13 (declining to apply the doctrine of equitable tolling even when the agency provided incorrect appeal rights because the appellant failed to show that he filed his appeal within the incorrect timeframe provided by the agency). Based on the foregoing, we find that the appellant is entitled to have the statutory 10-day filing deadline equitably tolled. See Irwin, 498 U.S. at 96; Heimberger, 121 M.S.P.R. 10, ¶ 10. 5 The appellant’s removal was effective October 23, 2020. IAF, Tab 8 at 59. Thus, under a 30-day filing deadline, the appeal needed to be filed on or before November 22, 2020. However, November 22, 2020, was a Sunday, and the Board’s regulations provide that, “[i]f the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date.” 5 C.F.R. § 1201.23. As such, the appellant’s filing on Monday, November 23, 2020, is a timely filed appeal under a 30-day filing period. 6 The Board’s records corroborate the appellant’s claim that its e-Appeal system was down during this time period. 12 ORDER ¶21 Accordingly, we vacate the initial decision, find that equitable tolling applies to the facts before us, and remand the appeal to the Central Regional Office for adjudication on the merits. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/HEMANN_JASON_CH_0714_21_0067_I_1_OPINION_AND_ORDER_1987497.pdf
12-14-2022	2022 MSPB 44	George DeGrella	https://www.mspb.gov/decisions/precedential/DEGRELLA_GEORGE_SF_1221_19_0566_W_1_OPINION_AND_ORDER_1985888.pdf	Department of the Air Force	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 44 Docket No. SF-1221-19-0566-W-1 George DeGrella, Appellant, v. Department of the Air Force, Agency. December 14, 2022 Amos N. Jones, Esquire, Washington, D.C., for the appellant. C. Rhodes Berry, Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that dismissed his appeal for lack of jurisdiction. For the reasons set forth below, we DENY the petition for review and AFFIRM the initial decision. The appeal is DISMISSED for lack of jurisdiction. BACKGROUND ¶2 During the time at issue in this appeal, the appellant was employed by the agency as a Supervisory Services Program Specialist with the Air Force Services Activity at Yokota Air Force Base, Japan. Initial Appeal File (IAF), Tab 17 at 4. 2 The administrative judge found, and the parties do not dispute on review, that the appellant’s appointment was as a nonappropriated fund (NAF) employee.1 IAF, Tab 19, Initial Decision (ID) at 2; Tab 1 at 1 (the appellant’s indication on his appeal form that his grade or pay band was “NAF”); Tab 5 at 17 (the appellant’s statement that he was a nonappropriated fund employee); Tab 17 at 4 (Standard Form 50 reflecting the appellant’s pay plan as “NF”). On September 4, 2018, the agency proposed the appellant’s removal based on two specifications of on-the-job misconduct. IAF, Tab 15 at 12-13. After he responded to the proposal, IAF Tab 13 at 12-21, Tab 14, the agency, in lieu of removal, issued a decision suspending the appellant for 28 days, effective September 23, 2018.2 IAF, Tab 13 at 4-5. ¶3 The appellant filed a complaint with the Office of Special Counsel (OSC) in which he alleged that the proposed removal and the 28-day suspension were in retaliation for his having reported fraud, waste, and abuse to agency management. IAF, Tab 5 at 5-18, 20-21. On May 15, 2019, OSC advised the appellant that it had ended its inquiry into his allegations and that he could appeal the matter to the Board. IAF, Tab 5 at 20. The appellant filed an individual right of action (IRA) appeal and requested a hearing. IAF, Tab 1. ¶4 In response, the agency argued, inter alia, that the Board lacks jurisdiction over the appeal due to his status as a NAF employee, and it moved to dismiss the 1 A NAF employee is “a civilian employee who is paid from nonappropriated funds of Army and Air Force Exchange Service, Navy Exchange Service Command, Marine Corps exchanges, or any other instrumentality of the United States under the jurisdiction of the armed forces which is conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the armed forces.” 10 U.S.C. § 1587(a)(1). 2 On October 21, 2018, the appellant was reassigned to the position of Operations Manager (Community Services Flight). IAF, Tab 17 at 4. It appears that the appellant did not raise the reassignment as a purportedly retaliatory personnel action with the Office of Special Counsel, but because the Board otherwise lacks jurisdiction, as discussed in this decision, we need not address the reassignment further. 3 appeal on that basis, relying on Clark v. Army & Air Force Exchange Service, 57 M.S.P.R. 43, 45-46 (1993) (AAFES), and Clark v. Merit Systems Protection Board, 361 F.3d 647, 651 (Fed. Cir. 2004).3 IAF, Tab 6 at 8. The appellant replied to the agency’s submission, but did not address the agency’s argument regarding the significance of his status as a NAF employee to the Board’s jurisdiction to hear his IRA appeal. IAF, Tab 18. ¶5 In an initial decision based on the written record, the administrative judge dismissed the appeal for lack of jurisdiction. See ID. Based on the Board’s decision in AAFES and the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit’s) decision in Clark, the administrative judge found that “because the appellant was a NAF employee, the Board lack[ed] jurisdiction over his IRA appeal.” ID at 4. ¶6 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1. The agency has responded in opposition. PFR File, Tab 3. ANALYSIS The Board lacks jurisdiction over an IRA appeal filed by a NAF employee. ¶7 As set forth below, the appellant’s petition for review does not establish any error in the initial decision. However, because a significant amount of time has passed since the Board last addressed the dispositive issue presented in this appeal, we take this opportunity to explain, that despite changes to the whistleblower protection statutes, the Board still lacks jurisdiction over an IRA appeal filed by a NAF employee. ¶8 The Board’s jurisdiction is not plenary but is limited to that granted by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985); Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 14 3 The Board’s decision in Clark v. Army & Air Force Exchange Service is unrelated to the U.S. Court of Appeals for the Federal Circuit’s decision in Clark v. Merit Systems Protection Board. To avoid confusion, we refer to the Board’s decision as AAFES. 4 (2013). The appellant has the burden of establishing jurisdiction over his appeal by a preponderance of the evidence. 5 C.F.R. § 1201.57(c)(3). ¶9 Under 5 U.S.C. § 2105(c)(1), the code provision that defines “employee” for the purposes of Title 5 unless specifically modified, an individual paid from nonappropriated funds of the various military exchanges and certain other instrumentalities of the armed forces is, with certain exceptions not relevant here, not an “employee” for the purposes of the laws administered by the Office of Personnel Management (OPM). For example, in Taylor v. Department of the Navy, 1 M.S.P.R. 591, 593-96 (1980), the Board held that the adverse action procedures of Title 5 are laws administered by OPM for the purposes of 5 U.S.C. 2105(c) and that, therefore, 5 U.S.C. § 7513(d) does not provide NAF employees with a right to appeal an adverse personnel action to the Board.4 ¶10 The instant appeal is not an adverse action appeal; however, in this case the appellant challenged the agency’s action by filing an IRA appeal claiming reprisal for his whistleblowing disclosures in violation of 5 U.S.C. § 2302(b)(8). IAF, Tab 1, Tab 5 at 4-5. That statute prohibits, as relevant here, taking a personnel action because of any disclosure of information which the employee reasonably believes evidences gross mismanagement, a gross waste of funds, or an abuse of authority. 5 U.S.C. § 2302(b)(8). ¶11 In AAFES, the Board considered the claim of a NAF employee that his employing agency took various personnel actions against him in retaliation for his having disclosed fraud, waste, and abuse. AAFES, 57 M.S.P.R. at 44. He asserted that the Board had jurisdiction over his IRA appeal because he claimed that OPM does not enforce or administer 5 U.S.C. § 2302(b)(8) and that, 4 More recently, in discussing whether service with a NAF activity can be combined with other service to find that an individual has completed his probationary period, the Board confirmed that individuals working for a NAF activity do not have adverse action appeal rights pursuant to chapter 75 of Title 5. Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620, ¶ 15 n.8 (2008). 5 therefore, he was an employee under 5 U.S.C. § 2105 for purposes of 5 U.S.C. § 2302(b)(8). Id. at 45. The Board disagreed, finding that the language of the statutory provisions that allows an employee to seek corrective action from the Board by filing an IRA appeal, 5 U.S.C. §§ 1214(a)(3) and 1221(a), makes them applicable to “employees” and does not modify the definition of an “employee” in 5 U.S.C. § 2105, which, as noted, excludes individuals appointed to a NAF position. AAFES, 57 M.S.P.R. at 45. The Board further found nothing in the Whistleblower Protection Act (WPA), Pub. L. No. 101-12, 103 Stat. 16 (1989), itself or its legislative history to suggest that Congress intended to limit OPM’s role of administering rules, regulations, and statutes governing the civil service to the extent that 5 U.S.C. §§ 1221(a) and 2302 are no longer laws administered by OPM so as to broaden the class of employees who have the right to file an IRA appeal to include NAF employees. AAFES, 57 M.S.P.R. at 45-46. In Clark, the Federal Circuit reached the same conclusion, agreeing with the Board’s “well-reasoned analysis in AAFES” and finding that an employee serving in a NAF position has no right to appeal to the Board for alleged violations of the WPA. Clark, 361 F.3d at 651. ¶12 Much time has passed since the Board and Federal Circuit last opined on whether the Board has jurisdiction over a claim of reprisal for whistleblowing brought by a NAF employee. In the intervening years, Congress has made significant changes to the whistleblower protection statutory scheme, including, most notably, through the enactment of the Whistleblower Protection Enhancement Act (WPEA). Pub. L. No. 112-199, 126 Stat. 1465 (2012). ¶13 When legislating, Congress is presumed to know an existing statute’s interpretation. Parker Drilling Management Services, Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (concluding that “Congress legislates against the backdrop of existing law”); Lorillard v. Pons, 434 U.S. 575, 581 (1978) (stating that, when “Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the [administrative or 6 judicial] interpretation given to the incorporated law, at least insofar as it affects the new statute”); see Lindahl v. Office of Personnel Management, 470 U.S. 768, 780-83 (1985) (finding that Congress’ failure to expressly repeal the prior judicial construction of the scope of review of disability determinations creates a presumption that Congress intended to embody that construction in the amended statute); 2A Norman Singer, Sutherland Statutory Construction § 45.12 (6th ed. 2000) (stating that, in interpreting legislative language, it may be presumed that the legislative body was aware, among other things, of existing judicial decisions). Thus, under these principles of statutory construction, in enacting the WPEA, Congress can be presumed to have known of the Board’s and the Federal Circuit’s respective interpretations of the existing statute. ¶14 Congress’ knowledge of the Board and its reviewing court’s interpretations of the WPA’s provisions is specifically demonstrated by the content of the WPEA and its legislative history. The legislative history of section 101 of the WPEA specifically identified three court decisions that narrowed the scope of what constitutes a protected disclosure and explained that the statute overruled those decisions. S. Rep. No. 112-155, at 4-5 (2012); see WPEA § 101(b)(2)(C). By this action, Congress demonstrated that it was aware of the decisions affecting the scope of whistleblower protection and how to overturn those decisions. However, neither the WPEA itself, nor its legislative history, purports to change, or even to address, the definition of “employee” as interpreted by the Board and Federal Circuit in AAFES and Clark. Thus, although it expanded the scope of whistleblower protection in other ways that have implications for Board jurisdiction, nothing suggests that the WPEA altered the longstanding administrative and judicial interpretations that NAF employees have no right to file an IRA appeal with the Board. ¶15 In addition to the WPEA, other statutes have modified the whistleblower protection statutory scheme. Section 1097(c) of the National Defense Authorization Act, 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017), 7 amended the law to provide that a disclosure should not be excluded from coverage because it was made before the individual’s appointment or application for employment, addressed the scope of protection for disclosures made in the normal course of an employee’s duties, and addressed the protection provided for cooperating with or disclosing information to certain investigative entities. In addition, section 5721 of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198, 2175 (2019), amended the law to provide protection for disclosures to Congress. The Follow the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017), effectively overruled a Federal Circuit decision and expanded the list of prohibited personnel practices articulated in 5 U.S.C. § 2302(b)(9). 163 Cong. Rec. H2983-01 (daily ed. May 1, 2017) (statements of Reps. Comer, Connolly, and Grothman). Similarly, section 103 of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115-73, 131 Stat. 1235, 1236 (2017), also amended the list of prohibited personnel practices. None of these statutes, however, address the definition of an “employee” for purposes of determining who can file an IRA appeal with the Board. Thus, we conclude that despite the passage of time and amendments to the statutory scheme, the holdings in AAFES and Clark remain valid. Thus, we affirm the initial decision. 10 U.S.C. § 1587 does not provide a right of appeal to the Board for NAF employees who claim retaliation for whistleblowing. ¶16 On review, the appellant argues for the first time that the Board has jurisdiction over his IRA appeal because 10 U.S.C. § 1587 protects NAF employees from retaliation for whistleblowing, and because he had recourse to OSC, exhausted his remedy with that agency, and was provided appeal rights to the Board by OSC.5 PFR File, Tab 1 at 5-6; IAF, Tab 5 at 20. Under 10 U.S.C. 5 Generally, the Board will not consider new arguments on petition for review absent a showing that they are based on new and material evidence that was not previously 8 § 1587(b) and (d), the Secretary of Defense is responsible for prohibiting reprisal against NAF employees for whistleblowing and for correcting any such acts of reprisal. Subsection (e) provides that the Secretary shall, after consulting with OPM, OSC, and the Board, prescribe regulations to implement the statute. 10 U.S.C. § 1587(e). Although the Secretary of Defense apparently has implemented the statute, nothing in the statute suggests a right to appeal to the Board.6 Thus, while reprisal for whistleblowing as described by the appellant may be unlawful under 10 U.S.C. § 1587, an appeal contesting the agency action is not within the Board’s jurisdiction.7 ORDER ¶17 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). available despite the party’s due diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). However, we will consider the appellant’s new argument on this jurisdictional issue because jurisdiction is always before the Board and may be raised by any party or sua sponte by the Board at any time during Board proceedings. Lovoy v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003). 6 The agency asserts on review that the regulations called for by 10 U.S.C. § 1587(e) are set forth in Department of Defense Directive 1401.03. PFR File, Tab 3 at 7. We take administrative notice that this directive contains no reference to Board appeal rights. 7 To the extent that the appellant suggests that because OSC informed him of Board appeal rights, the Board has jurisdiction over his IRA appeal, it is well settled that the provision of Board appeal rights in an agency decision does not serve to confer jurisdiction on the Board when it does not otherwise exist. Morales v. Social Security Administration, 108 M.S.P.R. 583, ¶ 5 (2008); Covington v. Department of the Army, 85 M.S.P.R. 612, ¶ 9 (2000); Hunter v. Department of Justice, 73 M.S.P.R. 290, 294 (1997). 9 NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 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: 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 11 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 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 12 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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 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 9 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. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/DEGRELLA_GEORGE_SF_1221_19_0566_W_1_OPINION_AND_ORDER_1985888.pdf
12-14-2022	2022 MSPB 45	Willie Davis	https://www.mspb.gov/decisions/precedential/DAVIS_WILLIE_DC_0714_20_0417_I_1_OPINION_AND_ORDER_1985990.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 45 Docket No. DC-0714-20-0417-I-1 Willie Davis, Appellant, v. Department of Veterans Affairs, Agency. December 14, 2022 Edward H. Passman, Esquire and Nicole Davis, Esquire, Washington, D.C., for the appellant. Barbara Burke, Brooklyn, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant filed a petition for review of the initial decision, which dismissed as untimely filed the appeal of his removal, taken under the authority of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714). For the reasons set forth below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the appeal to the regional office for further adjudication. 2 BACKGROUND ¶2 The appellant was employed by the agency as a Cemetery Caretaker Supervisor at Culpeper National Cemetery. Initial Appeal File (IAF), Tab 1 at 6, 9. Effective January 31, 2020, the agency removed the appellant under the VA Accountability Act, based on the charges of failure to follow instructions and inappropriate conduct.1 Id. at 9-10. ¶3 On March 2, 2020, the appellant filed an appeal of his removal with the Board alleging, among other things, that it was the result of race discrimination, retaliation for prior equal employment opportunity (EEO) activity, and reprisal for whistleblowing.2 IAF, Tab 1 at 7. The administrative judge issued an order explaining that the appeal appeared to be untimely filed under the 10-business-day deadline contained in 38 U.S.C. § 714(c)(4)(B), and directing the appellant to file evidence and/or argument establishing either that the appeal was timely filed or that the filing deadline should be waived. IAF, Tab 6 at 1-4. In response, the appellant argued that he filed his appeal under the mixed-case procedures governed by 5 U.S.C. § 7702, and thus he was entitled to the 30-day filing deadline contained in the Board’s regulations regarding mixed cases at 5 C.F.R. § 1201.154. IAF, Tab 7 at 5-6. ¶4 The administrative judge issued an initial decision, dismissing the appeal as untimely filed without a showing of good cause for the delay.3 IAF, Tab 9, Initial 1 The copy of the notice of removal in the record appears to be missing at least one page. IAF, Tab 1 at 9-10. However, the incomplete copy does not impact our analysis as to whether this appeal was timely filed. 2 The appellant alleged in his appeal that the “demotion” constituted discrimination and retaliation. IAF, Tab 1 at 7. As no demotion appears to have occurred in this case, we assume this is an error. 3 The “good cause” standard is inapplicable in this matter because the filing deadline under the VA Accountability Act is statutory, there is no mechanism within 38 U.S.C. § 714 for waiving the time limit for good cause shown, and the statute does not require the agency to notify employees of their election rights or filing deadlines. 38 U.S.C. § 714(c)(4)(B); Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶¶ 9-10. 3 Decision (ID). The administrative judge determined that, because the appellant was removed under the VA Accountability Act, 38 U.S.C. § 714 governed, and thus the appellant was required to file his appeal within 10 business days of the effective date of the removal. ID at 4. That date would have been February 14, 2020.4 Given that the appellant filed his appeal on March 2, 2020, the administrative judge concluded that the appeal was untimely filed and that the appellant had failed to establish good cause for his delay. ID at 4-5. Accordingly, she dismissed the appeal. ID at 5. ¶5 The appellant has filed a petition for review, essentially repeating his contention that his appeal was timely filed because it involved claims of discrimination and retaliation in violation of EEO statutes, and therefore was a mixed case governed by 5 U.S.C. § 7702. Petition for Review (PFR) File, Tab 1 at 6-8. The appellant argues that 38 U.S.C. § 714 is “utterly silent” on the issue of mixed cases, and thus does not alter the procedures for mixed-case appeals prescribed by 5 U.S.C. § 7702, including the 30-day filing deadline contained within 5 C.F.R. § 1201.154, which implements the mixed-case procedures set forth in section 7702. PFR File, Tab 1 at 7-8. The appellant asserts that his mixed-case appeal was timely filed because it was filed within 30 days of the Instead, the administrative judge in the initial decision should have applied the equitable estoppel or equitable tolling doctrines. Ledbetter, 2022 MSPB 41, ¶ 11. However, because we find that this appeal was timely filed, the administrative judge’s error is inconsequential. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (recognizing that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 4 In the initial decision, the administrative judge stated that the appellant’s deadline to file the appeal under section 714 was February 10, 2020. ID at 4. If section 714 was applicable to the calculation of the deadline for filing the appeal, February 10, 2020, would have been an incorrect date. The administrative judge appears to have calculated the deadline under section 714 using 10 calendar days, instead of 10 business days, as set forth in 38 U.S.C. § 714(c)(4)(B). However, because we find that the filing deadline set by section 714 is not applicable to this appeal, her error did not prejudice the appellant’s substantive rights. Panter, 22 M.S.P.R. 281 at 282. 4 effective date of his removal. Id. at 8. The agency has responded in opposition to the appellant’s petition for review. PFR File, Tab 3. ANALYSIS ¶6 In Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 4-5, 25, the Board held that when an individual covered by 38 U.S.C. § 7145 files a mixed-case appeal after filing a formal discrimination complaint with the agency, the appeal is governed by the procedures set forth in 5 U.S.C. § 7702 and the Board’s implementing regulations, regardless of whether the adverse action was taken pursuant to 38 U.S.C. § 714. In this appeal, the appellant did not file a formal discrimination complaint with the agency, but rather raised allegations that the agency violated EEO statutes for the first time in his Board appeal. As discussed below, we expand upon the holding in Wilson and find that the principle articulated in that decision applies regardless of whether the individual filed a formal complaint of discrimination with the agency or raised allegations that the agency violated EEO statutes for the first time in his Board appeal. The appellant’s mixed-case appeal is subject to the procedures set forth in 5 U.S.C. § 7702. ¶7 The agency removed the appellant under the authority of the VA Accountability Act, which authorizes the agency to remove, demote, or suspend “covered individual[s].” IAF, Tab 1 at 9; 38 U.S.C. § 714(a)(1). Pursuant to that Act, an employee may appeal to the Board a removal, demotion, or suspension of greater than 14 days, but such appeal “may only be made . . . not later than 10 business days after the date of” the action. 38 U.S.C. § 714(c)(4). Thus, 5 A “covered individual” includes all individuals occupying positions at the agency, except for individuals who are in the Senior Executive Service, appointed under the authority of 38 U.S.C. §§ 7306, 7401(1), 7401(4), or 7405, still serving in a probationary or trial period, or political appointees. 38 U.S.C. § 714(h)(1). Nothing in the record suggests that the appellant occupies a position that falls under one of these exceptions. 5 pursuant to the plain language of the statute, because the agency effected the appellant’s removal on January 31, 2020, an appeal under section 714(c)(4) was due on February 14, 2020. IAF, Tab 1 at 9. The appellant’s March 2, 2020 appeal was thus untimely filed if section 714(c)(4) applied. IAF, Tab 1. ¶8 A mixed case arises when an appellant has been subject to an action that is appealable to the Board, and he alleges that the action was effected, in whole or in part, because of discrimination. Miranne v. Department of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014); see also Wilson, 2022 MSPB 7, ¶¶ 13-14 (explaining the processing of mixed-case appeals under the Civil Service Reform Act of 1978 (CSRA), codified at 5 U.S.C. § 7702). Pursuant to 5 U.S.C. § 7702(a)(1) and (2), an appellant has two options when filing a mixed-case appeal: (1) he may initially file a mixed-case EEO complaint with his employing agency followed by an appeal to the Board6; or (2) he may file a mixed-case appeal with the Board and raise his discrimination claims in connection with that appeal.7 Wilson, 2022 MSPB 7, ¶ 13; Miranne, 121 M.S.P.R. 235, ¶ 8. The regulation addressing the filing of mixed cases with the Board is 5 C.F.R. 6 The CSRA provides at 5 U.S.C. § 7702(a)(2) that an employee may file an EEO complaint in a mixed case, which an agency “shall resolve . . . within 120 days.” If the agency fails to issue a final decision within 120 days, the employee’s right to file a Board appeal vests and he may appeal to the Board “at any time” thereafter. 5 U.S.C. § 7702(a)(2), (e)(2); Wilson, 2022 MSPB 7, ¶ 13; Miranne, 121 M.S.P.R. 235, ¶ 9. The Board’s regulations implementing the statute also reflect this rule, 5 C.F.R. §§ 1201.151(a)(1), .154(b)(2), as do the regulations of the Equal Employment Opportunity Commission, 29 C.F.R. § 1614.302(d)(1)(i). 7 The CSRA provides at 5 U.S.C. § 7702(a)(1) that when an employee “has been affected by an action which the employee . . . may appeal to the [Board], and alleges that a basis for the action was discrimination,” as described within various anti-discrimination statutes, “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the applicable action in accordance with the Board’s appellate procedures under [5 U.S.C. § 7701] and this section.” The U.S. Supreme Court has interpreted 5 U.S.C. § 7702(a)(1) as “[d]efining the [Board’s] jurisdiction in mixed-case appeals that bypass an agency’s EEO office.” Perry v. Merit Systems Protection Board, 137 S. Ct. 1975, 1981 (2017). 6 § 1201.154, which provides that an appellant may file a Board appeal of an adverse action alleging discrimination or retaliation in violation of EEO statutes within 30 days of the effective date of the action, or 30 days from the appellant’s receipt of the agency’s decision on an EEO complaint, whichever is later. ¶9 As correctly observed by the appellant, 38 U.S.C. § 714 is silent as to the procedures that apply when an appeal of a removal action taken under the statute includes an allegation of discrimination or reprisal for the exercise of EEO rights. PFR File, Tab 1 at 7. Thus, the material issue here is whether the procedures and timelines set forth in 38 U.S.C. § 714, or 5 U.S.C. § 7702 and 5 C.F.R. § 1201.154 apply when an appellant files an appeal directly with the Board of an adverse action taken under 38 U.S.C. § 714 and alleges violations of EEO laws. ¶10 The Board has previously addressed the relationship between 5 U.S.C. § 7702 and 38 U.S.C. § 714. In Wilson, the Board reviewed whether an appellant had timely filed an appeal of his demotion taken under the VA Accountability Act when he first filed a formal EEO complaint with his agency, and then subsequently appealed his demotion to the Board after the agency failed to issue a final decision within 120 days. Wilson, 2022 MSPB 7, ¶¶ 10-25. Specifically, in that case, the Board had to determine whether the 10-business-day deadline contained within 38 U.S.C. § 714(c)(4)(B) applied, or whether 5 U.S.C. § 7702(e)(2) applied, which allows appellants to file a Board appeal after filing a formal EEO complaint if the agency does not issue a final agency decision within 120 days. ¶11 After noting that 38 U.S.C. § 714 was silent on the issue of procedures and filing times for appeals alleging discrimination or retaliation in violation of EEO statutes, the Board looked to the CSRA, which expressly included procedures for processing mixed cases in 5 U.S.C. § 7702. Wilson, 2022 MSPB 7, ¶¶ 12-13. We observed that Congress specifically delegated to the Board the authority to decide both the issue of discrimination and the appealable action in accordance with the Board’s procedures under 5 U.S.C. § 7701. Id., ¶ 14; see 5 U.S.C. § 7702(a)(1). 7 The Board in Wilson took special note of a Senate Report at the time the Board was created, which explained that “[a]ny provision denying the Board jurisdiction to decide certain adverse action appeals because discrimination is raised as an issue would make it impossible for the Government to have a single unified personnel policy which took into account the requirements of all the various laws and goals governing Federal personnel management.” Wilson, 2022 MSPB 7, ¶ 14 (quoting S. Rep. No. 95-969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N 2723, 2775). Thus, the Board found that the plain language of 5 U.S.C. § 7702, coupled with the Senate’s language stressing the importance of the Board’s authority to review discrimination claims in adverse action appeals, confirmed that an employee who first elects to file an EEO complaint retains his right to later Board review of the agency’s adverse action and any associated discrimination claims. Wilson, 2022 MSPB 7, ¶ 14. ¶12 As noted by the Board, Wilson was not the first time that a tribunal confronted how a newly enacted statute affects related laws that it does not reference. Id., ¶ 15. In Wilson, the Board relied on the U.S. Supreme Court’s decision in Morton v. Mancari, 417 U.S. 535, 537-39, 545 (1974), in which the Court declined to find that a new statute repealed a preexisting statute by implication despite alleged inconsistencies between the statutes. Id., ¶¶ 15-16. The Court stated in Morton that repeals by implication are disfavored and that congressional intent to repeal a statute “must be clear and manifest.” Morton, 417 U.S. at 549-51 (quoting United States v. Borden Company, 308 U.S. 188, 198 (1939)); see Wilson, 2022 MSPB 7, ¶ 15. Further, “[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible.” Morton, 417 U.S. at 551 (quoting Borden Company, 308 U.S. at 198). The Court continued that “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton, 417 U.S. at 551; see Wilson, 2022 MSPB 7, ¶ 15. 8 ¶13 The Board in Wilson observed that the Court has recognized factors that might lead to repeal by implication, although it found them inapplicable in Morton. Wilson, 2022 MSPB 7, ¶ 16; see Morton, 417 U.S. at 550-51. These included when the statutes at issue are “irreconcilable,” or when the older statute is broader in scope than the newer, more specific statute. Morton, 417 U.S. at 550-51; see Todd v. Merit Systems Protection Board, 55 F.3d 1574, 1577-78 (Fed. Cir. 1995) (stating that repeal by implication is appropriate only when statutes are irreconcilable or “the enactment so comprehensively covers the subject matter of the earlier statute that it must have been intended as a substitute”; a statute addressing a “narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum”); Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 6 (2006) (holding that specific statutory language aimed at a particular situation ordinarily controls over general statutory language). ¶14 Guided by the relevant precedent, the Board in Wilson determined that 38 U.S.C. § 714 does not repeal, either explicitly or implicitly, 5 U.S.C. § 7702. Wilson, 2022 MSPB 7, ¶¶ 16-19. First, the Board explained that 38 U.S.C. § 714 does not expressly repeal 5 U.S.C. § 7702, as it is silent regarding the procedures and time limits applicable to mixed-case appeals. Id., ¶ 17. Next, the Board determined that the factors that would render a repeal by implication appropriate were not present, as 5 U.S.C. § 7702 was the more specific statute regarding the processing of mixed cases. Id., ¶¶ 16-17. Further, the Board found 5 U.S.C. § 7702 and 38 U.S.C. § 714 were capable of co-existing, explaining as follows: if an appealable action is taken pursuant to 38 U.S.C. § 714, and the covered individual has not filed a formal complaint of discrimination with the agency, then the 10-business-day deadline set forth at 38 U.S.C. § 714(c)(4)(B) would apply. Id., ¶ 19. If however, such an individual has first filed a formal discrimination complaint with the agency from such an adverse action, then the time limit set forth at 5 U.S.C. § 7702(e)(2) would apply to any subsequent Board 9 appeal, which allows an appellant to file an appeal with the Board at any time after the 120th day following the filing of the formal complaint if an agency decision on that complaint has not been received. Id., ¶ 19. Accordingly, the Board applied 5 U.S.C. § 7702(e)(2), and found that the appellant was timely in filing his mixed-case appeal with the Board. Id., ¶ 25. ¶15 However, the Board in Wilson specifically declined to address whether 5 U.S.C. § 7702 would apply if a “covered individual” directly filed a Board appeal alleging that an action taken pursuant to 38 U.S.C. § 714 was based on discrimination. Wilson, 2022 MSPB 7, ¶ 19 n.5. These are the circumstances present here. ¶16 The relevant statutory subsections in Wilson were 5 U.S.C. § 7702(a)(2) and (e)(2), which provide for a Board appeal following the filing of a mixed-case complaint with an employing agency. In this matter, the relevant statutory subsection is 5 U.S.C. § 7702(a)(1), which the U.S. Supreme Court has interpreted as “[d]efining the [Board’s] jurisdiction in mixed-case appeals that bypass an agency’s EEO office.” Perry v. Merit Systems Protection Board, 137 S. Ct. 1975, 1981 (2017); see Austin v. Merit Systems Protection Board, 136 F.3d 782, 783 (Fed. Cir. 1998) (citing 5 U.S.C. § 7702(a)(1) for the proposition that “[a]n employee may initiate a mixed case directly with the Board and seek a decision on both the appealable action and the discrimination claim”). In interpreting statutes, “each section of a statute should be construed in connection with every other section so as to produce a harmonious whole.” King v. Department of Health & Human Services, 71 M.S.P.R. 22, 29 (1996) (citing 1A Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1993)). Additionally, it is well settled that the provisions of a unified statutory scheme should be read in harmony, leaving no provision inoperative or superfluous. Holley v. United States, 124 F.3d 1462, 1468 (Fed. Cir. 1997); Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶ 17 (2007), overruled on other grounds by Oram v. Department of the Navy, 2022 MSPB 30. As part of the 10 CSRA’s unified statutory scheme and 5 U.S.C. § 7702 as a whole, 5 U.S.C. § 7702(a)(1) must be read in harmony, and treated consistently, with the remainder of that statute. ¶17 Thus, for the same reasons as those set forth in Wilson—the silence of the VA Accountability Act regarding its relationship to the mixed-case procedures set forth in the CSRA, the absence of any clear and manifest intent by Congress in 38 U.S.C. § 714 to repeal the mixed-case provisions of the CSRA, the strong preference against repeal of a statute by implication and in favor of reading statutes together, and the fact that the statutes can co-exist—we find that 5 U.S.C. § 7702(a)(1) continues to govern mixed-case appeals filed directly with the Board. In other words, an appellant who files an appeal of an adverse action taken pursuant to 38 U.S.C. § 714 and alleges violations of EEO statutes in the first instance before the Board has filed a mixed case, which is governed by the procedures and the timelines established by 5 U.S.C. § 7702 and its implementing regulations, and not 38 U.S.C. § 714. To find otherwise would be to treat the continuing applicability of the various subsections of 5 U.S.C. § 7702 differently and to render section 7702(a)(1) inoperative when an action is taken under 38 U.S.C. § 714. This would be contrary to well-established principles of statutory construction. See Holley, 124 F.3d at 1468; Styslinger, 105 M.S.P.R. 223, ¶ 17. ¶18 In so finding, we recognize that 38 U.S.C. § 714 does not make it impossible for an appellant to raise issues of discrimination in a direct Board appeal and follow the timelines set forth in that statute. Nevertheless, as discussed above and in Wilson, nothing in section 714 supports a finding that it repeals, either expressly or by implication, any of the mixed-case procedures set forth in 5 U.S.C. § 7702. Thus, 5 U.S.C. § 7702(a)(1) remains applicable to mixed-case appeals of actions taken under 38 U.S.C. § 714 when discrimination is raised for the first time before the Board. 11 The appellant’s mixed-case appeal was timely filed and, accordingly, this matter must be remanded to the administrative judge for further adjudication. ¶19 In this case, the appellant filed an appeal directly with the Board alleging, among other things, that his removal was the result of race discrimination and retaliation for prior EEO activity. IAF, Tab 1 at 7. Because the appellant filed a mixed-case appeal, the procedures contained within 5 U.S.C. § 7702 and the Board’s implementing regulations apply. Those regulations provide that mixed-case appeals must be filed within 30 days of the effective date of the agency’s action or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.154(a). The agency removed the appellant effective January 31, 2020, and the time period for filing began at that time. IAF, Tab 1 at 9-10. The appellant filed his mixed-case appeal on March 2, 2020, IAF, Tab 1, and thus it was timely filed.8 Accordingly, we remand the appeal for further adjudication.9 ORDER ¶20 For the reasons discussed above, we REMAND this matter to the regional office for further adjudication in accordance with this Remand Order. On 8 The 30th calendar day following January 31, 2020, was March 1, 2020. That day was a Sunday, and thus the filing deadline was the following business day, Monday, March 2, 2020. 5 C.F.R. § 1201.23. 9 On review, the appellant also argues that the administrative judge should have granted his request to dismiss his appeal without prejudice so that he could pursue an EEO complaint. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 6-7. Because we find the appeal was timely filed, the appellant has elected that remedy and cannot now file an EEO complaint. Dowell v. U.S. Postal Service, 113 M.S.P.R. 250, ¶ 6 (2010) (an appellant who is subject to an action that is appealable to the Board and who alleges the action was effected in whole or in part because of discrimination may either filed a direct Board appeal or an EEO complaint with the agency, but not both, and whichever is filed first is deemed to be an election to proceed in that forum); 5 C.F.R. § 1201.154(a) (an appellant alleging discrimination who has been subject to an action that is appealable to the Board may either file a timely complaint of discrimination with the agency or file an appeal with the Board). 12 remand, the administrative judge should adjudicate this appeal as timely filed, determine if the agency established its charges by substantial evidence, and address the appellant’s affirmative defenses of discrimination and EEO and whistleblower retaliation in accordance with applicable precedent.10 FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 10 On remand, the administrative judge shall provide the appellant with comprehensive notice of his burdens of proof regarding his affirmative defenses.	https://www.mspb.gov/decisions/precedential/DAVIS_WILLIE_DC_0714_20_0417_I_1_OPINION_AND_ORDER_1985990.pdf	Issuance Date: July 13, 2015 Holding: The court affirmed the Board’s final order dismissing the petitioner’s petition for enforcement as untimely because the petitioner failed to provide any explanation for the untimely filing of his petition.
12-13-2022	2022 MSPB 42	Anthony Salazar	https://www.mspb.gov/decisions/precedential/SALAZAR_ANTHONY_G_SF_1221_15_0660_W_1_OPINION_AND_ORDER_1985477.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 42 Docket No. SF-1221-15-0660-W-1 Anthony G. Salazar, Appellant, v. Department of Veterans Affairs, Agency. December 13, 2022 Anthony G. Salazar, Pico Rivera, California, pro se. Steven R. Snortland, Esquire, Los Angeles, California, for the agency. Wonjun Lee, Esquire, Oakland, California, for amicus curiae, the Office of Special Counsel. Noah J. Fortinsky, Esquire, Washington, D.C., for amicus curiae, the Office of Special Counsel. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision denying his request for corrective action in this individual right of action (IRA) appeal. For the following reasons, we GRANT the petition for review. We AFFIRM the initial decision IN PART, to the extent it determined the appellant proved the agency took personnel actions against him and his disclosures were a contributing 2 factor under the knowledge/timing test. However, we otherwise VACATE the initial decision and REMAND the appeal for further adjudication. BACKGROUND ¶2 The appellant was a Motor Vehicle Operator Supervisor in the agency’s Greater Los Angeles Healthcare System. Initial Appeal File (IAF), Tab 6 at 27-28. Between November 2012, when his former first-level supervisor left her position as Chief of Transportation, and July 2014, when she was replaced, the appellant assumed the duties of the Chief of Transportation position. Hearing Transcript (HT) at 10, 13-16, 43-44 (testimony of the appellant). Both the Motor Vehicle Operator Supervisor and Chief of Transportation were required to oversee the vehicle fleet and fleet cards.1 IAF, Tab 6 at 27-28, Tab 15 at 11; HT at 66-68 (testimony of the appellant). ¶3 On October 10, 2013, the appellant sent his supervisor an email reporting that an employee for the Greater Los Angeles Healthcare System’s Community Care Program had stored the keys and fleet cards for the vehicles assigned to the Program in an unsecured location. IAF, Tab 5 at 62; HT at 16-19 (testimony of the appellant). On October 24, 2013, the appellant emailed his supervisor, as well as his second-level supervisor. IAF, Tab 5 at 63. In this email, he reported further details related to the failure of the Community Care Program to secure vehicle keys and cards, including that vehicles were missing and that there may have been fraudulent card use. Id.; HT at 19-20 (testimony of the appellant). Although these vehicles and cards were assigned to the Program, the appellant was responsible for overseeing their security. HT at 67-68 (testimony of the appellant). 1 A fleet card is a credit card for gasoline that goes with an individual fleet vehicle. HT at 67 (testimony of the appellant). 3 ¶4 In January 2014, the agency convened an Administrative Investigation Board (AIB) to look into the theft of fleet vehicles, including those assigned to the Community Care Program. IAF, Tab 8 at 4. The AIB submitted its report 2 months later, which included findings that the appellant’s supervisor failed to adequately oversee fleet vehicles and cards. Id. at 14-20. It made recommendations, including that “disciplinary or other administrative action should be taken with respect to” the issues identified in its report. Id. at 23. As a result, the supervisor received a letter of counseling, for which he held the appellant partially responsible. HT at 230-32, 245 (testimony of the appellant’s supervisor). ¶5 In March 2014, the appellant requested training in fleet management, which was to occur in May 2014. IAF, Tab 5 at 72-73. His supervisor responded that he “wanted to hold off a while . . . [because they] need[ed] to do a number of things before then in order to take full advantage of the training.” Id. at 72; HT at 251-52 (testimony of the appellant’s supervisor). He permitted the appellant to receive the training in September 2014. HT at 249-50 (testimony of the appellant’s supervisor). In June 2014, the supervisor changed the appellant’s performance standards. IAF, Tab 5 at 26-30, 49-52. After observing his performance on the new standards for 3 months, the supervisor issued the appellant an unacceptable performance notification and a performance improvement plan (PIP). Id. at 103-09. The appellant was on the PIP for 3 months when his supervisor proposed his removal for unacceptable performance. IAF, Tab 6 at 4-15. Following the appellant’s response, the agency removed him effective February 4, 2015. IAF, Tab 5 at 16. ¶6 The appellant asserted in this IRA appeal that the actions beginning with the delay of his training in May 2014, and ending with his removal in February 2015, were in reprisal for his two disclosures in October 2013. IAF, Tab 14 at 7-8, Tab 15 at 3-5, Tab 17 at 5-6. The administrative judge found that the Board had jurisdiction over the appeal and held a hearing. IAF, Tab 28, 4 Initial Decision (ID) at 1-2, 14 n.7. He then issued an initial decision in which he found that the appellant made his disclosures in the normal course of his duties. ID at 19-26. The administrative judge determined that, pursuant to 5 U.S.C. § 2302(f)(2) (2016), such disclosures are protected only if the employee proves by preponderant evidence that the agency took a given personnel action with an improper retaliatory motive. ID at 18-19, 29. ¶7 Upon finding no direct evidence of retaliatory motive, the administrative judge held that circumstantial evidence supporting an inference of an actual purpose to reprise could encompass the following factors: (1) whether the agency officials responsible for the personnel actions knew of the appellant’s disclosures and the timing of those actions; (2) the strength or weakness of the agency’s reasons for the actions; (3) whether the disclosures were directed personally at the agency officials responsible for the actions; (4) any desire or motive to retaliate against the appellant; and (5) whether the agency took similar personnel actions against similarly situated employees who had not made disclosures. ID at 30. After looking at the totality of the evidence, the administrative judge concluded that the appellant failed to prove by preponderant evidence that the agency took the personnel actions with the actual purpose of retaliating against him. ID at 19, 26-52. Thus, he found that the appellant did not prove that his disclosures were protected and denied corrective action. ID at 52-53. ¶8 The appellant has filed a petition for review, disagreeing with the standard articulated by the administrative judge. Petition for Review (PFR) File, Tab 1 at 8-10. He also has challenged the administrative judge’s factual findings, as well as his determination that he could not consider the appellant’s due process and harmful error defenses. Id. at 9-32. The Office of Special Counsel (OSC) has filed an amicus curiae brief. PFR File, Tab 5; see 5 C.F.R. § 1201.34(e) (setting forth the procedures for amicus curiae). The agency has not responded to the petition for review, and neither party has responded to OSC. 5 ANALYSIS The administrative judge erred by applying 5 U.S.C. § 2302(f)(2) because the appellant’s principal job function was not to regularly investigate and disclose wrongdoing. ¶9 The administrative judge applied 5 U.S.C. § 2302(f)(2) (2016) to find that the appellant’s disclosures were not protected. For the reasons that follow, we find that the appellant’s disclosures should have been analyzed under 5 U.S.C. § 2302(b)(8) and not subjected to the slightly higher burden of 5 U.S.C. § 2302(f)(2). The enactment of 5 U.S.C. § 2302(f)(2) as part of the Whistleblower Protection Enhancement Act of 2012 (WPEA) clarified the scope of 5 U.S.C. § 2302(b)(8). ¶10 Under the Whistleblower Protection Act (WPA), which was in place before the WPEA, agencies generally were prohibited from engaging in reprisal for “any disclosure” that an employee reasonably believed evidenced certain categories of wrongdoing. 5 U.S.C. § 2302(b)(8) (2011). A Senate report accompanying the bill that was enacted as the WPEA indicated that judicial and Board interpretations of the WPA had “narrow[ed] the scope of protected disclosures” in a manner that “undermine[d] the WPA’s intended meaning.” S. Rep. No. 112-155, at 4-6 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 592-94. Most relevant to our discussion here, the report stated disagreement with the conclusion of the decision in Willis v. Department of Agriculture, 141 F.3d 1139, 1140-41 & n.1, 1144 (Fed. Cir. 1998), that disclosures made by a Government inspector concerning private parties’ noncompliance with Federal Government approved conservation plans were not protected under the WPA because he made them as part of his regular job duties. S. Rep. No. 112-155, at 5-6 & n.13. Accordingly, the WPEA added the following provision: If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection [5 U.S.C. § 2302(b)(8)] if [the agency takes a personnel action] with respect to that employee in reprisal for the disclosure. 6 WPEA, Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C. § 2302(f)(2) (2012)). ¶11 In adopting this language, the Senate report stated that it was overturning prior case law, including Willis, and clarifying that a whistleblower is not deprived of protection just because the disclosure was made in the normal course of an employee’s duties. S. Rep. No. 112-155, at 5. However, the Senate report also explained that an appellant making a disclosure under 5 U.S.C. § 2302(f)(2) was required to show that “actual reprisal occurred,” i.e., that “the agency took the action with an improper, retaliatory motive.” Id. Thus, the report observed that the language of section 2302(f)(2) imposed an “extra proof requirement” or “slightly higher burden” for proving the disclosure was protected. S. Rep. No. 112-155, at 5-6. In explaining the reason for this higher burden, the report identified the concern of “facilitat[ing] adequate supervision of employees, such as auditors and investigators, whose job is to regularly report wrongdoing”: Personnel actions affecting auditors, for example, would ordinarily be based on the auditor’s track-record with respect to disclosure of wrongdoing; and therefore a provision forbidding any personnel action taken because of a disclosure of wrongdoing would sweep too broadly. However, it is important to preserve protection for such disclosures, for example where an auditor can show that she was retaliated against for refusing to water down a report. Id. ¶12 In Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18 (2013), the Board observed that the WPA’s definition of disclosure contained in 5 U.S.C. § 2302(b)(8) was ambiguous as to whether disclosures made in the normal course of an employee’s duties were protected. It found the new provision at 5 U.S.C. § 2302(f)(2), which was enacted as part of the WPEA, clarified this ambiguity to provide that these types of disclosures were covered under the WPA. Day, 119 M.S.P.R. 589, ¶¶ 18-26. The version of 5 U.S.C. § 2302(f)(2) enacted as part of the WPEA was the version in place when the 7 events in this case occurred and when the administrative judge issued his May 2016 initial decision. The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA) explicitly clarified the intent of 5 U.S.C. § 2302(f)(2). ¶13 In May 2017, the Senate Committee on Homeland Security and Governmental Affairs recommended passage of a bill titled the Office of Special Counsel Reauthorization Act of 2017. S. Rep. No. 115-74, at 1 (2017). The bill proposed to add language to 5 U.S.C. § 2302(f)(2) providing that, “[i]f a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing, . . . the disclosure shall not be excluded from subsection [5 U.S.C. § 2302(b)(8)] if . . . [the agency takes a personnel action] with respect to the disclosing employee in reprisal for the disclosure.” S. Rep. No. 115-74, at 21-22 (emphasis added). In recommending this modification, the Committee stated that it “clarifies that an employee with a principal job function of investigating and disclosing wrongdoing will not be excluded from whistleblower protection laws” if he can prove that actual reprisal occurred. Id. at 8; see S. Rep. No. 112-155, at 5 (containing the “actual reprisal” language). ¶14 An amended version of the bill passed the Senate on August 1, 2017, and was referred to the House of Representatives 3 days later, still containing the proposed change to section 2302(f)(2). An Act to Reauthorize the Office of Special Counsel, and for other purposes, S. 582, 115th Cong. § 4 (2017); Communication from the Clerk of the House, 163 Cong. Rec. H6587 (Aug. 4, 2017). The language of the bill, as passed by the Senate, later appeared, with relatively few changes, in the 2018 NDAA, Pub. L. No. 115-91, § 1097, 131 Stat. 1283, 1615-23 (2017), under the heading “Office of Special Counsel Reauthorization.” In particular, the 2018 NDAA contained an amendment to 8 5 U.S.C. § 2302(f)(2) that was identical to the version in the Senate bill, save for one non-substantive change that is not relevant to our discussion here.2 Compare Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. at 1618, with S. 582, 115th Cong. § 4 (reflecting that the phrase “referred to” was moved from the middle to the beginning of a parenthetical). Accordingly, we find that 5 U.S.C. § 2302(f)(2) now expressly applies only to employees whose principal job functions are to regularly investigate and disclose wrongdoing. ¶15 Although not raised by the parties, we must address whether this amended language applies to this appeal, given that the actions at issue here took place before the 2018 NDAA was enacted. We find that it does.3 ¶16 The proper analytical framework for determining whether a new statute should be given retroactive effect was set forth by the U.S. Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994): When a case implicates a [F]ederal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that 2 Apart from the Senate report on S. 582, discussed above, the legislative history is silent as to the purpose of the 2018 NDAA’s amendment to 5 U.S.C. § 2302(f)(2). For example, although it appears that the Senate and House agreed in November 2017 to add the Senate’s proposed version of section 2302(f)(2) to the 2018 NDAA, the accompanying report provides no explanation. H.R. Rep. No. 115-404, at 338-39 (2017) (Conf. Rep.). 3 Given our determination that the 2018 NDAA’s amendment to 5 U.S.C. § 2302(f)(2) is retroactive, it is unnecessary to consider OSC’s motion seeking leave to file an additional pleading about the 2018 NDAA as it relates to this appeal. PFR File, Tab 9 at 3. 9 it does not govern absent clear congressional intent favoring such a result. E.g., Edwards v. Department of Labor, 2022 MSPB 9, ¶ 31 (identifying Landgraf as providing the proper analytical framework for determining whether a new statute should be given retroactive effect); Day, 119 M.S.P.R. 589, ¶ 7 (same). The first step under Landgraf is to determine if Congress expressly defined the temporal reach of the statute. Landgraf, 511 U.S. at 280; Day, 119 M.S.P.R. 589, ¶¶ 7-8. If so, that command is controlling. Landgraf, 511 U.S. at 280. Here, the 2018 NDAA amending 5 U.S.C. § 2302(f)(2) is silent regarding retroactivity. Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. at 1618; see Edwards, 2022 MSPB 9, ¶¶ 29, 32 (so finding as to the 2018 NDAA’s amendment of 5 U.S.C. § 2302(b)(9)(C)). ¶17 We must therefore determine whether the amended provision impairs the parties’ respective rights, increases a party’s liability for past conduct, or imposes new duties with respect to past transactions. Landgraf, 511 U.S. at 280. For the reasons that follow, we find that the 2018 NDAA’s modification of 5 U.S.C. § 2302(f)(2) does not have an impermissible retroactive effect under Langraf because it does not alter the parties’ respective rights or liabilities, and does not impose new duties to past transactions when compared to the earlier version of the statute initially contemplated by Congress as part of the WPEA. ¶18 When legislation clarifies existing law, its application to preenactment conduct does not raise concerns of retroactivity. Day, 119 M.S.P.R. 589, ¶ 10. In determining whether a new law clarifies existing law, “[t]here is no bright-line test.” Id., ¶ 11 (quoting Levy v. Sterling Holding Co., 544 F.3d 493, 506 (3d Cir. 2008) (citation omitted)). However, “[s]ubsequent legislation declaring the intent of an earlier statute is entitled to great weight.” Id. (quoting Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 380-81 (1969)). Other factors relevant in determining whether a legislative enactment clarifies, rather than effects a substantive change in, existing law are the presence 10 of ambiguity in the preceding statute and the extent to which the new law resolves the ambiguity and comports with both the prior statute and any prior administrative interpretation. Id. (citing Levy, 544 F.3d at 507 (finding these factors “particularly important” for “determining whether a new regulation merely ‘clarifies’ existing law”) (citations omitted)). ¶19 The first of these factors, expressions of legislative intent, weighs in favor of finding that the amended language of 5 U.S.C. § 2302(f)(2) merely clarified its predecessor. In making this determination, we look to the legislative history of S. 582. When legislative history relates to prior drafts of a statute that did not change before passage, the Board may rely on that history in interpreting the enacted statute. See Ganski v. Department of the Interior, 86 M.S.P.R. 32, ¶ 12 & n.2 (2000) (relying on legislative history for a bill with the same language as the WPA that was pocket vetoed to interpret the enacted WPA); Special Counsel v. Santella, 65 M.S.P.R. 452, 462 & n.9 (1994) (considering the legislative history for a bill that never became law in interpreting a similar change eventually effectuated as part of the WPA). Here, the legislative history of the 2018 NDAA does not explain the purpose of the modification to the WPEA’s version of 5 U.S.C. § 2302(f)(2). However, S. 582 included the same clause at issue here, later enacted as part of the 2018 NDAA, limiting the scope of 5 U.S.C. § 2302(f)(2) to disclosures made during the normal course of duties of an employee whose “principal job function . . . is to regularly investigate and disclose wrongdoing.” Further, the 2018 NDAA was enacted in December 2017, less than 5 months after the Senate passed S. 582 in August of the same year. Therefore, we find it appropriate to rely on the statement of the Senate Committee on Homeland Security and Governmental Affairs that S. 582 was intended to clarify in 5 U.S.C. § 2302(f)(2) that employees whose principal job functions are to investigate and disclose wrongdoing are not excluded from whistleblower protections. S. Rep. No. 115-74, at 8. Accordingly, we conclude that the intent 11 of Congress in adopting the relevant language at issue here was to clarify 5 U.S.C. § 2302(f)(2).4 ¶20 We next turn to the question of whether the prior version of 5 U.S.C. § 2302(f)(2) was ambiguous and, if so, whether that ambiguity is resolved by the 2018 NDAA in a manner that comports with the prior statute and administrative interpretation. We find that the WPEA’s version of section 2302(f)(2) was ambiguous regarding what types of employees that provision was meant to cover, and that the 2018 NDAA resolved that ambiguity. The administrative judge in Acha v. Department of Agriculture, MSPB Docket No. DE-1221-13-0197-W-2, applied the heightened standard to a Forest Service purchasing agent. After the case was appealed, OSC filed an amicus brief arguing that Congress did not intend for the new heightened standard of section 2302(f)(2) to apply to a Federal employee whose core job functions did not require investigating and reporting wrongdoing. See Brief on Behalf of the United States Office of Special Counsel as Amicus Curiae in Support of Petitioner-Appellant and in Favor of Reversal at 10-11, Acha v. Department of Agriculture, 841 F.3d 878 (10th Cir. 2016). ¶21 Because of the confusion over this issue, OSC requested of Congress a clarifying amendment, which was then included in the OSC reauthorization bill along with other legislative requests from OSC.5 The clarifying amendment resolved this ambiguity and, as discussed above, comports with how Congress 4 In Edwards, 2022 MSPB 9, ¶¶ 29-33, we found that the expansion of 5 U.S.C. § 2302(b)(9)(C) to include additional protected activities did not apply retroactively. In doing so, we observed that nothing in the 2018 NDAA, S. 582, or the latter’s bill report indicated that it was intended to clarify an existing law. Id., ¶ 33 n.11. Because bill report S. Rep. No. 115-74 contains such a statement as it concerns the change to 5 U.S.C. § 2302(f)(2), we find the situation distinguishable from Edwards, and we do not apply the same analysis. See S. Rep. No. 115-74, at 8. 5 OSC’s amicus brief was submitted over a month after the House Committee on Oversight and Government Reform had already voted to the floor its version of an OSC reauthorization bill, H.R. 4639, which is why the issue was not addressed in the House bill. 12 described its purposes for the original language in the WPEA. Thus, we find that the 2018 NDAA’s version of 5 U.S.C. § 2302(f)(2) may be applied retroactively in this case. The appellant’s principal job function was not to regularly investigate and disclose wrongdoing. ¶22 Turning back to the facts of this appeal, the appellant made his disclosures as part of his normal duties as a Motor Vehicle Supervisor. HT at 62 (testimony of the appellant). Nonetheless, it is apparent that 5 U.S.C. § 2302(f)(2), as recently clarified in the 2018 NDAA, does not apply to him. Section 2302(f)(2) includes only employees whose principal job functions are regularly investigating and disclosing wrongdoing. The appellant’s principal job functions included supervising, scheduling, and monitoring staff, and ensuring good relationships with customers.6 IAF, Tab 5 at 49-51, Tab 15 at 11-15. Although his position description indicated that he conducted “audits as directed,” this potential assignment was listed among a number of “General Administration and Operational Duties,” and there is no evidence that the agency routinely requested that he conduct audits or that conducting audits was the reason his position existed. IAF, Tab 15 at 12. Therefore, the appellant’s disclosures fall under the generally applicable 5 U.S.C. § 2302(b)(8), rather than 5 U.S.C. § 2302(f)(2). The appellant established a prima facie case of whistleblower retaliation. ¶23 To establish a prima facie case of reprisal for a disclosure under 5 U.S.C. § 2302(b)(8), an appellant must prove, by preponderant evidence, that: (1) he 6 We have considered the appellant’s principal duties in his assigned position of Motor Vehicle Supervisor at the time he made his disclosures. Although the appellant was performing the duties of the Chief of Transportation, he was not officially assigned to this position, but rather was “fill[ing] in” as required by his position description. HT at 15 (testimony of the appellant); IAF, Tab 15 at 14. There is no indication that the Chief of Transportation was principally tasked with investigating and disclosing wrongdoing. 13 made a disclosure that a reasonable person in his position would believe evidenced any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 2302(b)(8); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). Because the administrative judge found that the appellant did not make protected disclosures under 5 U.S.C. § 2302(f)(2), he did not make findings as to whether the appellant met his burden to prove that his October 2013 disclosures were protected under section 2302(b)(8). The appellant has not specifically addressed the elements of his prima facie case on review, although he generally asserts that he disclosed gross mismanagement and fraud. PFR File, Tab 1 at 8, 14. We find the appellant has met his burden to prove his prima facie case of whistleblower reprisal. The appellant proved that he reasonably believed that his disclosures regarding fleet vehicles and fleet cards evidenced gross mismanagement. ¶24 The proper test for determining whether an employee had a reasonable belief that his disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the employee could reasonably conclude that the actions evidenced gross mismanagement or one of the other categories of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 (2013). “Gross mismanagement” is more than de minimis wrongdoing or negligence; it means a management action or inaction that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission. Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008). ¶25 The agency’s mission “is to fulfill President Lincoln’s promise, ‘To care for him who shall have borne the battle, and for his widow, and his orphan’ by 14 serving and honoring the men and women who are America’s Veterans.” IAF, Tab 5 at 96. Pursuant to an agency directive, “[i]t is [agency] policy to manage its vehicle fleet in an effective, efficient, and fiscally sound manner in order to support the [agency’s] mission.” Id. The appellant testified, without contradiction, that the agency’s Community Care Program used their fleet of 88 vehicles to reach out to the veteran community, including in the effort “to end homelessness.” HT at 11 (testimony of the appellant). ¶26 The substance of the appellant’s October 10 and October 24, 2013 disclosures was what he viewed as a “vehicle and credit card issue in the Homeless program [which] is in an alarming state of disarray and must be dealt with immediately.” IAF, Tab 5 at 62. Specifically, he stated that, based on reports he received from employees assigned to dispatch vehicles assigned to the Community Care Program, the fleet vehicle keys and cards were “stored in a room . . . , [to which] nearly everyone could gain access,” vehicle cards were missing, and “[i]t now is apparent that there was a lack of control of these cards and vehicles.” IAF, Tab 5 at 62, Tab 8 at 6, 11; HT at 16-19 (testimony of the appellant), 71-75 (testimony of a former Community Care Management Analyst). He further reported that “personnel from [the Program] stated that thirty of the eighty-eight vehicles were unaccounted for, with no idea who had possession of them,” and he was “aware of ten separate credit cards that [were] suspected of fraud.” IAF, Tab 5 at 63. The appellant’s supervisor testified that he viewed the appellant’s October 24, 2013 email as a report of gross mismanagement and that he agreed “obviously, something was amiss.” HT at 229-30 (testimony of the appellant’s supervisor). We find that the appellant reasonably believed that the agency’s mismanagement of fleet vehicles created a substantial risk of significant adverse impact on the agency’s ability to provide services to care for veterans, 15 and in particular homeless veterans.7 Because providing such services is part of the agency’s mission, we find the appellant’s disclosures were protected. The administrative judge properly determined that the appellant proved that the agency took personnel actions against him. ¶27 The administrative judge implicitly found that the appellant’s (1) delayed training, (2) changed performance standards, (3) placement on a PIP, and (4) removal were personnel actions as defined by 5 U.S.C. § 2302(a). IAF, Tab 17 at 6; ID at 14 n.7, 15. We agree. The appellant’s placement on a PIP and removal are personnel actions. See 5 U.S.C. § 2302(a)(2)(A)(iii), (viii) (defining “personnel action” to include disciplinary actions and performance evaluations); Gonzales v. Department of Housing & Urban Development, 64 M.S.P.R. 314, 319 (1994) (finding that placement on a PIP is, by definition, a threatened personnel action, such as a reduction in grade or removal). ¶28 Concerning his delayed training, 5 U.S.C. § 2302(a)(2)(A)(ix) provides that “a decision concerning . . . training” is a personnel action “if the . . . training may reasonably be expected to lead to . . . [a] performance evaluation or other [personnel] action” described in 5 U.S.C. § 2302(a)(2)(A). There must be, at a minimum, a moderate probability that the training would have resulted in, or avoided, some type of personnel action. Simone v. Department of the Treasury, 105 M.S.P.R. 120, ¶ 9 (2007); Shivaee v. Department of the Navy, 74 M.S.P.R. 383, 387 (1997). Here, that standard is met. ¶29 In March 2014, a Fleet Management Analyst from the agency’s Veterans Affairs Central Office offered to provide 2-day on-site training to the appellant and others in May 2014. IAF, Tab 5 at 72-73. The training would have given “assistance and oversight of Fleet Management responsibilities, mandates, and ensure policies/procedures are met.” Id. at 73. The appellant wanted to 7 The agency did not dispute below that, under 5 U.S.C. § 2302(b)(8), the appellant’s disclosures were protected. IAF, Tab 24 at 24. 16 participate because he believed the training would assist the department in meeting fleet management goals and provide him with an opportunity to meet his standards. IAF, Tab 5 at 72; HT at 25-27, 53-54 (testimony of the appellant). The appellant’s supervisor denied his request for the training at that time. IAF, Tab 5 at 72. The appellant did eventually receive the training in September 2014, the same month that the agency placed him on a PIP for unacceptable performance pertaining to fleet management, which ultimately led to his removal. HT at 28 (testimony of the appellant), 249-53 (testimony of the appellant’s supervisor); IAF, Tab 5 at 16, 103, Tab 6 at 4-15. The appellant’s first-level supervisor testified that the appellant “continued to be unsuccessful” after taking the training in September 2014. Nonetheless, we find that at the time the appellant requested the training, it was possible that the training could have improved his performance, which may have made the PIP unnecessary. We find the delay of training in March 2014 was, therefore, a personnel action. ¶30 Regarding the June 2014 change in the appellant’s performance standards, “any . . . , significant change in duties, responsibilities, or working conditions” is a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). We recently explained that, to amount to a “significant change” under section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the overall nature or quality of an employee’s working conditions, responsibilities, or duties. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 15. ¶31 Here, the appellant’s prior performance standards included just one critical element, “Program Administration,” which generally required that the appellant monitor resources for proper utilization, ensure satisfactory performance by staff, identify and fulfill staff training needs, and develop appropriate performance standards for staff. IAF, Tab 5 at 78. By contrast, the appellant’s updated performance standards included two critical elements, “Motor Vehicle Inventory Control” and “Motor Vehicle Maintenance and Reporting.” IAF, Tab 6 at 16-23. The new standards contained more extensive, focused, and specific requirements 17 pertaining to vehicles, many of which included express deadlines. Id. at 20-22; HT at 191-93 (testimony of the appellant’s supervisor). In comparing his old and new performance standards, we find that the appellant was subjected to a significant change in duties and responsibilities because the new standards effectively changed his duties from supervising subordinate employees to tracking the location, and ensuring the maintenance, of vehicles. The administrative judge properly determined that the appellant proved contributing factor under the knowledge/timing test. ¶32 One of the ways to prove that a disclosure was a contributing factor in a personnel action is the knowledge/timing test, in which the appellant may demonstrate that the official taking the personnel action knew of the disclosure, and that the personnel action occurred within 1 to 2 years of the disclosure. Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 41. The administrative judge found that the appellant met this test. ID at 30-31. The agency conceded below that the knowledge prong of the knowledge/timing test was satisfied for each of the alleged personnel actions. IAF, Tab 24 at 24. We agree. ¶33 The appellant made his disclosures in October 2013 directly to his first-level supervisor, who, over the subsequent 15 months, delayed the appellant’s training, changed his performance standards, placed him on a PIP, and proposed his removal. IAF, Tab 5 at 16-18, 62-63, 72-73, 103-09, Tab 6 at 4-23; HT at 199 (testimony of appellant’s supervisor). The deciding official also had actual knowledge of the appellant’s disclosures. The appellant raised his belief that he was the victim of retaliation in his response to the proposed removal, as well as referring to and attaching his October 2013 emails. IAF, Tab 5 at 23-36, 62-63. The deciding official reviewed this response and was aware of the appellant’s allegation that the actions leading up to and including his proposed removal were in reprisal for his disclosures. HT at 338-41 (testimony of the deciding official). The agency removed the appellant effective February 4, 2015, 18 less than 2 years after he made his disclosures. IAF, Tab 5 at 16. Thus, the appellant has proven contributing factor. On remand, the administrative judge must address whether the agency proved by clear and convincing evidence that it would have taken the personnel actions absent the appellant’s protected disclosures. ¶34 When, as in this case, an appellant shows by preponderant evidence that he made protected disclosures and that those disclosures were a contributing factor in the decision to take personnel actions, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the personnel actions in the absence of the whistleblowing. Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 13, 23. Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. Id., ¶ 13 n.8; 5 C.F.R. § 1209.4(e). It is an intentionally high standard of proof and is higher than the “preponderance of the evidence” standard. Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 28 (2011) (citations omitted); 5 C.F.R. § 1209.4(e). ¶35 In determining whether an agency has met this burden, the Board generally considers the following (“Carr factors”): (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).8 The 8 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510), appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). 19 administrative judge previously considered some of these factors when analyzing whether the appellant’s disclosures were protected under 5 U.S.C. § 2302(f)(2). ID at 32-52. However, in doing so, he placed the burden of proof on the appellant. ID at 17-18, 26. Because 5 U.S.C. § 2302(f)(2) is inapplicable to this matter and this is a different stage of the proceedings with different burdens of proof, the administrative judge’s prior analysis must be reevaluated. We find it appropriate to remand this case because the administrative judge, as the hearing officer, is in the best position to make factual findings and detailed credibility assessments on the Carr factors. See Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 27 (2015) (citing this consideration in remanding an IRA appeal for an administrative judge to make a determination as to whether the agency subjected the appellant to a personnel action and, if so, to evaluate the remaining elements of the appellant’s whistleblower reprisal claim). ¶36 On remand, the administrative judge should reassess each of the Carr factors in light of the findings herein, giving weight to the appellant’s first-level supervisor’s motive to retaliate, as he testified that “it didn’t make [his] day” that he received the letter of counseling for mismanagement of vehicles, and responded in the affirmative to the question of whether he held the appellant partially responsible for the letter. Id. at 245 (testimony of the appellant’s supervisor). Further, on remand, the administrative judge should consider that the appellant’s disclosures also reflected poorly on the appellant’s first-level supervisor and the deciding official as representatives of the general institutional interests of the agency, which is sufficient to establish retaliatory motive. Wilson, 2022 MSPB 7, ¶ 65; Smith, 2022 MSPB 4, ¶¶ 28-29. Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 20 ORDER ¶37 For the reasons discussed above, we remand this case for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SALAZAR_ANTHONY_G_SF_1221_15_0660_W_1_OPINION_AND_ORDER_1985477.pdf
12-13-2022	2022 MSPB 43	Natalie Stroud	https://www.mspb.gov/decisions/precedential/STROUD_NATALIE_P_CH_0714_19_0348_I_1_OPINION_AND_ORDER_1985507.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 43 Docket No. CH-0714-19-0348-I-1 Natalie P. Stroud, Appellant, v. Department of Veterans Affairs, Agency. December 13, 2022 Natalie P. Stroud, St. Louis, Missouri, pro se. Kent E. Duncan, Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant petitions for review of the initial decision, which dismissed for lack of jurisdiction her appeal of a 15-day suspension. We DENY the petition for review. We AFFIRM the initial decision as SUPPLEMENTED by this Opinion and Order to explain why the election of remedy procedures of 5 U.S.C. § 7121(e)(1) apply to this appeal of an action taken under 38 U.S.C. § 714. BACKGROUND ¶2 Under the authority of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. 2 No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified at 38 U.S.C. § 714), the agency issued a decision letter suspending the appellant for 15 days, effective April 28, 2019, from her Program Support Assistant position in the agency’s Records Management Center (RMC) based on an incident that took place in August 2018.1 Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 23; Petition for Review (PFR) File, Tab 1 at 12. The letter informed the appellant that she could seek review of the action by appealing to the Board, seeking corrective action from the Office of Special Counsel, filing a grievance under the negotiated grievance procedure, or pursuing a discrimination complaint with the agency’s Office of Resolution Management (ORM). IAF, Tab 8 at 24. The letter stated that she would be deemed to have made an election of one of these options, to the exclusion of the other options, when she first timely filed such an appeal, complaint, or grievance. Id. at 24-25. ¶3 On March 29, 2019, before the effective date of her suspension, the appellant filed a grievance challenging the action. IAF, Tab 1 at 4, 11, Tab 8 at 11, 13-14, 21. In an April 22, 2019 memorandum addressing the appellant’s grievance, the RMC Director sustained the suspension as amended by spreading the effective dates of the suspension over two pay periods, starting in May 2019. IAF, Tab 8 at 22. Although the applicable collective bargaining agreement (CBA) provided that a grievance could be referred to arbitration by the union or by the agency if the grievance was not satisfactorily resolved, id. at 18, there is no indication in the record that the grievance decision was so referred. ¶4 On May 6, 2019, the appellant filed a Board appeal alleging that she did not engage in the charged misconduct and that the agency disregarded a complaint of 1 The initial decision and the decision letter erroneously referenced the appellant’s “removal.” Initial Appeal File (IAF), Tab 8 at 24, Tab 12, Initial Decision at 2, 4. These typographical errors did not prejudice her substantive rights and therefore provide no basis for reversal of the initial decision. See Roesel v. Peace Corps, 111 M.S.P.R. 366, ¶ 12 n.1 (2009). 3 harassment she had submitted in violation of her “[c]ivil [r]ights.” IAF, Tab 1 at 5. The agency moved to dismiss the appeal for lack of jurisdiction, asserting that the appellant filed a grievance before filing her Board appeal and thereby elected the negotiated grievance process, which precluded a Board appeal under 5 U.S.C. § 7121(e)(1). IAF, Tab 8 at 4, 7-10. The administrative judge then issued an order requiring the appellant to show why her appeal should not be dismissed for lack of jurisdiction. IAF, Tab 10 at 1. In response, the appellant filed a copy of email correspondence between herself and an ORM employee in which she disputed the merits of her suspension. IAF, Tab 11 at 4. The record suggests that the appellant sought equal employment opportunity (EEO) counseling regarding her suspension from ORM. IAF, Tab 8 at 14, Tab 11 at 4. However, it does not appear that she filed a formal complaint of discrimination with the agency regarding that action. IAF, Tab 8 at 14. ¶5 Based on the written record, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID) at 1, 4. She found that the appellant knowingly elected to file a grievance challenging her suspension before filing a Board appeal; thus, she concluded that the appellant made an election under 5 U.S.C. § 7121(e) that precluded Board jurisdiction over the appeal. ID at 4. The appellant has filed a petition for review of the initial decision, and the agency has responded thereto. Petition for Review (PFR) File, Tabs 1, 3. ANALYSIS We affirm the initial decision as supplemented here regarding the reasons that the election of remedy procedures in 5 U.S.C. § 7121(e)(1) apply to this appeal. ¶6 The appellant does not dispute on review that she filed her grievance before her Board appeal, nor does she otherwise challenge the administrative judge’s conclusion that her election to file a grievance divested the Board of jurisdiction. PFR File, Tab 1 at 12. We agree with the administrative judge’s decision to 4 dismiss this appeal for lack of jurisdiction, but provide additional supporting analysis for that finding. ID at 3-4. ¶7 As set forth above, the agency suspended the appellant for 15 days under 38 U.S.C. § 714. IAF, Tab 8 at 23. A covered employee subject to a suspension of more than 14 days under section 714 may appeal her suspension to the Board. 38 U.S.C. § 714(a), (c)(4); Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 11. The statute sets forth procedural requirements that govern such an appeal. See, e.g., 38 U.S.C. § 714(d)(1)-(3), (6), (8)-(9). It further states that if an employee “chooses to grieve an action taken under [section 714] through a grievance procedure provided under [a] collective bargaining agreement,” the grievance is subject to the procedures in section 714(c) concerning notice of the agency’s proposed action, an employee’s response, and the agency’s decision on the action. 38 U.S.C. § 714(c), (d)(10); see Wilson, 2022 MSPB 7, ¶ 23. There is no indication within the provisions of 38 U.S.C. § 714, however, as to the legal effect, if any, of a timely election to grieve an action taken pursuant to that section on an employee’s right to subsequently challenge the action in a different forum. Nevertheless, as set forth below, we find that the election provisions of 5 U.S.C. § 7121(e)(1) apply here to preclude a subsequent Board appeal. ¶8 Section 7121(e)(1) of Title 5 provides, as relevant here: Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise a matter either under the applicable appellate procedures or under the negotiated grievance procedure at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing 5 in accordance with the provisions of the parties’ negotiated grievance procedure, whichever event occurs first. ¶9 The 15-day suspension arising under 38 U.S.C. § 714 in this case is a “similar matter” to a 15-day suspension covered under 5 U.S.C. § 7512 because under both provisions, suspensions of more than 14 days are appealable to the Board. The provisions of section 7121(e) apply to “similar matters” that arise under “other personnel systems.” A Senate Report specifically mentions Title 38 as an example of such a “personnel system[]” under 5 U.S.C. § 7121(e)(1). S. Rep. No. 95-969, at 110, as reprinted in 1978 U.S.C.C.A.N. 2723, 2832 (1978). Further, our reviewing court has described Title 38 as a “personnel system.” Carrow v. Merit Systems Protection Board, 564 F.3d 1359, 1361-62 (Fed. Cir. 2009); Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1247-48 (Fed. Cir. 2003); James v. Von Zemenszky, 284 F.3d 1310, 1319-20 (Fed. Cir. 2002). The VA Accountability Act was subsequently enacted under Title 38 as an “expedited, less rigorous alternative to traditional civil service adverse action appeals” under chapters 43 and 75 of Title 5. Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1374 (Fed. Cir. 2020). Like the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978), the VA Accountability Act permits employees to seek Board review of removals, suspensions in excess of 14 days, and demotions. Compare 5 U.S.C. §§ 7512(1)-(4), 7513(d), with 38 U.S.C. § 714(c)(4)(A) We find that the provisions of 38 U.S.C. § 714 function for purposes of this case as another “personnel system[].” ¶10 Furthermore, the appellant is an employee covered both by chapter 71 of the CSRA, of which 5 U.S.C. § 7121 is a part,2 and 38 U.S.C. § 714. An “employee,” for purposes of chapter 71 of the CSRA, means an individual “employed in an 2 Section 7121(e) of Title 5 was enacted as part of the CSRA. Pub. L. No. 95-454, Title VII, § 701, 92 Stat. 1111, 1212. 6 agency.” 5 U.S.C. § 7103(a)(2)(A). An “agency,” in turn, means an Executive agency, but does not include certain Federal entities such as the Government Accountability Office, the Federal Bureau of Investigation, and the Central Intelligence Agency. 5 U.S.C. § 7103(a)(3). That list of exclusions does not include the Department of Veterans Affairs. Id. Moreover, for purposes of Title 5, “Executive agency” means, among other things, an Executive department. 5 U.S.C. § 105. The Department of Veterans Affairs is such a department. 5 U.S.C. § 101. Thus, as an employee of an agency, the appellant meets the definition of an employee under chapter 71. ¶11 The appellant also meets the definition of a “covered individual” under 38 U.S.C. § 714. A covered individual is “an individual occupying a position” at the agency whose appointment does not fall within one of four exceptions. 5 U.S.C. § 714(h)(1). Those exceptions include employees in the Senior Executive Service; those “appointed pursuant to sections 7306, 7401(1), 7401(4), or 7405 of [Title 38];” those serving a trial or probationary period; and “political appointee[s].” 38 U.S.C. § 714(h)(1). There is no Standard Form 50 or other documentation in the file to reflect what authority the agency used to appoint the appellant, when it made that appointment, or the length of that appointment. The appellant asserted below that she is a competitive-service nonprobationary appointee who, at the time she filed her appeal, had almost 22 years of Government service. IAF, Tab 1 at 1. Likewise, the agency identified her in its pleadings below as a nonprobationary employee in the competitive service. IAF, Tab 8 at 5. Thus, we conclude she is not a trial period or probationary employee. ¶12 We also discern no basis to conclude that her appointment as a Program Support Assistant is a Senior Executive Service or political appointment. Nor does her appointment fall within one of the statutory exceptions referenced in 38 U.S.C. § 714(h)(1)(B). Section 7306 of Title 38 provides for the positions in the agency’s Office of the Under Secretary for Health, such as Deputies, Assistant Under Secretaries, Medical Directors, and Directors of Nursing, Pharmacy, 7 Physician Assistant, and Chaplain Services. The appellant’s position does not fall within these categories. Nor, as an individual in the competitive service, is she an appointee under 38 U.S.C. §§ 7401 or 7405. Such positions are outside of the competitive service.3 See Carrow, 564 F.3d at 1363-64 (agreeing with a Board administrative judge’s conclusion that an appointment under 38 U.S.C. § 7405(a)(1) was in the excepted service); Evans v. Department of Veterans Affairs, 119 M.S.P.R. 257, ¶¶ 3, 5-6 (2013) (agreeing with the administrative judge’s conclusion that individuals appointed under 38 U.S.C. § 7401(1) are excluded from the competitive service); Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245, ¶ 11 (2010) (explaining that positions identified in 38 U.S.C. § 7401 are in the excepted service). ¶13 Our conclusion that the appellant is a covered individual is supported by the agency’s suspension decision letter, in which it stated it was taking the action under 38 U.S.C. § 714. IAF, Tab 8 at 23. That letter also advised the appellant of her appeal rights and referenced the 10-business-day filing period that applies to section 714 appeals. IAF, Tab 8 at 24; 38 U.S.C. § 714(c)(4). Thus, we conclude that the appellant meets the definition of a “covered individual” under 38 U.S.C. § 714(h)(1), IAF, Tab 8 at 5, 23, and that she is also an “employee” covered by 5 U.S.C. § 7121(e) because she meets the definition of an individual employed in an “agency” under 5 U.S.C. § 7103(a)(2)(A) and is not otherwise excluded from that chapter. ¶14 Moreover, we find that the election requirements set forth at 5 U.S.C. § 7121(e)(1) apply to the appellant. As our reviewing court has concluded, the Title 5 and Title 38 personnel systems are not “completely separate and independent.” Von Zemenszky, 284 F.3d at 1320. Rather “it is assumed that, 3 In addition, the appellant identified herself as a permanent employee. IAF, Tab 1 at 1. The agency does not dispute this assertion. Thus, she cannot be an appointee within the meaning of 38 U.S.C. § 7405, which authorizes certain temporary appointments. 8 absent other overriding provisions of law, Title 5 applies to executive agencies such as [the Department of Veterans Affairs].” Id. There is no provision within Title 38 that overrides 5 U.S.C. § 7121(e). ¶15 Similarly, in Wilson, we read the VA Accountability Act together with the CSRA to give both effect, finding that CSRA procedures and time limits apply to mixed-case appeals of actions taken under the VA Accountability Act, a matter on which the VA Accountability Act was silent. 2022 MSPB 7, ¶¶ 11-25. We declined to apply the 10-business-day time limit set forth in 38 U.S.C. § 714(c)(4) to an appeal of an action taken under that section in which an appellant first filed a discrimination complaint with the agency, applying instead the procedures and time period for filing a mixed-case appeal under the CSRA, set forth in 5 U.S.C. § 7702(e)(2). Wilson, 2022 MSPB 7, ¶¶ 17, 25. We reasoned there was no “clear and manifest” intention by Congress to repeal the applicability of 5 U.S.C. § 7702 to appeals arising under 38 U.S.C. § 714. Wilson, 2022 MSPB 7, ¶¶ 15, 17 (citing Morton v. Mancari, 417 U.S. 535, 551 (1974)). Further, we explained that repeals by implication are disfavored, and that generally such repeals are found only when two statutes are irreconcilable or when the older statute is broader in scope than the newer, more specific statute. Id., ¶¶ 15-16 (citing Morton, 417 U.S. at 549-51). We determined that the filing period in 5 U.S.C. § 7702(e)(2) was applicable to a mixed-case appeal of an action taken under 38 U.S.C. § 714 because, among other reasons, it was the more specific statute when it came to the procedures and time limits for mixed-case appeals. Wilson, 2022 MSPB 7, ¶¶ 16-18. We also found that the statutes could coexist by applying the procedures and filing deadlines in 5 U.S.C. § 7702(e)(2) to mixed-case appeals of actions taken under 38 U.S.C. § 714, while applying the shorter deadline in 5 U.S.C. § 714(c)(4) to non-mixed appeals. Wilson, 2022 MSPB 7, ¶ 19. ¶16 We find that, for the reasons stated in Wilson, the CSRA’s specific guidance in 5 U.S.C. § 7121(e)(1) controls the appellant’s election of forum in light of the absence of a provision addressing this issue in the VA Accountability Act. In 9 enacting 38 U.S.C. § 714, Congress did not express a “clear and manifest” intention to repeal the applicability of 5 U.S.C. § 7121(e) to cases arising under the VA Accountability Act. To the contrary, 38 U.S.C. § 714 is silent on the matter of elections of remedies when a grievance is filed. Section 7121(e)(1) of Title 5, on the other hand, explains the interplay of grievance and Board appeal rights, providing that an election is made based on whether the grievance or appeal is filed first. Thus, as in Wilson, the CSRA provision at 5 U.S.C. § 7121(e)(1) is more specific than the VA Accountability Act. Furthermore, the two statutes are capable of coexistence. Nothing in 38 U.S.C. § 714 is contradicted or contravened by the application of 5 U.S.C. § 7121(e). Accordingly, the election provisions set forth in 5 U.S.C. § 7121(e) apply to the instant matter. The appellant made a valid and binding election to pursue her grievance remedy. ¶17 Both the administrative judge, in her order to show cause, and the agency in its motion to dismiss, advised the appellant that a timely grievance would be deemed an election to pursue her grievance remedy. IAF, Tab 8 at 7-10, Tab 10 at 1. The agency argued below that the appellant’s grievance was timely filed under the CBA, and the appellant did not dispute that assertion. IAF, Tab 1 at 4, Tab 8 at 7, Tab 11. The administrative judge did not make a finding on the timeliness issue. The agency continues to assert on review that the appellant timely filed her grievance. PFR File, Tab 3 at 7. The appellant still does not dispute this statement. ¶18 An appellant is deemed to have made an election under 5 U.S.C. § 7121(e)(1) when she files first either a timely Board appeal or a timely written grievance. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 6 (2016). The Board has held that a timely election can occur before the effective date of the appealable action. Kirkwood v. Department of Education, 99 M.S.P.R. 437, ¶¶ 14-15 (2005). Here, according to the CBA, at the step 1 level, “[a]n employee and/or the Union shall present the grievance to the immediate or acting 10 supervisor, in writing, within 30 calendar days of the date that the employee or Union became aware, or should have become aware, of the act or occurrence.” IAF, Tab 8 at 17. At the step 2 and step 3 levels, the grievance must be submitted within 7 calendar days of receiving the grievance decision at the prior step. Id. at 17-18. The CBA, therefore, permits the filing of grievances before the effective date of an underlying action. We find that the appellant timely filed her grievance under the CBA after she received the agency’s decision letter but before the effective date of her suspension. IAF, Tab 8 at 11-14, 21-26. Accordingly, she made a valid timely election to grieve her removal. ¶19 The appellant raises new arguments on review suggesting that her election to pursue her grievance remedy was not binding. Compare PFR File, Tab 1 at 12, with IAF, Tab 1 at 5. The Board ordinarily will not consider evidence or 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. Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 19 n.12 (2016). However, we consider the appellant’s arguments and evidence to the extent they implicate the Board’s jurisdiction, which is an issue that is always before the Board. Id. ¶20 The appellant claims for the first time on review that her union “failed to properly advise [her] of [her] options,” and that she “wasn’t clear of the fine print stating [she] wasn’t to contact any other agency regarding the matter.” PFR File, Tab 1 at 12. An election to pursue a grievance is not binding if the agency failed to inform an employee of her right to appeal to the Board. See Atanus v. Merit Systems Protection Board, 434 F.3d 1324, 1327 (Fed. Cir. 2006). The administrative judge correctly observed that the agency advised the appellant of her options for challenging her 15-day suspension, including the options of filing a grievance or a Board appeal, and that the appellant did not claim she was confused by the agency’s notice. ID at 4; IAF, Tab 8 at 24-25. The appellant does not contest this finding on review. 11 ¶21 Moreover, her allegations of any union misconduct in the process of her making an election are not the fault of the agency and do not warrant a finding that her election was not binding. See Atanus, 434 F.3d at 1327. Rather, the appellant is responsible for any errors of her union representative. See Smith v. Department of Veterans Affairs, 101 M.S.P.R. 366, ¶¶ 5, 8, 14 (2006) (finding that a union representative’s delay in filing a petition for review while seeking an informal resolution with the agency did not excuse the untimeliness of the petition because the appellant was responsible for the errors of his chosen representative). Because the appellant elected a grievance, she has no right of appeal to the Board. Atanus, 434 F.3d at 1327-28. ¶22 The appellant also claims that a Board employee in Washington, D.C., informed her that the Board’s Central Regional Office had “[j]urisdiction” over her claim. PFR File, Tab 1 at 12. The mere fact that an agency informs an employee of a possible right of appeal to the Board does not confer jurisdiction on the Board. Morales v. Social Security Administration, 108 M.S.P.R. 583, ¶ 5 (2008). Similarly, any statement by a Board employee regarding where to file a Board appeal based on the appellant’s geographical location does not demonstrate Board jurisdiction over this appeal. Compare 5 C.F.R. § 1201.4(d) & part 1201, Appendix II (describing the appropriate regional or field office for filing a Board appeal), with 5 C.F.R. § 1201.3 (describing the sources of, and limitations on, Board appellate jurisdiction). The appellant’s remaining arguments are not relevant to the dispositive jurisdictional issue in this appeal. ¶23 The appellant asserts on review, as she did below, that her supervisor ignored a complaint she had filed regarding harassment by coworkers in connection with the incident underlying her suspension.4 PFR File, Tab 1 at 12; 4 Although the appellant indicates she is attaching a copy of an email regarding this complaint to her petition for review, no such email is attached. PFR File, Tab 1 at 12. 12 IAF, Tab 1 at 5. She also raises a claim of retaliation for EEO activity for the first time on review. PFR File, Tab 1 at 12. Although the administrative judge did not specifically address the appellant’s harassment claim, we discern no basis to reverse the initial decision based either on that argument or on the appellant’s new claim of EEO reprisal. ¶24 To the extent the appellant is disputing the merits of her 15-day suspension, her arguments do not state a basis for granting review because they are not relevant to the dispositive jurisdictional issue. See Fassett v. U.S. Postal Service, 76 M.S.P.R. 137, 139 (1997) (finding an appellant’s arguments regarding the merits of his removal did not meet the criteria for review when the issue before the Board was whether it had jurisdiction over the appeal). To the extent she is alleging that her suspension was the result of prohibited discrimination or retaliation for prior EEO activity, we cannot consider her claims here absent jurisdiction over her suspension. Prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction. Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). ¶25 An appellant may request that the Board review an arbitration decision regarding an appealable action when she elected her grievance remedy as to that action, the grievance went to arbitration, and she raised a claim of discrimination under 5 U.S.C. § 2302(b)(1). 5 U.S.C. § 7121(d); Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶¶ 4, 6 (2014). We need not decide here whether that provision is applicable to an action taken under 38 U.S.C. § 714 because the Instead, she provides a January 2019 memorandum alleging she was mistreated by coworkers based on her religion while on detail following the August 2018 incident that led to her suspension. PFR File, Tab 1 at 14; IAF, Tab 8 at 23. She also includes what appears to be agency management’s response to this memorandum. PFR File, Tab 1 at 14-15. Because these documents are not relevant to the dispositive jurisdictional issue, we decline to address their contents. See Hamilton, 123 M.S.P.R. 404, ¶ 19 n.12. 13 appellant does not allege that she received a final arbitration decision. Martinez v. Department of Justice, 85 M.S.P.R. 290, ¶ 12 (2000); Little v. Department of the Treasury, 65 M.S.P.R. 360, 362 (1994). Therefore, we are without jurisdiction to review her discrimination claims. ¶26 She also argues for the first time on review that her supervisor improperly substituted leave without pay for approved accrued leave that she used in April 2019, which caused the agency to inform the appellant that she owed a debt. PFR File, Tab 1 at 12, 16-20. She attaches related documents. Id. at 16-21. Some of this documentation is dated after the close of the record below. Id. at 16-19, 21; IAF, Tab 10 at 2. However, assuming the underlying information is new, it is not relevant to the dispositive issue of the Board’s jurisdiction over the appellant’s suspension, and therefore we need not consider it here. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). Further, the Board has held that it generally lacks jurisdiction over an appellant’s attempt to appeal the propriety of an agency’s finding of liability for a debt. Secrist v. U.S. Postal Service, 115 M.S.P.R. 199, ¶¶ 5-6 (2010). Accordingly, we affirm the initial decision as modified by this Opinion and Order, still dismissing the appeal for lack of jurisdiction.5 ORDER ¶27 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). 5 In light of our findings here, we do not reach the issue of whether the appellant timely filed her appeal within 10 business days after the date of her suspension, as required by 38 U.S.C. § 714(c)(4)(B). 14 NOTICE OF APPEAL RIGHTS6 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: 6 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. 15 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 16 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 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 17 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.7 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 7 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. 18 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/STROUD_NATALIE_P_CH_0714_19_0348_I_1_OPINION_AND_ORDER_1985507.pdf
12-12-2022	2022 MSPB 40	Joseph Schmitt	https://www.mspb.gov/decisions/precedential/SCHMITT_JOSEPH_SF_0714_18_0121_I_1_OPINION_AND_ORDER_1985139.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 40 Docket No. SF-0714-18-0121-I-1 Joseph Schmitt, Appellant, v. Department of Veterans Affairs, Agency. December 12, 2022 Joseph Schmitt, Reno, Nevada, pro se. George Pearson and Steven R. Snortland, Esquire, Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal, taken under the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714), because the appellant proved his claims of a due process violation and whistleblower reprisal. For the reasons discussed below, we FIND that the administrative judge erred in awarding interim relief and DENY the appellant’s motion dismiss the agency’s petition for review for failure to provide 2 interim relief. We therefore REVERSE the initial decision’s order of interim relief. We also DENY the agency’s petition for review on the merits and otherwise AFFIRM the initial decision. BACKGROUND ¶2 The appellant held the position of Chief Financial Officer at the agency’s Greater Los Angeles Healthcare System. Initial Appeal File (IAF), Tab 6 at 11, 18. Effective November 28, 2017, the agency removed the appellant pursuant to 38 U.S.C. § 714 based on a charge of absence without leave (AWOL).1 Id. at 11, 18-20. The appellant filed a Board appeal of his removal and raised, among other things, claims that the agency violated his due process rights and retaliated against him for whistleblowing. IAF, Tab 1, Tab 4 at 7, Tab 8 at 4-6, Tab 9 at 1-3, Tab 21 at 4-5. ¶3 After holding the requested hearing, the administrative judge issued an initial decision reversing the removal action. IAF, Tab 29, Initial Decision (ID). In the initial decision, the administrative judge ruled on a motion for sanctions previously filed by the appellant concerning the agency’s alleged failure to comply with its discovery obligations. ID at 4-9. In ruling on the motion, the administrative judge found that the agency demonstrated a pattern of disregarding its obligations in the discovery process and failing to comply with Board orders. ID at 8. As a result, she found that sanctions were warranted to serve the ends of justice. Id. Specifically, as a sanction, the administrative judge inferred that communications relating to the appellant from October 10, 2016, through November 28, 2017, between certain individuals identified in the appellant’s discovery requests, would reflect that the appellant’s report of potential fraud to the agency’s Inspector General (IG) in 2016 was a contributing 1 The agency charged that the appellant was AWOL from September 19 through October 27, 2017, following an approved absence under the Family and Medical Leave Act of 1993. IAF, Tab 6 at 22-25, 32-33. 3 factor in the agency’s adverse and disciplinary action decisions taken against the appellant. ID at 8-9. ¶4 The administrative judge then determined that the agency violated the appellant’s due process rights in its decision to remove him. ID at 9-12. She found that, because the agency failed to make diligent and reasonable efforts under the circumstances to serve notice of the proposed action on the appellant, he did not receive the proposal notice until after the deciding official decided to remove him. ID at 12. She concluded that the due process violation required reversal of the removal action without reaching its merits. ID at 13. ¶5 The administrative judge next found that, although the appellant failed to prove that his alleged disclosure to the IG in 2016 was protected under 5 U.S.C. § 2302(b)(8), the appellant did prove that he engaged in activity protected by 5 U.S.C. § 2302(b)(9)(C), which covers cooperating with or disclosing information to an IG.2 ID at 13-15. The administrative judge further found that the deciding official in the removal action learned of this protected activity approximately 13 months before deciding to remove the appellant. ID at 15-16. She concluded, therefore, that, based on the knowledge/timing test, the appellant met his burden of showing that his protected activity was a contributing factor in his removal. ID at 16. The administrative judge also found that, even if the appellant had not shown contributing factor through the knowledge/timing test, she would have found that he had established contributing factor as a sanction for the agency’s repeated failure to comply with Board orders relating to discovery. 2 The administrative judge observed that the appellant appeared to be alleging that he made a protected disclosure when he communicated to the deciding official a prior disclosure to the agency IG. ID at 15. The administrative judge found that the communication itself was not protected, although she considered it in determining whether the appellant met his burden to show that his disclosure to the IG was a contributing factor in the agency’s removal decision. Id. Neither party has complained about this finding, nor do we discern a basis upon which to disturb it. 4 ID at 16. Next, the administrative judge found that the agency failed to demonstrate by clear and convincing evidence that it would have removed the appellant in the absence of his protected activity. ID at 17-20. ¶6 For these reasons, the administrative judge reversed the removal action and ordered the agency to retroactively restore the appellant, effective November 28, 2017. ID at 20-21. She also ordered the agency to provide interim relief if a petition for review was filed by either party. ID at 22 (citing 5 U.S.C. § 7701(b)(2)(A)). Consistent with 5 C.F.R. § 1201.116(a), the administrative judge instructed the agency that a petition for review must be accompanied by a certification that the agency complied with the interim relief order either by providing interim relief or satisfying the requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B). ID at 22. ¶7 The agency has filed a petition for review without any indication that it has complied with the administrative judge’s interim relief order. Petition for Review (PFR) File, Tab 1. The appellant filed a response to the petition for review and a motion to dismiss the agency’s petition because it failed to provide the interim relief ordered by the administrative judge. PFR File, Tab 3. The agency did not file a reply to the appellant’s response to the petition for review, nor did the agency file a response to the appellant’s motion to dismiss the petition for failure to provide interim relief. Months later, the appellant filed a motion for enforcement of the interim relief order, asserting that the agency still had not provided interim relief. PFR File, Tab 4. The agency did not respond. ¶8 Thereafter, the Office of the Clerk of the Board issued an Order to Show Cause instructing the agency to file, within 14 days, a statement showing why its petition for review should not be dismissed pursuant to 5 C.F.R. § 1201.116(e), a regulatory provision pertaining to an agency’s failure to comply with an interim relief order. PFR File, Tab 5. The order specifically advised the agency that its failure to respond to the show cause order may result in dismissal of its petition for review. Id. at 2. The agency did not respond. 5 ANALYSIS The appellant’s motion to dismiss the agency’s petition for failure to provide interim relief is denied because the provision of interim relief is precluded by the VA Accountability Act, and thus the administrative judge erred in ordering it. ¶9 As set forth above, the appellant has requested that we dismiss the agency’s petition for review based on the agency’s failure to comply with the administrative judge’s interim relief order. PFR File, Tab 3 at 5-6, Tab 4 at 4-5. Despite multiple opportunities to address that issue, the agency failed to do so. The agency did not present argument or evidence that it complied with the administrative judge’s interim relief order, nor did it present argument about the propriety of the interim relief order. Although we do not condone the agency’s failure to respond to the appellant’s motions and the Board’s order, as explained below, we nonetheless must deny the appellant’s motion to dismiss the agency’s petition for review. ¶10 The administrative judge’s interim relief order relied on 5 U.S.C. § 7701(b)(2)(A). ID at 22. That statutory provision was enacted as part of the Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, § 6, 103 Stat. 16, 33-34 (codified at 5 U.S.C. § 7701(b)(2)). In pertinent part, it provides that if an employee is the prevailing party in an initial decision and either party files a petition for review, the employee “shall be granted the relief provided in the decision effective upon the making of the decision,” and that the relief will remain in effect until resolution of the petition for review. 5 U.S.C. § 7701(b)(2)(A). When, as in this appeal, an appellant prevails in a removal action, the relief provided in the Board decision is the cancelation of the action and the retroactive restoration of the appellant to his position effective the date of the agency action. See, e.g., ID at 21. Thus, except as discussed below, in affording interim relief, an agency must reinstate the appellant to his position effective on the date of the initial decision until the petition for review with the Board is resolved. Herrin v. Department of the Air Force, 95 M.S.P.R. 536, ¶ 14 (2004). Restoring an appellant to his position necessarily involves providing him 6 the pay and benefits of employment consistent with the position. Zygas v. U.S. Postal Service, 116 M.S.P.R. 397, ¶ 13 (2011) (stating that it is a fundamental element of interim relief that the appellant be reinstated with pay effective as of the date of the initial decision); O’Regan v. Department of Veterans Affairs, 74 M.S.P.R. 134, 138 (1997) (stating that the purpose of interim relief is to grant the appellant the pay, compensation, and benefits of the position awarded in the initial decision while the petition for review is pending); see Bryant v. Department of the Army, 2022 MSPB 1, ¶ 7 (finding an agency in compliance with an interim relief order when it had taken steps to provide the appellant pay and benefits effective the date of the initial decision). An exception to the requirement that an agency return a prevailing appellant to work when interim relief has been ordered exists if the agency determines that returning the appellant to duty would be unduly disruptive. 5 U.S.C. § 7701(b)(2)(B). In such a circumstance, however, the employee shall nevertheless “receive pay, compensation, and all other benefits as terms and conditions of employment.” 5 U.S.C. § 7701(b)(2)(B); King v. Jerome, 42 F.3d 1371, 1375 (Fed. Cir. 1994) (stating that an agency complies with the interim relief provision when it determines that returning an employee to duty would cause an undue disruption and “provides the employee with the same pay, compensation, and other benefits of his previous position during the pendency of the agency’s petition for review”); Cook v. Department of the Army, 105 M.S.P.R. 178, ¶ 6 (2007) (finding that, when interim relief has been ordered and the employing agency determines that returning the employee to the workplace would be unduly disruptive, the agency may satisfy the order by providing the employee with the pay and benefits that the employee would have received if he had been returned to the workplace). In sum, if an administrative judge orders interim relief under 5 U.S.C. § 7701(b)(2), an agency must reinstate the appellant to his position of record and provide him with the pay and benefits of employment consistent with the position. 7 ¶11 By contrast, the VA Accountability Act provides that, from the date a covered individual appeals a removal taken under 38 U.S.C. § 714 until the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issues a final decision on the appeal, the individual “may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the [agency].” 38 U.S.C. § 714(d)(7). Because interim relief includes pay and other benefits of employment, 38 U.S.C. § 714(d)(7) conflicts with 5 U.S.C. § 7701(b)(2) regarding whether an appellant removed under the VA Accountability Act may be afforded interim relief while a petition for review is pending. ¶12 The Supreme Court has held that “[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible.” Morton v. Mancari, 417 U.S. 535, 551 (1974) (quoting United States v. Borden Company, 308 U.S. 188, 198 (1939)); see Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 15 (applying the doctrine in a Board appeal). An intention by Congress to repeal a statute “must be clear and manifest.” Morton, 417 U.S. at 551. “[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Id.; Wilson, 2022 MSPB 7, ¶ 15. Thus, we must determine whether 38 U.S.C. § 714(d)(7) and 5 U.S.C. § 7701(b)(2)(A) may both be given their intended effect. ¶13 A long-standing rule of statutory construction dictates that adjudicators must view the plain language of a statute as controlling absent a clearly contrary legislative intent. Miller v. Department of the Army, 987 F.2d 1552, 1555 (Fed. Cir. 1993). In enacting 38 U.S.C. § 714(d)(7), Congress expressly precluded an appellant who appealed his removal to the Board under section 714 from receiving pay or benefits of employment until the Federal Circuit renders a final decision in the appeal, which spans the time period during which interim relief 8 would apply. Thus, the plain language of 38 U.S.C. § 714 appears to create an exception to the general interim relief provision of 5 U.S.C. § 7701(b)(2)(A). ¶14 Additionally, it is well settled that specific statutory language aimed at a particular situation ordinarily controls over general statutory language. Coffman v. Office of Special Counsel, 2022 MSPB 18, ¶ 31; Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 6 (2006); see Almond Brothers Lumber Company v. United States, 651 F.3d 1343, 1354 (Fed. Cir. 2011). Therefore, the specific language regarding payments by the Department of Veterans Affairs in removals taken under the VA Accountability Act controls over the more general statutory provision applicable to other removals and other Federal agencies. ¶15 The Board recently addressed the conflict between another provision of the VA Accountability Act and 5 U.S.C. § 7702(e)(2) regarding the time limit for an employee to file a mixed-case appeal with the Board following the filing of a discrimination complaint with the individual’s employing agency. Wilson, 2022 MSPB 7, ¶¶ 11-25. In that case, the Board found that the two statutes were capable of coexistence and should, therefore, be interpreted accordingly—the time limit set forth in 5 U.S.C. § 7702(e)(2) applied in actions taken under 38 U.S.C. § 714 when the appellant first filed a formal discrimination complaint with the agency, while the time limit set forth in 38 U.S.C. § 714(c)(4)(B) applied in actions taken under section 714 when the appellant did not file a formal discrimination complaint. Id., ¶¶ 15-19. Our interpretation of the conflicting statutes at issue in this appeal is consistent with this approach. Because it is possible to give meaning to both 38 U.S.C. § 714(d)(7) and 5 U.S.C. § 7701(b)(2)(A), we will do so. ¶16 We find that 38 U.S.C. § 714(d)(7) controls in this matter and precludes an award of interim relief. Accordingly, the administrative judge’s interim relief order was invalid, and the agency’s failure to comply with it does not impede our review of the agency’s petition for review. Schultz v. U.S. Postal Service, 9 70 M.S.P.R. 633, 639 n. 2 (1996) (finding that the Board will not dismiss an agency’s petition for review for failure to comply with an interim relief order that should not have been issued); see Zygas, 116 M.S.P.R. 397, ¶ 13 (stating that there are circumstances in which the awarding of interim relief is inappropriate, such as when doing so is outside the scope of the Board’s authority). The appellant’s motion to dismiss the agency’s petition for review is denied. The agency’s petition for review presents no basis for disturbing the administrative judge’s findings of a due process violation. ¶17 As noted previously, the administrative judge found that the agency violated the appellant’s constitutional due process rights when it failed to provide him with advanced notice and an opportunity to respond to the proposed removal.3 ID at 3, 9-12. The agency challenges that finding on petition for review. PFR File, Tab 1 at 2-3, 5-7. ¶18 The fundamental rights of due process require that a tenured public employee receive oral or written notice of the charges against him, an explanation of the agency’s evidence, and an opportunity to respond, either in person or in 3 The administrative judge found that the agency acted improperly even before the appellant’s removal when it sent a letter to the appellant’s work address denying his request for additional leave, stating that he had been AWOL for several days, and ordering his return to duty. ID at 2, 18; IAF, Tab 6 at 32-33. The administrative judge observed that by sending this letter to the appellant’s work address—where the appellant was not in attendance—the agency failed to inform the appellant that his request for additional leave had been denied and that he was considered AWOL. ID at 18. The administrative judge based this finding on the letter itself, which is included in the record and is addressed to the appellant’s place of work. IAF, Tab 6 at 32. On review, the agency states that the return to work letter was sent to the appellant’s home address of record, not to the appellant’s work address as indicated by the administrative judge. PFR File, Tab 1 at 2, 5-6. The agency has pointed to no record evidence in support of this claim, such as a copy of the envelope in which the letter was purportedly sent or a declaration from the individual who actually mailed the letter. The unsupported statements of the agency’s representative are insufficient to show that the administrative judge erred in this regard. See, e.g., Coffman, 2022 MSPB 18, ¶ 37 n.8 (stating that statements of a party’s representative in a pleading are not evidence); Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995) (same). 10 writing. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 546-48 (1985). An agency’s failure to provide these rights deprives a tenured employee of his property right in his employment. Id. at 546. The Board has held that to meet its obligations under Loudermill to provide advanced notice prior to effecting a removal action, an agency must make diligent and intelligent efforts such as might reasonably be adopted by one desirous of actually informing the employee. Yinat v. Department of the Army, 101 M.S.P.R. 328, ¶¶ 21-22 (2005); Givens v. U.S. Postal Service, 49 M.S.P.R. 374, 378 (1991). ¶19 Here, as found by the administrative judge, the appellant did not receive notice of his proposed removal until a day on which he came to his workplace and the agency presented him with the proposal and decision letters at the same time, with an effective date a week later. ID at 3; IAF, Tab 6 at 18-20, 22-26. Thus, the appellant did not have notice and an opportunity to respond to his proposed removal. Days later, the U.S. Postal Service returned the mailed proposal notice to the agency as undeliverable. IAF, Tab 15 at 18. The agency nevertheless proceeded to effectuate the removal action. IAF, Tab 6 at 11. The administrative judge explained that, although the agency had successfully communicated with the appellant during his Family and Medical Leave Act of 1993 protected absence via email, telephone, and text message on his Government-issued telephone, the agency sent the proposed removal exclusively to an old post office box that no longer belonged to the appellant. ID at 3, 9-12; IAF, Tab 6 at 22-25, Tab 15 at 18. Although that mailing address was apparently in one agency system, the administrative judge found that other agency systems contained different mailing addresses for the appellant. ID at 3, 9. It is undisputed that the appellant updated his address in some of the agency’s systems. ID at 3, 9 n.1. ¶20 The agency does not dispute these facts on review. PFR File, Tab 1. Instead, the agency challenges the administrative judge’s determination that the agency’s limited and unsuccessful efforts to notify the appellant of his proposed removal fell short of what was required to satisfy its due process obligations. 11 Id. at 5-7. The agency states that it acted with due diligence and that it was “unreasonable” for the administrative judge to suggest that it should have notified the appellant of his proposed removal by telephone, email, or fax. Id. at 5. The agency further argues that it was the appellant’s responsibility to update his address in the particular system the agency relied upon for mailing his proposed removal.4 Id. at 6. ¶21 We are not persuaded that the agency met its due process obligations. We agree with the agency that an employee is generally responsible for keeping his employing agency apprised of any changes in address. 5 C.F.R. § 1201.22(b)(3); see Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 5 (2014). We also acknowledge that a sealed, properly addressed letter that is deposited in the U.S. Mail with postage prepaid gives rise to a rebuttable presumption that the letter reached the addressee in due course of the mails. Geier v. Department of the Treasury, 90 M.S.P.R. 186, ¶ 6 (2001). Neither of those doctrines controls this appeal, however. The proposed removal in this case was returned to the agency as undeliverable because it was not properly addressed. IAF, Tab 15 at 18. Thus, there can be no presumption that it reached the appellant. In addition, as noted, the undisputed evidence of record shows that the appellant updated his address in some of the agency’s human resources systems. The appellant is not responsible for the agency having multiple human resources record systems containing differing addresses for the appellant that the agency failed to reconcile before sending the proposed removal to an address that was outdated. This is especially so because the agency had repeatedly and successfully communicated with the 4 In its petition for review, the agency addresses the relationship between its various online record systems for employees to update their address. PFR File, Tab 1 at 6. The agency fails to point to record evidence supporting its claims and, as stated previously, statements of a representative in a pleading are not evidence. See Coffman, 2022 MSPB 18, ¶ 37 n.8; Hendricks, 69 M.S.P.R. at 168. In any event, the agency’s arguments do not show that the administrative judge erred. 12 appellant through various other means during his absence and because the agency learned that its limited efforts of notifying the appellant of his proposed removal were unsuccessful before effectuating the removal action.5 ID at 3, 9-12; IAF, Tab 6 at 11, Tab 15 at 18. The agency’s petition for review presents no basis for disturbing the administrative judge’s finding of reprisal for whistleblowing. ¶22 Turning to the appellant’s whistleblower reprisal claim, the agency has shown no error in the initial decision. PFR File, Tab 1. When whistleblower retaliation claims are made in the context of an otherwise appealable action, as here, the appellant must prove by preponderant evidence that he made a protected disclosure or engaged in protected activity and that the disclosure or activity was a contributing factor in the personnel action at issue. Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶ 49. If the appellant makes this showing, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the personnel action absent the protected disclosure or activity. Id. If the agency fails to meet its clear and convincing evidentiary burden, the Board shall grant the appellant corrective action. 5 U.S.C. § 1221(e)(1)-(2). ¶23 The administrative judge found that the appellant presented a prima facie case of whistleblower reprisal. ID at 15-16. In particular, she first found that the appellant engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C) by reporting potential fraud to the agency’s IG. ID at 15; see Pridgen, 2022 MSPB 31, ¶ 62 (finding that disclosing information to an IG is protected). The 5 The agency asserts in its petition for review that it had no way of knowing before rendering a decision on the removal action that the appellant had not received the proposal notice. PFR File, Tab 1 at 5. However, by its own admission, the agency was aware that the proposal notice had not been received before the effective date of the removal. Id.; IAF, Tab 6 at 11, Tab 15 at 18. Thus, the agency could have rescinded the decision notice and taken steps to ensure that the appellant was provided the required due process before removing him. 13 administrative judge next found that the appellant satisfied the contributing factor criterion through the knowledge/timing test because the deciding official knew of the appellant’s protected activity and the removal action occurred approximately 13 months after the appellant’s protected activity.6 ID at 15-16; Wilson, 2022 MSPB 7, ¶ 41 (stating that the contributing factor element can be shown if the personnel action occurred within 1 to 2 years after the protected disclosure). ¶24 On review, the agency does not dispute that the appellant engaged in activity protected by 5 U.S.C. § 2302(b)(9)(C) or that it was a contributing factor in his removal. Instead, the agency states that the administrative judge’s determination that the appellant presented a prima facie case of whistleblower reprisal “is simply not relevant.” PFR File, Tab 1 at 4. We disagree with the agency’s assertion that the appellant having established a prima facie case of whistleblower reprisal is not relevant.7 Nothing in the VA Accountability Act suggests that the whistleblower protection statutes do not apply to actions taken under 38 U.S.C. § 714. See Bryant v. Department of Veterans Affairs, 26 F.4th 1344, 1345-48 (Fed. Cir. 2022) (affirming the Board’s determination on a whistleblower affirmative defense when the action was taken under section 714); Bannister v. Department of Veterans Affairs, 26 F.4th 1340, 1341-43 (Fed. Cir. 2022) (same)8; Wilson, 2022 MSPB 7, ¶¶ 4, 35-69 (granting corrective action for 6 Alternatively, as noted above, the administrative judge indicated that she would have found that the contributing factor criterion was satisfied as a sanction for the agency’s failure to comply with discovery orders. ID at 8-9, 16. 7 In support of its assertion that the appellant’s whistleblowing was not relevant, the agency appears to argue that the agency’s IG reviewed the appellant’s allegations during the summer of 2017. PFR File, Tab 1 at 4. The agency has not explained how the status of the IG’s review of the appellant’s complaint has any relevance to the question of whether the agency took a personnel action in reprisal for the complaint. 8 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510), appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any 14 whistleblower reprisal when the agency took an action under section 714). In fact, section 714(d)(5)(A) recognizes that a Board decision may be appealed to “any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B)” of 5 U.S.C. § 7703, which covers cases involving allegations of prohibited personnel practices, including reprisal for whistleblowing, described at 5 U.S.C. § 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D). ¶25 Because the administrative judge found that the appellant established a prima facie case of whistleblower reprisal, the burden shifted to the agency to establish by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s IG complaint. In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected activity, the Board will consider all of the relevant factors, including the following factors (“Carr factors”): (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who did not engage in such protected activity, but who are otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view the Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Soto, 2022 MSPB 6, ¶ 13. circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 15 ¶26 The administrative judge analyzed these factors and first found that the strength of the evidence in support of the removal action weighed only slightly in the agency’s favor, because some evidence in support of its removal action was strong but some other aspects of the evidence was weak. ID at 17-19. She next found that the agency had a significant motive to retaliate, noting that the record showed that when the appellant told his supervisor, the medical center director, that he disclosed potential fraud to the IG, she was not pleased and instructed him not to go to the IG in the future without alerting her first. ID at 19. The administrative judge concluded that, given the significant public scrutiny that the agency has been under, it was plausible that the medical center director would be frustrated that a senior-level employee, such as the appellant, would involve the IG without first notifying her. ID at 19. The agency has pointed to nothing on review causing us to question the administrative judge’s sound findings regarding the first two Carr factors. ¶27 Turning to the third Carr factor—whether the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated—the administrative judge found that the agency presented no evidence that it removed similarly situated nonwhistleblowers. ID at 20. On review, the agency argues that the administrative judge’s suggestion that other similarly situated employees would not have been removed “is pure conjecture and not true.” PFR File, Tab 1 at 4. The agency, however, points to no evidence that the administrative judge failed to consider and, as stated previously, the statements of the agency’s representative are not evidence. See Coffman, 2022 MSPB 18, ¶ 37 n.8; Hendricks, 69 M.S.P.R. at 168. Furthermore, contrary to the agency’s suggestion, it is the agency’s burden to prove that it would have taken the same action in the absence of the protected activity. Soto, 2022 MSPB 6, ¶ 18. The agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, including Carr factor three, but the absence of any evidence relating to Carr factor three can effectively remove that factor from the 16 analysis, and may well cause the agency to fail to prove its case overall. Id. The agency has presented no evidence that there were no similarly situated nonwhistleblowers.9 Thus, given the lack of evidence presented by the agency, we find that Carr factor three does not weigh in favor of the agency. Considering all of the Carr factors, we find that the agency failed to meet its burden of proving by clear and convincing evidence that it would have taken the same personnel action absent the appellant’s protected activity. ORDER ¶28 We ORDER the agency to cancel the removal and to restore the appellant effective November 28, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶29 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶30 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). 9 In Soto, we recognized that there may be situations in which there are no valid comparator employees and that this would be relevant to the Carr factor three analysis. Soto, 2022 MSPB 6, ¶ 18 n. 9. In this case, the agency has not presented such evidence. 17 ¶31 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶32 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. 18 NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204. In addition, the Whistleblower Protection Enhancement Act of 2012 authorized the award of compensatory damages including interest, reasonable expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled to receive. If you believe you are entitled to these damages, you must file a motion for consequential damages and/or compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214(f). 19 NOTICE OF APPEAL RIGHTS10 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: 10 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. 20 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 21 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 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 22 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.11 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 11 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. 23 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/SCHMITT_JOSEPH_SF_0714_18_0121_I_1_OPINION_AND_ORDER_1985139.pdf
12-12-2022	2022 MSPB 41	Percy Ledbetter	https://www.mspb.gov/decisions/precedential/LEDBETTER_PERCY_M_PH_0714_18_0119_I_1_OPINION_AND_ORDER_1985142.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 41 Docket No. PH-0714-18-0119-I-1 Percy M. Ledbetter, Appellant, v. Department of Veterans Affairs, Agency. December 12, 2022 Anthony F. Jeselnik, Esquire, Pittsburgh, Pennsylvania, for the appellant. Sara Elizabeth Aull, Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal as untimely filed. For the reasons discussed below, we DENY the petition for review and AFFIRM the initial decision as MODIFIED by this Opinion and Order to clarify the analysis of the Board’s authority to waive or toll the filing deadline of an appeal filed under 38 U.S.C. § 714, still dismissing the appeal as untimely filed. 2 BACKGROUND ¶2 Effective November 8, 2017, the agency removed the appellant from his Housekeeping Aid Supervisor position in its Pittsburgh Healthcare System under the authority of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (2017) (codified at 38 U.S.C. § 714). Initial Appeal File (IAF), Tab 15 at 13, Tab 18 at 11. In its decision letter, the agency advised the appellant that he could file an appeal with the Board challenging the removal decision no later than 30 calendar days after the effective date of the action or 30 calendar days after his receipt of the decision, whichever was later.1 IAF, Tab 15 at 15. The appellant acknowledged receipt of the decision on November 8, 2017, the same day as the effective date of his removal. IAF, Tab 15 at 17, Tab 18 at 11. The appellant filed the present appeal on December 22, 2017. IAF, Tab 1. ¶3 After holding the requested hearing on the merits of the removal action, the administrative judge issued a show cause order, indicating that it appeared that the appellant did not timely file his appeal. IAF, Tab 21 at 1, Tab 24, Hearing Audio. She acknowledged that the agency incorrectly advised the appellant that he had 30 calendar days—as opposed to the 10 business days set forth in 38 U.S.C. § 714—to file his Board appeal. IAF, Tab 21 at 1-2. She noted, however, that the appellant filed the appeal 14 days after the incorrect later deadline set by the agency. Id. at 2. As a result, she afforded the appellant an opportunity to demonstrate good cause for the delay in filing. Id. at 2-3. The appellant responded to the show cause order, and the agency submitted a reply to the appellant’s response. IAF, Tabs 22-23. 1 In the appeal rights section of the decision letter, the agency referred to the adverse action as a demotion rather than as a removal, which appears to be an oversight. IAF, Tab 15 at 15. 3 ¶4 After consideration of the pleadings, the administrative judge issued an initial decision, dismissing the appeal as untimely filed. IAF, Tab 25, Initial Decision (ID). She found that the issue of Board jurisdiction, including the timeliness of an appeal, is always before the Board and may be raised by either party, or sua sponte by the Board, at any time. ID at 3. She also found that, based on the language of the statute, it did not appear that the time limit for filing an appeal under 38 U.S.C. § 714 could be waived upon a showing of good cause for the delay. Id. She further found that an agency’s incorrect statement concerning appeal rights does not confer jurisdiction over an appeal, and that, even if equitable estoppel could apply to allow the filing within the 30 calendar days provided by the agency, his appeal was filed 14 days beyond that incorrect deadline. Id. She dismissed the appellant’s arguments that the timeliness requirement should be waived because neither the agency, nor the Board, raised the timeliness issue until the hearing and because the agency was not prejudiced by his late filing. ID at 3-4. She found that, other than his pro se status, the appellant offered no justification for his untimely filing and that, even using a 30-day filing period, his 14-day delay was not minimal. ID at 4. Accordingly, she dismissed the appeal. ID at 5. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition. PFR File, Tab 3. ANALYSIS The appellant’s appeal was untimely filed. ¶6 Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension.” A “covered individual” is an individual occupying a position at the agency, with four exceptions not relevant here. See 38 U.S.C. § 714(h)(1)(A)-(D). Such individual may appeal to 4 the Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C. § 714(c)(4)(A). However, an appeal “may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension.” 38 U.S.C. § 714(c)(4)(B). ¶7 Here, the effective date of the appellant’s removal was November 8, 2017. IAF, Tab 18 at 11. Under 38 U.S.C. § 714(c)(4)(B), his appeal was due on or before November 24, 2017.2 The appellant filed his appeal on December 22, 2017, and, thus, his appeal was untimely filed by 28 calendar days. IAF, Tab 1; see 38 U.S.C. § 714(c)(4)(B). The remaining question, therefore, is whether the Board may waive or toll this statutory deadline. There is no basis to waive or toll the filing deadline. ¶8 The Board has enumerated the following three bases for waiving a filing deadline prescribed by statute or regulation: (1) the statute or regulation itself specifies circumstances in which the time limit will be waived; (2) an agency’s affirmative misconduct precludes it from enforcing an otherwise applicable deadline under the doctrine of equitable estoppel, unless the application of equitable estoppel would result in the expenditure of appropriated funds in contravention of statute; and (3) an agency’s failure to provide a mandatory notice of election rights warrants the waiver of the time limit for making the election. See Blaha v. Office of Personnel Management, 106 M.S.P.R. 265, ¶ 8 (2007); Speker v. Office of Personnel Management, 45 M.S.P.R. 380, 385 (1990), aff’d, 928 F.2d 410 (Fed. Cir. 1991) (Table), and modified by Fox v. Office of Personnel Management, 50 M.S.P.R. 602, 606 n.4 (1991). The Board also has recognized that the doctrine of equitable tolling may be available under certain 2 In calculating the deadline, we excluded weekends and the following two holidays that fell within the filing period: Veterans Day and Thanksgiving Day. 5 circumstances to toll a statutory deadline in an untimely filed appeal. See Wood v. Department of the Air Force, 54 M.S.P.R. 587, 593 (1992). ¶9 Here, the first and the third bases for waiving the deadline are controlled by the language of the statute itself. As to the first basis for waiver, under 38 U.S.C. § 714(c)(4)(B), an appeal of a removal, demotion, or suspension of more than 14 days must be made “not later than 10 business days after” the effective date of the action. In setting this deadline, Congress made no provision for the acceptance of late filings. Appeals filed under section 714, therefore, are unlike petitions for review of initial decisions, in which Congress specifically provided for an extension of the time limit “for good cause shown.” 5 U.S.C. § 7701(e)(1). Thus, we find that the statutory time limit for filing an appeal under 38 U.S.C. § 714 cannot be waived under the first basis because Congress did not provide for it. See Wood, 54 M.S.P.R. at 592 (concluding that the time limit for filing an individual right of action (IRA) appeal cannot be waived for good cause shown because the Whistleblower Protection Act (WPA) did not provide for the acceptance of late filings). ¶10 As to the third basis for waiver, 38 U.S.C. § 714 does not require the agency to notify its employees of their election rights or any filing deadlines associated with those elections. Moreover, the Board has not promulgated regulations governing appeals under the VA Accountability Act and, thus, there is no regulatory notice requirement. Therefore, because the agency was under no obligation to provide the appellant with a notice of election rights, the third basis for waiver is inapplicable here. See Speker, 45 M.S.P.R. at 385-86 (finding that the Office of Personnel Management’s failure to notify an appellant of her right to elect an alternative annuity did not form a basis for waiving a filing deadline when the applicable statute and regulations in effect at the time did not require it to provide such notice). ¶11 Although the statutory filing deadline prescribed by 38 U.S.C. § 714 cannot be waived under the first or the third basis, the deadline potentially could be 6 subject to equitable estoppel (the second basis for waiver) or equitable tolling. See Wood, 54 M.S.P.R. at 592-93. Both doctrines allow a statutory deadline to be excused based on equitable considerations. See, e.g., id.; Speker, 45 M.S.P.R. at 385. However, the application of equitable relief to excuse a statutory deadline may not always be available against the Government. See Kirkendall v. Department of the Army, 479 F.3d 830, 836-37 (Fed. Cir. 2007) (en banc); Frazer v. United States, 288 F.3d 1347, 1352-53 (Fed. Cir. 2002); RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998). ¶12 The U.S. Supreme Court has held that there is a rebuttable presumption that the doctrine of equitable tolling can be invoked in certain circumstances to excuse an untimely filed lawsuit against the Government. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Such circumstances include situations in which an appellant “has actively pursued his judicial remedies by filing a defective pleading during the statutory period” or when the appellant “has been induced or tricked by his adversary’s misconduct into allowing the deadline to pass.” Id. at 96; see Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014). The requirements for equitable estoppel are “even more stringent,” requiring affirmative misconduct by the Government. Frazer, 288 F.3d at 1353-54; see Perez Peraza v. Office of Personnel Management, 114 M.S.P.R. 457, ¶ 9 (2010) (explaining that, to prove a claim of equitable estoppel, a party must show affirmative misconduct and reasonable reliance on the misconduct to that party’s detriment). Given that the requirements to establish equitable tolling are less stringent than the requirements to establish equitable estoppel, we analyze whether the appellant meets the lower burden of establishing that equitable tolling is warranted under the circumstances. ¶13 The doctrine of equitable tolling does not extend to mere “excusable neglect.” Wood, 54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96). Moreover, equitable tolling is a rare remedy that is to be applied in unusual circumstances and generally requires a showing that the appellant has been pursuing his rights 7 diligently and some extraordinary circumstances stood in his way. Heimberger, 121 M.S.P.R. 10, ¶ 10. Here, the appellant cannot meet this burden. On review, he argues that an equitable exception should apply to excuse the untimely filing of his appeal because of the significant burden he assumed in pursuing his appeal through a hearing on the merits of his removal. PFR File, Tab 1 at 5. However, he has not alleged either that he pursued his rights diligently during the statutory filing period or that he was induced or tricked by the agency’s misconduct into allowing the deadline to pass. See Heimberger, 121 M.S.P.R. 10, ¶ 10. Indeed, he has not set forth any explanation for his untimely filing. We note that, although the agency provided the appellant an incorrect statement of the deadline to file a Board appeal—advising him that he had 30 calendar days as opposed to the 10 business days prescribed by the statute—he filed his appeal 14 days beyond the incorrect date set by the agency. IAF, Tab 1, Tab 15 at 15, 17, Tab 18 at 11. Under these circumstances, we find that the appellant has not demonstrated that he acted with due diligence in pursuing his appeal or that any extraordinary circumstances stood in the way of his timely filing. See Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶ 12 (2009) (finding the application of equitable tolling unwarranted when the appellant’s failure to file a timely complaint was a result of his own lack of due diligence in preserving his legal rights). Thus, even if equitable relief is available under 38 U.S.C. § 714, the appellant would be ineligible to receive it. ¶14 Regarding the availability of equitable relief to excuse an untimely filed appeal under 38 U.S.C. § 714, we are inclined to believe that equitable tolling is available under appropriate circumstances given our reviewing court’s analysis in Kirkendall, 479 F.3d at 836-43, which concluded that appeals filed under the Veterans Employment Opportunities Act of 1998 are subject to equitable tolling. However, as set forth above, the appellant here has alleged no facts that would bring him within the doctrine of equitable tolling. Therefore, we need not, and do not, decide whether equitable exceptions may be invoked in appropriate 8 circumstances to excuse an untimely filed appeal under 38 U.S.C. § 714. See 5 U.S.C. § 1204(h) (providing that the Board is prohibited from issuing advisory opinions); see also Wood, 54 M.S.P.R. at 593 (concluding that the Board need not decide whether the doctrine of equitable tolling could be applied in IRA appeals brought under the WPA because the appellant did not allege any facts to bring him within the doctrine). The administrative judge did not abuse her discretion. ¶15 In his petition for review, the appellant alleges that the administrative judge abused her discretion when she dismissed the appeal as untimely filed after holding a hearing on the merits of his removal. PFR File, Tab 1 at 4-5. In justifying the dismissal, the administrative judge stated that the issue of whether the Board has jurisdiction over an appeal, including whether an appeal was timely filed, is always before the Board and may be raised by either party, or sua sponte by the Board, at any time during the appeal process. ID at 3. We disagree with the statement that the timeliness of an appeal is a jurisdictional issue, as we have held that statutory time prescriptions before the Board are not jurisdictional.3 See Heimberger, 121 M.S.P.R. 10, ¶ 13 (citing Kirkendall, 479 F.3d at 842). Nevertheless, because the deadline for filing an appeal under 38 U.S.C. § 714 is statutory and the appellant has not shown any basis for waiving or tolling the 3 It is understandable that the administrative judge may have believed that the time prescription here was jurisdictional given that our reviewing court has held that certain time prescriptions are jurisdictional, including the 60-day time limit for filing an appeal of a final Board decision pursuant to 5 U.S.C. § 7703(b)(1)(A). See Fedora v. Merit Systems Protection Board, 848 F.3d 1013, 1014-17 (Fed. Cir. 2017). In Fedora, the U.S. Court of Appeals for the Federal Circuit found that, pursuant to the U.S. Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205, 209, 212-13 (2007), statutory time periods for filing an appeal to an Article III court are “mandatory and jurisdictional,” and are not subject to equitable tolling. Fedora, 848 F.3d at 1015. However, the Board is not an Article III court, and we discern no basis to deviate from precedent and conclude that the time prescription set forth in 38 U.S.C. § 714(c)(4)(B) is jurisdictional. See Heimberger, 121 M.S.P.R. 10, ¶ 13 (citing Kirkendall, 479 F.3d at 842). 9 statutory deadline, the administrative judge did not have the discretion to waive or toll the filing deadline once she discovered it was untimely filed. See Heimberger, 121 M.S.P.R. 10, ¶¶ 9, 12 (stating that the appeal must be dismissed as untimely filed when there is an insufficient basis to waive or toll the statutory filing deadline). Therefore, although unfortunate that the administrative judge did not address the apparent untimeliness of the appeal prior to concluding a hearing on the merits, we find that she did not abuse her discretion in doing so. ORDER ¶16 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 RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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. 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 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: 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 11 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 12 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 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). 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 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/LEDBETTER_PERCY_M_PH_0714_18_0119_I_1_OPINION_AND_ORDER_1985142.pdf
12-06-2022	2022 MSPB 39	Rommie Requena	https://www.mspb.gov/decisions/precedential/REQUENA_ROMMIE_DA_0752_16_0012_I_3_OPINION_AND_ORDER_1983485.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 39 Docket No. DA-0752-16-0012-I-3 Rommie Requena, Appellant, v. Department of Homeland Security, Agency. December 6, 2022 Benjamin Wick, Esquire and Holly V. Franson, Esquire, Denver, Colorado, for the appellant. Grant Gardner, Laredo, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that dismissed the appeal of her 30-day suspension and change in position under 5 U.S.C. § 7701 for lack of Board jurisdiction based on a prior election of remedies. For the reasons set forth in this Opinion and Order, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the appeal to the regional office for further adjudication. 2 BACKGROUND ¶2 On October 14, 2014, the agency issued the appellant a decision notice suspending her for 30 days and changing her position from Chief Supervisory Customs and Border Protection Officer to Supervisory Customs and Border Protection Officer due to various acts of alleged misconduct.1 Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-0012-I-1, Initial Appeal File (IAF), Tab 1 at 56-59. The action was to take effect on October 26, 2014. Id. at 57. The notice advised the appellant of her appeal rights and stated in relevant part that if she alleged that the action was taken in reprisal for whistleblowing, then she must elect among filing an appeal with the Board under 5 U.S.C. § 7701, filing an appeal through an applicable negotiated grievance procedure if she was a member of a bargaining until, or seeking corrective action by filing a complaint with the Office of Special Counsel (OSC). Id. at 57-58. The notice added that an election would be based upon where the appellant first filed and that if she first sought corrective action with OSC, any subsequent appeal to the Board would be deemed an individual right of action (IRA) appeal, meaning the Board only would consider the claim of reprisal for whistleblowing. Id. at 58. ¶3 When the agency issued the decision notice, the appellant had at least one whistleblower reprisal complaint pending with OSC. Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-0012-I-2, Appeal File (I-2 AF), Tab 8 at 12. On October 16, 2014, the appellant contacted OSC and inquired whether she needed to file a new complaint regarding the 30-day suspension and change in position, as she claimed that the agency was taking 1 In the decision notice, the agency characterized the change in positions as a demotion. Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-0012- I-1, Initial Appeal File, Tab 1 at 57. As discussed below, the exact nature of the agency action against the appellant must be addressed on remand. 3 these actions in reprisal for her whistleblowing. Id. at 12, 14. OSC advised the appellant that she need not file a new complaint, as the allegation would be considered in her ongoing complaint. Id. at 12. On October 19, 2014, the appellant asked OSC to investigate the agency’s motives behind the suspension and change in position. I-2 AF, Tab 4 at 33, 40. The appellant requested that OSC seek a stay of that disciplinary action on October 23, 2014. Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-1, Initial Appeal File (W-1 IAF), Tab 6 at 19. OSC did so and the agency agreed to an informal stay. IAF, Tab 5 at 19; W-1 IAF, Tab 6 at 21. ¶4 On September 17, 2015, the agency advised the appellant that the stay was over and the 30-day suspension and change in position would take effect, which it did on September 20, 2015. IAF, Tab 1 at 55. On October 7, 2015, the appellant filed an appeal with the Board under 5 U.S.C. § 7701 contesting the 30-day suspension and change in position.2 IAF, Tab 1. The appellant raised affirmative defenses, but did not include a whistleblower reprisal claim in this appeal. IAF, Tab 19 at 4. ¶5 After receiving notice from OSC that it closed her complaint regarding the 30-day suspension and change in position, the appellant proceeded to file an IRA appeal with the Board on August 8, 2016.3 W-1 IAF, Tab 1 at 1-6, 60-62. The administrative judge joined the two appeals for adjudication, though this joinder 2 The Board docketed this appeal as MSPB Docket No. DA-0752-16-0012-I-1. The appeal was dismissed without prejudice on two occasions and automatically refiled. I-2 AF, Tab 1 at 1-3, Tab 2 at 1-2; Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-0012-I-3, Appeal File (I-3 AF), Tab 1 at 1-3, Tab 4 at 1-2. 3 The Board docketed this appeal as MSPB Docket No. DA-1221-16-0488-W-1. The appeal was dismissed without prejudice on two occasions and automatically refiled. Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-0488- W-2, Appeal File, Tab 1 at 1-3, Tab 2 at 1-2; Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-3, Appeal File, Tab 1 at 1-3, Tab 4 at 1-2. 4 would only be temporary.4 IAF, Tab 46 at 1-2; infra ¶ 6. It appeared that the appellant elected to seek corrective action with OSC over the 30-day suspension and change in position before filing either of her Board appeals. For this reason, the administrative judge issued a jurisdictional order on the election of remedies provision in 5 U.S.C. § 7121(g), directing the parties to respond to the order to determine whether the Board had jurisdiction over the appeal of the suspension and change in position under 5 U.S.C. § 7701, or as an IRA appeal. IAF, Tab 45 at 3-6. ¶6 After both parties responded to the order, the administrative judge issued an initial decision dismissing this appeal for lack of Board jurisdiction. I-2 AF, Tabs 4, 8-9; Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-0012-I-3, Appeal File (I-3 AF), Tab 27, Initial Decision (I-3 ID) at 1-14. The administrative judge found that, after receiving notice of her election rights, the appellant made a knowing and informed binding election to seek corrective action with OSC for the 30-day suspension and change in position prior to filing an appeal with the Board. I-3 ID at 1-14. As a result, the administrative judge concluded that the appellant could only proceed before the Board with an IRA appeal of the suspension and change in position. I-3 ID at 13; Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16- 0488-W-3, Appeal File (W-3 AF), Tab 30 at 2 n.3. As noted, such an IRA appeal was pending with the administrative judge at the time of the initial decision in 4 The administrative judge advised the parties to file pleadings for the joined appeals under MSPB Docket No. DA-1221-16-0488-W-1. IAF, Tab 46 at 2. The parties also were advised that the records of the previous appeals may be referred to throughout the adjudication of the joined appeals. I-2 AF, Tab 2 at 1; I-3 AF, Tab 4 at 1; Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-2, Appeal File, Tab 2 at 1; Requena v. Department of Homeland Security, MSPB Docket No. DA- 1221-16-0488-W-3, Appeal File, Tab 4 at 1; see McLaughlin v. Office of Personnel Management, 62 M.S.P.R. 536, 549 (1994) (noting that the administrative judge incorporated the record from previous Board appeals of the appellant into the record of the current appeal), aff’d, 47 F.3d 1181 (Fed. Cir. 1995) (Table). 5 this appeal and, although he did not specifically address the matter, by issuing the separate initial decision, the administrative judge effectively severed the previously joined appeals.5 The appellant’s petition for review followed. Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16- 0012-I-3, Petition for Review (PFR) File, Tab 1. The agency responded in opposition and the appellant filed a reply. PFR File, Tabs 4-5. ANALYSIS6 ¶7 Under the 1994 amendments to the Whistleblower Protection Act, an employee subjected to an action appealable to the Board who alleges that the contested action was taken in reprisal for whistleblowing may elect to pursue a remedy through only one of the following remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable negotiated grievance procedure; or (3) a complaint seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222. 5 U.S.C. § 7121(g); Johnson v. Department of Veterans Affairs, 121 M.S.P.R. 695, ¶ 6 (2014), aff’d, 611 F. App’x 496 (10th Cir. 2015); see 5 C.F.R. § 1209.2(d)(1). If an employee first elects to timely file an appeal with the Board under 5 U.S.C. § 7701 after being subjected to an action under chapters 43 or 75 of Title 5 of the United States Code, the burden of proof is on the agency to provide evidentiary support for its decision. See 5 U.S.C. § 7701(c)(1); 5 C.F.R. § 1201.56(a), (b); see also Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 11 (2010). An employee also may raise affirmative defenses, to include a claim that the action appealable to the Board 5 The appellant’s IRA appeal has also come before the Board on petition for review. See Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16- 0488-W-3, Petition for Review File, Tabs 5, 9. We have addressed that appeal in a separate decision. 6 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 6 was taken in reprisal for whistleblowing. See 5 U.S.C. § 7701(c)(2)(B); Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 11 (2016). This is because 5 U.S.C. § 7701(c)(2)(B) states that an adverse or a performance-based action appealable to the Board may not be sustained if it is shown “that the decision was based on any prohibited personnel practice described in [5 U.S.C. §] 2302(b).” Section 2302(b)(8) prohibits reprisal against an employee for making a whistleblowing disclosure, while section 2302(b)(9) prohibits reprisal for engaging in protected activity. The process is similar when an employee elects to file a grievance under an applicable negotiated grievance procedure, assuming such procedure provides for resolving affirmative defenses. 5 U.S.C. § 7121(g); Jones v. Department of Justice, 87 M.S.P.R. 91, ¶ 3 (2000) (noting that the appellant raised whistleblower reprisal as an affirmative defense to his removal before an arbitrator); see Jones v. Department of Energy, 120 M.S.P.R. 480, ¶¶ 3-8 (2013) (recognizing that not all negotiated grievance procedures permit affirmative defenses, such as discrimination allegations), aff’d, 589 F. App’x 972 (Fed. Cir. 2014). ¶8 In contrast to the scenarios discussed above, if an employee who is subjected to an action otherwise appealable to the Board and claims whistleblower reprisal first elects to seek corrective action with OSC regarding the agency action, any subsequent appeal to the Board on the matter is limited to an IRA appeal, resolving the claim of reprisal for whistleblowing disclosures and activities and nothing else. Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 16 (2016); Thompson v. Department of Justice, 61 M.S.P.R. 364, 367 (1994); 5 C.F.R. § 1209.2(c), (d)(2). The remedy first sought by an aggrieved employee is deemed an election of that procedure and precludes pursuing the matter in other fora. Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 12 (2015). ¶9 The administrative judge applied these limitations to find that the instant appeal must be dismissed for lack of jurisdiction, due to the appellant’s prior 7 election of remedies, i.e., her whistleblower reprisal complaint with OSC. I-3 ID at 6-13. For the reasons discussed below, we vacate the initial decision and remand this appeal for the administrative judge to determine whether the appellant is subject to the election of remedies limitations. ¶10 The controlling election of remedies statute applies to “[a]n aggrieved employee affected by” certain prohibited personnel practices. 5 U.S.C. § 7121(g)(1)-(2). But Title 5 includes multiple distinct definitions of the term “employee.” One, at 5 U.S.C. § 2105(a), is applicable to all of Title 5, “except as otherwise provided . . . or when specifically modified.” This provision defines an “employee” as an “officer and an individual who is (1) appointed in the civil service by one” of the types of individuals enumerated in the statute acting in their official capacity; “(2) engaged in the performance of a Federal function under authority of law or an Executive act;” and (3) subject to the supervision of an authorized official while engaged in the performance of the duties of his position. 5 U.S.C. § 2105(a); see Poole v. Department of the Army, 117 M.S.P.R. 516, ¶ 16 (2012); Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 16 (2011); Special Counsel v. Perkins, 104 M.S.P.R. 148, ¶ 14 (2006). ¶11 Another definition of “employee,” found at 5 U.S.C. § 7103(a), is written more narrowly. In relevant part, this provision defines an “employee” for purposes of chapter 71 of Title 5 as including “an individual employed in an agency,” but not “a supervisor or a management official.” 5 U.S.C. § 7103(a)(2); see 5 U.S.C. § 7103(a)(10)-(11) (defining supervisor and management official).7 This is particularly relevant because the election of remedies statute for “an 7 Title 5, section 7511(a)(1) sets out yet another, different definition of “employee” that applies specifically to Title 5, chapter 75, subchapter II. See, e.g., Bryant v. Department of the Army, 2022 MSPB 1, ¶ 8 (discussing the definition of “employee” for purposes of adverse action appeal rights to the Board under chapter 75 of Title 5). 8 aggrieved employee” falls within chapter 71 and is, therefore, subject to this narrower definition of “employee” than the general definition in 5 U.S.C. § 2105(a). 5 U.S.C. § 7121(g). As a consequence, “supervisors” and “management officials” are excepted from the election of remedies provisions described in 5 U.S.C. § 7121(g).8 ¶12 The U.S. Court of Appeals for the Federal Circuit recognized this very issue while the instant appeal was pending on review. In a nonprecedential decision, the court vacated a Board initial decision that had dismissed an individual’s chapter 75 appeal for lack of jurisdiction due to her prior pursuit of the same matter with OSC. Kammunkun v. Department of Defense, 800 F. App’x 916, 917 (Fed. Cir. 2020).9 The court explained that the individual at issue was a “supervisor,” so she was not bound by the election of remedies provisions in 5 U.S.C. § 7121(g), or the associated regulatory provision at 5 C.F.R. § 1209.2(d). Id. ¶13 We recognize that the Board’s regulatory provision, 5 C.F.R. § 1209.2(d), discusses the election of remedies requirements in the statute, 5 U.S.C. § 7121(g), without expressly mentioning the applicable definition of “employee” found at 5 U.S.C. § 7103(a)(2). Nevertheless, like the court in Kammunkun, we find that 5 C.F.R. § 1209.2(d) must be interpreted as applying only to individuals who meet the definition of employee found at 5 U.S.C. § 7103(a)(2). ¶14 We also recognize that the Board previously has issued decisions that did not address how 5 U.S.C. § 7103(a)(2) excepts supervisors and management officials from the election of remedies provisions of 5 U.S.C. § 7121(g). For 8 “The starting point in interpreting a statute is its language; for ‘[i]f the intent of Congress is clear, that is the end of the matter.” Good Samaritan Hospital v. Shalala, 508 U.S. 402, 409 (1993). 9 The Board may follow a nonprecedential decision of a court when it finds its reasoning persuasive, as we do here. Edwards v. Department of Labor, 2022 MSPB 9, ¶ 16 n.6. 9 example, the Board implied that certain appellants were subject to section 7121(g), despite appearing to be supervisors or management officials. See, e.g., Corthell, 123 M.S.P.R. 417, ¶¶ 2, 15-17 (applying section 7121(g) to a Supervisory Criminal Investigator); Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶¶ 2, 12-13 (2013) (applying section 7121(g) to a Supervisory Bowling Facility Manager). To the extent that these or any similar decisions find that the election of remedies statute of 5 U.S.C. § 7121(g) is applicable to supervisors and management officials, they are hereby overruled. ¶15 In the instant matter, it is undisputed that the appellant held the position of Chief Supervisory Customs and Border Protection Officer prior to the 30-day suspension and change in position to Supervisory Customs and Border Protection Officer that she challenged in the instant appeal. E.g., IAF, Tab 1 at 56-57, Tab 5 at 5. While proposing and effectuating those actions, the agency alluded to the appellant as holding a “supervisory position” and “high-level supervisory position.” E.g., IAF, Tab 1 at 56-57, Tab 5 at 21. These descriptors suggest that the appellant is a “supervisor,” as defined by 5 U.S.C. § 7103(a)(10), rather than an “employee,” as defined by 5 U.S.C. § 7103(a)(2). If that is so, the appellant is not subject to the election of remedies provisions of 5 U.S.C. § 7121(g). However, the nature of the appellant’s position as it relates to this statutory scheme was not argued below or on review. We therefore find it appropriate to remand this appeal for further proceedings. ¶16 On remand, the administrative judge should first give the parties an opportunity to present argument and evidence about the nature of the appellant’s position. If the administrative judge determines that the appellant is a “supervisor or a management official,” and not an “employee” for purposes of chapter 71, subject to the election of remedies provisions at 5 U.S.C. § 7121(g), he must then determine whether the Board otherwise has jurisdiction over this appeal. If the administrative judge finds that the appellant has established jurisdiction, he should develop the record and adjudicate the appeal on the 10 merits.10 In a remand decision, the administrative judge should include a new jurisdictional determination and a decision on the merits, as appropriate. ORDER ¶17 For the reasons discussed above, we GRANT the petition for review, VACATE the initial decision, and REMAND this appeal to the Dallas Regional Office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/______________________________ Jennifer Everling Acting Clerk of the Board Washington, D.C. 10 As noted, the agency suspended the appellant for 30 days and assigned her to a different position, which in the decision notice the agency characterized as a demotion. IAF, Tab 1 at 57. While a determination of whether the appellant suffered an appealable reduction in grade or pay is not necessary to establish the Board’s jurisdiction because a 30-day suspension is an appealable action pursuant to 5 U.S.C. § 7512(2), on remand the administrative judge should determine the precise nature of the agency’s action.	https://www.mspb.gov/decisions/precedential/REQUENA_ROMMIE_DA_0752_16_0012_I_3_OPINION_AND_ORDER_1983485.pdf	Issuance Date: December 6, 2022 Appeal Type: Election of Remedy ELECTION OF REMEDY The appellant appealed a notice suspending her for 30 days and changing her position from Chief Supervisory Customs and Border Protection Officer to Supervisory Customs and Border Protection Officer. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant made a binding election to pursue her claims before the Office of Special Counsel (OSC) and was therefore precluded from challenging the actions before the Board pursuant to the procedures set forth in 5 U.S.C. § 7701. The appellant filed a petition for review. Holding: Because the appellant was a supervisor, the election of remedies provisions found at 5 U.S.C. § 7121(g) did not apply and the appellant is permitted to challenge the 30-day suspension and change in her position before OSC and with the Board pursuant to the procedures set forth in 5 U.S.C. § 7701. 1. Pursuant to 5 U.S.C. § 7121(g), an employee subjected to an action appealable to the Board who alleges that the contested action was taken in reprisal for whistleblowing may elect to pursue a remedy through only one of the following remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable negotiated grievance procedure; or (3) a complaint seeking corrective action from OSC. Generally, whichever option the appellant selects first is a binding election. 2. Supervisors and management officials are excepted from the election of remedies provisions described in 5 U.S.C. § 7121(g). 3. The Board overruled several prior Board decisions to the extent they found that the election of remedies statute at 5 U.S.C. § 7121(g) is applicable to supervisors and management officials. 4. The Board remanded the appeal for further adjudication on the merits. COURT DECISIONS PRECEDENTIAL:
11-29-2022	2022 MSPB 38	John Doe	https://www.mspb.gov/decisions/precedential/DOE_JOHN_NY_4324_15_0127_A_1_OPINION_AND_ORDER_1981380.pdf	Department of State	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 38 Docket No. NY-4324-15-0127-A-1 John Doe, Appellant, v. Department of State, Agency. November 29, 2022 Brian J. Lawler, Esquire, San Diego, California, for the appellant. Marianne Perciaccante, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the addendum initial decision, which awarded him $49,385 in attorney fees. For the reasons discussed below, we DENY the petition for review and AFFIRM the addendum initial decision. BACKGROUND ¶2 The appellant filed an appeal under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA), asserting that the agency failed to afford him differential pay during a period in which he was absent from his position due to 2 active military duty. Doe v. Department of State, MSPB Docket No. NY-4324- 15-0127-I-1, Initial Appeal File (IAF), Tab 1 at 8-11.1 Throughout the proceedings, the appellant was represented by an attorney who practices in San Diego, California. Id. at 6; Doe v. Department of State, MSPB Docket No. NY-4324-15-0127-A-1, Attorney Fees File (AFF), Tab 1 at 23, 26-27. The attorney-client agreement between the appellant and his attorney does not reflect an hourly rate. AFF, Tab 1 at 29-31. Instead, the agreement states that the attorney was entitled to one-third of any recovery made before hearing.2 Id. at 29. If the appellant did not recover anything, neither would his attorney under the terms of the agreement. Id. ¶3 In her initial decision, the administrative judge found that the appellant was entitled to differential pay during the relevant time period, and she granted the appellant’s request for corrective action under USERRA. Doe v. Department of State, MSPB Docket No. NY-4324-15-0127-I-2, Appeal File (I-2 AF), Tab 9, Initial Decision at 3-5. Neither party filed a petition for review. The appellant then filed a motion for attorney fees under 38 U.S.C. § 4324(c)(4), which permits the Board to award reasonable attorney fees under USERRA. AFF, Tab 1. In a declaration submitted with the request, the appellant’s attorney described his experience in Federal district and circuit courts. Id. at 21-24. He indicated that his current hourly rate for USERRA litigation is $650 per hour, Federal district courts in California generally had found that fee to be a reasonable hourly rate for a law firm partner, and a Federal district court in California awarded him this 1 The appellant included with his appeal a motion to proceed anonymously. IAF, Tab 1 at 16-19. The agency did not oppose the appellant’s motion, and the administrative judge granted it. IAF, Tab 6. 2 Because the appellant withdrew his hearing request during the merits phase of the appeal, provisions in the agreement related to a hearing are inapplicable. Doe v. Department of State, MSPB Docket No. NY-4324-15-0127-I-2, Appeal File, Tab 4. 3 rate.3 Id. at 23-24, 40-41. In a second declaration, another practicing attorney averred that the rate of $650 per hour was reasonable for someone of the appellant’s attorney’s experience, reputation, and USERRA expertise practicing in San Diego. Id. at 15-16. In doing so, he referenced rates charged by attorneys practicing in Federal district court. Id. at 15. The appellant also includes the sworn declaration of a professional contact, who averred to the expertise of the appellant’s attorney in USERRA matters but did not express an opinion regarding a reasonable hourly rate. Id. at 19-20. ¶4 The administrative judge issued an addendum initial decision finding that the 116.2 hours of work that the appellant’s attorney claimed was reasonable. AFF, Tab 9, Addendum Initial Decision (AID) at 5. However, she found that his claimed hourly rate of $650 was not reasonable for a San Diego attorney practicing before the Board, even one with the appellant’s attorney’s qualifications. AID at 3-5. Instead, she found that $425 was a reasonable hourly rate. Id. In reaching this conclusion, she reviewed fees awarded in recent addendum initial decisions to attorneys practicing in the San Diego area, which ranged from $325 to $425 per hour. AID at 4. ¶5 The appellant has filed a petition for review, in which he contends that the administrative judge erred in reducing his attorney’s hourly rate, arguing that he prevailed on the only issue in his USERRA appeal, and that “but for [his] counsel’s renowned expertise in this nuanced area of law, the [a]ppellant would not have been awarded the differential pay to which he is entitled.” Attorney Fees Petition for Review (AFPFR) File, Tab 1 at 4. The agency has responded to the petition for review. AFPFR File, Tab 3. 3 The appellant’s attorney is the principal of Pilot Law, P.C. AFF, Tab 1 at 21. 4 ANALYSIS ¶6 In situations like the one before us, in which an individual files a direct USERRA appeal with the Board, the administrative judge has discretion to award “reasonable attorney fees” if the Board issues an order requiring the agency to comply with USERRA. 38 U.S.C. § 4324(b), (c)(2), (4); Jacobsen v. Department of Justice, 103 M.S.P.R. 439, ¶¶ 8-9, 12 (2006), aff’d, 500 F.3d 1376 (Fed. Cir. 2007). In calculating what constitutes “reasonable attorney fees” under various statutes, the Board has found that the most useful starting point is to multiply the hours reasonably spent on the litigation by a reasonable hourly rate. Guy v. Department of the Army, 118 M.S.P.R. 45, ¶¶ 7-9 (2012) (discussing how to calculate fees under 5 U.S.C. § 1221(g) in an individual right of action appeal); Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶¶ 7, 10 (2011) (applying this formula to a request for fees under 5 U.S.C. § 7701(g)(1) in a chapter 75 adverse action appeal). This is referred to as the “lodestar” method for calculating fees. Driscoll, 116 M.S.P.R. 662, ¶ 10. We find that the lodestar method is appropriate for calculating fees under USERRA. See City of Burlington v. Dague, 505 U.S. 557, 561-62 (1992) (explaining that the lodestar method applies to all Federal fee-shifting statutes that provide for the award of reasonable attorney fees). The administrative judge found that the appellant was entitled to fees and that the 116.2 hours claimed by the appellant’s attorney was reasonable. AID at 2-3, 5-6; AFF, Tab 1 at 11-12, Tab 7 at 8-9. Neither party challenges these findings on review and we decline to disturb them. However, the appellant disputes the administrative judge’s finding that $425 was a reasonable hourly rate. AFPFR File, Tab 1. ¶7 The appellant bears the burden of showing that the requested fees were reasonable. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 15 (2015). To do so, he is required to provide evidence of his attorney’s customary rate and that the rate was consistent with the prevailing rate for similar services in the community in which the attorney ordinarily practices, including a copy of any 5 fee agreement between the appellant and his attorney. Id.; 5 C.F.R. § 1201.203(a)(2)-(3); see 5 C.F.R. § 1208.15(b) (explaining that USERRA fee requests are adjudicated under the procedures in 5 C.F.R. §§ 1201.201-.205). An appellant’s agreement to pay a specific fee for legal services rendered in a Board appeal creates a rebuttable presumption that the agreed-upon fee is the maximum reasonable fee that may be awarded. Martinez v. U.S. Postal Service, 89 M.S.P.R. 152, ¶ 18 (2001). Here, the appellant submitted a copy of the contingency-fee retainer agreement he entered into with his attorney, but the agreement does not indicate an hourly rate. AFF, Tab 1 at 29-31. Thus, we agree with the administrative judge that the retainer agreement is not helpful in establishing the proper hourly rate. AID at 4. ¶8 Accordingly, we must look to other evidence to determine the appropriate hourly rate—specifically, the attorney’s customary rate and whether that rate was consistent with the prevailing rate for similar services in the community in which the attorney ordinarily practices. Caros, 122 M.S.P.R. 231, ¶ 15; Krape v. Department of Defense, 97 M.S.P.R. 430, ¶ 14 (2004); 5 C.F.R. § 1201.203(a)(3); see Practices and Procedures, 64 Fed. Reg. 72,040, 72,041 (Dec. 23, 1999) (explaining that amendments to 5 C.F.R. § 1201.203(a)(3) were intended to ensure that an attorney received the billing rate for the location where he ordinarily practices). Here, the administrative judge found that the relevant geographic community was the San Diego area, where the appellant’s attorney regularly practices. AID at 4-5. Neither party disputes this finding on review, and we decline to disturb it. ¶9 The appellant provided evidence that his attorney’s customary billing rate for similar services in Federal district court is $650 per hour. AFF, Tab 1 at 23-24, 40-41. He also provided evidence that this fee is consistent with fees awarded to other San Diego-based attorneys litigating USERRA claims in Federal district courts in California. Id. at 15-16. He argues that the administrative judge improperly looked at rates awarded in non-USERRA cases and narrowed the 6 relevant community for purposes of determining reasonable fees to attorneys practicing before the Board. AFPFR File, Tab 1 at 5-8. The appellant also appears to suggest that the administrative judge discounted his attorney’s expertise. Id. at 6. ¶10 We agree with the administrative judge’s finding that fees awarded in comparable Board litigation most accurately reflect the prevailing community rate for similar services in the community in which the attorney ordinarily practices. AID at 3-5; 5 C.F.R. § 1201.203(a)(3). As the U.S. Supreme Court has observed, calculating fees by looking at “prevailing market rates in the relevant community” most closely approximates what an attorney billing at his hourly rate would receive “in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (internal quotations omitted). We find that a “comparable case” in this matter is a Board case.4 ¶11 Although the appellant argues that the administrative judge improperly looked at attorney fee rates awarded in non-USERRA Board litigation, he has not provided any evidence of fee awards that reflect hourly rates paid to San Diego area attorneys in USERRA appeals before the Board. AFPFR File, Tab 1 at 6. The administrative judge properly considered Board cases involving the hourly rates for attorneys in the San Diego area. See Caros, 122 M.S.P.R. 231, ¶ 15; 5 C.F.R. § 1201.203(a)(3); AID at 4 (citing Achenbach v. Department of the Navy, MSPB Docket No. SF-0752-14-0704-A-1, Addendum Initial Decision at 2, 5 (June 13, 2016) (finding $325 to be a reasonable hourly rate in an action to enforce a settlement agreement); Forte v. Department of the Navy, MSPB Docket 4 In so finding, we do not exclude the possibility in other matters that litigation in other fora, including Federal district court, may be comparable in other instances. We disagree with the administrative judge that Federal district court litigation is inherently more complex, or that discovery, motions practice, and trial work garners a different rate than record review. However, here, the attorneys briefed a single legal issue which was decided on the record. AID at 4; I-2 AF, Tabs 4, 7-8; AFF, Tab 1 at 26-27. 7 No. SF-0752-14-0761-A-1, Addendum Initial Decision at 1-2, 6 (June 10, 2016) (awarding $425 per hour to experienced counsel in an appeal of a 30-day suspension); Alhajjar v. Department of Homeland Security, MSPB Docket No. SF-0752-14-0025-A-1, Addendum Initial Decision at 2, 7 (April 17, 2015) (finding $350 per hour was a reasonable rate for an attorney litigating a removal appeal)).5 To the extent that the USERRA issue in this appeal was more complex than the cases considered by the administrative judge, we presume that this complexity is reflected in the number of hours charged. See Perdue, 559 U.S. at 553. Moreover, in a recent USERRA attorney fees matter involving the same attorney as in the instant case, a Board administrative judge determined that the reasonable hourly rate for his services was $425. Marquiz v. Department of Defense, MSPB Docket No. SF-4324-15-0099-A-1, Addendum Initial Decision at 10-11 (Aug. 31, 2017).6 ¶12 We further find that the administrative judge appropriately considered the appellant’s attorney’s USERRA expertise. AID at 3. The appellant relies on the administrative judge’s failure to specifically mention that a professional contact of the appellant’s attorney declared that he performed “outstanding” work and was a “national authority” on USERRA. AFPFR File, Tab 1 at 6; AFF, Tab 1 at 19. However, the administrative judge’s award of $425 per hour, the highest among the awarded rates that she reviewed, demonstrates that she adequately considered his expertise. AID at 4-5; see Marques v. Department of Health & 5 The appellant’s attorney indicates that he was unable to read these attorney fees decisions because the Board restricts nonparties’ access to “files in which they are not personally involved.” PFR File, Tab 1 at 6. However, addendum initial decisions such as those cited by the administrative judge are available on subscription services widely used in the legal profession. Further, the public may request copies of initial decisions under the Freedom of Information Act. U.S. Merit Systems Protection Board, Freedom of Information Act – Requester Service Center, https://mspb.gov/foia/request.htm (last visited Nov. 29, 2022). 6 A petition for review in Marquiz is currently pending before the Board. 8 Human Services, 22 M.S.P.R. 129, 132 (1984) (declining to find that the presiding official’s failure to mention all of the evidence meant that she did not consider it), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). ¶13 For the first time on review, the appellant argues that the Board should consider that a different agency agreed to pay the appellant’s attorney $650 per hour in an “identical differential pay case[].” AFPFR File, Tab 1 at 8. The fact that a different agency in another case agreed to pay a lump sum to resolve a dispute concerning attorney fees is not particularly illuminating regarding whether the attorney’s claimed hourly rate underlying that lump sum was reasonable. An agency’s decision to settle such a matter may be based on myriad considerations which are unrelated to the reasonableness of the attorney’s hourly rate. Although the initial decision dismissing the attorney fees matter as settled was issued 1 week after the initial decision in this case, and therefore it is new evidence, it is not of sufficient weight to warrant a different outcome here. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). ¶14 The main issues with the fee petition are that (1) the attorney did not include his hourly rates in his retainer agreement with the clients, (2) he failed to present evidence of similar cases before the Board in which other attorneys with similar experience received his claimed rate, and (3) he failed to demonstrate that he received similar rates in Board litigation. Accordingly, we affirm the administrative judge’s finding that the appellant has established that he is entitled to an award of reasonable attorney fees in the amount of $49,385. ORDER ¶15 We ORDER the agency to pay the attorney of record $49,385 in fees. The agency must complete this action no later than 20 days after the date of this decision. See generally Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204(a)(2)). 9 ¶16 We also ORDER the agency to tell the appellant and the attorney 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. We ORDER the appellant and the attorney to provide all necessary information that the agency requests to help carry out the Board’s Order. The appellant and the attorney, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶17 No later than 30 days after the agency tells the appellant or the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that issued the initial decision on this appeal, if the appellant or the attorney believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant or the attorney 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). ¶18 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 RIGHTS7 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 7 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 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: 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 11 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 12 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 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.8 The court of appeals must receive your 8 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. 13 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. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 14 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/DOE_JOHN_NY_4324_15_0127_A_1_OPINION_AND_ORDER_1981380.pdf	Issuance Date: September 23, 2014 Appeal Type: Interlocutory Appeal Action Type: Removal Standard to Certify Interlocutory Review Scope of Hearing in Security Clearance Adverse Actions Difference Between “Harmful Procedural Error” and “Not in Accordance With Law” Analysis Procedure in Determining Harmful Procedural Error The appellant appealed his removal from his position based on his failure to maintain his eligibility to hold a Special-Sensitive, Level 4 position, which required access to classified information. The administrative judge found that the charges were functionally equivalent to a security clearance determination, and affirmed the removal. The appellant appealed the decision to the Board, and the Board reversed, based on its finding that the agency failed to apply its internal procedures regarding his eligibility for access to classified information. The Board then remanded the matter to the agency to provide the appellant with his rights under the agency’s internal procedures. However, the Board declined to rule on the petitioner’s affirmative defenses that the revocation of his security clearance was discriminatory. After the remand, the agency reversed its negative determination on the appellant’s access to classified information, and the appellant filed a new appeal with the Board shortly thereafter. During the new proceeding, the administrative judge ruled that the hearing would be limited to whether the agency committed harmful procedural error in removing the appellant prior to the agency’s internal review of his loss of access to classified information. The appellant objected, and filed a motion to expand the scope of the hearing to include consideration of his affirmative defenses, and a determination of whether the agency’s action was not in accordance with law. The administrative judge denied the motion, but then granted the appellant’s motion to certify the issue for interlocutory review by the Board. Holding: The Board affirmed the ruling, vacated the order staying the proceedings, and returned the case to the regional office for further processing. 1. The Board found that recent developments in case law related to adverse actions based on security clearance determinations justified its further consideration of whether to consider the appellant’s affirmative defenses. 2. Certification for interlocutory review was proper due to the lack of guidance in the area of adverse actions based on security clearance determinations. 3. In accordance with its recent reaffirmation of its pre-Gargiulo case law, the Board affirmed the administrative judge’s decision to decline to expand the scope of the hearing to include the appellant’s affirmative defenses. 4. The administrative judge properly declined to hear the appellant’s claim that his removal was not in accordance with law, because the matter should be analyzed under a harmful procedural error standard. 5. On remand, the administrative judge is allowed to determine whether harmful procedural error occurred without holding a hearing.
11-15-2022	2022 MSPB 37	Mark Abernathy	https://www.mspb.gov/decisions/precedential/ABERNATHY_MARK_DC_1221_14_0364_W_1_OPINION_AND_ORDER_1977979.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 37 Docket No. DC-1221-14-0364-W-1 Mark Abernathy, Appellant, v. Department of the Army, Agency. November 15, 2022 Mark Abernathy, Hermitage, Tennessee, pro se. Tracy A. Allred, APO, AE, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has petitioned for review of an initial decision that dismissed his individual right of action (IRA) appeal for lack of jurisdiction. The agency has cross-petitioned for review. For the reasons that follow, we GRANT the appellant’s petition for review, DENY the agency’s cross petition for review, VACATE the initial decision, and REMAND the appeal for further adjudication consistent with this Opinion and Order. 2 BACKGROUND ¶2 The appellant worked for the agency as a contractor. Initial Appeal File (IAF), Tab 1 at 15. In August 2012, he filed a complaint with the agency’s Office of Inspector General (OIG) alleging that agency officials had misappropriated funds. IAF, Tab 6 at 3. Later in 2012, he learned that he was not being selected for a position with the agency.1 IAF, Tab 1 at 15. The appellant filed a complaint with the Office of Special Counsel (OSC) alleging that his nonselection was in reprisal for his protected disclosure to OIG.2 Id. at 11-24. After OSC informed the appellant of the results of its investigation he filed this IRA appeal. IAF, Tab 1 at 1-5, 25-27. ¶3 In response to a show cause order issued by the administrative judge, the agency argued that the Board lacks jurisdiction over the appeal. IAF, Tab 10. The agency argued that the appellant’s disclosure was not protected under 5 U.S.C. § 2302(b)(8) because he was neither an employee, nor an applicant, at the time he made it. IAF, Tab 10 at 6. The agency also argued that the failure to refer the appellant to the selecting official for the position in question was not a “personnel action” that could form the basis of an IRA appeal. Id. at 7. ¶4 The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She rejected the agency’s argument regarding the nonreferral to the selecting official, finding that the appellant had alleged a failure to appoint him, which is a personnel action 1 Both the agency and the administrative judge stated that the open period for this vacancy announcement was in September 2014. IAF, Tab 10 at 6, Tab 11, Initial Decision at 3. However, this was a typographical error. The vacancy announcement reflects that it was actually open in September 2012. IAF, Tab 10 at 11. 2 The appellant indicated in his initial appeal that he filed his OSC complaint in April 2013, IAF, Tab 1 at 5, but it appears that he actually filed it in December 2012, see id. at 21-22 (OSC complaint form dated December 12, 2012), or January 2013, see id. at 25 (OSC letter indicating that the complaint was received on January 3, 2013). Nonetheless, the exact filing date has no bearing on our decision. 3 under 5 U.S.C. § 2302(a). ID at 5-6. However, she agreed with the agency that the appellant’s disclosure to OIG was not protected because he was not an employee or applicant at the time he made it. ID at 6. ¶5 The appellant has filed a timely petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. He argues that the administrative judge’s interpretation of the statutory language, under which an individual must be an employee or applicant at the time of his disclosure to qualify for protection against reprisal, greatly limits the protections available to applicants. Id. at 4. The agency has responded in opposition to the petition for review. PFR File, Tab 3. The agency has also cross-petitioned for review, arguing that the administrative judge erred in finding that the appellant alleged a covered personnel action. Id. at 6. ¶6 After the close of the record on review, the Board invited interested parties to submit amicus briefs addressing whether disclosures made when an individual is neither a Federal employee, nor an applicant for Federal employment, are protected under the Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103 Stat. 16, and the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. Notice of Opportunity to File Amicus Briefs, 81 Fed. Reg. 2913 (Jan. 19, 2016); PFR File, Tab 6. Four individuals and entities, including OSC, have filed briefs in response. PFR File, Tabs 7-10.3 OSC subsequently requested and received permission to file an additional pleading. PFR File, Tabs 12, 14. In its additional pleading, OSC argues that a provision of the National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA), Pub. L. No. 115-91, 131 Stat. 1283, resolved the question on which the Board invited amicus briefs by specifically providing that a disclosure made before an individual was appointed to a position or applied for 3 Amicus briefs were received from OSC, the National Employment Lawyers Association, Walsh & Son, LLP, and Peter Broida. 4 appointment may be protected. PFR File, Tab 15. The Board gave the parties an opportunity to respond to OSC’s additional pleading, PFR File, Tab 14, but neither party did so. ANALYSIS ¶7 To establish the Board’s jurisdiction over this IRA appeal, the appellant must have exhausted his administrative remedies before OSC and make nonfrivolous allegations that: (1) he made a disclosure protected under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).4 There is no dispute that the appellant exhausted his administrative remedies before OSC. IAF, Tab 1 at 11-27. For the reasons set forth below, we find that the appellant has also made the required nonfrivolous allegations to establish jurisdiction over his IRA appeal. The appellant has nonfrivolously alleged that he made a protected disclosure under 5 U.S.C. § 2302(b)(8). ¶8 At the time all of the material events in this matter occurred, 5 U.S.C. § 2302(b)(8) protected: (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, 4 All of the material events in this matter occurred before the expansion of IRA appeal rights in the WPEA took effect on December 27, 2012. WPEA, Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476; Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6 (2014). Thus, in this case, we will apply the pre-WPEA standards concerning the scope of an IRA appeal. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 7 (2016); Colbert, 121 M.S.P.R. 677, ¶¶ 6-7. 5 if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or (B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences— (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.] 5 U.S.C.A. § 2302(b)(8) (2008).5 The question before us is whether, under that provision, the Board may have jurisdiction to consider the appellant’s whistleblower reprisal claim even though he was not a Federal employee or applicant for employment at the time he made his disclosure. ¶9 In Greenup v. Department of Agriculture, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), the Board found that it had jurisdiction over the appellant’s claim that the agency failed to select her for a position in retaliation for disclosures she made when she was neither an employee nor an applicant. The Board in Greenup quoted the language of 5 U.S.C. § 2302(b)(8)(A), including the reference to a “disclosure of information by an employee or applicant,” but nevertheless found that the statute does not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment. Greenup, 106 M.S.P.R. 202, ¶ 8. In Weed v. Social Security Administration, 113 M.S.P.R. 221, ¶¶ 8-12 (2010), the Board again held that, at the time of 5 The WPEA amended the definition at 5 U.S.C. § 2302(b)(8)(A)(i) by striking “a violation” and inserting “any violation,” and it amended 5 U.S.C. § 2302(b)(8)(B)(i) by striking “a violation” and inserting “any violation (other than a violation of this section).” WPEA, Pub. L. No. 112-199, § 101(a)(1), 126 Stat. 1465. We find that these amendments do not change the result in this case. See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 n.3 (2013). 6 making a disclosure, an individual need not be an employee or applicant for employment at the agency that took the alleged retaliatory action in order to qualify for protection under the WPA as a whistleblower. The Board cited its prior holding in Greenup in support of its holding in Weed. Id., ¶ 12. ¶10 In this case, the Board requested amicus briefs addressing whether it should reconsider its precedent in light of an apparent conflict with three nonprecedential cases by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).6 The amici unanimously urged the Board to follow its existing precedent. PFR File, Tab 7 at 2-3, Tab 8 at 7-16, Tab 9 at 4-6, Tab 10 at 22. Having considered the submissions of the parties and amici, we see no reason to overrule our precedent in Greenup and Weed. Under that precedent, the appellant’s disclosures are not excluded from whistleblower protection simply because he was neither a Federal employee, nor an applicant for employment, when he made them. We stress that this holding is not limited to Federal contractors, but 6 Specifically, the Board observed that Greenup and Weed appear to conflict with the Federal Circuit’s decisions in Nasuti v. Merit Systems Protection Board, 376 F. App’x 29, 33-34 (Fed. Cir. 2010); Guzman v. Office of Personnel Management, 53 F. App’x 927, 929 (Fed. Cir. 2002); and Amarille v. Office of Personnel Management, 28 F. App’x 931, 933 (Fed. Cir. 2001). However, nonprecedential decisions of the Federal Circuit are not binding on the Board. Weed v. Social Security Administration, 110 M.S.P.R. 468, ¶ 11 (2009). Further, under 5 U.S.C. § 7703(b)(1)(B): A petition to review a final order or final decision of the Board that 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 (b)(9)(A)(i), (B), (C), or (D) shall be filed in the [Federal Circuit] or any court of appeals of competent jurisdiction. Thus, it is possible that the Board’s decision in such a case would be reviewed not by the Federal Circuit, but instead by a different court of appeals. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10 n.6. 7 applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.7 ¶11 In its additional pleading, OSC argues that a provision in the NDAA for Fiscal Year 2018 (2018 NDAA), Pub. L. No. 115-91, § 1097(c)(1)(B)(i)(III), 131 Stat. 1283, 1618 (2017), which went into effect after the close of the record on review, should be applied in this case. PFR File, Tab 15. That provision states that a disclosure shall not be excluded from protection under 5 U.S.C. § 2302(b)(8) because “the disclosure was made before the date on which the individual was appointed or applied for appointment to a position.” 5 U.S.C. § 2302(f)(1)(F). OSC argues that this provision clarifies existing law and should therefore be applied to all pending cases. PFR File, Tab 15 at 2-3. ¶12 The new statutory language confirms the Board’s interpretation of the prior statutory language, as set forth in Greenup, and therefore the result is the same 7 Employees of contractors have additional whistleblower protections under 41 U.S.C. § 4712, which provides: An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant. 41 U.S.C. § 4712(a)(1). The recourse for such a violation is to submit a complaint to the Inspector General of the relevant agency, who will either determine that the complaint does not warrant investigation or investigate the complaint and submit a report to the head of the agency. 42 U.S.C. § 4712(b)(1)-(2). The head of the agency will then determine whether there is a sufficient basis to conclude that reprisal for whistleblowing took place, and issue an order denying or granting relief accordingly. 42 U.S.C. § 4712(c)(1). Upon exhaustion of remedies with the head of the agency, the aggrieved employee may appeal the matter to Federal district court. 42 U.S.C. § 4712(c)(2). 8 regardless of whether we apply the new statutory language. Under both Greenup and the 2018 NDAA, the appellant’s disclosure to OIG before he was an applicant for employment may be protected whistleblowing if it otherwise meets the requirements of 5 U.S.C. § 2302(b)(8). Therefore, we need not determine whether to apply this particular 2018 NDAA provision to this or any other pending cases. ¶13 At the jurisdictional stage, the appellant is burdened only with making a nonfrivolous allegation that he reasonably believed that his disclosure evidenced a violation of one of the circumstances described in 5 U.S.C. § 2302(b)(8). Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 8 (2013). The proper test for determining whether an individual had a reasonable belief that his disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the individual could reasonably conclude that the actions evidenced a violation of law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). See Schoenig, 120 M.S.P.R. 318, ¶ 8. The appellant’s disclosure to OIG involved the purchase of video equipment with funds designated for Overseas Contingency Operations (OCO). IAF, Tab 1 at 25, Tab 6 at 3. The appellant believed that the purchase violated acquisition regulations because the equipment was to be used for purposes other than OCO. IAF, Tab 6 at 3. We find that the appellant has nonfrivolously alleged that he reasonably believed he was disclosing a violation of a regulation. See Kutty v. Department of Housing & Urban Development, 96 M.S.P.R. 590, ¶¶ 7-11 (2004) (finding a nonfrivolous allegation of a protected disclosure when the appellant disclosed her belief that her supervisor had violated acquisition regulations). The appellant has nonfrivolously alleged that his disclosure was a contributing factor in a personnel action. ¶14 On cross petition for review, the agency argues that its failure to refer the appellant to the selecting official in connection with the position for which he 9 applied is not a “personnel action” for purposes of the Board’s IRA jurisdiction. PFR File, Tab 3 at 6. We disagree. An appointment is among the personnel actions specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(A)(i). We agree with the administrative judge that the appellant has made a nonfrivolous allegation that the agency’s failure to refer him to the selecting official constitutes the failure to appoint him for purposes of the Board’s jurisdiction over his IRA appeal. ID at 5-6; see Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 6 (2012) (stating that an allegation of a failure to appoint is an allegation of a failure to take a personnel action). ¶15 To satisfy the contributing factor criterion at the jurisdictional stage in an IRA appeal, an appellant need only raise a nonfrivolous allegation that the fact or content of the protected disclosure was one factor that tended to affect the personnel action in any way. Mudd, 120 M.S.P.R. 365, ¶ 10. One way to establish this criterion is the knowledge-timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. The Board has held that personnel actions occurring within 1 to 2 years after the protected disclosures are sufficient to meet the timing portion of the test. Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 41. The knowledge portion of the knowledge-timing test can be met with allegations of either actual or constructive knowledge. See Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). An appellant may establish an official’s constructive knowledge of a protected disclosure by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Dorney, 117 M.S.P.R. 480, ¶ 11. 10 ¶16 The appellant alleges that the Deputy Director, who was both one of the subjects of his disclosure and the selecting official for the position for which he had applied, informed the appellant in September 2012 that he was not going to select the appellant because he had become “too confrontational.” IAF, Tab 6 at 3. This alleged conversation took place the month after the appellant made his disclosure to OIG. Id. The appellant alleges that he learned of his nonreferral 3 days later. Id. We find that the appellant’s allegations are sufficient to meet the contributing factor criterion under the knowledge-timing test at the jurisdictional stage. ORDER ¶17 Having found that the appellant has met his jurisdictional burdens, we remand this case to the regional office for further adjudication8 in accordance with this Opinion and Order. If the appellant establishes the elements of his claim by preponderant evidence, the Board will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have taken 8 The record reflects that the parties in this case are in Europe and the United States, and that the appellant did not request a hearing. The appellant, who is pro se, should be advised on remand that an in-person hearing is not required and that a hearing may be conducted by either video conferencing or by telephone. See 5 U.S.C. § 7701(a)(1); Koehler v. Department of the Air Force, 99 M.S.P.R. 82, ¶¶ 6-13 (2005). 11 the same personnel action9 absent the disclosure. Weed, 113 M.S.P.R. 221, ¶ 23. The agency will have an opportunity to make that showing on remand. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 9 It appears that the appellant also raised three other vacancy announcements for which he applied, and for which no selections were made, before OSC. IAF, Tab 1 at 26. It is not entirely clear from the appellant’s submissions below whether he is attempting to raise those nonselections as additional personnel actions in this IRA appeal. IAF, Tab 6. On remand, the administrative judge should clarify whether the appellant is raising additional personnel actions in addition to the nonreferral discussed herein.	https://www.mspb.gov/decisions/precedential/ABERNATHY_MARK_DC_1221_14_0364_W_1_OPINION_AND_ORDER_1977979.pdf
11-07-2022	2022 MSPB 36	George Haas	https://www.mspb.gov/decisions/precedential/HAAS_GEORGE_DA_0752_17_0304_I_1_OPINION_AND_ORDER_1975839.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 36 Docket No. DA-0752-17-0304-I-1 George Haas, Appellant, v. Department of Homeland Security, Agency. November 7, 2022 Robert Glazer, Houston, Texas, for the appellant. Judith M. Ubando, Esquire and Valerie Barnett, Houston, Texas, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision in this appeal, which affirmed his removal. For the reasons discussed below, we DENY the petition for review. We MODIFY the initial decision to apply the proper standards for the agency’s charge and the appellant’s equal employment opportunity (EEO) reprisal claim, VACATE the administrative judge’s finding regarding recurrence of the appellant’s symptoms, and otherwise AFFIRM the initial decision. 2 BACKGROUND ¶2 The following facts, as set forth in the initial decision and the record, are undisputed. Initial Appeal File (IAF), Tab 36, Initial Decision (ID). The appellant was employed as a Customs and Border Protection Officer (CBPO), a position that has medical standards. ID at 2; IAF, Tab 8 at 129-38, 148-62. He worked at the Port of Houston Airport, processing passengers as they arrived from outside the United States. ID at 2; IAF, Tab 8 at 129-38, 148-62. For many years, the appellant worked exclusively in the “Primary Inspection” area, which involves the initial questioning of passengers and inspection of their documents. ID at 2, 28 n.11. On May 6, 2015, the agency assigned him to work part of his day in “Hard Secondary,” which is the second step in the screening process for passengers who require additional questioning. ID at 2-3. ¶3 The appellant objected to working in Hard Secondary, stating, as relevant here, that doing so would violate his medical restrictions. ID at 3-5. He sent an email to the agency’s EEO office and one of his managers, asserting that he had a disability “which is permanent and limits and servilely [sic] interferes with a major life function.” IAF, Tab 8 at 115-16. The email quickly came to the attention of the Port Director, who instructed the appellant to provide medical documentation about his ability to perform his duties. Id. at 108-10, 114; ID at 4-5. At the same time, the agency revoked the appellant’s authority to carry a Government-issued firearm. IAF, Tab 8 at 111-12; ID at 5. When the appellant provided documentation reflecting a diagnosis of bipolar disorder, the agency deemed it insufficient to determine whether he met the medical requirements of his position. IAF, Tab 8 at 98-107; ID at 5-6. Therefore, the agency ordered him to attend first a medical fitness-for-duty examination and then a psychiatric independent medical evaluation (IME), in August and October 2015, respectively. ID at 6-8. ¶4 The IME psychiatrist agreed with the appellant’s diagnosis of bipolar disorder and found the appellant was not symptomatic at the time of the 3 examination. IAF, Tab 8 at 28-29. However, he expressed concern that, when symptomatic, the appellant could exhibit “impairment in judgment . . . [and] insight, impulsivity, delusions, hallucinations, severe depression with suicidal thoughts and impaired cognition.” Id. at 29. The IME psychiatrist stated that, in these circumstances, the appellant would be unable to make the “quick decisions required in law enforcement situations to protect the lives of self, the public and other law enforcement personnel.” Id. ¶5 In December 2015, after receiving the results of the IME, the agency concluded that the appellant was unable to perform the essential functions of his position, with or without accommodation. Id. at 14, 16-18, 63-64; ID at 8. The agency searched for vacant funded positions over the following months but only found ones outside his local commuting area at lower grade levels. ID at 8. The agency offered these positions to the appellant, who declined them. Id. In August 2016, the agency offered the appellant the options of resigning, applying for retirement, or requesting assistance searching for reassignment to another agency, but the appellant failed to respond. Id. ¶6 In October 2016, the Port Director proposed the appellant’s removal for inability to perform the essential duties of a CBPO. Id.; IAF, Tab 8 at 4-8. He stated that certain limitations on scheduling identified by the IME psychiatrist did not affect any essential function of the CBPO position. IAF, Tab 8 at 5. However, he identified other restrictions, such as the appellant’s inability to exercise proper judgment, carry a firearm, or protect himself or others in law enforcement situations if his bipolar disorder were symptomatic, as rendering him unable to perform the essential functions of his position. Id. at 5-6. ¶7 The next month, the appellant responded to the proposed removal. ID at 8. At that time, the deciding official and the appellant agreed to search once again for any vacant positions to which he could be reassigned. Id. In January 2017, the agency located such a position, but the appellant rejected it 2 months later. ID at 9. Ultimately, in April 2017, the deciding official removed the appellant for 4 inability to perform the essential functions of his position. Id.; IAF, Tab 7 at 27-33. ¶8 The appellant filed the instant appeal, challenging his removal. IAF, Tab 1. After developing the record and holding his requested hearing, the administrative judge issued an initial decision that affirmed the removal. ID at 1, 35; IAF, Tab 1 at 2. She found that the agency met its burden of proving the charge. ID at 9-15. She considered whether new medical evidence presented by the appellant showed that he had recovered sufficiently to perform his duties, but found that it did not. ID at 15-18. She further found that the appellant failed to prove his affirmative defenses of disability discrimination, ID at 18-27, reprisal for protected EEO activity, ID at 27-29, and harmful procedural error, ID at 29-34. Finally, the administrative judge found that the agency met its burden of proving nexus between the appellant’s inability to perform his duties and the efficiency of the service and that removal was reasonable. ID at 34-35. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS Because the appellant’s removal was not based solely on his medical history, 5 C.F.R. § 339.206 does not set forth the agency’s burden to prove its charge. ¶9 The agency based the appellant’s removal on a charge of “inability to perform the essential duties of a [CBPO].” IAF, Tab 8 at 4. In the lone specification underlying the charge, the agency asserted that the appellant was “unable to safely, efficiently or reliably perform the essential duties of a [CBPO].” Id. The agency explained that the duties of the CBPO position included, inter alia, carrying a firearm, performing apprehensions and arrests, exercising sound judgment, maintaining mental alertness at all times, and functioning under dynamic and stressful conditions in which there are concerns for national security and threats of terrorism. Id. at 6. The proposal further 5 explained that medical documentation indicated that his bipolar disorder could result in emotional instability and impaired cognition. Id. at 5, 29. ¶10 Though not raised by either party, we modify the initial decision to the extent that the administrative judge relied on 5 C.F.R. § 339.206 to analyze the agency’s charge. IAF, Tab 24 at 3; ID at 9; see 5 C.F.R. § 1201.115(e) (providing that although the Board normally will consider only issues raised by the parties on review, it reserves the authority to consider any issue in an appeal before it). We take this opportunity to clarify the proper standard for the removal of an employee from a position with medical standards, such as the CBPO, based on a current medical condition that impacts his ability to safely and efficiently perform the core duties of his position. ¶11 As relevant here, 5 C.F.R. § 339.206 provides that an employee may not be removed from a position subject to medical standards “solely on the basis of medical history.”1 The regulation provides an exception only if the condition itself is disqualifying, recurrence “is based on reasonable medical judgment,” and the position’s duties are such that a recurrence “would pose a significant risk of substantial harm to the health and safety of the . . . employee or others that cannot be eliminated or reduced by reasonable accommodation or any other agency efforts to mitigate risk.”2 This regulation does not define the meaning of the term 1 For the sake of simplicity, this decision will exclusively refer to positions with medical standards, but the regulation also applies to positions subject to “physical requirements” and those “under medical evaluation programs.” 5 C.F.R. § 339.206. 2 Effective March 21, 2017, five months after the agency proposed the appellant’s removal but weeks before its effective date, the Office of Personnel Management amended 5 C.F.R. § 339.206 as to the degree of risk required. 5 C.F.R. § 339.206 (indicating an effective date of March 21, 2017); Medical Qualification Determinations, 82 Fed. Reg. 5340-01, 5346-47, 5352 (Jan. 18, 2017) (Final Rule), 82 Fed. Reg. 10959-01 (delaying the effective date of the Final Rule to March 21, 2017). The previous version required only a “reasonable probability of substantial harm.” 5 C.F.R. § 339.206 (2017). Because we find, as discussed below, that the regulation does not apply to the agency’s charge here, we need not address whether the changes to the regulation apply retroactively. 6 “medical history.” However, 5 C.F.R. part 339 contains a provision stating that a “history of . . . medical condition(s) . . . includ[es] references to findings from previous examinations, treatment, and responses to treatment.” 5 C.F.R. § 339.104(1). This explanation of medical history suggests that such a history exists when the employee’s medical records indicate that he was examined or treated for the medical condition in question. ¶12 Similarly, the dictionary defines “history” to include “an account of a patient’s medical background.” Merriam-Webster’s Collegiate Dictionary 549 (10th ed. 2002). Further, the Office of Personnel Management (OPM) expressed the intent that actions covered by 5 C.F.R. part 339 comply with the nondiscrimination provisions of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990, as amended. 5 C.F.R. § 339.103(a). The ADA defines disability to include a “record of . . . an impairment,” as distinct from having a current impairment. 42 U.S.C. § 12102(1)(A), (B). The ADA’s implementing regulations provide that an individual has a record of impairment if he “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k). Given these definitions, we find that a removal is based solely on medical history if the only basis for concluding that the employee is medically unable to perform the core duties of his position is the fact that his medical records reflect that, at some time in the past, he was classified as having, was examined for, or was treated for the medical condition or impairment in question. ¶13 Contrary to our current finding and beginning with Lassiter v. Department of Justice, 60 M.S.P.R. 138, 141-42, 146 (1993), the Board applied 5 C.F.R. § 339.206 to all cases in which an appellant who was subject to medical standards was removed for medical inability to perform his position. It applied this standard regardless of whether an appellant’s medical history was the sole basis for his removal. For example, in Lassiter, the Board recognized that the appellant 7 had not shown that he had been cured of his delusional paranoid disorder, which had been the basis for his removal. 60 M.S.P.R. at 145-46 & n.3. It nonetheless found that 5 C.F.R. § 339.206 represented the proper standard for the agency’s charge because the appellant occupied a position subject to medical standards. 60 M.S.P.R. at 141-42. In making this finding, however, the Board failed to cite or consider the regulatory requirement that the appellant’s removal be “solely on the basis of medical history.” See id.; 5 C.F.R. § 339.206. ¶14 Following Lassiter, the Board continued to apply the same standard to cases involving present medical inability to perform. See Sanders v. Department of Homeland Security, 122 M.S.P.R. 144, ¶¶ 2, 11-16, 18-19 (applying the standard in 5 C.F.R. § 339.206 when an appellant was removed based on his inability to perform his duties due to an existing medical condition, rather than his medical history), aff’d per curiam, 625 F. App’x 549 (Fed. Cir. 2015); Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶¶ 4, 8 (2014) (applying 5 C.F.R. § 339.206 when an appellant was removed based not only on her medical history but also on current physical restrictions affecting her ability to perform her job duties); Slater v. Department of Homeland Security, 108 M.S.P.R. 419, ¶¶ 6-7, 13-17 (2008) (finding that 5 C.F.R. § 339.206 applied to the removal of an employee due to his current diabetes-related polyneuropathy, which caused his inability to perform his duties safely and efficiently without undue risk of harm to self or others). These cases continued the error of applying 5 C.F.R. § 339.206 to a charge of inability to perform involving current medical conditions. We overrule this line of cases to the extent that the Board applied 5 C.F.R. § 339.206 to a charge of medical inability when the appellant was removed based on his current medical condition or impairment. ¶15 For cases involving a charge of inability to perform that do not fall under 5 C.F.R. § 339.206, the agency must prove either a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may 8 result in injury to himself or others. Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 5 (2014); Fox v. Department of the Army, 120 M.S.P.R. 529, ¶¶ 24-25 (2014).3 The Board has otherwise described the standard as requiring that the agency establish that the appellant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position. Clemens, 120 M.S.P.R. 616, ¶ 5; Fox, 120 M.S.P.R. 529, ¶ 24. ¶16 The determination of whether the Clemens standard or the standard under 5 C.F.R. § 339.206 applies may well be outcome determinative in some cases. If section 339.206 is applied, an agency must prove that recurrence of the condition poses “a significant risk of substantial harm to the health and safety of the . . . employee or others that cannot be eliminated or reduced by reasonable accommodation or any other agency efforts to mitigate risk.” Supra ¶ 11 & n.2. Here, the parties agree that the appellant has bipolar disorder. E.g., IAF, Tab 7 at 36-38, Tab 8 at 28, 103. Although the appellant was “asymptomatic” at the time of his removal, the parties agree that he had this medical condition when he was removed. E.g., IAF, Tab 7 at 36-38, Tab 8 at 28, 103. In removing the appellant, the agency cited to his bipolar disorder as causing him to be unable to carry a weapon or perform other functions related to law enforcement. IAF, Tab 8 at 6. If the standard from 5 C.F.R. § 339.206 were applied to the instant appeal, the agency would be required to prove that recurrence would pose a risk of harm, even though, as discussed below, the appellant’s removal was not 3 In both Fox and Clemens, the Board rejected the application of Slater, 108 M.S.P.R. 419, ¶¶ 6-7, 13-17, and 5 C.F.R. § 339.206 because the employees at issue did not occupy positions with medical standards. Clemens, 120 M.S.P.R. 616, ¶ 4; Fox, 120 M.S.P.R. 529, ¶ 24. But in doing so, those decisions suggested that the general standard for inability to perform could not apply to positions with medical standards. Clemens, 120 M.S.P.R. 616, ¶ 4; Fox, 120 M.S.P.R. 529, ¶ 25. Our decision in the instant appeal finds otherwise. Therefore, the caveat alluded to in Clemens and Fox—that the employee does not occupy a position with medical standards or physical requirements or that is subject to medical evaluation programs in order for the general standard to apply—is no longer operative. 9 solely based on his medical history of bipolar disorder, but also on his present inability to perform his core duties. IAF, Tab 7 at 28, 30-31, Tab 8 at 5-7. ¶17 The appellant argues, in essence, that his removal was based solely on his medical history. PFR File, Tab 1 at 10-14. For example, the appellant argues that because he was “asymptomatic” and his bipolar disorder was in “remission,” the agency’s determination that he was medically unable to perform his core duties is speculative. Id. at 10-11, 13-14. We disagree. The U.S. Court of Appeals for the Federal Circuit has found, and the Board has followed, that when “a party is diagnosed with a medical condition that is by its nature ‘permanent or progressive’ in severity, it will be assumed to continue to exist after the date of diagnosis absent rebuttal evidence of record to the contrary.” Pyles v. Merit Systems Protection Board, 45 F.3d 411, 415 (Fed. Cir. 1995); see Walker v. Department of Veterans Affairs, 109 M.S.P.R. 158, ¶ 9 (2008). The National Institute of Mental Health explains that bipolar disorder is a lifelong illness characterized by “periods of unusually intense emotion, changes in sleep patterns and activity levels, and uncharacteristic behaviors,” typically recurring over time. National Institute of Mental Health, Bipolar Disorder, https://www.nimh.nih.gov/ health/topics/bipolar-disorder/index.shtml (last visited Nov. 7, 2022). ¶18 Although the appellant may not have exhibited symptoms to the IME psychiatrist or his health care providers, one of his health care providers indicated that his condition is chronic and that the appellant “is to be monitored for any acute decompensation.” IAF, Tab 8 at 103. She further stated that it was not possible to predict the likelihood that an individual with bipolar disorder would decompensate and that any changes in the appellant’s schedule could cause him to decompensate in mood. Id. at 99, 103. Further, the IME psychiatrist testified that individuals suffering from bipolar disorder may not realize in advance that they have become symptomatic. IAF, Tab 31, Hearing Compact Disc, Day 1 (HCD1) (testimony of the IME psychiatrist). 10 ¶19 The appellant also asserts that it was unlikely he would become symptomatic because he successfully performed in his position for 17 years. PFR File, Tab 1 at 11-13. He points to his “successful” performance ratings from October 1, 2012, to November 30, 2016, successful completion of training throughout his employment with the agency, and receipt of letters of commendation and awards. Id. at 15-16; IAF, Tab 28 at 13-16, Tab 30 at 49-84. We are not persuaded that this evidence outweighs contrary evidence showing the appellant continued to have symptomatic episodes leading up to his April 2017 removal. In particular, the IME psychiatrist described the appellant’s prognosis as “guarded because of his history of worsening symptoms when under stress.” IAF, Tab 8 at 28; HCD1 (testimony of the IME psychiatrist). The appellant represented to the IME psychiatrist that he had a serious single car accident in 2008, after leaving work due to trouble thinking and focusing, as a result of what was diagnosed at the time as “work shift disorder.” IAF, Tab 8 at 24. Further, the appellant had what he described as a “relapse” in September 2014. IAF, Tab 7 at 96, Tab 8 at 101. According to the appellant’s health care provider, he reported to her in January 2015 that “mood reactivity had occurred at work in which he cussed a co-worker” and he had asked to start seeing a counselor. IAF, Tab 8 at 101. On forms the appellant submitted in connection with the August 2015 IME examination, he indicated that he suffered from episodes of depression, periods of anxiety, and sleep disorders. Id. at 38. In sum, at the time of his removal, the appellant had a present medical condition that could manifest symptoms at any time. Id. at 5. We affirm the administrative judge’s finding that the agency proved its charge, as modified to apply the correct standard. ¶20 Although the administrative judge applied what we have now determined to be the incorrect standard to the agency’s charge, remand is unnecessary because the record is fully developed on the relevant issues. See, e.g., Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 27 (2016) (deciding an issue on 11 review, rather than remanding, when the administrative judge applied an incorrect standard but the record was fully developed). As noted above, when as here the removal is based on a current medical condition, the agency must prove either a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others. Clemens, 120 M.S.P.R. 616, ¶ 5; Fox, 120 M.S.P.R. 529, ¶¶ 24-25. In other words, the agency must establish that the appellant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position. Clemens, 120 M.S.P.R. 616, ¶ 5; Fox, 120 M.S.P.R. 529, ¶ 24. ¶21 The Board has indicated that the core duties of a position are synonymous with the essential functions of a position under the ADA, as amended by the Americans With Disabilities Act Amendments Act of 2008 (ADAAA), i.e., the fundamental job duties of the position, not including marginal functions. Clemens, 120 M.S.P.R. 616, ¶ 6; 29 C.F.R. § 1630.2(n)(1). One of the bases for finding that a function is essential is that it is the “reason the position exists.” Clemens, 120 M.S.P.R. 616, ¶ 6; 29 C.F.R. § 1630.2(n)(2)(i). ¶22 According to the relevant position description and associated medical standards, CBPOs are “frontline” uniformed, weapon-carrying border security officers whose “primary function” includes “detect[ing] and prevent[ing] terrorists and instruments of terror from entering the United States” and ensuring border security. IAF, Tab 8 at 129, 139, 148-50, 156, 162. A CBPO must be “prepared mentally and physically to respond to unexpected situations and have the functional capacity to defend self and others from threatening situations in which the use of deadly force may be necessary.” Id. at 129. They “must be free of any organic, structural or functional impairment(s) or existing health problem(s) that would be aggravated in response to the work environment and/or would affect safe and efficient job performance.” Id. Additionally, they must “exercise sound judgment, maintain mental alertness at all times, and function 12 under dynamic and stressful conditions in which there are time constraints, concerns for national security, and threats of terrorism.” Id. ¶23 The agency based its charge on the appellant’s inability to perform these functions of his position. IAF, Tab 7 at 30, Tab 8 at 6. The administrative judge found that these duties were essential functions of the appellant’s position. ID at 9-10, 21. The parties do not dispute this finding.4 PFR File, Tab 1 at 5, 14, Tab 3 at 12. Accordingly, we agree with the administrative judge’s conclusion that the appellant’s duties set forth above are essential, and thus, constitute core duties of his position. See Clemens, 120 M.S.P.R. 616, ¶ 6. ¶24 The administrative judge also determined that the agency proved that the appellant was medically unable to perform these core duties, thus proving its charge. ID at 9-15. She found persuasive the IME psychiatrist’s testimony that the appellant was unable to use proper judgment, make quick decisions in law enforcement situations, or carry a weapon when symptomatic, as required for his position. ID at 9-15, 21. We agree with this conclusion and modify her reasoning to the extent that she relied on the standard in 5 C.F.R. § 339.206. ID at 9-15. In particular, we vacate as unnecessary the administrative judge’s conclusion that recurrence of the appellant’s symptoms could not be ruled out. ID at 15. Because the appellant’s removal was not based solely on his medical history, the agency was required to establish only that his medical condition prevented him from being able to safely and efficiently perform the core duties of his position. Clemens, 120 M.S.P.R. 616, ¶ 5. The appellant’s arguments as to 4 In support of its charge, the agency also alleged that the appellant was unable to perform Hard Secondary duties. IAF, Tab 8 at 6. The administrative judge found that performing Hard Secondary inspections was an essential function of the appellant’s position. ID at 15 n.4. She also concluded that he was medically unable to perform these duties. ID at 14-15. In light of our finding, below, that the appellant could not perform his position’s duties as described herein, we do not address the parties’ arguments related to whether Hard Secondary inspections were also an essential function of his position. PFR File, Tab 1 at 14-15, Tab 3 at 12. 13 the likelihood of recurrence are, therefore, misplaced, and we decline to address them further. PFR File, Tab 1 at 10-14. ¶25 Nevertheless, in determining whether the agency has met its burden, the Board will consider whether a reasonable accommodation, short of reassignment, exists that would enable the appellant to safely and efficiently perform his core duties. Clemens, 120 M.S.P.R. 616, ¶ 5. The appellant relies on the current version of 5 C.F.R. § 339.206, which requires an agency to consider whether reasonable accommodation or other efforts may “eliminate[] or reduce[]” the risk of harm an employee poses to self or others, to argue that the agency could have reduced or eliminated the risk of recurrence if he were granted certain scheduling accommodations.5 PFR File, Tab 1 at 9-10. However, because the agency did not remove the appellant solely based on his medical history, it was not required to prove that it could not eliminate or reduce the risk of recurrence via accommodation. Rather, the agency removed the appellant because he was not medically able to perform the core duties of his CBPO position. IAF, Tab 7 at 30, Tab 8 at 4-6, 9. We agree with the administrative judge that the agency proved that it could not provide a reasonable accommodation that would enable the appellant to perform his position’s core duties. ID at 21-22. In making this finding, the administrative judge relied on the opinion of the IME psychiatrist that the appellant had not been symptom free for sufficient time to be fit for a weapons-carrying position. Id. Specifically, the IME psychiatrist explained that, in his view, the appellant would need to remain symptom free and stable for 5 years before he might be fit to carry a weapon. IAF, Tab 8 at 28-30; HCD1 (testimony of the IME psychiatrist). 5 The parties agree that the appellant’s scheduling restrictions did not affect his ability to perform the essential functions of his position. PFR File, Tab 1 at 9-10; IAF, Tab 8 at 5. 14 ¶26 To the extent that the appellant questions the administrative judge’s reliance on the IME psychiatrist’s opinion, we are not persuaded. PFR File, Tab 1 at 11-14. In reaching her conclusions, the administrative judge properly weighed the medical evidence. ID at 12-14; see Brown, 121 M.S.P.R. 205, ¶ 11 (recognizing that in assessing the probative weight of medical opinions, the Board considers whether the opinion was based on a medical examination and provided a reasoned explanation for its findings as distinct from mere conclusory assertions, the qualifications of the expert rendering the opinion, and the extent and duration of the expert’s familiarity with the treatment of the appellant). For example, she considered that the IME psychiatrist met with the appellant for more than 4 hours, provided an extensive explanation of his conclusions, had relevant experience, and was certified in forensic psychiatry. ID at 12-14; IAF, Tab 8 at 20, 28-30. The appellant’s health care providers expressed the belief that he was fit for duty. IAF, Tab 7 at 36-38, Tab 8 at 99, 102, Tab 28 at 10-12. The administrative judge found the opinions of the appellant’s health care providers lacked reasoned explanations. ID at 14. The appellant provides no specific argument as to why the administrative judge’s assessment was mistaken, and we can discern none. The appellant failed to prove his disability discrimination claims. ¶27 The administrative judge denied all of the appellant’s affirmative defenses. The appellant’s petition for review focuses on whether the agency could have provided him with a reasonable accommodation and whether the agency retaliated against him for engaging in protected EEO activity. PFR File, Tab 1 at 15-19. Accordingly, we focus on these affirmative defenses. We also examine the administrative judge’s analysis of the appellant’s affirmative defense of disparate 15 treatment disability discrimination.6 ID at 18-29. We affirm her findings as to all three of these affirmative defenses, as modified. ¶28 The Board adjudicates claims of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act.7 Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the standards of the ADA, as amended by the ADAAA. Id. Therefore, we apply those standards here to determine if there has been a Rehabilitation Act violation. Id. In particular, the ADA provides that it is illegal for an employer to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A qualified individual with a disability is one who can “perform the essential functions of the . . . position that such individual holds or desires” with or without reasonable accommodation. 42 U.S.C. § 12111(8). An employer is also required to provide reasonable accommodations to an otherwise qualified individual with a disability. 42 U.S.C. § 12112(b)(5). Thus, both a claim of disability discrimination based on an individual’s status as disabled and a claim based on an agency’s failure to reasonably accommodate that disability require that the individual be “qualified.” See Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d 41, 49, 53-56 (1st Cir. 2019) (explaining that a terminated employee could not succeed on his status-based and failure to accommodate disability discrimination claims when he could not prove he was otherwise 6 We decline to disturb the administrative judge’s findings that the appellant failed to prove his remaining affirmative defenses. ID at 26-27, 30-34. We also do not disturb her findings that that the appellant’s removal is reasonable and promotes the efficiency of the service. ID at 34-35. The parties do not dispute these findings on review. 7 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33. 16 qualified for his position); Lewis v. City of Union City, Georgia, 934 F.3d 1169, 1172-73, 1179, 1182-83, 1190-91 (11th Cir. 2019) (remanding a terminated employee’s disability discrimination claim for the district court to permit a jury to decide whether the appellant was a qualified individual); Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019) (reflecting that disability discrimination claims under both disparate treatment and failure to accommodate theories require proof that the plaintiff was qualified); Stevens v. Rite Aid Corporation, 851 F.3d 224, 226-31 (2d Cir. 2017) (affirming a district court’s dismissal of a discharged employee’s reasonable accommodation claim because he was not a qualified individual with a disability); McNab v. Department of the Army, 121 M.S.P.R. 661, ¶¶ 6, 8 n.5, 9 (2014) (recognizing that only a qualified individual with a disability is entitled to relief for his claims of status-based disability discrimination and denial of reasonable accommodation, but denying his claim on other grounds); Clemens, 120 M.S.P.R. 616, ¶¶ 2, 10-11, 17 (reversing an administrative judge’s finding that an agency denied reasonable accommodation, concluding, as relevant here, that the appellant was not a qualified individual); Fox, 120 M.S.P.R. 529, ¶ 34 (concluding that an appellant was not a qualified individual with a disability and therefore did not prove her claim that the agency wrongfully denied her reasonable accommodation); Smith v. Department of Veterans Affairs, 101 M.S.P.R. 366, ¶¶ 2-3, 9-11 (2006) (finding that an administrative judge properly rejected an appellant’s status-based disability discrimination claim because he was not qualified); Pickens v. Social Security Administration, 88 M.S.P.R. 525, ¶ 7 (2001) (stating that an appellant alleging status-based disability discrimination must establish that she is a qualified individual with a disability); Verla G. v. U.S. Postal Service, EEOC Appeal No. 0120160990, 2018 WL 1061888, at *1-2 (Feb. 8, 2018) (providing that an employee alleging disparate treatment disability discrimination must prove, in pertinent part, that she is a qualified individual with a disability); 29 C.F.R. §§ 1630.4(a)(1), 1630.9(a)-(b) (reflecting, with exceptions not applicable here, 17 that “[i]t is unlawful” to discriminate against, or deny reasonable accommodation to, a “qualified” individual with a disability).8 ¶29 In the past, the Board has, on occasion, omitted from its discussion of an appellant’s burden to prove disability discrimination the requirement that he prove he is a qualified individual. E.g., Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶¶ 24-25 (2015) (omitting the qualified individual requirement from the discussion of disability discrimination); Burton v. U.S. Postal Service, 112 M.S.P.R. 115, ¶¶ 14-16 (2009) (omitting the qualified individual requirement from the analysis of a status-based disability discrimination claim); Doe v. U.S. Postal Service, 95 M.S.P.R. 493, ¶¶ 8-10 (2004) (omitting the qualified individual requirement from the discussion of a status-based disability discrimination claim), overruled on other grounds by Marcell v. Department of Veterans Affairs, 2022 MSPB 33, ¶ 7. To the extent this has caused confusion, we take this opportunity to clarify that only an otherwise qualified individual with a disability is entitled to relief under the ADA for a claim of status-based discrimination or denial of reasonable accommodation.9 8 The Board generally defers to the Equal Employment Opportunity Commission (EEOC) on issues of substantive discrimination law unless the EEOC’s decision rests on civil service law for its support or is so unreasonable that it amounts to a violation of civil service law. Pridgen, 2022 MSPB 31, ¶ 40. 9 Some disability discrimination claims can be resolved without reaching the issue of whether an appellant is otherwise qualified. For example, in Thome, 122 M.S.P.R. 315, ¶ 25, the Board determined that the appellant did not prove her disability discrimination claim because she did not prove she was disabled. The Board did not address whether the appellant was qualified. Id. Because an appellant must prove both that she is disabled and qualified, the fact she did not prove she was disabled was determinative, and a finding on whether she was qualified was not necessary. Similarly, the issue of whether an individual is qualified may not be in dispute in every case. See Pridgen, 2022 MSPB 31, ¶ 38 n.11 (declining to address whether an appellant was a qualified individual with a disability because the parties did not dispute that she was). 18 ¶30 The administrative judge determined that the appellant was not a qualified individual with a disability. ID at 19-24. Regarding reasonable accommodation, we agree with the administrative judge that the appellant could not perform his position’s core duties. We also agree that performing these duties was an essential function of his position. While the appellant suggests that his performance history supports a finding that he is qualified, we disagree. Our conclusion is based on the nature of bipolar disorder, his work-related incidents between 2008 and 2015, the appellant’s own representations of his condition, and medical opinions offered by both the agency and the appellant. Supra ¶¶ 17-19. Finally, the appellant has not identified an alternative position that he desires. See Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 18 (2015) (indicating that an appellant failed to engage in the interactive process when, as relevant here, he did not identify any vacant, funded position to which the agency might have reassigned him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Instead, the appellant rejected the agency’s offers of reassignment. IAF, Tab 7 at 34-35, 42-43, 58-59, Tab 8 at 10. For the foregoing reasons, he cannot prevail on his claim of disability discrimination based on either a reasonable accommodation or disparate treatment theory. The appellant failed to prove his EEO reprisal claim. ¶31 The administrative judge found that the appellant failed to prove that his protected EEO activity was a motivating factor in his removal. ID at 27-29. The motivating factor standard applies to claims of reprisal for engaging in activity protected under Title VII. See Pridgen, 2022 MSPB 31, ¶¶ 21-22, 30. Specifically, under Title VII, an appellant must show that the prohibited consideration was a motivating factor in the personnel action. Id. However, the Board recently recognized that a more stringent standard applies in the context of retaliation claims arising under the ADA, such that the appellant must prove that his prior EEO activity was a “but-for” cause of the retaliation. Id., ¶¶ 43-47. As discussed below, we affirm the administrative judge’s factual findings and reach 19 the same conclusion, while modifying the initial decision to apply the correct standard. ¶32 The administrative judge recognized that the appellant engaged in several protected activities on various dates between at least August 2014 and August 2015. ID at 27-28. Those protected activities included an EEO complaint alleging harassment and discrimination involving his disability, IAF, Tab 7 at 96, requests for reasonable accommodation, IAF, Tab 8 at 85-86, 99, Tab 28 at 28, 31, and requests for EEO counseling concerning allegations of disability discrimination and retaliation for requesting reasonable accommodation, IAF, Tab 8 at 115-16. These activities are protected under the ADA, not Title VII. See Pridgen, 2022 MSPB 31, ¶ 44 (recognizing that requesting a reasonable accommodation and challenging disability discrimination are activities protected by the ADA). Because we agree with the administrative judge that the appellant failed to meet the lesser burden of proving his protected activity was a motivating factor in his removal, he necessarily failed to meet the more stringent “but-for” standard that applies to the appellant’s retaliation claim. ¶33 The administrative judge acknowledged that the officials who proposed and decided the appellant’s removal had prior knowledge of at least some of his protected activities. ID at 28-29; see, e.g., IAF, Tab 7 at 27-33, Tab 8 at 4-8, 48-49, 67-69, 108-10, 114-16. But she ultimately credited their testimony denying that the appellant’s protected activity had any effect on their actions. ID at 29. On review, the appellant argues that the administrative judge failed to discuss several matters that weigh against the Port Director’s credibility.10 PFR File, Tab 1 at 16-19. As we understand his arguments, the appellant is 10 Although the appellant generally asserted that the administrative judge erred in finding the proposing and deciding officials credible when they denied any improper motivation, PFR File, Tab 1 at 16, each accompanying argument pertains only to the proposing official, who was the Port Director, id. at 17-19. 20 implicating two credibility factors: the contradiction or consistency of this witness’s testimony with other evidence and the inherent improbability of his version of events. See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (recognizing these and other factors that must be considered in analyzing the credibility of witness testimony). The appellant asserts that there is no evidence corroborating the Port Director’s testimony that he granted the appellant’s request for accommodation; he never adequately explained why he initiated the fitness-for-duty examination but not the reasonable accommodation process in May 2015; his testimony about who decided to revoke the appellant’s authority to carry a weapon was inconsistent with another witness’s testimony; and the Port Director could not articulate who informed him that the appellant was unable to work in Hard Secondary. PFR File, Tab 1 at 17-18. He also argues that the administrative judge did not give sufficient weight to evidence that the Port Director’s May 2015 letter requiring him to provide medical documentation was prompted by protected activity. Id. at 18. We are not persuaded. ¶34 An administrative judge’s failure to mention all of the evidence of record does not mean that she did not consider it in reaching her decision. Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Not specifically discussing every evidentiary matter or credibility factor does not mean that an administrative judge failed to consider them. Id. Further, the Board must give deference to an administrative judge’s credibility determinations when they are based explicitly or implicitly on the observation of the demeanor of witnesses testifying at a hearing. Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge implicitly relied on demeanor in finding that the Port Director credibly denied that the appellant’s protected activity had any effect on his actions. ID at 29. The appellant’s arguments do not provide sufficiently sound reasons for us to overturn the administrative judge’s credibility findings. 21 Accordingly, the appellant has failed to prove that his protected activities were a motivating factor in his removal, much less a “but-for” cause of his removal. We affirm the initial decision, as modified by this Opinion and Order. ORDER ¶35 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 RIGHTS11 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. 11 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. 22 (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 23 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 24 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 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your 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 12 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. 25 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/HAAS_GEORGE_DA_0752_17_0304_I_1_OPINION_AND_ORDER_1975839.pdf	Issuance Date: November 7, 2022 Appeal Type: Removal MEDICAL INABILITY TO PERFORM The agency removed the appellant from his Customs and Border Patrol Officer position for inability to perform the essential functions of his position. The administrative judge affirmed, relying on 5 C.F.R. § 339.206, and the appellant filed a petition for review. Holding: Because the agency did not remove the appellant based solely on his medical history, 5 C.F.R. § 339.206 does not apply to the agency’s charge, even though the appellant’s position was one with medical standards. • Section 339.206 generally prohibits the removal of an employee whose position is subject to medical standards based solely on their medical history, while providing a limited exception if the condition itself is disqualifying, recurrence “is based on reasonable medical judgment,” and the position’s duties are such that a recurrence “would pose a significant risk of substantial harm to the health and safety of the... employee or others that cannot be eliminated or reduced by reasonable accommodation or any other agency efforts to mitigate risk.” • The Board has previously applied this regulation to all medical inability cases involving positions with medical standards, rather than just those in which the removal was based solely on the employee’s medical history. That precedent was mistaken. • For cases involving a current medical condition, the agency must prove either a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others. • Although the appellant was asymptomatic at the time of his removal, his bipolar disorder was a chronic condition, so section 339.206 does not apply. Applying the correct standard, for a current condition, the agency proved the appellant’s medical inability to perform. Holding: The appellant failed to prove his claims of disability discrimination or EEO reprisal. • Status-based disability discrimination claims and disability discrimination claims based on a failure to accommodate both require that the individual be “qualified,” i.e., an individual who can “perform the essential functions of the... position that such individual holds or desires” with or without reasonable accommodation. • Because the appellant in this appeal was not “qualified,” his disability discrimination claim necessarily fails. • Regarding his EEO reprisal claim, the applicable standard depends on the nature of his EEO activity. The motivating factor standard applies to claims of reprisal for engaging in activity protected by Title VII, while but-for causation applies to reprisal claims arising under the ADA. • The appellant failed to prove that his protected activities were a motivating factor in his removal, much less a but-for cause of his removal. COURT DECISIONS PRECEDENTIAL:
10-20-2022	2022 MSPB 35	William Thomas	https://www.mspb.gov/decisions/precedential/THOMAS_WILLIAM_T_SF_0752_15_0877_I_1_OPINION_AND_ORDER_1970798.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 35 Docket No. SF-0752-15-0877-I-1 William T. Thomas, IV, Appellant, v. Department of the Army, Agency. October 20, 2022 William T. Thomas, IV, Marina, California, pro se. Andrea Campanile, Esquire, Monterey, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which mitigated the appellant’s removal to a 14-day suspension and a demotion to a nonsupervisory position. For the reasons discussed below, we GRANT the agency’s petition for review, MODIFY the analysis of the first specification, VACATE and REVERSE the initial decision with respect to the penalty, and SUSTAIN the agency’s removal action. 2 BACKGROUND ¶2 On September 18, 2015, the agency issued a decision removing the appellant from his position as a GS-9 Supervisory Human Resources Specialist based on the charge of conduct unbecoming a supervisor, supported by two specifications. Initial Appeal File (IAF), Tab 11 at 27-29, Tab 12 at 14-16.1 The first specification alleged that, from February 2015 to August 6, 2015, the date of the proposal notice, the appellant’s supervisor spoke to him “numerous times” about his behavior towards his female subordinate employees, and that it was reported to the appellant’s supervisor that the appellant had made comments to the women that were unwanted and inappropriate, and told them that they were “sexy” or “beautiful,” which made them uncomfortable. IAF, Tab 11 at 27, Tab 12 at 14. The second specification alleged that during the same timeframe, the appellant’s supervisor spoke to him “numerous times” about the amount of time he spent in his office, with the door closed, with a particular female subordinate employee, reportedly engaging in conversations that were personal in nature, and that he, as a supervisor, should have recognized that his actions could be construed as favoritism and were disrupting his office. IAF, Tab 11 at 27, Tab 12 at 14. ¶3 The appellant filed an appeal of his removal with the Board, and after holding a hearing, the administrative judge issued an initial decision sustaining the agency’s charge, but mitigating the penalty. IAF, Tab 33, Initial Decision (ID). With respect to the first specification, the administrative judge found that the appellant made two female subordinates, E.M. and C.A., feel uncomfortable 1 The appellant elected to retire after the agency issued its decision to remove him, but before the effective date of the removal. IAF, Tab 11 at 25, 27; Hearing Recording (testimony of the appellant). In accordance with 5 U.S.C. § 7701(j), an appellant who retires after receiving the agency’s decision to remove him, but on or before the scheduled effective date of his removal, may still appeal his removal to the Board. Mays v. Department of Transportation, 27 F.3d 1577, 1578-81 (Fed. Cir. 1994). 3 by calling them “beautiful” on one occasion each, but she did not find that he called the women “sexy.” ID at 6-8. Nevertheless, she found that the agency proved its first specification. ID at 8. The administrative judge then sustained the second specification in its entirety, finding that the appellant spent “an inordinate amount of time” in his office, with the door closed, with a female subordinate, and that his actions caused others to perceive that he favored this employee, and created a disruption in the workplace because he was often unavailable to assist others. ID at 10. The administrative judge also found that the agency established a nexus between the appellant’s misconduct and the efficiency of the service. ID at 18. ¶4 Then, the administrative judge reviewed the agency’s penalty determination. ID at 18-21. First, she found that “[a]lthough serious . . . the [appellant’s] misconduct [did] not involve more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct towards [the female subordinate employee] during closed-door meetings.” ID at 20. Next, while she acknowledged that the appellant’s record of prior discipline was an aggravating factor and that the agency was entitled to hold the appellant, as a supervisor, to a higher standard of conduct, the administrative judge found that there were several mitigating factors weighing in favor of the appellant, including his length of service and “good performance.” Id. Additionally, the administrative judge credited the appellant’s claims that he was suffering from stress and tension in the workplace due to his relationship with his supervisor, and that he was suffering from depression, although she explained that these were not particularly strong mitigating factors because the appellant had not explained how they were related to his misconduct. ID at 20-21. Finally, she concluded that removal exceeded the bounds of reasonableness, and that the maximum 4 reasonable penalty was a 14-day suspension and a demotion to a nonsupervisory position.2 ID at 21. ¶5 The agency has filed a petition for review, arguing, among other things, that the administrative judge trivialized the seriousness of the appellant’s misconduct, and improperly substituted her own judgment for that of the deciding official in determining the reasonableness of the penalty. Petition for Review (PFR) File, Tab 1 at 9-17. The appellant filed an opposition to the agency’s petition for review. PFR File, Tab 3. ANALYSIS The agency proved that the appellant’s conduct towards his female subordinates was inappropriate and unwanted. ¶6 In finding that removal was an unreasonable penalty for the appellant, the administrative judge relied in part on a mischaracterization of the nature of his misconduct under the first specification of the agency’s charge. Specifically, the agency charged the appellant with conduct unbecoming a supervisor,3 with its first specification alleging: Beginning in February 2015 through the present, [the appellant’s supervisor] had to speak to [him] numerous times regarding [his] conduct towards [his] female subordinate employees. It was reported 2 The administrative judge also found that the appellant did not prove his affirmative defenses, concluding that he failed to establish his claims of disability discrimination, both a failure to reasonably accommodate claim and a status-based disability claim, as well as his claims of age discrimination, harmful procedural error, and due process violations. ID at 11-18. Neither party disputes these findings on review, and accordingly, we will not discuss these claims further. The administrative judge also determined not to award the appellant interim relief under 5 U.S.C. § 7701(b)(2)(A) because of his status as an annuitant under the Federal Employees’ Retirement System. ID at 23. Neither party raises this matter on review, and again we will not discuss it further. 3 The administrative judge erred in stating that the agency charged the appellant with merely conduct unbecoming, ID at 3-10, when the agency had in fact charged the appellant with conduct unbecoming a supervisor, IAF, Tab 11 at 27, Tab 12 at 14. Neither party raises this matter on review, so we will not address it further. 5 to [the supervisor] that [the appellant was] making comments to females that were unwanted and inappropriate in the workplace. Even though [the appellant] may have believed that [he was] paying a compliment by telling [his] subordinate female employees that they were “sexy” or “beautiful,” in fact, [he] made them feel uncomfortable. [The appellant’s] conduct is unbecoming a supervisor. IAF, Tab 12 at 14. The administrative judge erroneously found that this specification alleged only that the appellant told his subordinate female employees that they were “sexy” or “beautiful” and made them feel uncomfortable. ID at 4. She sustained the specification, finding that he called his subordinate employees E.M. and C.A. “beautiful” on one occasion each, but that he had not called them “sexy.” ID at 6-8. As a result of her narrow view of the first specification, when she reviewed the agency’s penalty determination, concerning the nature and seriousness of the appellant’s misconduct, she concluded that: [T]he appellant’s sustained misconduct consisted of two incidents of telling female[] subordinates they were beautiful thereby making them uncomfortable, as well as failing to realize his meetings with E.M. in his office with the door closed would result in the perception of favoritism and disruption. Although serious . . . [his] misconduct does not involve more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct during closed door meetings. ID at 20. ¶7 The administrative judge erred in limiting the specification to two instances of the appellant calling female subordinates “beautiful,” and in doing so, trivialized the severity of his behavior. In actuality, the appellant’s misconduct, as charged by the agency, spanned several months and went well beyond two instances of calling E.M. and C.A. “beautiful,” which the agency merely used as an example of the appellant’s misconduct. The materials the agency relied upon when proposing removal, which were provided to the appellant and which he addressed in his response to the proposal notice, provide further details regarding 6 his misconduct. See Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 8 (2004) (finding that for due process purposes, the issue is whether the notice of proposed removal, along with the supporting documentation contemporaneously provided to the appellant, afforded him sufficient notice of the charges against him to make a meaningful reply to the proposal). They consist of multiple employee statements setting forth numerous examples of his egregious behavior towards his female subordinates. IAF, Tabs 11-14. However, because the administrative judge took an inappropriately narrow view of the charge, she made no factual or credibility findings regarding these allegations. ID at 6-8. Thus, before we address the penalty, we must first address whether the agency proved that the appellant committed the conduct alleged in its first specification, i.e., whether from February 2015 through August 2015, he made unwanted and inappropriate comments in the workplace to his female subordinates. IAF, Tab 12 at 14. ¶8 An initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and her legal reasoning, as well as the authorities on which that reasoning rests. Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version she believes, and explain in detail why she found the chosen version more credible, considering such factors as: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). The Board must defer to an administrative judge’s credibility 7 determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). However, when an administrative judge’s findings are not based on the observation of witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its own judgment on credibility issues. Id. at 1302. Moreover, the Board may overturn an administrative judge’s credibility determinations when they are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). ¶9 The administrative judge made no findings regarding the first specification besides her finding that the appellant called E.M. and C.A. “beautiful.” Because the record is sufficiently well-developed and we need not base our findings on witness demeanor, the Board will make its own credibility determinations as to the remaining portions of the first specification. See Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 557 (1994), aff’d, 56 F.3d 1375 (Fed. Cir. 1995). In so doing, we note that several relevant witnesses provided written statements but did not testify at the hearing. As set forth below, we find that there is ample evidence supporting a finding that the agency proved its first specification in its entirety. ¶10 At the hearing, E.M. testified that the appellant behaved in an unprofessional and unacceptable manner towards her, constantly making inappropriate comments to her, such as commenting on what she was wearing, telling her she “looked nice,” and telling her that she “should wear dresses more often because [she] has nice legs.” Hearing Recording (HR) (testimony of E.M.). She further testified that the appellant would “leer” at her, and that one time she caught him “staring at [her] butt” while she was wearing a suit. Id. E.M. explained that she tried to get the appellant to stop his inappropriate behavior, telling him that he was going too far or that he crossed a line, but his behavior did not change. Id. 8 ¶11 E.M. also testified that the appellant told her that he had feelings for her, which she interpreted as him expressing a sexual interest in her and wanting “to be with her.” Id. In response to his expression of interest, E.M. told the appellant that he crossed a line and not to speak to her like that again. Id. She then went to her coworker, A.S., and told him that the appellant was “hitting on” her and making her feel uncomfortable. Id. Because of the appellant’s behavior, E.M. stated that she would hide out in a coworker’s office to avoid the appellant, hated coming to work, and felt like she was “battling” each day in the office. Id. ¶12 E.M.’s testimony is consistent with her previous written statement, IAF, Tab 13 at 5-7, as well as the contemporaneous statements of her coworkers. The record contains a statement from A.S. confirming that E.M. approached him in late February or early March 2015, “on the verge of tears,” and told him that the appellant “had been making advances towards her and that his behavior was making her feel very uncomfortable.” IAF, Tab 12 at 18-19. There is also a memorandum for the record dated June 24, 2015, from another coworker, T.L., stating that E.M. had approached him in mid-May 2015 seeking advice about “harassment issues” with the appellant, telling him that the appellant “was consistently hitting on her.” IAF, Tab 13 at 9. C.S., another subordinate, stated that the appellant was often “flirtatious” in the office, and that she had warned him about his behavior, but he would just “laugh it off.” IAF, Tab 26 at 11; HR (testimony of C.S.). ¶13 The appellant was also accused of behaving inappropriately with another female subordinate, C.A., who resigned from the agency in May 2015, citing numerous issues with the appellant, including that he had “gone out of his way to call attention to [her],” when she was talking with a coworker, by telling her “how nice [she] looked that day.” IAF, Tab 13 at 12-13. C.A. did not testify at the hearing, but another employee, P.Y., confirmed in his testimony that the appellant told C.A. in P.Y.’s office that she was “beautiful” or “pretty,” “like an angel.” HR (testimony of P.Y.). In fact, P.Y. was so concerned about the 9 appellant’s comments that he suggested that the appellant follow up with C.A. to make sure she was not upset, and reported the comments to the appellant’s supervisor. Id. P.Y’s testimony is consistent with the remaining record. The agency file contains a memorandum for the record written by the appellant’s supervisor dated March 20, 2015, stating that on that date, an employee reported to him that the appellant was making inappropriate and unwanted comments to C.A., including that he called her “beautiful.”4 IAF, Tab 14 at 7. C.A. told the appellant’s supervisor that the appellant’s behavior toward her was inappropriate and made her feel uncomfortable. Id. ¶14 The appellant denies the allegations, claiming that he never engaged in inappropriate conduct, but instead some of his comments, like referring to employees looking “nice,” were misconstrued. HR (testimony of the appellant); IAF, Tab 12 at 5. He also claims that E.M. was a problem employee and fabricated the allegations against him, and that his supervisor had “ill will” toward him, which resulted in this removal action. HR (testimony of the appellant); IAF, Tab 11 at 31-40. ¶15 Assessing the conflicting evidence in light of the Hillen factors, we find that the statements and testimony provided by the agency’s witnesses were consistent with each other and not inherently improbable. The testimony and statement of E.M., the testimony of P.Y., and the statement of C.A. were based on their direct observations of the appellant’s behavior. The statements of E.L., A.S., and the appellant’s supervisor were based on their observations when meeting with E.M. and C.A. and contemporaneous reports by E.M. and C.A. about the appellant’s inappropriate behavior. While the appellant suggests that the reason for the statements and testimony of E.M. and his supervisor may have 4 The memorandum also alleged that the appellant told C.A. “that her toes were sexy or pretty, or something to that effect,” however, there was no testimony at the hearing regarding this statement. IAF, Tab 14 at 7. 10 been that they were biased against him, the weight of the evidence suggests otherwise. Further, there is no indication the remaining agency witnesses were biased against the appellant. Thus, we find the agency’s witnesses to be more credible than the appellant concerning the allegations in the first specification that the appellant engaged in numerous acts of inappropriate and unwanted behavior towards his female subordinate employees from February through August 2015. ¶16 Our findings are consistent with the limited credibility findings made by the administrative judge who, based on her observation of E.M.’s demeanor at the hearing, credited E.M.’s testimony when finding that the appellant had called her “beautiful,” finding that her testimony was consistent with her previous written statement and her conversations with A.S., and that her testimony was straightforward and detailed. ID at 6. Similarly, the administrative judge credited P.Y.’s testimony to find that the appellant had referred to C.A. as “beautiful,” finding that there was no appearance of bias against the appellant or any motive to fabricate the event. ID at 7. Accordingly, we find that the agency proved the full scope of the conduct alleged in its first specification. IAF, Tab 12 at 14. Removal was within the bounds of reasonableness in light of the seriousness of the appellant’s misconduct in relation to his duties as a Supervisory Human Resources Specialist. ¶17 Generally, in an adverse action appeal taken under chapter 75, the agency must prove its charge by preponderant evidence, establish a nexus between the action and the efficiency of the service, and establish that the penalty imposed was within the tolerable bounds of reasonableness. Hall v. Department of Defense, 117 M.S.P.R. 687, ¶ 6 (2012). In this matter, we have found that the charge, including both specifications, has been proven. The administrative judge determined that nexus existed, and neither party has challenged that finding on 11 petition for review. Therefore, we must now determine the propriety of the penalty. ¶18 In assessing the reasonableness of the penalty, the Board will consider a nonexhaustive list of factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). Those factors are: (1) the nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; (2) the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (3) the employee’s past disciplinary record; (4) the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; (5) the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties; (6) consistency of the penalty with those imposed upon other employees for the same or similar offenses; (7) consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the reputation of the agency; (9) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; (10) potential for the employee’s rehabilitation; (11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment or bad faith, malice or provocation on the part of others involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Douglas, 5 M.S.P.R. at 305–06. Not every factor is relevant in every case. Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶ 9 (2014) (finding that a deciding official does not have to consider each of the Douglas factors in making his penalty determination); 12 Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 10 (2014); Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, ¶ 14 (2002). ¶19 When all of the agency’s charges are sustained, as they are here, the Board will review the agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within the tolerable limits of reasonableness. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 12 (2014). In making this determination, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been properly exercised. Id. The Board will modify or mitigate an agency-imposed penalty only when it finds that the agency failed to weigh the relevant factors or the penalty clearly exceeds the bounds of reasonableness. Id.; Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001). ¶20 It is well established that the most important factor in assessing whether the agency’s chosen penalty is within the tolerable bounds of reasonableness is the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities. Downey v. Department of Veterans Affairs, 119 M.S.P.R. 302, ¶ 9 (2013); Kirkland-Zuck v. Department of Housing & Urban Development, 90 M.S.P.R. 12, ¶ 19 (2001), aff’d, 48 F. App’x 749 (Fed. Cir. 2002). Here, we agree with the agency that the administrative judge failed to recognize the seriousness of the appellant’s misconduct. PFR File, Tab 1 at 9-10. The appellant’s behavior was inappropriate and divisive, made his subordinates uncomfortable, and poisoned the working environment. IAF, Tab 12 at 18-19, Tab 13 at 5-7, 12-14, 16-17, Tab 14 at 7, Tab 26 at 11-12; HR (testimony of E.S., testimony of C.S., testimony of P.Y., testimony of the appellant’s supervisor). E.M. explained the effect of his actions on her emotional and mental well-being, stating that she “hated coming into work because [she] felt it was hostile,” and went so far as to hide in a coworker’s office simply to avoid the appellant. IAF, 13 Tab 13 at 7; HR (testimony of E.M.). The other target of the appellant’s conduct, C.A., resigned, citing a multitude of issues with the appellant. IAF, Tab 13 at 12-13. ¶21 The seriousness of the appellant’s misconduct is amplified by his role as a supervisor. It is well settled that, because supervisors occupy positions of trust and responsibility within an agency, the agency has a right to expect a higher standard of conduct from them. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010); Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x. 951 (Fed. Cir. 2006). It is particularly noteworthy that the appellant directed his inappropriate comments towards his subordinates, over whom he possessed supervisory power, thus violating the authority the agency vested in him as a supervisor. ¶22 Furthermore, while the appellant’s misconduct would be serious in any context, when considered in the context of the appellant’s position as a Supervisory Human Resources Specialist, we find his misconduct to be exceptionally serious. The importance of a healthy and effective human resources department for an agency cannot be overstated. The Civil Service Reform Act of 1978, Pub. L. No. 95-454, § 3, 92 Stat. 1111 (1978), states: “[I]n order to provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation’s diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit principles and free from prohibited personnel practices.” Human resources employees, such as the appellant, play crucial roles in maintaining the quality of public service, because it is the responsibility of the human resources component of an agency “to retain Governmentwide approaches, authorities, entitlements, and requirements” in areas including “[a]ccountability for adherence to merit system principles” and “[e]mployee protection from prohibited personnel practices.” Office of Personnel Management, Human Resources Flexibilities and Authorities in the Federal Government, 3, 10 (August 2013), 14 https://www.opm.gov/policy-data-oversight/pay-leave/reference-materials/ handbooks/humanresourcesflexibilitiesauthorities.pdf. An effective human resources component is “vital to the health of the Federal civil service.” Merit Systems Protection Board, Research Brief, The State of the Federal HR Workforce: Changes and Challenges, 1 (May 2020), https://www.mspb.gov/ studies/publications/State_of_the_Federal_HR_Workforce_Changes_and_ Challenges.pdf. ¶23 The appellant’s misconduct is antithetical to his responsibilities as a Supervisory Human Resources Specialist and strikes at the very core of his job duties to assist in protecting the merit systems principles and prevent prohibited personnel practices. In addition, his inappropriate behavior toward female subordinates perpetuated a working environment that was detrimental to his staff, and hindered his department’s ability to perform its functions. IAF, Tab 12 at 18-19, Tab 13 at 5-7, 12-14, 16-17, Tab 14 at 7, Tab 26 at 11-12; HR (testimony of E.M., testimony of C.S., testimony of P.Y., testimony of the appellant’s supervisor). Thus, the appellant’s misconduct is contrary to the entire purpose of the department he was hired to serve and was exceptionally serious. ¶24 The deciding official considered the other relevant Douglas factors when determining that removal was the appropriate penalty, including the appellant’s daily contacts with the public and staff members, his previous disciplinary history, the clarity of which he had notice that his conduct was unacceptable, his rehabilitation potential, and her loss of confidence in the appellant’s ability to hold a supervisory position without posing a liability risk for the agency. IAF, Tab 11 at 27-28; HR (testimony of the deciding official). Weighing these factors against the relevant mitigating factors, she concluded that removal was the only option. IAF, Tab 7 at 28; HR (testimony of the deciding official). ¶25 We agree with the deciding official’s assessment of the factors. The appellant had direct and daily interactions with numerous agency employees, as well as adult students at the agency facility, and thus, his repeated inappropriate 15 behavior with women is particularly concerning. See Williams v. Department of the Army, 102 M.S.P.R. 280, ¶ 9 (2006) (finding that the appellant’s frequent contact with customers was an aggravating factor). Further, the appellant’s prior disciplinary record establishes that he has a history of behaving inappropriately toward his female subordinates, as he was suspended for 13 days in 2008 for sending pornographic emails using his Government-issued computer to another female subordinate employee.5 IAF, Tab 26 at 16-26. ¶26 The appellant was on notice that this type of behavior towards subordinate female employees constituted misconduct. His previous suspension served as a general warning that his conduct towards female subordinate employees was inappropriate. Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627, ¶ 25 (2007) (stating that prior discipline can be considered as notice that the appellant had been warned about the type of misconduct involved). Furthermore, in the months preceding the appellant’s removal, his supervisor warned him “numerous times” that his comments and behavior were inappropriate. IAF, Tab 12 at 14; HR (testimony of the appellant’s supervisor). The record contains evidence that the appellant was verbally counseled at least four times between January and March 2015 regarding his behavior towards his female subordinates. IAF, Tab 14 at 7-11. There is no doubt that the appellant had ample notice that his conduct was inappropriate and unacceptable. ¶27 The agency attempted to deter the appellant’s behavior, practicing progressive discipline by issuing him a suspension and several verbal counselings before resorting to removal. Nevertheless, his behavior continued unabated. Evidence of multiple unheeded warnings weighs heavily in support of removal, because it demonstrates that the appellant cannot, or will not, correct his 5 The appellant was also suspended in 2014 for 3 days after he failed to conduct initial or mid-year performance discussions with a female subordinate, and then forged the documents to falsely reflect that he had done so. IAF, Tab 14 at 13-18. 16 behavior, demonstrating that he lacks any rehabilitative potential. See Fuqua v. Department of the Navy, 31 M.S.P.R. 173, 178 (1986) (finding that the appellant’s continuing misconduct, despite the agency’s repeated attempts to improve his behavior through counselings, warnings, and prior disciplinary actions, served to establish the appellant’s lack of rehabilitative potential). In this regard, we observe that an agency need not tolerate inappropriate conduct of a sexual nature until it becomes so pervasive and severe that it exposes the agency to liability under equal employment opportunity statutes. See Lentine v. Department of the Treasury, 94 M.S.P.R. 676, ¶ 13 (2003) (finding that an agency need not wait to discipline an employee until sexually offensive conduct becomes so pervasive and offensive that it constitutes unlawful discrimination under a hostile work environment theory). ¶28 The relevant mitigating factors that weigh in favor of the appellant include his nearly 20 years of service with the agency at the time of the misconduct at issue in this appeal, his prior military service, his successful performance and performance awards, and his claims of stress, tension with his supervisor, and diagnosis of depression.6 HR (testimony of the appellant); IAF, Tab 11 at 27-28. We have considered these factors, but they simply do not outweigh the factors supporting removal in this matter. Therefore, we find that there is no basis to mitigate the appellant’s removal. We reverse the administrative judge’s findings to the contrary, and sustain the agency’s removal action. ID at 20-21. 6 The administrative judge credited the appellant’s claim that stress and tensions in the workplace, as well as his diagnosis of depression, were mitigating factors, even though the appellant did not explain how they were related to his misconduct. ID at 21. While we have considered the appellant’s claims, because the appellant failed to explain how stress from the workplace or his depression impacted his conduct at issue, we have not given the claims substantial weight. See Roof v. Department of the Air Force, 53 M.S.P.R. 653, 658 (1992) (finding that an administrative judge did not err in excluding evidence purporting to support mitigation, in part, because the appellant failed to establish a causal connection between the mitigating circumstance and the misconduct involved). 17 ORDER ¶29 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 RIGHTS7 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 7 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. 18 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 19 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 20 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 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. 8 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. 21 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/THOMAS_WILLIAM_T_SF_0752_15_0877_I_1_OPINION_AND_ORDER_1970798.pdf	Issuance Date: October 21, 2014 Stipulation Procedure Disclosures Under the Privacy Act Penalty Analysis The appellant, a Customs and Border Protection Officer, believed that two travelers were wrongfully charged with failing to declare certain food items. He took home a copy of the Treasury Enforcement Communication System (TECS) report that reflected the fine issued to the travelers, which had details about the travelers, including one of the traveler’s social security number, date of birth, address, and license plate number. He then sent an e-mail to the agency’s Joint Intake Center stating that he believed that the two travelers should not have been charged. He also copied a congressional staffer on the e-mail, and attached a copy of the TECS report. Hours after sending the e-mail, he realized that he sent the TECS report to the congressional staffer, and immediately contacted her. He asked her to delete the e-mail prior to reading it, and she did so. He then self-reported his error to the Joint Intake Center. Based on his report, the agency initiated an investigation into his transmission of the report to the staffer, and in the investigation it was discovered that he sent a copy of the report printed by one of his co-workers. The agency asked him how he got a copy of that specific copy of that report, and stated that he did not recall, but he surmised that he must have mixed up his copy of the report with his co-worker’s copy. As a result of his actions, the agency removed him, stating that he improperly possessed TECS information, made an unauthorized disclosure of TECS information, and demonstrated a lack of candor during the investigation. The appellant appealed his removal to the Board, but the administrative judge upheld the charges, and the Board affirmed. Holding: The Court vacated the Board’s decision for two of the charges and remanded the appeal for a new penalty determination. 1. The Court held that the appellant’s stipulations to underlying facts regarding a charge do not equate to stipulating to legal conclusions to be drawn from those facts. The appellant’s stipulation to the underlying facts did not mean that he waived the right to argue a separate legal conclusion. 2. The appellant’s transmission of the TECS report did not constitute an unauthorized disclosure in violation of the privacy act because the congressional staffer deleted the e-mail before ever reading it. The Court declined to make a determination as to whether his transmission constituted a protected disclosure under the Whistleblower Protection Act. 3. The Court reversed the Board’s decision sustaining the charge of lack of candor. Based on the facts of the case, the Court found that substantial evidence did not support the charge. 4. The Court vacated the penalty of removal and remanded the matter for reconsideration of the penalty. The Court stated that the penalty of removal could not be sustained based solely on the charge of improper possession of TECS information. Federal Register Notices: The Board issued its final rule on VA SES appeals on October 22, 2014. http://www.gpo.gov/fdsys/pkg/FR-2014-10-22/pdf/2014-25212.pdf The MSPB did not issue any precedential • decisions this week MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
10-07-2022	2022 MSPB 34	Calvin Chin	https://www.mspb.gov/decisions/precedential/CHIN_CALVIN_DC_0752_15_0431_I_1_OPINION_AND_ORDER_1967332.pdf	Department of Defense	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 34 Docket No. DC-0752-15-0431-I-1 Calvin Chin, Appellant, v. Department of Defense, Agency. October 7, 2022 Paul Y. Kiyonaga, Washington, D.C., for the appellant. J. Michael Sawyers, Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Leavitt issues a separate dissenting opinion. OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the larceny charge, affirmed the agency’s removal action, and found that the appellant did not prove his affirmative defenses. For the reasons set forth below, we GRANT the petition for review. We MODIFY the initial decision to find that the appellant is disabled, but we agree with the administrative judge that he did not prove this affirmative defense. We FURTHER MODIFY the initial decision to mitigate the removal action to a 90-day suspension. 2 BACKGROUND ¶2 Effective January 25, 2015, the agency removed the appellant from his GS-14 Security Specialist position with the Security and Counterintelligence Office of the Defense Threat Reduction Agency (DTRA) at Fort Belvoir, Virginia, based on a charge of larceny. Initial Appeal File (IAF), Tab 6 at 15-18, 25. The charge stems from the appellant’s actions on June 23, 2014. Id. at 25-27, 32-35. In relevant part, the appellant went to the Defense Logistics Agency (DLA) cafeteria at Fort Belvoir, Virginia, put some food from the cafeteria’s self-serve breakfast buffet in a container, paid for the food, and put the container in a bag. Id. at 33. The appellant then returned to the breakfast buffet, removed the container from the bag, put more food in the container, returned the container to the bag, and left the cafeteria without paying for the additional food, which was valued at $5.00. Id. at 33, 37. These actions were captured on videotape by surveillance cameras in the cafeteria. IAF, Tab 7. ¶3 A cafeteria employee who witnessed the incident reported it to her supervisor, IAF, Tab 6 at 40, and the matter was ultimately referred to DTRA’s Office of Inspector General (OIG) for investigation, id. at 32. OIG investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant knowingly took food from the cafeteria without rendering payment. Id. at 34. ¶4 The agency then proposed the appellant’s removal based on a charge of larceny in violation of 18 U.S.C. § 661, which makes it unlawful to take and carry away the personal property of another with the intent to steal. Id. at 26-27. After considering the appellant’s oral and written responses to the proposed removal, id. at 15, the deciding official sustained the charge1 and imposed the removal penalty, IAF, Tab 6 at 15-18. 1 The notice of proposed removal charged the appellant with violating 18 U.S.C. § 661, which pertains to private property. IAF, Tab 6 at 26. However, the decision letter 3 ¶5 The appellant filed a Board appeal in which he denied the charge and asserted, among other things, that his failure to pay for his second helping of food was inadvertent and occurred as a result of his medical condition. IAF, Tab 1, Tab 14 at 6. Specifically, the appellant, who has type 2 diabetes, stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food. IAF, Tab 14 at 5-6. He also raised affirmative defenses of race and disability discrimination, harmful procedural error, and violations of his due process rights and the statutory provisions found at 5 U.S.C. §§ 2302(b)(10) and (12).2 IAF, Tab 1 at 7, Tab 20 at 2. He further asserted that the agency did not properly consider mitigating factors in deciding to remove him. IAF, Tab 1 at 7. ¶6 Following a hearing, the administrative judge issued an initial decision that affirmed the appellant’s removal. IAF, Tab 25, Initial Decision (ID) at 1, 40. The administrative judge found that the agency proved the charge by preponderant evidence, the appellant did not prove any of his affirmative defenses, and the agency established a nexus between the appellant’s misconduct and the efficiency of the service. ID at 3-34. The administrative judge also found that the agency properly considered the relevant factors in deciding to identified the charge as a violation of 18 U.S.C. § 641, which prohibits the theft of public property. Id. at 15. It is undisputed that the food sold in the DLA cafeteria is owned by Sodexho, a private company that provides food services to the cafeteria. IAF, Tab 13 at 28; Hearing Transcript, Day 1 at 46 (testimony of Sodexho’s general manager). For the reasons discussed herein, infra ¶¶ 17-19, this discrepancy does not change our analysis of this appeal. 2 The provision at 5 U.S.C. § 2302(b)(10) makes it a prohibited personnel practice for an agency to “discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others[.]” The provision at subsection 2302(b)(12) makes it a prohibited personnel practice for an agency to “take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in subsection 2301 of [Title 5][.]” 4 remove the appellant and that the penalty of removal was reasonable. ID at 34-39. ¶7 The appellant has filed a petition for review and a motion to add evidence in support of the petition. Petition for Review (PFR) File, Tabs 3-4. The agency has responded to the petition and the motion. PFR File, Tabs 6-7. The appellant has replied to the agency’s responses. PFR File, Tabs 10-11. ANALYSIS We deny the appellant’s motion to add evidence in support of his petition for review. ¶8 The appellant seeks to submit as evidence a report summarizing the results of a polygraph examination that he took after the initial decision was issued. PFR File, Tab 4. Under 5 C.F.R. § 1201.115(d), the Board normally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). ¶9 The record closed below on July 30, 2015, the initial decision was issued on May 13, 2016, and the appellant submitted to the polygraph examination on July 11, 2016. Hearing Transcript, Day 2 (HT 2) at 204-05 (statement of the administrative judge); ID at 1; PFR File, Tab 4. The appellant claims on review that the report could not have been obtained with due diligence before the record closed because the initial decision was the first indication that his testimony had been perceived as “not credible.” PFR File, Tab 4 at 7. ¶10 This argument is unpersuasive. The appellant should have known that his credibility would be a key issue in this appeal, particularly because his defense to the charge is that he did not intend to steal the food. IAF, Tab 14 at 6. The appellant apparently believed that the administrative judge would credit his testimony that he did not intend to steal and discovered that he was mistaken when he received the initial decision. However, the Board has held that a party may not correct such an error of judgment after the fact. Mojica-Otero v. 5 Department of the Treasury, 30 M.S.P.R. 46, 48-49 (1986). Because we find that the appellant did not exercise due diligence in submitting to a polygraph examination and providing the results to the administrative judge before the record closed, we deny his motion. The administrative judge correctly found that the agency proved the larceny charge. ¶11 On review, the appellant argues that the administrative judge did not adequately consider evidence and hearing testimony indicating that his failure to pay for his second helping of food was inadvertent. PFR File, Tab 3 at 12-14. For example, the appellant argues that the administrative judge discounted his physician’s testimony that the appellant’s urgent need to eat due to his low blood sugar would have momentarily distracted him from paying for his second helping of food. Id. at 12-13; Hearing Transcript, Day 1 (HT 1) at 170-72 (testimony of the appellant’s physician). This argument is unavailing. The administrative judge thoroughly discussed the physician’s testimony in the initial decision. ID at 6-7, 14-15. The Board will not reconsider the factual findings of an administrative judge based on an allegation that the administrative judge failed to give sufficient weight to the evidence introduced on behalf of one party and gave too much credence to the evidence submitted by the other. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). ¶12 We similarly find unavailing the appellant’s contention that the administrative judge failed to consider letters from two Federal officials attesting to the appellant’s trustworthiness or the fact that he was under police surveillance for about 3 weeks after the incident and he did not commit any similar misconduct. PFR File, Tab 3 at 13-14; HT 1 at 235, 283-87 (testimony of the proposing official); IAF, Tab 22 at 1, 5. The appellant asserts that this evidence demonstrates that his conduct on June 23, 2014, was out of character and, thus, inadvertent. PFR File, Tab 3 at 14. Although the administrative judge did not discuss this evidence in the initial decision, it is well settled that an 6 administrative judge’s failure to mention all of the evidence of record does not mean that she did not consider it in reaching her decision. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Thus, the appellant’s argument provides no basis for disturbing the initial decision. ¶13 In concluding that the agency proved the charge, the administrative judge reviewed the record evidence, summarized the hearing testimony of the witnesses, and made credibility determinations consistent with Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 3-15. Noting that the appellant admitted to taking a second helping of food without paying for it and that the video surveillance footage supported this finding, the administrative judge determined that the appellant was not credible when he testified that his diabetic status and low blood sugar explained his actions. ID at 14. Importantly, the administrative judge found that the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony and his testimony was not consistent with the record evidence. ID at 14. The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not presented such sufficiently sound reasons. ¶14 In sum, the Board will not disturb an administrative judge’s credibility findings when she considered the evidence as a whole, drew appropriate inferences from the evidence, and made reasoned conclusions. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997). We therefore discern no basis for disturbing the administrative judge’s finding that the agency proved the larceny charge. 7 The administrative judge correctly found that the appellant failed to prove his affirmative defenses.3 Disability discrimination ¶15 Although not raised by the appellant on review, we address his disability discrimination claims. In the initial decision, the administrative judge determined that the appellant failed to prove that he has an impairment that substantially limits him in any major life activity and, thus, he did not prove that he is disabled pursuant to 29 C.F.R. § 1630.2(g)(1)(i) or (ii). ID at 23. As set forth in 42 U.S.C. § 12102(2)(B), however, the term “major life activity” includes the operation of the endocrine function. Moreover, the regulation at 29 C.F.R. § 1630.2(j)(3)(iii) advises that “it should easily be concluded that . . . diabetes substantially limits endocrine function.” Therefore, we modify the initial decision to conclude that the appellant has an impairment that substantially limits him in a major life activity, and we conclude that he is disabled. Notwithstanding 3 The appellant does not challenge the administrative judge’s findings that he failed to prove his claim that the agency’s action violated 5 U.S.C. §§ 2302(b)(10) and (12). ID at 31-34. We discern no reason to disturb the administrative judge’s findings in this regard. Further, the appellant does not challenge the administrative judge’s conclusion that he did not prove his race discrimination claim. ID at 16-22. In the initial decision, the administrative judge applied the evidentiary standards set forth in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 48-49, 51 (2015), discussed the various types of direct and circumstantial evidence, and evaluated the relevant evidence. ID at 16-22. After the initial decision was issued, the Board clarified that the types of evidence set forth in Savage are not subject to differing evidentiary standards and explained that “all evidence belongs in a single pile and must be evaluated as a whole.” Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 29 (2016) (quoting Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 766 (7th Cir. 2016)), clarified by Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 23-24. Regardless of the administrative judge’s characterization of the evidence relating to the appellant’s race discrimination claim, she properly considered the evidence as a whole in finding that the appellant failed to prove this affirmative defense. ID at 16-22. Consequently, as mentioned above, we discern no reason to disturb the administrative judge’s ultimate finding that the appellant failed to establish his race discrimination claim. 8 this modification, we agree with the administrative judge that the appellant failed to prove a reasonable accommodation claim because he admitted during the hearing that he never requested an accommodation for his medical condition. ID at 25-26; HT 2 at 138 (testimony of the appellant). ¶16 Moving to the appellant’s disparate treatment disability discrimination claim, in a similar vein, we agree with the administrative judge that he failed to prove this affirmative defense. ID at 26-28. When the appellant was asked at the hearing, “Are you saying that DTRA removed you from federal service because you have diabetes?” he responded, “No, no.” HT 2 at 139 (testimony of the appellant). Moreover, on petition for review, the appellant has not challenged the administrative judge’s conclusion that he did not prove his disparate treatment disability discrimination claim because he failed to present any evidence supporting such a claim. Accordingly, the appellant failed to prove this claim. Harmful Procedural Error and Due Process ¶17 On review, the appellant reiterates his argument below that the agency committed harmful procedural error and violated his due process rights by stating in the notice of proposed removal that it was charging him with larceny in violation of 18 U.S.C. § 661, but stating in the decision letter that it was removing him for violating 18 U.S.C. § 641. PFR File, Tab 3 at 19-21; IAF, Tab 14 at 11-12. ¶18 The essential requirements of constitutional due process for a tenured public employee are notice of the charges against him, an explanation of the evidence, and an opportunity for him to present his account of events. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). As for the appellant’s harmful procedural error claim, the Board may not sustain an agency decision if there was harmful error in the application of its procedures. 5 U.S.C. § 7701(c)(2)(A). Harmful error cannot be presumed; an agency error is harmful only when the record shows that the procedural error was likely to have caused 9 the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). It is the appellant’s burden to prove that a procedural error occurred and that the error substantially prejudiced his rights such that the outcome was probably affected. Mercer v. Department of Health & Human Services, 772 F.2d 856, 859 (Fed. Cir. 1985); Stephen, 47 M.S.P.R. at 681, 685; 5 C.F.R. § 1201.56(c)(1). ¶19 Applying these standards, the administrative judge rejected the appellant’s harmful procedural error and due process claims. ID at 28-31. The administrative judge found that the evidence demonstrated that the agency intended to charge the appellant with violating 18 U.S.C. § 661, and that the statement in the decision letter—that he had been charged with violating 18 U.S.C. § 641—appeared to be an administrative error. ID at 30-31. The administrative judge found that this error was harmless because there was no evidence that citing the incorrect statute caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. ID at 31. We agree with the administrative judge’s conclusion in this regard. We also discern no error with the administrative judge’s conclusion that the appellant’s due process rights were not violated because the notice of proposed removal provided him with the specific facts and circumstances underlying the charge against him, and he had an opportunity to make a meaningful response. ID at 28-31; see Loudermill, 470 U.S. at 542-46. ¶20 The appellant also raises new allegations of harmful error on review. PFR File, Tab 3 at 15-19. For example, he alleges that the agency committed harmful procedural error by failing to provide him before his OIG interview with the warnings set forth in Garrity et al. v. New Jersey, 385 U.S. 493 (1967), and 10 Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973).4 PFR File, Tab 3 at 17-18. He also contends that the agency failed to comply with the policies set forth in its Civilian Disciplinary and Adverse Actions Manual. Id. at 15-17; IAF, Tab 22, Exhibit (Ex.) K at 30. ¶21 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. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). As the appellant has not made such a showing regarding the allegations of harmful procedural error he raises for the first time on review, the Board need not consider them. To the extent that the appellant’s arguments are challenges to the penalty determination, rather than claims of harmful procedural error, we have considered them in evaluating the reasonableness of the penalty. The administrative judge correctly found that there is a nexus between the appellant’s misconduct and the efficiency of the service. ¶22 In addition to the requirement that the agency prove its charge, it also must prove that there is a nexus, i.e., a clear and direct relationship between the articulated grounds for an adverse action and either the appellant’s ability to accomplish his duties satisfactorily or some other legitimate Government interest. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8 (2010). On review, the appellant contends that the agency failed to meet its burden to prove nexus because of his “post-incident superior performance evaluation.” PFR File, Tab 3 at 24-25. 4 Garrity and Kalkines set forth various procedural protections for employees who may face criminal prosecution. 11 ¶23 We disagree. An agency may establish nexus between off-duty misconduct5 and the efficiency of the service by preponderant evidence by showing that the misconduct adversely affects the appellant’s or coworkers’ job performance or the agency’s trust and confidence in the appellant’s job performance. Ellis, 114 M.S.P.R. 407, ¶ 9. The appellant’s subsequent performance evaluation is inconsequential because an agency is not required to demonstrate a specific impact on the appellant’s job performance or service efficiency to establish a nexus between the appellant’s off-duty misconduct and the efficiency of the service. Jordan v. Department of the Air Force, 36 M.S.P.R. 409, 414 (1988), aff’d, 884 F.2d 1398 (Fed. Cir. 1989) (Table). Further, the Board previously has found that off-duty misconduct involving an offense of theft can reasonably cause an agency to lose trust or confidence in an employee’s ability to function in his position. See, e.g., Fouquet v. Department of Agriculture, 82 M.S.P.R. 548, ¶ 18 (1999). Here, the administrative judge found that the appellant occupied a position of public trust and his collateral responsibilities included “identifying and protecting information, personnel, property, facilities, operations[,] or material from unauthorized disclosure, misuse, theft, assault, vandalism, espionage, sabotage[,] or loss.” ID at 36; IAF, Tab 6 at 29. Given the seriousness of the appellant’s actions and his responsibilities as a Security Specialist, we find that the appellant’s misconduct adversely affected the 5 In his prehearing submission, the appellant asserted that he was off duty at the time of the misconduct. IAF, Tab 22, Ex. M. However, in his testimony, he stated that he came into work that morning, “was in the office for an hour or so to check emails,” went to the gym, took a shower, and then went to the cafeteria to get something to eat. HT 2 at 63-64 (testimony of the appellant). The record further reflects that employees are given up to 3 hours of administrative leave per week to accomplish fitness activities. HT 1 at 103 (testimony of the OIG investigator). Thus, while it appears that the misconduct occurred during a routine meal break, we cannot discern whether the appellant was on duty or off duty at the time of the misconduct. However, even if we determined that it was on-duty misconduct, removal would not be an appropriate penalty for the reasons described herein. 12 agency’s trust and confidence in his ability to perform his job. HT 1 at 327-30 (testimony of the deciding official). Therefore, we find that there is a nexus between the sustained misconduct and the efficiency of the service warranting disciplinary action. Because the deciding official failed to appropriately consider the relevant factors, the agency’s penalty determination is not entitled to deference. ¶24 On review, the appellant challenges the administrative judge’s finding that removal is a reasonable penalty. PFR File, Tab 3 at 1, 21-28; ID at 39. When the agency’s charge has been sustained, the Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In Douglas, 5 M.S.P.R. at 305-06, the Board listed 12 nonexhaustive factors that are relevant in assessing the penalty to be imposed for an act of misconduct, including: the nature and seriousness of the offense, and its relation to the appellant’s duties, position, and responsibilities; the appellant’s job level and type of employment; his past disciplinary record; and his past work record, including his length of service and performance history. In determining whether the selected penalty is reasonable, the Board gives due weight to the agency’s discretion in exercising its managerial function of maintaining employee discipline and efficiency. Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. The Board will modify a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness. Id. However, if the deciding official failed to appropriately consider the relevant factors, the Board need not defer to the agency’s penalty determination. Id. ¶25 Based on our review of the record, including the deciding official’s analysis of the Douglas factors, we find that the deciding official failed to appropriately consider all of the relevant factors in determining the penalty. As the 13 administrative judge noted, the Board and the U.S. Court of Appeals for the Federal Circuit have found that the de minimis nature of a theft may be a significant mitigating factor when, as in this appeal, the appellant has a satisfactory work record and no prior discipline. ID at 36 (citing Miguel v. Department of the Army, 727 F.2d 1081 (Fed. Cir. 1984), and Underwood v. Department of Defense, 53 M.S.P.R. 355, aff’d, 980 F.2d 744 (Fed. Cir. 1992) (Table)). The deciding official’s testimony shows that she did not treat the de minimis nature of the theft as a mitigating factor. For instance, she testified that she “dismissed” the de minimis nature of the theft in deciding what penalty to impose because “what matters is the action,” i.e., the misconduct, which, in her view, demonstrated a “lack of character” and caused her not to trust the appellant. HT 1 at 328 (testimony of the deciding official). She further stated that someone who steals “has a character flaw” and “should not be working as a senior security professional . . . with a security clearance in the Department of Defense.” Id. at 374. ¶26 Additionally, the record shows that the deciding official failed to consider the appellant’s lengthy service (30 years) and his satisfactory work record as mitigating factors. In her written Douglas factors analysis, the deciding official identified these factors as “NEUTRAL” and stated that she considered them “irrelevant vis-à-vis the offense.” IAF, Tab 6 at 21. In her hearing testimony, the deciding official explained that she considered these factors irrelevant because stealing “shows a character flaw.” HT 1 at 376 (testimony of the deciding official). ¶27 We find that the de minimis nature of the theft, the appellant’s 30 years of service, and his satisfactory work record are relevant mitigating factors in this case; however, the deciding official did not treat them as mitigating factors in determining the penalty. Instead, as discussed above, the deciding official deemed these factors “irrelevant.” We therefore find that the deciding official’s treatment of the mitigating factors was not sufficiently substantive, and we do not 14 defer to her penalty determination. See Stuhlmacher, 89 M.S.P.R. 272, ¶ 24 (finding that it was appropriate not to defer to the deciding official’s penalty determination because his treatment of the mitigating factors was not sufficiently substantive); Omites v. U.S. Postal Service, 87 M.S.P.R. 223, ¶ 11 (2000) (finding that the administrative judge correctly did not defer to the agency’s penalty determination because the agency failed to seriously consider the relevant Douglas factors). Accordingly, we will review the penalty imposed in light of the considerations articulated in Douglas to determine whether the penalty exceeds the bounds of reasonableness. Brown v. Department of the Treasury, 91 M.S.P.R. 60, ¶ 17 (2002). A 90-day suspension is the maximum reasonable penalty for the appellant’s misconduct in light of all of the attendant circumstances. ¶28 The most important factor in assessing whether the agency’s chosen penalty is within the tolerable bounds of reasonableness is the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). As previously discussed, the appellant’s misconduct is very serious, especially considering that it involved the violation of a criminal statute. Mann v. Department of Health & Human Services, 78 M.S.P.R. 1, 12 (1998). The misconduct also is related to the appellant’s duties, position, and responsibilities, as his collateral responsibilities included protection of information and property from theft or misuse, IAF, Tab 6 at 29, and his position required him to exercise good judgment, id. at 19. Further, the appellant’s misconduct was intentional and committed for the purpose of achieving a private gain. In addition, because he occupied a position of trust and, therefore, owed the agency and the public a fiduciary duty, IAF, Tab 6 at 20, the Board may hold him to a higher standard of 15 conduct than other employees in reviewing the propriety of the penalty, Fowler v. U.S. Postal Service, 77 M.S.P.R. 8, 13 (1997).6 ¶29 There are, however, several mitigating factors in this appeal. The appellant has 30 years of discipline-free Federal service. IAF, Tab 6 at 25; HT 2 at 43 (testimony of the appellant); see Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, ¶ 18 (2002) (finding that 13 years of discipline-free service was a significant mitigating factor). He also performed his job duties successfully, even after his misconduct. HT 1 at 287-88 (testimony of the appellant’s immediate supervisor), HT 2 at 43 (testimony of the appellant). In addition, the value of the items taken was de minimis, IAF, Tab 6 at 37, and his misconduct was not repeated. See, e.g., McNeil v. Department of Justice, 117 M.S.P.R. 533, ¶ 16 (2012) (finding that the fact that the charge represented a single, isolated incident was a mitigating factor); Skates v. Department of the Army, 69 M.S.P.R. 366, 368 (1996) (noting that the Board and courts have long held that the de minimis value of stolen items is a factor to be considered in a penalty determination depending on the “unique circumstances of each case”); Douglas, 5 M.S.P.R. at 305 (stating that a relevant penalty consideration is whether the offense was “frequently repeated”). ¶30 Further, although not addressed by the deciding official or the administrative judge, another mitigating factor in this case is that the appellant did not have custody or control over the stolen items as part of his official duties. Our reviewing court and the Board have treated this as a significant mitigating factor in cases involving de minimis theft, including cases in which the appellant occupied a position of trust. See, e.g., Miguel, 727 F.2d at 1082, 1084 6 Although the deciding official identified the notoriety of the appellant’s misconduct as an aggravating factor, IAF, Tab 6 at 21-22, we find no evidence in the record to suggest that the appellant’s misconduct resulted in any adverse publicity outside the agency (or Sodexho) or that the offense had any impact on the agency’s reputation or its mission. See, e.g., Brown, 91 M.S.P.R. 60, ¶ 21. 16 (remanding for a determination of a lesser penalty after concluding that removal was too harsh for a commissary cashier who took two bars of soap valued at $2.10); Skates, 69 M.S.P.R. at 368-69 (mitigating a removal to a 14-day suspension for the appellant’s theft of left-over food of a de minimis value from the dining room where he worked when there was no specific evidence that he was in control over the food that he took); Chauvin v. Department of the Navy, 66 M.S.P.R. 590, 592-93 & n.1 (1995) (mitigating to a 30-day suspension the demotion of a shipfitter foreman for the unauthorized possession and attempted removal of scrap metal valued at $2.60 because, among other things, the appellant did not have custody and control over the property as part of his official duties); Kelly v. Department of Health & Human Services, 46 M.S.P.R. 358, 359, 362-63 (1990) (mitigating to a 90-day suspension the removal of a claims representative who was convicted of off-duty shoplifting, finding that the items she took did not come into her possession as a result of her position). Conversely, the Board and our reviewing court have found that mitigating the agency’s chosen penalty for de minimis theft is inappropriate when the employee gained control over the stolen item as a direct result of his position. See, e.g., DeWitt v. Department of the Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984) (sustaining a commissary worker’s removal for taking $14.00 worth of groceries because “[w]here the employee takes unauthorized personal possession of property entrusted to his care and responsibility, the breach of trust is difficult to repair”); Underwood, 53 M.S.P.R. at 359 (sustaining a material worker’s removal for the attempted theft of two jars of cinnamon that she was responsible for loading and, thus, came within her custody and control). ¶31 In sum, although the appellant committed a serious act of misconduct, he had no history of prior discipline, he did not repeat the misconduct, the value of the stolen items was de minimis, and the items were not in his custody and control. In addition, his performance record during his 30-year Federal career, both before and after the incident, has been very good. Given these 17 circumstances, we find that removing the appellant would be contrary to the agency’s policy of imposing the “lowest possible penalty reasonably expected to correct the employee’s behavior.” IAF, Tab 22, Ex. K at 30. Thus, while a significant disciplinary action is necessary to impress upon the appellant the wrongfulness of his conduct, we find that the penalty of removal exceeds the tolerable limits of reasonableness.7 ¶32 Under the facts and circumstances of this case, we find that the maximum reasonable penalty is a 90-day suspension. Such a penalty recognizes the seriousness of the offense and its severity will impress upon the appellant and other DTRA employees that such conduct will not be tolerated. See Ciulla v. U.S. Postal Service, 37 M.S.P.R. 627, 628-29, 631 (1988) (mitigating to a 90-day suspension the removal of a Postal Distribution Clerk for taking items of de minimis value from salvage mail). ¶33 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). ORDER ¶34 We ORDER the agency to cancel the removal action and substitute a 90-day suspension and to restore the appellant effective January 25, 2015. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶35 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s 7 We have considered the appellant’s remaining arguments regarding the penalty factors, including the impact of his diabetes on the misconduct. E.g., PFR File, Tab 3 at 22. We are not persuaded that any lesser penalty is warranted. 18 efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶36 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶37 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶38 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 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 19 the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 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. 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 20 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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. ____ , 137 S. Ct. 1975 (2017). If you have a 21 representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 22 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 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. 9 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. 23 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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. DISSENTING OPINION OF TRISTAN L. LEAVITT in Calvin Chin v. Department of Defense MSPB Docket No. DC-0752-15-0431-I-1 ¶1 For the reasons explained below, I respectfully dissent from the majority opinion in this case. ¶2 The agency removed the appellant from his GS-14 Security Specialist position with the Security and Counterintelligence Office of the Defense Threat Reduction Agency at Fort Belvoir, Virginia. Initial Appeal File (IAF), Tab 1 at 10-13. As the Foreign Disclosure Officer and Chief of the Foreign Disclosure Branch, the appellant recommended to his second-line supervisor what classified and other sensitive national security information should be released to foreign governments regarding the combating of weapons of mass destruction. IAF, Tab 6 at 28-31. The position required liaising and negotiating with positional counterparts in other Federal defense agencies, id. at 31; Hearing Transcript, Day 1 (HT 1) at 246-47 (testimony of the appellant’s supervisor), as well as “identifying and protecting information, personnel, property, facilities, operations or material from unauthorized disclosure, misuse, theft, assault, vandalism, espionage, sabotage or loss,” IAF, Tab 6 at 29. The appellant’s job required him to maintain a Top Secret/SCI (Sensitive Compartmented Information) security clearance. Id. at 31. ¶3 The removal was based on a charge of larceny in violation of 18 U.S.C. § 641. Id. at 15-18, 25. Specifically, the agency charged that the appellant left a cafeteria on the military base where he worked without first paying for all the food he took. His actions were captured on videotape by surveillance cameras in the cafeteria. IAF, Tab 7. The surveillance footage shows the appellant: filling a container at a self-serve food bar when a police officer entered the cafeteria to get food as well; going to a cashier, paying for an initial amount of food while 2 looking around for the police officer, and placing the container of food into a plastic bag; immediately returning to the food bar and, upon ensuring no one was watching, removing the container from the plastic bag, adding additional food, and placing the container back in the plastic bag; beginning to leave the cafeteria but then, on noticing the police officer standing at the cashier, abruptly stopping, turning around to hide at the back of the cafeteria near an emergency exit door, and waiting until the police officer exited; and then leaving the cafeteria without paying for the additional food, passing one other individual standing at the cashier. Id. ¶4 A cafeteria employee observed the appellant’s actions and reported what happened to his manager. HT 1 at 87-88 (testimony of the cafeteria employee). The incident was eventually referred for investigation to the agency’s Office of Inspector General (OIG), which interviewed the appellant 2 ½ months later. IAF, Tab 6 at 32, 34. During the interview, one of the OIG investigators specifically asked the appellant if he ever took food from the cafeteria without paying for it, which he denied. Id. at 34. When the OIG investigator approached a television and asked the appellant to explain the video he was about to see, the appellant immediately interrupted him to admit he failed to pay once, explaining, “I was impatient and there must have been a line.” Id. at 34; HT 1 at 104-05. A few hours after the interview, the appellant returned to the OIG’s office to explain that his blood sugar might have been low the day he took the food, and that might have been why he did not pay. HT 1 at 109-10; Hearing Transcript, Day 2 (HT 2) at 106-07. However, the OIG investigator testified at the hearing that the appellant displayed no symptoms of having low blood sugar in the surveillance video. HT 1 at 150-53. ¶5 The agency subsequently suspended the appellant’s security clearance, HT 2 at 136-37, and the appellant’s first-line supervisor proposed to remove him, noting that his conduct “demonstrates a lack of judgment and honesty that is required for [his] position” and that “as a GS-14 [he is] expected to set the 3 example for junior personnel to follow,” IAF, Tab 6 at 26. In his oral and written replies, the appellant argued, among other things, that due to his diabetes his blood sugar needed immediate attention at the time of the incident. Id. at 15. The appellant’s second-line supervisor (the deciding official) sustained the appellant’s removal. Id. In an accompanying worksheet, she outlined her consideration of each of the 12 Douglas factors, noting among other things that the appellant’s position requires that he use good judgment to make sound decisions to protect sensitive national security information; that he is a leader of a team of Security Specialists for whom he is expected to lead by example, and that as a GS-14 Senior Security Specialist, he is held to a higher standard than lower-graded employees; that the video shows an offense that “was intentional and willful, not inadvertent or the result of an immediate need to eat”—in other words, “a deliberate intent to steal”; that he initially lied about his actions to investigators; that, even after admitting the offense, he failed to take responsibility for his actions; that both the offense and his subsequent statements and behavior were indicative of criminal, questionable judgment; and that both his and the agency’s credibility were key in working successfully with partner agencies in the Federal Government. Id. at 19-24. She also underscored that the appellant’s “actions and inactions display a basic lack of integrity,” and concluded: “The single most important factor in promoting the good order, discipline, efficiency, effectiveness of service, and esprit de corps is trust. Managers must be able to trust employees . . . . Ultimately, I do not trust [the appellant].” Id. at 24. ¶6 On appeal to the Board, the administrative judge held two days of hearings and issued a thorough and comprehensive initial decision in which she found the charge sustained and determined that removal was a reasonable penalty under the circumstances. IAF, Tab 25, Initial Decision (ID) at 1, 35, 39. She found that several claims the appellant made to the OIG and later to the agency were belied by the evidence (for instance, claiming the line at the cashier was too long for 4 him to wait to pay, despite the video plainly showing only one person standing in line, and later claiming “a sudden need to ingest food” because of his diabetes when he did not eat the food immediately after stealing it). ID at 12-13. Significantly, she also made a demeanor-based determination that the appellant’s testimony lacked credibility—precisely the same qualification at issue in the agency’s contention that it could no longer fully trust the appellant given his critical duties. ID at 14. Among other things, the administrative judge also cited the appellant’s lack of remorse and denial of his actions until the OIG was about to show him video evidence, ID at 15; the deciding official’s testimony that the surveillance video of the incident was critical in her decision to remove the appellant, ID at 10, that she no longer trusted him with classified information, ID at 33, and that her lack of trust in him overrode any rehabilitation potential, id.; and the fact that he held the highest security clearance level available to a civilian, id. The administrative judge, moreover, dedicated 5 ½ pages of her decision to assessing the reasonableness of the imposed penalty. ID at 34-39. She concluded: “While I believe the appellant’s lengthy service history and absence of a disciplinary record are worthy of serious consideration, I find the appellant’s position, duties, and responsibilities, and the agency’s mission[,] make returning him to the position of record impossible despite the de minimis value of the items he stole.” ID at 39. ¶7 In the majority opinion, my colleagues agree the administrative judge correctly found the agency proved the larceny charge, but voted to mitigate the removal to a 90-day suspension. In situations such as this when the administrative judge sustains the charges brought by the agency, the Board reviews the agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion “within the tolerable limits of reasonableness.” Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 9 (2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). As our reviewing court 5 held 35 years ago, “It is well established that the determination of the proper disciplinary action to be taken to promote the efficiency of the service is a matter peculiarly and necessarily within the discretion of the agency.” Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987). “Indeed,” the court continued, “deference is given to the agency’s judgment unless the penalty exceeds the range of permissible punishment specified by statute or regulation, or unless the penalty is ‘so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.’” Id. (quoting Villela v. Department of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)). Thus, it is decidedly not the Board’s role to decide what penalty we would impose if we were the deciding officials. We held in the case of Douglas, our first major consideration of this issue after the Board’s creation: Management of the federal work force and maintenance of discipline among its members is not the Board’s function. Any margin of discretion available to the Board in reviewing penalties must be exercised with appropriate deference to the primary discretion which has been entrusted to agency management, not to the Board. Our role in this area, as in others, is principally to assure that managerial discretion has been legitimately invoked and properly exercised. 5 M.S.P.R. at 300-01. ¶8 Here, the administrative judge considered the deciding official’s testimony, finding it consistent with the agency’s decision letter and the Douglas factors checklist she completed. IAF, Tab 6 at 19-24. As outlined above, the considerations most important to the deciding official were the seriousness of the appellant’s willful and intentional misconduct, his display of poor judgment, his public trust position as a Senior Security Specialist (which carries the highest civilian clearance level at the agency and thereby causes him to be held to a higher standard, such as requiring him to self-report all incidents of an unfavorable, a disqualifying, or a derogatory nature), the fact that he only admitted to the theft after being confronted with video evidence of the incident, the embarrassment and lack of trust that his misconduct caused, and the 6 deleterious effect the dishonest behavior would have upon his ability to perform his duties at a satisfactory level. ¶9 Although my colleagues state that the deciding official failed to adequately consider the appellant’s 30 years of service and the de minimis nature of the offense, I cannot agree. For instance, the removal decision letter, addressed to the appellant, clearly reads, “You highlighted in your argument that the amount of food stolen was di minimis, . . . your years of experience in the federal government, and your work history.” IAF, Tab 6 at 15. The deciding official also testified at the hearing that she did in fact consider the appellant’s lengthy service when she assessed which penalty to impose. HT 1 at 313, 374-75. Yet as she recorded on her Douglas factor worksheet, this factor was outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” IAF, Tab 6 at 21. ¶10 Furthermore, a considerable amount of time was spent discussing the de minimis issue at the hearing, during direct examination and especially during cross-examination of the deciding official. HT 1 at 313, 327-29, 356-66, 368, 376-79. In particular, the deciding official testified that, although she considered the de minimis amount of stolen food as a factor, in her judgment, “a person who will take shortcuts, lie, cheat, and steal . . . on something as miniscule as $5.00 of food is more apt to take those steps with things that are more important . . . .” Id. at 328-29. She further testified that “a kind of person who would take a shortcut and not pay for something, in other words steal it, is the kind of person who would take a shortcut in the performance of other duties which are assigned to [him].” Id. at 364. She emphasized that, given the critical nature of the appellant’s position and the importance of the agency’s mission, i.e., to prevent the spread and proliferation of weapons of mass destruction, “[t]hose shortcuts could result in a national security event.” Id. ¶11 Likewise, the deciding official testified that she reviewed and discussed with agency counsel the “squib sheet” or summary of court and Board decisions— 7 specifically dealing with the mitigation of removal actions for employees accused of offenses of a de minimis nature—that the appellant’s counsel presented to her during the oral reply. Despite her review and evaluation of this case law, however, the deciding official still believed that the holdings in those cases did not warrant mitigating the removal penalty in this matter. Id. at 377-79. To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness. Lopez v. Department of the Navy, 108 M.S.P.R 384, ¶ 22 (2008). ¶12 The administrative judge reviewed the same factors the deciding official considered, as well as the fact that, as part of his duties, the appellant was responsible for “protecting information, personnel, property, facilities, operations or material from unauthorized disclosure, misuse, theft . . . .” ID at 33, 39 (emphasis in original). She also considered other critical issues not mentioned in the majority opinion, such as the appellant’s initial dishonesty in his dealings with OIG investigators, which goes to the heart of the issue of trust the deciding official cited in finding the appellant incapable of rehabilitation. ID at 12-13, 15. Further making the agency’s point, the administrative judge concluded that the appellant displayed a lack of credibility in his hearing testimony, finding that he “failed to exhibit a clear, direct, or straightforward demeanor during his testimony and his testimony does not support the evidence of record.” ID at 14; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so). ¶13 To me, these factors are quite convincing. The administrative judge determined that the deciding official—the official most responsible in the Government for relying on the good judgment of the appellant, as the second-line 8 supervisor to whom he makes recommendations on releasing classified and other sensitive information—properly considered the Douglas factors most relevant to this case and reasonably exercised her management discretion. I believe the administrative judge also properly considered the de minimis nature of the appellant’s theft and his 30 years of service, but agreed with the deciding official that those factors were outweighed by the numerous other aggravating factors. I acknowledge that if I were the deciding official at the agency, I might have considered this case a “very close call,” as did the administrative judge. ID at 39. However, I cannot find that the agency’s penalty determination was outside of the tolerable limits of reasonableness, and thus I firmly agree with the administrative judge that it should not be disturbed. /s/ Tristan L. Leavitt Member	https://www.mspb.gov/decisions/precedential/CHIN_CALVIN_DC_0752_15_0431_I_1_OPINION_AND_ORDER_1967332.pdf
09-23-2022	2022 MSPB 33	Robert Marcell	https://www.mspb.gov/decisions/precedential/MARCELL_ROBERT_C_DE_0752_13_1551_I_1_OPINION_AND_ORDER_1963015.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 33 Docket No. DE-0752-13-1551-I-1 Robert C. Marcell, Appellant, v. Department of Veterans Affairs, Agency. September 23, 2022 Ashley Leonard, Esquire, Salt Lake City, Utah, for the appellant. Chau Phan, Salt Lake City, Utah, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the charge of threatening bodily injury to agency employees, found that the appellant did not prove his retaliation claims, and affirmed his removal. For the reasons discussed below, we DENY the appellant’s petition for review. We AFFIRM the administrative judge’s finding that the agency proved the charge. However, we VACATE the administrative judge’s finding that the appellant’s Family and Medical Leave Act of 1993 (FMLA) leave requests and Office of Workers’ Compensation Programs (OWCP) claim constitute activity protected by 5 U.S.C. § 2302(b)(9). To the extent the appellant’s retaliation claims could form 2 the basis for another affirmative defense, we conclude he has not proven these claims and thus a different outcome is not warranted. Finally, we AFFIRM the administrative judge’s finding that the removal penalty is reasonable based on the sustained misconduct. BACKGROUND ¶2 The relevant background information, as recited in the initial decision, is generally undisputed. Initial Appeal File (IAF), Tab 43, Initial Decision (ID). The appellant was employed by the agency as a Legal Administrative Specialist. ID at 2. In 2012 and 2013, he took FMLA leave to care for his parents and, later, to care for his own medical condition. Id. After he returned to work in April 2013, the appellant sustained an injury when walking in to work, and he submitted a claim for OWCP benefits. ID at 2-3; IAF, Tab 23 at 43-44. On June 25, 2013, the appellant’s supervisor notified him that he was required to report for work on June 27, 2013.1 ID at 3. On June 26, 2013, the appellant spoke with his supervisor and the Human Resources (HR) Manager and he told them that he did not have a doctor’s note releasing him to return to work the next day. The HR Manager, following up on this conversation, contacted the emergency room where the appellant went for treatment after he sustained his on-the-job injury. The HR Manager questioned an emergency room staff member about the appellant’s visit there and was told that the appellant’s physician, according to the notes in the system, did not approve any additional time off from work for the appellant. When the appellant was informed of this, he became angry that no one told him beforehand that they would be contacting the emergency room and he thought the communication with the emergency room employee may have violated his privacy rights and his rights under the Health 1 The appellant, in connection with his OWCP-claimed injury, provided doctor’s notes which excused him from returning to work until June 27, 2013. ID at 4 n.2; IAF, Tab 23 at 52. 3 Insurance Portability and Accountability Act. ID at 3-4. Later that same day, the appellant called the agency’s Western Area office and said, “If I have to go into work tomorrow, I will probably kill someone.”2 ID at 4-5; IAF, Tab 8 at 19. The agency ordered the appellant not to return to work, notified local and agency law enforcement, and disabled the appellant’s security badge. ID at 5. ¶3 The agency removed the appellant from the Federal service, effective August 9, 2013, for threatening bodily injury to agency employees. ID at 6; IAF, Tab 8 at 11-15, 19-21. The appellant timely filed this appeal and alleged, among other things, that the agency removed him in retaliation for filing FMLA leave requests and an OWCP claim. IAF, Tab 1, Tab 31 at 1. After holding the requested hearing, IAF, Tab 36, Hearing Compact Disc 1, Tab 40, Hearing Compact Disc 2 (HCD-2), the administrative judge sustained the charge and found that the appellant failed to prove his retaliation claims under 5 U.S.C. § 2302(b)(9), ID at 8-16. The administrative judge further found that the removal promoted the efficiency of the service and was within the bounds of reasonableness. ID at 16-19. The appellant has filed a petition for review and the agency has filed a response.3 Petition for Review (PFR) File, Tabs 1, 3. 2 In response to the notice of proposed removal, the appellant stated that he “may have said something that could have been interpreted as a threat,” but he could not recall his statements to agency employees. IAF, Tab 8 at 17. 3 The agency was required to file a response to the petition for review by Saturday, November 5, 2016. Petition for Review (PFR) File, Tab 2 at 1. Where, as here, the deadline falls on a weekend, the filing deadline is extended to the next business day. 5 C.F.R. § 1201.23. Thus, the agency’s submission was due on Monday, November 7, 2016. The agency’s response was electronically filed on Tuesday, November 8, 2016. PFR File, Tab 3. The agency did not offer any explanation for its delay. Because the agency’s response was untimely filed with no good cause shown, we need not consider it. 5 C.F.R. § 1201.114(g). Nonetheless, we have reviewed the agency’s response and it does not warrant a different outcome. 4 ANALYSIS4 The administrative judge properly sustained the agency’s charge. ¶4 In Metz v. Department of the Treasury, 780 F.2d 1001, 1004 (Fed. Cir. 1986), the U.S. Court of Appeals for the Federal Circuit explained that, in deciding whether statements constitute threats, the Board is to apply the reasonable person criterion, considering the listeners’ reactions and apprehensions, the wording of the statements, the speaker’s intent, and the attendant circumstances. The administrative judge properly identified this standard and considered these criteria in the initial decision. ID at 10-12. Importantly, the administrative judge noted that the appellant’s testimony was at odds with the testimony of agency witnesses regarding the appellant’s statements during the June 26, 2013 telephone call, and he credited the testimony of the agency witnesses who said that the appellant made the statement in question. ID at 8-10 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)). The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not identified such reasons. Indeed, the appellant does not appear to challenge the administrative judge’s credibility determinations on review. Accordingly, we affirm the administrative judge’s credibility determinations. ¶5 Regarding the appellant’s assertion on review that he did not make a threat because his statement was conditioned on his returning to work and the agency ordered him not to return to work, PFR File, Tab 1 at 4, the administrative judge addressed this argument in the initial decision, ID at 12-13. The administrative 4 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 5 judge noted that some threats of bodily harm, even if conditional, are per se unsettling and support a finding that they constitute a threat. ID at 12-13. We agree. See Rose v. U.S. Postal Service, 109 M.S.P.R. 31, ¶ 26 (2007) (explaining that even conditional threats of bodily harm with a firearm are unsettling per se and support a finding that they constitute a threat). For the reasons stated herein and in the initial decision, we agree with the administrative judge that the agency proved the charge. We vacate the administrative judge’s finding that the appellant’s FMLA leave requests and OWCP claim constitute activity protected by 5 U.S.C. § 2302(b)(9), but a different outcome is not warranted. ¶6 Under 5 U.S.C. § 2302(b)(9)(A), an agency official may not take any personnel action against any employee “because of . . . the exercise of any appeal, complaint, or grievance right.” Although not raised by the appellant on review, the Board has held that an OWCP claim is not the “exercise of any appeal, complaint, or grievance right” because it does not constitute an initial step toward taking legal action against an employer for the perceived violation of an employee’s rights. Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 508-09 (1993), overruled on other grounds by Thomas v. Department of the Treasury, 77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000). Although Von Kelsch arose in the context of an individual right of action appeal, and the appellant here has brought an appeal pursuant to 5 U.S.C. chapter 75, the Board’s interpretation of 5 U.S.C. § 2302(b)(9) in Von Kelsch still applies. See, e.g., Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 18 (2016) (finding that subsequent amendments to section 2302 in the Whistleblower Protection Enhancement Act of 2012 did not alter the Board’s analysis in Von Kelsch concerning the meaning of the terms “appeal, complaint, or grievance” in 5 U.S.C. § 2302(b)(9)); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 10 (2014) (same). Thus, we conclude that the appellant’s OWCP claim does not constitute activity falling 6 within the protection of section 2302(b)(9). We further find that the appellant’s FMLA leave requests also are excluded from protection under 5 U.S.C. § 2302(b)(9) because they do not constitute an initial step toward taking legal action against the agency for the perceived violation of his rights. We therefore vacate the administrative judge’s analysis in this regard. ¶7 The administrative judge acknowledged in the initial decision that FMLA leave requests arguably are not protected by 5 U.S.C. § 2302(b)(9)(A), but he correctly noted that the Board implied that such activity was protected in Doe v. U.S. Postal Service, 95 M.S.P.R. 493, ¶ 11 (2004) (finding that the appellant’s retaliation claim failed because he did not show a causal relationship between the demotion action and his FMLA leave request). ID at 13 n.4. The Board in Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶¶ 10-13 (2010), overruled on other grounds by Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), similarly appeared to find that an OWCP claim constitutes protected activity without mentioning Von Kelsch or the analysis therein. We overrule Doe and Crump to the extent that they explicitly or implicitly found that FMLA leave requests or an OWCP claim constitutes protected activity under 5 U.S.C. § 2302(b)(9). ¶8 Notwithstanding our finding that the appellant’s activity is not protected by 5 U.S.C. § 2302(b)(9), we have nonetheless considered his arguments to the extent that they could form the basis for another affirmative defense, such as a violation of 5 U.S.C. § 2302(b)(10), which makes it a prohibited personnel practice to “discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.” On review, the appellant cites to the agency’s failure to inform him of the proper procedures and the agency’s poor and delayed handling of his OWCP claim as evidence of its animus against him. PFR File, Tab 1 at 6-8. Even if we assume for the purposes of our analysis that the agency harbored such animus, he has not persuasively explained 7 how any such animus led to the removal. Importantly, he does not challenge the administrative judge’s finding that the proposing and deciding officials “credibly” testified that the appellant’s FMLA leave requests and OWCP claim were not factors in their respective decisions. ID at 16. We are convinced that, given the serious nature of the charge against the appellant, the agency would have removed him in the absence of such activity. For these reasons, we find that the appellant has failed to prove that the removal was in retaliation for his FMLA leave requests or OWCP claim. The appellant’s removal was within the bounds of reasonableness.5 ¶9 The Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In the initial decision, the administrative judge discussed the deciding official’s testimony concerning his penalty analysis and concluded that the removal penalty was reasonable. ID at 17-18. The appellant argues on review that the removal penalty was not reasonable because the deciding official and the administrative judge failed to consider mitigating factors, and the agency imposed the action pursuant to a zero tolerance policy. PFR File, Tab 1 at 1, 3-6. He also asserts that he was similarly situated to another agency employee who made threats repeatedly but suffered no disciplinary action. Id. at 8. ¶10 We have considered the appellant’s argument that the administrative judge failed to adequately consider a number of mitigating factors, including, among other things, his 14 years of Federal service, “exemplary” work record, and the circumstances that led to the irate June 26, 2013 telephone call. Id. at 4-6. The 5 Although not raised by the appellant on review, we affirm the administrative judge’s conclusion that a removal action based on a threat to agency employees promotes the efficiency of the service. ID at 16-17; Rose, 109 M.S.P.R. 31, ¶ 30. 8 administrative judge noted that the deciding official considered these mitigating factors, among others. ID at 18; IAF, Tab 8 at 11-15. Thus, this argument is without merit. ¶11 The appellant also appears to assert on review that the agency failed to consider his medical condition or mental impairment. PFR File, Tab 1 at 5-6. In this regard, the appellant contends that neither the proposing nor deciding official considered the fact that he was on leave for a work-related injury at the time of the incident in question. Id. at 6. This assertion, however, is contradicted by the written record. IAF, Tab 8 at 12 (acknowledging in the decision letter that the appellant expressed anger regarding a perceived violation of his privacy rights by agency officials concerning his continued leave of absence due to an injury). Our reviewing court has held that “when mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, this must be taken into account when taking an adverse action against the employee.” Malloy v. U.S. Postal Service, 578 F.3d 1351, 1356 (Fed. Cir. 2009). Here, however, the appellant has not sufficiently explained how his workplace injury is related to or otherwise led him to make the threat during the June 26, 2013 telephone call. Accordingly, this argument is without merit. ¶12 The agency’s table of penalties shows that for a first offense of “[f]ighting, threatening, attempting or inflicting bodily injury to another [or] engaging in dangerous horseplay,” the penalty ranges from reprimand to removal. IAF, Tab 27 at 75. However, the deciding official stated in the decision letter that the agency has a zero tolerance policy regarding workplace violence issues. IAF, Tab 8 at 12. In the initial decision, the administrative judge noted that when an agency imposes a removal under a zero tolerance policy without giving appropriate consideration to the relevant Douglas factors, the penalty determination is not entitled to deference. ID at 17 (citing Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶¶ 14-15 (2006), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007)). The administrative judge appeared to credit the deciding official’s 9 testimony that the agency’s zero tolerance policy for workplace violence meant that it was required to address every instance of workplace violence with some type of action, though not necessarily with a removal action.6 ID at 18-19; HCD-2 (testimony of the deciding official). The deciding official’s description of the agency’s zero tolerance policy does not run afoul of Wiley or other Board decisions because the record reflects that the deciding official considered the relevant Douglas factors. ID at 18-19; IAF, Tab 8 at 11-15, Tab 18; HCD-2 (testimony of the deciding official). ¶13 Finally, the appellant asserts that he was similarly situated to another employee who made threatening statements on a daily basis but that that employee suffered no disciplinary action.7 PFR File, Tab 1 at 8. This argument is unavailing. The only evidence the appellant offers to support this assertion is the testimony of a union representative, who said that she heard another agency employee making statements such as “I’m going to kill that rater” or “I’m going to shoot the rater” on an almost daily basis. Id.; HCD-2 (testimony of the union representative). The union representative testified, however, that she did not take the other employee’s statements seriously because the other employee made such statements all the time. HCD-2 (testimony of the union representative). Without any citation to the record, the appellant also states on review that a supervisor heard the other employee make such statements, but the supervisor laughed. PFR File, Tab 1 at 8. Even if we assume for the purposes of our analysis that the appellant’s characterization of the supervisor’s behavior is true, it appears that 6 The appellant correctly notes in his petition for review that the deciding official testified that “threatening is removal.” PFR File, Tab 1 at 4. However, we understand his testimony to mean that a threat to kill someone is at the more serious end of the spectrum of offenses in the agency’s table of penalties, and would more likely result in a removal, whereas “dangerous horseplay” is a less serious offense and might only result in a suspension or reprimand. HCD-2 (testimony of the deciding official). 7 Although somewhat unclear, the appellant appears to assert that his OWCP claim and FMLA leave requests were the basis for the differential treatment. Id. 10 the agency took the appellant’s threat seriously, supra ¶ 2, whereas it did not take the other employee’s statements seriously at all, which could explain the difference in treatment. ¶14 Ultimately, a threat to take someone’s life is a serious offense. Facas v. U.S. Postal Service, 35 M.S.P.R. 426, 431 (1987). The Board has held that a removal based on a threat often will be within the bounds of reasonableness even if there are mitigating factors. Rose, 109 M.S.P.R. 31, ¶ 31; Facas, 35 M.S.P.R. at 430-31. The appellant has not persuaded us that the administrative judge erred when he concluded that the deciding official considered the relevant Douglas factors and that the removal penalty was reasonable. We therefore affirm the administrative judge’s analysis in this regard. ORDER ¶15 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 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 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 11 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: 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. 12 (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 13 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 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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 9 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. 14 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/MARCELL_ROBERT_C_DE_0752_13_1551_I_1_OPINION_AND_ORDER_1963015.pdf	Appellant: Robert C. Marcell Agency: Department of Veterans Affairs Decision Number: 2022 MSPB 33 Docket Number: DE-0752-13-1551-I-1 ADVERSE ACTION PROTECTED ACTIVITY REASONABLENESS OF PENALTY The appellant was employed as a Legal Administrative Specialist with the agency. In 2012 and 2013, he took leave under the Family and Medical Leave Act of 1993 (FMLA) to care for his parents and, later, for his own medical condition. After returning to duty, he sustained an injury while walking to work, and he submitted a claim for Office of Workers’ Compensation Programs (OWCP) benefits. Following a leave of absence due to the injury, the agency informed him that he was required to report to work, to which the appellant responded, that if he was required to report to work, he would probably kill someone. As a result, the agency removed the appellant for threatening bodily injury to agency employees. In a timely appeal with the Board, he argued that he was removed in retaliation for filing FMLA leave requests and an OWCP claim. After holding a hearing, the initial decision sustained the charge, concluded that the appellant failed to prove his retaliation claim under 5 U.S.C. § 2302(b)(9), and found that the removal promoted the efficiency of the service and was within the bounds of reasonableness. Following the appellant’s petition for review, the Board issued this precedential decision affirming the initial decision. Holding: The agency proved by preponderant evidence that the appellant made threats concerning bodily injury to agency employees. 1. Considering the appellant’s argument that he did not make a threat because the statement was conditioned on him returning to work and the agency ordered him not to return to work, the Board agreed with the administrative judge that some threats of bodily harm, even if conditional, are per se unsettling and support a finding that they constitute a threat. Holding: The appellant’s OWCP claim and request for FMLA leave do not constitute protected activity under 5 U.S.C. § 2302(b)(9). 1. Regarding the appellant’s claim that his removal was in retaliation for submitting an OWCP claim, the Board reiterated its finding in Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 508-09 (1993) that an OWCP claim is not protected activity under section 2302(b)(9) because it does not constitute an initial step toward taking legal action against an employer for the perceived violation of an employee’s rights. 2. The Board also found that the appellant’s FMLA leave requests are similarly excluded from protection under section 2302(b)(9) because they do not constitute an initial step toward taking legal action against the agency for the perceived violation of his rights. 3. To the extent the Board’s prior decisions in Doe v. U.S. Postal Service, 95 M.S.P.R. 493, ¶ 11(2004) and Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶¶ 11-13 (2010) explicitly or implicitly found that a FLMA leave request and an OWCP claim constitute protected activity, those cases are overruled on that issue. 4. The Board considered whether the appellant could otherwise establish his retaliation claim under 5 U.S.C. § 2302(b)(10), which makes it a prohibited personnel practice to “discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others,” but found that he failed to do so. Holding: The penalty of removal was within the bounds of reasonableness. 1. The Board found that, because the appellant failed to sufficiently explain how his workplace injury was related to or otherwise led him to engage in the misconduct with which he was charged, any argument that the deciding official should have considered his illness or injury in deciding to remove him is without merit. 2. The Board agreed with the administrative judge that the deciding official’s testimony suggesting that he had a zero-tolerance policy for threatening behavior did not run afoul of the Board’s decision in Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, 542-43 (2006), aff’d, 218 Fed. App’x 1001 (Fed. Cir. 2007), which requires the Board to review a penalty de novo when the deciding official fails to give serious consideration to any penalty other than removal, because the record established that the deciding official appropriately considered the Douglas factors. COURT DECISIONS PRECEDENTIAL:
09-14-2022	2022 MSPB 32	Thomas Dieter	https://www.mspb.gov/decisions/precedential/DIETER_THOMAS_MICHAEL_AT_0752_14_0475_I_1_OPINION_AND_ORDER_1960343.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 32 Docket No. AT-0752-14-0475-I-1 Thomas Michael Dieter, Appellant, v. Department of Veterans Affairs, Agency. September 14, 2022 Ward A. Meythaler, Tampa, Florida, for the appellant. T. B. Burton, Esquire, Bay Pines, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal. For the reasons discussed below, we DENY the petition for review and AFFIRM the initial decision. BACKGROUND ¶2 The appellant is a Roman Catholic priest and was formerly employed as a Chaplain, GS-0060-12, at the Department of Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida. Initial Appeal File (IAF), Tab 4 at 12, Tab 46 at 135. The agency has a qualification standard requiring all Chaplains to have an 2 “ecclesiastical endorsement, dated within the past 12 months, from the official national endorsing authority of their faith group or denomination.” IAF, Tab 5 at 9. The agency’s Veterans Health Administration Handbook defines an ecclesiastical endorsement as: [A] signed statement, by the official national endorsing agency of an ecclesiastical endorsing organization, certifying that an individual is in good standing with that religious faith group, and stating that the individual is, in the opinion of the endorsing agent, qualified to conduct all functions, sacraments, ordinances, ceremonies, rites, and/or observances required to meet the needs of patients. Id. at 17. Thus, an ecclesiastical endorsement is provided by a Chaplain’s religious faith group, and not by the agency or the Government. Id. at 9, 17. The Archdiocese for the Military Services, USA (AMS), a division of the Roman Catholic Church, provides ecclesiastical endorsements for Roman Catholic Chaplains with the agency, such as the appellant. IAF, Tab 4 at 34, Tab 5 at 28, 35. ¶3 By letters dated October 17, 2013, the AMS, through the Vicar for Veterans Affairs, notified the appellant and the agency that it had withdrawn the appellant’s Ecclesiastical Endorsement and Faculties (ecclesiastical endorsement) to serve as a Chaplain with the agency. IAF, Tab 4 at 42-43. Shortly thereafter, on October 31, 2013, the agency proposed to remove the appellant for failure to maintain a condition of employment—specifically, his ecclesiastical endorsement. Id. at 39-40. The proposal notice explained that, as an agency Chaplain, the appellant was required to have an ecclesiastical endorsement from the official national endorsing authority of his faith group or denomination but that, by letter dated October 17, 2013, the AMS had withdrawn his endorsement. Id. at 39. The proposal notice further stated that, as a result of the withdrawal, the appellant was no longer able to perform work as a Chaplain for the agency and therefore was charged with failure to maintain a condition of employment. Id. The proposal notice indicated that the appellant’s August 2013 reprimand for 3 disrespectful conduct would be taken into consideration in determining the penalty.1 Id. ¶4 The appellant, through counsel, provided an oral and a written response to the proposed removal, arguing, among other things, that he could not adequately defend himself without information regarding AMS’s decision to withdraw his ecclesiastical endorsement and urging the Director of the Bay Pines Department of Veterans Affairs Healthcare System (Director) to recuse herself as the deciding official because of her personal involvement in prior actions involving the appellant. Id. at 19-21; IAF, Tab 46 at 134‑35. The appellant acknowledged that he could not serve as a Chaplain without an ecclesiastical endorsement but requested reassignment to another position with the agency in lieu of removal. IAF, Tab 46 at 135. In a decision letter dated December 31, 2013, the Director sustained the single charge of failure to maintain a condition of employment and imposed the removal effective January 10, 2014. IAF, Tab 4 at 12-15. ¶5 The appellant appealed his removal to the Board and requested a hearing. IAF, Tab 1. The administrative judge issued an order finding that the Board lacked the authority to review the substance of the AMS’s decision to withdraw the appellant’s ecclesiastical endorsement and that the Board’s review in this case was analogous to the Board’s review of adverse actions under 5 U.S.C. § 7513 based on the denial, revocation, or suspension of a security clearance. IAF, Tab 27. In a prehearing order, the administrative judge advised the parties that the hearing would be limited to review of the appellant’s removal and his due process and harmful procedural error affirmative defenses and notified them of 1 In July 2013, the Chief of Chaplain Services proposed to reprimand the appellant for alleged disrespectful conduct based on his behavior towards the Director of the Bay Pines Department of Veterans Affairs Healthcare System (Director) on April 6, 2013, and for allegedly making inappropriate remarks regarding the Director on April 25, 2013. IAF, Tab 4 at 45-46. In August 2013, the Associate Director for Patient and Nursing Services (Associate Director) imposed the reprimand. Id. at 44. 4 their respective burdens of proof. IAF, Tab 49. After holding the requested hearing, the administrative judge issued an initial decision finding that the agency proved the charge, nexus, and the reasonableness of the penalty, and denying the appellant’s affirmative defenses. IAF, Tab 59, Initial Decision (ID). Thus, the administrative judge affirmed the appellant’s removal. ID at 31. ¶6 The appellant has filed a petition for review of the initial decision, arguing that the administrative judge erred in denying his affirmative defenses, failed to consider his argument that the agency committed a prohibited personnel practice by defaming and stigmatizing him, erred in denying his motion to compel, and improperly denied his request to admit an exhibit. Petition for Review (PFR) File, Tab 1.2,3 The agency has responded in opposition to the appellant’s petition for review.4 PFR File, Tab 3. 2 On review, the appellant does not challenge the administrative judge’s findings that the agency proved the charge and nexus, PFR File, Tab 1, and we discern no reason to disturb these well-reasoned findings, see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility). Although, as discussed below, the appellant challenges the administrative judge’s determination that he failed to establish his affirmative defenses, he does not otherwise dispute the administrative judge’s finding that the penalty of removal is reasonable for the sustained charge of failure to maintain a condition of employment. PFR File, Tab 1. We likewise discern no basis to disturb this finding and agree that removal is an appropriate penalty for failure to maintain a condition of employment. See Crosby, 74 M.S.P.R. at 106; see also, e.g., Penland v. Department of the Interior, 115 M.S.P.R. 474, ¶ 11 (2010) (finding that a penalty of removal was reasonable when an appellant failed to maintain a pilot authorization required by his position). 3 By notice dated April 20, 2017, the Office of the Clerk of the Board notified the appellant that his petition for review was missing page 5 and afforded him an opportunity to submit the missing page. PFR File, Tab 4. The appellant timely submitted a copy of page 5, PFR File, Tab 5 at 6, and we have accepted the page into the record on review. 4 In May 2021, while the appellant’s petition for review was pending, the appellant’s counsel notified the Board that the appellant died on April 28, 2021. PFR File, Tab 6. On May 25, 2021, the Office of the Clerk of the Board issued an order advising that the 5 ANALYSIS The administrative judge properly found that the appellant failed to establish his constitutional due process affirmative defense. ¶7 The appellant argues on review, as he did below, that the agency violated his due process rights by providing false or misleading information to the AMS and by failing to give him proper notice and an opportunity to respond to that information and to the proposed removal. PFR File, Tab 1 at 8-12, 16-17. He also argues, as he did below, that his right to due process was violated because the deciding official was biased against him and considered ex parte information in deciding to impose the removal rather than reassigning him to a position that did not require an ecclesiastical endorsement. Id. at 17-23. ¶8 In the initial decision, the administrative judge thoroughly discussed the events leading up to the AMS’s decision to withdraw the appellant’s ecclesiastical endorsement and concluded that it was “entirely possible” that the AMS relied on information provided by the Chief of Chaplain Service to the appeal may be dismissed if there is not a proper substitute for the appellant and providing instructions on how to file a motion for substitution. PFR File, Tab 7. Thereafter, the appellant’s counsel moved that Francis H. Dionne be substituted as the party in this appeal, and he submitted evidence showing that Mr. Dionne was appointed as the personal representative of the appellant’s estate in the Probate Division of the Circuit Court for Pinellas County, Florida. PFR File, Tabs 8-9. The agency did not file a response or opposition to the motion for substitution. Pursuant to the Board’s regulations, if an appellant dies during the pendency of his appeal, the processing of the appeal will only be completed upon the substitution of a proper party. 5 C.F.R. § 1201.35(a). Substitution is not permitted when the appellant’s interests terminate due to his death. Id. The Board has permitted substitutions following an appellant’s death in appeals involving adverse actions because, in such cases, monetary relief would have been recovered if the appeal was successful on the merits and the appellant’s representative of his estate stood in line to receive that relief. See Carpio v. Office of Personnel Management, 94 M.S.P.R. 506, ¶ 5 (2003). Here, we find that the appellant’s interests did not terminate upon his death because if the appellant’s estate prevails, it will be entitled to monetary relief, such as back pay. We further find that the appellant’s personal representative, Mr. Dionne, is responsible for managing any relief for the benefit of the appellant’s estate. Therefore, we grant the appellant’s motion for substitution. 6 agency’s Liaison to the AMS in deciding to withdraw the appellant’s ecclesiastical endorsement.5 ID at 9-14. Nonetheless, the administrative judge concluded that the AMS, not the agency, made the decision to withdraw the appellant’s ecclesiastical endorsement and that, once the AMS made such a decision, the agency could properly rely on the appellant’s loss of his ecclesiastical endorsement as the basis for its action. ID at 15-16. Although the appellant does not appear to challenge the administrative judge’s finding that the Board lacks the authority to review the AMS’s decision, he argues that the agency violated his due process rights by providing “stigmatizing” information to the AMS without giving him notice and an opportunity to respond to that information and by failing to disclose the contents of all communications between the AMS and the agency that pertained to him. PFR File, Tab 1 at 8-11. ¶9 We agree with the administrative judge’s determination that the Board lacks the authority to review the AMS’s decision to withdraw the appellant’s 5 The following events preceding the AMS’s decision to withdraw the appellant’s ecclesiastical endorsement are undisputed but, as discussed below, are irrelevant to the dispositive issues in this appeal. During a mass on September 15, 2013, the appellant gave a homily to the congregation in which he stated that, while wearing the “Roman Collar” earlier that morning, he “hit” and “knocked out,” or words to that effect, two teenage boys who were attempting to burglarize a veteran. IAF, Tab 47 at 12, Tab 48 at 12. The Chief of Chaplain Service reviewed a video of the homily and emailed the agency’s Liaison to the AMS regarding the homily and other issues concerning the appellant. IAF, Tab 46 at 45-48, Tab 47 at 11-13. Several days later, the Liaison, the Chief of Chaplain Service, the Director, the Associate Director, and the Chief of Human Resources participated in a teleconference to discuss the appellant’s situation. IAF, Tab 47 at 31. The Liaison stated during a deposition that he forwarded the email regarding the appellant and the video of his homily to someone within the Roman Catholic Church. IAF, Tab 46 at 216. Thereafter, the AMS withdrew the appellant’s ecclesiastical endorsement. IAF, Tab 4 at 42-43. The AMS did not provide a reason for its decision and declined the appellant’s request for a statement of reasons, asserting that it was “not required to disclose conditions or circumstances surrounding the removal of endorsements and/or faculties.” Id. at 34. The appellant subsequently stated that he made up the story about going to the veteran’s house during a burglary and, consequently, did not actually engage in the physical violence toward minors as suggested in his homily. IAF, Tab 48 at 12. 7 ecclesiastical endorsement and is, in fact, precluded from doing so by the First Amendment. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 187-89 (2012) (finding that the state is precluded from interfering in a religious group’s right to select and remove ministers under both the Establishment Clause and Free Exercise Clause of the First Amendment); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952) (holding that the freedom of a religion to select its clergy has constitutional protection against state interference as a part of the free exercise of religion). We further agree with the administrative judge’s determination that, because an ecclesiastical endorsement is essentially a determination by a religious authority regarding who is qualified to perform religious activities on behalf of that religion in the role of a Chaplain, the appellant did not have a constitutionally protected property interest in his ecclesiastical endorsement, and the withdrawal of his endorsement does not implicate his due process rights. ID at 14-16; see, e.g., Serbian Eastern Orthodox Diocese for U.S. of America & Canada v. Milivojech, 426 U.S. 696, 715 (1976) (holding that “[c]onstitutional concepts of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are . . . hardly relevant to such matters of ecclesiastical cognizance”). ¶10 In sum, the appellant had no property or liberty interest in his ecclesiastical endorsement, no due process rights concerning the procedures used by the AMS in deciding to withdraw his endorsement, and no constitutional right to receive the documentary or testimonial evidence underlying the AMS’s decision to withdraw his ecclesiastical endorsement. Thus, as the administrative judge correctly found, the agency did not violate the appellant’s due process rights by providing information to the AMS without affording him notice and an 8 opportunity to respond or by providing allegedly stigmatizing information to the AMS.6 ID at 22-23. ¶11 The appellant did, however, have a property interest in his continued Federal employment. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-76 (Fed. Cir. 1999).7 Due process requires, at a minimum, that an employee being deprived of his property interest be given the opportunity to be heard at a meaningful time and in a meaningful manner. Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 9 (2016). In the context of an adverse action based on the suspension of access to classified information, the Board has held that the agency provided the appellant minimal due process by informing him of the basis for the action, i.e., that his position required access to classified information and that his access had been suspended. Id., ¶ 10. Here, the appellant received written notice clearly stating that the agency proposed his removal on the basis of one charge of failure to maintain a condition of employment following the withdrawal of his ecclesiastical endorsement by the AMS. IAF, Tab 4 at 39. The proposal notice explained that an ecclesiastical endorsement was a requirement of his position and that, as a result of the 6 In the initial decision, the administrative judge found that, even if the appellant had a liberty interest in his reputation with the AMS, the information provided by the agency to the AMS was not demonstrably false. ID at 23 n.13. Furthermore, contrary to the appellant’s argument on review, the administrative judge did consider his argument that the agency committed a prohibited personnel practice by providing false or defamatory information to the AMS, but concluded that the appellant had not shown by preponderant evidence that the agency stigmatized him by providing false information to the AMS. Id.; PFR File, Tab 1 at 11. We discern no basis to disturb these findings. 7 The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 546-48 (1985), which held that a tenured public employee has a constitutionally protected property interest in ongoing public employment and that an agency may not deprive such an employee of his property interest without providing him with due process of law, including the right to advance notice of the charges against him, an explanation of the agency’s evidence, and an opportunity to respond. 9 withdrawal, he was no longer able to perform work as a Chaplain for the agency. Id. The appellant had an opportunity to make both a written and an oral response to the deciding official, and the deciding official considered those responses. Id. at 13, 19-21; IAF, Tab 46 at 134-35. Therefore, we agree with the administrative judge’s determination that the appellant received a meaningful opportunity to respond to the proposal notice, ID at 9-17, and find no merit to his assertion on review that the agency did not give him adequate notice of the charge against him, PFR File, Tab 1 at 16-17. ¶12 As noted above, the appellant also contends that his due process rights were violated because the Director, in her role as the deciding official, was biased against him. Id. at 17-20. An employee has a due process right to have an unbiased decision maker adjudicate his case. Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 9 (2013). To establish a due process violation based on the identity of the deciding official, an employee must assert specific allegations indicating that the agency’s choice of the deciding official made the risk of unfairness to the appellant intolerably high. Id. However, a deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds. Id. Moreover, a deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless “that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.” Id. (quoting Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012)). ¶13 Here, the appellant alleged below that the deciding official was biased against him, as evidenced by the following: she refused to meet with him on one occasion; she refused to allow him to be on stage with her at a Memorial Day service; she banned him from entering the executive suite; she had two armed 10 policemen present during his oral response; she placed him on authorized absence and restricted his access to the VAMC; she refused to consider his request to recuse herself as the deciding official; she was aware that he had called her “ugly” and a “hypocrite”; she was involved in the investigation leading to the agency’s communication with the AMS; and she was a witness in the case. IAF, Tab 57 at 34-38. The administrative judge carefully considered these allegations but found that the appellant failed to establish that the Director, in her role as the deciding official, was actually biased against him or that the agency structured the situation in a manner that rendered the risk of unfairness intolerably high. ID at 24-26. In so finding, the administrative judge explained that the Director was at least three supervisory levels above the appellant and that her actions did not evidence bias, but rather were reasonable management practices. ID at 25. The administrative judge further found that the appellant’s insults toward the Director were not so demeaning that the risk of her treating him unfairly as a result of his comments was intolerably high. Id. at 26. ¶14 On review, the appellant restates his arguments from below on this issue but does not identify any particular error in the initial decision. PFR File, Tab 1 at 17-23. Because these arguments were raised below and constitute mere disagreement with the administrative judge’s well-reasoned findings and implicit credibility determinations, they provide no basis to disturb the initial decision. See Davison v. Department of Veterans Affairs, 115 M.S.P.R. 640, ¶ 9 (2011) (finding that mere disagreement with an administrative judge’s explained findings is not a basis to grant a petition for review); Crosby, 74 M.S.P.R. at 106. Moreover, we have reviewed the record and agree with the administrative judge’s determination that the appellant failed to show that the Director was biased against him or that the risk of bias was intolerably high. See Norris, 675 F.3d at 1354; Lange, 119 M.S.P.R. 625, ¶ 9. ¶15 The appellant further argued below that the Director, in her capacity as the deciding official, violated his due process rights by considering certain allegedly 11 disruptive acts that he had committed without notifying him in the proposal notice that these acts would be considered as part of the penalty analysis. IAF, Tab 57 at 38-39. The administrative judge found that the Director did not violate the appellant’s due process rights by considering ex parte information, ID at 22, and the appellant challenges this finding on review, PFR File, Tab 1 at 20-23. ¶16 A deciding official violates an employee’s due process rights when she relies on new and material ex parte information as a basis for her decisions on the merits of a proposed charge or the penalty to be imposed. Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 6 (2015). An employee’s due process right to notice extends to ex parte information provided to a deciding official and to information known personally to her if the information was considered in reaching the decision and was not previously disclosed to the appellant. Id. ¶17 Here, as noted above, the proposed removal notice specifically stated that the appellant’s August 2013 reprimand for disrespectful conduct would be taken into consideration in determining the appropriate penalty. IAF, Tab 4 at 39. In the initial decision, the administrative judge noted the Director’s hearing testimony that she considered reassigning the appellant to another position but that, in light of his prior discipline, she did not feel that reassignment was in the best interest of the service and her deposition testimony that she considered reassigning the appellant but decided against it because “[i]t was not a requirement and he had been disruptive.” ID at 19-21; see IAF, Tab 45 at 40, Tab 52, Hearing Compact Disc (HCD) (testimony of the Director). The administrative judge further noted that the Director testified that she made her decision by considering the evidence file, the appellant’s oral and written responses, and the Douglas factors,8 and denied considering anything outside of 8 In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to be imposed for an act of misconduct. 12 these sources. ID at 21; HCD (testimony of the Director). The administrative judge concluded that, although the Director believed that the appellant had been disruptive in the past, she did not testify that she considered any “disruptions” that were not referenced in the proposal notice. ID at 21-22. Thus, the administrative judge found that the Director did not violate the appellant’s due process rights by considering ex parte information. ID at 22. On review, the appellant argues that the administrative judge mischaracterized the Director’s testimony and that her testimony was, in fact, that she had considered other alleged “disruptive” behavior, in addition to the disrespectful conduct at issue in his prior reprimand, in deciding not to reassign him. PFR File, Tab 1 at 22-23. ¶18 Although, as noted above, the Director referenced the appellant’s prior disruptive behavior as part of the reason she decided not to reassign him to another position, we agree with the administrative judge’s determination that this testimony was in reference to the disruptive behavior at issue in the appellant’s prior reprimand, which was specifically identified in the proposal notice, and not to other behavior that may have been disruptive but was not identified in the proposal notice.9 HCD (testimony of the Director); IAF, Tab 4 at 39, 44-45, Tab 45 at 40. The appellant has not provided any basis on review to disturb the administrative judge’s implicit credibility determinations or his well-reasoned findings. Accordingly, we do not disturb them. See Crosby, 74 M.S.P.R. at 106. The administrative judge properly denied the appellant’s harmful error affirmative defense. ¶19 The appellant also argued below that the agency failed to conduct an adequate investigation, as required by the Master Agreement, an internal agency policy, and the Privacy Act, prior to providing information about him to the 9 In further support of this conclusion, the Director indicated in the Douglas factor worksheet that the appellant previously had “displayed disruptive behavior as evidenced by the proposed reprimand and reprimand.” IAF, Tab 4 at 17. 13 AMS. IAF, Tab 57 at 20-24. He further argued that the agency’s failure to conduct an adequate investigation under these authorities was harmful because, if the agency had interviewed him before it provided information to the AMS, he would have “had the opportunity to set the record straight that the homily was fictional and he had not assaulted a minor[.]” Id. at 24. Such an opportunity, he alleged, “may well have” stopped the agency’s Liaison to the AMS from sending the information to the AMS or may have been sufficient to convince the AMS not to withdraw his endorsement. Id. ¶20 Under the harmful error doctrine, an agency’s action is reversible only if the employee proves that the procedural error substantially prejudiced his rights by possibly affecting the agency’s decision. Tom v. Department of the Interior, 97 M.S.P.R. 395, ¶ 43 (2004). Harmful error cannot be presumed; the employee must show that the error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Id.; 5 C.F.R. § 1201.4(r). Here, the administrative judge found that, even if the agency committed procedural error as to its obligations to conduct a certain type of investigation, the appellant failed to establish that any such error was harmful. ID at 29. In particular, the administrative judge noted that the agency’s Liaison to the AMS testified that the appellant’s homily was “totally inappropriate regardless of whether the appellant had actually engaged in the activities he described.” ID at 28; HCD (testimony of the Liaison). ¶21 On review, the appellant argues that the administrative judge erred because the lack of a proper investigation was a constitutional due process issue and not subject to the harmful error test and because, as he asserted below, an opportunity to explain his side of the story “may well have” changed the Liaison’s decision to notify the AMS of the appellant’s conduct or may have been sufficient to convince the AMS not to withdraw his ecclesiastical endorsement. PFR File, Tab 1 at 15-16. We find these contentions unavailing. As discussed above, the appellant had no property or liberty interest in his ecclesiastical endorsement, 14 and, therefore, the agency’s failure to conduct an investigation prior to communicating with the AMS did not implicate any due process concerns. The appellant’s argument on review that the agency’s failure to conduct an investigation was harmful, contrary to the administrative judge’s finding, represents mere disagreement with the administrative judge’s well-reasoned conclusion and provides no basis to disturb the initial decision. See Crosby, 74 M.S.P.R. at 106. In any event, we agree with the administrative judge’s determination that, even if the agency did commit a procedural error, the appellant has failed to show that such error was harmful. The appellant failed to show that the administrative judge abused his discretion in denying the appellant’s request to admit Exhibit Z. ¶22 During the hearing, the administrative judge denied the appellant’s request to admit Exhibit Z, which he had not included in his prehearing submissions and had provided to the agency only several days before the hearing after finding it in a stack of papers in his possession. HCD (testimony of the appellant). On review, the appellant argues that the administrative judge erred in denying his request to submit this exhibit because “the handwriting is not easy to read at first glance and [the appellant] did not know what it was until he happened to study it in preparing for trial,” and because the agency should have produced it during discovery but failed to do so. PFR File, Tab 1 at 23-24. He also avers that Exhibit Z is “highly relevant” and reflects that the Director felt “let down by [the Chief of Chaplain Services] in losing the opportunity to dismiss [the appellant] by previously failing to build a case of poor behavior against [the appellant].” Id. ¶23 An administrative judge has wide discretion to control the proceedings before him, including the authority to exclude evidence that he believes would be irrelevant, immaterial, or unduly repetitious. See Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41(b)(8). To obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the petitioning party must show that 15 the administrative judge disallowed relevant evidence that could have affected the outcome of the appeal. Sanders, 114 M.S.P.R. 487, ¶ 10; Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). Here, the appellant has not shown that Exhibit Z is relevant to the dispositive issues in this appeal or that the inclusion of Exhibit Z in the record would have affected the outcome in any way. Therefore, the appellant has not shown that the administrative judge abused his considerable discretion in excluding Exhibit Z or that any such error denigrated his substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). The appellant has not shown that the administrative judge abused his discretion in denying the appellant’s motion to compel testimony. ¶24 Finally, the appellant argues that the administrative judge abused his discretion in denying his motion to compel deposition testimony from the agency’s Liaison to the AMS concerning his communications with the AMS and with other agency employees about contacting the AMS regarding the appellant. PFR File, Tab 1 at 24; IAF, Tab 31. The administrative judge denied the motion, finding that the information apparently sought by the appellant—namely, information to support his claim that the agency employees conspired to convince the AMS to revoke his ecclesiastical endorsement—was beyond the scope of the Board’s review in this case. IAF, Tab 32. On review, the appellant avers that “there is absolutely no rule or principle precluding the Agency from disclosing contacts between it and the [AMS]. Moreover, such information would have been obviously material to most of the issues in this case.” PFR File, Tab 1 at 24. ¶25 An administrative judge has broad discretion in ruling on discovery matters, and the Board will not find reversible error in such rulings absent an abuse of discretion. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). Here, for the reasons discussed above, we agree with the administrative judge’s 16 finding that the appellant’s requested testimony—information pertaining to the reasons underlying the AMS’s decision to withdraw his ecclesiastical endorsement—is beyond the scope of the Board’s review. See Kedroff, 344 U.S. at 116; Gargiulo, 727 F.3d at 1185. Accordingly, the appellant has not shown that the administrative judge abused his discretion in denying the appellant’s motion to compel such testimony. ORDER ¶26 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 RIGHTS10 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 10 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 17 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 18 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 19 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 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.11 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: 11 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. 20 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/DIETER_THOMAS_MICHAEL_AT_0752_14_0475_I_1_OPINION_AND_ORDER_1960343.pdf
09-12-2022	2022 MSPB 31	Marguerite Pridgen	https://www.mspb.gov/decisions/precedential/PRIDGEN_MARGUERITE_DC_0432_14_0557_I_1_OPINION_AND_ORDER_1959386.pdf	Office of Management and Budget	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 31 Docket No. DC-0432-14-0557-I-1 Marguerite Pridgen, Appellant, v. Office of Management and Budget, Agency. September 12, 2022 Marguerite Pridgen, Washington, D.C., pro se. Ashley Darbo and Mide Famuyiwa, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that affirmed her performance-based removal under 5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the appellant’s petition for review. We REVERSE IN PART and AFFIRM IN PART the initial decision, REVERSING the appellant’s removal. We REMAND the case to the regional office for further adjudication of the appellant’s claims of race, color, and disability discrimination, and retaliation for protected disclosures and activities, in accordance with this Opinion and Order. 2 BACKGROUND ¶2 The appellant was a GS-15 Policy Analyst for the agency’s Office of Federal Financial Management. Initial Appeal File (IAF), Tab 1 at 123, Tab 10 at 52, 377.1 This position involves a wide range of duties related to developing and implementing budgetary, legislative, and regulatory policy for the agency and the President. IAF, Tab 10 at 378, Tab 38 at 3. ¶3 Beginning in March 2010, the appellant requested several accommodations for her chronic colitis and chronic rhinitis. IAF, Tab 31 at 16-18, 28-31, 39-40, Tab 38 at 3. She contacted an equal employment opportunity (EEO) counselor in June 2010 to file an informal complaint, IAF, Tab 1 at 109, and in September 2010, she filed a formal EEO complaint alleging discrimination based on race, age, and disability, as well as retaliation for having earlier initiated the EEO process. IAF, Tab 38 at 3. Meanwhile, after communicating with the appellant regarding her needs, the agency provided her with an air purifier and constructed a new office space that would meet her medical requirements. IAF, Tab 31 at 16-17, 28-31, 34-35, 37, 41. These accommodations were completed and made available to the appellant in November 2010. Id. at 16-41. ¶4 In April 2011, the appellant filed an appeal with the Board. Pridgen v. Office of Management and Budget, MSPB Docket No. DC-3443-11-0529-I-1, Initial Appeal File, Tab 1. She alleged that the agency had tailored a vacancy announcement to favor a preferred candidate that effectively discriminated against her based on age, race, sex, and personal conduct. Because the appellant had not alleged that she first sought corrective action from the Office of Special Counsel (OSC), the administrative judge issued an initial decision that dismissed the appeal for lack of jurisdiction, and the Board affirmed that finding. 1 Because documents in the initial appeal and the agency file have various page numbers in the record, we have referred to the page numbers assigned by the Board’s e-Appeal Online System. IAF, Tabs 1, 10. 3 Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶¶ 2, 4, 7-9 (2012). ¶5 In October 2011, the appellant contacted the EEO office to initiate a second complaint. IAF, Tab 38 at 4. Based on written statements the appellant provided to the EEO office, on November 7, 2011, the agency subsequently placed her on administrative leave “until further notice.” IAF, Tab 1 at 7, 14, 26, 38, 44, Tab 10 at 11-12, Tab 38 at 4. The appellant filed another informal EEO complaint on November 17, 2011, and a formal complaint on December 19, 2011. IAF, Tab 38 at 4. ¶6 The appellant alleged that, meanwhile, after the Government Accountability Office (GAO) met with agency officials regarding an initiative to reform how it administered grants to comply more fully with the Federal Financial Assistance Management Improvement Act of 1999, Pub. L. No. 106-107, 113 Stat. 1486, she reported to GAO in November 2011 that the agency was delaying implementing the grant reform agenda. IAF, Tab 54, Hearing Compact Disc (HCD) 1 at 26:25-27:20 (testimony of the appellant). Specifically, she said she reported that “things were really delayed and things were not getting done that should have gotten done and no one was really providing any answers.” Id. ¶7 The appellant’s annual performance cycle was supposed to run from the beginning of April to the end of March 2012. IAF, Tab 10 at 77. However, because she was on an extended period of leave and not permitted to return to work until May 7, 2012, she missed much of the performance cycle. IAF, Tab 1 at 10, 22. In June 2012, the appellant’s first-line supervisor presented the appellant with a 90-day performance goals plan, apparently with the intent to extend the appellant’s 2011-2012 performance cycle and provide her with a performance appraisal for that period. IAF, Tab 10 at 53-54, 229-33. The appellant expressed concerns with the goals in the plan, id. at 234, and the agency shifted to instead incorporate the goals from the 90-day plan into a 2012-2013 performance plan, id. at 53-54, 130. On August 29, 2012, the appellant’s 4 first-line supervisor issued her the performance appraisal plan, which the appellant refused to sign because she believed it contained unrealistic goals. IAF, Tab 1 at 23, Tab 10 at 13, 217-27. ¶8 Next, the appellant alleged that in June 2012, she disclosed to the Offices of Inspector General (OIG) for various unidentified agencies, and to the Office of the Deputy Attorney General at the Department of Justice, that the agency “would not implement” its requirement to publish guidance on grant fraud disclosure under section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA for FY 2009), Pub. L. No. 110-417, § 872, 122 Stat. 4356, 4555-57 (2008) (codified as amended at 41 U.S.C. § 2313). IAF, Tab 1 at 16, 41; HCD 1 at 27:51-30:04 (testimony of the appellant). She further alleged that, upon informing her first-line supervisor of these disclosures on June 29, 2012, her supervisor criticized her, IAF, Tab 1 at 41, and directed her to set up phone calls with the offices she had contacted so the supervisor could retract the allegations, HCD 1 at 27:51-30:04 (testimony of the appellant). ¶9 On November 1, 2012, the appellant filed a second Board appeal. Pridgen v. Office of Management and Budget, MSPB Docket No. DC-3443-13- 0096-I-1, Initial Appeal File (0096 IAF), Tab 1. The appellant alleged that the agency continued to retaliate against her for her prior EEO and OSC complaints. 0096 IAF, Tab 1 at 3-5. The administrative judge issued a jurisdictional show cause order on November 7, 2012. 0096 IAF, Tab 3 at 1. Soon thereafter, she communicated to the administrative judge that she was withdrawing her Board appeal, and on November 16, 2012, the administrative judge issued a decision, dismissing it as withdrawn. 0096 IAF, Tab 4 at 3, Tab 5, Initial Decision. ¶10 The appellant asserts that on November 10, 2012, she filed a complaint with OSC making the same allegations she raised in her withdrawn appeal. IAF, Tab 1 at 8, 17, 44, Tab 30 at 10, Tab 38 at 10. According to the appellant, OSC informed her on April 22, 2013, that it had decided to close her case. IAF, Tab 1 5 at 8. Meanwhile, on December 11, 2012, the appellant received a counseling letter from her supervisor for unsatisfactory performance. IAF, Tab 38 at 4. In March 2013, the appellant asked for dictation software to accommodate her carpal tunnel syndrome, which the agency provided. Id. ¶ 12. ¶11 The appellant alleges that on June 19, 2013, she filed a second complaint with OSC regarding retaliation for her disclosures about section 872 of the NDAA for FY 2009. IAF, Tab 1 at 8; HCD 1 at 27:21-27:51 (testimony of the appellant). She also alleges that her June 2013 OSC complaint included a disclosure that erroneous 2011 guidance from the agency’s Controller resulted in billions of dollars in undisbursed balances not being returned to the Department of the Treasury, and that her first-line supervisor tried to have her cover up, including through congressional testimony, the fact that the guidance was the result of an agency error. IAF, Tab 1 at 8. ¶12 On June 26, 2013, the appellant’s first-line supervisor gave the appellant a summary performance rating of unsatisfactory for the 2012-2013 performance cycle. IAF, Tab 38 at 4. On June 28, her supervisor placed the appellant on another 90-day performance improvement plan (PIP), this one from July 1 to September 30, 2013, during which time the appellant was to complete several specific tasks to demonstrate acceptable performance. IAF, Tab 10 at 77-91, 107. On January 10, 2014, the appellant’s supervisor notified the appellant that she failed to demonstrate acceptable performance during the PIP, and she proposed the appellant’s removal on that basis. Id. at 52-75. After the appellant responded to the proposal, her second-line supervisor issued a decision removing her effective March 7, 2014. Id. at 37-50. ¶13 The appellant then filed this Board appeal in which she contested the merits of the agency’s action and raised affirmative defenses of discrimination based on race, color, national origin, age, and disability, as well as retaliation for her prior EEO activity, Board appeals, OSC complaints, and disclosures to other entities and OIGs. IAF, Tab 1, Tab 30 at 4-12, Tab 38 at 2, 5-14. During the course of 6 the appeal, she filed two motions to compel, which the administrative judge denied as untimely. IAF, Tab 23. After holding a hearing, the administrative judge issued an initial decision affirming the appellant’s removal and finding that she failed to prove her affirmative defenses. IAF, Tab 56, Initial Decision (ID). ¶14 The appellant has filed a petition for review, challenging many of the administrative judge’s findings. Petition for Review (PFR) File, Tab 3. The agency has filed a response to the petition for review, and the appellant has filed a reply to the agency’s response. PFR File, Tabs 7-8. ANALYSIS The agency failed to present substantial evidence that the appellant’s performance was unacceptable in at least one critical element. ¶15 At the time the initial decision in this case was issued, the Board required an agency issuing a performance-based action under 5 U.S.C. chapter 43 to establish by substantial evidence that: (1) the Office of Personnel Management approved the agency’s performance appraisal system; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to improve; and (5) the appellant’s performance remained unacceptable in at least one critical element.2 White v. Department of Veterans Affairs, 120 M.S.P.R. 2 The administrative judge declined to consider the appellant’s argument disputing the agency’s assessment of her performance prior to the PIP. ID at 4. At the time she issued the initial decision, her analysis was consistent with the Board’s case law that an agency taking an action under chapter 43 was not required to prove that an appellant’s pre-PIP performance was unacceptable. E.g., Thompson v. Department of the Navy, 89 M.S.P.R. 188, ¶ 19 (2001). After the initial decision was issued in this case, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Santos v. National Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir. 2021). In Santos, the court disagreed with the Board’s precedent on this issue and found that an agency taking an action under chapter 43 must prove that the employee’s 7 405, ¶ 5 (2013). In this case, the administrative judge found that the agency proved all of these elements. ID at 5-16. As she did below, the appellant argues on review that performance tasks on her PIP were not related to her position’s critical elements. IAF, Tab 1 at 15; PFR File, Tab 3 at 7-8. We agree. ¶16 A “critical element” is “a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee’s overall performance is unacceptable.” 5 C.F.R. § 430.203. An unsatisfactory rating in even one critical element will necessarily result in an unsatisfactory summary rating. 5 U.S.C. § 4301(3); 5 C.F.R. § 430.208(b)(1); see Lovshin v. Department of the Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (en banc) (explaining that “unacceptable performance” under chapter 43 is a “word of art” that is defined by 5 U.S.C. § 4301(3) and 5 C.F.R. § 430.203). The appellant’s performance plan contained four “core competencies.” IAF, Tab 10 at 218-25. It also contained a varying number of “strategic goals.” Id. Here, the appellant’s core competencies were equivalent to critical elements because an unsatisfactory rating in one core competency would result in an unsatisfactory summary rating. Id. at 96, 217-18. However, her strategic goals were not critical elements because unsatisfactory performance on a single strategic goal would not result in an unsatisfactory summary rating; rather, if an employee was rated as unsatisfactory on three or more of those goals, she then would receive an unsatisfactory summary rating. Id. ¶17 The agency removed the appellant for purportedly failing to achieve acceptable performance on tasks associated with two areas listed on her PIP: performance before the PIP justified her placement on the PIP. Id. at 1360-61, 1363. Neither party has revisited on review the issue of whether the agency failed to prove its charge because it did not properly assess the appellant’s performance when it decided to place her on a PIP. Because we find, as discussed below, that the agency did not otherwise meet its burden to prove the charge of unacceptable performance, we need not determine whether the Santos decision impacts the agency’s proof of its charge. 8 Grants Workforce Development Initiative and USAspending.gov Data Quality Guidance Implementation. IAF, Tab 10 at 37-40, 52, 79, 86-89, 218, 222-23, Tab 32 at 5-10, 14-17. These areas were associated with the appellant’s strategic, i.e., noncritical, goals. Compare IAF, Tab 10 at 79-86 (discussing in the appellant’s PIP her 2012-2013 performance year deficiencies on various tasks), and id. at 221-23 (listing these tasks under the appellant’s strategic goals in her 2012-2013 performance plan), with id. at 87-89 (setting new tasks for the same strategic goals on the PIP); see HCD 2, Track 1 at 1:56:42-1:58:06 (testimony of the appellant’s first-line supervisor). ¶18 We find that, because the appellant’s performance was not aligned with any core competency, the agency failed to prove by substantial evidence that her performance remained unacceptable in at least one critical element. White, 120 M.S.P.R. 405, ¶ 5. Accordingly, we reverse the appellant’s removal and those portions of the initial decision that sustained it.3 See O’Neal v. Department of the Army, 47 M.S.P.R. 433, 441-42 (1991) (reversing a chapter 43 removal when the agency did not prove that the appellant’s performance warranted an unacceptable rating on a critical element as a whole). In finding that the appellant did not prove race and color discrimination, the administrative judge viewed the appellant’s comparator evidence too narrowly. ¶19 In her appeal, the appellant raised affirmative defenses of discrimination based on race, color, national origin, and age. IAF, Tab 1 at 25-27, Tab 38 at 6-8, 11. The administrative judge found that the appellant did not prove that these were motivating factors in her removal. ID at 22. The appellant does not challenge the findings concerning her age and national origin discrimination claims, and we will not revisit those claims here. 3 In light of this finding, we do not reach the appellant’s arguments regarding the agency’s burden of proof, the administrative judge’s factual findings as to other elements of the unacceptable performance charge, and the agency’s alleged violation of the appellant’s due process rights. PFR File, Tab 3 at 8, 13-31. 9 ¶20 The substantive standard for Title VII claims in the Federal sector is set forth in 42 U.S.C. § 2000e-16, which provides that all personnel actions affecting covered employees “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” This broad prohibition of discrimination is commensurate with the high standards expected of the Federal Government as an employer. In Babb v. Wilkie, 140 S. Ct. 1168 (2020), the U.S. Supreme Court interpreted the identical statutory language in 29 U.S.C. § 633a, which prohibits Federal sector age discrimination. As the Court explained, “the Federal Government [is held to] a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so.” Babb, 140 S. Ct. at 1176. ¶21 Considering this sweeping statutory language, the Court held that a plaintiff may prove a claim of age discrimination by showing that age discrimination “play[ed] any part in the way a decision [was] made.” Id. at 1173-74. In other words, the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. Id. A finding that prohibited discrimination played “any part” in the contested action is the same as a finding of “motivating factor.” See Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 7 (2012) (finding that a Federal employee may prove a violation of 29 U.S.C. § 633a(a) by establishing that age was “a factor” in a personnel action, even though it was not a “but-for” causation).4 4 An important distinction between the motivating factor and “but-for” standards is that an appellant in a motivating factor regime need not fully rebut the agency’s proffered motives as pretext. By contrast, under the “but-for” standard, the burden of persuasion always remains with the appellant. See, e.g., Gloetzner v. Lynch, 225 F. Supp. 3d 1329, 1346 (N.D. Fla. 2016) (“The burden of persuasion always remains on the plaintiff in an [Age Discrimination in Employment Act (ADEA)] case to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the “but-for” cause of the adverse employment action.”). Therefore, certain courts have 10 ¶22 But while an appellant who proves motivating factor and nothing more may be entitled to injunctive or other “forward-looking relief,” to obtain the full measure of relief available under the statute, including status quo ante relief, compensatory damages, or other forms of relief related to the end result of an employment decision, he “must show that age discrimination was a but-for cause of the employment outcome.” Babb, 140 S. Ct. at 1171, 1177-78. The but-for causation standard does not require discrimination to be the sole cause of the contested action, only a necessary one. There may be more than one but-for cause of a single employment action. Loberger v. Del-Jen Inc., 616 F. App’x 922, 930 (11th Cir. 2015) (finding that pretext means both the reason was false, and that discrimination was the real reason); Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 801 (8th Cir. 2014) (“This is not to say that age must have been the only factor in the employer’s decisionmaking process, but only that, as among several factors, age was the factor that made a difference.”); see also McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n.10 (1976). ¶23 One may prove discrimination under these different standards of proof by various methods. No one method is the exclusive path to a finding of liability. We take the opportunity to explain the methods of proof by which an appellant may prove discrimination as an affirmative defense, and clarify Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), and Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), to the extent that they could be read to suggest otherwise. considered the “but-for” standard to be more “onerous,” often when they compare Federal and state law claims. See, e.g., Wojcik v. Costco Wholesale Corporation, No. 3:13-CV-2314-D, 2015 WL 1511093 (N.D. Tex. 2015) (granting summary judgment on the plaintiff’s ADEA claim but denying for state law claim as motivating factor standard was “more lenient”); Bauers-Toy v. Clarence Central School District, No. 10-CV-845, 2015 WL 13574309 (W.D.N.Y. 2015) (requiring plaintiff to separate age and sex claims because Title VII gender discrimination claim is subject to a more lenient motivating factor standard). 11 ¶24 The methods by which an appellant may prove a claim of discrimination under Title VII are: (1) direct evidence; (2) circumstantial evidence, which may include (a) evidence of “suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn,” also known as “convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic . . . on which an employer is forbidden to base a difference in treatment received systematically better treatment”; (c) evidence that the agency’s stated reason for its action is “unworthy of belief, a mere pretext for discrimination” (i.e., the burden-shifting standard under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination of direct and indirect evidence. Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994); see also Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764-65 (7th Cir. 2016) (stating that “the use of disparate methods and the search for elusive [convincing] mosaics has complicated and sidetracked employment-discrimination litigation for many years” and explaining that Troupe used “mosaic” as a metaphor that was designed to displace the direct and indirect methods, rather than add a separate legal test to them). None of the above types of evidence, i.e., direct, “convincing mosaic,” comparator, or pretext, will be needed in every case. “Each type of evidence,” the Seventh Circuit explained in Troupe, “is sufficient by itself . . . to support a judgment for [the employee]; or they can be used together.” Id. When an appellant raises an affirmative defense of disparate treatment discrimination under Title VII, the administrative judge should notify her of the various standards and methods of proof, including the respective levels of relief available 12 under each standard.5 See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 17 (2015). ¶25 In Savage, 122 M.S.P.R. 612, ¶ 46, the Board held that, because it lacks summary judgment authority, the McDonnell Douglas framework has no application to Board proceedings. This statement is incorrect, and that aspect of Savage is overruled. The Supreme Court in McDonnell Douglas, 411 U.S. at 802-04, set forth the “order and allocation of proof” in an employment discrimination case, not only during pretrial proceedings but also during trial. See Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 663 (5th Cir. 1983). Although McDonnell Douglas and its progeny outline the order and allocation of proof as a three-stage process, presenting evidence of discrimination does not contemplate a trifurcated trial, but simply sets forth the proper method of analysis after the relevant evidence has been introduced. Johnson v. Transportation Agency, Santa Clara County, California, 770 F.2d 752, 761 (9th Cir. 1984). “The prima facie case method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’” U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). ¶26 Turning to the facts of this case, the appellant, on review, renews her argument that the agency favored her “non-disabled, non-African American, [and] non-Black” coworker in the assigning and evaluating of work. PFR File, Tab 3 at 5-7; IAF, Tab 38 at 6. In her initial decision, the administrative judge found that this coworker, the only other GS-15 Policy Analyst who reported to the same 5 In particular, appellants must be instructed that to obtain the full panoply of relief under Title VII, they must prove “but-for” discrimination regarding the end result of an employment decision, and it may be proven through any of the methods stated above. 13 first-line supervisor as the appellant, was not a valid comparator because the supervisor assigned him different tasks. ID at 22 n.11. The appellant argues that the administrative judge, in making this finding, defined “similarly situated” too narrowly. PFR File, Tab 1 at 5-8. We agree. ¶27 As explained above, one way an appellant may establish a discrimination claim is through comparator evidence, or evidence relating to the treatment of similarly situated employees. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 37 (2014) (discussing the use of comparator evidence in connection with a disability discrimination claim). To be similarly situated, comparators must have reported to the same supervisor, been subjected to the same standards governing discipline, and engaged in conduct similar to the appellant’s without differentiating or mitigating circumstances. Id., ¶ 37. The appellant and her coworker reported to the same first-line supervisor and had the same core competencies and strategic goals. IAF, Tab 10 at 217-27, Tab 52 at 284-92. However, as part of their annual performance plans, the supervisor assigned each of them different tasks related to the strategic goals. IAF, Tab 10 at 220-25, Tab 52 at 288-92; HCD 2, Track 1 at 1:30:39-1:31:14 (testimony of the appellant’s first-line supervisor). According to the supervisor, she assigned different tasks to the appellant and her coworker because of the need to divide work amongst her small staff. HCD 2, Track 1 at 1:30:39-1:31:14 (testimony of the appellant’s first-line supervisor). The administrative judge made no finding as to whether the assignments were the result of discrimination. ¶28 As set forth above, in a performance-based action, the agency has the burden to prove that it provided the appellant with a reasonable opportunity to improve. White, 120 M.S.P.R. 405, ¶ 5. The employee’s right to a reasonable opportunity to improve is a substantive right and a necessary prerequisite to all chapter 43 actions. Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 8 (2013). In determining whether the agency has afforded the appellant this opportunity, relevant factors include the nature of the duties and responsibilities 14 of the appellant’s position, including whether assignments of work were made in a discriminatory manner. Id.; see Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 43 (2010) (considering in a chapter 43 action the appellant’s allegations of national origin discrimination that non-Chinese employees in the appellant’s position were not required to perform the same types of assignments as the appellant). ¶29 We find that as an employee in the same position, assigned work by the same supervisor and subject to the same general standards governing performance, the appellant’s coworker was similarly situated to the appellant for purposes of determining whether the tasks assigned to the appellant during the PIP period were the product of discrimination. Therefore, we remand the appellant’s claims of discrimination based on race and color to the administrative judge to make further findings as to whether the appellant met her burden to prove her assignments were the result of discrimination.6 See Barnes v. U.S. Postal Service, 49 M.S.P.R. 21, 26-27 (1991) (remanding for an administrative judge to make credibility determinations regarding discrimination claims). On remand, the administrative judge should consider this and any other probative evidence of race and color discrimination according to the standards set forth above. The appellant failed to prove that the agency retaliated against her for her prior EEO activity. ¶30 Claims of retaliation for opposing discrimination in violation of Title VII are analyzed under the same framework used for Title VII discrimination claims. Foster v. University of Maryland-Eastern Shore, 787 F.3d 243, 248-49 (4th Cir. 6 On remand, the administrative judge is not required to address the appellant’s argument that “another [unidentified] agency employee” who reported to a different supervisor and allegedly was on a PIP “could have been a comparator.” PFR File, Tab 3 at 6-7; see Fox, 120 M.S.P.R. 529, ¶ 37 (finding that employees that reported to different supervisors were not similarly situated to the appellant). 15 2015). The appellant alleged that her removal was in retaliation for her 2010 and 2011 EEO complaints, and her 2011 and 2012 Board appeals.7 IAF, Tab 1 at 35-36, 43-46, Tab 38 at 8-11. On review, she points to the “suspicious timing” of the agency’s actions, such as reducing her responsibility and reassigning her work in 2010 and 2011, placing her on administrative leave in 2012, and taking performance-based actions beginning in 2012 that culminated in her removal effective 2014. PFR File, Tab 3 at 9-13. The administrative judge considered these allegations, but ultimately found the appellant’s claims were unproven. For example, she found that the agency placed the appellant on administrative leave, not due to retaliatory animus, but because of safety reasons since she stated in writing to an EEO counselor she might “kill [herself] or someone else.” ID at 20; IAF, Tab 10 at 260, 266. The administrative judge found the appellant’s denial that she made this statement was not credible. ID at 20. ¶31 The administrative judge also found that the appellant’s first-line supervisor (the proposing official) credibly denied retaliatory intent despite being named in one of the appellant’s EEO complaints. ID at 22 n.10. In addition, she considered the testimony of the second-line supervisor (the deciding official) and concluded he did not retaliate against the appellant based on her reasonable accommodation requests. ID at 21-22. However, the administrative judge did not make a specific credibility finding as to the deciding official’s motive to retaliate against the appellant for her other EEO activity. Nonetheless, we find that she implicitly concluded, after considering the appellant’s “circumstantial evidence regarding EEO retaliation,” that the appellant did not establish that it was a motivating factor in her removal. ID at 22. We afford these explicit and implicit credibility-based factual findings deference. Purifoy v. Department of Veterans 7 To the extent that the appellant alleges that her prior EEO complaints raised allegations of disability discrimination, those claims will be addressed below, in connection with her other disability discrimination claims. 16 Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining that the Board must defer not only to an administrative judge’s credibility findings that explicitly rely on witness demeanor, but also those that are “intertwined with issues of credibility and an analysis of [a witness’s] demeanor at trial”) (citing Haebe v. Department of Justice, 288 F.3d 1288, 1299 (Fed. Cir. 2002) (stating that “the [Board] is not free to overturn an administrative judge’s demeanor-based credibility findings merely because it disagrees with those findings”)). The appellant’s recitation of the evidence on review does not persuade us otherwise.8 PFR File, Tab 3 at 9-13; see Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (observing that merely rearguing factual 8 The appellant argued below that her 2012-2013 performance plan and her unsatisfactory performance rating for that year were the result of EEO reprisal. IAF, Tab 10 at 107, Tab 30 at 8-11, Tab 38 at 10-11. While the administrative judge, in the initial decision, generally found the appellant’s claims regarding incidents arising prior to her placement on the PIP were not motivated by retaliation or discrimination, she did not specifically address the appellant’s claim regarding her previous performance plan and rating. ID at 4, 16-17, 19-22. On remand, the administrative judge should provide the parties with an opportunity to present additional evidence and argument concerning the appellant’s affirmative defenses related to the agency’s determination that her pre-PIP performance was unsatisfactory. In Santos, 990 F.3d at 1363-64, the Federal Circuit held that the Board must consider this issue in the context of an appellant’s affirmative defense when, as here, the validity of the agency’s proffered reason for taking the chapter 43 action is a factor in analyzing that affirmative defense. See id. at 1363-64 (remanding to the Board the appellant’s claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335)); Savage, 122 M.S.P.R. 612, ¶ 41 (finding that retaliation for prior EEO activity is established if a prohibited consideration was a motivating factor in the contested personnel action, even if it was not the only reason). The administrative judge must develop the record evidence as necessary and appropriate, while considering administrative efficiency and fairness to the parties, Ellshoff v. Department of the Interior, 76 M.S.P.R. 54, 74 (1997), and address any argument or evidence regarding the appellant’s pre-PIP performance in the remand initial decision, Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). 17 issues already raised and properly resolved by the administrative judge below does not establish a basis for review). ¶32 The administrative judge separately addressed the appellant’s allegations of retaliation for filing prior Board appeals, stating that she was required to show that (1) she engaged in protected activity, (2) the accused official knew of the activity, (3) the adverse action under review could have been retaliation under the circumstances, and (4) there was a genuine nexus between the alleged retaliation and the adverse action. ID at 28 (citing Warren v. Department of the Army, 804 F.2d 654, 658 (Fed. Cir. 1986)). This standard applies to alleged retaliation for “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation” in which an appellant did not allege EEO discrimination or retaliation, or seek to remedy whistleblower reprisal. 5 U.S.C. § 2302(b)(9)(A)(ii); Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016). The use of this standard was in error, because the appellant’s underlying appeals raised claims of discrimination and retaliation for engaging in EEO activity. IAF, Tab 38 at 9-10; Pridgen, 117 M.S.P.R. 665, ¶ 7; 0096 IAF, Tab 1 at 5. Therefore, the standard for Title VII discrimination claims applies. ¶33 The administrative judge found that the appellant did not prove that the agency retaliated against her for filing Board appeals because she failed to prove that her first- or second-line supervisors were aware of her 2011 and 2012 Board appeals. ID at 28-29; see Wingate, 118 M.S.P.R. 566, ¶ 6 (determining that there was no retaliation for prior EEO activity when the administrative judge found no evidence that relevant agency officials knew of the appellant’s EEO activity or were influenced by those who did). Neither party challenges this finding on review. We affirm the administrative judge’s findings regarding the appellant’s EEO retaliation claims as modified to find that the appellant failed to prove these 18 previous Board appeals were motivating factors in her removal.9 See Nash v. U.S. Postal Service, EEOC Appeal No. 01900992, 1990 WL 1111738, at 2 (Apr. 26, 1990). In finding that the appellant did not prove discrimination under the Americans with Disabilities Act (ADA), the administrative judge viewed the appellant’s comparator evidence too narrowly. ¶34 The appellant raised claims of both disparate treatment disability discrimination and retaliation for engaging in activity protected by the Rehabilitation Act of 1973 (the Rehabilitation Act). IAF, Tab 38 at 8-9, 11-14; ID at 2. The administrative judge found that the appellant did not meet her burden to prove either of these claims.10 ID at 22. We discuss each of these claims in turn. The administrative judge should have determined whether the appellant’s disability was a motivating factor in her PIP work assignments and, if so, whether the agency would have removed the appellant regardless of the allegedly discriminatory assignments. ¶35 The Board adjudicates claims of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act. The standards under the ADA, as amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), have 9 Although not entirely clear, it appears that the appellant also raised a claim of retaliation for requesting reasonable accommodation in one of her prior Board appeals. 0096 IAF, Tab 1 at 5. To the extent that the appellant raised such a claim, it is addressed below. 10 To the extent that the appellant raises a claim of denial of reasonable accommodation for the first time on review, we decline to address it. PFR File, Tab 3 at 9, 11-12; IAF, Tab 38 at 11, Tab 44 at 10-12; ID at 18; HCD 1 at 4:55-5:50 (containing a discussion on the record as to the nature of the appellant’s disability discrimination claim); see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that 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). 19 been incorporated by reference into the Rehabilitation Act, and the Board applies them to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 n.3 (2014). The ADA originally prohibited discrimination “because of” an individual’s disability; Congress changed this language in the ADAAA to prohibit discrimination “on the basis of disability.” ADAAA, Pub. L. No. 110-325, § 5(a), 122 Stat. 3553, 3557. Because the ADAAA went into effect prior to the events in this matter, we apply the standards set forth in the ADA as amended. ¶36 The administrative judge found that the appellant proved she was regarded as disabled, and thus was an individual with a disability for purposes of the ADA. ID at 19. We clarify that the appellant met her burden to prove she was an individual with a disability by proving that she was actually disabled. ¶37 To prove disability discrimination under the ADA, the appellant must establish that she is an individual with a disability as that term is defined in the ADA and Equal Employment Opportunity Commission (EEOC) regulations. Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 24 (2015). She may prove that she has a disability by showing that she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(1); Thome, 122 M.S.P.R. 315, ¶ 24; 29 C.F.R. § 1630.2(g)(1). Major life activities include the operation of major bodily functions, such as bowel functions. 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(ii). The determination of whether a condition is substantially limiting is made by comparing the ability of the allegedly disabled individual to the abilities of “most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). The “substantially limits” standard is not “demanding,” and is intended to “be construed broadly in favor of expansive coverage.” 29 C.F.R. § 1630.2(j)(1)(i). 20 ¶38 The appellant suffers from colitis, carpal tunnel syndrome, and rhinitis. IAF, Tab 31 at 27, 39, Tab 38 at 3-4. Colitis is an inflammation of the colon, which is a portion of the bowel. Stedman’s Medical Dictionary 247, 408 (28th ed. 2006). The appellant provided undisputed evidence that, as a result of her colitis, she had to be within 50 feet of a restroom to accommodate her need to use it “frequently.” IAF, Tab 31 at 29, 31, 34, 41. The agency constructed office space for the appellant so that she had the necessary proximity to the restroom. Id. at 41. Under these circumstances, we find that the appellant met her burden to prove she was an individual with a medical condition that substantially limits her bowel function as compared with most people in the general population. As such, she is an individual with an actual disability.11 ¶39 As with the appellant’s other discrimination claims, the administrative judge concluded that the appellant failed to prove that her disability was a motivating factor in her removal. ID at 20-22. The appellant appears to dispute this finding. PFR File, Tab 3 at 5-7. ¶40 The EEOC and Federal circuit courts have disagreed regarding the level of causation an employee must meet to prove discrimination “on the basis of disability.” See, e.g., Natofsky v. City of New York, 921 F.3d 337, 350 (2d Cir. 2019) (“We conclude that ‘on the basis of’ in the ADA requires a but-for causation standard.”); Monroe v. Indiana Department of Transportation, 871 F.3d 11 The ADA prohibits disparate treatment discrimination against a “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The record reflects that the appellant blamed her first-line supervisor and others, rather than her medical conditions, for any performance deficiencies while on the PIP. HCD 1 at 1:04:56-1:16:40 (testimony of the appellant); IAF, Tab 10 at 44-47, Tab 38 at 11; ID at 18. The agency essentially agreed with the appellant that her alleged performance deficiencies were not related to her medical conditions. HCD 2, Track 2 at 1:22:44-1:26:24 (testimony of the appellant’s second-line supervisor). Therefore, because it appears undisputed that the appellant was “qualified,” i.e., that she could perform the essential functions of her position with or without reasonable accommodation, 42 U.S.C. § 12111(8), we do not address that issue further here. 21 495, 503-04 (7th Cir. 2017) (using the “but-for” causation standard for a case arising after the ADAAA); Oehmke v. Medtronic, Inc., 844 F.3d 748, 757 n.6 (8th Cir. 2016) (declining to resolve whether a motivating factor or “but-for” causation standard applies to disability discrimination claims under the ADA as amended); Gentry v. East West Partners Club Management Co., Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (applying a “but-for” causation standard to a disability discrimination claim); Hoffman v. Baylor Health Care System, 597 F. App’x 231, 235 n.12 (5th Cir. 2015) (applying a motivating factor causation standard); Renee L. v. Department of Commerce, EEOC Appeal No. 0120141032, 2017 WL 1315387, at 17 (Mar. 29, 2017) (applying a motivating factor causation standard). The Board generally defers to the EEOC on issues of substantive discrimination law unless the EEOC’s decision rests on civil service law for its support or is so unreasonable that it amounts to a violation of civil service law. Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 20 (2013). In light of the split among the circuit courts, we find it appropriate to defer to the EEOC’s use of a motivating factor causation standard. However, as explained below, to obtain full relief, an appellant must show that disability discrimination was a but-for cause of the personnel action. ¶41 The administrative judge determined below that the appellant was entitled to some relief if she showed that her disability was a motivating factor in her removal, even if other factors also motivated the removal. ID at 19, 22. She found that the appellant did not meet that burden. ID at 22. The appellant argues, as discussed above, that her coworker, who she claims was not disabled, was treated more favorably for assigning and evaluating work. PFR File, Tab 3 at 5-7; IAF, Tab 38 at 6. While we agree with the administrative judge’s applying the motivating factor causation standard, as explained above, the appellant’s coworker was similarly situated to the appellant because he was employed in the same position, assigned work by the same supervisor, and subjected to the same general standards governing performance. See Fox, 22 120 M.S.P.R. 529, ¶ 37. Thus, we must remand for the administrative judge to consider the appellant’s claim that she received less favorable assignments than her coworker did due to her disability. ¶42 In analyzing the appellant’s disparate treatment disability discrimination claim, the administrative judge shall apply the same standards of proof set forth above regarding the appellant’s Title VII claims, and the appellant may use the same methods of proof applicable to such claims. See Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001); Davis v. Department of the Treasury, EEOC Appeal No. 01A10591, 2002 WL 31014612, at 2 (Aug. 30, 2002). Also, as with Title VII claims, the remedies available for disparate treatment disability discrimination will vary based on the level of causation. When disability discrimination is a but-for cause of the personnel action, full relief, including reinstatement, back pay, and damages, is available. When disability discrimination is merely a motivating factor, but not a but-for cause, injunctive or other forward-looking relief is available.12 See Southerland, 119 M.S.P.R. 566, ¶¶ 23-25; Brenton W. v. Department of Veterans Affairs, EEOC Appeal No. 2020000957, 2021 WL 3792957, at 3 (Aug. 4, 2021); see also 42 U.S.C. § 12117(a) (incorporating, by reference, the remedy provisions of Title VII into the ADA). The appellant did not prove that her protected activities of filing disability complaints and requesting reasonable accommodation were “but-for” causes of her removal. ¶43 As to the appellant’s claims of retaliation for engaging in activity protected by the Rehabilitation Act, the administrative judge analyzed those claims in 12 In this matter, we have already reversed the removal action on other grounds and ordered the agency to restore the appellant to her former position and provide her with appropriate back pay. However, she may obtain further relief if she proves her discrimination claims on remand. See Wrighten v. Office of Personnel Management, 89 M.S.P.R. 163, ¶¶ 5-10 (2001). 23 conjunction with the appellant’s Title VII claims. ID at 16-22. She concluded that the appellant did not meet her burden to prove that her requests for reasonable accommodation and EEO complaints were motivating factors in her removal. Id. On review, the appellant again suggests that the agency’s actions were suspiciously close in time to her 2010 requests for accommodation and 2010 EEO complaint “regarding denied accommodations.” PFR File, Tab 3 at 9-13. While we disagree with the appellant, we modify the administrative judge’s analysis of the appellant’s retaliation claim to reflect the proper causation standard. ¶44 Separate from its prohibition on disparate treatment disability discrimination, the ADA has an anti-retaliation provision, which prohibits discriminating against any individual “because such individual” has engaged in protected activity. 42 U.S.C. § 12203(a); Southerland, 119 M.S.P.R. 566, ¶ 21. Both requesting a reasonable accommodation and opposing disability discrimination are activities protected by the Rehabilitation Act. Southerland, 119 M.S.P.R. 566, ¶ 21. ¶45 In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 351-53 (2013), the U.S. Supreme Court interpreted similar language from Title VII’s anti-retaliation provision applicable to private sector claims. The Court determined that the requirement to prove the employer’s actions occurred “because” of the employee’s protected activity imposed a “but-for” causation standard. Id. (interpreting 42 U.S.C. § 2000e-3(a)). The Court rejected using a mixed-motive analysis, explaining that “but-for” causation “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”13 Id. at 360-62. 13 In Nassar, the U.S. Supreme Court distinguished between the anti-retaliation provisions of Title VII, which it determined required “but-for” causation, and the disparate treatment discrimination provisions of Title VII, for which it found motivating 24 ¶46 We find Nassar provides useful guidance in interpreting the provision at issue here. The language in the ADA’s anti-retaliation provision is virtually identical to the language analyzed by the Court in Nassar, including the prohibition on discrimination “because” of protected activity. 42 U.S.C. § 12203(a); see Nassar, 570 U.S. at 353-54, 357 (observing that Congress’s decision to enact an anti-retaliation subsection in Title VII separate from the subsection prohibiting disparate treatment discrimination required that courts apply the standard of causation for retaliation claims stated in the anti-retaliation provision, and observing that the ADA has a similar structure). Thus, like Federal circuit courts which have considered this issue, we find that the “but-for” standard is applicable to ADA retaliation claims. See T.B. ex rel. Brenneise v. San Diego Unified School District, 806 F.3d 451, 473 (9th Cir. 2015) (finding, in light of Nassar, that the “but-for” causation standard applies to ADA retaliation claims); Equal Employment Opportunity Commission v. Ford Motor Company, 782 F.3d 753, 767 (6th Cir. 2015) (en banc) (citing Nassar for the requirement that a plaintiff claiming under the ADA retaliation for filing a disability discrimination claim must prove that her protected activity was the “but-for” cause of the adverse employment action); Feist v. State of Louisiana, Department of Justice, Office of the Attorney General, 730 F.3d 450, 454 (5th Cir. 2013) (explaining that to avoid summary judgment in a retaliation case under the ADA, a plaintiff must raise a factual conflict regarding whether retaliation was the “but-for” cause of the employer’s action); Palmquist v. Shinseki, 689 F.3d 66, 68, 72-77 (1st Cir. 2012) (concluding that a claim of retaliation for activity protected under the Rehabilitation Act requires proof of “but-for” causation). ¶47 Therefore, we overrule the Board’s finding in Southerland, which was issued days before the U.S. Supreme Court issued Nassar, that a lesser standard is factor causation to be appropriate. 570 U.S. at 343, 360. We follow the Court’s findings on these issues. 25 appropriate for Rehabilitation Act retaliation claims. Southerland, 119 M.S.P.R. 566, ¶¶ 18-22 (finding that a mixed-motive analysis applies to claims of disparate treatment discrimination under the ADA by relying on an EEOC case applying the mixed-motive standard to an ADA retaliation claim). We also overrule the finding that an agency can avoid liability by proving by clear and convincing evidence that it would have taken the same action absent an improper motive, id., ¶¶ 23-25, as such a construct would be applicable only for a motivating factor analysis. If prior EEO activity is a “but-for” cause of retaliation, by definition, there is no other proper reason for that action. In making its findings in Southerland, the Board relied on the EEOC’s interpretation of substantive discrimination law. Id., ¶¶ 20-21, 24-25. However, in light of Nassar, we find that the Supreme Court has effectively overruled the EEOC’s interpretation. ¶48 Returning to the appellant’s argument, we are not persuaded that the timing of the appellant’s 2014 removal is sufficient to establish that the agency would not have removed her absent her 2010 protected activity. PFR File, Tab 3 at 9-13. The administrative judge considered the appellant’s allegations regarding the timing of her removal, as well as other events that preceded it. As discussed above in connection with the appellant’s Title VII retaliation claims, the administrative judge was not persuaded by this evidence of “suspicious timing.” ID at 19-22. Other than holding the appellant to the lower motivating factor standard, we discern no error in her reasoning. ID at 22. Therefore, we affirm the administrative judge’s finding, as modified, to find that the appellant did not prove that her protected activity was the “but-for” cause of her removal. We find that the appellant made protected disclosures and remand the appellant’s claim of reprisal for activity protected by 5 U.S.C. § 2302(b)(9)(C). The Whistleblower Protection Act (WPA) and the burden-shifting framework under 5 U.S.C. § 1221(e) apply to the appellant’s claims of reprisal for activities and disclosures in this chapter 43 appeal. ¶49 When whistleblower retaliation claims are made in the context of an otherwise appealable action, as here, the appellant must prove by preponderant 26 evidence that she made a protected disclosure or engaged in protected activity and that the disclosure or activity was a contributing factor in the personnel action at issue. If the appellant makes this showing, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the personnel action absent the protected disclosure or activity. See 5 U.S.C. § 1221(e); Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 13-14 (2015); Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 16 (2008) (construing a whistleblower reprisal claim in the context of a chapter 43 appeal). ¶50 The agency removed the appellant after the December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA). Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. However, some of her protected activities occurred before that date. As is relevant here, activity under 5 U.S.C. § 2302(b)(9)(C), namely, disclosures made to OSC or an OIG, was protected prior to the passage of the WPEA, but the WPEA amended the WPA to make retaliation for such activity appealable to the Board. Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶¶ 7-12 (2016) (recognizing that, following the passage of the WPEA, the Board has individual right of action (IRA) jurisdiction over a claim of retaliation for activity protected under what is now 5 U.S.C. § 2302(b)(9)(C)); see WPA, Pub. L. No. 101-12, § 4(b), 103 Stat. 16, 32. Therefore, we must determine whether the WPEA’s provisions would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties as to transactions already completed. See Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994) (setting forth this standard for determining whether a statute that is silent as to its application of past events applies to matters that occurred before its enactment). ¶51 Here, we find that the relevant event in this context is the appellant’s removal, which was effected after the WPEA’s effective date. The agency, therefore, knew of the parties’ rights, liabilities, and duties under the WPEA when it acted to remove the appellant. Thus, the WPEA should be applied to this 27 matter because when the agency removed the appellant, the new right to seek relief for violations of 5 U.S.C. § 2302(b)(9)(C) before the Board was already in place. See Landgraf, 511 U.S. at 269-72 (explaining that the presumption against statutory retroactivity arises if “the new provision attaches new legal consequences to events completed before its enactment”). Therefore, the burden-shifting scheme set forth above applies here as we analyze the appellant’s allegations of whistleblowing activity. The administrative judge incorrectly concluded that the appellant did not make any protected disclosures. ¶52 Protected whistleblowing occurs when an appellant makes a disclosure that she reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); see Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 (2013) (discussing this burden at the jurisdictional stage of an IRA appeal). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the employee could reasonably conclude that the actions evidenced a violation of a law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 5. ¶53 In the initial decision, the administrative judge found that the appellant provided insufficient information to prove that she had a reasonable belief of agency wrongdoing concerning her alleged June 2012 disclosure to the Deputy Attorney General’s Office that the agency violated section 872(a) of the NDAA for FY 2009.14 ID at 23-24. The appellant argues that the administrative judge 14 The administrative judge did not address the filings with various OIGs here, and also appears to have conflated these June 2012 disclosures with the appellant’s protected 28 erred in requiring “a de minimus [sic] level of specificity” as to this disclosure. PFR File, Tab 3 at 32-33. ¶54 We disagree with the administrative judge’s determinations. First, the appellant asserted that she made disclosures pertaining to section 872(a) of the NDAA for FY 2009. Section 872(a) provides that, “[s]ubject to the authority, direction, and control of the Director of the Office of Management and Budget, the Administrator of General Services shall establish . . . and maintain a database of information regarding the integrity and performance” of those awarded Federal contracts or grants. Pub. L. No. 110-417, § 872(a), 122 Stat. 4356, 4555-56. Section 872(f) requires that the Federal Acquisition Regulation be amended regarding the requirements for those with more than $10,000,000 in Federal agency contracts or grants. § 872(f), 122 Stat. 4557. Both tasks were to be completed within 1 year of the law’s October 14, 2008 enactment date. The entire law was to be accompanied by “such regulations as may be necessary to carry out” section 872. § 872(g), 122 Stat. 4557. At the hearing, the appellant testified that in 2010, the General Services Administration (GSA) had set up the required reporting system for grants (the Federal Awardee Performance and Integrity Information System, or FAPIIS). HCD 1 at 29:08-31:18 (testimony of the appellant). She disclosed, however, that this particular statute had not been implemented and that her agency “was not complying with [F]ederal law requiring the [agency] to issue guidance to other agencies so that they do not inadvertently make grants to inappropriate grantees.” Id.; IAF, Tab 1 at 16, 41. On review, the appellant elaborates that GSA and the Office of General Counsel at the appellant’s agency had determined that the authority to promulgate the activity of filing a June 2013 complaint with OSC. ID at 23-25. We have separately analyzed the appellant’s OSC complaint below because it is a protected activity under 5 U.S.C. § 2302(b)(9)(C). Therefore, we modify the initial decision to the extent that it referred to the alleged protected disclosure as having been made to OSC. 29 implementing regulations rested with the appellant’s agency, not with GSA. PFR File, Tab 3 at 32. ¶55 Documentation supplied by the agency supports the appellant’s alleged belief. Specifically, the agency file includes a March 21, 2012 email from the Office of the Deputy Attorney General to the appellant’s agency with the subject line “mandatory grant fraud reg” which inquires about the status of the regulation, noting an “extensive back-and-forth on this rule.” IAF, Tab 10 at 411. When the appellant’s first-line supervisor forwarded the inquiry to the appellant in late May 2012, the appellant responded: The last email exchange I saw indicated that [agency] senior management would not clear and publish the package in response to your recommendation to delay indefinitely the issuance of the FAPIIS rule. In those emails your justification ranged from budgetary concerns to insufficient FAPIIS usage. Yesterday you provided me with a different rationale: It was stalled for inclusion in the “Supercircular.” Id. at 410. The appellant made her disclosure to the Office of the Deputy Attorney General and various OIGs sometime the following month. ¶56 We conclude that the alleged facts in the initial appeal and in the appellant’s hearing testimony are sufficiently specific to find that a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the appellant could reasonably conclude that the actions evidenced a violation of section 872’s requirement for the promulgation of regulatory guidance, and therefore that the appellant had a reasonable belief of such. Accordingly, we find that these disclosures to the Office of the Deputy Attorney General and various OIGs in June 2012 were protected. ¶57 The appellant also alleged that she made a disclosure in November 2011 to GAO that the agency delayed implementing reforms under the Federal Financial Assistance Management Improvement Act of 1999, more commonly referred to as Public Law 106-107. HCD 1 at 26:25-27:20 (testimony of the appellant). The administrative judge found that the appellant’s disclosures about this law were 30 “even less specific” than those related to section 872 of the NDAA for FY 2009, and thus were not protected under 5 U.S.C. § 2302(b)(8). ID at 24 n.12. We disagree. Among other purposes, Public Law 106-107 aimed to “facilitate greater coordination among those responsible for delivering [federal grant] services.” Pub. L. No. 106-107, § 3, 113 Stat. 1486, 1486. At the time of the appellant’s disclosure, GAO had published four reports on implementation of the measure.15 A July 2009 report had recommended that the agency work with the Department of Health and Human Services (HHS) to take a number of steps aimed at complying with Public Law 106-107.16 The most recent report, issued 6 months before the appellant’s disclosure, found that HHS’s ability to adopt the remaining prior GAO recommendations hinged on the agency’s implementing a new Federal grants governance model.17 The agency took a provisional step 1 month before the appellant’s disclosure when it created a new body tasked with overseeing the development of Federal grants management policy.18 However, it is clear from later GAO work that, even after creating the new body, many questions remained unresolved.19 The appellant testified that following a meeting GAO held with different agency officials about what she called the “grant reform agenda,” she contacted GAO to disclose that the agency was delaying its obligations under 15 U.S. Gov’t Accountability Off., GAO-05-335, Grants Management: Additional Actions Needed to Streamline and Simplify Processes (2005); U.S. Gov’t Accountability Off., GAO-06-566, Grants Management: Grantees’ Concerns with Efforts to Streamline and Simplify Processes (2006); U.S. Gov’t Accountability Off., GAO-09-589, Grants Management: Grants.gov Has Systemic Weaknesses That Require Attention (2009); U.S. Gov’t Accountability Off., GAO-11-478, Grants.gov: Additional Action Needed to Address Persistent Governance and Funding Challenges (2011). 16 GAO-09-589 at 33-34. 17 GAO-11-478 at 23-25. 18 U.S. Gov’t Accountability Off., GAO-13-383 at 13, Grants Management: Improved Planning, Coordination, and Communication Needed to Strengthen Reform Efforts (2013). 19 Id. at 14-17. 31 Public Law 106-107, and that despite her seeking answers, agency officials would not explain why it was being delayed. HCD 1 at 22:17-25:14; 26:25-27:51 (testimony of the appellant). ¶58 Although grant law and policy are highly complex, the test of whether a disclosure is protected is not whether the administrative judge understands every nuance of the law. Here, given the appellant’s particular responsibilities as well as GAO’s ongoing work on this specific law, it seems quite clear that those involved in making and receiving the disclosure well understood the law’s requirements. We thus find that the appellant had a reasonable belief under 5 U.S.C. § 2302(b)(8) that the agency had violated the law, and accordingly, that her November 2011 disclosure to GAO was protected. ¶59 Finally, the appellant alleged that on June 19, 2013, she filed a complaint with OSC disclosing that the agency’s Controller provided erroneous guidance in 2011 that resulted in billions of dollars in undisbursed balances not being returned to the Treasury, and that her first-line supervisor tried to have her cover up, including through congressional testimony, the fact that the guidance stemmed from an agency error. IAF, Tab 1 at 8. Even though the administrative judge did not address this disclosure, we find that the appellant has provided sufficient evidence and argument to establish that she had a reasonable belief that the agency had violated the law and therefore, that this disclosure was protected. ¶60 Because we find that all of the aforementioned disclosures were both made and protected, the administrative judge must on remand determine whether any of the disclosures was a contributing factor in the agency’s decision to remove the appellant.20 20 To the extent it is necessary to do so, we find that the appellant did in fact file two complaints with OSC on November 12, 2012, and June 19, 2013, as she asserted. In the appeal form that the appellant’s then-attorney signed on the appellant’s behalf, she stated that the appellant filed these OSC complaints. By the attorney’s signature, she attested to the truth of her statements. IAF, Tab 1 at 2, 40-41. See Chambers v. 32 The administrative judge improperly analyzed the appellant’s June 2013 OSC complaint and failed to fully analyze whether the November 2012 OSC complaint was a contributing factor in the appellant’s removal. ¶61 The appellant also alleged that her removal was in retaliation for the aforementioned protected activities, including her disclosures to various OIGs in the summer of 2012, her complaint to OSC in the fall of 2012, and her second complaint to OSC in the summer of 2013. The administrative judge found that the appellant’s 2012 OSC and OIG disclosures were protected activity under 5 U.S.C. § 2302(b)(9)(C). ID at 25.21 She found that the appellant’s June 2013 OSC complaint was not protected because it did not contain a protected disclosure. ID at 23-24. ¶62 As indicated above, we find that the appellant’s disclosures regarding Public Law 106-107 and section 872 of the NDAA for FY 2009 were, in fact, protected. Further, because “cooperating with or disclosing information to the Inspector General . . . of an agency, or the Special Counsel” is protected activity under 5 U.S.C. § 2302(b)(9)(C)—irrespective of whether an individual had a reasonable belief that she was disclosing wrongdoing—such a complaint would be protected regardless of its content.22 See Special Counsel v. Hathaway, Department of Homeland Security, 2022 MSPB 8, ¶ 11 n.7 (considering, in the context of exhaustion, the evidentiary value of the certification on the MSPB Appeal Form as to the statements contained therein, if unrebutted). Additionally, the appellant provided testimony regarding her having filed the OSC complaints. HCD 1 at 26:30-27:43; 27:45-29:12; 1:44:24-1:46:03; 3:09:30-3:09:52; 29:04-30:01; 30:04-31:20; 1:41:00-1:44:20 (testimony of the appellant). We conclude that this evidence (the appellant’s attorney’s attestation and the appellant’s hearing testimony, made under oath) suffices to establish that she filed these OSC complaints. 21 The administrative judge referred to “the agency’s OIG.” ID at 25. The appellant’s agency does not have an OIG. Rather, the appellant alleged that she made disclosures to the OIGs of various other agencies. HCD 1 at 27:51-30:04 (testimony of the appellant). 22 During the pendency of this appeal, the National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. It expanded the activities protected under 5 U.S.C. 33 49 M.S.P.R. 595, 612 (1991) (finding that section 2302(b)(9)(C) covers disclosures to OSC that do not meet the precise terms of actions described in section 2302(b)(8)), recons. denied, 52 M.S.P.R. 375, aff’d, 981 F.2d 1237 (Fed. Cir. 1992). Accordingly, the administrative judge must also determine on remand whether the appellant’s June 2013 protected activities were a contributing factor in the agency’s decision to remove her. ¶63 Although the administrative judge found that the appellant’s 2012 communications with OIGs and OSC constituted protected activity, the administrative judge found that the appellant only proved that her alleged OIG activity was a contributing factor in her removal, and not the OSC activity. ID at 25-26. The appellant disputes this finding, pointing to the timing of her November 2012 OSC complaint in connection with her removal. PFR File, Tab 3 at 9-13. One way an appellant may establish the contributing factor criterion is the knowledge/timing test, under which an employee submits evidence showing that the official taking the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 20 (2013). The Board has held that personnel actions taken within 1 to 2 years of the protected disclosure or activity satisfy the timing prong of the knowledge/timing test, but those that take place more than 2 years after the disclosure or activity are too remote to satisfy this test. Id., ¶ 21.23 § 2302(b)(9)(C) to include cooperating or disclosing information to “any . . . component responsible for internal investigations or review.” Pub. L. No. 115-91, § 1097(c)(1)(A), 131 Stat. 1283, 1618. That expansion does not affect the outcome of this appeal because all of the relevant events occurred prior to December 12, 2017. Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 29-33 (finding that the changes to section 2302(b)(9)(C) do not apply retroactively). 23 We defer to the administrative judge’s determination on remand as to whether it is best to analyze section 2302(b)(8) and section 2302(b)(9)(C) together or separately in 34 ¶64 The administrative judge found that the appellant did not prove that her first- and second-line supervisors had knowledge of her November 2012 OSC complaint. ID at 26 n.14. She found the appellant’s testimony that an OSC investigator told the appellant she had spoken with agency management generally regarding the complaint was not sufficient to prove contributing factor. Id. On review, the appellant asserts that in 2013, OSC “notifie[d] affected managers of [her] 2012 complaint.” PFR File, Tab 3 at 11. We agree with the administrative judge’s finding that this allegation is insufficient to establish knowledge of the 2012 OSC complaint. See Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016); Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 12 (2015) (concluding that vague, conclusory, and unsupported allegations do not meet even the nonfrivolous allegation jurisdictional standard for whistleblower retaliation claims). ¶65 If the appellant fails to satisfy the knowledge/timing test, the administrative judge shall consider whether the appellant proved contributing factor through other evidence, such as that pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing or protected activity was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant. Powers v. Department of the Navy, 69 M.S.P.R. 150, 156 (1995). Here, the administrative judge did not do so. ID at 25-26 & n.14. Accordingly, on remand, the administrative judge shall consider whether the appellant proved contributing factor through this other evidence. See Powers, 69 M.S.P.R. at 156. The administrative judge must reevaluate the Carr factors. ¶66 The appellant testified that she told her first-line supervisor of her disclosures to the OIGs around the time she made them in June 2012. HCD 1 deciding if one or both was a contributing factor in the agency’s decision to remove the appellant. 35 at 31:26-32:53 (testimony of the appellant). Because the administrative judge found that this testimony was not “specifically” disputed, she concluded that the appellant met the knowledge/timing test as to this activity. ID at 26. This finding is undisputed on review, and accordingly, we will not disturb it. ¶67 The administrative judge found that the agency met its burden to show by clear and convincing evidence that it would have removed the appellant absent her OIG disclosures. ID at 26-28. This finding must be reassessed based on our reversing the removal and remanding for further findings on the appellant’s various disclosures and protected activity. ¶68 In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board will consider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). On remand, the administrative judge shall consider whether reversing the sole charge of unacceptable performance affects her determination that the agency met its burden, particularly as to the first Carr factor. ¶69 Regarding the second Carr factor, the administrative judge found there was no evidence that the appellant’s first- or second-line supervisors were “personally . . . the subject of” the appellant’s disclosures. ID at 27-28. As indicated above, the administrative judge did not consider the appellant’s June 2013 disclosure to OSC that her first-line supervisor asked her to cover up, including through congressional testimony, the fact that erroneous 2011 guidance from the agency’s Controller resulted in billions of dollars in undisbursed balances not being returned to the Treasury. The appellant’s disclosures regarding section 872 of the NDAA for FY 2009 also appear to have implicated 36 her first-line supervisor, as the appellant apparently believed one reason the agency failed to issue the required regulations was this supervisor’s recommendation to “delay indefinitely the issuance of the FAPIIS rule.” IAF, Tab 10 at 410. On remand, the administrative judge should consider more closely this and any other similar evidence. ¶70 The administrative judge also appears to have improperly limited her analysis of the agency’s motive to retaliate to whether these officials were personal subjects of the appellant’s disclosures. The administrative judge also should consider whether the appellant’s disclosures reflect on the appellant’s supervisors in their capacities as managers and employees, which may be sufficient to establish a substantial retaliatory motive. HCD 2, Track 1 at 3:23:02-3:28:59 (testimony of the appellant’s supervisor); see Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 33 (2013) (finding, in analyzing the second Carr factor, that while the appellant’s supervisors were not directly implicated by the disclosures, the appellant’s criticisms nonetheless reflected on their capacity as managers and employees). The administrative judge did not abuse her discretion in denying the appellant’s motions to compel. ¶71 The Board’s regulations contemplate that parties may serve both initial and follow-up discovery requests. 5 C.F.R. § 1201.73(d)(2). Any follow-up request generally must be served within 10 days of the date of service of the prior response. Id. Any motion for an order to compel must be filed with the administrative judge within 10 days of the date of service of the opposing party’s response or, if there is no response, within 10 days after the response time has expired. 5 C.F.R. § 1201.73(d)(3). An administrative judge has broad discretion in ruling on discovery matters, and absent an abuse of discretion, the Board will not find reversible error in such rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). 37 ¶72 In this case, the appellant filed motions to compel on August 4 and 14, 2014. IAF, Tabs 18, 20. The administrative judge denied the August 4, 2014 motion as untimely because it was not filed within 10 days of the agency’s discovery response. IAF, Tab 23 at 2-4; see 5 C.F.R. § 1201.73(d)(3). She denied the August 14 motion because the appellant served the underlying follow-up discovery request more than 10 days after the agency’s response to her first discovery request. IAF, Tab 23 at 4. ¶73 The appellant challenges these rulings on review, arguing that her August 4, 2014 motion to compel and her follow-up discovery request were timely under the terms of a suspension order in which the administrative judge advised the parties that any motion to compel must be filed within 10 days of the appeal’s reinstatement. PFR File, Tab 3 at 33-34; IAF, Tab 13 at 1-2. However, we agree with the administrative judge that, read in context, the suspension order did not extend these deadlines. IAF, Tab 23 at 4-5. The administrative judge provided that the parties were to “actively engage in discovery” and any motions to compel should be filed “during the suspension period.” Id. at 1. She then provided that the outside deadline for filing motions to compel was within 10 days after the appeal’s reinstatement. Id. at 2. We therefore find that the administrative judge did not abuse her discretion in denying the motions to compel. ¶74 The appellant also appears to argue that the administrative judge abused her discretion in denying the August 14, 2014 motion to compel because she did not set a deadline for the end of discovery. PFR File, Tab 3 at 33. Because the administrative judge denied the motion based on the appellant’s untimely service of her follow-up discovery request, and not the deadline for the end of the discovery period, we decline to address this argument. ¶75 In sum, this case must be remanded to the regional office for further adjudication of the appellant’s claims of discrimination based on race, color, and 38 disability, and her claims of reprisal for EEO activity, protected disclosures, and protected activity under the WPA as amended.24 ORDER ¶76 Accordingly, the initial decision is REVERSED IN PART, and the case is REMANDED for further adjudication. ¶77 Notwithstanding the remand proceedings on the appellant’s discrimination and retaliation claims, we ORDER the agency to cancel the appellant’s removal and restore her retroactive to March 7, 2014. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must accomplish this action no later than 20 days after the date of this decision. ¶78 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶79 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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 The Board’s regulations provide that a request for attorney fees must be made within 60 days after issuance of a final decision, 5 C.F.R. § 1201.203(d). In this case, the time limit for filing such a request will not begin to run until the decision on remand is final. See Aldridge v. Department of Agriculture, 111 M.S.P.R. 670, ¶ 23 n.4 (2009). 39 ¶80 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶81 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/PRIDGEN_MARGUERITE_DC_0432_14_0557_I_1_OPINION_AND_ORDER_1959386.pdf
08-31-2022	2022 MSPB 29	Eric Williams	https://www.mspb.gov/decisions/precedential/WILLIAMS_ERIC_AT_3330_19_0438_I_1_OPINION_AND_ORDER_1956464.pdf	Department of Defense	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 29 Docket No. AT-3330-19-0438-I-1 Eric Williams, Appellant, v. Department of Defense, Agency. August 31, 2022 Eric Williams, North Charleston, South Carolina, pro se. James J. Delduco, Esquire, and Paul Y. Kim, Esquire, Redstone Arsenal, Alabama, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied corrective action in his Veterans Employment Opportunities Act of 1998 (VEOA) appeal. For the reasons set forth below, we AFFIRM the initial decision AS MODIFIED to address the appellant’s claim of an alleged violation of 5 U.S.C. § 3308. BACKGROUND ¶2 On November 14, 2018, the agency announced seven competitive service vacancies for GS-9 Logistics Management Specialists in its Missile Defense 2 Agency. Initial Appeal File (IAF), Tab 1 at 14-21. The vacancies were open to the public, and the announcement provided that “this position is being filled under the Acquisition Expedited Hiring Authority . . . using [the Office of Personnel Management’s] Direct Hire Authority.” Id. at 14. ¶3 The appellant, a preference-eligible veteran with a 30% service-connected disability, applied for the position. IAF, Tab 15 at 25-33. The agency found the appellant qualified for the position, but after scoring his application, it found him not among the best qualified applicants, so he was not selected for an interview. IAF, Tab 15 at 25, Tab 16 at 35-37. The appellant filed a veterans’ preference complaint with the Department of Labor, which closed the file without taking corrective action. IAF, Tab 1 at 12-13 ¶4 The appellant filed a Board appeal and requested a hearing. Id. at 1-9. He argued that the agency failed in several respects to afford him veterans’ preference during the selection process at issue. Id. The administrative judge found that the Board has jurisdiction over the appeal. IAF, Tab 10 at 2. After a hearing, the administrative judge issued an initial decision finding that the appellant failed to prove that the agency violated any law related to veterans’ preference because veterans’ preference does not apply to appointments made pursuant to a direct hire authority. IAF, Tab 21, Initial Decision (ID). ¶5 The appellant has filed a petition for review, disputing the administrative judge’s finding that veterans’ preference did not apply to the selection process. Petition for Review (PFR) File, Tab 1. The agency has filed a response to the petition for review, and the appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4. ANALYSIS ¶6 The issue in this appeal is whether the agency’s recruitment and selection process for Logistics Management Specialists violated any law related to veterans’ preference. Specifically, the appellant appears to argue that the agency 3 violated 5 U.S.C. §§ 3308, 3309, 3311, 3318, and 3313 or 3317. ID at 5; IAF, Tab 1 at 3-4; PFR File, Tab 1 at 10-12. ¶7 Section 3308 of title 5 of the United States Code is a law relating to veterans’ preference that, with certain exceptions, prohibits the prescription of minimum educational requirements for competitive service positions. See Dean v. Department of Labor, 808 F.3d 497, 503-05 (Fed. Cir. 2015). Although the appellant in this case appears to have alleged a violation of this section for the first time on review, we nevertheless exercise our discretion to address it. Cf. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (stating that the Board 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). The appellant argues that the agency violated this provision by assessing the applicants’ educational history in its selection process. PFR File, Tab 3 at 11-12. The record is clear that the agency considered education in evaluating the applications. IAF, Tab 15 at 25, Tab 16 at 29-34. However, we find that considering education as one factor among many in assessing qualified applicants is not the same as prescribing a “minimum educational requirement.” In fact, the vacancy announcement itself explained that applicants may qualify through either education or experience. IAF, Tab 1 at 16. We therefore find that the agency did not prescribe a minimum education requirement for the Logistics Management Specialist position, and we modify the initial decision to find that the agency did not violate the requirements of 5 U.S.C. § 3308 by considering education as a factor in rating and ranking the applicants. ¶8 Regarding the remainder of the claimed veterans’ preference violations, it appears to be undisputed that the agency did not generally adhere to the requirements of 5 U.S.C. §§ 3309-3318 in the selection process at issue. Whether the agency failed to follow any of these particular requirements or whether such requirements were invoked by the facts of the case is secondary to the primary 4 issue of whether the agency was exempted from following those requirements at all. The administrative judge found that the hiring process at issue was exempted because the Logistics Management Specialists were appointed pursuant to the Direct Hire Authority provisions of 5 U.S.C. § 3304(a)(3) via the agency’s Expedited Hiring Authority of 10 U.S.C. § 1705(f). Section 3304(a)(3) provides as follows: (a) The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for– . . . . (3) authority for agencies to appoint, without regard to the provisions of sections 3309 through 3318, candidates directly to positions for which– (A) public notice has been given; and (B) the Office of Personnel Management has determined that there exists a severe shortage of candidates . . . or that there is a critical hiring need. 5 U.S.C. § 3304(a)(3). The agency in this case has special statutory authorization to determine for itself any category of positions within its acquisition workforce for which there exists a severe shortage of candidates or for which there is a critical hiring need and to use the Direct Hire Authority of 5 U.S.C. § 3304(a)(3) to fill such positions.1 10 U.S.C. § 1705(f). This is known as the agency’s “Expedited Hiring Authority.” Id. ¶9 In this case, the administrative judge found that the agency properly invoked its Expedited Hiring Authority to fill the Logistics Management Specialist positions by direct hire and that the requirements of 5 U.S.C. §§ 3309-3318 therefore did not apply. ID at 6-7. The appellant does not dispute that the agency’s Expedited Hiring Authority was properly invoked, but he argues that 5 U.S.C. §§ 3309-3318 nevertheless apply. PFR File, Tab 1 at 3-14. First, 1 It would appear that the Logistics Management Specialist is an acquisition position. See 10 U.S.C. §§ 1705(g)(1), 1721(b)(5). 5 he argues that the agency’s Expedited Hiring Authority is distinct from its Direct Hire Authority and that the agency used the former to fill the positions and not the latter. PFR File, Tab 1 at 5, 9-11. However, it would be misleading to think of the Expedited Hiring Authority and the Direct Hire Authority as two distinct and mutually exclusive hiring authorities. Rather, as explained above, the Expedited Hiring Authority provisions of 10 U.S.C. § 1705(f) merely authorize the agency to invoke, under certain circumstances, the Direct Hire Authority provisions of 5 U.S.C. § 3304(a)(3) without first seeking permission from the Office of Personnel Management. This is precisely what the agency did in this case, as reflected in the vacancy announcement. IAF, Tab 1 at 14. ¶10 Second, the appellant cites to agency guidance concerning expedited hiring in the acquisition workforce, agency guidance concerning the expedited hiring of healthcare professionals, and Department of the Navy guidance concerning expedited hiring in select acquisition positions. PFR File, Tab 1 at 18-32; IAF, Tab 15 at 17-23. He argues that these documents show that the agency intended for veterans’ preference to apply under its Expedited Hiring Authority. Id. at 3-14. Regarding the agency’s acquisition workforce guidance, the appellant argues that it states “[q]ualified candidates with veterans’ preference should be considered for appointments when they are found to best meet mission requirements,” thereby indicating that the Secretary of Defense intended for veterans’ preference to apply in expedited hiring. PFR File, Tab 1 at 3-10, 14; IAF, Tab 15 at 18. We disagree. Requiring that qualified preference eligibles be considered for appointment is not the same as requiring veterans’ preference, much less that the agency follow the specific statutory provisions of 5 U.S.C. §§ 3309-3318. Rather, we find that the requirement to consider preference-eligible applicants is analogous to the right to compete in 5 U.S.C. § 3304(f)(1), which mandates that covered veterans be allowed to compete on equal footing with other candidates in the merit promotion process. See Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 13 (2008) (finding that the 6 right to compete does not entail point preferences when it comes to ranking applicants). Regarding the guidance that the appellant has submitted on review, we find that it does not apply to his situation because a Logistics Management Specialist is not a healthcare position, and the appellant was not applying for a position within the Department of the Navy.2 PFR File, Tab 1 at 18-32. ¶11 Third, the appellant disputes the accuracy of testimony provided by an agency Human Resources Specialist, who testified that no delegated examining authority was used to fill the positions at issue. PFR File, Tab 1 at 6-8; IAF, Tab 16 at 39. We find, however, that this testimony was accurate. As explained above, the agency filled these positions under its 10 U.S.C. § 1705(f) statutory authority, which was conferred directly to the agency by Congress and not delegated to it by the Office of Personnel Management. ¶12 Fourth and finally, the appellant disputes the administrative judge’s ruling to disallow testimony about whether the agency followed the requirements of 5 U.S.C. §§ 3309-3318. PFR File, Tab 1 at 8-9. The appellant’s objection is based, however, on the premise that these sections applied to the selection process at issue, which as explained above, they did not. Id. at 9. We find that the administrative judge did not abuse his discretion in declining to hear such testimony because it would have been immaterial to the outcome of the appeal. See Grubb v. Department of the Interior, 96 M.S.P.R. 361, ¶ 27 (2004); 5 C.F.R. § 1201.41(b)(8), (10). 2 In addition, the hiring authority discussed in the Department of the Navy guidance expired on September 30, 2017, which was more than a year before the agency announced the vacancies at issue in this appeal. PFR File, Tab 1 at 27; IAF, Tab 1 at 14. 7 ORDER ¶13 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 RIGHTS3 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 9 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 10 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 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. 4 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. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/WILLIAMS_ERIC_AT_3330_19_0438_I_1_OPINION_AND_ORDER_1956464.pdf	Issuance Date: July 6, 2023 ARBITRATION PENALTY Ms. Williams appealed an arbitration decision that upheld her removal from her position as a correctional officer. The court vacated and remanded the arbitration decision, finding that the arbitrator erred in his penalty analysis. To this end, although the arbitrator had sustained only one of the two charges against Ms. Williams, he nonetheless deferred to the deciding official’s penalty determination. The court explained that, because the arbitrator had sustained fewer than all of the agency’s charges and the agency had not indicated that it desired a lesser penalty than removal if only the sustained charge was upheld, the arbitrator was required to independently determine the maximum reasonable penalty by analyzing and balancing the relevant Douglas factors. The court also found that the arbitrator had erred by deferring to the deciding official’s findings of fact, which the arbitrator himself had rejected. NONPRECEDENTIAL: Trimble v. Department of Veterans Affairs, No. 2023-1306 (Fed. Cir. June 30, 2023) (DA-3330-22-0254-I-1) The court affirmed the Board’s decision denying Ms. Trimble’s request for corrective action under VEOA. The court found that (1) substantial evidence supported the Board’s conclusion that Ms. Trimble had an opportunity to compete for a position for which she had applied, but was not selected and (2) Ms. Trimble failed to identify any violations that would give rise to a viable VEOA claim. The court also found unavailing Ms. Trimble’s claim that the Board had violated her due process rights by not holding a hearing, explaining that the Board may decide a VEOA appeal on the merits without a hearing when there is no genuine dispute of material fact. Trimble v. Department of Veterans Affairs, No. 2023-1307 (Fed. Cir. June 30, 2023) (DA-4324-22-0350-I-1) The court affirmed the Board’s decision denying Ms. Trimble’s request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994. The court found that substantial evidence supported the Board’s conclusion that Ms. Trimble’s military service was not a motivating factor in her nonselection for the position for which she had applied. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
08-31-2022	2022 MSPB 30	Cyril Oram	https://www.mspb.gov/decisions/precedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_17_0755_I_1_OPINION_AND_ORDER_1956570.pdf	Department of the Navy	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 30 Docket No. DC-3330-17-0755-I-1 Cyril David Daniel Oram, Jr., Appellant, v. Department of the Navy, Agency. August 31, 2022 James D. Glenn, Norfolk, Virginia, for the appellant. Paul A. Walker, Fort Meade, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action pursuant to the Veterans Employment Opportunities Act of 1998 (VEOA) and dismissed for lack of jurisdiction his Uniformed Services Employment and Reemployment Rights Act (USERRA) appeal.1 For the reasons set forth in this Opinion and Order, we DENY the appellant’s petition for review and AFFIRM the initial decision. 1 The appellant has indicated on review that while he originally claimed that the agency had committed a USERRA violation, he now concedes “that USERRA was not the 2 BACKGROUND ¶2 The appellant, a preference-eligible disabled veteran, was appointed by the agency to a GS-12 Information Technology (IT) Specialist position in the competitive service effective May 1, 2017. Initial Appeal File (IAF), Tab 6 at 6-7, Tab 17 at 9. On June 1, 2017, the agency posted a vacancy announcement for a GS-12 IT Specialist position. IAF, Tab 5 at 7-13. The vacancy announcement was a merit promotion announcement open to current or former competitive service employees, and the agency accepted applications from individuals outside of its own workforce, including Federal employees and veterans. Id. at 7-8. The appellant applied for the position, but received a notification stating that he was ineligible for consideration because he failed to meet the area of consideration requirement specified in the vacancy announcement. IAF, Tab 18 at 8. After the appellant contacted the agency’s human resources office requesting additional information concerning his disqualification, id. at 9, the agency informed him that he was not considered because he had been employed in his current position for less than 90 days, and that an agency must wait at least 90 days after an employee’s latest non-temporary competitive appointment before it can promote, transfer, reinstate, reassign, or detail that employee to a different position or to a different geographical region. Id.; see 5 C.F.R. § 330.502. Because the appellant had not served at least 90 days in his current appointment at the time he applied for the position advertised in the vacancy announcement, he was found ineligible for the position. IAF, Tab 18 at 9. ¶3 The appellant timely filed a VEOA complaint with the Department of Labor (DOL). IAF, Tab 6 at 8. After exhausting his administrative remedies with DOL, id. at 4-5, the appellant filed the instant appeal arguing, inter alia, that the preferred avenue for redress.” Petition for Review (PFR) File, Tab 5 at 21. Accordingly, we have not addressed the appellant’s USERRA claim here. 3 agency’s failure to consider his application for the position advertised in the vacancy announcement violated his right to compete as a preference-eligible applicant under 5 U.S.C. § 3304(f), IAF, Tab 1. After holding two status conferences, the administrative judge issued a close of record order concluding that the appellant nonfrivolously alleged facts establishing Board jurisdiction over his VEOA appeal, and that it appeared that the appellant was denied the opportunity to compete for the position under 5 U.S.C. § 3304(f)(1) and therefore would be entitled to corrective action. IAF, Tab 24 at 2-7. ¶4 However, after the agency renewed its motion for judgment as a matter of law, citing the decision from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015), the administrative judge vacated his initial close of record order and issued a new close of record order directing the appellant to respond to the agency’s argument. IAF, Tabs 29-30. The appellant responded to the administrative judge’s order. IAF, Tab 31. The administrative judge subsequently issued an initial decision based on the written record, concluding that, because it was undisputed that the appellant was a Federal employee at the time the agency declined to consider his application for the IT Specialist position that was announced under merit promotion procedures and for which the agency accepted applications from individuals outside its own workforce, pursuant to the Federal Circuit’s decision in Kerner, he could not prevail as a matter of law on his claim that he was denied the opportunity to compete for the position. IAF, Tab 38, Initial Decision (ID) at 7-13. ¶5 On January 2, 2018, the appellant filed a petition for review. Petition for Review (PFR) File, Tab 2. The agency has filed a response in opposition to the petition for review, and the appellant has filed a reply.2 PFR File, Tabs 4-5. 2 The only argument the agency raises in its response to the petition for review is that the appellant’s petition for review is untimely filed by 1 day without good cause shown 4 ANALYSIS In light of the Federal Circuit’s decision in Kerner v. Department of the Interior, the administrative judge correctly concluded that, because the appellant was a current Federal employee, he was not entitled to corrective action for his claim that he was denied an opportunity to compete under 5 U.S.C. § 3304(f)(1). ¶6 Under VEOA, preference eligibles and certain veterans who unsuccessfully apply for a position being filled by a Federal agency for which the agency accepted applications from individuals outside of its own workforce under merit promotion procedures and who allege that they have been denied the opportunity to compete afforded to them under 5 U.S.C. § 3304(f)(1) may seek administrative redress with the Board for a violation of their rights.3 5 U.S.C. § 3330a(d); Montgomery v. Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 4 (2016). To establish Board jurisdiction over a claim that he was denied the opportunity to compete for a vacant position, an appellant must demonstrate that he exhausted his administrative remedy with DOL, and make nonfrivolous allegations of the following: that he is a preference eligible or veteran who was separated from the armed forces under honorable conditions after 3 years or more of active service; and that the agency denied him the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce.4 for the delay. PFR File, Tab 4 at 4-6. Although the finality date for the initial decision was January 1, 2018, as the appellant correctly observes, that day was a Federal holiday and so his petition for review was due on the next business day. 5 C.F.R. § 1201.23; PFR File, Tab 2 at 4; ID at 15. Accordingly, the appellant’s petition for review, which was received on January 2, 2018, was timely filed, and the agency’s argument is inapposite. 3 Prior to the passage of the Veterans Benefits Improvement Act of 2004, Pub. L. No. 108-454, Title VIII, § 804, 118 Stat. 3598, 3626 (2004), this redress right was only available to preference-eligible applicants, but the Act extended the right to include covered veterans. Montgomery v. Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 4 n.1 (2016); see 5 U.S.C. § 3330a(a)(1)(B). 4 The Board has held that VEOA right to compete appeals have an additional jurisdictional element, i.e., a nonfrivolous allegation that the actions at issue took place 5 See Montgomery, 123 M.S.P.R. 216, ¶¶ 4-5; Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). ¶7 There are two types of selection procedures that agencies generally use to fill vacancies in the competitive service: (1) the open “competitive examination” process, which is typically open to the public and is used for employees seeking to join the competitive service; and (2) the “merit promotion” process used when a position is filled from within an agency’s workforce or by an applicant from outside the agency who has “status” in the competitive service, such as a competitive-service employee at another agency or a preference-eligible veteran. Kerner, 778 F.3d at 1337; Montgomery, 123 M.S.P.R. 216, ¶ 7 n.3; see Joseph v. Federal Trade Commission, 505 F.3d 1380, 1381-82 (Fed. Cir. 2007). Agencies are free to decide whether to use one selection procedure or another, or both, in filling a particular vacancy. See Dean v. Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008). ¶8 The advantages veterans receive differ depending on which process is used. Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1357, 1359 (Fed. Cir. 2016). If an agency uses an open competitive appointment process to fill a vacancy, preference-eligible applicants are given several advantages, such as adding points to their ratings and being ranked ahead of other applicants with the same rating. Joseph, 505 F.3d at 1381. By contrast, “[v]eterans’ point preferences under the competitive appointment process do not apply in the merit promotion process.” Id. at 1382. Instead, when an agency uses the merit on or after the December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of 2004. E.g. Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶ 31 (2007). Without purporting to overrule this case law, we observe that nearly 20 years have now passed since the Veterans’ Benefits Improvement Act was enacted and that this jurisdictional issue will seldom, if ever, be dispositive in future cases. We therefore find that, going forward, an accurate exposition of the jurisdictional elements for a VEOA right to compete appeal may omit reference to the date that the action at issue took place. See Davis v. Department of Defense, 2022 MSPB 20, ¶ 5 n.1. 6 promotion process and opens the application process to individuals outside of its workforce, preference-eligible applicants and certain veterans “may not be denied the opportunity to compete” for such vacancies. Kerner, 778 F.3d at 1337 (quoting 5 U.S.C. § 3304(f)(1)). ¶9 Finally, VEOA complainants do not have an unconditional right to a hearing before the Board. Coats v. U.S. Postal Service, 111 M.S.P.R. 268, ¶ 13 (2009); 5 C.F.R. § 1208.23(b). Instead, the Board has the authority to decide a VEOA appeal on the merits, without a hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law.5 Coats, 111 M.S.P.R. 268, ¶ 13. ¶10 It is undisputed that the appellant exhausted his administrative remedies with DOL and made nonfrivolous allegations that he is a preference eligible and that the actions at issue took place after the enactment of VEOA. IAF, Tab 6 at 4-7. As the administrative judge found and the parties do not dispute, the vacancy announcement at issue here solicited applicants for the position from outside the agency’s own workforce, including from veterans. IAF, Tab 5 at 7-8; ID at 7-8; IAF, Tab 24 at 5. Therefore, whether the appellant was entitled to corrective action under VEOA would ordinarily turn on whether he was granted a bona fide opportunity to compete for the position. See 5 U.S.C. § 3304(f)(1); Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175, ¶ 9 (2010). ¶11 On review, the appellant argues that the Federal Circuit decision the administrative judge relied on in reaching his decision, Kerner v. Department of the Interior, was wrongly decided, and that the administrative judge erred by relying on it. PFR File, Tab 2 at 6-8. The appellant also cites to decisions from 5 A factual dispute is “material” if, in light of the governing law, its resolution could affect the outcome. Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). A factual dispute is “genuine” when there is sufficient evidence favoring the party seeking an evidentiary hearing for the administrative judge to rule in favor of that party if he credits that party’s evidence. Id. 7 the U.S. Supreme Court and the U.S. Court of Claims that he argues are inconsistent with Kerner. PFR File, Tab 5 at 4, 11-13. We turn now to a brief recounting of the relevant facts of Kerner. ¶12 The appellant in Kerner was an employee of the Department of the Interior at the time he applied for two merit promotion vacancies listed by his employing agency. Kerner, 778 F.3d at 1337. Both vacancies required Federal employee applicants to meet certain time-in-grade requirements, which Mr. Kerner did not meet, so the agency found him unqualified for the positions. Id. After the Board denied Mr. Kerner’s request for corrective action, he appealed to the Federal Circuit arguing that his employing agency violated his rights by denying him the opportunity to compete for the positions based on the agency’s failure to credit his military and non-Federal civil service, as required by 5 U.S.C. § 3311, when determining that he did not meet the time-in-grade requirements. Id. at 1336-38. ¶13 The Federal Circuit affirmed the Board’s decision, but in doing so concluded that, because Mr. Kerner was already employed in the Federal civil service, 5 U.S.C. §§ 3304(f) and 3311 were inapplicable in his case. Kerner, 778 F.3d at 1338-39. The Federal Circuit concluded that Mr. Kerner’s argument that the agency was required to consider his military and non-Federal civil service under 5 U.S.C. § 3311 rested on the presumption that section 3304(f)’s “opportunity to compete” provisions applied even in instances in which an applicant already was employed in the Federal civil service. Id. at 1338. After reviewing the text and legislative history of VEOA and its precursor, the Veterans’ Preference Act (VPA), the Federal Circuit concluded that nothing in the statutory language, the legislative history, or case law supported such a presumption. Id. Instead, the court determined that the statutory text and legislative history of VEOA and the VPA only evinced an intent to assist veterans in obtaining an initial appointment to the Federal service—not subsequent promotions or other intra-agency movement. Id. Additionally, the court concluded that, because veterans currently employed in a competitive service 8 position are already “eligible to apply” to merit promotion vacancies, such applicants could not have been the intended beneficiaries of section 3304(f). Id. ¶14 In the instant case, the administrative judge meticulously recounted the Federal Circuit’s reasoning in Kerner and concluded that, because the appellant was a Federal employee at the time the agency found him ineligible for appointment to the IT Specialist position based on its understanding of 5 C.F.R. § 330.502 (“the 90-day rule”), the appellant could not prevail as a matter of law on his argument that he was denied the opportunity to compete under 5 U.S.C. § 3304(f). ID at 9. However, in reaching this conclusion, the administrative judge opined that the Federal Circuit in Kerner appeared to have answered a broader question than was necessary to resolve the factual dispute before it, and observed that the decision “would appear to be a marked departure from the application of [the] rights” articulated in 5 U.S.C. §§ 3330a(a)(1)(B) and 3304(f). ID at 10-13. ¶15 The administrative judge’s point is well taken. The holding the Federal Circuit appears to have reached in Kerner is that 5 U.S.C. §§ 3304(f) and 3311 “do not require a [F]ederal agency to consider non-[F]ederal civil service experience when determining whether a veteran employed in the [F]ederal civil service meets a time-in-grade requirement for the purposes of a merit promotion.” Kerner, 778 F.3d at 1339. In arriving at this conclusion, however, the Federal Circuit seems to have gone well beyond this narrow question and addressed the broader question of whether Congress intended section 3304’s opportunity-to-compete provision to apply to preference-eligible applicants who are already employed in the Federal civil service, and concluded that, based on Federal court precedent and the statutory text and legislative history of VEOA and the VPA, it did not. Kerner, 778 F.3d at 1338-39. ¶16 In discussing the statutory language, the court stated that “[t]he text of the VEOA shows that it is intended to assist veterans in gaining access to [F]ederal civil service employment, not to give veterans preference in merit promotions.” 9 Kerner, 778 F.3d at 1338. Continuing, the court also noted that “[t]he legislative history of the VEOA confirms that Congress did not intend for [section] 3304 to apply when a veteran or other preference-eligible applicant is already employed in [F]ederal civil service.” Id. at 1339. Finally, the court concluded its analysis of the legislative history of VEOA by observing that “statements [in VEOA’s legislative history] show that the VEOA was specifically targeted to veterans not already employed in the [F]ederal civil service.” Id. ¶17 Although we share the concerns expressed by the administrative judge, we agree with his conclusion that the Federal Circuit’s broad statements in Kerner cannot be dismissed as mere dicta and must have been intended as essential to the central holding of the case. ID at 12. We are bound to follow precedential decisions of the Federal Circuit unless they are overruled by the court sitting en banc. See Conner v. Office of Personnel Management, 120 M.S.P.R. 670, ¶ 6 (2014), aff’d, 620 F. App’x 892 (Fed. Cir. 2015); Coley v. Department of Transportation, 112 M.S.P.R. 645, ¶ 6 (2009). Accordingly, the administrative judge correctly concluded that, given the appellant’s undisputed status as a current Federal employee, he was not entitled to recovery on his claim that he was denied an opportunity to compete under 5 U.S.C. § 3304(f) as a matter of law. See Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 12 (2007) (noting that a VEOA appeal may be decided on the merits, without an evidentiary hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law). Prior Board decisions that are inconsistent with the Federal Circuit’s decision in Kerner are overruled. ¶18 As the administrative judge observed, a number of prior Board cases appear to be in conflict with the Federal Circuit’s holding in Kerner. In Jolley v. Department of Homeland Security, 105 M.S.P.R. 104, ¶ 20 (2007), the Board specifically held that “[5 U.S.C. §]3304(f)(1) covers current employees along with those seeking initial [F]ederal appointment.” Similarly, in Styslinger v. 10 Department of the Army, 105 M.S.P.R. 223, ¶ 32 (2007), the Board concluded that the agency could not rely on the appellant’s status as a current Federal employee to reject his application without affording him the opportunity to compete for a vacancy that was announced under merit promotion procedures and for which the agency accepted applications from individuals outside its own workforce. In Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175, ¶ 6 (2010), and Shapley v. Department of Homeland Security, 110 M.S.P.R. 31, ¶ 7 (2008), the Board relied on the holdings in Styslinger and Jolley to conclude that “under the plain language of 5 U.S.C. § 3304(f)(1), all covered individuals, including current employees and those seeking initial [F]ederal appointments, must be permitted to compete when applications will be accepted from persons outside the hiring agency’s work force.” Finally, although the Board in Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶¶ 2, 6, 10 (2008), did not specifically state the proposition that current Federal employees are entitled to corrective action under VEOA if they are denied the opportunity to compete under 5 U.S.C. § 3304(f), it implicitly relied on the proposition in concluding that the current Federal employee applicant in that case was entitled to corrective action. Consequently, to the extent that they are inconsistent with the Federal Circuit’s holding in Kerner, these and similar decisions, which conclude that current Federal employees are entitled to corrective action pursuant to 5 U.S.C. § 3304(f)(1) when they are denied the opportunity to compete for a position that an agency announced using merit promotion procedures and for which it accepts applications from individuals outside of its own workforce, are overruled on this point. The appellant’s remaining arguments do not provide a basis for granting his petition for review. ¶19 Regarding the appellant’s argument that the U.S. Court of Claims decision in Crowley v. United States, 527 F.2d 1176 (Ct. Cl. 1975), and the U.S. Supreme Court decision in Hilton v. Sullivan, 334 U.S. 323 (1948), mandate that “veterans 11 preference always applies even in merit promotions and is only prohibited in temporary promotions,” and thus are at odds with the Federal Circuit’s decision in Kerner, this argument is without merit. PFR File, Tab 5 at 4, 11-13. Crowley involved the termination of temporary promotions for certain preference-eligible employees and generally discussed the scope of the VPA, while Hilton dealt with veteran retention rights under the VPA during a reduction in force. Hilton, 334 U.S. at 336-39; Crowley, 527 F.2d at 1177-85. Neither decision reached the conclusion identified by the appellant or discussed the extent of the right to compete under 5 U.S.C. § 3304(f). The appellant also cites the Federal Circuit’s decision in Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986), for the proposition that a higher court “cannot uphold any lower courts (sic) unlawful decisions contradicting veterans preference,” because Congress “limited edits to veterans preference through the use of legislation.” Id. at 11. The Federal Circuit’s decision in Cheeseman makes no reference to veteran’s preference rights and has no bearing on the outcome of this case. ¶20 We also find no merit to the appellant’s argument that his VEOA claim was harmed by the administrative judge’s decision to docket his constructive adverse action claim as a separate appeal.6 PFR File, Tab 2 at 6-7, 15-16, Tab 5 at 5, 8-10. As the administrative judge observed both in this appeal and in the separately docketed constructive adverse action appeal, the allegations in the appellant’s constructive adverse action appeal differ materially from those in his 6 During the adjudication of this appeal, the appellant submitted a filing in which he alleged for the first time that he had been subjected to a constructive adverse action when he accepted a transfer to a position within the Department of the Army, which the administrative judge separately docketed and adjudicated as a constructive adverse action appeal. IAF, Tab 26 at 4; see Oram v. Department of the Navy, MSPB Docket No. DC-3443-18-0057-I-1, Initial Appeal File, Tab 1. The appellant has filed a petition for review of the administrative judge’s decision in that case. MSPB Docket No. DC-3443-18-0057-I-1, Petition for Review File, Tab 1. A separate Board decision will be issued for that case. 12 VEOA appeal, rely on a different statutory basis, and are directed at a different agency component. See ID at 3 n.2; Oram v. Department of the Navy, MSPB Docket No. DC-3443-18-0057-I-1, Initial Decision at 2-3 (Nov. 27, 2017). We agree with the administrative judge’s conclusion on this point and see no reason to disturb that finding on review. Consequently, although the appellant addresses the merits of his constructive adverse action claim at length in his petition for review, we need not address those arguments here because those issues are being adjudicated in the separately docketed appeal. Accordingly, we deny the petition for review and affirm the initial decision. ORDER ¶21 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 RIGHTS7 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 7 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. 13 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: 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. 14 (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 15 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 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.8 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). 8 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. 16 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_17_0755_I_1_OPINION_AND_ORDER_1956570.pdf
08-18-2022	2022 MSPB 28	Paul Bishop	https://www.mspb.gov/decisions/precedential/BISHOP_PAUL_PH_1221_15_0535_W_1_OPINION_AND_ORDER_1952286.pdf	Department of Agriculture	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 28 Docket No. PH-1221-15-0535-W-1 Paul Bishop, Appellant, v. Department of Agriculture, Agency. August 18, 2022 Paul Bishop, Hillsborough, New Jersey, pro se. Bradly Siskind, Sarah S. Tuck and Zachary L. Wright, Riverdale, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA) appeal. For the reasons discussed below, we VACATE the initial decision and DISMISS the appeal for lack of jurisdiction. BACKGROUND ¶2 In August and September 2014, the appellant applied for a GS-9/11 Entomologist (Identifier) position and for two GS-9/11 Plant Protection and Quarantine Officer (Plant Health Safeguarding Specialist) positions, but the 2 agency did not refer his applications to the selecting official. Initial Appeal File (IAF), Tab 31 at 20-48, Tab 58 at 4, 14, 22. On December 1, 2014, the appellant filed a formal equal employment opportunity (EEO) complaint alleging that the agency failed to refer him to the selecting official in retaliation for his prior EEO activity, including an April 26, 2013 formal EEO complaint against the agency and EEO activity against his former employer, the Department of Homeland Security (DHS).1 IAF, Tab 12 at 6-7, 18-20, Tab 18 at 31-32, 46-48. In September 2015, the agency issued a final agency decision (FAD) finding no evidence of discrimination or retaliation based on his prior EEO activity. IAF, Tab 18 at 30-44. ¶3 On May 1, 2015, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency failed to appoint him on April 26, 2015,2 1 From 2005 to 2007, the appellant held a term appointment under the Federal Career Intern Program at DHS. In 2007, DHS terminated him from his position for alleged misconduct, and he has since unsuccessfully challenged his termination in multiple appeals before the Board. E.g., Bishop v. Department of Homeland Security, MSPB Docket No. NY-1221-17-0092-W-1, Initial Decision (Mar. 28, 2017); Bishop v. Department of Homeland Security, MSPB Docket No. NY-1221-15-0186-W-1, Final Order (Sept. 28, 2015); Bishop v. Department of Homeland Security, MSPB Docket No. NY-1221-09-0209-W-1, Final Order (Feb. 24, 2010); Bishop v. Department of Homeland Security, MSPB Docket No. NY-0752-08-0001-I-1, Initial Decision (Oct. 4, 2007). He also has unsuccessfully challenged his termination in other fora. E.g., Bishop v. Department of Homeland Security, 648 F. App’x 180 (3d Cir. 2016) (affirming the district court’s dismissal of the appellant’s appeal for lack of jurisdiction and its injunction enjoining him from filing further appeals related to his termination); Bishop v. Office of Personnel Management, 514 F. App’x 104 (3d Cir. 2013) (per curiam) (affirming the district court’s dismissal of the appellant’s claims that DHS and the Office of Personnel Management violated the Freedom of Information Act in failing to produce documents that would show his termination was illegal and the Privacy Act in failing to “correct” purportedly inaccurate records that led to his termination); Bishop v. Department of Homeland Security, EEOC Appeal No. 0120090628, 2009 WL 742266 (Mar. 12, 2009) (finding no evidence of discrimination in connection with, among other things, the appellant’s termination). 2 It is unclear why the appellant indicated that the nonselections at issue occurred on April 26, 2015. IAF, Tab 9 at 9. The record reflects that the appellant initiated contact with an EEO Specialist on October 16, 2014, and filed a formal EEO complaint on 3 in retaliation for his “disclosures” to the agency’s EEO office in April 2013, and on December 1, 2014. IAF, Tab 9 at 6-13. On August 13, 2015, OSC notified the appellant that it was terminating its inquiry into his allegation that the agency failed to select him for employment in reprisal for making disclosures of discrimination and informed him of his right to seek corrective action from the Board. IAF, Tab 1 at 14-15. ¶4 The appellant then filed the instant Board appeal, alleging, among other things, that the agency failed to select him in retaliation for his prior EEO activity at DHS.3 Id. at 10-13. In addition, he alleged that his nonselection was the result of DHS’s efforts to “black list” him from Federal employment in retaliation for his prior EEO activity by placing an unlawful promotion in his personnel folder, which serves as a “black list mechanism” recognized by civil service employees, including the agency hiring official who reviewed his application. Id. at 11-12. ¶5 In orders on jurisdiction, the administrative judge informed the appellant of the applicable law and his burden of proof to establish Board jurisdiction over his IRA appeal and specifically explained to him that disclosures of discrimination and retaliation claims are excluded from coverage under the Whistleblower Protection Act (WPA). IAF, Tabs 5, 13. In response, the appellant again alleged that the agency failed to refer his applications to the selecting official in retaliation for his prior EEO activity and because DHS had “black listed” him in December 1, 2014, regarding the agency’s failure to refer his applications in the identified nonselections to the selecting official. IAF, Tab 12 at 6-7, 18-20, Tab 18 at 31, 46-47. Thus, it is clear that the appellant was notified of his nonselection for the three positions at issue in this appeal on or before October 16, 2014. 3 Before the agency issued the FAD finding no evidence of retaliation in connection with the appellant’s nonselections, he filed an appeal with a Federal district court arguing that the agency’s failure to select him was discriminatory and retaliatory. IAF, Tab 25 at 7-14. The administrative judge issued an order finding that the IRA appeal could proceed in parallel with the Federal district court appeal because an IRA action is not cognizable before the Federal district court and an EEO complaint is not cognizable before the Board. IAF, Tab 26. 4 retaliation for his EEO activity at DHS.4 IAF, Tab 9 at 2-3, Tab 12 at 2-3, Tab 15 at 2. In an order and summary of a telephonic prehearing conference, the administrative judge interpreted and summarized the appellant’s claims and again provided the appellant notice of his jurisdictional burden. IAF, Tab 54. ¶6 After holding the appellant’s requested hearing, the administrative judge issued an initial decision finding that the appellant made one protected disclosure when he disclosed in an EEO complaint to the agency’s EEO office that DHS improperly gave him a step increase and a promotion on the same day, but that he failed to show that the disclosure was a contributing factor in the agency’s decision not to select him for the three positions at issue. IAF, Tab 63, Initial Decision (ID) at 13-19. Thus, the administrative judge denied the appellant’s request for corrective action. ID at 20. ¶7 The appellant has filed a petition for review of the initial decision, the agency has responded in opposition, and the appellant has replied to the agency’s response. Petition for Review (PFR) File, Tabs 1, 3-4. ANALYSIS The Board’s determinations regarding its jurisdiction over IRA appeals are matters of civil service law, rule, or regulation. ¶8 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). As relevant here, the Board’s jurisdiction over IRA appeals is derived from the WPA, Pub. L. No. 101-12, 103 Stat. 16, as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. See Corthell v. Department 4 In support of his contention that DHS improperly promoted him, the appellant submitted Standard Form 50s showing that he was awarded a within-grade increase from GS-9, step 1, to GS-9, step 2, and a promotion from his GS-9 Agricultural Specialist position to a GS-11 Agricultural Specialist position on September 3, 2006. IAF, Tab 12 at 25, 27. 5 of Homeland Security, 123 M.S.P.R. 417, ¶ 7 (2016). Specifically, 5 U.S.C. § 1221(a) provides that “an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.” 5 U.S.C. § 1221(a). ¶9 Before adjudicating an IRA appeal on the merits, however, the Board must determine whether the appellant has established jurisdiction by demonstrating exhaustion of his administrative remedy with OSC and by nonfrivolously alleging that he satisfies the criteria of section 1221(a)—i.e., that he made a protected disclosure or engaged in protected activity that was a contributing factor in a personnel action taken, or proposed to be taken, against him. See Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board has inherent authority to determine whether a matter is within its jurisdiction and to make findings of fact and law necessary to such a determination. See Cruz v. Department of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (holding that, although the Board does not have jurisdiction over voluntary resignations, the Board has jurisdiction to determine whether a resignation was involuntary and, therefore, a “constructive removal” within the Board’s jurisdiction under 5 U.S.C. § 7512 “because it has jurisdiction to determine its jurisdiction”); Lloyd v. Small Business Administration, 96 M.S.P.R. 518, ¶ 16 (2004). ¶10 In addition to judicial and Board precedent, the term “civil service law” embodies statutory provisions that are within title 5 of the United States Code, enacted as part of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-452, 92 Stat. 1111, and have a bearing on civil servants. See Horner v. Merit Systems Protection Board, 815 F.2d 668, 671 (Fed. Cir. 1987). The WPA, which amends title 5 and which Congress passed with the intent of strengthening 6 the protections for Federal whistleblowers contained in the CSRA, is a civil service law because it meets these criteria. See WPA § 2, 103 Stat. 16; King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1999) (finding implicitly, pursuant to 5 U.S.C. § 7703(d), that the interim relief provisions of the WPA and, by implication, all other such provisions constituted civil service laws, rules, or regulations appealable to the court by the Director of the Office of Personnel Management); Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993); Askew v. Department of the Army, 88 M.S.P.R. 674, ¶ 22 (2001); White v. Department of the Air Force, 71 M.S.P.R. 607, 617 n.5 (1996). The WPEA, which amends the WPA to further strengthen protections for Federal whistleblowers, is similarly a civil service law because it too meets these criteria. See WPEA, Pub. L. No. 112-199, 126 Stat. 1465; S. Rep. No. 112-155, at 1-4 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 589-92 (noting that the CSRA first established statutory whistleblower protections). By extension, determinations by the Board regarding whether an appellant has exhausted his OSC remedy and made nonfrivolous allegations of whistleblower reprisal under the WPA and the WPEA are matters of civil service law. See 5 U.S.C. § 1221(a); see also Cruz, 934 F.2d at 1244. Therefore, we find that a Board determination as to whether it possesses jurisdiction under the WPA and the WPEA or, in the alternative, whether it should (or should not) reach the merits of such a case, is a matter of civil service law, rule, or regulation. The Board lacks jurisdiction over this IRA appeal. ¶11 Before adjudicating an IRA appeal on the merits, the Board must make a threshold finding of jurisdiction. King v. Department of Veterans Affairs, 105 M.S.P.R. 21, ¶ 8 (2007). The Board may not assume that the appellant has established jurisdiction over his appeal and then proceed to reject his whistleblower reprisal claim on the merits; rather, the Board first must address the matter of jurisdiction before proceeding to the merits of the appeal. Id. (citing Schmittling, 219 F.3d at 1336-37). Absent jurisdiction, the Board is 7 without authority to decide the issues presented by the appellant. Id. If there is no jurisdiction over this IRA appeal, the administrative judge’s findings on the merits of the appeal are a nullity. Id. ¶12 Here, although the administrative judge denied the agency’s motion to dismiss the appeal for lack of jurisdiction, he did not make any explicit findings regarding jurisdiction. IAF, Tabs 11, 26; ID. Rather, he appeared to assume that the Board had jurisdiction over this appeal, held a hearing, and denied corrective action on the merits. IAF, Tab 46; ID. Because the Board must address the matter of jurisdiction before proceeding to the merits of the appeal, we do so now. ¶13 As noted above, to establish Board jurisdiction over an IRA appeal based on whistleblower reprisal, the appellant must exhaust his administrative remedies before OSC and make nonfrivolous allegations of the following: (1) he engaged in whistleblowing activity by making a protected disclosure 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, fail to take, or threaten to take a personnel action as defined by 5 U.S.C. § 2302(a).5 Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. § 2302(b)(8). A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). ¶14 The appellant here filed a complaint with OSC alleging that the agency failed to appoint him in retaliation for his disclosures to the agency’s EEO office in EEO complaints in April 2013, and on December 1, 2014. IAF, Tab 9 at 9. It 5 Effective December 27, 2012, the WPEA expanded the grounds on which an appellant may file an IRA appeal with the Board. WPEA §§ 101(b)(1)(A), 202, 126 Stat. at 1476; see Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Because all of the material events in this appeal occurred after December 27, 2012, the WPEA applies to this appeal. 8 appears that he submitted partial copies of his April 2013 and December 1, 2014 EEO complaints to OSC. Id. at 12-13. In relevant part, these documents both allege that the agency failed to select him for employment in retaliation for his prior EEO activity and because DHS had “black listed” him from Federal employment.6 Id. In support of his blacklisting claim, the appellant alleged that, in retaliation for his prior EEO activity, DHS improperly promoted him and that the improper promotion served as a “black list mechanism” recognized by other civil service employees, including the agency hiring official who reviewed his application. Id. In its close-out letter, OSC indicated that it was closing its inquiry into the appellant’s allegations that the agency failed to select him for employment in reprisal for making disclosures of discrimination. IAF, Tab 1 at 14-15. Accordingly, we find that the appellant exhausted these claims before OSC. ¶15 Next, we must determine whether the appellant made a nonfrivolous allegation of a protected disclosure 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). Salerno, 123 M.S.P.R. 230, ¶ 5. Reprisal for exercising an EEO right is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶¶ 7, 10 (2014); Williams v. Department of Defense, 46 M.S.P.R. 549, 553 (1991). As relevant here, protected activity under section 2302(b)(9)(A)(i) includes “the exercise of 6 The only evidence in the record regarding the appellant’s April 2013 EEO complaint appears to be an unsigned, undated document titled “Supplemental Answers for [agency] form 3090-1” alleging discrimination in connection with his nonselection for a GS-9/11 Entomologist (Identifier) position, vacancy announcement number 24PQ-2013-0054, and a GS-9/11 Plant Protection and Quarantine Specialist position, vacancy announcement number 24PQ-2013-0070. IAF, Tab 9 at 13. According to the agency, it does not use a form 3090-1. IAF, Tab 32 at 6. Nonetheless, because the agency acknowledged an April 2013 EEO complaint in its FAD, we assume for purposes of our jurisdictional determination that the appellant filed an EEO complaint in April 2013, including the “form 3090-1” in the record. 9 any appeal, complaint, or grievance right granted by any law, rule, or regulation . . . with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(i) (emphasis added). Section 2302(b)(8) provides, in relevant part, that it is unlawful for an agency to take or fail to take a personnel action with respect to any employee or applicant for employment because of any disclosure of information that he reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A). Thus, only complaints seeking to remedy whistleblower reprisal are covered under section 2302(b)(9)(A)(i). See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013). ¶16 In the instant matter, the administrative judge found that the appellant engaged in protected activity under section 2302(b)(9)(A)(i) when he filed an EEO complaint in which he disclosed a reasonable belief that DHS violated the regulatory “waiting period” for promotions by giving him a GS-9 step increase and a promotion to GS-11 on the same day in 2006. ID at 13. However, the appellant’s EEO complaint did not seek to remedy alleged whistleblower reprisal under section 2302(b)(8); rather, he repeatedly alleged that DHS unlawfully promoted him and “black listed” him in retaliation for his prior EEO activity. IAF, Tab 1 at 11, Tab 9 at 2. As discussed above, to constitute protected activity under section 2302(b)(9)(A)(i), the substance of an appeal, complaint, or grievance must concern remedying a violation of whistleblower reprisal under section 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 7. A nonfrivolous allegation regarding just one part of section 2302(b)(8)—such as, as here, a disclosure of one of the categories of wrongdoing specified in section 2302(b)(8)(A) without any allegation of whistleblower reprisal—is insufficient to constitute a nonfrivolous allegation of protected activity under section 2302(b)(9)(A)(i). See Mudd, 120 M.S.P.R. 365, ¶ 7. Therefore, we find that the appellant has failed to nonfrivolously allege that he engaged in protected activity or made a protected 10 disclosure within the Board’s jurisdiction over IRA appeals. See 5 U.S.C. § 1221(a). ¶17 In light of the foregoing, we vacate the initial decision denying the appellant’s request for corrective action and find that he failed to establish jurisdiction over this IRA appeal. ORDER ¶18 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 RIGHTS7 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 7 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. 11 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 12 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 13 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 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.8 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: 8 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. 14 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/BISHOP_PAUL_PH_1221_15_0535_W_1_OPINION_AND_ORDER_1952286.pdf
08-04-2022	2022 MSPB 27	Mitzi Baker	https://www.mspb.gov/decisions/precedential/BAKER_MITZI_CH_1221_17_0318_W_1_OPINION_AND_ORDER_1948463.pdf	Social Security Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 27 Docket No. CH-1221-17-0318-W-1 Mitzi Baker, Appellant, v. Social Security Administration, Agency. August 4, 2022 Mitzi Baker, Chicago, Illinois, pro se. James Hail, Esquire, Linda M. Januszyk and Suzanne E. Duman, Esquire, Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied her request for corrective action in this individual right of action (IRA) appeal. For the following reasons, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal for assignment to a different administrative judge and a new hearing. BACKGROUND ¶2 At all times relevant to this appeal, the appellant held a Paralegal Specialist position at the agency’s Chicago National Hearing Center (NHC). Initial Appeal 2 File (IAF), Tab 1 at 1, Tab 57 at 59. In October 2016, she filed a complaint with the Office of Special Counsel (OSC), alleging that the agency had retaliated against her for engaging in whistleblowing disclosures and other protected activities. IAF, Tab 1 at 10-21. Over the ensuing months, the appellant and OSC exchanged correspondence—only some of which is included in the record—as the appellant further elaborated about her allegations. Id. at 22-25. Ultimately, OSC closed the matter. Id. at 26-29. The appellant then filed the instant IRA appeal. IAF, Tab 1. ¶3 The administrative judge found that the appellant met her jurisdictional burden. IAF, Tab 20 at 7-10. During a prehearing conference, the administrative judge revealed to the parties that he had an “ongoing personal relationship” with an attorney “who works in the same agency office as the appellant.” IAF, Tab 24 at 1. He indicated that this “relationship would not adversely impact” his impartiality, but he permitted the parties to file a motion seeking his recusal. Id. The appellant did just that, but the agency argued that recusal was unnecessary. IAF, Tabs 39, 41. The administrative judge denied the appellant’s request for recusal, as well as her subsequent motion to reconsider and request to certify this issue for interlocutory appeal. IAF, Tab 43 at 1-3, Tab 46 at 1-2, Tab 54 at 1-2, Tab 59 at 5, Tab 60 at 1-2. ¶4 Because he found that the appellant met her jurisdictional burden, the administrative judge held a hearing on the merits. Hearing Transcript, Day 1; Hearing Transcript, Day 2. After doing so, the administrative judge found that the appellant failed to meet her burden of proving that she made any whistleblowing disclosures or engaged in any protected activity. IAF, Tab 77, Initial Decision (ID) 11-54. He therefore denied the appellant’s request for corrective action. ID at 55. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 2. The agency has filed a response, and the appellant has replied. PFR File, Tabs 4, 7. 3 ANALYSIS ¶6 In pertinent part, the appellant argues on review that the administrative judge should have construed her pleadings liberally, he repeatedly ruled against her, he exhibited improper behavior, he was biased against her, and he had a conflict of interest. PFR File, Tab 2 at 2-7. As further detailed below, most of the appellant’s arguments in this regard are not persuasive. However, we find that the administrative judge erred in denying the appellant’s request for recusal. Because the administrative judge’s impartiality could reasonably be questioned, he erred in denying the appellant’s request for recusal. ¶7 From its inception, the Board has had a regulation, at 5 C.F.R. § 1201.42, concerning the disqualification of administrative judges. Washington v. Department of the Interior, 81 M.S.P.R. 101, ¶ 7 (1999). Section 1201.42(a) simply provides that if an administrative judge considers himself or herself disqualified, he or she will withdraw from the case.1 5 C.F.R. § 1201.42(a). Yet, this regulation is not the sole source of our disqualification standards. The Board also looks to the disqualification standards Congress established for the Federal judiciary at 28 U.S.C. § 455. Washington, 81 M.S.P.R. 101, ¶¶ 7-8; see Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 20 (2010) (indicating that it is the Board’s policy to follow the standard set out at 28 U.S.C. § 455). Among other things, section 455 requires recusal “in any proceeding in which 1 The regulation also provides for how a party may request a judge’s recusal. Specifically, a party may file a motion requesting recusal on the basis of personal bias or other disqualification, but must do so in an affidavit or sworn statement, as soon as the party has reason to believe there is a basis for disqualification. 5 C.F.R. § 1201.42(b). If the judge denies the motion, the party may request certification of the issue as an interlocutory appeal. 5 C.F.R. § 1201.42(c). Failure to do so is considered a waiver of the request for recusal. Id. Although the appellant’s initial request for recusal was not in the form of an affidavit or sworn statement, IAF, Tab 39, she effectively remedied the oversight and complied with the regulatory requirements by submitting a request for reconsideration in the form of a sworn statement, IAF, Tab 46 at 1-3. 4 [the judge’s] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); Allphin v. United States, 758 F.3d 1336, 1343-44 (Fed. Cir. 2014) (quoting 28 U.S.C. § 455(a)); see PFR File, Tab 2 at 7 (alluding to the same basic standard). “This is an objective test that mandates recusal ‘when a reasonable person, knowing all the facts, would question the judge’s impartiality.’” Allphin, 758 F.3d at 1344 (internal citations omitted). An “[a]ppellant[’s] subjective beliefs about the judge’s impartiality [is] irrelevant.” Id. ¶8 The Board has infrequently addressed 28 U.S.C. § 455(a) and circumstances in which an administrative judge’s impartiality reasonably might be questioned. In two companion cases, the Board considered on interlocutory appeal whether an administrative judge should recuse himself from appeals involving a particular law firm because of a pending unfair labor practices (ULP) charge that the firm filed against the administrative judge at the Federal Labor Relations Authority. Colburn v. Department of Justice, 81 M.S.P.R. 146, ¶¶ 3-6 (1999); Washington, 81 M.S.P.R. 101, ¶¶ 3-6. Generally speaking, the ULP charge stemmed from a prior case involving a different agency and a different appellant in which the firm believed the administrative judge’s credibility findings reflected bias against union officials. Colburn, 81 M.S.P.R. 146, ¶ 3; Washington, 81 M.S.P.R. 101, ¶ 3. The administrative judge denied the request to recuse. Colburn, 81 M.S.P.R. 146, ¶ 5; Washington, 81 M.S.P.R. 101, ¶ 5. Among other things, he conceded that his prior credibility findings were unclear, but he indicated that they had been misconstrued. Colburn, 81 M.S.P.R. 146, ¶ 5; Washington, 81 M.S.P.R. 101, ¶ 5. He further found that the ruling in the other case was “wholly unrelated” to Colburn and Washington. Colburn, 81 M.S.P.R. 146, ¶ 5; Washington, 81 M.S.P.R. 101, ¶ 5. ¶9 On interlocutory review, the Board indicated that it takes seriously the concerns of parties who come before it and assert a claim that a particular judge should be disqualified. Colburn, 81 M.S.P.R. 146, ¶¶ 6-7; Washington, 81 M.S.P.R. 101, ¶¶ 6-7. Yet the Board agreed with the administrative judge and 5 found that recusal was not required. The Board explained that the appellant had presented nothing more than a bare claim that the judge “may” be biased by counsel’s activity in a separate case, involving a different appellant and a different agency, unsupported by any hint that the judge acted or ruled inappropriately in the appeals at issue. Colburn, 81 M.S.P.R. 146, ¶¶ 9-10; Washington, 81 M.S.P.R. 101, ¶ 19. Under the circumstances, the Board concluded that any risk of the appearance of a conflict of interest was not enough to warrant a different result. Colburn, 81 M.S.P.R. 146, ¶¶ 9-10; Washington, 81 M.S.P.R. 101, ¶ 19. ¶10 More recently, the Board considered whether an administrative judge should have been disqualified from an appeal on remand from our reviewing court because the appellant wrote and self-published a book that commented unfavorably on the administrative judge’s physical appearance and competence, among other things. Shoaf v. Department of Agriculture, 97 M.S.P.R. 68, ¶¶ 6, 8-9 (2004), aff’d, 158 Fed. App’x 267 (Fed. Cir. 2005). Generally speaking, the Board reasoned that the book at issue in Shoaf merely conveyed the appellant’s opinion about the administrative judge, not the administrative judge’s opinion about the appellant, and the appellant did not present any facts establishing the administrative judge’s reaction to the book. Id., ¶ 10. Thus, the Board concluded that the administrative judge did not abuse his discretion in denying the request for recusal. Id. The Board also explained that a contrary result could encourage future parties to act similarly for purposes of judge-shopping. Id. ¶11 In another case, the Board considered whether an administrative judge should have recused herself from an appeal because she had previously worked with the respondent agency’s representative. Lee, 115 M.S.P.R. 533, ¶ 18. There, the Board found that the administrative judge erred by failing to apply the standard of 28 U.S.C. § 455(a) when she denied the appellant’s motion to recuse and the motion to certify an interlocutory appeal of her ruling. Id., ¶¶ 19-20. 6 Nevertheless, the Board found that even under the appropriate standard, the administrative judge did not need to recuse himself because the professional association at issue was unremarkable and a reasonable, objective observer would not question the administrative judge’s impartiality. Id., ¶ 22. Significantly, the administrative judge and the agency representative were merely acquainted as former colleagues years before at an agency that was not a party to the appeal at issue. Id., ¶¶ 18, 21-23. ¶12 Turning back to the facts of the instant appeal, the administrative judge recognized and disclosed that he had an “ongoing personal relationship” with an attorney who worked in the same Chicago NHC office as the appellant. IAF, Tab 24 at 1. While the administrative judge’s status conference summary describing this disclosure provided no further details about the nature of the relationship, the appellant later characterized it as a romantic one. IAF, Tab 39 at 2. She further asserted that the administrative judge refused to elaborate about the length of the relationship because it was “irrelevant.” Id. The administrative judge provided no additional information about the nature of his ongoing personal relationship with the attorney. ¶13 In her motion to recuse, the appellant indicated that the attorney was “against the appellant” and worked for a particular administrative law judge (ALJ) whom the appellant described as “one of the alleged discriminating officers.” IAF, Tab 39 at 2, Tab 46 at 1. The agency responded to the appellant’s request by arguing that the administrative judge did not need to recuse himself. IAF, Tab 41. Among other things, the agency noted that the attorney at issue was 1 of 28 attorneys and 86 total employees in the Chicago NHC, and she was not a witness in this appeal. Id. at 5-6. ¶14 In denying the motion to recuse, the administrative judge discussed the Board’s general standards for a claim of bias, along with 5 C.F.R. § 1201.42, and he noted that the appellant’s evidence made no mention of the attorney in question. IAF, Tab 43 at 1-3. He did not, however, consider 28 U.S.C. § 455(a) 7 and/or whether his “impartiality might reasonably be questioned” or even acknowledge the fact that the agency’s evidence mentioned that attorney. See IAF, Tab 33 at 46-59. ¶15 Similarly, in denying the motion to reconsider, the administrative judge alluded to the standard provided in the Merit Systems Protection Board (MSPB) Judges’ Handbook, but he found that the associated standard did not require recusal in this case.2 IAF, Tab 54 at 1, Tab 60 at 2. Again, in denying the motion to reconsider and request for certification for interlocutory appeal, the administrative judge did not refer to or apply the standard delineated in 28 U.S.C. § 455(a). ¶16 On review, the appellant reasserts that the administrative judge should have recused himself from this appeal based on his personal relationship with the attorney who is the appellant’s coworker. PFR File, Tab 2 at 5, 7. She argues that the attorney “submitted negative statements to [a]gency investigators regarding the appellant and those statements were submitted in the [a]gency’s affirmative defense.” Id. at 5. Although the appellant failed to direct us to any such statements, it appears that she may be referring to a statement from the aforementioned ALJ. IAF, Tab 33 at 46-59. ¶17 In the ALJ’s statement, which was submitted by the agency, the ALJ discussed her own negative interactions with and feelings about the appellant. Id. She also provided a brief description of her two subordinate attorneys having similar feelings about the appellant, including the attorney in the ongoing personal relationship with the administrative judge. IAF, Tab 33 at 51-52. 2 The MSPB Judges’ Handbook describes two bases for which an administrative judge may recuse: (1) a party, witness, or representative is a friend or relative of, or has had a close professional relationship with the judge, or (2) personal bias or prejudice of the judge. MSPB Judges’ Handbook, Ch. 3, § 2(a)-(b); but see Gregory v. Department of the Army, 114 M.S.P.R. 607, ¶ 22 (2010) (explaining that the MSPB Judges’ Handbook is not mandatory and failure to apply its provisions does not establish adjudicatory error). 8 Specifically, the ALJ asserted that her “two Attorney Advisors were finding it increasingly difficult dealing with [the appellant].” Id. at 51. The ALJ further indicated that the attorney who was in an ongoing personal relationship with the administrative judge “started closing [her] office door, and she has never been a closed door person,” while the other subordinate attorney “repeatedly complained . . . of how difficult [the appellant] was.” Id. The record reflects that the other subordinate attorney was the subject of a disclosure that the appellant raised in this appeal, while the ALJ was herself one of several recipients of the disclosure, and the ALJ’s authority was a consideration in the administrative judge’s analysis. Compare IAF, Tab 20 at 8 (describing in the jurisdictional order the allegations underlying disclosure 4), with IAF, Tab 33 at 51-52 (Chicago ALJ’s discussion of her two subordinate attorneys), and ID at 34-36 (finding that disclosure 4 was not protected). ¶18 Put more simply, the record reflects the following about the attorney with whom the administrative judge was in an ongoing personal relationship: (1) she was one of only two attorneys working for a particular ALJ at the Chicago NHC, (2) the other two members of her working group were the subject of or recipient of the appellant’s alleged disclosure, and (3) all three employees had negative views of the appellant, according to evidence submitted by the agency. ¶19 Under these particular circumstances, and in contrast to Lee, Shoaf, Washington, and Colburn, we find that the administrative judge’s impartiality could reasonably be questioned. To be sure, we may have reached a different conclusion if the administrative judge had chosen to provide more information about his relationship with the attorney who was the appellant’s coworker or if the attorney was further removed from the issues involved in this appeal. See, e.g., Ragozzine v. Youngstown State University, 783 F.3d 1077, 1078-81 (6th Cir. 2015) (finding that recusal was not required under 28 U.S.C. § 455 in a case involving a professor’s denial of tenure when the judge was dating a professor in a different department at the same university). Those are not, 9 however, the circumstances we currently face. Because we find that the administrative judge’s impartiality reasonably might be questioned under the circumstances presented in this appeal, he should have recused himself from this matter. The appellant’s arguments of actual bias or other adjudicatory improprieties on review are not persuasive. ¶20 In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). ¶21 The appellant is correct to note that the Board will construe pro se pleadings liberally. Melnick v. Department of Housing & Urban Development, 42 M.S.P.R. 93, 97 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). However, in arguing that the administrative judge failed to adhere to that principle, the appellant asserts that he “denied every pleading” she wrote. PFR File, Tab 2 at 5. Her assertion is not supported by the record. E.g., IAF, Tab 20 (ruling in the appellant’s favor regarding jurisdiction), Tab 43 at 5 (granting the appellant’s motion to extend the discovery period). ¶22 More specifically, the appellant argues that she “fell severely ill” during the adjudication of her appeal, but the administrative judge improperly refused any delay. PFR File, Tab 2 at 6. In fact, the appellant filed a motion requesting a postponement of all deadlines to accommodate her medical condition without any evidence of her medical condition or indication that she had first raised the subject with the agency. IAF, Tab 40 at 1. Although the administrative judge 10 responded by denying the motion, he suggested that the appellant could instead move for a dismissal without prejudice. IAF, Tab 40 at 1, Tab 43 at 4. We discern no reason to conclude that the decision to deny the motion constituted an abuse of discretion or reflected bias on the part of the administrative judge. See Desmond v. Department of Veterans Affairs, 90 M.S.P.R. 301, ¶ 4 (2001) (recognizing that an administrative judge has wide discretion to control the proceedings before him and dismissal without prejudice to refiling is a procedural option left to his sound discretion); see also Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013) (stating that the Board will not infer bias based on an administrative judge’s case-related rulings). ¶23 The appellant’s other allegations of administrative judge bias or adjudicatory improprieties are similarly unsupported or otherwise unavailing. For example, she summarily asserts that the administrative judge “engaged in a conspiracy with [a]gency counsel to demean, belittle, intimidate, harass, and use [her] disabilities against her in their quest to discredit [her] at every turn.” PFR File, Tab 2 at 5. However, she has not directed us to anything in the record to support this contention. In another example, the appellant suggests that the administrative judge purposefully delayed issuance of the initial decision to avoid having a particular Board Member render an opinion on her case before the expiration of his statutorily-limited term. PFR File, Tab 2 at 6-7. But in fact, the Board was without a quorum since January 2017, well before the end of the Board Member’s term, and it did not render opinions throughout the relevant period. The appropriate remedy for the administrative judge’s failure to recuse himself is remand and assignment to a different administrative judge for a new hearing. ¶24 For the Federal judiciary, a judge’s violation of 28 U.S.C. § 455(a) does not necessarily entitle a party to relief. Liljeberg v. Health Services Acquisition Corporation, 486 U.S. 847, 862-64 (1988). The statute itself does not authorize a remedy. Id. at 862. Instead, Federal courts have applied Federal Rule of Civil Procedure 60(b), which authorizes vacating a final judgment for “any [] reason 11 that justifies relief.” Fed. R. Civ. Pro. 60(b)(6); see Liljeberg, 486 U.S. at 863. However, such action “should only be applied in ‘extraordinary circumstances.’” Liljeberg, 486 U.S. at 864 (internal citations omitted). ¶25 In determining whether a violation of 28 U.S.C. § 455(a) warrants vacating a final judgment pursuant to Rule 60(b)(6), the U.S. Supreme Court (Supreme Court) in Liljeberg identified three relevant factors: (1) “the risk of injustice to the parties in the particular case,” (2) “the risk that the denial of relief will produce injustice in other cases,” and (3) “the risk of undermining the public’s confidence in the judicial process.” Id. We will consider the same factors here. See Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161, ¶ 27 (2017) (recognizing that the Federal Rules of Civil Procedure are not controlling, but they may be used as a general guide in proceedings before the Board); Anderson v. Department of Transportation, 46 M.S.P.R. 341, 350 (1990) (finding the Supreme Court’s analysis of Rule 60(b) was analogous to the Board’s authority to reopen a case under 5 C.F.R. § 1201.117), aff’d, 949 F.2d 404 (Fed. Cir. 1991) (Table). ¶26 A review of the Court’s analysis in Liljeberg is instructive. There, the judge had presided over a case while also serving on the Board of Trustees of Loyola University, which was actively negotiating a land deal with the petitioner, and Loyola’s success and benefit in those negotiations largely hinged on the petitioner’s success before the judge. Liljeberg, 486 U.S. at 850. The respondent learned of the judge’s membership on the Board of Trustees 10 months after the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) affirmed the judge’s decision to find in favor of the petitioner. Id. The respondent moved to vacate the judgment pursuant to Rule 60(b)(6). The judge denied the motion and the respondent appealed. Id. After protracted litigation, the Fifth Circuit vacated the original judgment. Id. at 851-52. In pertinent part, the court found that the judge should have immediately disqualified himself when he had actual knowledge of Loyola’s interest in the case; alternatively, it found that, absent actual knowledge, 12 “the appearance of partiality was convincingly established,” and the appropriate remedy was to vacate the judgment. Id. The Supreme Court affirmed the finding that an objective observer would have questioned the judge’s impartiality and the judge’s failure to recuse himself was a violation of 28 U.S.C. § 455(a). Id. at 861-62. Then the Court evaluated the three factors discussed above to determine the proper remedy. Id. at 862-70. ¶27 For the first of the aforementioned factors, the risk of injustice to the parties in the case, the Court identified the following facts that might reasonably cause an objective observer to question the judge’s impartiality: (1) it was “remarkable” that although the judge regularly attended Board of Trustees meetings, he “completely forgot” about Loyola’s interest in the land; (2) it was an “unfortunate coincidence” that he was absent from a particular Board of Trustees meeting during which the case before him was discussed; (3) it was both “remarkable” and “quite inexcusable” that he failed to recuse himself once he had actual knowledge of Loyola’s interest in the case; and (4) in denying the motion to vacate, the judge did not acknowledge either his knowledge about Loyola’s interest in the case or an awareness of a duty to recuse himself. Id. at 865-67. Ultimately, the Court concluded that there was “a greater risk of unfairness in upholding the judgment in favor of [the petitioner] than there [was] in allowing a new judge to take a fresh look at the issues.” Id. at 868. ¶28 For the second factor, the risk that denying relief would cause injustice in other cases, the Court found that providing relief may prevent injustices in future cases by encouraging judges to promptly recuse themselves when grounds for disqualification arise. Id. In a discussion that implicated the third factor, the risk of undermining public confidence in the judicial process, the Court found that the facts at hand created “precisely the kind of appearance of impropriety that § 455(a) was intended to prevent. The violation [was] neither insubstantial nor excusable.” Id. at 867. The Supreme Court therefore affirmed the decision to vacate the original judgment. Id. at 870. 13 ¶29 By contrast, our reviewing court found that a new trial was not required in CEATS Incorporated v. Continental Airlines Incorporated, 755 F.3d 1356 (Fed. Cir. 2014). In that case, the court found that a mediator breached his duty to disclose an actual or potential conflict that could reasonably raise questions about his impartiality. Id. at 1364. Nevertheless, because settlement negotiations before the mediator were unsuccessful, the CEATS matter was resolved by an impartial judge and jury, and there was no evidence that the mediator disclosed confidential information, the court found no meaningful risk of injustice under the first Liljeberg factor. Id. at 1358, 1366. Concerning the second Liljeberg factor, the court indicated that it did not want to encourage similar failures to disclose by other mediators, but the threat of injustice in other cases was insufficient to warrant “the extraordinary step of setting aside a jury verdict.” Id. Similarly, for the third Liljeberg factor, the court recognized that the failure to provide relief could undermine public confidence to a degree, but it was not enough to justify a new trial. Id. at 1367. ¶30 Turning back to the facts before us, we find that vacating the initial decision and remanding the appeal for assignment to a different administrative judge and a new hearing is the most appropriate remedy. Concerning “the risk of injustice to the parties in the particular case,” we have already expressed reasons why the administrative judge’s impartiality reasonably might be questioned. Supra ¶¶ 17-19. Also significant to our analysis is the fact that the administrative judge’s initial decision relied in part on demeanor-based credibility findings in favor of the agency and against the appellant, which are virtually unreviewable on appeal to the Board. ID at 39-40; see Haebe v. Department of Justice, 288 F.3d 1288, 1299-01 (Fed. Cir. 2002) (the Board must defer to the credibility determinations of an administrative judge when they are based, explicitly or implicitly, upon the observation of the demeanor of witnesses testifying at a hearing because the administrative judge is in the best position to observe the demeanor of the witnesses and determine which witnesses were testifying 14 credibly); Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011) (further discussing the deference afforded to demeanor-based credibility findings). Thus, the risk of injustice to the appellant appears quite high. As for the risk of injustice to the agency, it is noteworthy that this appeal sought relief from a number of alleged personnel actions, but they did not include removal or any other action that could result in the lengthy and ongoing accrual of damages in the form of back pay during the delay associated with a remand. IAF, Tab 20 at 9-10. Thus, the risk of injustice to the agency appears to be limited. See Liljeberg, 486 U.S. at 868-69 (finding that the first Liljeberg factor weighed in favor of a new trial because, among other things, no party showed that they had detrimentally relied on the original judgment). ¶31 Concerning “the risk that the denial of relief will produce injustice in other cases,” questions of conflicts and recusal come before the Board’s administrative judges on a regular basis. Accordingly, we are hesitant to excuse the circumstances at hand, lest we give the impression that administrative judges need not take these questions seriously. See Liljeberg, 486 U.S at 868 (finding that enforcement of 28 U.S.C. § 455 may encourage more disclosures and thoughtful recusal decisions in the future). ¶32 Finally, we find that “the risk of undermining the public’s confidence in the judicial process,” similarly weighs in favor of remand and assignment to a different administrative judge for a new hearing. The circumstances at hand do not give rise to a perception that the administrative judge had a significant financial or professional interest in a certain result, as was the case in Liljeberg. Nevertheless, the circumstances could still undermine confidence in the Board if we were to excuse the administrative judge’s decision to preside over this appeal. The situation seems particularly fraught because the administrative judge provided minimal information about the nature of his ongoing personal relationship with the attorney who was the appellant’s coworker. See Liljeberg, 486 U.S. at 864-65 (acknowledging that “people who have not served on the 15 bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges”). We can imagine a scenario in which an administrative judge provided additional details about the nature of the relationship and his efforts to insulate himself from having any knowledge about the workplace environment that would limit any erosion of public confidence. Here, however, the record reads as if the administrative judge was coy about the nature of his relationship with the attorney and ignored agency evidence depicting, at best, an unpleasant professional association between the appellant and the attorney. ¶33 After weighing the relevant factors, we find that vacating the initial decision and remanding the appeal for assignment to a different administrative judge and a new hearing is appropriate. While we have not found that the administrative judge exhibited actual bias against the appellant, he nonetheless should have granted the appellant’s request to recuse him under the circumstances presented in this case. The appropriate remedy in this matter is a new hearing before a different administrative judge whose impartiality cannot reasonably be questioned. 16 ORDER ¶34 For the reasons discussed above, we vacate the initial decision and remand this case to the regional office for assignment to a different administrative judge and further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/BAKER_MITZI_CH_1221_17_0318_W_1_OPINION_AND_ORDER_1948463.pdf
08-03-2022	2022 MSPB 25	Daniel Moncada	https://www.mspb.gov/decisions/precedential/MONCADA_DANIEL_DC_0752_15_0954_I_1_OPINION_AND_ORDER_1947908.pdf	Executive Office of the President, Office of Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 25 Docket No. DC-0752-15-0954-I-1 Daniel Moncada, Appellant, v. Executive Office of the President, Office of Administration, Agency. August 3, 2022 Debra D’Agostino, Esquire, Washington, D.C., for the appellant. Raheemah Abdulaleem and Scott Delavega, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has petitioned for review of an initial decision that mitigated the appellant’s removal to a 60-day suspension. The agency also has filed a motion to dismiss this appeal for lack of jurisdiction. For the following reasons, we DENY the motion to dismiss and the petition for review, and AFFIRM the initial decision, still mitigating the removal to a 60-day suspension. BACKGROUND ¶2 The Office of Administration (OA), Executive Office of the President (EOP) appointed the appellant, effective September 3, 2002, to a 2 competitive-service position as a GS-09 Mail & Messenger Supervisor. Petition for Review (PFR) File, Tab 5 at 60. The Standard Form (SF) 50 documenting the appointment indicated that it was made from a certificate of eligibles and subject to the completion of a 1-year probationary period. Id. at 60, 68. On July 28, 2013, OA promoted the appellant, pursuant to 5 C.F.R. § 335.102, to the permanent GS-11 competitive-service position of Supervisory Fleet Operations Manager. Initial Appeal File (IAF), Tab 12 at 25. The approving official for the appellant’s initial appointment and his promotion was the agency’s Director for Human Resources Management (HRM). Id.; PFR File, Tab 5 at 60. ¶3 On December 26, 2013, the two employees who ordinarily processed mail containing money and other accountable items destined for the White House Complex (money mail) were absent. IAF, Tab 8 at 46. The appellant served as their backup and therefore was responsible for processing the money mail that day. Id. at 46-47; Hearing Transcript (HT) (Dec. 18, 2015) at 241 (testimony of the appellant). The agency subsequently discovered that money and items with a total value of $2,091.18 were missing from the December 26, 2013 money mail. IAF, Tab 8 at 46. ¶4 The U.S. Secret Service opened an investigation into the missing money mail. Id. at 80. Two special agents interviewed the appellant on February 20, 2014. Id. at 47, 80-82. In April 2014, one of the appellant’s subordinates informed him that the subordinate’s friend was contacted by the Secret Service about a gift card from the missing money mail. Id. at 49, 59; HT (Dec. 18, 2015) at 235 (testimony of the appellant). During a second interview with the Secret Service on May 20, 2014, the appellant informed them about this conversation with his subordinate. IAF, Tab 8 at 49, 58-59; HT (Dec. 18, 2015) at 235 (testimony of the appellant). ¶5 On January 31, 2014, the appellant received an email from a subordinate, containing graphic images of women. IAF, Tab 8 at 48, 126-34. The appellant verbally counseled his subordinate not to send further inappropriate emails. HT 3 (Dec. 18, 2015) at 225 (testimony of the appellant). The appellant did not report the incident to anyone else, but retained the email in case his subordinate repeated the misconduct. Id. ¶6 On February 19, 2014, the appellant deviated from his route while driving in a Government-owned vehicle to drop off lunch for his girlfriend. Id. at 236-37, 239. The appellant did not obtain authority for the deviation. IAF, Tab 8 at 49. While en route, the appellant’s coworker, who was a passenger in the vehicle, warned him that they were “not supposed to be doing anything personal with the vehicles.” HT (Dec. 18, 2015) at 90-91 (testimony of the appellant’s coworker). ¶7 The agency removed the appellant from his position effective June 23, 2015. IAF, Tab 8 at 20-21. On the SF-50 documenting the removal, the agency identified the legal authority for the action as 5 U.S.C. chapter 75. Id. at 20. The decision notice indicated that the action was based on the following charges: (1) Failure to Follow Procedures (one specification); (2) Inappropriate Conduct by a Supervisor (two specifications); (3) Lack of Candor (two specifications); and (4) Unauthorized Use of a Government Vehicle (one specification). Id. at 21-25, 46-49. The events underlying these charges concerned the appellant’s processing of the money mail on December 26, 2013, participation in the following Secret Service investigation, handling of his subordinate’s January 31, 2014 email, and February 19, 2014 route deviation while in a Government vehicle. Id. at 46-49. The deciding official noted in the removal decision that the agency’s action was “reasonable and in accordance with 5 U.S.C. §§ 7512-7514, 5 C.F.R. Part 752, and OA Directive OA.438.01, Disciplinary and Adverse Action.” Id. at 21, 27. He notified the appellant that he had the right to appeal his removal to the Board. Id. at 27. ¶8 On appeal, the appellant asserted that the agency lacked sufficient evidence to prove its charges and imposed a penalty that was unreasonably harsh. IAF, Tab 1 at 5. In its response, the agency alleged that it had met its burden of proving the charges and the reasonableness of the penalty, and indicated that the 4 appellant “may be considered an employee as defined in 5 U.S.C. § 7511(a)(1).” IAF, Tab 8 at 4-5, 9-14. ¶9 After finding that the Board had jurisdiction over the appeal under 5 U.S.C. §§ 7511-7513 and holding a hearing, the administrative judge mitigated the removal to a 60-day suspension, finding that the agency did not prove the Failure to Follow Procedures, Inappropriate Conduct by a Supervisor, and Lack of Candor charges. IAF, Tab 17, Initial Decision (ID) at 1, 2-21. However, he concluded that the agency proved the charge of Unauthorized Use of a Government Vehicle based on the appellant’s deviation from his route on February 19, 2014. ID at 16-18. He concluded that a 60-day suspension was the maximum reasonable penalty for the sole sustained charge. ID at 18-21. ¶10 The agency has filed a petition for review of the initial decision, along with a motion to dismiss the appeal for lack of jurisdiction.1 PFR File, Tab 3. The appellant has filed responses to the petition for review and the motion to dismiss. PFR File, Tab 5. The agency has filed replies to these responses. PFR File, Tabs 8-9. ANALYSIS The Board has jurisdiction over this appeal. ¶11 OA asserts, for the first time on review, that the Board should dismiss this appeal for lack of jurisdiction. PFR File, Tab 3 at 307-10. OA first contends that the right to appeal an action to the Board only applies when the action is taken by an “agency,” and that OA is not an “agency” under 5 U.S.C. chapter 75. Id. at 309-11. OA asserts that the term “agency,” for purposes of 5 U.S.C. chapter 75, means “Executive agency” as defined under 5 U.S.C. § 105, to include “an Executive department, a Government corporation, and an independent 1 The Board requested an advisory opinion from the Office of Personnel Management (OPM) regarding the jurisdictional issue in this case. PFR File, Tabs 10, 13. OPM, however, has declined to provide an advisory opinion. PFR File, Tab 15. 5 establishment.” Id. at 311-12. It argues that OA is not any of these types of entities. Id. The agency relies upon Citizens for Responsibility & Ethics in Washington v. Office of Administration, 566 F.3d 219, 222-26 (D.C. Cir. 2009) (CREW), which held that OA was not an “agency” for purposes of the Freedom of Information Act. PFR File, Tab 3 at 313-14. The CREW court reasoned that, even though EOP was expressly included in the definition as an “establishment” in the Executive branch of the Government, OA lacked the “substantial independent authority” from the President that is the hallmark of such an establishment. CREW, 566 F.3d at 222-25; PFR File, Tab 3 at 313-14. The appellant, by contrast, asserts that 5 U.S.C. chapter 75 does not define the term “agency,” and that Board jurisdiction depends solely upon whether the individual is an “employee” affected by a covered action. PFR File, Tab 5 at 30-33. ¶12 The issue of jurisdiction is always before the Board, and may be raised by either party or sua sponte by the Board at any time during a Board proceeding. Johnson v. U.S. Postal Service, 85 M.S.P.R. 1, ¶ 14 (1999). Thus, we address the jurisdictional issue, even though the agency did not raise it below.2 PFR File, Tab 3 at 308-10; IAF, Tab 13 at 1-2. 2 In addressing the jurisdictional issue, we have considered evidence that the appellant submitted for the first time on review in response to the agency’s motion to dismiss. See, e.g., Turner v. U.S. Postal Service, 90 M.S.P.R. 385, ¶ 5 (2001) (explaining that although the Board will not consider evidence or argument submitted for the first time on review unless the party shows that it was unavailable when the record closed below, the Board will consider such evidence and argument when an appellant was not adequately notified of what is required to establish jurisdiction); PFR File, Tab 5 at 60, 68. Here, the agency did not dispute jurisdiction below, which deprived the appellant of the opportunity to submit evidence and argument below in support of finding jurisdiction, and deprived the administrative judge of his ability to develop the record and assess the relevant information concerning this significant issue. 6 The only requirements for Board jurisdiction over this appeal are that the appellant was an employee who was subjected to an appealable adverse action under chapter 75. ¶13 It is axiomatic that the interpretation of a statute begins with the statutory language itself. Van Wersch v. Department of Health & Human Services, 197 F.3d 1144, 1148 (Fed. Cir. 1999). When the language provides a clear answer, the plain meaning of the statute is considered conclusive. Id. Pursuant to 5 U.S.C. § 7513(d), “[a]n employee against whom an action is taken under this section [governing adverse actions] is entitled to appeal to the Merit Systems Protection Board under [5 U.S.C. § 7701].” Thus, the plain language of section 7513(d) provides that the key jurisdictional requirements for a Board appeal are that an appellant is an “employee” and that the action taken is covered by the statute. As the U.S. Supreme Court has explained in analyzing the provisions of 5 U.S.C. chapter 75, “the [Civil Service Reform Act of 1978 (CSRA)] makes [Board] jurisdiction over an appeal dependent only on the nature of the employee and the employment action at issue,” a proposition which the Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have adopted. Elgin v. Department of the Treasury, 567 U.S. 1, 18 (2012); Epley v. Inter-American Foundation, 122 M.S.P.R. 572, ¶¶ 6, 14 (2015); see Lal v. Merit Systems Protection Board, 821 F.3d 1376, 1378 (Fed. Cir. 2016) (holding that title 5 “limits the Board’s jurisdiction over federal workers’ appeals based on both the nature of the personnel action being contested and the employment status of the individual complainant”); Todd v. Merit Systems Protection Board, 55 F.3d 1574, 1576 (Fed. Cir. 1995) (explaining that the employee “has the burden of establishing that she and the action she seeks to appeal [are] within the [B]oard’s jurisdiction”); 5 C.F.R. § 1201.3(a)(1) (indicating that the Board’s jurisdiction under chapter 75 depends on the nature of the appellant’s employment and the agency’s action). Thus, our jurisdictional determination depends on whether the 7 appellant is an “employee” and whether an appealable action was taken against him. See 5 U.S.C. §§ 7511(a)(1), 7512. ¶14 It is undisputed that a removal is among the actions covered by the Board’s chapter 75 jurisdiction. 5 U.S.C. § 7512(1) (listing removals among the actions to which chapter 75 procedures apply). Because the appellant is in the competitive service, whether he is an “employee” is governed by 5 U.S.C. § 7511(a)(1)(A). That statute defines “employee” as, among other things, an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or, with an exception not applicable here, has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A). The appellant meets both of the alternative definitions of “employee” under section 7511(a)(1)(A) because, when he was removed, he occupied a position in the competitive service, was not serving a probationary or trial period, and had completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. PFR File, Tab 5 at 60; IAF, Tab 8 at 20-21, Tab 12 at 17, 25. ¶15 “Congress knows how to exempt a civil service position from the protections found in chapters 75 and 77 of title 5 if it so desires.” King v. Briggs, 83 F.3d 1384, 1388 (Fed. Cir. 1996); e.g., Todd, 55 F.3d at 1577-78 (finding that an employee did not have Board appeal rights because she was appointed pursuant to a statute that specifically authorized agencies to employ individuals “without regard to . . . sections . . . 7511, 7512, and 7701 of Title 5”). Contrary to OA’s assertions, neither 5 U.S.C. chapter 75, nor the Board’s regulations interpreting it, define the term “agency” or otherwise clearly indicate that a covered action may be appealed by an “employee” only when it has been taken by 8 some undefined “agency.”3 See 5 U.S.C. § 7511 (defining various terms relevant to adverse employment actions); 5 C.F.R. § 1201.4 (providing general definitions of other words and phrases used by the Board). Rather, the comprehensive statutory scheme defines the term “employee,” sets forth the actions that are covered, and indicates which individuals are not covered, and thus do not have Board appeal rights, by reference to, among other things, the organizations or agencies within which an individual’s position exists.4 See Elgin, 567 U.S. at 5 (describing the CSRA as “a comprehensive system for reviewing personnel action[s] taken against federal employees” (citation omitted)); Lal, 821 F.3d at 1378 (applying the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). Section 7511(b) excludes certain individuals from 3 As the agency notes in its petition for review, PFR File, Tab 3 at 310-11, in Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64, ¶ 9 (2011), the Board held that the right to appeal an action under 5 U.S.C. § 7513(d) applies when the action falls under 5 U.S.C. § 7513(a), i.e., when a covered action is taken by an “agency” against an “employee.” The Board in Aguzie did not, however, have the benefit of the Supreme Court’s decision in Elgin, or the Federal Circuit’s decision in Lal, which are binding precedent on the Board. See Beal v. Office of Personnel Management, 122 M.S.P.R. 210, ¶ 7 (2015) (explaining that the Board is bound by Federal Circuit precedent). Moreover, the Board’s holding in Aguzie was made in the context of addressing the argument by OPM that it was not the proper respondent in the appeal because it merely directed the employing agency to remove the appellant for suitability reasons, but did not actually take the action. Aguzie, 116 M.S.P.R. 64, ¶¶ 10-11. Congress has since excluded OPM suitability actions from the Board’s chapter 75 jurisdiction. 5 U.S.C. § 7512(F); Odoh v. Office of Personnel Management, 2022 MSPB 5, ¶ 16. We do not find Aguzie persuasive here. 4 We do not address here whether the Board’s jurisdiction over adverse actions taken against preference-eligible individuals in the excepted service requires jurisdiction over the “Executive agency” taking the action. Unlike other definitions of “employee” in 5 U.S.C. § 7511, 5 U.S.C. § 7511(a)(1)(B) defines an employee with reference to either being employed in an Executive agency, the U.S. Postal Service, or the Postal Regulatory Commission. The appellant is in the competitive service, and thus, whether he is an “employee” is determined by 5 U.S.C. § 7511(a)(1)(A), as described above. IAF, Tab 12 at 25. 9 coverage, not the agencies themselves. For example, individuals whose positions are within the Central Intelligence Agency, Government Accountability Office, U.S. Postal Service, Postal Regulatory Commission, Panama Canal Commission, Tennessee Valley Authority, Federal Bureau of Investigation, and certain intelligence components and activities are not covered by the subchapter and generally do not have Board appeal rights. See 5 U.S.C. § 7511(b)(7)-(8). There is no exclusion for employees occupying positions within OA. See Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016) (explaining that under the maxim of statutory interpretation expressio unius est exclusio alterius, meaning the expression of one thing is the exclusion of the other, it should not be assumed that other things that could have been listed in a statute were meant to be included; rather, the specific mention of certain things implies the exclusion of other things). ¶16 Nevertheless, 5 U.S.C. § 7511(b) carves out an exception to the definition of “employee” for individuals “whose appointment is made by the President[.]” 5 U.S.C. § 7511(b)(3). OA contends that the appellant falls within this exception because he was appointed by the President.5 PFR File, Tab 3 at 316-18. In support of its argument, OA relies on 3 U.S.C. § 107(b)(2), which provides that the President or his designee is authorized to “employ” individuals in OA in accordance with 5 U.S.C. § 3101, which provides general employment authority 5 It further asserts that the President “must have the authority to manage his staff as he sees fit and not have the Board force him to rehire OA employees.” PFR File, Tab 3 at 316. It does not cite to any authority for this proposition. The agency’s stated policy concerns, presented by counsel in litigation without reference to regulations, rulings, or administrative practices are not a basis to interpret 5 U.S.C. § 7513(d). See Garza v. Office of Personnel Management, 83 M.S.P.R. 336, ¶¶ 12-13 (1999) (declining to defer to the interpretation of a statute presented by agency counsel during litigation when its interpretation was unsupported by regulations, rulings, or administrative practice) (citing Bowen v. Georgetown University Hospital, 488 U.S. 204, 212-13 (1988)), aff’d per curiam, 250 F.3d 763 (Fed. Cir. 2000) (Table). Instead, we must apply the statute as written. 10 to agencies, “subject to the limitation specified in section 114 of this title,” which addresses a limitation in pay. Individuals employed under 3 U.S.C. § 107(b)(2) are not specifically excepted from adverse action appeal rights, however. Additionally, section 107(b) does not indicate that the President or his designee may “appoint” individuals like the appellant. While section 107(b)(2) only authorizes the President or his designee to “employ” individuals in OA, section 107(b)(1), by contrast, authorizes him or his designee to “appoint” “without regard to such other provisions of law as the President may specify which regulate the employment and compensation of persons in the Government service,” no more than five employees at rates not exceeding the current rates of basic pay for level III of the Executive Schedule, and no more than five employees at rates not exceeding the current maximum rate of basic pay for GS-18 employees. The appellant’s positions were in neither of these categories. ¶17 Because the terms “appoint” and “employ” are used in the same statutory section, we find that Congress intended those terms to have different meanings, and that individuals like the appellant who are employed in OA have not necessarily been “appointed” by the President. E.g., Soliman v. Gonzales, 419 F.3d 276, 283 (4th Cir. 2005) (holding that when Congress has used two distinct terms, such as “fraud” and “theft,” within the same statute, “the applicable canons of statutory construction require that we endeavor to give different meanings to those different terms”)6; Vesser v. Office of Personnel Management, 29 F.3d 600, 605 (Fed. Cir. 1994) (explaining that a statute must, if possible, be construed to give meaning to every word); Brodsky v. Office of Personnel Management, 108 M.S.P.R. 228, ¶¶ 19-20 (2008) (determining that the 6 While decisions of the Federal Circuit are controlling authority for the Board, other circuit courts’ decisions are considered persuasive, but not controlling, authority. Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 15 n.12 (2016). We are persuaded by the reasoning in Soliman. 11 use of two different words, “employee” and “retiree,” in the same regulation indicated that they were intended to have different meanings); Fishbein v. Department of Health & Human Services, 102 M.S.P.R. 4, ¶ 9 (2006) (holding that 42 U.S.C. § 209(f), which uses both the words “employed” and “appointed,” clearly distinguishes between the two). Thus, we decline to find in title 3 any exemption to the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A) for individuals like the appellant. See Lal, 821 F.3d at 1381. ¶18 However, there is no explanation or definition in 5 U.S.C. § 7511(b)(3) clarifying what it means to be appointed by the President. To the extent that section 7511(b)(3) is ambiguous, the statute’s legislative history provides insight into Congress’s intention. Martin J. Simko Construction, Inc. v. United States, 852 F.2d 540, 542-43 (Fed. Cir. 1988) (holding that when “the language of a statute does not clearly state the legislature’s intent,” it is necessary to “look to the legislative history for an explanation of legislative intentions”). ¶19 Section 7511(b)(3) was enacted as part of the Civil Service Due Process Amendments of 1990 (Amendments), Pub. L. No. 101-376, § 2, 104 Stat. 461, 461-62, by which, among other things, Congress sought to eliminate the general exclusion of nonpreference eligible excepted-service employees from “independent [Board] review.” H.R. Rep. No. 101-328, at 3 (1990), as reprinted in 1990 U.S.C.C.A.N. 695, 697. While extending appeal rights to certain individuals in the excepted service, the Amendments simultaneously excluded specific groups within the excepted service from coverage, including “presidential appointees.” 5 U.S.C. § 7511(b)(3); H.R. Rep. No. 101-328, at 2-3, as reprinted in 1990 U.S.C.C.A.N. at 696-97. In explaining the exclusion, Congress noted that the bill “generally extends procedural rights to attorneys, teachers, chaplains, and scientists, but not to presidential appointees,” and that “the key to the distinction between those to whom appeal rights are extended and those to whom such rights are not extended is the expectation of continuing employment with the Federal Government. Lawyers, teachers, chaplains, and 12 scientists have such expectations; presidential appointees and temporary workers do not.” H.R. Rep. No. 101-328, at 4, as reprinted in 1990 U.S.C.C.A.N. at 698. Similarly, Congress explained that the bill “explicitly denies procedural protections to presidential appointees, individuals in Schedule C positions [which are positions of a confidential or policy-making character] and individuals appointed by the President and confirmed by the Senate,” and that “[e]mployees in each of these categories have little expectation of continuing employment beyond the administration during which they were appointed” because they “explicitly serve at the pleasure of the President or the presidential appointee who appointed them.” H.R. Rep. No. 101-328, at 4-5, as reprinted in 1990 U.S.C.C.A.N. at 698-99. Thus, by enacting section 7511(b)(3), we find that Congress intended to exclude from the procedural and appeal rights of 5 U.S.C. chapter 75 those individuals appointed to the excepted service by the President, who have little expectation of continuing employment beyond the administration during which they were appointed and who explicitly serve at the pleasure of the President. ¶20 Conversely, the appellant’s employment spanned two presidential administrations, from 2002 through 2015. The SF-50s in this case show that he was appointed to the competitive service from a civil service certificate of eligibles and that his appointment was approved by the Director for HRM. PFR File, Tab 5 at 60, 68. The record does not identify the selecting official for this appointment. The agency promoted him to the position of Supervisory Fleet Operations Manager pursuant to 5 C.F.R. § 335.102, which concerns an “Agency[’s] authority to promote, demote, or reassign” an employee, not any presidential authority. IAF, Tab 12 at 25. Thus, we find that the appellant was not appointed by the President. Absent evidence that the appellant was appointed by the OA Director, we decline to address the agency’s argument that an appointment by the Director is equivalent to a presidential appointment. PFR File, Tab 3 at 318. 13 ¶21 Our interpretation of 5 U.S.C. § 7511(b)(3) as not excluding the appellant from Board appeal rights is not only consistent with the legislative history of the Amendments, but is also consistent with OA’s historical position on the appeal rights of its employees. The Presidential and Executive Office Accountability Act (PEOAA), Pub. L. No. 104-331, 110 Stat. 4053 (1996) (codified at 3 U.S.C. §§ 401-471), expanded the rights of individuals employed at the EOP. In recommending the extension of certain discrimination and labor protections to EOP employees, the House Report appeared to assume that the Board had jurisdiction over most EOP employees. See H.R. Rep. No. 104-820, at 40-42 (1996) (indicating that most EOP employees “are covered by Title 5 of the U.S. Code,” and that “Title 5 [EOP] employees are already entitled to an administrative . . . hearing” before the Equal Employment Opportunity Commission or the Board), as reprinted in 1996 U.S.C.C.A.N. 4348, 4375-77. ¶22 The legislative history also includes testimony regarding H.R. 3452, the bill which became the PEOAA, from Franklin S. Reeder, then-Director of OA. Mr. Reeder explained that, “[t]he vast majority of [EOP] employees—two thirds or more—are civil service employees covered by the same protections and rights as other career executive branch employees under Title 5 of the U.S. Code.” Presidential and Executive Office Accountability Act: Hearing on H.R. 3452 Before the Subcomm. on Gov’t Mgmt., Info., & Tech. of the Comm. on Gov’t Reform and Oversight, House of Representatives, 104th Cong. 152 (1996) (statement of Franklin S. Reeder, Director, Office of Administration, Executive Office of the President). He contrasted these employees with the remaining one third, employed “in the four offices closest to the President: the White House Office, Office of the Vice President, Office of Policy Development, and Executive Residence.” As to these employees: By long tradition and express statutory authority, employees in these four offices have served at the pleasure of the President. As Congress mandated in the provisions of Title 3 of the United States Code, these employees are hired “without regard to any other 14 provision of law regulating the employment or compensation of persons in the Government service.” . . . This long tradition and express statutory authority flow from the structure of the federal government established by the United States Constitution. The unfettered ability of the President to choose his closest advisers— and to choose when to dismiss them—is a necessary outgrowth of the separation and balance of the branches of government established in the Constitution. Id. at 152-53. In a footnote, Mr. Reeder added: The [OA] is also authorized by Title 3, but its employees are, by design, virtually all career civil servants hired under Title 5 authority. A small number of [OA] employees are Title 3 employees who serve at the will of the President, on the same standing as employees in the White House Office and the other three Title 3 offices. See 3 U.S.C. § 107(b)(1)(A). Accordingly, the Office of Administration is more properly treated as a “Title 5” agency for purposes of the applicability of employee workplace laws. Id. at 152 n.1. ¶23 In later proceedings held on the PEOAA bill, the idea of creating a new entity to review EOP employee claims was abandoned, with Representative Carolyn Maloney explaining that EOP “employees already have recourse to the Merit Systems Protection Board.”7 142 Cong. Rec. H12,283-02, H12,286 (daily ed. Oct. 4, 1996) (statement of Rep. Maloney). Furthermore, OA’s own directive, OA.438.01, dated August 11, 2009, provides that OA employees like the appellant have Board appeal rights for adverse actions, such as removals. IAF, Tab 8 at 159, 163. The Board has adjudicated cases brought by OA employees in the past, and there is no indication that OA asserted therein that the Board lacked 7 As the agency observes, the Veterans Employment Opportunities Act of 1998 (VEOA) extended title 5 veterans’ preference rules to OA appointments. PFR File, Tab 3 at 321 (citing Pub. L. No. 105-339, § 4(b)(1), 112 Stat. 3182, 3185 (codified at 3 U.S.C. § 115(a)). In light of the longstanding recognition of the appeal rights of OA employees, such as the appellant, we are unpersuaded by the agency’s argument that the VEOA extension suggests that Congress never intended the remainder of title 5 to apply to OA employees. Id. 15 jurisdiction over its employees. See Caveney v. Office of Administration, 64 M.S.P.R. 169 (1994); Williams v. Executive Office of the President, 54 M.S.P.R. 196 (1992). ¶24 For the foregoing reasons, we find that the Board has jurisdiction over this case because the appellant is an “employee” under 5 U.S.C. § 7511(a)(1)(A), and OA took an appealable action under 5 U.S.C. § 7512(1). See 5 U.S.C. § 7513(d). The agency’s petition for review is denied. ¶25 The agency disputes the administrative judge’s findings that it did not prove the sole specification of its Failure to Follow Procedures charge, both specifications of its Inappropriate Conduct by a Supervisor charge, and specification 2 of its Lack of Candor charge. PFR File, Tab 3 at 14-21.8 The administrative judge properly found that the agency did not prove the charge of Failure to Follow Procedures. ¶26 The agency alleged that the appellant failed to follow its Mail Support Operations Division, Standard Operating Procedure 6.2, Money Mail Processing Procedure (MSOD 6.2). In particular, it alleged that the appellant did not comply with the requirement that those handling the money mail “[t]ake care to ensure all containers are secure . . . at all times” because he left the keys to the cage that contained the money mail in an unlocked safe. IAF, Tab 8 at 47, 151. The administrative judge found that the standard procedure at the time was to leave the safe containing the keys in question unlocked during the day. ID at 7. Thus, he concluded that the appellant’s behavior was consistent with agency practice. Id. Because the agency failed to identify a procedure that the appellant failed to follow, the administrative judge found that it did not prove the charge. Id. 8 The parties do not dispute the administrative judge’s findings that the agency did not prove specification 1 of its Lack of Candor charge. ID at 11-14. Nor do they challenge the findings that the agency proved the charge of Unauthorized Use of a Government Vehicle and that this misconduct bore a direct relationship to the appellant’s Federal service. ID 16-18. We decline to disturb these well-reasoned findings. 16 ¶27 The agency reasserts on review that it proved the Failure to Follow Procedures charge because the appellant did not ensure that all money mail containers were “secure at all times” as required by MSOD 6.2. PFR File, Tab 3 at 9, 15. It relies on the fact that $2,091.18 in money mail was missing on his watch “[t]hrough either an act of commission or omission by the Appellant.” Id. at 15. We disagree that the stated expectation in the MSOD 6.2 to ensure the security of the money mail, in general terms, is itself a procedure. We also are not persuaded that the fact that the money mail went missing is evidence of the appellant’s failure to follow procedures. Rather, as the administrative judge found, the procedure followed by everyone who processed the money mail at the time was to unlock the safe containing the keys to the secured cage in the morning, move the money mail to the secured cage and lock it, and then return the keys to the unlocked safe for the remainder of the day. ID at 4-7. The agency does not dispute this finding on review. Absent evidence that the appellant violated a procedure, the agency cannot prove its charge. See Myers v. Department of Agriculture, 88 M.S.P.R. 565, ¶¶ 24-25 (2001) (finding the agency did not prove that the appellant failed to follow agency procedures when it provided no evidence showing how the appellant’s conduct failed to conform to those procedures), aff’d, 50 F. App’x 443 (Fed. Cir. 2002). The administrative judge properly found that the agency failed to prove its charge of Inappropriate Conduct by a Supervisor. ¶28 In specification 1 of this charge, the agency alleged that by failing to secure the money mail, as alleged in the preceding charge, the appellant “also failed to ensure that [his] direct reports were following established procedures.” IAF, Tab 8 at 48. The administrative judge found that there was no evidence supporting a link between the procedures the appellant followed on December 26, 2013, and the missing money mail. ID at 8-9. The administrative judge observed that, to the contrary, there was evidence an employee outside of the appellant’s 17 chain of command took some of the money mail. Id. The agency disputes these findings. PFR File, Tab 3 at 16-17. ¶29 A supervisor cannot be held responsible for the improprieties of subordinate employees unless he actually directed or had knowledge of and acquiesced in the misconduct. Prouty v. General Services Administration, 122 M.S.P.R. 117, ¶ 15 (2014). The following factors are relevant to the “knowledge and acquiescence” standard: (1) the knowledge the supervisor has, or should have, of the conduct of his subordinates; (2) the existence of policies or practices within the supervisor’s agency or division which relate to the offending conduct; and (3) the extent to which the supervisor has encouraged or acquiesced in these practices and/or the subordinates’ misconduct. Id. ¶30 The agency has alleged that the appellant knew, or should have known, that his subordinate took items from the money mail. PFR File, Tab 3 at 16-17. However, this claim is supported only by the speculation of one of the Secret Service special agents who investigated the missing money mail that “[e]ither [the appellant] knew who took it . . . or he asked somebody else to do his job.” Id. at 17 (citing HT (Dec. 18, 2015) at 54 (testimony of the Secret Service special agent)). The same special agent testified that the appellant’s subordinate obtained an item from the money mail from “someone who worked in the mailroom.” HT (Dec. 18, 2015) at 54 (testimony of the Secret Service special agent). Thus, it appears that, as the administrative judge found, the item was more likely taken from the agency by someone outside the appellant’s chain of command. ID at 8-9. Further, as discussed above in connection with the charge of Failure to Follow Procedures, the agency has not shown that the appellant failed to comply with any procedures in processing the money mail. Therefore, the agency also has not shown that the appellant encouraged or acquiesced in any improper practices, and has not proven specification 1 of the second charge. ¶31 The agency further contends that it proved the second specification of the Inappropriate Conduct by a Supervisor charge. PFR File, Tab 3 at 17-19. This 18 specification concerned the appellant’s alleged mishandling of a different subordinate’s January 2014 misconduct of sending an inappropriate email. IAF, Tab 8 at 48, 126-34. The administrative judge found that the appellant verbally counseled his subordinate not to send future emails of this type. ID at 10; HT (Dec. 18, 2015) at 208-09 (testimony of the appellant’s subordinate), 224-25 (testimony of the appellant). The administrative judge found this counseling was consistent with the guidance the appellant received from a former supervisor to be less harsh in his discipline. ID at 10-11. The agency contends the appellant’s supervisor merely told the appellant to talk to people more professionally and less aggressively. PFR File, Tab 3 at 17-18. ¶32 Although the appellant’s former supervisor testified that he told the appellant to talk to his subordinates more professionally and less aggressively, he also agreed that the appellant had been “too quick to try to discipline employees,” and indicated that after a lot of counseling and training the appellant “changed his aggressive tone and nature toward employees.” HT (Dec. 18, 2015) at 182-84 (testimony of the appellant’s former supervisor). Thus, we find no error in the administrative judge’s determination that the agency did not prove this specification because the appellant’s actions regarding the email conformed with guidance he received and were not inappropriate. ¶33 The agency also argues that the appellant condoned his subordinate’s unauthorized use of the agency’s email system in violation of 5 C.F.R. § 2635.704 because the appellant failed to delete the offensive email or report it to his management team. PFR File, Tab 3 at 17-18. The regulation cited prohibits an employee from using or permitting another to use Government property for unauthorized purposes. 5 C.F.R. § 2635.704(a). It does not set forth requirements for eliminating evidence of the misconduct or reporting it up the chain of the command, as the agency appears to believe. Similarly, the agency does not provide any support for its claim that agency policy requires supervisors to maintain a record of verbal counselings. PFR File, Tab 3 at 18-19. 19 ¶34 In addition, the agency did not charge the appellant with failing to investigate who else might have received the email. PFR File, Tabs 18-19; IAF, Tab 8 at 48. Thus, we decline to consider this argument, which the agency raises for the first time on review. IAF, Tab 11 at 7-8; Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 7 (2010) (explaining that the Board must review the agency’s decision solely on the grounds invoked by the agency, and may not substitute what it considers to be a more appropriate basis for the action); Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that 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). The administrative judge properly found that the agency failed to prove specification 2 of its Lack of Candor charge. ¶35 As explained above, one of the appellant’s subordinates told him that the Secret Service had contacted the subordinate’s friend about a gift card from the missing money mail. IAF, Tab 8 at 59; HT (Dec. 18, 2015) at 235 (testimony of the appellant). The agency contends that it proved the appellant lacked candor because, as alleged in the proposed removal, the appellant was “not forthcoming” about this conversation until the Secret Service asked him 1 month later about any interactions he had with coworkers concerning the missing money mail. IAF, Tab 8 at 49; PFR File, Tab 3 at 20-21. The administrative judge found that the appellant appropriately answered the question when asked during his May 2014 interview with the Secret Service. ID at 15. Further, he found that the appellant had no reason to believe that the Secret Service would want to know about his subordinate’s statement. Id. The agency asserts that the appellant was instructed in his February 2014 interview with the Secret Service to report if “anything related to the investigation surfaced.” PFR File, Tab 3 at 20-21. Further, it observes that the subordinate in question transported the money mail. Id. at 21. Thus, the agency argues that he immediately should have reported his 20 conversation with his subordinate to the Secret Service. Id. The agency also asserts that the appellant should have volunteered this information during his May 2014 interview with the Secret Service. Id. ¶36 Lack of candor is a “broad[] and . . . flexible concept whose contours and elements depend on the particular context and conduct involved.” Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 16 (2016) (quoting Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)). A lack of candor charge may be based on “a failure to disclose something that, in the circumstances, should have been disclosed in order to make a given statement accurate and complete.” Id. (quoting same). Lack of candor requires proof that the employee knowingly gave incorrect or incomplete information. Id., ¶ 17. We agree with the administrative judge’s finding that, essentially, the appellant’s failure to come forward with the information in question was not knowing. ID at 15-16. ¶37 The administrative judge found that without having the investigator’s additional background knowledge, the appellant had no indication from the subordinate’s statement that he had done anything wrong or was involved in the matter under investigation. ID at 15. Thus, the administrative judge found that the statement of the subordinate “would not raise any suspicion or suggest a need to make a report.” Id. We are not persuaded that the appellant knew the Secret Service would find his subordinate’s statement significant merely because he transported the money mail to the agency. HT at 35-36 (testimony of the Secret Service special agent), 61-62 (testimony of the appellant’s coworker). In particular, the Secret Service’s questions of the appellant during his two interviews appear to have been focused on how he processed the money mail. IAF, Tab 8 at 58-59, 80-82. There is no evidence that the special agents asked about the transportation of the mail. Id. Under these circumstances, the administrative judge correctly found that the agency did not prove this charge because the appellant did not know that his subordinate’s statement had any 21 significance to the investigation. ID at 15-15; see Fargnoli, 123 M.S.P.R. 330, ¶ 18 (remanding because an administrative judge failed to make findings as to whether the appellant knew that the information he gave was not true). The administrative judge properly reduced the penalty to a 60-day suspension. ¶38 Finally, the agency asserts that the administrative judge erred in mitigating the removal to a 60-day suspension because of the nature and seriousness of all four of the charges. PFR File, Tab 3 at 22. As set forth above, however, the administrative judge correctly found that the agency did not prove three of the charges. The agency also contends that, even assuming that the other charges are not sustained, a demotion to a nonsupervisory position, along with the 60-day suspension, is a more reasonable penalty for the sustained charge of Unauthorized Use of a Government Vehicle because the appellant was a supervisor, who is held to a higher standard of conduct than nonsupervisors. Id. at 22-23. ¶39 When, as here, the Board does not sustain all the charges, it will carefully consider whether the sustained charges merit the penalty imposed by the agency. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 17 (2014). The Board may mitigate the penalty imposed by the agency to the maximum penalty that is reasonable in light of the sustained charges as long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty be imposed for fewer charges. Id. As found by the administrative judge, the deciding official did not testify as to what he thought would be an appropriate penalty for the Unauthorized Use of a Government Vehicle charge in the absence of the other charges. ID at 20; HT (Dec. 18, 2015) at 127-75 (testimony of the deciding official). Moreover, the decision notice does not indicate that a lesser penalty should be imposed for fewer sustained charges. IAF, Tab 8 at 25-27. Thus, we find that the agency has shown no error in the administrative judge’s determination that, in light of the appellant’s position as a supervisor, his knowledge of the policies, and a warning he received from his 22 coworker against personal use of the vehicle that he disregarded, a penalty greater than the statutory 30-day minimum suspension, but less than removal, was the maximum reasonable penalty for the only sustained charge. ID at 20-21; see 31 U.S.C. § 1349(b) (requiring a minimum penalty of a 1-month suspension for willful misuse of a Government passenger vehicle). Of particular note, the appellant consistently had received ratings of “exceeds expectations” during his 12 years of service and had no prior discipline.9 IAF, Tab 8 at 25, 39, 51; HT (Dec. 18, 2015) at 139 (testimony of the deciding official); see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981) (listing the employee’s length of service, past performance, and disciplinary record as factors to be considered in determining the appropriate penalty). ¶40 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). ORDER ¶41 We ORDER the agency to cancel the removal and substitute in its place a 60-day suspension without pay and to restore the appellant effective June 23, 2015. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. 9 The agency argues for the first time on review that the appellant may no longer be able to meet the requirements of his position. PFR File, Tab 3 at 13-14; IAF, Tab 11 at 5-11. In particular, it indicates that the Secret Service must give him access to the White House Complex and the Personnel Security Office must reinvestigate his security clearance. PFR File, Tab 3 at 12-14. These matters are more appropriately raised in any compliance proceedings, and we decline to address them here. See LaBatte v. Department of the Air Force, 58 M.S.P.R. 586, 594 (1993) (finding an agency had complied with the requirement that it restore the appellant by taking all steps necessary toward reinstating his security clearance). 23 ¶42 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶43 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶44 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶45 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 24 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), 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. NOTICE OF APPEAL RIGHTS10 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 10 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. 25 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 26 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 27 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 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.11 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: 11 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. 28 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/MONCADA_DANIEL_DC_0752_15_0954_I_1_OPINION_AND_ORDER_1947908.pdf
08-03-2022	2022 MSPB 26	Peggy Maloney	https://www.mspb.gov/decisions/precedential/MALONEY_PEGGY_A_DC_1221_19_0677_W_1_OPINION_AND_ORDER_1947928.pdf	Executive Office of the President, Office of Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 26 Docket No. DC-1221-19-0677-W-1 Peggy A. Maloney, Appellant, v. Executive Office of the President, Office of Administration, Agency. August 3, 2022 Peggy A. Maloney, Alexandria, Virginia, pro se. Raheemah Abdulaleem, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant petitions for review of the initial decision that dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the following reasons, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 The appellant, a GS-11 Management Analyst with the Office of Administration (OA), an entity within the Executive Office of the President 2 (EOP), filed this IRA appeal alleging that, in reprisal for whistleblowing disclosures, the agency took numerous actions against her, including placing her on administrative leave, issuing a letter of reprimand, placing her on a work improvement plan, denying her a within-grade increase (WIGI), and proposing her suspension.1 Initial Appeal File (IAF), Tab 1 at 1, 6-19, Tabs 5-6, Tab 11 at 19. The agency moved to dismiss the appeal for lack of jurisdiction asserting, among other things, that it was not an “agency” under 5 U.S.C. §§ 1221(a), 2302(a)(2)(A), (b)(8), over which the Board has jurisdiction in an IRA appeal. IAF, Tab 8 at 14-21. The appellant filed a response to the agency’s motion to dismiss, in which she addressed this issue. IAF, Tab 14 at 14-17. ¶3 Based on the written record, the administrative judge dismissed the appeal, finding that the Board lacks jurisdiction over IRA appeals filed by OA employees in EOP.2 IAF, Tab 19, Initial Decision (ID) at 1, 5-8. She reasoned that, under 1 The appellant also filed and had automatically refiled Board appeals challenging her subsequent separation from employment. Maloney v. Executive Office of the President, Office of Administration, MSPB Docket No. DC-0752-20-0092-I-1; Maloney v. Executive Office of the President, Office of Administration, MSPB Docket No. DC-0752-20-0092-I-2. Those cases will be adjudicated by the Board in separate decisions. The appellant also has filed a request for regulation review, the disposition of which does not impact our decision here. See Maloney v. Office of Personnel Management, MSPB Docket No. CB-1205-21-0005-U-1. Therefore, that request will be separately adjudicated. 2 Although not raised by the parties on review, the agency asserted below that the appeal was untimely filed because it was not filed within the 60-day deadline set forth at 5 U.S.C. § 1214(a)(3)(A). IAF, Tab 8 at 21-23. The administrative judge found the appellant timely filed the appeal, but provided no reasoning in support of that conclusion. We agree that the appeal was timely filed. Section 1214(a)(3)(A) of title 5 provides that an IRA appeal must be filed no more than 60 days after “notification was provided” that the Office of Special Counsel (OSC) terminated its investigation of the appellant’s complaint. The statutory language does not specify whether the 60-day period begins to run from the date of the Special Counsel’s notice or the date of the whistleblower’s receipt of that notice. Practices and Procedures for Appeal and Stay Requests of Personnel Actions Allegedly Based on Whistleblowing, 62 Fed. Reg. 59992-01, 59992 (Nov. 6, 1997). Under the Board’s implementing regulations clarifying that issue, an IRA appeal must generally be filed no later than 65 days after 3 the applicable statute, only employees in a covered position in an “agency” may seek corrective action from the Board, and that EOP was not an “agency.” Id. The administrative judge also noted that, although the appellant asserted that the agency denied her a WIGI, “there is no record that the appellant filed an appeal of that action.” ID at 4 n.2. ¶4 The appellant has filed a petition for review of the initial decision, and the agency has filed a response thereto. Petition for Review (PFR) File, Tabs 1-2, 4, 13.3 The appellant has filed a reply to the agency’s response to her petition for review. PFR File, Tab 14.4 the date OSC issued its close-out letter or, if the letter is received more than 5 days after its issuance, within 60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1); e.g., Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 6 (2014). If the 65th day falls on a weekend or holiday, the filing period automatically is extended to the next work day. Pry v. Department of the Navy, 59 M.S.P.R. 440, 442-43 (1993); 5 C.F.R. § 1201.23. Here, the 65th day after OSC emailed its May 9, 2019 letter advising the appellant of her right to file an IRA appeal with the Board was Saturday, July 13, 2019. IAF, Tab 11 at 6-7. Thus, she timely filed her appeal on the next workday, which was July 15, 2019. IAF, Tab 1. 3 Because the appellant’s arguments at Tabs 1 and 4 of the Petition for Review File are identical, we have cited only to where those arguments appear at Tab 1 for the sake of clarity. For the same reason, to the extent the appellant repeats the same arguments in Petition for Review File, Tab 2, we have cited only to where those arguments appear in Tab 1. 4 The appellant has filed several motions for leave to submit additional pleadings in which she raises “objection[s]” and “concerns” that address arguments already mentioned in her petition for review, such as the administrative judge’s decision to sever her appeals and failure to issue a decision within 120 days. PFR File, Tabs 10, 20; see 5 C.F.R. § 1201.114(a)(5) (providing that no pleading other than those described in 5 C.F.R. § 1201.114(a) will be accepted unless the Clerk of the Board grants the party’s motion to do so). She also raises new claims such as an alleged criminal conspiracy. PFR File, Tab 10. Once the record closes on review, no additional evidence or argument will be accepted unless it is new and material and was not readily available before the record closed. 5 C.F.R. § 1201.114(k). We deny the appellant’s motions because she has not met these requirements. See Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195, ¶ 23 (2013) (denying an appellant’s request to submit a document containing information that he failed to show was unavailable despite his due diligence before the record closed on review). 4 ANALYSIS Our focus in this case is primarily on whether OA, rather than EOP as a whole, is subject to the Board’s IRA jurisdiction. ¶5 It is not clear whether the administrative judge based her jurisdictional determination on a finding that OA was not an “agency,” or on a determination that the entire EOP was not an “agency.” Compare ID at 5 (“The Board lacks jurisdiction over IRA appeals from employees in the Office of Administration in the Executive Office of the President.”), 8 (“There is no evidence or argument to establish that OA, EOP is covered under the definition of an ‘executive agency.’”), with ID at 5-6 (finding that EOP was not an executive department or a Government corporation, and stating that “[t]his case turns on whether EOP is an ‘independent establishment’ in the executive branch”). Because of the unique nature of EOP as a collection of “offices and entities that directly support the work of the President of the United States . . . courts have routinely examined whether individual components within the EOP qualify as ‘independent establishments’ or as ‘agencies,’ rather than examining the EOP’s status as a whole.” Argus Secure Technology, LLC, B-419422, B-419422.2, 2021 WL 694804, 6 (Comp. Gen. Feb. 22, 2021) (citing Kissinger v. Reporters Commission for Freedom of the Press, 445 U.S. 136, 156 (1980) (determining that “the President’s immediate personal staff or units in the [EOP] whose sole function is to advise and assist the President” are not agencies subject to the Freedom of Information Act (FOIA), even though EOP is expressly included in the definition of an “agency” under FOIA (citations omitted))); Citizens for Responsibility & Ethics in Washington v. Office of Administration, 566 F.3d 219, 223-24 (D.C. Cir. 2009) (CREW) (reviewing which units within EOP the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) had found were, and which it had found were not, agencies subject to FOIA); United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998) (recognizing that the D.C. Circuit has declined to consider EOP as a whole to be an agency under FOIA); Electronic Privacy 5 Information Center v. Presidential Advisory Commission on Election Integrity, 266 F. Supp. 3d 297, 315-18 (D.D.C. 2017) (declining to deem EOP as a whole a “parent agency” subject to the Administrative Procedures Act; instead, examining the functions of the EOP entity at issue, the Director of White House Information Technology, and concluding it was not an agency).5 Thus, our review focuses on the specific EOP organization that took the actions at issue here, which was OA. The central issue in this appeal is whether OA is an independent establishment within the meaning of 5 U.S.C. § 104(1). ¶6 An “employee . . . may, with respect to any personnel action taken, or proposed to be taken, against such employee . . . as a result of a prohibited personnel practice described in [5 U.S.C. § 2302(b)(8), 2302(b)(9)(A)(i), (B), (C), or (D)], seek corrective action from the [Board]” by filing an IRA appeal. 5 U.S.C. § 1221(a). A “personnel action,” in turn, means one of a number of listed employment actions “with respect to an employee in . . . a covered position in an agency.” 5 U.S.C. § 2302(a)(2)(A). Therefore, the Board’s jurisdiction in an IRA appeal is dependent, in part, on whether an “agency” took the alleged personnel action or actions.6 See O’Brien v. Office of Independent Counsel, 74 M.S.P.R. 192, 199 (1997). 5 The Board may consider decisions by Federal district courts, and opinions of the Comptrollers General and the Attorneys General, as persuasive guidance, but not as binding authority. Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 11 n.2 (2006) (finding that the Board may follow district court decisions it finds persuasive); Special Counsel v. DeMeo, 77 M.S.P.R. 158, 172 (1997) (finding that the Board may consider decisions of the Comptrollers General and Attorney General as persuasive, but not binding, authority), aff’d per curiam, 230 F.3d 1372 (Fed. Cir. 1999) (Table). We find that, for purposes of our determination to focus primarily on OA, the reasoning of Argus Secure Technology and the various courts cited above is persuasive in this case. 6 This jurisdictional requirement is absent from chapter 75 of title 5. The only requirements for the Board’s chapter 75 jurisdiction generally are that a tenured employee suffered an appealable adverse action. Moncada v. Executive Office of the President, Office of Administration, 2022 MSPB 25, ¶¶ 13, 24. With exceptions not relevant to our discussion here, the Board’s jurisdiction over a chapter 75 appeal is not 6 ¶7 An “agency” for purposes of an IRA appeal is defined as an “Executive agency” and the Government Publishing Office, but does not include certain intelligence and counterintelligence entities and the Government Accountability Office (GAO). 5 U.S.C. § 2302(a)(2)(C). Section 2302 does not define “Executive agency.” In defining that term in IRA appeals, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board have generally relied on 5 U.S.C. § 105. See, e.g., Booker v. Merit Systems Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992); Wilcox v. International Boundary & Water Commission, 103 M.S.P.R. 73, ¶ 8 (2006); O’Brien, 74 M.S.P.R. at 199; Pessa v. Smithsonian Institution, 60 M.S.P.R. 421, 425 (1994). The appellant states in her petition for review that the administrative judge “denies section 105 of title 5 is applicable in this case.” PFR File, Tab 2 at 13. She is mistaken. The administrative judge properly cited to, and relied on, 5 U.S.C. § 105. ID at 5-6 & n.3. ¶8 Section 105 of title 5 defines an “Executive agency” as “an Executive department, a Government corporation, and an independent establishment.” Sections 101 through 105 of title 5 were enacted together. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 378-79 (codified as amended, in pertinent part, at 5 U.S.C. §§ 101-105). Therefore, we read them together as part of a harmonious whole. 2A Shambie Singer & Norman Singer, Sutherland Statutes & Statutory Construction § 46:5 (7th ed. 2021). The Executive departments are dependent on whether the entity that took the action was an “agency” because the relevant statutory language does not contain such a requirement. 5 U.S.C. §§ 7511(a)(1), 7512, 7513(d), 7701(a); Moncada, 2022 MSPB 25, ¶¶ 13-20, 24 & n.4. Because, as explained above, the Board only has IRA jurisdiction over an “agency,” cases addressing the Board’s chapter 75 jurisdiction over OA employees are not helpful for our analysis here. Thus, to the extent that the appellant argues that we have jurisdiction over this appeal because the Board adjudicated the merits of her coworker’s removal under chapter 75 in Moncada, and found it had jurisdiction over an OA employee’s chapter 75 appeal in Caveney v. Office of Administration, 64 M.S.P.R. 169, 170, 172 (1994), PFR File, Tab 1 at 9-10, we find those cases to be inapposite. 7 listed in 5 U.S.C. § 101. A Government corporation, according to 5 U.S.C. § 103, “means a corporation owned or controlled by the Government of the United States.” An “independent establishment,” as relevant here, is defined as “an establishment in the executive branch . . . which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.”7 5 U.S.C. § 104(1). ¶9 The administrative judge determined that OA is neither an Executive department, nor a Government corporation. ID at 5-6. The parties do not challenge this determination, and we discern no basis to disturb it. As the administrative judge correctly observed, OA is not included in the list of Executive departments set forth at 5 U.S.C. § 101. ID at 5. Moreover, there is no indication that OA is a corporation owned or controlled by the Government of the United States. ID at 5-6; cf. Snead v. Pension Benefit Guaranty Corporation, 74 M.S.P.R. 501, 503 (1997) (finding that Congress explicitly classified the Pension Benefit Guaranty Corporation as a wholly owned Government corporation). Therefore, to be an Executive agency within the jurisdiction of the Board in this IRA appeal, OA must meet the definition of “independent establishment.” OA is an “independent establishment.” ¶10 There are no Board or Federal court cases directly addressing whether OA is an “independent establishment” within the meaning of 5 U.S.C. § 104. Therefore, the administrative judge looked to other statutes relating to OA and decisions that interpreted the terms “agency” or “independent establishment” as used in other statutes. ID at 6-8. The appellant disputes the applicability of these 7 The definition expressly excludes the U.S. Postal Service and the Postal Regulatory Commission, and expressly includes GAO. 5 U.S.C. § 104. Because these entities are not before us here, we will not discuss them further. 8 statutes and cases to this IRA appeal. PFR File, Tab 1 at 10-11. In order to address her arguments, we look first to the language of section 104. The meaning of “independent establishment.” ¶11 The interpretation of a statute begins with the language of the statute itself. Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016). As set forth above, an “independent establishment” is defined as “an establishment in the executive branch . . . which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.” 5 U.S.C. § 104(1). This definition does not clarify what is meant by an “establishment.”8 Instead, section 104 defines “independent establishment” primarily in terms of what it excludes. OA is clearly not an Executive department, military department, or Government corporation, or part thereof. We find that OA also is not “part of an independent establishment.” Rather, it is part of EOP, which as set forth more fully below, itself can be viewed as not an independent establishment for purposes of this appeal. 8 The heading of section 104 is entitled, “[i]ndependent establishment,” but the text of that provision does not suggest that any additional element of “independence” is required to meet the definition, other than the requirements set forth in the text. In other words, the statutory text contemplates that, so long as an establishment is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment, the establishment is “independent.” Although the title and headings of a statute may be “permissible” indicators of meaning, Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1928 (2021), and can aid in resolving an ambiguity in the legislation’s text, I.N.S. v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991), as the Supreme Court explained in Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad Co., 331 U.S. 519, 528-29 (1947), a “wise rule” of statutory interpretation is “that the title of a statute and the heading of a section cannot limit the plain meaning of the text.” See 2A Sutherland Statutory Construction § 47.3(7th ed. 2021) (“The title cannot control a statute’s plain words.”). As set forth below, we address whether OA meets the definition of “independent establishment” as set forth in the plain meaning of the text of section 104, which is clear. We therefore need not separately address the meaning of the term “independent.” 9 ¶12 To the extent the statutory term “establishment” may be ambiguous, the legislative history of section 104 sheds little light on its meaning. A Senate Report covering the enactment of section 104 merely provides that “[t]he section is supplied to avoid the necessity for defining ‘independent establishment’ each time it is used in this title,” and that “[c]ertain agencies are not independent establishments under the definition since they are constituent agencies or parts of an independent establishment.” S. Rep. No. 89-1380, at 22 (1966). However, the Senate Report specifies that “these agencies would continue to be subject to the provisions of this title applicable to the independent establishment of which they are a constituent or part.” Id. ¶13 In the absence of a statutory definition or clear guidance in the legislative history, the Board generally will interpret words as taking their ordinary, contemporary, common meaning. Weed v. Social Security Administration, 107 M.S.P.R. 142, ¶ 6 (2007). In determining that meaning, the Board may refer to dictionary definitions. Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 14 (2017), aff’d sub nom. Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018). Therefore, we do so here. ¶14 The ordinary meaning of the term “establishment” has remained essentially unchanged since the early 19th century. An “establishment” is “[t]hat which is fixed or established; as a . . . local government, an agency, . . . etc.” Establishment, Webster’s 1828 Dictionary; see Webster’s 1993 Dictionary 778 (using similar terms such as “something that has been established,” and providing as an example “a permanent civil or military force or organization”). As set forth below, a review of the historical background leading up to the creation of EOP and OA is helpful in ascertaining whether OA meets the above definition. The history of EOP and OA. ¶15 EOP first came into existence as a result of President Roosevelt’s Reorganization Plan No. 1 of 1939, pt. 1, 4 Fed. Reg. 2727 (July 1, 1939), as 10 reprinted in 53 Stat. 1423 (1939); Harold C. Relyea, Congressional Research Service, 98-606 GOV, The Executive Office of the President: An Historical Overview 8 (2008) (Relyea). In his message to Congress accompanying the plan, President Roosevelt wrote that the plan reduced the number of agencies reporting directly to the President and gave the President “assistance in dealing with the entire executive branch by modern means of administrative management.” Message of the President to the Congress of the United States Accompanying the Reorganization Plan No. 1 of 1939, as reprinted in 5 U.S.C. app. 1. Both in Reorganization Plan No. 1, and in a second reorganization plan issued the same year, Reorganization Plan No. 2 of 1939, the President transferred a number of functions and entities to EOP. Reorganization Plan No. 1 of 1939, §§ 1-4, 4 Fed. Reg. at 2727-28; Reorganization Plan No. 2 of 1939, § 301(a), 4 Fed. Reg. 2731, 2732 (July 1, 1939), as reprinted in 53 Stat. 1431. By joint resolution, Congress provided that both reorganization plans went into effect on July 1, 1939. S.J. Res. 138, 76th Cong., 53 Stat. 813 (1939) (enacted). ¶16 A few months later, the President issued an Executive Order organizing EOP by defining its functions and duties so as to provide the President with “adequate machinery for the administrative management of the Executive branch of the Government.” Exec. Order No. 8248, 4 Fed. Reg. 3864 (Sept. 8, 1939). Since its creation, EOP has had a varying number of principal units within it. Relyea at 8-10 (2008). As it exists today, “[t]he function of the EOP is to support the work of the President . . . at the center of the executive branch of the federal government.” Argus Secure Technology, LLC, 2021 WL 694804, 1. ¶17 President Jimmy Carter “established” OA in EOP by means of Reorganization Plan No. 1 of 1977, § 2, 42 Fed. Reg. 56,101 (July 15, 1977, as amended Sept. 15, 1977), as reprinted in 3 U.S.C. ch. 2, refs. & annot. In a message to Congress accompanying the plan, the President emphasized that “EOP exists to serve the President and should be structured to meet his needs,” and that he desired to “[l]imit the EOP, wherever possible, to functions directly related to 11 the President’s work.” Message of the President Transmitting Reorganization Plan No. 1 of 1977 (July 15, 1977), as reprinted in 3 U.S.C. ch. 2, refs. & annot. He summarized the functions of EOP as including, for example, “[p]rovid[ing] day-to-day operational support (e.g., scheduling, appointments),” assisting with presidential communications, and managing his “decisionmaking processes efficiently and fairly.” Id. ¶18 Reorganization Plan No. 1 of 1977 provided that OA shall “be headed by the President,” have a Director “appointed by the President,” and “provide components of [EOP] with such administrative services as the President shall from time to time direct.” Reorganization Plan No. 1 of 1977, § 2, 42 Fed. Reg. 56,101. President Carter set forth additional information and direction regarding OA’s responsibilities in Executive Order No. 12,028, 42 Fed. Reg. 62,895 (Dec. 12, 1977). Per the Executive Order, OA “shall provide common administrative support and services to all units within [EOP],” and “upon request, assist the White House Office in performing its role of providing . . . administrative services” to the President. Executive Order No. 12,028, § 3(a), 42 Fed. Reg. at 62,895. Further, OA’s common administrative support and services “shall encompass all types of administrative support and services that may be used by, or useful to, units within [EOP],” including personnel management services, equal employment opportunity programs, financial management services, data processing, library services, records, information services, and mail services. Executive Order No. 12,028, § 3(b), 42 Fed. Reg. at 62,895. The Director of OA shall, among other things, “do all other things that the President, as head of [OA], might do.” Executive Order No. 12,028, § 4(a)(4), 42 Fed. Reg. at 62,896. Thus, OA is an extension of, and provides support to, the President. It also supports EOP, which reports directly to, and serves as an extension of, the President. 12 OA meets the definition of “independent establishment.” ¶19 As discussed above, the meaning of the word establishment” has remained virtually unchanged throughout this period. An “establishment” could be a permanent civil, military, public, or private institution. Establishment, Webster’s 1828 Dictionary; see Webster’s 1993 Dictionary 778. OA is an establishment within the meaning of this definition. EOP was created in 1939, and since OA was “established” in 1977 by means of Reorganization Plan No. 1 of 1977, it has been a civil organization within EOP. See Pessa, 60 M.S.P.R. at 425 (finding the Smithsonian Institution to be an “independent establishment” under 5 U.S.C. § 104 because the statute creating it identified it as an “establishment,” and it was independent of any of the Executive departments). As examples of its permanency, it has subdivisions and a staff. IAF, Tab 2 at 87 (describing the appellant’s position as within the Office of the Chief Financial Officer (CFO) within OA), Tab 9 at 123-24 (establishing a Staff Advisory Council within OA, which is designed to “provide a unified voice to the Director and chief officers to affect meaningful change on behalf of the OA workforce,” and “serve as a bridge between staff and senior management”), 124 (listing five offices within OA), Tab 12 at 52, 57 (describing positions as existing within the White House Information Technology subdivision of OA and the CFO Office). ¶20 Moreover, OA is not “part of an independent establishment.” 5 U.S.C. § 104(1). As set forth above, OA is integrated into EOP and subject to the President’s control. The U.S. Government Manual’s organizational chart does not include EOP on its list of independent establishments, but instead places it on the chart directly under the President and Vice President. Federal Register, The United States Government Manual, Organizational Chart (2021) https://www.usgovernmentmanual.gov (last visited Aug. 1, 2022); see 1 C.F.R. § 9.1 (requiring the Director of the Administrative Committee of the Federal Registrar to publish the U.S. Government Manual). As previously discussed, 13 EOP itself operates at the center of the Executive branch, serves the President’s needs, and is limited, as much as possible, to supporting his work. E.g., Message of the President Transmitting Reorganization Plan No. 1 of 1977 (July 15, 1977), as reprinted in 3 U.S.C. ch. 2, refs. & annot; Argus Secure Technology, 2021 WL 694804, *1.9 ¶21 The appellant asserts on review that Wilcox, 103 M.S.P.R. 73, ¶¶ 8-10, supports a finding that OA is an “agency” for purposes of her IRA appeal. PFR File, Tab 2 at 20. In Wilcox, the Board found that the International Boundary and Water Commission (IBWC) was an “agency” for purposes of the appellant’s IRA appeal because, among other things, IBWC employees were covered by various provisions of title 5 of the U.S. Code, such as the Federal Employees’ Retirement System, the Federal Employees Group Life Insurance Program, the Federal Employees’ Health Benefits Program, title 5 leave provisions, and the Fair Labor Standards Act, all of which the Board found either rely on the same definition of “agency” or apply to “executive agencies.” Id., ¶¶ 8-10. The Board found that “[t]hese are all indicia of Executive agency status.” Id., ¶ 9. While there appear to be some organizational differences between OA and IBWC, we agree with the appellant that Wilcox does provide some support for our determination in this case, given that the appellant is also covered by many of those same programs and statutes. IAF, Tab 12 at 51, 56. ¶22 Similarly, we find support for our determination in O’Brien, 74 M.S.P.R. at 200, 202. The Board found therein that the Office of Independent Counsel was an executive agency, and thus within the definition of “agency” for purposes of the Whistleblower Protection Act (WPA), primarily because of the lack of an 9 Even assuming, however, that EOP were to be considered an “independent establishment,” such a determination would not affect our determination in this case. As set forth above, see supra ¶ 12, OA would continue to be subject to the provisions of title 5 applicable to the independent establishment of which it is a constituent or part. 14 express statutory exclusion of that entity from 5 U.S.C. § 2302(a)(2)(C), as well as court and GAO determinations finding that it was within the Executive branch. The Board quoted from a GAO finding that independent counsels and their staff are governed by the same statutory provisions and regulations applicable to other executive branch officers and employees contained in title 5 of the U.S. Code relating to pay, allowances, travel, and transportation. Id. at 200. ¶23 More importantly, because the whistleblower statutes are remedial legislation, the Board will construe them liberally to embrace all cases fairly within their scope, so as to effectuate the purpose of those statutes. Fishbein v. Department of Health & Human Services, 102 M.S.P.R. 4, ¶ 8 (2006). In this case, such a liberal construction includes 5 U.S.C. §§ 1221(a), 2302(a)(2)(A), and 2302(a)(2)(C), which together permit an employee in a covered position in an “agency” to seek corrective action from the Board. The specific mention of certain things in a statute implies the exclusion of other things. See Graves, 123 M.S.P.R. 434, ¶ 13. Here, it is significant that, although 5 U.S.C. § 2302(a)(2)(C) specifically excludes certain Federal entities from the definition of “agency,” including the Federal Bureau of Investigation, the Central Intelligence Agency, other entities involved in intelligence or counterintelligence activities, and the GAO, it does not identify OA as being so excluded. See O’Brien, 74 M.S.P.R. at 199 (holding that, when Congress excluded government entities from coverage of the breadth of Federal civil service protections, it has done so with specificity). Thus, this failure to specifically exclude OA from section 2302(a)(2)(C) informs our interpretation of the term “Executive agency” in that section, especially given that the definition of “Executive agency” set forth at 5 U.S.C. § 105 is not specific to the whistleblower process. See Jacobsen v. Department of Justice, 101 M.S.P.R. 134, ¶ 7 (2006) (holding that specific statutory language aimed at a particular situation ordinarily controls over general statutory language). 15 ¶24 In fact, the legislative history of the 1994 Amendments to the WPA indicates that Congress was dissatisfied with the Board’s narrow interpretation of the statute that led to gaps in coverage. O’Brien, 74 M.S.P.R. at 208. In its discussion of the expansion of the definition of “agency” in 5 U.S.C. § 2302(a)(2)(C) to include a government corporation, the responsible House Committee warned against technically rigid criteria and directed that “government corporation” be broadly construed to cover the full range of federally-funded institutions “where the merit system may be relevant to defend the taxpayers’ interest.” H.R. Rep. No. 103-769, at 23 (1994). More significantly, the report provided as follows: H.R. 2970 expands merit system coverage to virtually the entire Federal workforce, including employees of the Department of Veterans’ Affairs and of Government corporations. In addition to those agencies exempted under section 2302(c)(ii) and 2302(c)(iii) (the General Accounting Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and upon Presidential determination, any Executive agency or unit thereof the principle function of which is the conduct of foreign intelligence or counterintelligence activities), the only employees not covered are those expected [sic] from the competitive service when they applied or took office; because of [the] position’s confidential, policy-determining, policy-making, or policy-advocating character; or those excluded by the President based on the President’s determination that it is necessary and warranted by conditions of good administration. Id. at 10. Given the above language in the legislative history, our determination regarding OA adopts a broad construction of the terms “independent establishment” and “Executive agency” to help expand whistleblower protection coverage and make the merit systems more relevant to taxpayer interests. ¶25 Our interpretation of the applicable whistleblower statutes as not excluding the appellant from Board appeal rights is not only consistent with the legislative history of the Amendments, but is also consistent with OA’s historical position on the appeal rights of its employees. The Presidential and Executive Office 16 Accountability Act (PEOAA), Pub. L. No. 104-331, 110 Stat. 4053 (1996) (codified at 3 U.S.C. §§ 401-471), expanded the rights of individuals employed at the EOP. The laws that became applicable to EOP employees under PEOAA included, among others, the Fair Labor Standards Act of 1938, title VII of the Civil Rights Act of 1964, various other statutes prohibiting discrimination, the Family and Medical Leave Act of 1993, and the Occupational Safety and Health Act of 1970. 3 U.S.C. § 402. PEOAA’s failure to include the applicable whistleblower statutes of title 5 in the list suggests that Congress already considered certain EOP employees to be covered by those statutes, which predated PEOAA. In fact, in recommending the extension of these discrimination and labor protections to EOP employees, the House Report appeared to assume that the Board had jurisdiction over most EOP employees. See H.R. Rep. No. 104-820, at 40-42 (1996) (indicating that most EOP employees “are covered by Title 5 of the U.S. Code,” and that “Title 5 [EOP] employees are already entitled to an administrative . . . hearing” before the Equal Employment Opportunity Commission or the Board), as reprinted in 1996 U.S.C.C.A.N. 4348, 4375-77. ¶26 The legislative history also includes testimony regarding H.R. 3452, the bill that became PEOAA, from Franklin S. Reeder, then-Director of OA. Mr. Reeder explained that, “[t]he vast majority of [EOP] employees—two thirds or more—are civil service employees covered by the same protections and rights as other career executive branch employees under Title 5 of the U.S. Code.” Presidential and Executive Office Accountability Act: Hearing on H.R. 3452 Before the Subcomm. on Gov’t Mgmt., Info., & Tech. of the Comm. on Gov’t Reform and Oversight, House of Representatives, 104th Cong. 152 (1996) (statement of Franklin S. Reeder, Director, Office of Administration, Executive Office of the President). He contrasted these employees with the remaining one third, employed “in the four offices closest to the President: the White House Office, 17 Office of the Vice President, Office of Policy Development, and Executive Residence.” As to these employees: By long tradition and express statutory authority, employees in these four offices have served at the pleasure of the President. As Congress mandated in the provisions of Title 3 of the United States Code, these employees are hired “without regard to any other provision of law regulating the employment or compensation of persons in the Government service . . . . This long tradition and express statutory authority flow from the structure of the federal government established by the United States Constitution. The unfettered ability of the President to choose his closest advisers—and to choose when to dismiss them—is a necessary outgrowth of the separation and balance of the branches of government established in the Constitution. Id. at 152-53. In a footnote, Mr. Reeder added: The [OA] is also authorized by Title 3, but its employees are, by design, virtually all career civil servants hired under Title 5 authority. A small number of [OA] employees are Title 3 employees who serve at the will of the President, on the same standing as employees in the White House Office and the other three Title 3 offices. See 3 U.S.C. § 107(b)(1)(A). Accordingly, the Office of Administration is more properly treated as a “Title 5” agency for purposes of the applicability of employee workplace laws. Id. at 152 n.1. In later proceedings held on the PEOAA bill, the idea of creating a new entity to review EOP employee claims was abandoned, with Representative Carolyn Maloney explaining that EOP “employees already have recourse to the Merit Systems Protection Board.” 142 Cong. Rec. H12,283-02, H12,286 (daily ed. Oct. 4, 1996) (statement of Rep. Maloney). ¶27 In sum, because we find that OA is an independent establishment under 5 U.S.C. §§ 101, 103-104, it is also an Executive agency under 5 U.S.C. § 105, and therefore meets the definition of “agency” set forth at 5 U.S.C. § 2302(a)(2)(C). 18 We decline to rely on decisions interpreting other statutes and concerning other agencies to determine whether OA is an independent establishment. ¶28 We note that the agency and the administrative judge relied in part on CREW, 566 F.3d at 220, 222, a case in which the court found that OA was not an “agency” under FOIA, and therefore not covered by that statute. Although we have relied on CREW in our determination above that the agency at issue in this case is OA and not EOP, we otherwise find the CREW decision distinguishable and do not rely upon it as a touchstone for determining the status of the OA. The court in CREW noted that the term “agency” was defined for purposes of FOIA as, among other things, an “establishment in the executive branch of the Government (including the Executive Office of the President).” Id. at 222. The court determined that the issue in deciding whether an EOP unit was an “agency” subject to FOIA was whether the entity wielded substantial authority independently of the President. Id. In adopting this standard, the court cited Kissinger, 445 U.S. at 156, which relied on the legislative history of FOIA. Id. The court concluded that the OA was not an “agency” subject to FOIA because it did not wield substantial independent authority. Id. at 223-24. The statutes at issue in this case differ significantly from those in CREW. Moreover, as set forth above, there is scant legislative history for 5 U.S.C. § 104; thus, there is no basis for using the CREW test to determine the status of OA in this case. ¶29 The agency and the administrative judge also relied on 3 U.S.C. § 107(b)(1), which provides that the President is authorized to regulate the employment and compensation of certain OA employees without regard to other provisions of law. ID at 7-8. The administrative judge found that this statute supports a finding that OA is not an “agency” because “the President may exercise authority over employees of OA as he determines to be appropriate.” ID at 8. However, section 107(b)(1) addresses the President’s authority to appoint and fix the pay of not more than 10 OA employees at designated rates of basic pay “without regard to such other provisions of law as the President may specify 19 which regulate the employment and compensation of persons in the Government service.” It does not suggest that all employees of OA are appointed under the authority of title 3 of the U.S. Code. In fact, as set forth above, most EOP employees are appointed under the authority of title 5 of the U.S. Code. Therefore, we are not persuaded that section 107(b)(1) provides a basis for making a determination as to whether OA is an “independent establishment” under 5 U.S.C. § 104.10 ¶30 The administrative judge relied on Haddon v. Walters, 43 F.3d 1488, 1489 (D.C. Cir. 1995), wherein the court addressed whether an employee of the Executive Residence of the White House could bring a title VII discrimination case under 29 U.S.C. § 2000e-16. ID at 6. The administrative judge noted that the court, in finding that the Executive Residence was not an “independent establishment,” relied on 3 U.S.C. § 112, which the court held “distinguish[es]” the Executive Residence from independent establishments. ID at 6-7. Section 112 provides that “[t]he head of any department, agency, or independent establishment of the executive branch of the Government may detail, from time to time, employees of such department, agency, or establishment to the White House Office, the Executive Residence at the White House, the Office of the Vice President, the Domestic Policy Staff, and the Office of Administration.” 3 U.S.C. 10 The agency cites to Reorganization Plan No. 1 of 1977 in support of its contention that “by law, staff members of OA are appointed by the President himself (or his designee).” PFR File, Tab 13 at 16. However, section 2 of that reorganization plan, which establishes the OA in the EOP, only references the President’s appointment of the Director of the OA, who shall serve as its chief administrative officer. The agency also contends that the Board’s website provides that PEOAA is the “only basis” for its jurisdiction over EOP employees, and only after certain procedural requirements have been met. PFR File, Tab 13 at 20-21. The agency has not shown that the Board is bound by informational statements included on its website to assist appellants with answers to common questions. In any event, the Board’s website merely provides a brief description of PEOAA; it does not identify PEOAA as the only basis for Board jurisdiction over an appeal filed by an EOP employee. 20 § 112. It provides that any such office to which an employee has been detailed shall reimburse the detailing department, agency, or establishment for the pay of each employee under certain circumstances. Id. Thus, Haddon held that because Congress distinguished the Executive Residence from independent establishments, this suggested that Congress did not regard the Executive Residence to be an independent establishment. Haddon, 43 F.3d at 1490. The administrative judge applied analogous reasoning to OA. ID at 6-7.11 ¶31 However, we find that a provision in a statute like 3 U.S.C. § 112, relating to details involving certain entities within EOP, does not shed light on the intent of Congress regarding whistleblower protections in general, and whether an OA employee can file an IRA appeal in particular. In other words, although Congress may have intended that independent establishments be distinct from the OA for purposes of details—although section 112 could just as easily be read as simply setting forth a way of authorizing certain details without implying anything about the status of the sending and receiving entities—it does not shed light on the intent of Congress regarding whistleblower rights. Thus, we find that 3 U.S.C. § 112 and 5 U.S.C. § 104 are not in pari materia, and that section 112 is therefore not helpful in discerning the meaning of the term “independent establishment.” See Iverson v. United States, 973 F.3d 843, 850 (8th Cir. 2020) (applying the statutory canon requiring that statutes be in pari materia (“on the same subject”) before courts can construe them “as if they were one law,” and finding that the Federal Tort Claims Act and the Air Transportation Security Act are not “on the 11 The appellant contends that Haddon is distinguishable from this appeal because Mr. Haddon was appointed to his White House chef position under the authority of title 3 of the U.S. Code, while she was appointed to her position under the authority of title 5. PFR File, Tab 1 at 10-11. Given our determination that the reasoning in Haddon is otherwise not persuasive for purposes of this appeal, we need not address this argument. 21 same subject,” and thus, “there is no reason to assume that Congress attached the same meanings to employee and officer in each.”). ¶32 Moreover, any reliance on 3 U.S.C. § 112 in interpreting 5 U.S.C. § 104 has an unacceptable statutory effect. It uses a later enactment—3 U.S.C. § 112—to aid in the construction of an earlier enactment—5 U.S.C. § 104. In this regard, section 112 was enacted as part of Pub. L. No. 95-570, § 3(a), 92 Stat. 2449, on November 2, 1978. Section 104, by contrast, was enacted as part of Pub. L. No. 89-554, 80 Stat. 379, on September 6, 1966. Relying on section 112 in construing section 104, therefore, would require the Board to hold that Congress silently informed or altered a term’s meaning in one statute by passing an unrelated statute over 10 years later, which would be contrary to general principles of statutory interpretation. See Iverson, 973 F.3d at 849-50. The appellant is an “employee” in a “covered position.” ¶33 Because the administrative judge did not address any other jurisdictional issues in this IRA appeal, we address some of them here. The right to file an IRA appeal derives from 5 U.S.C. § 1221(a), which provides a right to seek corrective action from the Board to “an employee, former employee, or applicant for employment.” Fishbein, 102 M.S.P.R. 4, ¶ 11. To be an employee under section 1221(a), an individual must meet the definition of employee under 5 U.S.C. § 2105. Id., ¶ 12. Under 5 U.S.C. § 2105(a), an “employee” is: (1) an officer and an individual who is appointed in the civil service by one of the types of individuals enumerated in the statute acting in their official capacity; (2) engaged in the performance of a Federal function under authority of law or an Executive act; and (3) subject to the supervision of an authorized official while engaged in the performance of the duties of his position. The “civil service” is defined as “all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services.” 5 U.S.C. § 2101(1). Based on the record, it appears that the appellant meets the definition of an employee. IAF, Tab 11 at 19, 59, Tab 12 22 at 43-52, 56-57. The agency does not assert otherwise. IAF, Tab 8; PFR File, Tab 13. ¶34 A “covered position” means, among other things, “any position in the competitive service,” but does not include any position that is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character, or that is excluded from the coverage of section 2302 by the President based on a determination by the President that it is necessary and warranted by conditions of good administration. 5 U.S.C. § 2302(a)(2)(B). The record reflects that the appellant occupied positions in the competitive service. IAF, Tab 11 at 19, 59, Tab 12 at 51-52, 56-57. There is no indication that her positions were excepted from the competitive service for a reason listed in 5 U.S.C. § 2302(a)(2)(B)(i) or excluded from coverage based on a determination by the President. See Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 18 (2011). The agency does not make such arguments in this case. IAF, Tab 8; PFR File, Tab 13. Thus, we find that the appellant’s positions were “covered” under 5 U.S.C. § 2302(a)(2)(B). The appellant’s remaining arguments on review are without merit. ¶35 The appellant challenges the administrative judge’s decision to sever this appeal from her appeal of her separation from employment. PFR File, Tab 1 at 5; Maloney v. Office of Administration, Executive Office of the President, MSPB Docket No. DC-0752-20-0092-I-1, Initial Appeal File, Tab 38. On October 30, 2019, the administrative judge joined this IRA appeal involving pre-separation personnel actions with the appellant’s separation appeal. IAF, Tab 17. However, in her July 23, 2020 initial decision, the administrative judge stated that “the appeals were later severed.” ID at 3 n.1. ¶36 An administrative judge may join cases if doing so would expedite processing of the cases and not adversely affect the interests of the parties. 5 C.F.R. § 1201.36(b). The decision whether to join two appeals is a matter 23 committed to the sound discretion of the administrative judge in accordance with the above guidance. McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 10 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). By extension, an administrative judge has the same discretion in severing appeals. The appellant has shown no abuse of discretion by the administrative judge in her determination to sever the appeals. See Orr v. Department of the Treasury, 83 M.S.P.R. 117, ¶ 6 n.2 (1999) (finding no abuse of discretion in the administrative judge’s failure to grant joinder), aff’d per curiam, 232 F.3d 912 (Fed. Cir. 2000) (Table). ¶37 Additionally, the appellant appears to argue that she was not given sufficient notice to object to the administrative judge’s decision to sever the appeals because she first learned of the severance in the initial decision.12 PFR File, Tab 1 at 4-5. Assuming, without deciding, that the administrative judge erred in failing to provide prior notice, the appellant has failed to demonstrate how she was harmed. An administrative judge’s procedural error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). The jurisdictional issue in the instant appeal is unaffected by its joinder with or severance from the appellant’s appeal of her separation. ¶38 The appellant also appears to assert that the administrative judge decided to sever her appeals and dismiss the instant appeal after she complained to the 12 The appellant similarly appears to assert that she received the email notification that her appeal was severed 48 hours after it was issued. PFR File, Tab 1 at 4-5, 14. She also asserts that the way in which her private email provider displayed emails in her inbox caused her to overlook some of the Board’s emails. Id. at 14. Throughout this appeal, the appellant has been a registered e-filer. IAF, Tab 1 at 2. As such, she has an obligation to monitor case activity in the Board’s e-Appeal Online system, and the initial decision is deemed to have been served on her on the date it was issued. 5 C.F.R. §§ 1201.14(j)(3), (m)(2). Her arguments regarding her receipt of automated email notifications from e-Appeal Online do not demonstrate any error by the administrative judge or the Board. 24 Department of Justice’s Office of Professional Responsibility regarding the administrative judge’s “intentional delay of Appellant’s due process.” PFR File, Tab 1 at 6, Tab 2 at 25-26. In making a claim of bias against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 29 (2015). An administrative judge’s conduct during the course of a proceeding warrants a new adjudication only if her comments or actions evidence a deep-seated favoritism or antagonism that would make fair judgment impossible. Id. We find that the appellant’s allegations of bias do not meet this standard. The mere fact that the administrative judge ruled against a party does not establish bias. Id. ¶39 The appellant further contends that the administrative judge did not meet the Board’s 120-day time limit for issuing an initial decision and incorrectly stated that the agency placed her on a performance improvement plan when it actually placed her on a work improvement plan.13 PFR File, Tab 1 at 4, 8-9, 12. 13 The appellant also appears to challenge the administrative judge’s determination that she did not appeal the denial of a WIGI. PFR File, Tab 1 at 6. She cites to locations in the record purportedly reflecting that she raised two WIGI denials, one in July 2017, and another in July 2018, and appears to allege she was denied a third WIGI in 2019. Id. (citing IAF, Tab 1 at 9-10, Tab 14 at 7-8); IAF, Tab 11 at 37-38. Although the administrative judge acknowledged that the appellant raised a WIGI denial as an alleged personnel action in this IRA appeal, she observed that the appellant did not otherwise seek to appeal the denial. ID at 4 n.2. We discern no error by the administrative judge in this regard. When an appellant raises a claim that may fall within the Board’s jurisdiction, the Board must provide explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The record contains no records of WIGI denials in 2018 or 2019. As to the July 2017 WIGI denial, the agency issued a final decision to withhold the appellant’s WIGI on August 22, 2017, and notified her of her right to appeal that action to the Board within 30 days. IAF, Tab 11 at 28-29. The appellant filed the instant appeal approximately 11 months later. In her initial appeal, the appellant contested at least 30 alleged personnel actions since 2015, including two WIGI denials. IAF, Tab 1 at 7-10. Thus, read in context, we agree with the administrative judge that the appellant raised her WIGI denials as alleged personnel 25 These arguments are without merit. The Board’s general practice is to issue an initial decision within 120 days of the filing of the appeal. McCollum v. Department of Veterans Affairs, 75 M.S.P.R. 449, 462 (1997). This time period is a yardstick that the Board relies on to evaluate its administrative judges and its rate of expeditiously processing appeals. Milner v. Department of Justice, 87 M.S.P.R. 660, ¶ 9 (2001). Although the administrative judge issued the initial decision 8 months beyond the 120-day standard, compare IAF, Tab 1 at 1, with ID at 1, the appellant has not shown that the administrative judge was biased against her or otherwise committed reversible error in this regard. See McCollum, 75 M.S.P.R. at 462; Sanborn v. Department of the Navy, 15 M.S.P.R. 553, 554 (1983). Further, the nomenclature used by the administrative judge to address the appellant’s performance or work improvement plan is not relevant to the jurisdictional issue. ¶40 The appellant appears to reiterate a claim of sexual harassment that she raised below. PFR File, Tab 2 at 21-22, Tab 14 at 10-11; IAF, Tab 1 at 8, 14. This claim does not bring her appeal within the Board’s IRA jurisdiction. Discrimination claims do not provide the Board with an independent source of jurisdiction. Wooten v. Department of Veterans Affairs, 102 M.S.P.R. 131, ¶ 11 (2006). Further, the Board lacks the authority to decide, in conjunction with an IRA appeal, the merits of an appellant’s allegation of prohibited discrimination. Newcastle v. Department of the Treasury, 94 M.S.P.R. 242, ¶ 12 (2003). Therefore, the appellant’s discrimination claim does not change the outcome in this appeal. actions in this IRA appeal and not as otherwise appealable actions. To the extent that the appellant is now attempting to appeal the denials of WIGIs as separate matters under 5 U.S.C. § 5335(c), she may file a Board appeal challenging those actions. She will need to show that such an appeal is timely filed or that good cause exists for any delay in filing. See Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980); 5 C.F.R. § 1201.22(b). 26 ¶41 Finally, the appellant claims that: the administrative judge failed to rule on her request that he ask the Office of Special Counsel (OSC) for an injunction against EOP; she has new evidence concerning her health condition; and the agency’s attorneys engaged in misconduct. PFR File, Tab 1 at 5, 12, Tab 2 at 24; IAF, Tab 1 at 14-15. Although the Board may rule on an appellant’s request to stay an employing agency’s personnel action, the appellant has not shown that she has met the criteria for the Board to seek a stay or injunction on her behalf. 5 C.F.R. §§ 1209.8-1209.10. The appellant’s medical condition and any alleged misconduct by the agency’s attorneys are not relevant to the jurisdictional issue, and do not warrant a different result in this case. ¶42 Having found that OA is an “agency” for purposes of an IRA appeal and that the appellant is an “employee” in a “covered position,” the remaining jurisdictional questions in this case include whether the appellant has exhausted her remedy with OSC and made nonfrivolous allegations that she made a protected disclosure or engaged in protected activity that was a contributing factor in a personnel action. See Graves, 123 M.S.P.R. 434, ¶ 12. The administrative judge shall address these questions on remand. If the appellant establishes Board jurisdiction over this IRA appeal, the administrative judge shall adjudicate the merits of the appeal. 27 ORDER ¶43 Accordingly, we remand this case for further adjudication consistent with this Opinion and Order, including the hearing the appellant requested. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/MALONEY_PEGGY_A_DC_1221_19_0677_W_1_OPINION_AND_ORDER_1947928.pdf
07-29-2022	2022 MSPB 24	Le'China Spivey	https://www.mspb.gov/decisions/precedential/SPIVEY_LECHINA_N_AT_1221_17_0340_W_1_OPINION_AND_ORDER_1946662.pdf	Department of Justice	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 24 Docket No. AT-1221-17-0340-W-1 Le’China N. Spivey, Appellant, v. Department of Justice, Agency. July 29, 2022 Le’China N. Spivey, Ocala, Florida, pro se. Kara Berlin, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member 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 because she failed to nonfrivolously allege that she suffered a personnel action. For the reasons discussed below, we DENY the appellant’s petition for review and AFFIRM the initial decision. BACKGROUND ¶2 The appellant filed an IRA appeal alleging that the agency accused her of wrongdoing and subjected her to an investigation in reprisal for making a 2 protected disclosure and engaging in other protected activity. Initial Appeal File (IAF), Tab 1 at 4. In particular, she alleged that, on December 4, 2015, she reported that a dog handler had violated standard operating procedures by not having his dog on a leash. Id.; IAF, Tab 2 at 25-27. Following her alleged protected disclosure, the agency conducted an investigation concerning allegations that she provided false information other than during an official investigation and/or lacked candor in connection with her December 4, 2015 report. IAF, Tab 2 at 28, 51, 90. By letter dated May 9, 2016, the agency informed the appellant that it had concluded that she lacked candor but that it would not take any action against her. Id. at 35. On May 18, 2016, the agency again informed her in writing that no action would be taken against her and that no disciplinary file existed. IAF, Tab 1 at 11, 63. ¶3 On or about June 11, 2016, the appellant filed a complaint with the Office of Special Counsel (OSC), alleging that the agency’s actions constituted reprisal for her protected disclosure and protected activity. Id. at 8, 15. On October 25, 2016, in response to the appellant’s request for information, the agency provided her written notice that no disciplinary file existed regarding the allegations against her and, as she was previously notified, the disciplinary process was never initiated. Id. at 15-16, 66. On November 3, 2016, while the appellant’s complaint was pending with OSC but before she filed her IRA appeal, the agency issued a letter notifying her that it had concluded its investigation, found that the allegation of providing a false statement other than during an official investigation was not substantiated, and closed the case. IAF, Tab 2 at 43. On January 18, 2017, OSC closed its investigation and notified the appellant of her right to file an appeal with the Board. IAF, Tab 1 at 8. On March 10, 2017, the appellant timely filed this IRA appeal. IAF, Tab 1. ¶4 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID). The administrative judge found that the appellant 3 failed to nonfrivolously allege that she was subjected to a personnel action. ID at 5. The administrative judge noted, among other things, that the agency ultimately closed its investigation without taking any disciplinary action. ID at 3, 5. The administrative judge further found that the investigation did not meet the definition of a personnel action because it did not result in any other personnel action taken against the appellant. ID at 5. In particular, she found that the appellant failed to nonfrivolously allege that she was subjected to a significant change in working conditions as a result of the investigation and that its effect on her working conditions was minimal. Id. The appellant has filed a petition for review, to which the agency has not responded. Petition for Review (PFR) File, Tab 1. ANALYSIS The administrative judge properly found that the appellant failed to nonfrivolously allege that she suffered a personnel action as a result of the agency’s allegations that she engaged in wrongdoing. ¶5 To establish the Board’s jurisdiction over an IRA appeal, an appellant must have exhausted her administrative remedies before OSC and make nonfrivolous allegations of the following: (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 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, or threaten to take or fail to take, a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1)1; Salerno v. Department of 1 During the pendency of this appeal, the National Defense Authorization Act (NDAA) for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5 of the United States Code. The Board lacks jurisdiction over this appeal under both pre- and post-NDAA law. Among other things, the NDAA amended 5 U.S.C. § 1214(i) to allow OSC to petition the Board for corrective action concerning damages incurred by an employee due to an agency’s investigation of the employee if it was commenced, 4 the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). ¶6 “Personnel actions” are defined as follows: (i) appointments; (ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements; (vi) restorations; (vii) reemployments; (viii) performance evaluations under 5 U.S.C. chapter 43 or under title 38; (ix) decisions regarding pay, benefits, or awards, or involving education or training if it reasonably may be expected to lead to an appointment, promotion, performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing or examination; (xi) implementations or enforcements of any nondisclosure policy, form, or agreement; and (xii) any other significant changes in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A). ¶7 Often, a “personnel action” in the context of an IRA appeal takes the form of a proposal or decision to impose discipline for a sustained charge of misconduct. See, e.g., Bacas v. Department of the Army, 99 M.S.P.R. 464, ¶¶ 2, 5 (2005) (finding that an agency’s decision to propose the appellant’s removal based on charges of insubordination, creating a disturbance in the workplace, false statements, and inability to work was a covered personnel action under 5 U.S.C. § 2302(a)(2)(A)); Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶¶ 2, 12 (2003) (finding that a proposed and effected removal based on charges of misuse of Government property, unprofessional behavior, and making misrepresentations during an official investigation constituted personnel actions), aff’d, 97 F. App’x 322 (Fed. Cir. 2004). Absent any proposed disciplinary action, however, the mere threat of disciplinary action also can amount to a personnel expanded, or extended in retaliation for protected whistleblower activity. NDAA, § 1097(c)(4), 131 Stat. at 1619. Here, however, OSC has not petitioned the Board for such relief. 5 action. See 5 U.S.C. § 2302(b)(8)-(9); Hoback v. Department of the Treasury, 86 M.S.P.R. 425, ¶¶ 9-10 (2000) (clarifying that a threat of discipline must be of a covered personnel action); 5 C.F.R. §§ 1209.2(a), 1209.6(a)(5)(i). ¶8 For example, in Gergick v. General Services Administration, 43 M.S.P.R. 651, 654 (1990), an agency investigation resulted in a record of inquiry in which the agency notified the appellant that it appeared that he had violated the agency’s standards of acceptable conduct or behavior, which could result in disciplinary action. The Board found that the record of inquiry amounted to a threat to take a personnel action. Gergick, 43 M.S.P.R. at 656-57. The Board acknowledged that the record of inquiry did not include a statement that disciplinary action was being proposed and did not include a specific reference to a particular kind of discipline that may be imposed. Id. The Board found, however, that the language in the record of inquiry nonetheless served as notice that disciplinary action was possible. Id. at 657. The Board further highlighted that the likelihood of discipline was not insignificant given that the record of inquiry was issued only after the agency had conducted an investigation of the appellant’s activities and had compiled a substantial file. Id. ¶9 Under the circumstances here, we agree with the administrative judge that the appellant failed to nonfrivolously allege2 that she suffered a personnel action in connection with the agency’s allegations that she engaged in wrongdoing. The record reflects that the agency did not take or propose to take any disciplinary action as a result of such allegations. IAF, Tab 1 at 59, 63, 66, Tab 2 at 43. Further, we find that the appellant has not made a nonfrivolous allegation that the agency threatened to take any disciplinary action against her. In contrast to Gergick, the agency here provided written notice to the appellant that no action would be taken as a result of the findings of the investigation. IAF, Tab 1 at 59, 2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 6 63, 66. We find that an allegation of wrongdoing alone, without any ensuing disciplinary or adverse action, or threat of disciplinary or adverse action, does not constitute a personnel action. The administrative judge properly found that the appellant failed to nonfrivolously allege that she was subjected to a personnel action as a result of the agency’s investigation. ¶10 An investigation into an allegation of misconduct is not a personnel action per se. Sistek v. Department of Veterans Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020) (concluding that “retaliatory investigations, in and of themselves, do not qualify as personnel actions” under the whistleblower protection statutory scheme); see 5 U.S.C. § 2302(a)(2)(A). As explained in the legislative history of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465: [A]gency investigations of employees are not explicitly covered under the statutory definition of a “personnel action.” Instead, such investigations come within that definition only if they result in a significant change in job duties, responsibilities, or working conditions or have effects that otherwise fit within one of the items listed under the statutory definition of “personnel action.” S. Rep. No. 112-155, at 20 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 608. Further, the Board will consider evidence of the conduct of an agency investigation when it is so closely related to a personnel action that it could have been pretext for gathering evidence to use to retaliate against an employee for whistleblowing. See, e.g., Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 7 (2007); Russell v. Department of Justice, 76 M.S.P.R. 317, 323-24 (1997); Geyer v. Department of Justice, 70 M.S.P.R. 682, 688, aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). ¶11 Regarding a significant change in job duties, responsibilities, or working conditions, the Board has held that only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities will be 7 found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. In Skarada, the Board found that the appellant’s allegations that his chain of command harassed him and subjected him to a hostile work environment by, among other things, excluding him from meetings and conversations, subjecting him to multiple investigations, accusing him of “fabricating data” and of a Privacy Act violation, refusing his request for a review of his position for possible upgrade, yelling at him on three occasions, and failing to provide him the support and guidance needed to successfully perform his duties, when considered cumulatively, constituted nonfrivolous allegations of a significant change in his working conditions. Id., ¶ 18. However, the Board specifically found that the appellant failed to nonfrivolously allege that the investigations themselves were covered personnel actions because he did not identify any specific personnel actions associated with them. Id., ¶ 18 n.4. ¶12 Here, we agree with the administrative judge that the appellant’s allegation that she was subjected to an agency investigation fails to amount to a nonfrivolous allegation that she was subjected to a personnel action. As discussed above, an investigation itself is not a personnel action under 5 U.S.C. § 2302(a)(2)(A). Indeed, we agree with the principle, explained by the agency here in its communication to the appellant, that, to maintain the integrity of the working environment, an employer should thoroughly investigate allegations of possible employee wrongdoing. IAF, Tab 2 at 43. The investigation here did not result in any proposal of disciplinary or corrective action, the appellant’s detail, transfer, or reassignment, or any other personnel action identified in 5 U.S.C. § 2302(a)(2)(A). We find no allegations of fact that, if proven, could establish that the investigation amounted to a threat to take a personnel action or was pretext for gathering evidence to use to retaliate against the appellant for her alleged protected disclosure. See, e.g., Miller v. Department of Justice, 842 F.3d 1252, 1254-56 (Fed. Cir. 2016) (analyzing the appellant’s claim that an agency 8 investigation stemming from his protected disclosures that resulted in his reassignment constituted reprisal). ¶13 Further, we agree with the administrative judge that the appellant failed to nonfrivolously allege facts that could prove that the investigation amounted to a significant change in working conditions.3 ID at 5. The appellant offered no allegations or evidence concerning any practical or significant effects that the investigation had on the overall nature and quality of her working conditions, duties, or responsibilities. Rather, she alleged that she participated in an interview and prepared an affidavit during the investigation. IAF, Tab 1 at 9. We find these allegations, if proven, do not amount to nonfrivolous allegations that she was subjected to a significant change in working conditions. See Sistek, 955 F.3d at 955-56 (finding that the appellant’s assertions describing a routine investigation that resulted in a letter of reprimand did not rise to the level of a significant change in working conditions such that it would qualify as a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii)). ¶14 On review, the appellant contends that the administrative judge erred in finding that the effect of the agency’s investigation on her was minimal and, thus, did not amount to a significant change in working conditions. PFR File, Tab 1 at 4. For the first time, she argues that the investigation itself amounted to a significant change in working conditions because, as a result of it, she was hospitalized for 7 days, remained out of work for an additional 36 days, exhausted her leave, had to take leave without pay, and had to apply for the voluntary leave transfer program. Id. at 4-5. She further argues for the first time on review that, during the investigation, she was hindered from upward mobility and lost out on employment opportunities, such as being transferred to another 3 The appellant also did not identify any agency actions beyond the investigation and allegations of wrongdoing as contributing to her alleged significant change in working conditions. 9 institution or being promoted. Id. at 7. With her petition, she submits various documents, including a list of job vacancies to which she applied but was not selected, a list of days on which she was unable to attend work between December 1, 2015, and April 20, 2017, and various leave and medical documents. Id. at 10-33. ¶15 The Board may consider new and material evidence or legal argument on review if, despite the party’s due diligence, it was not available when the record closed. 5 C.F.R. § 1201.115(d). The appellant has not shown that her newly submitted documents, or the information contained in them, were previously unavailable or that her arguments or evidence are material to the outcome of this appeal. The documents contained in the appellant’s petition for review are dated before the close of the record below and, thus, are not new. For example, the appellant submits her voluntary leave transfer form dated January 24, 2017, medical documentation dated February 1 and 7, 2017, and medical invoices dated between January 13 and February 23, 2017. PFR File, Tab 1 at 22‑25, 30-33. Her new arguments also are not material because they do not amount to nonfrivolous allegations that she was subjected to a significant change in working conditions and, thus, fail to show error in the administrative judge’s finding that she failed to make a nonfrivolous allegation that she was subjected to a personnel action. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). Accordingly, we affirm the initial decision, dismissing the appeal for lack of jurisdiction. ORDER ¶16 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). 10 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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: 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. 11 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 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 12 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 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 13 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. 14 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SPIVEY_LECHINA_N_AT_1221_17_0340_W_1_OPINION_AND_ORDER_1946662.pdf
07-22-2022	2022 MSPB 23	Timothy Schultz	https://www.mspb.gov/decisions/precedential/SCHULTZ_TIMOTHY_M_CH_3330_17_0162_I_1_OPINION_AND_ORDER_1944682.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 23 Docket No. CH-3330-17-0162-I-1 Timothy M. Schultz, Appellant, v. Department of Veterans Affairs, Agency. July 22, 2022 Christopher C. Fry, Dubuque, Iowa, for the appellant. Gina M. Ozelie, Milwaukee, Wisconsin, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA). For the reasons set forth below, we GRANT the petition for review, VACATE the initial decision, and ORDER corrective action. BACKGROUND ¶2 The appellant is a veteran entitled to a 10-point preference based on his service-connected disabilities. Initial Appeal File (IAF), Tab 5 at 75-76. On 2 July 15, 2016, the agency issued Vacancy Announcement IC-16-339-JRS- 1747909-BU for a Medical Support Assistant position, GS-0679-03/05, at the Community Based Outpatient Clinic (CBOC) in Dubuque, Iowa. Id. at 139. The appellant applied for the position but was not selected. Id. at 69, 118. ¶3 On November 14, 2016, the appellant timely filed a veterans’ preference complaint with the Department of Labor (DOL) regarding the nonselection. IAF, Tab 1 at 6-7. In response to his complaint, the agency acknowledged that the appellant had applied for the position, that it had selected another candidate, and that it had violated the appellant’s veterans’ preference rights in the process. IAF, Tab 5 at 69. As a remedy, the agency reported that it had placed the appellant on a priority placement list for 120 days for the Dubuque CBOC and that it had provided its human resources staff with additional training about veterans’ preference and changed its staffing processes. Id. ¶4 In response, the DOL investigator assigned to the case informed the agency that placing the appellant on a priority certification list for 120 days was not a remedy for violating veterans’ preference laws. Id. at 65. Rather, he explained that the required remedy included reannouncing the position to allow the appellant to compete for the position while being afforded his veterans’ preference rights or hiring the appellant to a comparable GS-5 level position at the Dubuque CBOC. Id. The investigator also determined that the appellant’s veterans’ preference rights were violated and that his case had merit. Id. at 66. As a result, he requested that the agency reexamine the appellant’s application and provide him consideration for the position advertised under Vacancy Announcement IC-16-339-JRS-1747909-BU as a resolution to the complaint. Id. The agency responded to the DOL investigator by stating that it had canceled the previous vacancy announcement and restored the selected employee to his previous position within the organization and that it would be announcing the position under a new vacancy announcement. Id. at 56-59. The agency notified 3 the appellant via email that it had canceled the vacancy announcement and that the position would be reannounced. Id. at 18. ¶5 On December 23, 2016, the agency issued new Vacancy Announcement IC-17-162-JRS-1881799-BU for a Medical Support Assistant position, GS-0679-03/05, at the Dubuque CBOC. Id. at 12. The appellant did not apply under the new vacancy announcement. Id. at 10. On December 29, 2016, the DOL investigator informed the agency that the appellant’s veterans’ preference claim had been found to have merit and that the appellant had elected to pursue the complaint directly with the Board. Id. at 11. This appeal followed. IAF, Tab 1. ¶6 The administrative judge advised the appellant of his burden of proving his VEOA claim. IAF, Tab 3. After holding the requested hearing telephonically, the administrative judge issued a decision denying the appellant’s request for corrective action. IAF, Tab 19, Initial Decision (ID) at 1-2. He found that the agency conceded that it had violated the appellant’s veterans’ preference rights in conjunction with the original vacancy announcement. ID at 6. Nevertheless, he found that the appellant failed to show that the agency’s decision to reannounce the position violated his veterans’ preference rights. ID at 8. He found no merit to the appellant’s argument that the sole remedy for curing the agency’s violation under the original announcement was to offer him the position, concluding that the statute only entitled him to consideration, not selection. Id. He further found that the reannouncement of the position provided equal advantages to all veterans who applied under the first vacancy and fully comported with the legal requirements necessary to reconstruct the selection process. ID at 8-9. ¶7 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. On review, he acknowledges that a proper remedy for the agency’s violation of his veterans’ preference rights would not include a guarantee that the agency select him for the position. Id. at 5. Rather, he argues that the agency’s decision to reannounce the vacancy did not constitute a proper reconstruction of 4 the selection because it was not based on the same circumstances surrounding the original selection. Id. The agency has filed a response in opposition. PFR File, Tab 3. ANALYSIS The agency’s reannouncement of the original vacancy does not constitute a proper reconstruction under veterans’ preference laws. ¶8 The agency concedes that it violated the appellant’s veterans’ preference rights when it considered his application under Vacancy Announcement IC-16-339-JRS-1747909-BU. IAF, Tab 5 at 69. It is not clear, however, whether the appellant would have been selected absent the violation. Thus, the proper remedy under VEOA is to reconstruct the selection process for the position. See Phillips v. Department of the Navy, 114 M.S.P.R. 19, ¶ 21 (2010); Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 18 (2006); see also Marshall v. Department of Health & Human Services, 587 F.3d 1310, 1316 (Fed. Cir. 2009) (“[R]econstruction may be an appropriate way to comply in situations where it is unknown whether a veteran would have been selected for a position.”); Kirkendall v. Department of the Army, 573 F.3d 1318, 1325 (Fed. Cir. 2009) (finding that “an offer of prospective relief, such as priority consideration for a future job opening,” was insufficient to remedy the agency’s failure to credit the appellant’s military experience as part of his application). To properly reconstruct a selection, an agency must conduct an actual selection process based on the same circumstances surrounding the original faulty selection. Russell v. Department of Health & Human Services, 120 M.S.P.R. 42, ¶ 13 (2013). This includes taking the original selectee out of the position, conducting and evaluating interviews so that they are meaningfully comparable with the original selectee’s interview, and filling the same number of vacancies as before. Id. ¶9 Here, although the agency attempted to comply with one of the remedies proffered by the DOL investigator, it did not conduct a selection process based on the same circumstances surrounding the original selection and, therefore, it never 5 remedied its original faulty selection process. Accordingly, we find that the agency’s efforts to remedy its violation fell short of the law’s requirements.1 See Phillips, 114 M.S.P.R. 19, ¶ 21. ORDER ¶10 We ORDER the agency to reconstruct the hiring process for Vacancy Announcement IC-16-339-JRS-1747909-BU consistent with this Opinion and Order. The agency must complete this action no later than 30 days after the date of this decision. ¶11 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶12 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). ¶13 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). 1 Even if DOL had found that the agency’s reannouncement of the vacancy was a sufficient remedy under VEOA, which it did not, the Board has held that Congress did not intend for DOL to have the final word as to what constitutes an appropriate remedy for a violation of veterans’ preference rights. IAF, Tab 5 at 11; see Gingery v. Department of the Treasury, 110 M.S.P.R. 83, ¶ 17 (2008). 6 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 (U.S.C.), section 3330c(b). The regulations may be found at 5 C.F.R. §§ 1201.202, 1201.203, and 1208.25. If you believe you meet these requirements, you must file a motion for attorney fees 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. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST DAMAGES You may be entitled to be compensated by the agency for any loss of wages or benefits you suffered because of the violation of your veterans’ preference rights. 5 U.S.C. § 3330c(a); 5 C.F.R. § 1208.25(a). If you are entitled to such compensation, and the violation is found to be willful, the Board has the authority to order the agency to pay an amount equal to back pay as liquidated damages. 5 U.S.C. § 3330c(a); 5 C.F.R. § 1208.25(a). You may file a petition seeking compensation for lost wages and benefits or damages with the office that issued the initial decision on your appeal WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. NOTICE OF APPEAL RIGHTS2 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 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. 7 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: 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. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 9 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 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 10 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. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SCHULTZ_TIMOTHY_M_CH_3330_17_0162_I_1_OPINION_AND_ORDER_1944682.pdf	Issuance Date: July 22, 2022 Appeal Type: Veterans Employment Opportunities Act (VEOA) Veterans’ Preference The appellant, a 10-point preference-eligible veteran, applied for a vacant Medical Support Assistant position at the agency’s Community Based Outpatient Clinic (CBOC) in Dubuque, Iowa. He was not selected, and he filed a complaint with the Department of Labor (DOL) regarding his nonselection. In response to the complaint, the agency acknowledged that it had violated the appellant’s preference veterans’ rights. The agency reported that, as a remedy, it had placed the appellant on a priority placement list for 120 days for the Dubuque CBOC. The DOL investigator informed the agency that placing the appellant on a priority certification list was not an adequate remedy, and requested that the agency reexamine the appellant’s application and provide him consideration for the position advertised under the original vacancy announcement. In response, the agency cancelled the original vacancy announcement, restored the selected employee to his previous position, and issued a new vacancy announcement for a Medical Support Assistant position at the Dubuque CBOC. The appellant did not apply under the new announcement, and he elected to pursue his complaint with the Board. Following a hearing, the administrative judge denied the appellant’s request for corrective action, finding that the agency’s reannouncement of the position was an adequate remedy for its admitted violation of the appellant’s veterans’ preference rights. The administrative judge found that the reannouncement provided equal advantages to all veterans who applied under the first vacancy and fully comported with the legal requirements necessary to reconstruct the selection process. The appellant filed a petition for review, arguing that the agency’s decision to reannounce the vacancy did not constitute a proper reconstruction of the selection because it was not based on the same circumstances surrounding the original selection. Holding: The Board found that the agency’s decision to reannounce the position did not constitute a proper reconstruction of the selection process. 1. The agency conceded that it violated the appellant’s veterans’ preference rights when it considered his application under the original vacancy announcement. However, it is unclear whether the appellant would have been selected absent the violation. Thus, the proper remedy under VEOA is to reconstruct the selection process for the position. 2. To properly reconstruct a selection, an agency must conduct an actual selection process based on the same circumstances surrounding the original faulty selection. This includes taking the original selectee out of the position, conducting and evaluating interviews so that they are meaningfully comparable with the original selectee’s interview, and filling the same number of vacancies as before. 3. In reannouncing the position, the agency did not conduct a selection process based on the same circumstances surrounding the original selection. Hence, the agency never remedied its faulty selection process, and its efforts to remedy its violation fell short of the law’s requirements. Accordingly, the Board ordered the agency to reconstruct the hiring process for the original vacancy announcement. COURT DECISIONS PRECEDENTIAL:
07-20-2022	2022 MSPB 22	Franklin Martin	https://www.mspb.gov/decisions/precedential/MARTIN_FRANKLIN_DC_0752_17_0281_I_1_OPINION_AND_ORDER_1943803.pdf	United States Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 22 Docket No. DC-0752-17-0281-I-1 Franklin Martin, Appellant, v. United States Postal Service, Agency. July 20, 2022 Franklin Martin, Durham, North Carolina, pro se. Brandon L. Truman, Charlotte, North Carolina, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his constructive suspension appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision, FIND that the Board has jurisdiction over this appeal, REVERSE the appellant’s constructive suspension, and FIND that he established his affirmative defense of disability discrimination. BACKGROUND ¶2 The appellant, a preference-eligible Window Clerk, left work after suffering an anxiety attack that triggered an asthma attack on December 15, 2016. Initial 2 Appeal File (IAF), Tab 1 at 2, Tab 8 at 11, Tab 14 at 13, Tab 20, Hearing Compact Disc (HCD) (testimony of the appellant). According to the appellant, he saw his primary care physician at her first availability on January 11, 2017, and then saw his clinical psychologist, for further evaluation and clearance to return to work. IAF, Tab 12 at 3; HCD (testimony of the appellant). The appellant believed, and the agency agreed, that he was required to submit medical documentation to the agency and receive the agency’s permission prior to returning to work. IAF, Tab 14 at 41; HCD (testimony of the appellant). On January 12, 2017, his psychologist faxed a note to the agency’s Occupational Health Nurse Administrator (OHNA) stating that the appellant’s health episode on December 15, 2016, was psychological in nature and that he had sufficiently recovered to return to work with no restrictions. IAF, Tab 4 at 11-12, Tab 14 at 39. After not hearing anything from the agency regarding his clearance to return to work, the appellant reported to his duty station on January 26, 2017, but a supervisor told him that he had to leave because he had not been cleared to return to work. IAF, Tab 1 at 6; HCD (testimony of the appellant). ¶3 On January 27, 2017, the appellant filed the instant Board appeal, alleging that the agency had constructively suspended him following an absence for medical reasons and discriminated against him on the basis of disability. IAF, Tab 1, Tab 11 at 2. On February 9, 2017, he received a February 6, 2017 letter from his station manager informing him that his psychologist’s return-to-work letter was deficient because it did not state whether the appellant was a threat to himself or others. IAF, Tab 8 at 3, 15. In a letter to the agency dated February 13, 2017, the appellant’s psychologist stated that the appellant was not a threat to himself or others. IAF, Tab 14 at 43. ¶4 The agency “concede[d]” that the Board had jurisdiction over this appeal, indicated that it would pay the appellant back pay and benefits, and moved that the appeal be stayed pending the payment of back pay and benefits, which would render the appeal moot. IAF, Tab 9. The administrative judge issued an order 3 advising the parties that the appeal would not be rendered moot by such payments because the appellant had raised an affirmative defense of disability discrimination and might be entitled to additional damages if he prevailed. IAF, Tab 11 at 3. In its prehearing submissions, the agency indicated that it returned the appellant to work and that it intended to provide him back pay for the period from January 12 through March 20, 2017. IAF, Tab 13 at 7, 20. ¶5 After holding the appellant’s requested hearing, the administrative judge issued an initial decision finding that, notwithstanding the agency’s conceding jurisdiction, the Board lacked jurisdiction over the appeal because the appellant failed to show that his absence from work was involuntary. IAF, Tab 21, Initial Decision (ID). In so finding, the administrative judge explained that the agency had a reasonable basis for requesting documentation regarding whether the appellant was a danger to himself or others because the station manager knew that his absence was related to a psychological condition, he engaged in an altercation with his supervisor before leaving work on December 15, 2016, and he previously was reassigned to his current duty station because he could not work with a particular supervisor. ID at 27. She further found that the agency timely notified the appellant of the requirement to provide the additional medical documentation and that, although the agency’s delay in returning the appellant to work was regrettable, it was not wrongful. ID at 28-32. Because she found that the appellant failed to establish jurisdiction over his appeal, she did not reach the appellant’s disability discrimination affirmative defense but noted that she would have found that he failed to establish it. ID at 32 n.2. ¶6 The appellant has filed a petition for review of the initial decision and has submitted, for the first time on review, a sworn statement from a coworker attesting that she, not the appellant, had a disagreement with the appellant’s supervisor on December 15, 2016. Petition for Review (PFR) File, Tab 1 at 12. The agency has responded in opposition to the petition for review. PFR File, Tab 3. 4 ANALYSIS ¶7 A preference-eligible Postal Service employee who has completed more than 1 year of current continuous service, like the appellant, may appeal a suspension, or a constructive suspension, of more than 14 days to the Board. 5 U.S.C. §§ 7511(a)(1)(B)(ii), 7512(2), 7513(d); see Rosario-Fabregas v. Merit Systems Protection Board, 833 F.3d 1342, 1345-46 (Fed. Cir. 2016) (recognizing the Board’s jurisdiction over constructive suspensions of more than 14 days); IAF, Tab 4 at 9. Although various fact patterns may give rise to an appealable constructive suspension, all constructive suspension claims are premised on the proposition that an absence that appears to be voluntary actually is not. Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 8 (2015), aff’d, 833 F.3d 1342. To demonstrate that the absence was not voluntary and is an actionable constructive suspension, an appellant must show the following: (1) he lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived him of that choice. Id. This analysis extends to situations in which the agency prevented the appellant’s return to work after an initially voluntary leave of absence. Id. ¶8 The appellant must prove jurisdiction in a constructive adverse action appeal by preponderant evidence.1 Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 8 (2014). The jurisdictional issue in such appeals is often dispositive. Id. That is, if the appellant fails to meet his burden of establishing by preponderant evidence that he was constructively suspended, the appeal will be dismissed because the Board lacks jurisdiction over appeals of employees’ voluntary actions. Id. Because such constructive suspensions are often effected without 1 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 5 notice, however, if the appellant establishes jurisdiction, the Board will reverse the agency’s action on due process grounds without proceeding to the merits. Id. ¶9 Here, once the appellant submitted a medical note on January 12, 2017, releasing him to return to work without restrictions, the agency’s decision not to permit him to return deprived him of a meaningful choice in the matter. See Romero v. U.S. Postal Service, 121 M.S.P.R. 606, ¶ 9 (2014). Thus, the appellant satisfied the first prong of the constructive suspension test. The administrative judge found, however, that he failed to prove that his absence resulted from the agency’s wrongful actions. ID at 26-32. ¶10 As explained by our reviewing court, “[w]hen an employee voluntarily takes leave, an agency may properly refuse to allow the employee to resume working if the employee does not satisfy the agency’s conditions for returning to work.” Rosario-Fabregas, 833 F.3d at 1347. The employee’s resulting absence is not a constructive suspension. Id. If, however, the agency’s conditions for returning to work are wrongful, then the employee’s absence following the agency’s refusal to allow him to return to work may be deemed a constructive suspension. See Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 8. ¶11 The Board adjudicates claims of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act. The standards under the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act of 2008, have been incorporated by reference into the Rehabilitation Act and the Board applies them to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 n.3 (2014). The ADA significantly restricts the medical inquiries that an agency may make of an employee. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 29 & n.6 (2014). Under the ADA, an agency may require a medical examination or make a medical inquiry regarding whether an employee “is an individual with a disability or as to the 6 nature or severity of the disability” only when such inquiry or examination “is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The Equal Employment Opportunity Commission (EEOC) has promulgated regulations implementing this statutory provision and issued enforcement guidance addressing the ADA’s limitations on disability-related inquiries and medical examinations during employment. 29 C.F.R. §§ 1630.13(b), 1630.14(c); EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the [ADA], Notice 915.002, 2000 WL 33407181 (July 27, 2000) (Enforcement Guidance). The Board generally defers to the EEOC on issues of substantive discrimination law, and we find that it is appropriate to do so here. See Evans v. Department of Homeland Security, 107 M.S.P.R. 484, ¶ 9 (2007). ¶12 Ordinarily, a disability-related inquiry or medical examination may be “job-related and consistent with business necessity” if an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Archerda, 121 M.S.P.R. 314, ¶ 30 (quoting Watkins v. U.S. Postal Service, EEOC Appeal No. 01981800, 2001 WL 1097442, at 2 (Aug. 29, 2001)); Enforcement Guidance, 2000 WL 33407181, at 6. The agency’s Employee and Labor Relations Manual (ELM) incorporates this standard. Specifically, ELM, section 865.1 provides that the agency can require employees returning from medically related absences to submit documentation to clear their return to work when it “has a reasonable belief, based upon reliable and objective information” that the employee may be unable to perform the essential functions of his position or may present a “direct threat to the health or safety of [himself] or others due to that medical condition.” IAF, Tab 14 at 7, 33-34. It is the agency’s burden to show that its disability-related inquiries and requests for examination are 7 job-related and consistent with business necessity. Archerda, 121 M.S.P.R. 314, ¶ 31. ¶13 Here, the agency did not allege that the appellant could not perform his essential job functions but argued that the station manager acted within her discretion under ELM, section 865.1, to require language regarding whether the appellant was a risk to himself or others because his absence was related to a mental health condition. IAF, Tab 13 at 6-7, Tab 14 at 5-8. In addition, the station manager testified that she requested the additional information because she heard that the appellant engaged in a “back-and-forth” with his supervisor just before he left work on December 15, 2016, and because she was aware that he could not work with a particular supervisor at another facility. HCD (testimony of the station manager). The administrative judge found that these reasons were sufficient to provide the agency with a reasonable basis to require the appellant to submit medical documentation containing the direct threat language. ID at 27. The appellant challenges these findings on review, arguing that he did not engage in an altercation before departing work on December 15, 2016, and that there was no evidence that he posed a direct threat to himself or others. PFR File, Tab 1 at 2‑5. For the reasons that follow, we agree with the appellant that the agency did not have a reasonable basis to request additional medical information and that the administrative judge erred in finding otherwise. ¶14 “Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r); see Archerda, 121 M.S.P.R. 314, ¶ 30. The Board has found that an agency had a reasonable belief that the employee presented a “direct threat” when he submitted a psychiatrist’s note less than 5 months earlier stating that he had experienced “aggressive episodes.” Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 17. The EEOC has concluded that an agency had a reasonable belief that an employee presented a direct threat to herself when she exhibited specific behavioral changes following an accident, 8 including violent outbursts and unsafe actions. O’Malley v. U.S. Postal Service, EEOC Appeal No. 01994945, 2002 WL 31232360, at 4-5 (Sept. 26, 2002). Further, an example in the EEOC’s Enforcement Guidance states that an agency could require medical documentation based on a reasonable belief that the employee posed a direct threat due to a medical condition when, prior to a period of absence for psychiatric treatment, the employee threatened several of his coworkers and was disciplined. Enforcement Guidance, 2000 WL 33407181, at 14. On the other hand, the Board and EEOC have found that an agency did not have a reasonable belief that an employee presented a direct threat due to a medical condition when there was no evidence in the record that he was physically violent or posed a significant risk of doing substantial harm. Archerda, 121 M.S.P.R. 314, ¶ 32; see Clark v. U.S. Postal Service, EEOC Appeal No. 01992682, 2001 WL 1526433, at 3-4 (Nov. 20, 2001). ¶15 Here, as noted above, the first reason cited by the agency in support of its decision to require the appellant to provide medical documentation containing the direct threat language was because his absence was related to a mental health condition. IAF, Tab 14 at 7-8. The station manager testified that she required the appellant to provide such documentation because the OHNA advised her that the January 12, 2017 letter indicated that his condition was psychological in nature. HCD (testimony of the station manager). The OHNA and a postmaster testified that the agency requires any employee whose absence from work is related to a mental health condition to provide a medical note specifically addressing whether he is a risk to himself or others before he may be returned to work. HCD (testimonies of the OHNA and postmaster). The mere fact that an employee’s absence is related to a mental health condition, however, does not constitute objective and reliable evidence establishing, or even suggesting, that he is likely to be violent or do harm. See EEOC Enforcement Guidance on the [ADA] and Psychiatric Disabilities, Notice 915.002, 1997 WL 34622315, 13-14 (Mar. 25, 1997) (explaining that a determination of whether an individual with a psychiatric 9 condition poses a direct threat must be based on “specific behavior” rather than solely on the individual’s treatment for a psychiatric disability). Therefore, we find that the agency’s reliance on the fact that the appellant’s absence was related to a mental health condition was not an acceptable basis to require additional medical documentation under the Rehabilitation Act. See Archerda, 121 M.S.P.R. 314, ¶ 30; IAF, Tab 14 at 33-34. ¶16 The station manager also testified that she required the appellant to submit additional medical documentation containing the direct threat language because she was aware from the Office of Workers’ Compensation Programs (OWCP) Forms CA-17 submitted by the appellant each month that he could not work at another facility with a particular supervisor. HCD (testimony of the station manager). The record contains a copy of one OWCP Duty Status Report, Form CA-17, signed by the appellant’s psychologist in January 2017, indicating that the appellant was diagnosed with an anxiety disorder, which OWCP accepted as a workplace injury with a date of injury of January 19, 2005. IAF, Tab 4 at 13. The form also indicates that the appellant was advised to resume work on April 23, 2012, and states the following: As described in previous CA-17 Forms submitted, [the appellant] may return to his [position] full time, providing that [he] does not work for, is not supervised by, and his work is neither directly nor indirectly influenced by [the supervisor] (The person I believe is primarily responsible for [his] work injury). Id. It is unclear from the record when the appellant experienced difficulties working with this particular supervisor or the circumstances surrounding those difficulties, although it appears to have been around the beginning of 2005. Id. Nevertheless, we find that the station manager’s knowledge that the appellant had unspecified difficulties with a particular supervisor and that working with her contributed to his anxiety disorder does not constitute objective evidence establishing, or even suggesting, that he is likely to be violent or do harm. Therefore, we find that the agency has not shown that its reliance on the 10 appellant’s difficulties with a particular supervisor a number of years earlier was an acceptable basis to require additional medical documentation under the Rehabilitation Act. See Archerda, 121 M.S.P.R. 314, ¶ 30; IAF, Tab 14 at 33-34. ¶17 Lastly, the station manager testified that she required the appellant to provide the direct threat information in his return-to-work letter because she heard that he was involved in an altercation with his supervisor before he left work on December 15, 2016. HCD (testimony of the station manager). Specifically, she testified that, although she had “no idea exactly what happened” because she was not there, the supervisor told her that he instructed the appellant to work at a different window, the appellant refused, and there was a “back-and- forth.” Id. The EEOC has held that a workplace argument in which an employee pushed her chest into a coworker’s chest did not provide the agency a reasonable basis to believe that the employee posed a direct threat to herself or others, even though her conduct may have been improper. Snowden v. Department of Veterans Affairs, EEOC Appeal No. 0120083032, 2011 WL 4343908, at 5 (Sept. 9, 2011). Here, the “back-and-forth” alleged by the station manager describes a mere verbal disagreement between the appellant and his supervisor, without any suggestion that the appellant behaved in a threatening or violent manner.2 HCD (testimony of the station manager). Therefore, we find that this was an improper basis to require the appellant to submit additional medical information under the Rehabilitation Act. See Archerda, 121 M.S.P.R. 314, ¶ 30; IAF, Tab 14 at 33-34. ¶18 In light of the foregoing, we find that the agency violated the Rehabilitation Act when it refused to permit the appellant to return to work and ordered him to 2 Because the statement that the appellant submitted on review from his coworker is unnecessary for us to reach our conclusion here, we do not consider it. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision); PFR File, Tab 1 at 13. 11 provide additional medical documentation that was not job-related or consistent with business necessity. See, e.g., Snowden, 2011 WL 4343908, at 5 (finding that the agency violated the Rehabilitation Act when it ordered the complainant to undergo a fitness-for-duty examination without proving it reasonably believed she was a direct threat or could not perform her essential job functions). Because the agency’s actions were wrongful, the agency constructively suspended the appellant when it refused to permit him to return to work, and the Board has jurisdiction over this appeal. See Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 8. Because the appellant did not receive due process for this constructive suspension, the action must be reversed. See Abbott, 121 M.S.P.R. 294, ¶ 8. Furthermore, because the agency violated the Rehabilitation Act, we find that the appellant has established his disability discrimination claim.3 See Evans, 107 M.S.P.R. 484, ¶ 16 (finding that the agency violated the Rehabilitation Act when it asked a potential employee to disclose the medications he was taking prior to extending a job offer to him and that this violation constituted discrimination based on disability); Clark, 2001 WL 1526433, at 3-5 (finding that the agency discriminated against the employee by requiring him to undergo a fitness-for-duty examination without showing that such examination was job-related or consistent with business necessity in violation of the Rehabilitation Act). ¶19 On review, the appellant reasserts his claims that the agency subjected him to status-based disability discrimination and failed to accommodate his medical conditions of anxiety disorder and asthma. PFR File, Tab 1 at 6-8, 10. The administrative judge found that the Board lacks jurisdiction over these claims 3 The ADA’s restrictions on disability-related inquiries and medical examinations apply to individuals both with and without disabilities. Archerda, 121 M.S.P.R. 314, ¶ 31. Therefore, the appellant is protected by these restrictions regardless of whether he qualifies as disabled within the meaning of the ADA. 12 and, alternatively, that the appellant failed to prove them. ID at 32 n.2. In light of our finding that the appellant proved Board jurisdiction over his constructive suspension, the Board has jurisdiction over these claims. However, we find it unnecessary to separately address them. We already have found the agency’s actions discriminatory, and therefore wrongful, based on its improper medical inquiry. Under the particular facts of this case, we discern no basis on which the appellant could seek additional damages for these claims, and thus decline to address these other theories of liability. See Cerge v. Department of Homeland Security, EEOC Request No. 0520080093, 2008 WL 559447, 2 (Feb. 20, 2008) (explaining that compensatory damages were available to a complainant who was sent to a fitness-for-duty examination that was not job-related or consistent with business necessity). Because we have found in the appellant’s favor on the issues of the constructive suspension and disability discrimination, we need not address the appellant’s remaining allegations of error by the administrative judge.4 See Coltrane v. Department of the Army, 25 M.S.P.R. 397, 403 n.9 (1984). ORDER ¶20 We ORDER the agency to cancel the appellant’s constructive suspension effective January 12 through March 20, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶21 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal 4 To the extent that, for the first time on review, the appellant asserts that the agency violated his return-to-work rights under 5 C.F.R. § 825.214, PFR File, Tab 1 at 9-10, we decline to consider this new argument on review, Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that 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). 13 Service Regulations, as appropriate, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶22 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and 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). ¶23 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). ¶24 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. ¶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). 14 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your compensatory damages, including pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. To be paid, you must meet the requirements set out at 42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. If you believe you meet these requirements, you must file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. 15 NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described 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: 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 16 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 17 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 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 18 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 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 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 19 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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-50's (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/MARTIN_FRANKLIN_DC_0752_17_0281_I_1_OPINION_AND_ORDER_1943803.pdf	Issuance Date: January 21, 2016 Appeal Type: Adverse Action by Agency Action Type: Suspension - Indefinite Mixed-case appeals Settlement agreements Suspensions – constructive and nonconstructive The parties entered into a settlement agreement that resolved the appellant’s EEO complaints. In pertinent part, the appellant agreed to retire effective July 2011, and the agency agreed to enhance its contributions to her retirement for the 3 previous years. However, in April 2012, the parties learned that OPM did not approve the enhanced retirement contributions. Therefore, in October 2012, the agency reinstated the appellant retroactive to July 2011. The agency designated the period between July 2011 and October 2012 as leave without pay (LWOP). After filing an EEO complaint, the appellant timely filed the instant appeal, in which sought back pay for the LWOP period, as well as alleging EEO reprisal and discrimination. The administrative judge dismissed the appeal without a hearing, finding that the Board lacked jurisdiction. He reasoned that the appellant was not constructively suspended between July 2011 and October 2012, because her decision to retire in July 2011 was knowing and voluntary. Holding: The Board granted the petition for review, reversed the initial decision, canceled the appellant’s July 2011 to October 2012 nonconstructive suspension, ordered the agency to pay back pay for this period, and remanded the appeal for adjudication of the appellant’s EEO reprisal and discrimination claims. 1. The Board found that the administrative judge erred in analyzing the LWOP period as a constructive suspension. The term “constructive suspension” is properly reserved for appeals where the appellant alleges that leave that appeared to be voluntary was not. Here, the leave was not even ostensibly voluntary. Therefore, the appellant suffered a nonconstructive suspension within the Board’s jurisdiction. 2. Because the agency suspended the appellant without an opportunity to be heard, it violated her Fifth Amendment due process rights, and the suspension could not be sustained. 3. Finally, because the suspension was an appealable action, the appellant was entitled to a decision on her EEO reprisal and discrimination claims. The Board remanded for the appellant to receive her requested hearing on these claims. COURT DECISIONS PRECEDENTIAL:
07-12-2022	2022 MSPB 21	Gary Thurman	https://www.mspb.gov/decisions/precedential/THURMAN_GARY_L_AT_0752_17_0162_I_1_OPINION_AND_ORDER_1941352.pdf	United States Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 21 Docket No. AT-0752-17-0162-I-1 Gary L. Thurman, Appellant, v. United States Postal Service, Agency. July 12, 2022 Harvey G. Orr, Riverdale, Georgia, for the appellant. Candace D. Embry, Landover, Maryland, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal based on a single charge of improper conduct. For the reasons discussed below, we DENY the petition for review and AFFIRM the initial decision. We also take this opportunity to revisit the Board’s decision in Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010), and similar cases, to clarify the factors the Board will consider in determining whether a previously raised affirmative defense has been effectively waived or abandoned by the appellant. 2 BACKGROUND ¶2 The agency removed the appellant from his position as a PS-4 Laborer Custodial based on a single charge of “improper conduct” following an investigation conducted by the U.S. Postal Inspection Service into two workplace incidents. Initial Appeal File (IAF), Tab 4 at 15-20, 27-30, 49-73. According to the agency’s charge, the appellant violated the agency’s Employee and Labor Relations Manual’s prohibition against violent and/or threatening behavior when he told a coworker that if his vehicle was towed from the agency parking lot again, he “would come into work and end up shooting someone out of revenge and anger.” Id. at 27. The agency also alleged that the appellant told the same coworker that he was having law enforcement follow her because of a verbal dispute the two had a year earlier and that the “only reason [he] didn’t have anything ‘bad’ happen to her was because she has children.” Id. According to the agency, the following day the appellant told the same coworker that he was having law enforcement follow and harass a supervisor’s son in retaliation for his vehicle being towed from the agency parking lot and that he would make sure that the supervisor’s son was “booked” for “Driving Under the Influence . . . and other traffic violations.” Id. ¶3 The appellant filed a Board appeal in which he asserted, among other things, that the evidence did not show that he engaged in the alleged misconduct. IAF, Tab 1 at 2. He also indicated on his appeal form that he was raising the affirmative defense of retaliation for prior protected activity, including his filing of a Board appeal challenging his placement on an emergency suspension for essentially the same conduct that formed the basis of the removal action.1 IAF, 1 The administrative judge dismissed the appellant’s previous appeal as settled. That decision became the final decision of the Board when neither party filed a petition for review. Thurman v. U.S. Postal Service, MSPB Docket No. AT-0752-16-0601-I-1, Initial Decision (Sept. 6, 2016). 3 Tab 1 at 2, Tab 4 at 104; Thurman v. U.S. Postal Service, MSPB Docket No. AT-0752-16-0601-I-1, Initial Decision (Sept. 6, 2016). ¶4 After holding the appellant’s requested hearing, the administrative judge found that the agency proved the improper conduct charge by preponderant evidence. IAF, Tab 14, Initial Decision (ID) at 3-7. The administrative judge also found that the agency established a nexus between the misconduct and the efficiency of the service, and that the penalty of removal was reasonable. ID at 7-8. He affirmed the removal action. ID at 9. ¶5 The appellant has filed a petition for review in which he argues, among other things, that he did not engage in the alleged misconduct, that the administrative judge erred in his credibility determinations, and that the employee to whom he allegedly made the statements possessed poor character, had attendance deficiencies, had made inconsistent statements about the alleged incidents, had been untruthful in the past, and committed perjury in her hearing testimony. Petition for Review (PFR) File, Tab 1 at 1-6. He also argues that the agency violated title VII of the Civil Rights Act of 1964 when it towed his vehicle but did not tow the vehicles of other employees and that the agency used his filing of grievances and discrimination complaints to show that he made threats, but that his past filings show that he resolved his problems through means other than threats.2 Id. at 7-8. The agency has filed a response to the petition for review. PFR File, Tab 3. 2 The appellant also argues on review that it is unclear if his parking in an unauthorized parking spot was a specification of misconduct. PFR File, Tab 1 at 7. To the extent he is arguing that his parking violations were inappropriately considered as a separate specification of the improper conduct charge, this argument is without merit. While the proposal letter does note that the appellant’s vehicle was towed for improper parking, this information was included in the agency’s narrative charge to provide context about the events that preceded the appellant’s statements that formed the basis of the improper conduct charge. IAF, Tab 4 at 27. 4 ANALYSIS The appellant has not shown error in the administrative judge’s credibility determinations and well-reasoned findings of fact and conclusions of law. ¶6 In sustaining the charged misconduct, the administrative judge thoroughly addressed the record evidence, including the hearing testimony concerning the contested conversations, and provided a detailed explanation for why he found the agency witness’s version of events more credible.3 ID at 5-7. The administrative judge based his findings in part on the witnesses’ demeanor. ID at 6. The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing, and may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016); Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161, ¶ 38 (2017). The appellant’s arguments on review regarding the credibility of the agency’s witness are insufficient to cause us to disturb the administrative judge’s well-reasoned findings. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 3 In making his credibility determinations, the administrative judge relied on the factors set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 5-7. In Hillen, the Board found that, in assessing a witness’s credibility, an administrative judge should consider the following factors: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. 35 M.S.P.R. at 458. 5 ¶7 The appellant argues for the first time on review that the agency engaged in “intentional discrimination in violation of title VII of the Civil Rights Act of 1964” by towing his vehicles, but not those of a number of other agency employees. PFR File, Tab 1 at 7-8. 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, 123 M.S.P.R. 245, ¶ 6; Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant has not explained why this argument could not have been raised before the administrative judge, and thus we need not consider it. In any event, the claim is unduly vague; the appellant does not identify which type of discrimination this action represented, and he provides no explanation for how this alleged discrimination related to his removal for improper conduct. Thus, the argument provides no basis to grant the appellant’s petition for review. See 5 C.F.R. § 1201.115(d). ¶8 Regarding the appellant’s argument that the agency used his history of filing grievances and discrimination complaints to show that he “must have made the threats as alleged,” the appellant similarly did not make this argument before the administrative judge, and therefore we need not consider it either. PFR File, Tab 1 at 8; see Clay, 123 M.S.P.R. 245, ¶ 6; Banks, 4 M.S.P.R. at 271. Additionally, the appellant mischaracterizes the agency’s reason for raising his history of filing grievances and equal employment opportunity (EEO) complaints. On cross-examination during the hearing, the agency asked the appellant about a series of EEO complaints he unsuccessfully filed against the agency and asked whether his failure to succeed in those complaints motivated him to make the alleged threatening statements. IAF, Tab 13, Hearing Compact Disc (HCD) (testimony of the appellant). Such an inquiry into the appellant’s potential motive is not impermissible, and accordingly, this argument also does not provide any basis for granting the petition for review. See 5 C.F.R. § 1201.115(d). 6 We overrule the holding in Wynn that the Board must always remand a case for consideration of an affirmative defense if an administrative judge has failed to comply with its requirements and now make clear that the Board will consider a number of relevant factors in determining whether an appellant’s apparent waiver or abandonment of a previously raised affirmative defense was effective. ¶9 We now turn to a matter that was not addressed in the appellant’s petition for review but that nonetheless requires our attention. As noted above, the appellant indicated on his appeal form that he was raising the affirmative defense of retaliation for prior protected activity, including filing a Board appeal.4 IAF, Tab 1 at 2. In an order summarizing the prehearing conference that took place on February 15, 2017, the administrative judge identified the issues presented on appeal and noted that, during the conference, the appellant’s representative indicated that the appellant was “raising no affirmative defenses.” IAF, Tab 9 at 2. The order also noted that the issues included in it were “to the exclusion of all others” (emphasis in original) and allowed either party to object to the summary, which neither party did. Id. at 1-2. The appellant did not discuss the prior Board appeal or his claim of retaliation for filing that appeal in any subsequent filing or during the hearing, and the administrative judge’s initial decision made no reference to the appellant’s prior Board appeal or to any potential affirmative defense. HCD; ID. Additionally, neither the appellant’s petition for review, nor the agency’s response, mentioned the prior Board appeal or a claim of retaliation for filing a prior appeal or the administrative judge’s handling of the appellant’s retaliation claim. PFR File, Tabs 1, 3. ¶10 In Wynn, 115 M.S.P.R. 146, ¶ 10, the Board held that when an appellant raises an affirmative defense, the administrative judge must address the affirmative defense in a close of record order or prehearing conference summary. 4 Although the appellant stated that his claim of retaliation included retaliation for filing a previous Board appeal, thus suggesting that retaliation for the prior Board appeal was not the only claim of retaliation he was raising, he did not identify another retaliatory act or another prior protected activity. IAF, Tab 1 at 2. 7 Additionally, the Board held that if an appellant expressed an intention to withdraw or abandon an affirmative defense, the administrative judge must, at a minimum, identify the affirmative defense, explain that the Board will no longer consider the affirmative defense in deciding the appeal, and provide the appellant with an opportunity to object to the withdrawal of the affirmative defense. Id. If an administrative judge failed to take the above steps in confirming an appellant’s withdrawal or abandonment of a previously raised affirmative defense, and neither the administrative judge’s orders nor the agency’s submissions provided the appellant with notice of the proper burdens and elements of proof for that affirmative defense, the Board determined that remand would be necessary. Id., ¶¶ 12-13. ¶11 Although not specifically stated in Wynn, a careful reading of that decision reveals that the appellant did not raise his affirmative defenses or the administrative judge’s handling of them in his petition for review. Id., ¶¶ 3, 5. Nevertheless, the Board in Wynn remanded the appeal with instructions for the administrative judge to address the appellant’s affirmative defenses. Id., ¶ 14. The Board followed the approach set forth in Wynn in Hall v. Department of Transportation, 119 M.S.P.R. 180 (2013), where again, even though there is no indication that the appellant raised several of his affirmative defenses or the administrative judge’s handling of them on petition for review, the Board remanded the appeal for adjudication of all of the appellant’s affirmative defenses, even the ones he did not raise on review. Id., ¶¶ 2-3, 6-7, 9. ¶12 Although the Board followed the approach set forth in Wynn in Hall, the Board has not been entirely consistent in its application of Wynn, and in a number of nonprecedential decisions issued after Wynn, the Board identified an administrative judge’s failure to provide the notice required by Wynn, but nonetheless declined to remand the case for continued consideration of the 8 affirmative defense claim.5 For example, in Brown v. Department of Defense, MSPB Docket No. SF-0752-15-0761-I-1, Final Order, ¶¶ 15-18 (Dec. 29, 2016), aff’d, 705 F. App’x 966 (Fed. Cir. 2017), the Board noted that the administrative judge failed to address the appellant’s due process affirmative defense and, citing Wynn, identified that failure as error. Id., ¶ 15. Nonetheless, the Board determined that remand was not necessary because the matter could be resolved on the undisputed record. Id., ¶¶ 15-18. Similarly, in Richard v. U.S. Postal Service, MSPB Docket No. DE-0752-12-0398-I-1, Final Order at 4-8 (July 14, 2014), the Board noted that the administrative judge failed to specifically inform the appellant that his affirmative defense of reprisal for the use of Family and Medical Leave Act protected leave would be considered waived unless he raised an objection to its exclusion from the prehearing conference summary. Id. at 6. Based on the administrative judge’s failure to inform Mr. Richard of his ability to object to the summary and of the consequence of failing to object, the Board found that his affirmative defense was not waived. Id. Nonetheless, the Board found that the record on the affirmative defense at issue in that case was sufficiently well developed to decide the question without a remand. Id. at 6-8. ¶13 There are also a significant number of nonprecedential decisions in which the appellant raised an affirmative defense in the proceedings before the administrative judge, the administrative judge failed to follow the instructions of Wynn, the appellant either did not raise the affirmative defense or the administrative judge’s failure to follow Wynn on review, and the Board did not address the matter in the final decision. For example, in Day v. Department of Homeland Security, the appellant originally asserted that he was filing claims under both the Uniformed Services Employment and Reemployment Rights Act 5 We are not citing the following nonprecedential decisions as precedent in support of our decision but rather to show that the Board has not been consistent in this area. See 5 C.F.R. § 1201.117(c)(2). 9 (USERRA) and the Veterans Employment Opportunities Act of 1998. Day v. Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, Initial Appeal File (Day IAF), Tab 1 at 4-9. The administrative judge did not address the USERRA claim in the Acknowledgment Order or the Close of Record Order and did not issue a separate jurisdictional order narrowing the scope of issues to be considered. See Day IAF, Tab 2 at 2; Tab 7. In the initial decision, the administrative judge did not identify or refer to the USERRA claim. Day v. Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, Initial Decision (Nov. 30, 2012). Although obedience to the holding in Wynn would have required remand for consideration of the appellant’s USERRA claim even though the appellant did not raise the claim in his petition for review, Day v. Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, Petition for Review File, Tab 1, the Board nonetheless issued a Final Order affirming the initial decision without any mention of the USERRA claim or of Wynn’s remand requirement. Day v. Department of Homeland Security, MSPB Docket No. PH-3330-13-0004-I-1, Final Order (Dec. 23, 2013). ¶14 Similarly, in Freeland v. Department of Defense, on the initial appeal form contesting his removal, the appellant checked the box identifying the affirmative defense of discrimination. Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1, Initial Appeal File (Freeland IAF), Tab 1 at 5. As in Day, the administrative judge did not provide the appellant with notice regarding his burden of proving the affirmative defense, did not address the affirmative defense in any close of record order or prehearing conference summary and order, and did not address it in his initial decision. See Freeland IAF, Tabs 2, 8, 13; Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1, Initial Decision (Mar. 15, 2012). Additionally, the appellant did not raise the matter in his petition for review. Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1, Petition for Review File, Tab 1. In the Board’s Final Order, it did not state that the discrimination affirmative defense 10 was waived and made no mention of the affirmative defense, or of Wynn. Freeland v. Department of Defense, MSPB Docket No. PH-0752-12-0072-I-1, Final Order (Jan. 22, 2013). ¶15 By obligating the Board on review to address apparently waived affirmative defenses sua sponte, Wynn also represented a significant departure from the cases that preceded it and upon which it purported to rely. In Erkins v. U.S. Postal Service, 108 M.S.P.R. 367, ¶¶ 5, 9 (2008), a case Wynn identified as “similar,” the Board remanded for adjudication of the appellant’s affirmative defenses when the appellant specifically raised the administrative judge’s failure to address his retaliation affirmative defense in his petition for review. Similarly, in Carlisle v. Department of Defense, 93 M.S.P.R. 280, ¶¶ 11-12 (2003), relied on in the Erkins decision, the Board remanded the case to the administrative judge for consideration of the appellant’s disability discrimination affirmative defense claim, concluding that, although the administrative judge adjudicated the claim, he improperly failed to consider evidence related thereto and failed to apprise the appellant of the applicable burdens for proving it. But, as in Erkins, the Board highlighted the fact that the appellant had specifically raised the affirmative defense claim below and preserved the issue by raising it again in his petition for review. Id., ¶ 11. ¶16 The inconsistent manner in which the Board has treated the requirements set forth in Wynn and the departure that Wynn represents from prior precedent leads us carefully to consider the wisdom of the inflexible approach articulated in that decision. Moreover, a rule that almost mechanically requires a remand in most situations in which an appellant raises an affirmative defense in his initial appeal and then makes little or no effort to pursue it further could easily result in a remand to address an affirmative defense that the appellant decided he did not want to pursue or wanted to pursue in another forum. Such meaningless process is not an efficient use of the Board’s limited adjudicatory resources, costs the parties needless time and expense, and delays closure of the Board appeal. For 11 example, in Iskander v. Department of the Navy, MSPB Docket No. DC-0752-11- 0090-I-1, Final Order at 5-7 (Dec. 20, 2011), the Board concluded that the administrative judge failed to address the appellant’s discrimination affirmative defense and, citing Wynn, issued an order remanding the case with instructions for the administrative judge to consider the affirmative defense, which was the only matter at issue on remand. On remand, the appellant withdrew her discrimination affirmative defense, stating that she intended to litigate her discrimination claim through the Equal Employment Opportunity Commission process, and the administrative judge issued a second initial decision that did little more than note the appellant’s withdrawal and adopt the findings of the first initial decision. Iskander v. Department of the Navy, MSPB Docket No. DC-0752-11-0090-B-1, Initial Decision at 2-3 (Jan. 18, 2012). Thus, the Board remand served no apparent purpose. ¶17 After careful consideration, we find that, to the extent Wynn held that, when an administrative judge has failed to comply with its requirements, the Board always must raise an affirmative defense waiver or abandonment issue sua sponte and remand the case for consideration of the affirmative defense, it is overruled.6 Instead, in determining whether an administrative judge erred in not addressing an appellant’s affirmative defenses such that remand is necessary, the Board will examine a number of factors that are instructive as to the ultimate question of whether an appellant demonstrated his intent to continue pursuing his affirmative defense, and whether he conveyed that intent after filing the initial appeal.7 6 Cases that followed the approach set forth in Wynn, such as Hall, 119 M.S.P.R. 180, are also overruled. 7 Nothing in our decision alters the requirement set forth in Wynn, 115 M.S.P.R. 146, ¶ 10, that administrative judges must, at a minimum, identify all affirmative defenses raised in an appeal in any close of record order or prehearing conference summary and order, explain that the Board will no longer consider an affirmative defense if an appellant expresses the intention to withdraw it, and give the appellant an opportunity to object to withdrawal of the affirmative defense. 12 ¶18 The factors articulated below are not exhaustive, and none of the individual factors identified will be dispositive in determining whether a particular appellant will be deemed to have waived or abandoned a previously identified affirmative defense. Instead, the applicability and weight of each factor should be determined on a case-by-case basis. Among the relevant factors are: (1) the thoroughness and clarity with which the appellant raised an affirmative defense; (2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below after initially raising it; (3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear; (4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review; (5) whether the appellant was represented during the course of the appeal before the administrative judge and on petition for review, and if not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board. We now apply the factors set forth above to the facts of the instant case. We are also mindful of Board and U.S. Court of Appeals for the Federal Circuit precedent noting that an appellant must be provided with notice of his burden in establishing Board jurisdiction over his claim, and nothing in our decision here alters that obligation. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010). Consistent with Burgess and its progeny, if the Board determines that an administrative judge’s abandonment or waiver determination was erroneous, and neither the initial decision nor the agency’s filings placed the appellant on notice of his burdens, a remand still will be necessary to provide the appellant with adequate notice of his burdens. See Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 8 (2007) (stating that an administrative judge’s failure to provide proper Burgess notice can be cured if the agency’s pleadings or the initial decision contain the required notice). 13 (1) The thoroughness and clarity with which the appellant raised his affirmative defense ¶19 On his appeal form, the appellant raised “an affirmative defense of retaliation for [] prior protected activity,” including, “filing of a Board appeal concerning his emergency placement suspension.” IAF, Tab 1 at 2. This is the only information the appellant provided related to his purported affirmative defense of retaliation for filing a prior Board appeal. Id. The appellant described the nature of his prior Board appeal as a challenge to his “emergency placement on suspension,” but he did not provide any additional information about the prior appeal or offer any explanation of how the agency’s later removal decision was taken in retaliation for his filing of that appeal. The only additional information in the record concerning the prior appeal was provided by the agency in its response to the instant appeal, in which it confirmed that the prior appeal was filed and was later resolved by settlement agreement. IAF, Tab 4 at 8-9. The appellant did not challenge this characterization in any subsequent filing or at the hearing, or offer to expand upon it. Such sparse information regarding the potential affirmative defense amounts to little more than a pro forma allegation of wrongdoing. E.g., Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, ¶¶ 31-32 (2007) (finding insufficient a bare allegation of gender discrimination unsupported by any factual assertions); Taylor v. U.S. Postal Service, 75 M.S.P.R. 322, 328 (1997) (determining that the appellant’s pro forma sex and race discrimination claims on petition for review were inadequate to show that the administrative judge erred in finding those claims unproven); cf. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 7 (2016) (setting forth examples of cases in which the Board distinguished between nonfrivolous and pro forma allegations and finding that mere conclusory pleadings are insufficient), aff’d per curiam, 679 F. App’x 1006 (Fed. Cir. 2017). The fact that the appellant failed to provide a thorough and clear explanation of his affirmative defense also supports a finding that he abandoned his claim. 14 (2) The degree to which the appellant continued to pursue his affirmative defense in the proceedings below after initially raising it ¶20 As previously discussed, on his appeal form the appellant stated that he was raising “an affirmative defense of retaliation for [] prior protected activity,” including “filing of a Board appeal concerning [the appellant’s] emergency placement suspension.” IAF, Tab 1 at 2. Following his initial filing, the appellant did not reference this purported affirmative defense at any point thereafter. The appellant’s silence on this point spanned his additional filings below, IAF, Tabs 7, 9, and the entirety of the hearing, HCD. The failure to mention the affirmative defense after the initial appeal suggests that the appellant no longer wished to pursue the claim. This factor supports a finding that the appellant abandoned his affirmative defense. (3) Whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when he was specifically afforded an opportunity to object and the consequences of his failure were made clear ¶21 As discussed above, following a February 15, 2017 prehearing conference, the administrative judge issued an order that identified witnesses, approved exhibits, and summarized all of the issues to be decided in the appellant’s case. IAF, Tab 9. The summary stated that, during the conference, the appellant’s representative “indicated that he was raising no affirmative defenses.” Id. at 2. The order allowed the parties to object to the content of the summary within 7 days and stated that a failure to object to an issue would preclude later challenge of that issue, including on petition for review. Id. at 1. Neither party objected to the content of the order, nor have they challenged its accuracy since its issuance. Thus, despite being afforded the opportunity to do so, the appellant did not object to the administrative judge’s prehearing conference summary stating that he was not raising an affirmative defense and that his failure to object to the content of the summary would preclude raising the issue at a later date. 15 Accordingly, this factor supports a finding that the appellant abandoned his affirmative defense. (4) Whether the appellant raised either his affirmative defense or the administrative judge’s processing of the affirmative defense claim in his petition for review ¶22 The Board’s regulations provide that “[t]he Board normally will consider only issues raised in a timely filed petition for review or cross petition for review.” 5 C.F.R. § 1201.115. This adjudicatory approach is consistent with the concept that the Board’s administrative judges are in the best position to, among other things, develop the record and simplify the issues and that the Board’s role is to address contentions of error. See 5 C.F.R. §§ 1201.41(b), 1201.115. The Board has consistently followed an approach of declining to address matters that were not raised on petition for review on matters other than affirmative defenses. In Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 6 n.4 (2016), for example, the Board found that, because the appellant did not contest the administrative judge’s finding that one of his disclosures was not protected and because neither party challenged the administrative judge’s findings regarding which contested actions constituted personnel actions covered by the whistleblower protection statutes, the Board would not consider the issues. Likewise, in Ferrin-Rodgers v. U.S. Postal Service, 115 M.S.P.R. 140, ¶ 4 n.3 (2010), the Board declined to address the administrative judge’s findings of a lack of jurisdiction over several of the appellant’s claims because the petition for review did not challenge the findings. Finally, in Cross v. Department of the Army, 89 M.S.P.R. 62, ¶ 7 n.8 (2001), the Board did not address whether the administrative judge properly found that the agency failed to prove a specification 16 because the agency did not allege error regarding the specification on review. Board precedent since its creation is replete with similar examples.8 ¶23 Seemingly, only in the realm of affirmative defenses has the Board strayed from the general practice of only addressing allegations of error raised on petition for review, and, while the affirmative defenses addressed in Wynn are important, we can discern no principled basis for the decision to treat these types of claims differently than other types of claims within the Board’s jurisdiction. In the instant case, then, the appellant’s failure to address his affirmative defense of retaliation for filing a prior Board appeal or the administrative judge’s handling of the affirmative defense claim in his petition for review supports a finding that the appellant intended to abandon the claim. 8 Similarly, several U.S. Courts of Appeals generally deem issues not raised on appeal to be abandoned. See, e.g., Butts v. Martin, 877 F.3d 571, 584 n.6 (5th Cir. 2017) (noting the general rule that issues and arguments not briefed on appeal are abandoned); Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (“Issues not briefed on appeal . . . are deemed abandoned.”); New Jersey v. Merrill Lynch & Co., 640 F.3d 545, 547 n.3 (3d Cir. 2011) (holding that a failure to set forth an issue on appeal and present arguments in support of that issue in an opening brief generally amounts to abandonment and waiver of that issue); Advanced Magnetic Closures, Inc. v. Rome Fastener Corp., 607 F.3d 817, 833 (Fed. Cir. 2010) (“This court has consistently held that a party waives an argument not raised in its opening brief.”); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (finding that arguments not raised by a party in its opening brief on appeal are deemed waived); United States v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (noting the well-established principle that an argument not raised on appeal is deemed abandoned); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991) (finding that issues raised in the district court but not raised on appeal are considered abandoned on appeal and not reviewable). The Equal Employment Opportunity Commission likewise held that an appellant abandoned certain discrimination claims when she made “no mention of either of these bases in her statements in support of [her] appeal” of a final agency decision. Hipp v. Department of the Air Force, EEOC Document No. 01862916, 1987 WL 769084 (Jan. 13, 1987). 17 (5) Whether the appellant was represented during the course of his appeal before the administrative judge and on petition for review and, if he was not, the level of knowledge of Board proceedings possessed by the appellant ¶24 In some circumstances, the Board will take an appellant’s pro se status into consideration and be more lenient in the application of Board rules and procedures. See, e.g., Ramos v. Office of Personnel Management, 82 M.S.P.R. 65, ¶ 7 (1999) (taking into consideration an appellant’s pro se status, among other factors, in determining that he did not intend to withdraw his appeal); Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995) (noting that the Board will consider, among other things, the appellant’s pro se status in determining whether good cause exists to waive the time limit for filing a petition for review), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Here, the appellant was represented by a union representative at all stages of the proceeding, from the time the initial appeal was filed through the hearing and on petition for review before the Board. IAF, Tab 1 at 5-6; HCD; PFR File, Tab 1 at 9. Thus, the practice of leniency toward pro se litigants in certain instances is not applicable here. Accordingly, this factor supports a finding that the appellant intended to abandon his affirmative defense. (6) The likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board ¶25 The Board has held that it will not give effect to the withdrawal of an appeal that was based on misleading or incorrect information provided by the agency or the Board. Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007); see Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶¶ 10, 15 (2011). Similarly, the Board has, on occasion, granted leniency to appellants in circumstances in which they obviously were confused or mistaken about the Board’s instructions. See Luna v. Department of the Air Force, 86 M.S.P.R. 578, ¶ 9 (2000) (finding good cause for the appellant’s untimely petition for appeal 18 based, in part, on his pro se status and his obvious confusion), aff’d, 15 F. App’x 876 (Fed. Cir. 2001); Caldwell v. Department of the Treasury, 85 M.S.P.R. 674, ¶¶ 8-9 (2000) (same). ¶26 If there is reason to believe that an appellant’s withdrawal or apparent abandonment of a previously raised affirmative defense was the result of confusion, or misleading or incorrect information provided to the appellant or his representative by the agency or the Board, that would weigh in favor of a finding that the appellant did not intend to withdraw or abandon his claim. This may be especially true if the appellant is proceeding pro se, and if there is evidence in the record clearly demonstrating that he either does not understand the nature of the affirmative defense or does not understand the consequences of its withdrawal. ¶27 In the instant case, there is no evidence that the appellant’s representative was confused or was misled by the agency or the administrative judge concerning the affirmative defense of retaliation for the appellant’s prior Board appeal. As previously noted, the appellant’s only reference to the claim was in his initial appeal. Moreover, the only additional information provided by the agency concerning the affirmative defense was factual in nature, and the agency did not provide inaccurate or misleading information about the appellant’s burden in proving the affirmative defense. IAF, Tab 4 at 8-9. For the above reasons, this factor, which considers whether the waiver or abandonment was the product of confusion, mistake, or misleading information provided by the agency or administrative judge, also favors a finding that the appellant intended to abandon his affirmative defense in this case. ¶28 In sum, applying the nonexhaustive list of factors set forth in this decision for determining whether an appellant abandoned his affirmative defense, we find that the appellant in this case abandoned his affirmative defense and that there is no basis for the Board to address the affirmative defense waiver issue on review. Accordingly, we conclude that there is no basis to remand the appeal for additional proceedings regarding the appellant’s affirmative defense. 19 ORDER ¶29 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 RIGHTS9 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 9 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. 20 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 21 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 22 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 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. 10 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. 23 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/THURMAN_GARY_L_AT_0752_17_0162_I_1_OPINION_AND_ORDER_1941352.pdf
07-08-2022	2022 MSPB 19	Murray Johnson	https://www.mspb.gov/decisions/precedential/JOHNSON_MURRAY_A_DE_0831_16_0461_I_2_OPINION_AND_ORDER_1940240.pdf	Office of Personnel Management	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 19 Docket No. DE-0831-16-0461-I-2 Murray A. Johnson, Appellant, v. Office of Personnel Management, Agency, and Renee Johnson, Intervenor. July 8, 2022 Murray A. Johnson, Montrose, Colorado, pro se. Jane Bancroft, Washington, D.C., for the agency. Ray Epps, Houston, Texas, for the intervenor. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has petitioned for review of an initial decision that affirmed the reconsideration decision of the Office of Personnel Management (OPM). For the following reasons, we DENY the petition for review and AFFIRM the initial decision AS MODIFIED by this Opinion and Order to correctly apply the 2 provisions of 5 C.F.R. § 838.623(c) for including the appellant’s unused sick leave in calculating the intervenor’s portion of the appellant’s annuity. BACKGROUND ¶2 The appellant and his former spouse, the intervenor, were married from October 31, 1986, until they divorced on November 14, 1997, a period spanning 132 months of the appellant’s creditable service under the Civil Service Retirement System (CSRS). Johnson v. Office of Personnel Management, MSPB Docket No. DE-0831-16-0461-I-1, Initial Appeal File (IAF), Tab 6 at 22-23. On November 14, 1997, the 312th District Court in Harris County, Texas, issued a final decree of divorce for the appellant and the intervenor. Id. at 27-59. That same day, the court issued a document entitled “Qualified Domestic Relations Order Federal Employee’s Retirement System” (QDRO), which was sent to OPM for processing as a qualifying court order for dividing retirement benefits. See Johnson v. Office of Personnel Management, MSPB Docket No. DE-0831-16- 0461-I-2, Appeal File (I-2 AF), Tab 9 at 9-13. However, OPM disapproved the QDRO as unacceptable on February 26, 1998, and returned it to the attorney for the intervenor. I-2 AF, Tab 15 at 4-5. ¶3 Subsequently, the presiding court issued an “Amended Order Dividing Civil Service Retirement System Benefits” on August 27, 1998, which was forwarded to OPM for processing on September 17, 1998, by the intervenor’s attorney. IAF, Tab 6 at 20-26. OPM accepted and approved the amended order as a qualifying court order assigning a portion of the appellant’s retirement benefits to the intervenor. Id. at 20-26; I-2 AF, Tab 15 at 4-5. The court order provided that, based on his service with the Federal Government, the appellant would be eligible for CSRS benefits and also provided that the intervenor in this appeal “is entitled to a share of those benefits (including any credits under the CSRS for military service).” IAF, Tab 6 at 23. The decree then stated that the intervenor’s share 3 was 50% of the appellant’s gross monthly annuity “that accrued between October 31, 1986 and November 14, 1997 under the CSRS.” Id. ¶4 Following the appellant’s retirement, effective February 1, 2015, OPM notified him that it had processed the intervenor’s claim for an apportionment of his annuity benefit. IAF, Tab 6 at 14-17. The appellant requested reconsideration of OPM’s decision, arguing that OPM improperly calculated the amount of the intervenor’s benefit. Id. at 13. On August 16, 2016, OPM issued a final decision in which it corrected the length of the appellant’s and the intervenor’s marriage, reducing it from 133 to 132 months, but otherwise affirmed the apportionment calculation. Id. at 6-8. The appellant subsequently filed the instant appeal in which he argued that the August 27, 1998 decree was not a “court order acceptable for processing,” challenged the manner in which OPM calculated the intervenor’s apportionment, and claimed that his unused sick leave was incorrectly counted as “creditable service” and added to his actual service in the apportionment calculation, inappropriately increasing the intervenor’s share of his annuity. IAF, Tab 1 at 1-4; I-2 AF, Tab 9 at 1-2. ¶5 After holding the appellant’s requested hearing, the administrative judge issued an initial decision in which she affirmed OPM’s reconsideration decision, finding the following: (1) the August 27, 1998 decree was an enforceable court order that was acceptable for processing; (2) OPM used the correct formula in apportioning the intervenor’s share of the appellant’s annuity; and (3) OPM correctly included the amount of the appellant’s unused sick leave as of the date of his retirement in the apportionment calculation.1 I-2 AF, Tab 16, Initial Decision (ID) at 5-7. 1 Although not identified by either party, both OPM and the administrative judge erroneously cited 5 C.F.R. §§ 838.1003-.1004 as the relevant sections defining “qualifying court order[s]” applicable in the appellant’s case. I-2 AF, Tab 16, Initial Decision (ID) at 5-6; IAF, Tab 6 at 4-8. However, those regulations apply only to court orders received by OPM before January 1, 1993. 5 C.F.R. §§ 838.101(c)(2), 4 ¶6 The appellant has filed a petition for review of the initial decision, arguing that the administrative judge erred in concluding that OPM correctly included his unused sick leave as “creditable service” in calculating the intervenor’s portion of his annuity. Petition for Review (PFR) File, Tab 1 at 7-8. OPM has filed a response in opposition to the petition for review, and the appellant has not filed a reply. PFR File, Tab 4. The intervenor has not submitted any filings on review. ANALYSIS Unused sick leave is generally included as creditable service in computing an annuity. ¶7 The gravamen of this appeal is whether and how the appellant’s unused sick leave should be added to his actual service in apportioning his CSRS annuity with his former spouse. The general rule is that unused sick leave is included as “creditable service” in computing a CSRS annuity.2 ¶8 More precisely, the issue in this case is whether the calculation of the intervenor’s share of the appellant’s annuity is based on the ratio of the months of their marriage to the number of months the appellant actually worked for the 838.102(a)(6); see Hayward v. Office of Personnel Management, 578 F.3d 1337, 1343 (Fed. Cir. 2009). Nonetheless, the administrative judge also identified the correct applicable provisions in reaching her decision that the August 27, 1998 decree was a court order acceptable for processing. ID at 6 (citing 5 C.F.R. § 838.302(a)(2)); see 5 C.F.R. § 838.301; 5 C.F.R. §§ 838.304-.306. To the extent the administrative judge erred in citing the incorrect provisions in sections 838.1003-.1004, that error did not affect the outcome of the decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was not prejudicial to a party’s substantive rights provided no basis for reversing an initial decision). 2 OPM considers both “creditable” and “covered” service in determining whether an appellant is entitled to a CSRS annuity. Noveloso v. Office of Personnel Management, 45 M.S.P.R. 321, 323 (1990), aff’d, 925 F.2d 1478 (Fed. Cir. 1991) (Table). While nearly all Federal service is “creditable” service, covered service is a narrower subset of Federal service and refers to Federal employees who are “subject to” the CSRA. Lledo v. Office of Personnel Management, 886 F.3d 1211, 1213 (Fed. Cir. 2018); Noveloso, 45 M.S.P.R. at 323-24 & n.1; see generally 5 U.S.C. § 8333. The appellant’s entitlement to a CSRS annuity is not at issue in this appeal. 5 Government or the number of months he worked for the Government plus the number of months of unused sick leave he accumulated during his Government service. Under the first approach, and as argued by the appellant, unused sick leave would not be included in the calculation of the intervenor’s share of the annuity, and the appellant would be entitled to 100% of the portion of the annuity based on the amount of service credit added to the appellant’s actual service because of his unused sick leave. Under the second approach, as argued by OPM and the intervenor, the appellant’s unused sick leave would be added to his actual service and that sum would be used in determining the ratio used to apportion the appellant’s annuity. ¶9 Title 5, United States Code, section 8339(m), the statute governing computing CSRS annuities, states that “[i]n computing any annuity under [relevant subsections], the total service of an employee who retires on an immediate annuity . . . includes . . . the days of unused sick leave to his credit under a formal leave system.” Billinger v. Office of Personnel Management, 206 F.3d 1404, 1406 (Fed. Cir. 2000) (quoting 5 C.F.R. § 831.302(c), which defines a “formal leave system” as “one which is provided by law or regulation or operates under written rules specifying a group or class of employees to which it applies and the rate at which sick leave is earned”). ¶10 Provisions in OPM’s regulations also support this conclusion. For example, 5 C.F.R. § 838.242(b) states without qualification that “[u]nused sick leave is counted as ‘creditable service’ on the date of separation for an immediate CSRS [] annuity,” and is “not apportioned over the time when earned.” Similarly, 5 C.F.R. § 831.302(a) states that, “[f]or annuity computation purposes, the service of an employee who retires on immediate annuity . . . is increased by the days of unused sick leave to his credit under a formal leave system.” ¶11 Further, both the Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) regularly have applied the above statutory and regulatory provisions to include unused sick leave in an annuity calculation in other types of 6 annuity computation cases. See Jordan v. U.S. Postal Service, 65 F. App’x 308, 313 (Fed. Cir. 2003)3 (citing 5 C.F.R. § 831.302, and noting that it is “well established that a retiring employee may use accrued sick leave in calculating his years of service for annuity purposes”); Adler v. Office of Personnel Management, 114 M.S.P.R. 651, ¶ 3 & n.3 (2010) (citing 5 C.F.R. § 838.242(b), and noting that the appellant’s unused sick leave is included in his months of total Federal service in awarding his former spouse a pro rata share of the appellant’s annuity), aff’d, 437 F. App’x 928 (Fed. Cir. 2011); Nichol v. Office of Personnel Management, 105 M.S.P.R. 201, ¶ 19 (2007) (instructing OPM to credit the appellant’s unused sick leave in her CSRS annuity calculation, citing 5 U.S.C. § 8339(m)), aff’d as modified on other grounds on recon., 108 M.S.P.R. 286 (2008); Vecchio v. Office of Personnel Management, 94 M.S.P.R. 464, ¶ 18 n.8 (2003) (noting that under 5 U.S.C. § 8339(m), for annuity computation purposes, the service of an employee who is covered under the CSRS provisions and retires on immediate annuity is increased by the days of unused sick leave to her credit under a formal leave system); Hayden v. Office of Personnel Management, 58 M.S.P.R. 286, 293 (1993) (citing 5 C.F.R. § 831.302(a) for the proposition that employees eligible for immediate retirement may receive service credit for unused sick leave). ¶12 Finally, OPM’s CSRS and Federal Employees’ Retirement System (FERS) handbook lends additional support to this conclusion by noting that “[t]o determine the length of service for annuity computation purposes, all periods of an employee’s creditable service and the period represented by unused sick leave are added and any fractional part of a month in the total is eliminated.” OPM, 3 The Board may rely on unpublished decisions of the Federal Circuit if it finds the court’s reasoning persuasive, as we do here. See Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011). 7 CSRS and FERS Handbook,4 Creditable Civilian Service, ch. 20, § 20A2.3-1F (April 1998), https://www.opm.gov/retirement-services/publications- forms/csrsfers-handbook/c020.pdf. OPM correctly included the amount of the appellant’s unused sick leave at the time of his retirement in calculating the intervenor’s portion of his annuity. ¶13 Despite the general rule outlined above, the language in 5 C.F.R. § 838.623(c) contemplates circumstances in which unused sick leave is not included in an annuity computation. For example, subsection (c)(1) provides as follows: When a court order directed at employee annuity (other than a phased retirement annuity or a composite retirement annuity) contains a formula for dividing employee annuity that requires a computation of service worked as of a date prior to separation and using terms such as “years of service,” “total service,” “service performed,” or similar terms, the time attributable to unused sick leave will not be included. Conversely, subsection (c)(2) of the regulation provides as follows:5 When a court order directed at employee annuity other than a phased retirement annuity or a composite retirement annuity contains a formula for dividing employee annuity that requires a computation of “creditable service” (or some other phrase using “credit” or its 4 Although OPM guides and handbooks lack the force of law, the Board has held that they are entitled to deference in proportion to their power to persuade. See Warren v. Department of Transportation, 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (addressing an OPM retirement handbook), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of Personnel Management, 110 M.S.P.R. 667, ¶ 9 n.3 (2009) (granting “some deference” to an OPM retirement handbook). Here, OPM’s retirement handbook is persuasive to the extent it shows that OPM regularly includes unused sick leave in a creditable service calculation for annuity computation purposes. 5 On review, the appellant argues that the administrative judge inaccurately quoted 5 C.F.R. § 838.623(c)(2) in the initial decision by including only part of the language from that provision in support of her conclusion that OPM correctly included all of the appellant’s unused sick leave in apportioning his annuity with the intervenor. PFR File, Tab 1 at 7-8; ID at 7. We agree with the appellant. We correct the administrative judge’s error by analyzing the entire regulatory language. 8 equivalent) as of a date prior to retirement, unused sick leave will be included in the computation as follows: (i) If the amount of unused sick leave is specified, the court order awards a portion of the employee annuity equal to the monthly employee annuity at retirement times a fraction, the numerator of which is the number of months of “creditable service” as of the date specified plus the number of months of unused sick leave specified (which sum is rounded to eliminate partial months) and whose denominator is the months of “creditable service” used in the retirement computation. (ii) If the amount of unused sick leave is not specified, the court order awards a portion of the employee annuity equal to the monthly rate at the time of retirement times a fraction, the numerator of which is the number of months of “creditable service” as of the date specified (no sick leave included) and whose denominator is the number of months of “creditable service” used in the retirement computation (sick leave included). ¶14 Therefore, whether and how unused sick leave is included in the division of an annuity between a Federal employee and a former spouse is determined by resolving whether: (1) the court order apportions the annuity based on the former spouse’s share of the employee’s “service performed,” or uses similar language denoting an award based on the actual service, in which case unused sick leave is not included; or (2) the court order contemplates an apportionment of the annuity based on “creditable service,” in which case unused sick leave is included. ¶15 If the former spouse’s share of the annuity is based on a portion of the “creditable service,” a further determination must be made as to how the unused sick leave is to be included in the former spouse’s share of the award. Under 5 C.F.R. § 838.623(c)(2)(i), if the court order identifies the amount of sick leave to be apportioned, the former spouse’s share is increased according to the terms of the court order. If the court order does not specify the amount of unused sick leave to be apportioned, then the formula identified in 5 C.F.R. § 838.623(c)(2)(ii) awards the former spouse a share of the annuity that does not include the amount of unused sick leave in the numerator of the fraction, but 9 includes the entire amount of unused sick leave as of the date of retirement in the denominator of the fraction. ¶16 The August 27, 1998 divorce decree, the relevant terms of which were set forth previously, provides that the intervenor “is entitled to a share of [the appellant’s CSRS retirement] benefits (including any credits under the CSRS for military service).” IAF, Tab 6 at 23. The decree then states that the intervenor’s share is 50% of the appellant’s gross monthly annuity “that accrued between October 31, 1986 and November 14, 1997 under the CSRS.” Id. ¶17 Regarding the applicability of 5 C.F.R. § 838.623(c)(1), the decree does not contain the terms “years of service,” “total service,” “service performed,” or other similar terms that would award the intervenor an annuity based on only a portion of the appellant’s actual service without including unused sick leave. Id. Thus, subsection (c)(1), which provides for the complete exclusion of unused sick leave from the apportionment of an annuity, is not applicable here. ¶18 Conversely, although the term “creditable service” also is not included in the August 27, 1998 decree, as the administrative judge noted, the term “credit” is included in the section awarding the intervenor “a share of [CSRS] benefits (including any credits under the CSRS for military service).” IAF, Tab 6 at 23 (emphasis added); ID at 7. This language awarding “credits” for types of service other than actual Federal service performed—i.e., “military service”—plainly contemplates an expansive definition of the service to be included in the intervenor’s share calculation, bringing the order within the purview of section 838.623(c)(2). Regarding the distinction between 5 C.F.R. § 838.623(c)(2)(i) and (ii), the court order also does not specifically identify the total amount of unused sick leave to be included in the intervenor’s share of the 10 appellant’s annuity, bringing the decree within the purview of 5 C.F.R. § 838.623(c)(2)(ii).6 IAF, Tab 6 at 23. OPM’s calculation of the intervenor’s share of the appellant’s annuity under 5 C.F.R. § 838.623(c)(2)(ii) is correct. ¶19 The appellant argues that, by applying the language of 5 C.F.R. § 838.623(c)(2)(ii), the intervenor’s portion of the monthly annuity award should be reduced from $724.56 to $699.60.7 PFR File, Tab 1 at 8. The appellant reaches this figure through the following calculation: $4,745.00 (monthly rate at the time of retirement) × “creditable service” calculation (417 months, excluding unused sick leave ÷ 432 months, including unused sick leave) × 15.275% (intervenor’s share: 50% of 132 months of marriage ÷ 432 total months) = $699.60.8 ¶20 However, the appellant’s calculation relies on a fundamental misinterpretation of the language in 5 C.F.R. § 838.623(c)(2)(ii). It appears that the appellant interpreted the “as of the date specified” regulatory language to refer to the entire period of his CSRS service. PFR File, Tab 1 at 8. Based on this assumption, the appellant concludes that the fraction outlined in the 6 OPM’s regulations in this regard are far from clear and are no doubt confusing to lay people and divorce attorneys engaged in developing property settlements involving Federal retirement benefits. 7 This figure does not include the $138.00 deduction for the cost of providing for a survivor annuity benefit to the intervenor in the event that the appellant predeceases her. The appellant does not challenge this. ID at 4. 8 In reaching these figures, it appears that the appellant modified his calculations in the following manner: (1) by dropping the repeating decimal places and rounding up the “creditable service” calculation (from .9652777… to .9653); (2) reducing the “creditable service” he argues the intervenor is entitled to after deducting unused sick leave from the calculation, rounding the monthly amount down to the nearest whole dollar, from $4,580.3485 to $4,580.00; and (3) by dropping the repeating decimal places in his calculation of the intervenor’s percentage share (from 50% of .305555… to 50% of .3055), resulting in a reduction in the intervenor’s share (from 15.277…% to 15.275%). The appellant has offered no explanation for any of these alterations. Finally, the appellant also rounded the final result up to the nearest whole cent (from $699.595 to $699.60). 11 regulation should be calculated as the proportion of his creditable service without sick leave included (417 months) divided by his total creditable service at retirement (432 months). Id. From that, he multiplies that proportion (.9653) times the total gross annuity award ($4,745.00), and then multiplies the result by the intervenor’s share (15.275%). Id. There is no support for this interpretation in the regulation. Instead, the “as of the date specified” regulatory language refers to the date specified in the court order dissolving the marriage. 5 C.F.R. § 838.623(c)(ii). Thus, the correct calculation is as follows: $4,745.00 (monthly rate at the time of retirement) × 15.27% (50% of 132 months of marriage as of the date specified in the court order, without sick leave included ÷ 432 months of “creditable service” used in the final retirement computation, with sick leave included) = $724.56.9 ¶21 Because this figure is the same one reached in OPM’s reconsideration decision and relied on by the administrative judge, we find that the administrative judge did not err in affirming OPM’s reconsideration decision. Accordingly, we affirm the initial decision as modified by this order to incorporate the correct language from 5 C.F.R. § 838.623(c)(2)(ii) that requires including the amount of the appellant’s unused sick leave at the time he retired in the intervenor’s apportionment of the appellant’s annuity award. 9 In calculating the intervenor’s portion of the appellant’s annuity, it appears that OPM dropped decimal places and rounded down the percentage amount of the intervenor’s share at both steps of the calculation process. First, in determining the proportion of the number of months of marriage included in the intervenor’s share (.3055 vs. .305555…), and second, in calculating the intervenor’s percentage share based on her pro rata award of the appellant’s annuity based on the number of months of marriage (15.27% vs. 15.2777…%). ID at 4 (quoting IAF, Tab 6 at 7). It is unclear whether this downward rounding was consistent with OPM’s regulations. Nonetheless, because this issue was not raised by either party or by the administrative judge, and because the resulting difference in the potential monthly share was very small ($724.56 vs. $724.93), we see no reason to disturb this finding on review. 12 ORDER ¶22 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 RIGHTS10 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 10 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. 13 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 14 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 15 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.11 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. 11 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. 16 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/JOHNSON_MURRAY_A_DE_0831_16_0461_I_2_OPINION_AND_ORDER_1940240.pdf	Issuance Date: September 26, 2022 DUE PROCESS EX PARTE COMMUNICATIONS REMEDY The petitioner was employed as a firefighter with the Department of the Air Force. At the time relevant to this appeal, his mother lived with him and his family, and she was taking approximately 13 pills to treat various health issues. The petitioner was also taking approximately seven or eight pills for his own health issues. As a condition of his employment, the petitioner was selected for a random drug test, on which he tested positive for oxycodone and oxymorphone. He explained to his supervisor that he believed he had accidentally taken one of his mother’s pills instead of his own. Thereafter, the agency removed him, and he challenged his removal under the applicable grievance procedures. During an arbitration hearing, the deciding official testified that, prior to arriving at his decision to remove the appellant, he had consulted his wife, who is a registered nurse, and his brother-in-law, who is a nurse practitioner, and that both confirmed that the likelihood of the appellant taking his mother’s pills “is slim to none.” Ultimately, the arbitrator denied the appellant’s grievance, finding that the petitioner’s explanation of the misconduct was not believable. He also found that there was no convincing evidence that the agency violated the petitioner’s due process rights. The petitioner requested review of the arbitration decision from the U.S. Court of Appeals for the Federal Circuit. Holding: The agency violated the appellant’s due process rights when the deciding official consulted with relatives regarding the likelihood of the appellant’s explanation of the misconduct. 1. The court concluded that the deciding official’s decision to consult with his relatives regarding the likelihood of the appellant’s explanation of the misconduct was not cumulative information, and was instead, new evidence because their opinions were not confirming anything already in the record—they were providing new opinion on the evidence. 2. The court declined to consider whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official because there were other sufficient reasons to conclude that the agency violated the appellant’s due process rights. 3. The court explained that “[f]amilial bonds are often strong and intimate, making family members arguably the most influential people in anyone’s life,” and reasoned that it was, therefore, constitutionally impermissible to allow a deciding official to receive additional material that may undermine the objectively required to protect the fairness of the process. Holding: Because the parties did not brief the remedy due to the petitioner following a finding of a due process violation, the appeal was remanded to the arbitrator to determine the proper remedy. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
07-08-2022	2022 MSPB 20	Gary Davis	https://www.mspb.gov/decisions/precedential/DAVIS_GARY_K_DE_3330_14_0097_I_1_OPINION_AND_ORDER_1940285.pdf	Department of Defense	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 20 Docket No. DE-3330-14-0097-I-1 Gary K. Davis, Appellant, v. Department of Defense, Agency. July 8, 2022 Joanna Friedman, Esquire, Washington, D.C., for the appellant. Rachael K. House, Esquire, Carson, California, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for failure to state a claim upon which relief can be granted, and alternatively, denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA). For the reasons discussed below, we DENY the petition for review. We MODIFY the initial decision to supplement the administrative judge’s analysis and to clarify that the administrative judge should have denied corrective action, instead of dismissing the appeal for failure to state a claim upon which relief can be granted. We AFFIRM the initial decision except as expressly modified herein. 2 BACKGROUND ¶2 The appellant began working for the Defense Contract Management Agency (DCMA) as a Safety and Occupational Health Specialist in January 2010, and he resigned for personal reasons in February 2013. Initial Appeal File (IAF), Tab 8 at 23-24, Tab 18 at 76. In June 2013, the appellant applied for the Safety and Occupational Health Specialist (Intern) position at the DCMA pursuant to vacancy announcement SWH813KS602704908202. IAF, Tab 7 at 10-19. The vacancy announcement stated that the position was an “acquisition position” and that the agency “uses the Expedited Hiring Authority to recruit and attract exceptional individuals into the Federal Workforce.” Id. at 10-11. The appellant was placed on the certificate of eligibles, but the agency did not select him. IAF, Tab 1 at 7-8, Tab 7 at 9. The appellant filed a VEOA complaint with the Department of Labor (DOL), and DOL notified him that it did not find evidence that the agency violated his rights. IAF, Tab 1 at 9-14. The appellant subsequently filed this timely Board appeal and requested a hearing. IAF, Tab 1. ¶3 The administrative judge found that the appellant exhausted his administrative remedies with DOL and made a nonfrivolous allegation that the agency violated his rights under a statute or regulation relating to veterans’ preference. IAF, Tab 9 at 2. The parties had an opportunity to develop the record, IAF, Tabs 9-11, 18-19, 22, and the administrative judge issued an initial decision, IAF, Tab 25, Initial Decision (ID). The administrative judge found that the appellant failed to state a claim upon which relief could be granted because the position was not subject to veterans’ preference laws, owing to the agency’s use of the expedited hiring authority found at 10 U.S.C. § 1705. ID at 5-11. Alternatively, he found that, even if veterans’ preference laws were applicable to the position at issue, the appellant did not establish a genuine dispute of material fact regarding whether the agency violated his veterans’ preference rights, and he denied the appellant’s request for corrective action. ID at 11-14. 3 ¶4 The appellant has filed a petition for review and the agency has responded in opposition to the appellant’s petition. Petition for Review (PFR) File, Tabs 3, 5. ANALYSIS We deny the appellant’s request for corrective action because he did not prove by preponderant evidence that the agency violated a statute or regulation relating to veterans’ preference. ¶5 Neither party challenges the administrative judge’s conclusions that the appellant exhausted his administrative remedies with DOL, he made a nonfrivolous allegation that he was a preference eligible, and he nonfrivolously alleged that the agency violated a statute or regulation relating to veterans’ preference.1 IAF, Tab 1 at 12-14, Tab 9 at 2, Tab 18 at 78. We affirm those findings herein. To be entitled to corrective action under VEOA, the appellant must prove by preponderant evidence, among other things, that the agency violated one or more of his statutory or regulatory veterans’ preference rights in 1 The Board and the U.S. Court of Appeals for the Federal Circuit have held that VEOA appeals have an additional jurisdictional element, i.e., a nonfrivolous allegation that the action at issue took place on or after the October 30, 1998 enactment date of VEOA. E.g. Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 13 (2012). Without purporting to overrule this case law, we observe that nearly 25 years have now passed since VEOA was enacted and that this jurisdictional issue will seldom, if ever, be dispositive in future cases. We therefore find that, going forward, an accurate exposition of the VEOA jurisdictional elements may omit reference to the date that the action at issue took place. The Board has similarly held that it lacks jurisdiction over individual right of action (IRA) appeals in which the contested personnel action occurred prior to the July 9, 1989 effective date of the Whistleblower Protection Act. E.g., Marshall v. Department of Veterans Affairs, 44 M.S.P.R. 28, 32 (1990). Nevertheless, the Board generally does not list the date of the personnel action as a separate jurisdictional element for IRA appeals. E.g., Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). We find it appropriate to adopt the same practice in VEOA appeals. 4 its selection process.2 Boston v. Department of the Army, 122 M.S.P.R. 577, ¶ 6 (2015). ¶6 Below, the appellant asserted that the agency violated 5 U.S.C. § 3309 by failing to add the required points for preference-eligible candidates, violated 5 U.S.C. § 3313 by failing to appropriately move 10-point preference eligibles to the top of the certificate, and violated 5 U.S.C. § 3318 by failing to make a selection from the top three preference-eligible veterans and by failing to notify him or the Office of Personnel Management (OPM) that he was being passed over for the selection. IAF, Tab 18 at 16-18. In the initial decision, the administrative judge considered the agency’s assertion that the cited statutory provisions were inapplicable to the selection process because it filled the position using the expedited hiring authority at 10 U.S.C. § 1705(f).3 ID at 6 (citing IAF, Tab 7 at 6-8).4 The administrative judge found that the agency utilized the expedited 2 In the initial decision, the administrative judge assumed for purposes of his analysis that the appellant held a 90% disability rating from the Department of Veterans Affairs and that he qualified as a 10-point preference eligible. ID at 11. 3 Although the administrative judge cited to 10 U.S.C. § 1705(g) and (h) in the initial decision, the National Defense Authorization Act for Fiscal Year 2018 (NDAA of 2018), Pub. L. No. 115-91, § 1051(a)(7), 131 Stat. 1283, 1560 (2017), subsequently redesignated these provisions as section 1705(f) and (g), respectively. Because the changes are nonsubstantive, we have referred to the provisions at their current locations for the ease of the reader. We also have reviewed other relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 4 Because the administrative judge considered the agency’s documentary submissions in the initial decision, ID at 6 (citing IAF, Tab 7 at 6-8), he should not have dismissed the appeal for failure to state a claim upon which relief can be granted, Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 8 (2008) (stating that dismissal for failure to state a claim is appropriate only if, taking the appellant’s allegations as true and drawing all reasonable inferences in his favor, he cannot prevail as a matter of law); Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 9 n.* (2007). We therefore modify the initial decision in this regard. Because we find that the administrative judge erred in analyzing this matter under the failure to state a claim standard, we need not address the appellant’s assertion on review that the administrative judge failed to draw 5 hiring authority, and therefore, the selection process at issue was not subject to the veterans’ preference laws that the appellant claims the agency violated. ID at 6-11. ¶7 On review, the appellant reiterates his argument regarding how the agency violated 5 U.S.C. §§ 3309, 3313, and 3318. PFR File, Tab 3 at 30-32. He also generally challenges the administrative judge’s analysis and findings. To resolve the issues raised on review, we must examine the circumstances surrounding the creation of the expedited hiring authority at 10 U.S.C. § 1705(f), determine whether the agency properly invoked the expedited hiring authority to fill the Safety and Occupational Health Specialist position, and if so, ascertain whether the agency’s using this expedited hiring authority had an impact on the appellant’s entitlement to veterans’ preference during the selection process. ¶8 In 2003, Congress authorized creating an advisory panel “to review laws and regulations regarding the use of commercial practices, performance-based contracting, the performance of acquisition functions across agency lines of responsibility, and the use of Governmentwide contracts.” National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1423, 117 Stat. 1392, 1669 (2003). Subsequently, the panel issued a more than 400-page report, finding that the “existing federal acquisition workforce falls seriously short of the capacity needed to meet the demands that have been placed on it.” Report of the Acquisition Advisory Panel to the Office of Federal Procurement Policy and the U.S. Congress (January 2007), at 372-73, https://www.acquisition.gov/sites /default/files/page_file_uploads/ACQUISITION-ADVISORY-PANEL-2007- Report_final.pdf. In that report, the panel recommended, among other things, that the Office of Federal Procurement Policy and agencies “need to identify and reasonable inferences in his favor or otherwise misapplied the standard of failure to state a claim upon which relief can be granted. PFR File, Tab 3 at 19-25. 6 eliminate obstacles to speedy hiring of acquisition workforce personnel.” Id. at 339. ¶9 Based in part on the panel’s findings and recommendations, Congress created the Department of Defense (DOD) Acquisition Workforce Development Fund in 2008 “to provide funds, in addition to other funds that may be available, for the recruitment, training, and retention of acquisition personnel” and “to ensure that the [DOD] acquisition workforce has the capacity, in both personnel and skills, needed to properly perform its mission, provide appropriate oversight of contractor performance, and ensure that [DOD] receives the best value for the expenditure of public resources.” National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 852, 122 Stat. 3 (2008) (codified at 10 U.S.C. § 1705(a)-(b)); see 153 Cong. Rec. S12365-67 (daily ed. Oct. 1, 2007) (statement of Sen. Levin). Congress subsequently amended 10 U.S.C. § 1705 to add subsection (h), which created an expedited hiring authority to allow the Secretary of Defense to designate any category of acquisition positions within DOD as “shortage category positions” and to “recruit and appoint highly qualified persons directly to such designated positions.” Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, § 833, 122 Stat. 4356 (2008). ¶10 The relevant version of the expedited hiring authority, found at 10 U.S.C. § 1705(f),5 states that, for purposes of 5 U.S.C. § 3304 (and other statutes that are not implicated in this matter), the Secretary of Defense “may . . . designate any category of positions in the acquisition workforce as positions for which there exists a shortage of candidates or there is a critical hiring need” and “utilize the 5 Subsection (h) of 10 U.S.C. § 1705 was later redesignated as section 1705(g) in the National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 803, 126 Stat. 1632, 1825 (2013), and then as subsection (f) by the NDAA of 2018, as indicated above. 7 authorities in such sections to recruit and appoint qualified persons directly to positions so designated.” 10 U.S.C. § 1705(f)(1)-(2). In turn, 5 U.S.C. § 3304(a)(3) provides that the President may prescribe rules providing agencies with authority “without regard to the provisions of sections 3309 through 3318,”6 to appoint candidates directly to positions for which “public notice has been given” and OPM has determined that there exists “a severe shortage of candidates” or that there is “a critical hiring need.” Therefore, if properly invoked, the agency’s use of the expedited hiring authority at 10 U.S.C. § 1705(f) would allow it to recruit and appoint individuals to categories of positions in the acquisition workforce that the Secretary of Defense has designated as having a shortage of candidates or a critical hiring need without regard to the veterans’ preference rights and benefits identified in 5 U.S.C. §§ 3309 through 3318.7 ¶11 The appellant contends on review that the agency did not give notice of its use of the expedited hiring authority found at 10 U.S.C. § 1705(f), nor did OPM make any of the requisite determinations pursuant to 5 U.S.C. § 3304(a)(3); therefore, he asserts that the agency could not have properly used the expedited hiring authority to fill the position at issue. PFR File, Tab 3 at 14-15. These arguments are not persuasive. The administrative judge found, and the appellant does not dispute, that the vacancy announcement for the Safety and Occupational Health Specialist position was publicly advertised and posted on USAJOBS. ID at 7-8; IAF, Tab 22 at 26-35. On review, the appellant references a DCMA webpage, which he included below, that provides public notice for expedited 6 Sections 3309 through 3318 of title 5 concern examinations, registers, certifications, and selections of individuals in the competitive service and the additional benefits provided to preference eligibles competing for such positions. 7 In its implementation procedures for the expedited hiring authority, the agency stated that it would “[m]ake employment offers to qualified candidates with veterans’ preference whenever practicable.” IAF, Tab 7 at 21. The certificate of eligibles reflects that the selectee was entitled to veterans’ preference. IAF, Tab 7 at 9, Tab 19 at 23. 8 hiring authority for acquisition positions. PFR File, Tab 3 at 14-15 (citing IAF, Tab 22 at 13-15). The appellant contends that, because the webpage does not list the position at issue or the 0018 series, the agency did not intend to include the position at issue in its public notice. PFR File, Tab 3 at 14-15. The appellant’s reference to a single DCMA webpage, which appears to have been updated in February 2014, IAF, Tab 22 at 15, after the relevant events in this matter, does not warrant a different outcome in this case. Instead, we find that the agency’s posting the vacancy announcement for the Safety and Occupational Health Specialist position on USAJOBS, coupled with its announcing that it would use the expedited hiring authority to fill the position and designating the position as an acquisition position, IAF, Tab 22 at 26-35, constitutes sufficient public notice pursuant to 5 U.S.C. § 3304(a)(3). We modify the initial decision accordingly. ¶12 The administrative judge also addressed the absence of a determination by OPM that there was a shortage of candidates or a critical hiring need. In pertinent part, the administrative judge noted that he was not aware of, nor did the parties cite, any binding precedent that addressed the interaction of 10 U.S.C. § 1705 and 5 U.S.C. § 3304. ID at 8. The administrative judge further noted that the Board relies on precedent from the U.S. Supreme Court, which states that a court being confronted with statutes capable of coexistence has a duty to regard each as effective. ID at 8-9; Isabella v. Department of State, 109 M.S.P.R. 453, ¶ 12 (2008) (citing Morton v. Mancari, 417 U.S. 535, 551 (1974)). Applying this precedent, the administrative judge found that lacking an OPM determination in this regard was not dispositive because Congress specifically gave the Secretary of Defense, through 10 U.S.C. § 1705, direct authority to make determinations about the agency’s acquisition workforce. ID at 9. We supplement the administrative judge’s analysis because the statutory provision at 5 U.S.C. § 3304(a)(3) became effective several years before the expedited hiring authority at 10 U.S.C. § 1705(f) was created. See Dean v. Department of Agriculture, 104 M.S.P.R. 1, ¶ 15 n.4 (2006). Congress is presumed to be knowledgeable 9 about existing laws pertinent to the legislation it enacts. Special Counsel v. Mahnke, 54 M.S.P.R. 13, 17 n.5 (1992); Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 431 (1980). Accordingly, we presume that when Congress enacted 10 U.S.C. § 1705(f), it was aware of 5 U.S.C. § 3304(a)(3) and intended to depart from its general requirements. Thus, we agree with the administrative judge that OPM need not determine if there exists a shortage of candidates or a critical hiring need before the Secretary of Defense can use the expedited hiring authority at 10 U.S.C. § 1705(f) to recruit and appoint qualified persons to fill certain positions in the acquisition workforce for which there exists a shortage of candidates or a critical hiring need. ¶13 We also have considered the appellant’s assertion that the authority to designate acquisition workforce positions was not properly delegated and that the Safety and Occupational Health Specialist position at issue was not an “acquisition workforce” position. PFR File, Tab 3 at 15 & n.4, 31. The record reflects that the Secretary of Defense delegated the authority of the statute at 10 U.S.C. § 1705(f) to DOD Component Heads, Directors of the Defense Agencies, and Directors of the DOD Field Activities “with independent appointing authority for themselves and their serviced organizations,” and the authority may be further redelegated. IAF, Tab 7 at 21. Moreover, the Director of the DCMA Contract Safety Group (Director) declared, under penalty of perjury, that guidance from the Defense Logistics Agency (DLA) in 1994 advised that Safety and Occupational Health Specialist positions were to be included in the acquisition workforce.8 IAF, Tab 19 at 12, 19. He further declared there was a “critical hiring need and a shortage of qualified candidates” for the Safety and 8 The Director in his declaration explained that the DCMA was part of the DLA prior to 2000. IAF, Tab 19 at 11-12, 19; see O’Connor v. United States, 308 F.3d 1233, 1236 n.1 (Fed. Cir. 2002) (noting that the DCMA was once part of the DLA). The appellant has not persuaded us that there was any error in the agency’s reliance on this guidance. 10 Occupational Health position at issue because it required a specific set of skills with a background in aviation ground safety, munitions and explosives, and industrial safety, and those skills were difficult to find in Utah, the geographic area where the agency was filling the position. Id. at 12-13. ¶14 We also agree with the administrative judge that the position at issue was properly designated as an “acquisition workforce” position. The term “acquisition workforce” is defined in 10 U.S.C. § 1705(g) as, among other things, “[p]ersonnel in positions designated under section 1721 of this title as acquisition positions.” The statute at 10 U.S.C. § 1721(b)(3) identifies several categories of acquisition-related positions, including in the areas of “[p]rocurement, including contracting.” ID at 10-11. The Director declared that the position at issue was in the Contract Safety Group, the mission of which is to perform safety assessments and surveillance of defense contractors; that employees of the Group act as agents of the Administrative Contracting Officer and are responsible for ensuring that Government contractors comply with contractual requirements; and that the duties of contract administration surveillance fall within the acquisition category of “Production, Quality, and [Manufacturing (PQM)].” IAF, Tab 19 at 12. The agency’s implementation procedures for the expedited hiring authority indicate that the PQM category was designated as a category of acquisition positions pursuant to 10 U.S.C. § 1721. IAF, Tab 7 at 22-23. Moreover, the position description for the Safety and Occupational Health position at issue and the job announcement both explicitly state that the position is an acquisition position. IAF, Tab 7 at 10-12, Tab 19 at 17. ¶15 Because we find that the authority to designate positions in the acquisition workforce was properly delegated, the Safety and Occupational Health position in question was in the “acquisition workforce,” and the agency determined that there was a critical need and a shortage of candidates for the position, the agency properly utilized the expedited hiring authority found at 10 U.S.C. § 1705(f) to fill the vacancy. The agency’s properly invoking the expedited hiring authority 11 means that the position in question was not subject to the veterans’ preference statutes that the appellant claims were violated. Thus, we find that the appellant did not prove by preponderant evidence that the agency violated a statute or regulation related to veterans’ preference.9 ¶16 The Board may decide a VEOA appeal on the merits without a hearing if the record on a dispositive issue has been fully developed and the appellant had a full and fair opportunity to dispute the agency’s evidence. Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 9 (2007); see Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 9 (2008) (explaining that the Board’s regulations allow for dismissing a VEOA claim on the merits without a hearing). The record in this matter has been developed sufficiently, and the appellant has had an opportunity to present evidence and attempt to refute the agency’s evidence. E.g., IAF, Tabs 9, 12, 18-19, 22. We discern no error with the administrative judge’s decision not to hold the requested hearing, and we deny the appellant’s request for corrective action. See, e.g., Boston, 122 M.S.P.R. 577, ¶¶ 8-9 (finding that title 5 veterans’ preference laws did not apply to the Intelligence Specialist positions to which the appellant applied because the agency used the hiring authority under 10 U.S.C. § 1601); see also 5 C.F.R. § 1208.23(b) (“A hearing may be provided to the appellant once the Board’s jurisdiction over the appeal is established and it has been determined that the appeal is timely.”) (emphasis added). The appellant’s other claims of error do not warrant a different outcome. ¶17 We have considered the appellant’s assertion that the administrative judge should not have dismissed the appeal without allowing the appellant to further 9 Because we have found that the appellant did not meet his burden, we need not address the administrative judge’s alternative finding, i.e., that the appellant did not establish a genuine dispute of material fact about whether the agency violated 5 U.S.C. §§ 3309, 3313, 3318, or the appellant’s arguments on review concerning this finding. ID at 11-13; e.g., PFR File, Tab 3 at 9-10, 30-33. 12 develop the record. PFR File, Tab 3 at 25-27. In particular, he asserts that the administrative judge improperly denied his motion to compel discovery regarding the top four candidates that were presented to the selecting official. Id. at 26. The record reflects, however, that the administrative judge denied without prejudice the motion to compel because it did not comport with the requirements of 5 C.F.R. § 1201.73(c). IAF, Tab 11. Also, although the administrative judge specifically advised the appellant of the deadline for refiling a motion to compel, he did not file a subsequent motion to compel. We agree with the administrative judge that the appellant’s motion to compel did not comply with 5 C.F.R. § 1201.73(c), and thus, he properly denied without prejudice the motion. We have considered, but find unavailing, the appellant’s assertion that the administrative judge did not sufficiently assist him or explain to him the shortcomings in his motion to compel. PFR File, Tab 3 at 26. Rather, the administrative judge’s reference to 5 C.F.R. § 1201.73(c) provided the appellant with sufficient notice of the deficiencies in his motion. ¶18 Finally, the appellant asserts that he did not have a “full and fair” opportunity to dispute the agency’s evidence. PFR File, Tab 3 at 26-29. He argues that, if given the opportunity to rebut this evidence, he could have demonstrated that the position at issue was subject to veterans’ preference laws. Id. at 29. We disagree. The record reflects that the appellant was given an opportunity to respond to the agency’s brief, and he did so. IAF, Tab 12 at 1, Tab 22. Moreover, we have considered his arguments regarding, among other things, the agency’s withdrawing the job offer to the selectee in March 2014, the agency’s decision to issue a vacancy announcement in April 2014, for a Safety and Occupational Health Specialist position (which the appellant alleges was “virtually identical” to the 2013 announcement), and the fact that the selecting official for the 2014 vacancy announcement indicated that the appellant requested that his application be withdrawn from further consideration, when he did not make such a request. PFR File, Tab 3 at 13, 16-17, 28-29. The events that 13 occurred after the nonselection do not warrant a different outcome because they do not change our analysis of the interplay between 10 U.S.C. § 1705(f) and 5 U.S.C. § 3304(a)(3), our findings, or our conclusion that the appellant did not meet his burden to prove by preponderant evidence that the agency violated a statute or regulation relating to veterans’ preference when it did not select him for the Safety and Occupational Health Specialist position in 2013.10 ORDER ¶19 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 RIGHTS11 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. 10 To the extent that the appellant is challenging the nonselection for the position described in the 2014 vacancy announcement, there is no evidence that he exhausted his administrative remedy with DOL regarding this claim, and we do not consider it herein. 11 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 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: 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 15 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 16 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 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 12 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 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/DAVIS_GARY_K_DE_3330_14_0097_I_1_OPINION_AND_ORDER_1940285.pdf	Issuance Date: July 13, 2015 Holding: The court affirmed the Board’s final order dismissing the petitioner’s petition for enforcement as untimely because the petitioner failed to provide any explanation for the untimely filing of his petition.
06-29-2022	2022 MSPB 18	Katherine Coffman	https://www.mspb.gov/decisions/precedential/COFFMAN_KATHERINE_CB_1215_14_0012_A_1_OPINION_AND_ORDER_1937877.pdf	Special Counsel	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 18 Docket No. CB-1215-14-0012-A-1 Katherine Coffman, Petitioner, v. Office of Special Counsel and Department of Homeland Security, Respondents. June 29, 2022 Debra L. Roth, Esquire and Julia H. Perkins, Esquire, Washington, D.C., for the petitioner. Emilee Collier, Esquire, Rachel A. Venier, Esquire and Mariama Liverpool, Esquire, Washington, D.C., for the Office of Special Counsel. Lindsay K. Solensky and Philip Carpio, Washington, D.C., for the Department of Homeland Security. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Leavitt recused himself and did not participate in the adjudication of this appeal. OPINION AND ORDER ¶1 The Office of Special Counsel (OSC) has filed a petition for review, and the petitioner has filed a cross petition for review of an addendum initial decision, which granted the petitioner’s request for attorney fees and ordered OSC to pay her $490,503.58 in fees and expenses. For the reasons set forth below, we 2 AFFIRM the administrative law judge’s (ALJ’s) findings that the petitioner is a prevailing party and that fees are warranted in the interest of justice. We MODIFY the initial decision to find that $517,506.19 in attorney fees and expenses were reasonable and incurred in the petitioner’s defense of OSC’s disciplinary action against her. We GRANT OSC’s petition for review, VACATE the ALJ’s finding that OSC must pay these fees, and FIND INSTEAD that the Department of Homeland Security (DHS), as the petitioner’s employing agency, is obligated to pay these fees pursuant to 5 U.S.C. § 1204(m)(1) (2012). We also DENY the petitioner’s cross petition for review. BACKGROUND ¶2 On April 8, 2014, OSC filed an eight-count complaint seeking disciplinary action against the petitioner, a Deputy Assistant Commissioner for Human Resources Management at Customs and Border Protection (CBP), DHS, for allegedly violating 5 U.S.C. § 2302(b)(1)(E)1 and 5 U.S.C. § 2302(b)(6)2 when she participated in CBP’s efforts to hire three candidates for career appointments who were favored by the then-recently appointed CBP Commissioner. Special Counsel v. Coffman, 124 M.S.P.R. 130, ¶¶ 2-5 (2017); Special Counsel v. Coffman, MSPB Docket No. CB-1215-14-0012-T-1, Complaint File (CF), Tab 1. After a 6-day hearing, the ALJ found that OSC did not prove any of the counts in its complaint and imposed no discipline on the petitioner. Coffman, 124 M.S.P.R. 130, ¶¶ 6-17; CF, Tab 95. On review, the Board affirmed the ALJ’s conclusions that OSC did not prove that the petitioner intentionally committed any unlawful 1 Section 2302(b)(1)(E) prohibits discriminating for or against an employee or applicant on the basis of marital status or political affiliation. 2 Section 2302(b)(6) prohibits the granting of any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for the purpose of improving or injuring the prospects for employment of any particular person. 3 hiring practice and that no discipline was warranted. Coffman, 124 M.S.P.R. 130, ¶¶ 18-57. ¶3 The petitioner timely filed a motion for attorney fees. Coffman v. Office of Special Counsel, MSPB Docket No. CB-1215-14-0012-A-1, Attorney Fees File (AFF), Tab 3. The ALJ issued an order that added DHS as a party to the fee matter. AFF, Tab 6. The ALJ made the following interim findings: (1) the petitioner was a prevailing party; (2) fees should be awarded in the interest of justice; and (3) an award of $475,106.97 was reasonable and incurred by the petitioner in her defense of OSC’s disciplinary action. AFF, Tab 19. The ALJ directed the parties to brief the issue of which agency should pay her fees, and the parties responded. AFF, Tab 19 at 13-14, Tabs 24-26. ¶4 The ALJ subsequently issued an addendum initial decision in which he made the following findings of fact: (1) OSC presented no evidence that the petitioner intentionally committed a prohibited personnel practice (PPP) as described in the eight counts in its complaint; (2) the petitioner incurred attorney fees and expenses in the amount of $490,503.58; (3) her attorneys’ hourly rates were reasonable; and (4) it was in the interest of justice to award her fees because she was substantially innocent of the charges and OSC knew or should have known that it would not prevail on the merits. AFF, Tab 27, Initial Decision (ID) at 1-14. In pertinent part, the ALJ applied the 2011 version of 5 U.S.C. § 1204(m)(1), which required payment by the “agency involved,” and he determined OSC was “solely” responsible for the payment of the petitioner’s attorney fees and expenses. ID at 14-18. ¶5 OSC has filed a petition for review, the petitioner and DHS have each filed responses, and OSC has filed a reply. Petition for Review (PFR) File, Tabs 6, 12-13, 19-20. On review, OSC contends that the petitioner was not entitled to an award of fees and expenses in the interest of justice; alternatively, OSC contends that the ALJ erred because 5 U.S.C. § 1204(m)(1) was modified in 2012 to require the petitioner’s employing agency to pay fees. PFR File, Tab 6. DHS 4 does not contest that awarding fees is in the interest of justice, but it asserts that OSC should pay. PFR File, Tab 12. ¶6 In her cross petition for review, the petitioner asserts that the Board should apportion the awarded fees between OSC and DHS by applying the 2011 and 2012 versions of section 1204(m)(1) successively. PFR File, Tab 13 at 24-25. The petitioner also supplements her claim for fees and expenses to include an additional $26,692.50 in fees and $310.11 in expenses, which would bring the total attorney fees and expenses to $517,506.19. Id. at 25-27. ANALYSIS ¶7 In the initial decision, the ALJ stated that the following requirements must be established in order to grant a request for attorney fees: (1) the petitioner must be a prevailing party; (2) the award of fees must be warranted in the interest of justice; and (3) the fees awarded must be reasonable. ID at 5-6. None of the parties disputes the applicability of this standard to this matter, and we address each of the requirements herein. We affirm the ALJ’s finding that the petitioner was a prevailing party. ¶8 None of the parties challenges on review the ALJ’s finding that the petitioner was a prevailing party. ID at 6-7; PFR File, Tab 6 at 15 n.12, Tab 12 at 4-5. Because the ALJ found, and the Board affirmed, that OSC proved none of the eight charges against the petitioner, we affirm the ALJ’s conclusion that she is a prevailing party. See Santella v. Special Counsel, 86 M.S.P.R. 48, ¶ 21 (2000) (finding that the petitioners were prevailing parties because, among other things, OSC alleged that they violated 5 U.S.C. § 2302(b)(8) four times, and the Board agreed with the petitioners that none of the counts should be sustained), aff’d on recons., 90 M.S.P.R. 172 (2001), aff’d sub nom. James v. Santella, 328 F.3d 1374 (Fed. Cir. 2003). 5 We find that the petitioner reasonably incurred $517,506.19 in attorney fees and expenses in her defense of OSC’s disciplinary action. ¶9 None of the parties disputes the ALJ’s finding that the petitioner incurred attorney fees and expenses in her defense of OSC’s disciplinary action and that her attorneys’ hourly rates were reasonable. ID at 4, 13-14; PFR File, Tab 6 at 15 n.12, Tab 12 at 4-5. We have reviewed the petitioner’s supplemental information, PFR File, Tab 13 at 25-38, and we find that she reasonably incurred an additional $26,692.50 in fees and $310.11 in expenses, thereby bringing the total fee award to $517,506.19. We agree with the ALJ that the payment of fees is warranted in the interest of justice. ¶10 An attorney fee award by the Board may be warranted in the interest of justice in circumstances such as the following: (1) the agency engaged in a PPP; (2) the agency’s action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error; or (5) the agency knew or should have known that it would not prevail on the merits. Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434‑35 (1980). None of the parties challenges the ALJ’s use of the Allen factors to evaluate whether an award of fees is warranted in the interest of justice in this matter.3 ¶11 In the initial decision, the ALJ determined that payment of fees and expenses was warranted in the interest of justice because the petitioner was substantially innocent of the charges (Allen factor 2) and OSC knew or should have known that it would not prevail on the merits (Allen factor 5). ID at 8-13. OSC contends that the ALJ’s findings regarding Allen factors 2 and 5 were 3 Although Allen involved the general fee provision at 5 U.S.C. § 7701(g)(1), the U.S. Court of Appeals for the Federal Circuit affirmed the Board’s finding that the substantially innocent Allen factor also applies to cases arising under 5 U.S.C. § 1204(m)(1). Santella, 328 F.3d at 1376-84. 6 erroneous.4 PFR File, Tab 6 at 16-34. For the following reasons, we find that the petitioner was substantially innocent of the charges against her, and we affirm the ALJ’s conclusion that fees are warranted in the interest of justice.5 ¶12 In his analysis of the substantial innocence factor, the ALJ noted that OSC did not prove any of the eight charges against the petitioner. ID at 8. The ALJ criticized OSC’s decision to call the petitioner as a witness in its case in chief; he noted that OSC’s decision to do so resulted in the petitioner “affirmatively disprov[ing]” any intentional violation because her testimony “clearly established that she played no role, either directly or indirectly, in either the creation of the three vacancy announcements, position descriptions, resumes, and/or the . . . application packages” at issue. Id. The ALJ also found that the petitioner’s testimony “established her good faith reliance upon professionals within her agency’s human resource function” and “refuted any notion that her actions in the case were motivated by either politics or a desire to grant an unlawful preference.” ID at 8-9. The ALJ further found that, “[l]ong before the hearing,” OSC knew that agency witness J.N. was “unbiased,” had “nearly unassailable credibility,” “had direct personal knowledge of many essential facts,” and would provide testimony that was “highly exculpatory” of the petitioner. ID at 9. Similarly, the ALJ found that, “[l]ong before the hearing,” OSC knew that agency witness A.H. would “exculpate” the petitioner. ID at 9-10. 4 DHS does not challenge the ALJ’s finding that fees were warranted in the interest of justice. PFR File, Tab 12 at 5. 5 In his interim findings, attached to the addendum initial decision, the ALJ stated that “OSC’s conduct is tantamount to bad faith, as identified in Allen Factor 3.” ID at 41. Because we agree with the ALJ that the petitioner was substantially innocent (Allen factor 2), we need not address OSC’s arguments regarding Allen factor 5 or the ALJ’s reference to bad faith in his interim findings. PFR File, Tab 6 at 16-28, 34-35; see Miller v. Department of the Army, 106 M.S.P.R. 547, ¶ 11 n.* (2007) (concluding that because attorney fees were warranted under the fifth Allen factor, the Board need not consider the appellant’s remaining arguments that she is entitled to fees under other Allen factors). 7 ¶13 In challenging the ALJ’s finding that the petitioner was substantially innocent of the charges, OSC makes the following assertions: (1) it had a reasonable basis for filing the complaint against the petitioner; (2) the ALJ misconstrued its litigation strategy and erroneously criticized OSC for focusing on the petitioner’s “improbable” and shifting narrative; (3) the ALJ improperly conflated the petitioner’s status as a prevailing party and his conclusion that she was substantially innocent of the charges; and (4) the petitioner’s “fault” must be taken into account in analyzing substantial innocence. PFR File, Tab 6 at 28-34. These arguments are unavailing. ¶14 OSC’s first two arguments concern the ALJ’s criticism of its decision to file the complaint against the petitioner and its legal strategy. Our reviewing court has directed that the standard in Allen factor 2 (substantial innocence) “refers to the result of the case [before] the Board, not to the evidence and information available prior to the hearing.” Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1457 (Fed. Cir. 1984). However, both the Board and the court have recognized that Allen factors 2 and 5 are related and may sometimes overlap. Id. at 1457 n.5; Social Security Administration v. Goodman, 33 M.S.P.R. 325, 332 n.5 (1987). Indeed, the court in Yorkshire noted that, if an agency “possesses no credible evidence prior to the hearing before the Board ([Allen factor] 5), the result of the case will usually be in favor of the employee ([Allen factor] 2).” Yorkshire, 746 F.2d at 1457 n.5 (emphasis in original). The ALJ’s criticism of OSC’s legal strategy and his focus on what OSC knew before the hearing in his analysis of substantial innocence does not constitute prejudicial error and does not provide a basis for reversing the initial decision, Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984), because the ALJ’s finding that OSC did not prove any of the charges, which was affirmed by the Board, supports the conclusion that the petitioner was substantially innocent. See, e.g., Yorkshire, 746 F.2d at 1458 (finding that an employee “must prevail on substantially all the charges to be found ‘substantially innocent’”). 8 ¶15 OSC also contends that the ALJ “made no meaningful distinction” between the petitioner’s status as a prevailing party and the conclusion that she was substantially innocent; thus, the ALJ’s improper conflation of these concepts renders the Allen factors “superfluous.” PFR File, Tab 6 at 29. This is not a novel argument. In James, 328 F.3d at 1381-82, the U.S. Court of Appeals for the Federal Circuit rejected the Office of Personnel Management’s nearly identical argument in this regard. First, the James court noted that OSC may bring multiple charges against an employee, and it is possible or probable that “at least some charges will sometimes be sustained when others are not, resulting in only a partial victory for the charged employee” that would not “automatically” result in prevailing party status or a finding that the employee was substantially innocent. Id. Second, the James court noted that there are circumstances when a prevailing party might not be substantially innocent, and it cited Sterner v. Department of the Army, 711 F.2d 1563 (Fed. Cir. 1983), in which the employee confessed to two of five charges, and Wise v. Merit Systems Protection Board, 780 F.2d 997 (Fed. Cir. 1985), in which the employee “deliberately withheld exculpatory evidence from his employing agency.” James, 328 F.3d at 1382. ¶16 The circumstances of Sterner are not present here. However, we have considered OSC’s assertion that its charges against the petitioner were reasonable and were the direct result of her inconsistent statements and lack of candor. PFR File, Tab 6 at 31-32; see Wise, 780 F.2d at 1000 (explaining that the “substantially innocent” standard is not satisfied by a petitioner who knows that he was substantially innocent of the charges, can prove that substantial innocence, and “deliberately does not communicate all the facts to the deciding official which would lead the deciding official to rule against the removal action”). OSC asserts in this regard that the petitioner claimed for the first time at the hearing that two of the hiring packages that she had certified were in a state of disarray when she received them, and the Board used this testimony to reconcile an inconsistency between her OSC interview and testimony during the merits phase. 9 PFR File, Tab 6 at 32. OSC also asserts that the petitioner stated in her testimony before the ALJ that she reviewed one of the application packages in the presence of knowledgeable subordinates so she could ask questions; however, in her OSC testimony, which was closer in time to the events at issue, she said that she reviewed the application package alone. Id. OSC contends that, because the information that the petitioner withheld would have given it an opportunity to conduct further investigation of her defense, her failure to disclose such information precludes an award of fees. Id. We find this argument unavailing. ¶17 In the merits initial decision, the ALJ rejected OSC’s efforts to prove the petitioner’s culpability through the transcripts of two interviews conducted by OSC before it filed the complaint in this matter. CF, Tab 95 at 59. The ALJ gave “more weight” to the petitioner’s in-court testimony than to the transcript of the OSC interview because the petitioner had the benefit of legal counsel and the fruits of prehearing discovery from which she could prepare herself. Id. at 59-60. The Board acknowledged a potential discrepancy in the petitioner’s testimony relating to her recognition of certain names in connection with the hiring process, but it reconciled the discrepancy because she received certain application packages in a state of disarray. Coffman, 124 M.S.P.R. 130, ¶ 25. The Board stated that it fully considered the petitioner’s OSC interview testimony that the ALJ found was outweighed by her hearing testimony, and it found that a different outcome was not warranted because OSC did not establish that the petitioner intentionally committed an unlawful hiring practice. Id., ¶¶ 22-25. We are not persuaded that the inconsistencies cited by OSC on review, individually or taken together, amount to withholding exculpatory evidence. Moreover, it is hard to imagine what, if any, additional investigatory work OSC would have conducted if it had this information. Indeed, OSC’s petition for review acknowledges that it “interviewed 38 individuals and reviewed several thousand documents during the course of its investigation.” PFR File, Tab 6 at 14. OSC offers no persuasive evidence that it would not have sought disciplinary action against the petitioner if 10 it had this information. Accordingly, we agree with the ALJ that the petitioner was substantially innocent of the charges. ¶18 OSC asserts that, even if the petitioner was substantially innocent, the Board should exercise its discretion and not award fees because of OSC’s “unique role in protecting the merit system.” PFR File, Tab 6 at 33-34. In this regard, OSC asserts that it “must be permitted to bring challenging, even controversial cases, in an effort to define and develop the prohibitions set forth in 5 U.S.C. § 2302(b).” Id. at 33. We are not persuaded by this argument. Both versions of 5 U.S.C. § 1204(m)(1) state that fees “may” be awarded if the petitioner is a prevailing party and an award is warranted in the interest of justice, but we decline OSC’s invitation to invoke our discretion and not award fees in this matter. Importantly, there is nothing inconsistent between OSC’s authority to initiate disciplinary action against Federal employees whom it believes committed a PPP, 5 U.S.C. § 1215(a)(1)(A), and Congress’s clear intent to allow employees in unsuccessful disciplinary actions to recoup attorney fees pursuant to 5 U.S.C. § 1204(m)(1). See, e.g., James, 328 F.3d at 1383 (“We agree with the Board that Congress’s intent to invigorate OSC enforcement [through the OSC Reauthorization Act] in no way categorically precludes a separately manifested intent that employees who successfully defend an OSC disciplinary action recoup attorney fees [under the earlier version of 5 U.S.C. § 1204(m)(1)].”). The petitioner is a prevailing party, we have affirmed the ALJ’s determination that she is substantially innocent, and we find it appropriate to award fees to the petitioner pursuant to 5 U.S.C. § 1204(m)(1) in this matter. Pursuant to 5 U.S.C. § 1204(m)(1) (2012), DHS, as the agency where the petitioner was employed, is obligated to pay the petitioner’s attorney fees and expenses. ¶19 Having decided that the petitioner is entitled to an award of fees in the interest of justice, there is one issue left to resolve: in an OSC disciplinary action 11 arising under 5 U.S.C. § 1215,6 which agency should pay the petitioner’s fees? A brief discussion of 5 U.S.C. § 1204(m)(1) is instructive. ¶20 In 1994, Congress created 5 U.S.C. § 1204(m)(1), which stated, in relevant part, that the Board or an ALJ designated to hear a case arising under section 1215 “may require payment by the agency involved of reasonable attorney fees incurred by an employee . . . if the employee . . . is the prevailing party and the Board [or ALJ] . . . determines that payment by the agency is warranted in the interest of justice.” United States Office of Special Counsel, Merit Systems Protection Board: Authorization, Pub. L. No. 103-424, § 2, 108 Stat. 4361 (1994). In Santella, 86 M.S.P.R. 48, ¶¶ 2-3, 12-18, the Board addressed the applicability of section 1204(m)(1) in a fee matter that, like this matter, stemmed from an OSC disciplinary action. The Board reviewed the legislative history of 5 U.S.C. § 1204(m)(1), determined that OSC was the “agency involved,” and ordered OSC to pay the petitioners’ fees. Id., ¶¶ 12-18, 20-40. The Board’s decision was affirmed by the U.S. Court of Appeals for the Federal Circuit in Santella, 328 F.3d 1374. ¶21 In 2012, Congress made a significant change to section 1204(m)(1) when it struck the term “agency involved” and replaced it with “agency where the prevailing party was employed.” Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 107(a), 126 Stat. 1465, 1469 (2012). The Senate Report for the WPEA explained that the change in section 1204(m)(1) was necessary because of the Board’s decision in Santella and the corresponding financial burden on OSC, “a small agency with a limited budget,” to pay fees in disciplinary actions. S. Rep. No. 112-155, at 15-16 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 603-04. The Senate Report articulated the concern that “[s]hould the [Santella] case remain valid law, the OSC would be subject to 6 The provision at 5 U.S.C. § 1215(a)(1)(A) authorizes OSC to take disciplinary action against an employee if it determines that the employee committed a PPP. 12 heavy financial penalties unless it can predict to a certainty that it will prevail before bringing a disciplinary action.” Id. at 16. The Senate Report further stated that such a financial burden on OSC “hinders [its] use of disciplinary action as an enforcement mechanism and threatens the OSC’s ability to implement and enforce the [whistleblower protection statutes].” Id. To correct this problem, section 107(a) of the WPEA modified section 1204(m)(1) to state that, in a case arising under 5 U.S.C. § 1215, the Board or ALJ, may require payment by the agency where the prevailing party was employed . . . at the time of the events giving rise to the case of reasonable attorney fees incurred by an employee . . . if the employee . . . is the prevailing party and the Board [or ALJ] . . . determines that payment by the agency is warranted in the interest of justice. 5 U.S.C. § 1204(m)(1) (2012) (emphasis supplied). This change to section 1204(m)(1) became effective December 27, 2012. WPEA, § 202, 126 Stat. at 1476. ¶22 In the initial decision, the ALJ determined that the WPEA did not apply because the petitioner’s case did not involve the whistleblower protection statutes, and OSC instituted its investigation of the petitioner in 2011, well before the December 27, 2012 effective date of the WPEA. ID at 15-16. The ALJ found instead that the 2011 version of 5 U.S.C. § 1204(m)(1) applied, and he relied on Santella to find that OSC, as the agency involved, was solely responsible for payment of the petitioner’s fees. ID at 14-17. Alternatively, the ALJ held that, even if the WPEA applied, the Allen principles of justice “clearly exonerate [DHS] and indict OSC” because, among other things, DHS did not participate in the investigation or prosecution of the petitioner (its employee), the evidence revealed that OSC “was the exclusive and driving force behind [the petitioner’s] prosecution,” and “OSC’s investigation and prosecution were clearly without merit, were wholly unfounded, and likely the product of bad faith.” ID at 16. 13 ¶23 In their petition for review submissions, the parties offer different answers to the question of which agency should pay the petitioner’s fees and which statutory provisions are applicable. For instance, OSC contends that, based on the legislative history and the date that the complaint was filed, the 2012 version of 5 U.S.C. § 1204(m)(1) applies. PFR File, Tab 6 at 4-11. By contrast, DHS and the petitioner both assert that the ALJ properly applied the 2011 version of section 1204(m)(1). PFR File, Tab 12 at 7-9, Tab 13 at 8-9, 20-24. DHS argues in the alternative that 5 U.S.C. § 7701(g)(1), a general fee provision, is applicable to a fee award in an OSC disciplinary action. PFR File, Tab 12 at 9-17. Finally, the petitioner asserts in her cross petition that the Board should apportion fees by applying the 2011 version of 5 U.S.C. § 1204(m)(1) for fees that she incurred up until the December 27, 2012 effective date of the WPEA and by applying the 2012 version of 5 U.S.C. § 1204(m)(1) to fees incurred starting on that date. PFR File, Tab 13 at 24-25. ¶24 For the reasons described herein, we find that the ALJ erred when he relied on the 2011 version of 5 U.S.C. § 1204(m)(1), and we are not persuaded that it is appropriate to use section 7701(g)(1) or the petitioner’s suggestion of apportionment to resolve the issue of which agency is responsible to pay the petitioner’s fees. The ALJ erred when he applied the 2011 version of 5 U.S.C. § 1204(m)(1) to this matter. ¶25 On review, OSC asserts, among other things, that the ALJ ignored the plain language of 5 U.S.C. § 1204(m)(1) and disregarded Congressional intent to insulate OSC from liability to pay fees. PFR File, Tab 6 at 4-10. We grant OSC’s petition for review because, based on our review of the 2011 version of section 1204(m)(1), the legislative history underlying Congress’s decision to amend this section in 2012, the effective date of this change, and the date the complaint was filed, the 2012 version of section 1204(m)(1) controls the outcome of this matter. 14 ¶26 We have considered the petitioner’s assertion that the earlier version of section 1204(m)(1) applies because OSC began its investigation of her, and she incurred fees, in 2011, before the December 27, 2012 effective date of the WPEA. PFR File, Tab 13 at 21-24. However, we find that the operative event in this matter is the date that OSC filed its complaint, April 8, 2014, which is well after the December 27, 2012 effective date of the WPEA. CF, Tab 1; see 5 U.S.C. § 1215(a)(1)(A) (authorizing OSC to prepare and file with the Board a complaint against the employee if it determines that disciplinary action should be taken against the employee for having committed a PPP). Importantly, OSC’s complaint for disciplinary action constitutes “a case arising under section 1215” as described in 5 U.S.C. § 1204(m)(1), and the petitioner could only achieve prevailing party status after such a complaint has been filed and adjudicated in her favor. Cf. Krafsur v. Social Security Administration, 122 M.S.P.R. 679, ¶¶ 7-13 (2015) (finding that the respondent ALJ was not a prevailing party, a prerequisite to obtain attorney fees under the Equal Access to Justice Act,7 because the agency withdrew its complaint for disciplinary action against him and the Board dismissed the complaint as withdrawn). ¶27 We are not persuaded by the ALJ’s attempt to distinguish OSC disciplinary actions taken pursuant to 5 U.S.C. § 1215 and whistleblower appeals. ID at 15-16. Rather, the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989), amended 5 U.S.C. § 1206(g) to incorporate the language of that section concerning the presentment of a complaint into a new section 1215(a). Special Counsel v. Santella, 46 M.S.P.R. 99, 101 n.1 (1990). 7 The provision at 5 U.S.C. § 504(a)(1) states that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 15 Thus, OSC disciplinary actions taken pursuant to 5 U.S.C. § 1215 fall under the same statutory scheme as whistleblower appeals. ¶28 Accordingly, because the 2012 version of section 1204(m)(1) requires payment by the employing agency, we vacate the initial decision in this regard, and we find that DHS is solely responsible for the payment of the petitioner’s fees. The general fee provision at 5 U.S.C. § 7701(g)(1) does not apply to this matter. ¶29 Although DHS did not file a petition for review or cross petition for review, it asserts that the Board may exercise discretion to determine under which remedial statute to award fees. PFR File, Tab 12 at 9-17. In this regard, DHS asserts, among other things, that the general fee provision at 5 U.S.C. § 7701(g)(1) authorizes the Board to award fees in “any case” involving PPPs, and the Board may grant a remedy under a statute of general application even when there is a specific remedial provision. Id. We are not persuaded by these arguments. ¶30 Under 5 U.S.C. § 7701(g)(1), the Board or an ALJ “may require payment by the agency involved of reasonable attorney fees incurred by an employee . . . if the employee . . . is the prevailing party” and the Board or ALJ “determines that payment by the agency is warranted in the interest of justice, including any case in which a [PPP] was engaged in by the agency or any case in which the agency’s action was clearly without merit.” Importantly, the “payment by the agency involved” language of section 7701(g)(1) is identical to the language in the 2011 version of section 1204(m)(1). Santella, 328 F.3d at 1376-78. ¶31 Section 7701(g)(1) is an attorney fee provision that is generally applicable to Board appeals, Jacobsen v. Department of Justice, 101 M.S.P.R. 134, ¶ 6 (2006), whereas section 1204(m)(1) is a specific statutory fee provision that is aimed at cases “arising under section 1215.” There is well-settled precedent that specific statutory language aimed at a particular situation ordinarily controls over 16 general statutory language. Biogen MA, Inc. v. Japanese Foundation for Cancer Research, 785 F.3d 648, 656 (Fed. Cir. 2015); Almond Brothers Lumber Company v. United States, 651 F.3d 1343, 1354 (Fed. Cir. 2011); Jacobsen, 101 M.S.P.R. 134, ¶ 7 (finding that the administrative judge erred in applying the attorney fee criteria under 5 U.S.C. § 7701(g)(1), which were generally applicable to Board appeals, rather than the attorney fees criteria under 38 U.S.C. § 4324(c)(4), which were specifically applicable to appeals under Uniformed Services Employment and Reemployment Rights Act of 1994); Lee v. Department of Justice, 99 M.S.P.R. 256, ¶ 25 (2005). DHS acknowledges this longstanding precedent. PFR File, Tab 12 at 13. However, it distinguishes cases like Jacobsen and others by asserting that the Board has authority to grant a remedy under a statute of general application, even when the statute under which an appeal is brought contains a specific remedial provision. Id. at 12-14. DHS notes that, in Auker v. Department of Defense, 86 M.S.P.R. 468 (2000), the Board found that section 7701(g)(1) applied to individual right of action (IRA) appeals, even though the whistleblower protection statutes contained a specific fee provision tailored to such appeals in 5 U.S.C. § 1221(g). PFR File, Tab 12 at 12-14. ¶32 DHS’s argument is not persuasive because this matter is distinguishable from Auker. Mr. Auker filed an IRA appeal, alleging that his 1-day suspension for misconduct was taken in reprisal for his whistleblowing disclosures. Auker, 86 M.S.P.R. 468, ¶ 2. Mr. Auker and the agency subsequently entered into a settlement agreement, the administrative judge dismissed the appeal without making any findings on the merits, and Mr. Auker filed a motion for attorney fees. Id., ¶¶ 2-3. The administrative judge granted the motion, finding that Mr. Auker was entitled to an award under 5 U.S.C. § 1221(g)(2), which stated that an appellant in an IRA appeal is entitled to an award of attorney fees and costs “[i]f [he] is the prevailing party before the [Board], and the decision is based on a finding of a [PPP].” Id., ¶¶ 3-4. On review, however, the Board found that section 1221(g)(2) did not apply because, among other things, there was no 17 finding of a PPP. Id., ¶¶ 4-6. The Board held instead that attorney fees may be awarded to Mr. Auker under section 7701(g)(1). Id., ¶¶ 8-14. ¶33 In reaching this conclusion, the Board in Auker relied on a decision from the U.S. Court of Appeals for the D.C. Circuit, which held that the reference in 5 U.S.C. § 7701(g)(1) to “‘any case’ involving prohibited practices plainly extends to all proceedings in which action is sought to identify and correct such practices.” Auker, 86 M.S.P.R. 468, ¶ 9 (quoting Frazier v. Merit Systems Protection Board, 672 F.2d 150, 169 (D.C. Cir. 1982)). The Board in Auker concluded that an IRA appeal constitutes such a proceeding because it is a case in which an appellant is seeking a finding that he has been affected by a particular kind of PPP (reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8)) and in which he is seeking an order correcting the effects of that practice. Auker, 86 M.S.P.R. 468, ¶ 10. The Auker Board’s reliance on Frazier is understandable because, similar to an IRA appeal seeking corrective action against an agency, Frazier involved an OSC corrective action proceeding, and the Board “permitted the [employees against whom reprisal allegedly occurred], through their attorneys ‘fully [to] participate in this proceeding as any other party.’” Frazier, 672 F.2d at 153, 155, 168. Relevant to this matter, however, the Frazier court limited its decision regarding the broad applicability of section 7701(g)(1) in fee matters. Although the court first stated that section 7701(g)(1) provides the Board authority to award fees “in any case in which an employee . . . appears as a party,” it later noted that Congress granted the Board the authority to award such fees “in all cases within its jurisdiction in which complaining employees appear as parties.” Id. at 169-70 (emphasis added). In contrast to an OSC corrective action or an IRA appeal, the petitioner is not a complaining employee in an OSC disciplinary action. Thus, we do not find Auker or its reliance on the language from Frazier applicable in an OSC disciplinary action. ¶34 Moreover, the legislative history of the relevant statutory provisions distinguishes this matter from Auker. In Auker, 86 M.S.P.R. 468, ¶ 11, the Board 18 remarked that the legislative history of 5 U.S.C. § 1221 indicated that the drafters considered 5 U.S.C. § 7701(g)(1) to be a basis for awarding attorney fees in IRA appeals. Moreover, the Board found that Congress intended in 5 U.S.C. § 1221(g) to make it easier for appellants who prevail in IRA appeals to recover attorney fees. Id., ¶ 12. By contrast, the application of section 7701(g)(1) to this matter, which would obligate OSC, as the agency involved, to pay the petitioner’s fees, runs counter to Congress’s clear intent in the WPEA not to burden OSC with such liability. Supra, ¶ 21. Indeed, if Congress wanted 5 U.S.C. § 7701(g)(1) to apply to the petitioner’s request for fees in an OSC disciplinary action, there would have been no reason for it to have modified 5 U.S.C. § 1204(m)(1) in the WPEA. ¶35 We have considered DHS’s remaining arguments in support of its assertion that 5 U.S.C. § 1204(m)(1) is not the exclusive remedy in this matter, but none warrant a different outcome. For example, DHS asserts that 5 U.S.C. § 1222 and 5 C.F.R. § 1201.202(a) give the Board discretion to award fees under section 7701(g)(1). PFR File, Tab 12 at 9, 14, 16-17. Section 1222 states that, with exceptions not relevant to this matter, “nothing in this chapter or chapter 23 shall be construed to limit any right or remedy available under a provision of statute which is outside of both this chapter and chapter 23.” The regulation at 5 C.F.R. § 1201.202(a) identifies various statutory authorities for awarding fees, “includ[ing], but [] not limited to,” 5 U.S.C. § 1204(m). Even if section 1222 or 5 C.F.R. § 1201.202(a) gives us discretion to award fees under section 7701(g)(1), we decline to rely on this authority because both provisions directly contravene the specific statutory language of the 2012 version of 5 U.S.C. § 1204(m)(1) and the corresponding congressional intent. See, e.g., supra, ¶ 31 (discussing the precedent that specific statutory language aimed at a particular situation ordinarily controls over general statutory language); Johnson v. Department of Justice, 71 M.S.P.R. 59, 67 (1996) (stating that the provisions of 19 a statute will prevail in any case in which there is a conflict between a statute and an agency regulation). We decline the petitioner’s request to apportion payment of her fees between OSC and DHS. ¶36 In her cross petition, the petitioner suggests that OSC should pay for the portion of her fees and expenses incurred before the effective date of the WPEA, and DHS should pay for the fees and expenses incurred starting on the December 27, 2012 effective date of the WPEA. PFR File, Tab 13 at 24-25; AFF, Tab 26 at 12-13. The petitioner has identified no persuasive legal precedent to support her request to apportion payment of her fees in this manner. Moreover, the 2012 version of 1204(m)(1), which is applicable to this matter for the reasons discussed above, does not support her request for apportionment. Therefore, we deny the petitioner’s cross petition for review. Conclusion ¶37 We recognize that an agency like DHS, which likely had little to no involvement in OSC’s decision to pursue disciplinary action against the petitioner,8 is obligated to pay the petitioner’s substantial fees, which now total more than half a million dollars. The adverse impact of 5 U.S.C. § 1204(m)(1) on an agency with a small budget could be significant. However, the Board’s role as an adjudicatory agency is not to set or debate policy, and Congress has spoken clearly on this issue. See King v. Jerome, 42 F.3d 1371, 1375-76 (Fed. Cir. 1994) (“[I]t is not for the [Merit Systems Protection] [B]oard to supplant the remedies Congress expressly provided or create new remedies which it believes Congress 8 In its petition for review, OSC states that DHS asked it to “take the lead” in pursuing discipline against the petitioner and two other agency officials whom OSC deemed to be “culpable,” PFR File, Tab 6 at 15, but DHS did not address OSC’s assertion in its response. Because the statements of a party’s representative in a pleading do not constitute evidence, Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995), we do not address OSC’s assertion in this regard. 20 overlooked.”). We are therefore bound to follow the “unambiguously expressed intent of Congress,” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984), as set forth in the WPEA version of 5 U.S.C. § 1204(m)(1). ¶38 Accordingly, for the reasons described in this Opinion and Order, we affirm the ALJ’s findings that the petitioner is a prevailing party and that payment of her fees and expenses are warranted in the interest of justice. We further find that $517,506.19 is a reasonable amount of fees and expenses that were incurred in her defense of OSC’s disciplinary action. We vacate the ALJ’s finding that OSC should pay the petitioner’s fees, and we find instead that DHS is solely obligated to pay these fees pursuant to 5 U.S.C. § 1204(m)(1) (2012). ORDER ¶39 This is the final decision of the Merit Systems Protection Board in this matter. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). ¶40 We ORDER DHS to pay the petitioner attorney fees and expenses totaling $517,506.19. DHS must complete this action no later than 20 days after the date of this decision. See generally title 5 of the United States Code, section 1204(m)(1) (5 U.S.C. § 1204(m)(1)). ¶41 We also ORDER DHS to tell the petitioner and the attorney promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it took to carry out the Board’s Order. We ORDER the petitioner and the attorney to provide all necessary information that the agency requests to help it carry out the Board’s Order. The petitioner and the attorney, if not notified, should ask DHS about its progress. See 5 C.F.R. § 1201.181(b). ¶42 No later than 30 days after DHS tells the petitioner and the attorney that it has fully carried out the Board’s Order, the petitioner or the attorney may file a petition for enforcement with the Office of the Clerk of the Board, if the 21 petitioner or the attorney believes that DHS did not fully carry out the Board’s Order. The petition should contain specific reasons why the petitioner or the attorney believes DHS has not fully carried out the Board’s Order, and the petition should include the dates and results of any communications with DHS. See 5 C.F.R. § 1201.182(b). NOTICE OF APPEAL RIGHTS9 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 9 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. 22 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 23 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 24 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.10 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. 10 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. 25 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/COFFMAN_KATHERINE_CB_1215_14_0012_A_1_OPINION_AND_ORDER_1937877.pdf
06-22-2022	2022 MSPB 16	Adria Gharati	https://www.mspb.gov/decisions/precedential/GHARATI_ADRIA_AT_1221_13_4692_C_1_OPINION_AND_ORDER_1935472.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 16 Docket No. AT-1221-13-4692-C-1 Adria Gharati, Appellant, v. Department of the Army, Agency. June 22, 2022 Peter C. Lown, Esquire, Stockbridge, Georgia, for the appellant. Randall W. Bentley, Esquire, Forest Park, Georgia, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which granted in part the appellant’s petition for enforcement. For the reasons set forth below, we GRANT the agency’s petition for review, find the agency in compliance, and DISMISS the appellant’s petition for enforcement. BACKGROUND ¶2 In January 2011, the agency’s Defense Forensic Science Center hired the appellant as a Fingerprint Specialist for a term appointment not to exceed 4 years. Gharati v. Department of the Army, MSPB Docket No. AT-1221-13-4692-W-1, Appeal File (W-1 AF), Tab 51, Initial Decision (ID) at 5. Shortly after being hired, she deployed for 6 months to an agency laboratory in Kandahar, 2 Afghanistan. Id. In May 2012, the agency selected the appellant from a referral list for a GS-0072-12 Fingerprint Specialist position, effective May 20, 2012. Gharati v. Department of the Army, MSPB Docket No. AT-1221-13-4692-C-1, Compliance File (CF), Tab 5 at 17-18. This appointment entitled the appellant to a new 4-year term. Id. ¶3 In 2013, the appellant filed an individual right of action (IRA) appeal with the Board, alleging that the agency reassigned her from Afghanistan to Fort Gillen, Georgia, and constructively removed her in reprisal for certain protected disclosures she had made. W-1 AF, Tab 1. The administrative judge held a hearing in that matter, and on April 21, 2016, issued an initial decision finding that the appellant made a prima facie case of whistleblower reprisal and that the agency failed to meet its burden of proving that it would have taken the personnel actions in the absence of the appellant’s protected disclosures. ID at 4-35. The administrative judge ordered corrective action, which, among other things, included requiring the agency to “cancel the reassignment and removal and to retroactively restore the appellant effective November 30, 2012.” Id. at 35-36. Neither party petitioned for review of the initial decision, which became final on May 26, 2016. Id. at 38. ¶4 On June 19, 2016, the appellant filed a petition for enforcement alleging that the agency failed to return her to active employment in violation of the corrective action ordered by the administrative judge. CF, Tab 1 at 8-11. She argued that, on the date on which the administrative judge ordered her to be retroactively restored, she had 42 months remaining on her 4-year term, and, that to comply with the administrative judge’s order, the agency should have restored her to that position to serve out the remaining months. Id. ¶5 In response, the agency asserted that the 4-year appointment became effective on May 20, 2012, and expired on May 20, 2016. CF, Tab 5 at 6-7. Thus, the agency argued that it was not required to place her into an active position because the term position that she held as of November 20, 2012, had expired. Id. at 8. The agency also provided the appellant with back pay for the 3 unserved remainder of her 4-year appointment that included a promotion from the initial appointment grade, annual pay rate adjustments, and step increases to which she was entitled. CF, Tab 20 at 5-9, 15, Tab 25 at 7. It also included constructive credit for overtime and danger pay. CF, Tab 25 at 8. ¶6 In her petition for enforcement, the appellant also claimed that had she continued in active employment status, she would have been selected for one of several permanent positions that became available after her constructive removal. CF, Tab 1 at 9. The agency argued that there were at least 10 vacancies for permanent positions in the appellant’s line of work that were announced between October 2014, and May 2016, but that she failed to apply for any of them. CF, Tab 1 at 18, Tab 5 at 9. The appellant testified that she did not apply for the positions because she felt her efforts would have been futile, given her ongoing litigation with the agency concerning her whistleblowing activity. Hearing Compact Disc (testimony of the appellant). She further asserted that, but for the agency’s unlawful actions, she would have applied for the positions and likely would have been selected. Id. ¶7 In an order to the agency to produce additional evidence of compliance, the administrative judge stated that the purpose of the relief order in the now-final initial decision was to place the appellant as nearly as possible in the position that she would have been in but for the agency’s unlawful personnel actions. CF, Tab 16 at 2. The administrative judge found plausible the appellant’s assertion that the pending litigation caused her not to apply for any of the vacancies, but also found merit in the agency’s argument that it would be speculative to assume that the appellant would have been hired for any of the vacancies. Id. Thus, the administrative judge ordered the agency to reconstruct the selection process for the 10 vacancies. Id. The AJ also ordered the appellant to provide the agency with an application for each position for which she would have applied. Id. ¶8 The agency informed the administrative judge that it would take a significant period of time to reconstruct the selection process for the 10 vacancies, and that, regardless, it believed that it complied with the order. CF, 4 Tab 17 at 4-7. The agency did not submit any evidence that it attempted to reconstruct the selection process for any of the vacancies, but it did submit the vacancy announcements.1 CF, Tabs 40-45. The administrative judge imposed sanctions on the agency in the form of an adverse inference that, had the agency reconstituted the selection process for the first permanent Latent Patent Examiner position that arose during the appellant’s constructive removal period and considered the appellant’s application, it would have selected her. CF, Tab 28. ¶9 After holding a hearing at which the appellant was the only witness,2 the administrative judge issued a compliance initial decision finding that, although the agency completed several of the corrective actions that she had ordered previously, it failed to establish its compliance with the order in its entirety by failing to reinstate the appellant to a permanent position, CF, Tab 49, Compliance Initial Decision, (CID) at 3-12. Specifically, the administrative judge reasoned that the appellant’s claim of entitlement to a permanent position was analogous to a claim for a promotion as a part of a status quo ante order. CID at 10. She relied on Dow v. General Services Administration, 117 M.S.P.R. 616 (2012), to place the burden on the appellant to “clearly establish” that, but for the agency’s improper actions, she would have applied for the vacancies and would have been selected. CID at 10-12; see Dow, 117 M.S.P.R. 616, ¶ 18. ¶10 Based on the record evidence and the appellant’s testimony, the administrative judge found the appellant’s belief that she did not have a reasonable chance of being hired by the agency for any of the 10 vacancies to be 1 The agency filed a motion for certification of an interlocutory appeal on the question of whether the administrative judge had the authority to order the reconstruction of the 10 vacancy announcements and selections. CF, Tabs 19-20. The administrative judge denied the motion, CF, Tab 27, and it does not appear that the agency challenged that ruling in its petition for review, Petition for Review (PFR) File, Tab 1. 2 In her Summary of Telephonic Prehearing Conference, the administrative judge noted that she informed the agency that she would not take evidence regarding the reason it would not have hired the appellant because that issue was resolved by her prior sanction. CF, Tab 39 at 1. The agency then withdrew its request to call any witnesses. Id. at 2. 5 a reasonable assumption, given her pending litigation with the agency. CID at 11. Thus, she found that the appellant’s failure to apply for the vacancies was not fatal to her claim. Id. Further, the administrative judge concluded that the agency failed to reconstruct the selection process because it knew or suspected that the appellant would have been selected for one of the vacancies. CID at 10. Accordingly, as she had indicated she would do in her sanction order, the administrative judge found it appropriate to draw an adverse inference that, had the agency reconstructed the selection process for the first vacancy and considered the appellant’s application, it would have determined that she would have been selected. Id.; CF, Tab 28. ¶11 Based on the foregoing, the administrative judge concluded that the appellant clearly established that she would have applied for a permanent position with the agency but for its unlawful retaliation, and that, based on the adverse inference drawn from the agency’s failure to reconstruct the selection process, the evidence clearly established that the agency would have selected her for a permanent position but for the unlawful personnel actions. CID at 11-12. The administrative judge granted the appellant’s petition for enforcement in part and ordered the agency to place the appellant in a permanent Latent Print Examiner position for which she qualifies at the GS-12 level or higher, retroactive to the date of hire for the first vacancy announcement for a permanent Latent Print Examiner position during the back pay period. CID at 12. ¶12 The agency has filed a petition for review arguing, among other things, that the administrative judge’s order operates to place the appellant in a better position than she was in at the time of the agency’s unlawful actions and that the administrative judge abused her discretion when she attempted to require the agency to reconstruct the selection process. Petition for Review (PFR) File, 6 Tab 11, 19-21, 23. The appellant has filed a response to the agency’s petition. PFR File, Tab 4.3 ANALYSIS The agency complied with the corrective action ordered by the administrative judge following the adjudication of the IRA appeal. ¶13 The agency bears the burden of proving that it has complied with a Board order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010). The agency is required to produce relevant, material, and credible evidence of compliance in the form of documentation or affidavits. Spates v. U.S. Postal Service, 70 M.S.P.R. 438, 443 (1996). Here, the corrective action ordered by the administrative judge in the appellant’s IRA case included the following: cancelling the appellant’s reassignment and removal; retroactive restoration, effective November 30, 2012; back pay with interest; and adjusting benefits with appropriate credits and deductions in accordance with the Office of Personnel Management’s regulations.4 ID at 35-37. In the administrative judge’s compliance initial decision, she found that the agency was compliant with every part of the order except for the restoration portion. CID at 4-6. ¶14 Below, we discuss the restoration-to-duty order, finding that the agency complied with that order. Regarding the remainder of the corrective action order, we note that the appellant has not filed a cross petition for review of the administrative judge’s findings of the agency’s compliance. We have reviewed 3 Prior to filing her response to the agency’s petition for review, the appellant filed a motion to dismiss arguing that the agency failed to file any evidence of its compliance with the interim relief order. PFR File, Tab 3. The compliance initial decision did not contain an interim relief order. Although the initial decision ordering corrective action ordered interim relief in the event either party filed a petition for review of the initial decision, neither party so filed. See 5 C.F.R. § 1201.116(a). Accordingly, the agency was not required to file evidence of compliance with any interim relief order in this matter, and the appellant’s motion to dismiss the agency’s petition for review is denied. 4 The remainder of the administrative judge’s order related to interim relief and the appropriate timelines and mechanisms to carry out the above-referenced order. ID at 35-36. 7 the record, and we find no reason to disturb those findings here. Further, the record is clear that the agency provided the appellant with back pay for the appropriate time period, taking into account annual pay rate adjustments, step increases, constructive credit for overtime, and danger pay. CF, Tab 20 at 5-9, 15, Tab 25 at 7. The back pay award also considered the appellant’s interim earnings and any lump sum payments for leave. CF, Tab 20 at 15. Accordingly, we find the agency to be in compliance concerning these matters. Placement in a permanent position for which the appellant has not applied exceeds the relief ordered by the administrative judge. ¶15 When the Board finds reprisal based on whistleblowing, the Board is statutorily authorized to order broad relief, that is, such corrective action “as [it] considers appropriate . . . .” 5 U.S.C. § 1221(e)(1); see Porter v. Department of the Treasury, 80 M.S.P.R. 606, ¶ 11 (1999). If the Board orders corrective action, such corrective action “may include” that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred, as well as such things as back pay and related benefits, medical costs incurred, travel expenses, and other reasonable and foreseeable consequential and compensatory damages. 5 U.S.C. § 1221(g)(1)(A). ¶16 The administrative judge’s initial decision on the merits of the appeal ordered the agency “to cancel the reassignment and removal and to retroactively restore the appellant, effective November 30, 2012.” ID at 35. Through compliance proceedings, the administrative judge found that the Board’s final order required that the appellant be placed in a permanent Latent Print Examiner position. CID at 12. Arriving at this conclusion, the administrative judge stated that “an agency’s obligation under a status quo ante remedy is not necessarily satisfied by merely rescinding the adverse or personnel action at issue,” but that it also is required to fully address the appellant’s direct injuries and those that flowed from the agency’s unlawful action. CID at 6-7 (citing Smith v. Department of the Army, 458 F.3d 1359, 1370 (Fed. Cir. 2006)). Although the administrative judge acknowledged that a “status quo ante order” cannot operate 8 to place the appellant in a better position than she would have otherwise been in but for the agency’s unlawful actions, CID at 6, she nonetheless found that the full extent of the appellant’s injuries included the loss of permanent employment with the agency, CID at 7-12. ¶17 We disagree. The Board’s final order unambiguously sought to retroactively restore the appellant to her position, or as close to her position as possible, as of November 30, 2012. ID at 35. It is undisputed that, at that time, the appellant was serving in a 4-year term appointment with the agency. The first vacancy announcement for a permanent Latent Print Examiner position was not issued until October 2014. CF, Tab 40 at 7-13. Thus, it would have been impossible for the Board’s final order, with a retroactivity date of November 30, 2012, to properly encompass an appointment to a vacancy which did not arise until nearly 2 years later and was unrelated to and independent from the appellant’s position at the time relevant to the order. Therefore, we find the administrative judge’s order in the compliance initial decision to appoint the appellant to a permanent position, retroactive to the date of hire from the first vacancy announcement in 2014, to be incongruent with the initial order, which ordered retroactive restoration to November 30, 2012. ¶18 We also disagree with the administrative judge’s finding that the appellant’s claim of entitlement to a permanent position is analogous to a claim for a promotion as a part of a final order. CID at 10. To obtain a promotion as part of an order granting final relief, an appellant must identify a law mandating the promotion, or clearly establish that she would have been promoted during the relevant period. Dow, 117 M.S.P.R. 616, ¶ 18. Promotion potential in the compliance context presupposes continued employment with the agency. See 5 C.F.R. § 531.203 (stating that a promotion occurs while an employee is “continuously employed”). Conversely, the very nature of a term appointment is that it expires by a date certain as a basic condition of employment while the appointment is made. Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶ 7 (2010). Here, the appellant was serving in a term appointment, and she 9 has not pointed to any evidence showing that, in her capacity as a term appointee, she was entitled to an opportunity to earn an appointment to a permanent position. To the contrary, an agency is not obligated to offer an employee a permanent or other term position when her term appointment expires; rather, the appointment simply ends. See Murdock-Doughty v. Department of the Air Force, 74 M.S.P.R. 244, 252 (1997). In a similar situation to that presented here, the Board found that when an appellant held a term appointment at the time of her removal, which the Board mitigated to a 45-day suspension, the agency was in compliance with the Board’s order to retroactively reinstate the appellant to the date of the removal and impose the 45-day suspension, even though it separated her on the date that her term appointment expired, which meant that no back pay was due. Id. at 251-52. Thus, the agency in this matter did not act improperly in separating the appellant on the date her term appointment was predetermined to expire, instead of appointing her to another position. Because we find that a promotion and permanent appointment are not analogous under these circumstances, we conclude that the administrative judge’s reliance on Dow was misplaced. CID at 10-12. Accordingly, we need not determine whether the appellant “clearly established” that she would have applied and been selected for one of the permanent positions. Dow, 117 M.S.P.R. 616, ¶ 18. ¶19 Furthermore, we disagree with the administrative judge’s conclusion that the appellant’s failure to apply for any of the 10 vacancies was not fatal to her claim. CID at 11. Regardless of the likelihood that she would have been selected for any of the vacancies had she chosen to apply, the appellant nonetheless had the alternative recourse to apply for the positions, wait to learn whether she had been selected, and if not, to include the agency’s failure to appoint her to the position or positions as a personnel action in another whistleblower reprisal claim before the Office of Special Counsel and, if necessary, before the Board. See 5 U.S.C. §§ 2302(a)(2)(A)(i), (b)(8)(A). The appellant chose not to embark on this path, and she is left with the consequences of that inaction. 10 ¶20 Ultimately, it is the speculative nature of the administrative judge’s findings and order that leads us to conclude that the appellant is not entitled to a permanent position as a part of status quo ante relief. We will not speculate or presume that, had she chosen to apply for any of the vacancies, she would have been selected. Accordingly, we agree with the agency that the administrative judge should not have ordered it to reconstruct the hiring process for the 10 vacancies at issue, and we reverse the administrative judge’s order to place the appellant in a permanent Latent Print Examiner position, retroactive to the date of hire for the first vacancy announcement for a permanent Latent Print Examiner position. The appellant is not entitled to serve out her 4-year term appointment because it has expired. ¶21 In her petition for enforcement, the appellant also asserted that she was entitled to serve out the remaining 42 months on her 4-year term appointment. CF, Tab 1 at 9. The administrative judge made no findings concerning this claim, and we find it to be meritless. The Board has held that by the express nature of a term appointment, an appellant has no right to continued employment with the agency after the predetermined term has run. Berger v. Department of Commerce, 3 M.S.P.R. 198, 199 (1980); 5 C.F.R. § 316.303(b). Here, the initial decision was issued on April 21, 2016, the appellant’s term appointment expired on the predetermined date of May 20, 2016, and the initial decision became final on May 26, 2016—6 days after her term appointment expired. CID at 1, 38; CF, Tab 5 at 17-18. Under such circumstances, the appellant was not entitled to be physically restored to her term position. See Murdock-Doughty, 74 M.S.P.R. at 252 (finding that, in a compliance action concerning mitigating a removal to a 45-day suspension, because the appellant’s term appointment expired while she was serving the 45-day suspension, she was not entitled to back pay). ¶22 Finally, there is no indication in the record that the appellant rejected the agency’s calculation and issuance of back pay for the time period covering the 42 months that she did not serve. Thus, to accept the back pay award and be 11 reinstated to the term appointment for the 42 months at issue would be to allow the appellant to benefit twice from the administrative judge’s order. To find otherwise would allow the appellant to assume a better position than the one she was in prior to the agency’s actions, a practice in which the Board does not engage. See Sink v. Department of Energy, 110 M.S.P.R. 153, ¶ 19 (2008). ORDER ¶23 Based on the foregoing, we GRANT the agency’s petition for review, find the agency in compliance, and DISMISS the appellant’s petition for enforcement. ¶24 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 RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described 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 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 13 U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 14 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 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/GHARATI_ADRIA_AT_1221_13_4692_C_1_OPINION_AND_ORDER_1935472.pdf
06-22-2022	2022 MSPB 17	Timothy Skarada	https://www.mspb.gov/decisions/precedential/SKARADA_TIMOTHY_STEPHEN_PH_1221_15_0408_W_1_OPINION_AND_ORDER_1940218.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 17 Docket No. PH-1221-15-0408-W-1 Timothy Stephen Skarada, Appellant, v. Department of Veterans Affairs, Agency. June 22, 2022 Stephen D. Wicks, Esquire, Altoona, Pennsylvania, for the appellant. Marcus S. Graham, Esquire and Sara Elizabeth Aull, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we find that the appellant established jurisdiction over his IRA appeal but that he failed to show by preponderant evidence that he was subjected to a covered personnel action. Therefore, we deny the appellant’s request for corrective action. 2 BACKGROUND ¶2 At all times relevant to this appeal, the appellant has been employed as a GS-12 Supervisory Physical Therapist at the agency’s Altoona, Pennsylvania Medical Center in the Physical Medicine and Rehabilitation Service (PM&RS). Initial Appeal File (IAF), Tab 1 at 1, 5, Tab 5 at 50. On or about August 1, 2014, he filed a complaint with the Office of Special Counsel (OSC) alleging that the agency had retaliated against him for his protected whistleblowing disclosures to the Director and Chief of Staff regarding “unusual behavior” and deficient patient care on the part of his supervisor, the Chief of PM&RS (supervisor). IAF, Tab 1 at 7-56. The appellant informed OSC that he made these “impaired provider” disclosures between June 26, 2013, and June 20, 2014, and that, because of these disclosures, his chain of command, including the Director, the Chief of Staff, and his supervisor had stopped communicating with him, excluded him from meetings, subjected him to unfounded investigations, refused his request for a “Salary Market Review” of his position, removed his previous responsibilities, yelled at him during meetings, and subjected him to a hostile work environment. Id. at 14-16, 24-28, 42-55. ¶3 In a May 5, 2015 letter, OSC notified the appellant that it had made a preliminary determination not to seek corrective action on his behalf. Id. at 135-36. In a May 15, 2015 response, the appellant contested OSC’s preliminary determination, submitted emails describing additional impaired provider disclosures, and alleged that the agency had continued to subject him to retaliatory acts through the date of his response. Id. at 60-134. In relevant part, he alleged that: his chain of command had continued to exclude him from meetings and conversations; his supervisor refused to provide him the guidance necessary to carry out his duties; the Chief of Staff “degraded, yelled at, cursed at, and told [him] to shut up” in a meeting on one occasion; the Chief of Staff accused him of “fabricating data”; and his supervisor accused him of privacy violations, which resulted in an investigation. Id. at 64-66. On May 22, 2015, 3 OSC notified the appellant that it had determined that he had not suffered a retaliatory personnel action and that it had terminated its investigation into his complaint. Id. at 58-59. ¶4 The appellant timely filed this IRA appeal, declining his option for a hearing. IAF, Tab 1. The administrative judge issued an order apprising the appellant of the jurisdictional requirements in an IRA appeal and ordering the parties to submit evidence and argument on the jurisdictional issue. IAF, Tab 12. In response, the appellant alleged, among other things, that the agency had retaliated against him for his impaired provider disclosures by: (1) creating a hostile work environment; (2) subjecting him to unfounded and frequent investigations; (3) refusing to allow review of his position for possible upgrade; and (4) removing previous responsibilities and duties from him. IAF, Tab 15 at 14-18. Before the record on jurisdiction closed, the appellant submitted an addendum in which he alleged that the agency had further retaliated against him by convening an Administrative Investigative Board (AIB) to investigate allegations that he “participated in harassment and intimidation of [agency] employees.” IAF, Tab 17 at 3-4. In a March 10, 2016 initial decision based on the written record, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that the agency had taken or threatened to take a covered personnel action against him. IAF, Tab 18, Initial Decision (ID). ¶5 The appellant has filed a timely petition for review, and the agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant asserts that he has new evidence and contends that he has continued to experience retaliation for his protected whistleblowing disclosures.1 PFR File, Tab 1 at 3-5. 1 The appellant submits new evidence for the first time on review consisting of: (1) a February 22, 2016 letter from the Special Counsel to the President regarding the 4 ANALYSIS ¶6 The Board has jurisdiction over an IRA appeal based on whistleblower reprisal under the Whistleblower Protection Act (WPA)2 if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that: (1) he engaged in whistleblowing activity by making a protected disclosure; and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6 (2016). A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. Bradley, 123 M.S.P.R. 547, ¶ 6; 5 C.F.R. § 1201.4(s). Whether allegations are nonfrivolous is determined on the basis of the written record. Bradley, 123 M.S.P.R. 547, ¶ 6. Any doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. Id. After establishing the Board’s jurisdiction in an IRA appeal, the appellant then must establish a prima facie case of whistleblower retaliation by agency’s investigation into the appellant’s impaired provider disclosures and OSC’s findings that the agency properly investigated and responded to the allegations; and (2) an April 12, 2016 email to OSC in which the appellant informed OSC that he had been subjected to an additional fact-finding interview. PFR File, Tab 1 at 7-14. The Board generally will not consider evidence submitted for the first time on review absent a showing that the documents and the information contained in the documents were unavailable before the record closed despite due diligence, and that the evidence is of sufficient weight to warrant an outcome different from that of the initial decision. See Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115(d). Although these documents are new, i.e., they were unavailable before the record closed below, they are not material, i.e., they do not warrant an outcome different from that of the initial decision because they do not establish that the appellant was subjected to a “personnel action” under the Whistleblower Protection Act. Therefore, we will not consider these documents for the first time on review. 2 The WPA has been amended several times, including by the Whistleblower Protection Enhancement Act. The references herein to the WPA include those amendments. 5 proving by preponderant evidence that he made a protected disclosure that was a contributing factor in a personnel action taken against him. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 12 (2015); see 5 U.S.C. § 1221(e)(1). For the reasons discussed below, we find that the appellant established Board jurisdiction over his IRA appeal, but failed to prove his prima facie case by preponderant evidence. The appellant exhausted his administrative remedies regarding his impaired provider disclosures and some of the alleged personnel actions raised in this appeal. ¶7 Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his administrative remedies with OSC before seeking corrective action from the Board in an IRA appeal. The Board has recently clarified the substantive requirements of exhaustion. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an appellant has provided OSC with sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to those issues that have been previously raised with OSC. However, an appellant may give a more detailed account of his whistleblowing activities before the Board than he did to OSC. An appellant may demonstrate exhaustion through his initial OSC complaint, evidence that he amended the original complaint, including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations, and the appellant’s written responses to OSC referencing the amended allegations. An appellant may also establish exhaustion through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in the Board appeal. Id. ¶8 Here, the administrative judge found that the appellant exhausted his OSC remedy regarding his impaired provider disclosures and some of the alleged personnel actions—namely, the alleged significant change in his duties and hostile work environment. ID at 4-5. The parties do not challenge these findings 6 on review, and we discern no reason to disturb them. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). ¶9 The administrative judge also found that the appellant failed to exhaust his OSC remedy regarding the alleged retaliatory “unfounded and frequent investigations.” ID at 8. We disagree, in part, with this finding. The record reflects that the appellant notified OSC that the agency subjected him to an investigation in September 2013, concerning a billing issue and to another investigation in or around February or March 2015, regarding an alleged Privacy Act violation. IAF, Tab 1 at 16, 65-66, 127-28. These statements sufficiently informed OSC of the grounds of the appellant’s charge of whistleblower reprisal with respect to these investigations and gave OSC a sufficient basis to pursue an investigation that might lead to corrective action. See Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). Thus, we find that the appellant exhausted his OSC remedy regarding these investigations. ¶10 On the other hand, the appellant was not notified of the AIB investigation until January 15, 2016, IAF, Tab 17, approximately 8 months after OSC’s May 22, 2015 closure of its investigation into his prohibited personnel practice allegations, IAF, Tab 1 at 135-36. Although the appellant has stated in his petition for review that he informed OSC of the AIB investigation, he has not presented any evidence showing that he did so. PFR File, Tab 1 at 3-4. His bare allegation, without any evidence showing that he specifically informed OSC of the alleged retaliatory AIB investigation, is insufficient to prove exhaustion of this matter. See Chambers, 2022 MSPB 8, ¶ 11; Mason, 116 M.S.P.R. 135, ¶ 8. ¶11 The administrative judge did not specifically determine whether the appellant exhausted his OSC remedy regarding his allegations that his chain of 7 command retaliated against him by denying his request for review of his position for possible upgrade, excluding him from meetings and conversations, and failing to provide him support and guidance. We find that he did exhaust these allegations by raising them before OSC. IAF, Tab 1 at 14-16, 24-28, 50, 54-55, 62-66. Therefore, we will consider these allegations, as well as the appellant’s allegations regarding the September 2013 and March 2015 investigations, hostile work environment, and the change in his duties in our review of whether the appellant has nonfrivolously alleged that the agency subjected him to a covered personnel action in retaliation for his impaired provider disclosures. The appellant nonfrivolously alleged that he made at least one protected disclosure. ¶12 A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of fact that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine whether a putative whistleblower has a reasonable belief in the disclosure is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidenced a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Id.; see 5 U.S.C. § 2302(b)(8). Here, the administrative judge found that the appellant made a protected disclosure when he reported to agency officials that an agency physician was exhibiting an impaired mental status. ID at 6. The agency 8 does not contest this finding, and we find that it is supported by the record.3 See Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359. The appellant has established Board jurisdiction over this IRA appeal. ¶13 In cases such as this one, when the appellant has alleged multiple personnel actions, the Board has jurisdiction when the appellant exhausts his administrative remedies before OSC and makes a nonfrivolous allegation that at least one alleged personnel action was taken in reprisal for at least one alleged protected disclosure. Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 19 (2011). Here, the administrative judge found that the appellant failed to nonfrivolously allege that he was subjected to a “personnel action” within the meaning of the WPA and, therefore, did not consider whether he nonfrivolously alleged that his disclosures were a contributing factor in the agency’s action. ID at 6-9. For the reasons discussed below, we find that the appellant’s allegations that the agency removed some of his previous duties and responsibilities and subjected him to a hostile work environment constitute nonfrivolous allegations of a covered personnel action. We further find that the appellant nonfrivolously 3 The administrative judge did not identify the nature of wrongdoing evidenced by the appellant’s disclosures. We find that the appellant reasonably believed that his disclosures concerned a substantial and specific danger to public health and safety. In determining whether a disclosed danger is sufficiently substantial and specific to warrant protection under the WPA, the Board must consider: (1) the likelihood of harm resulting from the danger; (2) when the alleged harm may occur; and (3) the nature of the harm, i.e., the potential consequences. Chambers v. Department of the Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010). The disclosed danger here—an allegedly cognitively impaired physician—could undoubtedly lead to immediate and serious harm to patients. See Parikh v. Department of Veterans Affairs, 110 M.S.P.R. 295, ¶¶ 7, 22 (2008) (finding that the appellant nonfrivolously alleged a protected disclosure concerning purported inadequate supervision and training of interns, which could potentially endanger patients), overruled on other grounds by Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 16 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). 9 alleged that his disclosures were a contributing factor in at least one of the covered personnel actions. ¶14 Under the WPA, a “personnel action” is defined as an appointment; a promotion; an action under 5 U.S.C. chapter 75 or other disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation under 5 U.S.C. chapter 43 or under title 38; a decision about pay, benefits, or awards concerning education or training if the education or training reasonably may be expected to lead to an appointment, promotion, performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); a decision to order psychiatric testing or examination; the implementation or enforcement of any nondisclosure policy, form, or agreement; and any other significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A). The legislative history of the 1994 amendment to the WPA indicates that the “any other significant change in duties, responsibilities, or working conditions” should be interpreted broadly, to include “any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system and should be determined on a case-by-case basis.” 140 Cong. Rec. H11,419, H11,421 (daily ed. Oct. 7, 1994) (statement of Rep. McCloskey); see Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015); Roach v. Department of the Army, 82 M.S.P.R. 464, ¶ 24 (1999). ¶15 Notwithstanding the broad interpretation accorded to the term “significant change in duties, responsibilities, or working conditions,” not every agency action is a “personnel action” under the WPA. See King v. Department of Health & Human Services, 133 F.3d 1450, 1453 (Fed. Cir. 1998). Rather, to constitute a covered personnel action under the WPA, an agency action must have practical consequences for the employee. Id. Therefore, we conclude that to amount to a “significant change” under section 2302(a)(2)(A)(xii), an agency action must 10 have a significant impact on the overall nature or quality of an employee’s working conditions, responsibilities, or duties. ¶16 In determining whether an appellant has suffered a “significant change” in his duties, responsibilities, or working conditions, the Board must consider the alleged agency actions both collectively and individually. See Holderfield v. Merit Systems Protection Board, 326 F.3d 1207, 1209 (Fed. Cir. 2003). In Savage, the Board stated that a hostile work environment itself may constitute a covered personnel action under the WPA. Savage, 122 M.S.P.R. 612, ¶ 23. Although the term “hostile work environment” has a particular meaning in other contexts, we take this opportunity to clarify that allegations of a hostile work environment may establish a personnel action under the WPA, as established by longstanding Board precedent covering whistleblowing claims raised in a civil service law context, only if they meet the statutory criteria, i.e., constitute a significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A). Thus, as described above, although the “significant change” personnel action should be interpreted broadly to include harassment and discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities will be found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). ¶17 In the instant case, the appellant alleged that his chain of command directed him to stop attending leadership meetings and performing “extra duties.” IAF, Tab 1 at 14-15, 28, 45. He also alleged that he was excluded from the interview and hiring process for two new hires to his service. Id. at 103. We find that these allegations constitute a nonfrivolous allegation of a significant change in duties or responsibilities. ¶18 In addition, the appellant alleged that his chain of command harassed him and subjected him to a hostile work environment by, among other things, 11 excluding him from meetings and conversations, subjecting him to multiple investigations,4 accusing him of “fabricating data” and of a Privacy Act violation, refusing his request for a review of his position for possible upgrade, yelling at him on three occasions, and failing to provide him the support and guidance needed to successfully perform his duties. Id. at 14-16, 24-28, 50, 54-55, 62-66. Although none of these allegations constitute a covered personnel action individually,5 we find that the appellant has made a nonfrivolous allegation that the cumulative effect of these actions constituted a significant change in his working conditions. See Holderfield, 326 F.3d at 1209 (suggesting that a number of minor agency actions relating to the appellant’s working conditions may amount to a covered personnel action under section 2302(a)(2)(A)(xii) collectively, even if they are not covered personnel actions individually); Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant nonfrivolously alleged a significant change in working conditions when she alleged that her supervisors harassed her about 4 Although employee investigations generally are not personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A), it is proper to consider evidence regarding an investigation if it is so closely related to an alleged personnel action that it would have been a pretext for gathering information to retaliate for whistleblowing. Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 21 (2012). Here, the appellant has not identified any specific personnel actions associated with the September 2013 and February 2015 investigations; rather, he admits that there was no follow-up to either investigation. IAF, Tab 1 at 46, 66. Accordingly, we find that he has not nonfrivolously alleged that the investigations themselves constitute a covered personnel action. 5 The National Defense Authorization Act for Fiscal Year 2018 (NDAA for 2018), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. The NDAA for 2018 amended 5 U.S.C. § 1214 to allow the Office of Special Counsel to petition the Board for corrective action concerning damages reasonably incurred by an employee due to an agency’s investigation of the employee if it was commenced, expanded, or extended in retaliation for protected whistleblowing activity. NDAA for 2018, § 1097(c)(4), 131 Stat. at 1619 (codified at 5 U.S.C. § 1214(i)). Regardless of questions concerning retroactivity, the provision does not apply to the instant appeal because OSC has not petitioned the Board for such relief. 12 personal telephone calls, closely monitored her whereabouts, followed her to the bathroom, and denied her an accommodation for her spina bifida, which required her to self-catheterize), overruled on other grounds by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014). ¶19 Having determined that the appellant nonfrivolously alleged that he was subjected to a significant change in duties or responsibilities and a significant change in working conditions, we proceed to the question of whether he nonfrivolously alleged that his protected disclosures were a contributing factor in the agency’s decision to take these alleged personnel actions. To satisfy the contributing factor criterion, an appellant only need raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure was one factor that tended to affect the personnel action in any way. Ontivero v. Department of Homeland Security, 117 M.S.P.R. 600, ¶ 21 (2012). One way to establish this criterion is the knowledge-timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. The Board has held that a personnel action taken within approximately 1 to 2 years of the appellant’s disclosures satisfies the knowledge-timing test. Id., ¶ 23. ¶20 Here, the appellant alleged that, on June 26, 2013, he made his first disclosure regarding his supervisor’s alleged impaired status to the Director and Chief of Staff. IAF, Tab 1 at 5. He further alleged that, less than 2 weeks later, the Chief of Staff instructed him to stop going to “other meetings” and “apparently informed” his supervisor of the disclosures because, beginning on July 26, 2013, his supervisor became hostile towards him. Id. at 14. The appellant alleged that he continued to report his concerns about his supervisor’s impaired status over the next 2 years and, as described above, alleged that his 13 chain of command continued removing his previous duties and responsibilities and subjecting him to a hostile work environment during that time. Id. at 15-16, 24-28, 42-55, 60-66. We thus find that the appellant has satisfied the knowledge-timing test because he nonfrivolously alleged that his supervisor and the Chief of Staff were aware of his disclosures and that they commenced the alleged retaliatory acts within several weeks of his first disclosures. See Ontivero, 117 M.S.P.R. 600, ¶ 23. In light of the foregoing, we find that the appellant has established Board jurisdiction over this IRA appeal by proving exhaustion of his OSC remedies and nonfrivolously alleging that he made at least one protected disclosure that was a contributing factor in at least one covered personnel action. Mastrullo, 123 M.S.P.R. 110, ¶ 12. The appellant is not entitled to corrective action because he failed to establish by preponderant evidence that he suffered a covered personnel action. ¶21 As stated above, once an appellant establishes jurisdiction over his IRA appeal, he is entitled to adjudication on the merits of his claim. Id. The administrative judge informed the appellant of his burden of proof on the merits of his IRA appeal and ordered him to submit evidence pertaining to both jurisdiction and the merits of his request for corrective action. IAF, Tab 12 at 6-7. The administrative judge further informed the appellant that, because he did not request a hearing, a merits decision would be based on the written record. Id. at 8. As the appellant was provided a full and fair opportunity below to develop the record on the merits of his IRA appeal, we may decide the matter here without remanding the case for further proceedings. See Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 10 (2010). ¶22 When reviewing the merits of an IRA appeal, the Board must determine whether the appellant has established by preponderant evidence that he made a protected disclosure that was a contributing factor in an agency’s personnel action. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 10 (2014). A preponderance of the evidence is the degree of relevant evidence that a 14 reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. Id.; 5 C.F.R. § 1201.4(q). If the appellant makes such a showing, the Board must order corrective action unless the agency can establish by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. Aquino, 121 M.S.P.R. 35, ¶ 10. For the reasons discussed below, we find that the appellant failed to prove by preponderant evidence that the agency subjected him to a covered personnel action.6 ¶23 To meet his burden of proving that the agency subjected him to a “significant change” in his duties, responsibilities, or working conditions, the appellant must provide sufficient information and evidence to allow the Board to determine whether the agency’s alleged action or actions were “significant.” See Shivaee v. Department of the Navy, 74 M.S.P.R. 383, 388-89 (1997) (finding that an employee’s relocation from a building on the naval base to a building located outside of the base did not constitute a personnel action because the employee failed to provide sufficient information for the Board to determine whether his move was “significant,” such as whether other employees in his position worked outside the base and whether it is common for such employees to be moved from inside the base to outside and vice versa). As described above, only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing or 6 The Board may not order corrective action if, “after a finding that a protected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence” of the disclosure. 5 U.S.C. § 1221(e)(2). Because we find that the appellant failed to establish his prima facie case, we do not reach the question of whether the agency established by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s disclosures. 15 otherwise undermine the merit system will be found to constitute a covered personnel action under section 2302(a)(2)(A)(xii). ¶24 Here, as discussed above, the appellant alleged that, as a result of his protected disclosures, his chain of command removed some of his previous duties and responsibilities. Specifically, he alleged that: in July 2013, the Chief of Staff told him to stop attending his “other meetings” and to start attending meetings with his supervisor; in September 2013, the Chief of Staff directed him not to attend any more Leadership Development Institute (LDI) meetings after the appellant completed that program and to focus on helping his supervisor “get the department where it was when [he] started”; in July 2014, his supervisor directed him to stop attending the Multidisciplinary Pain Management Committee (MPMC) meetings; and, on unspecified dates, his supervisor and the Chief of Staff excluded him from participating in the interview and hiring process for two new hires in his service. IAF, Tab 1 at 14-15, 28, 45, 103. ¶25 The appellant’s position description does not mention participation in LDI classes, MPMC meetings, or the interview and hiring process as part of his regular duties and responsibilities. Id. at 33-41. Although the appellant submitted a copy of a memorandum regarding the MPMC, which lists his position as one of the members of the MPMC and states that the MPMC meets monthly, id. at 88, he has not described the nature of his prior participation in these monthly meetings or stated how many meetings per year he attended. Likewise, he has not described the nature and frequency of his prior participation in the interview and hiring process, the LDI meetings, or the “other meetings” he was told to stop attending. The record does not establish that these apparently collateral duties and responsibilities constituted a “significant” part of the appellant’s duties and responsibilities. See Shivaee, 74 M.S.P.R. at 388-89. Moreover, the record reflects that the appellant completed the LDI program in May 2014, and, thus, there would have been no basis for his continued participation thereafter. IAF, Tab 1 at 71-72. Accordingly, we find that the 16 appellant has not established by preponderant evidence that his exclusion from these meetings and the interview and hiring process constituted a significant change in his duties or responsibilities under the WPA. ¶26 The appellant also alleged that, as a result of his protected disclosures, his chain of command subjected him to a hostile work environment, i.e., subjected him to harassment that constituted a significant change in his working conditions. Specifically, he alleged that his supervisor avoided him or walked away from him on multiple occasions, often responded to his questions by stating that he did not know the answer, and failed to provide him adequate guidance. Id. at 14, 24-26. For example, he alleged that, in January 2014, he asked his supervisor for guidance regarding scheduling, but that his supervisor failed to provide any guidance over the course of 2 weeks and only responded by saying “I am going to take care of that.” Id. at 50. Furthermore, the appellant alleged that the Chief of Staff and his supervisor excluded him from meetings in which they discussed realigning audiology services under the appellant’s supervision, and then his supervisor denied knowledge of the realignment and failed to provide him guidance on his new supervisory responsibilities. Id. at 24, 50, 54. He also alleged that his supervisor told him that he would not support the appellant’s request for a review of his position for possible upgrade, even though the Speech and Audiology Service had come under his supervision and his staff had grown to 21 employees. Id. at 26-27. ¶27 In addition to the above allegations regarding the lack of communication, cooperation, and guidance from management, the appellant alleged that, as a result of his protected disclosures, his chain of command began treating him in a hostile manner. Specifically, he alleged that, on September 18, 2013, his supervisor came into his office, became visibly angry, walked around to stand behind the appellant’s desk, and yelled at him that he needed to fix something. Id. at 45-46. The appellant also alleged that, on April 2, 2014, his supervisor “grabbed [his] arm to pull [him] into a room” and yelled at him for reporting an 17 incident of improper patient care to the Director and Chief of Staff. Id. at 64, 82-83. He further alleged that, on September 30, 2014, the Chief of Staff yelled at him, accused him of “making up our service data,” and told him to “shut up” during a meeting. Id. at 106. ¶28 As noted above, the appellant also alleged that the agency directed him to stop attending MPMC and LDI meetings, told him to stop performing “extra duties,” and convened investigations against him in September 2013, concerning a billing issue and another investigation in or around February or March 2015, regarding an alleged Privacy Act violation. Id. at 14-16, 28, 45, 65-66, 127-28. The appellant additionally alleged that he was excluded from an annual leadership retreat in 2014. Id. at 103. ¶29 As discussed above, to determine whether allegations of a hostile work environment establish a covered personnel action, we must consider whether the appellant has shown, by preponderant evidence, that the agency’s actions, considered individually and collectively, had practical and significant effects on the overall nature and quality of his working conditions, duties, or responsibilities. Although the appellant submitted witness affidavits supporting many of his allegations, IAF, Tab 10 at 21-87, we find that he has failed to establish by preponderant evidence that the agency’s actions constituted harassment to such a degree that his working conditions were significantly and practically impacted. His chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment. In addition, the three alleged incidents involving yelling were spread out over the course of a year and, while unprofessional, were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions. The investigations, although likely inconvenient, were not overly time-consuming, did not result in any action against the appellant or follow-up investigation, and appear to have been routine workplace inquiries. IAF, Tab 1 at 46, 66. The appellant’s remaining allegations represent mere disagreements 18 over workplace policy. In sum, the appellant’s allegations, collectively and individually, while perhaps indicative of an unpleasant and unsupportive work environment, do not establish, by preponderant evidence, that he suffered a significant change in his working conditions under the WPA. ¶30 Finally, we have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. ORDER ¶31 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 RIGHTS7 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. 7 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. 19 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: 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 20 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑ appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 21 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 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.8 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). 8 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. 22 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SKARADA_TIMOTHY_STEPHEN_PH_1221_15_0408_W_1_OPINION_AND_ORDER_1940218.pdf
05-31-2022	2022 MSPB 15	Harinder Singh	https://www.mspb.gov/decisions/precedential/SINGH_HARINDER_SF_0752_15_0014_I_1_OPINION_AND_ORDER_1929068.pdf	United States Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 15 Docket Nos. SF-0752-15-0014-I-1 SF-0752-15-0155-I-1 Harinder Singh, Appellant, v. United States Postal Service, Agency. May 31, 2022 Myrna Castanon, Esquire, Los Angeles, California, for the appellant. Catherine V. Meek, Long Beach, California, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his demotion. For the reasons discussed below, we DENY the appellant’s petition for review and AFFIRM the initial decision AS MODIFIED by this Opinion and Order. BACKGROUND ¶2 The appellant was employed by the agency as the Manager Transportation/Networks, EAS-23, at the Los Angeles Processing and Distribution Center (P&DC). Singh v. U.S. Postal Service, MSPB Docket 2 No. SF-0752-15-0014-I-1, Initial Appeal File (0014 IAF), Tab 76 at 4. In March 2013, one of the appellant’s subordinate employees reported to agency authorities that the appellant physically threatened him during a meeting. Id. The agency’s Office of Inspector General (OIG) investigated those allegations. OIG later expanded its investigation to include other alleged misconduct by the appellant. Id. at 4-5. The appellant was temporarily assigned to another position and then put on administrative leave while he was under investigation. Id. ¶3 After OIG completed its investigations into the appellant’s conduct, the agency interviewed the appellant and other employees. Id. at 5-6. On April 29, 2014, the agency issued the appellant a Notice of Proposed Removal. 0014 IAF, Tab 4 at 138-50. The agency charged the appellant with misuse of position, acceptance of gifts from subordinates, and improper conduct. Id. at 138-40. The appellant provided both oral and written responses to the proposed removal; he also submitted a number of documents to the deciding official. Id. at 17-136. ¶4 On September 9, 2014, the agency issued a Letter of Decision removing the appellant. Id. at 12-16. The deciding official sustained the charges of misuse of position and acceptance of gifts from subordinates in full and he sustained three of the five specifications of improper conduct. Id. at 12-13. The deciding official determined that the penalty of removal was appropriate for the sustained misconduct. Id. at 13-15. ¶5 On October 3, 2014, the appellant timely filed a Board appeal challenging his removal. 0014 IAF, Tab 1. On November 26, 2014, the agency issued a new Letter of Decision rescinding the September 9, 2014 removal decision and replacing it with a decision to demote the appellant, effective November 29, 2014, to the position of Network Operations Specialist, EAS-19. 0014 IAF, Tab 7 at 7-12. The deciding official wrote in part: Although I believe your conduct warrants your removal from the Postal Service, I believe it is in everyone’s best interest to attempt rehabilitation through a lower level assignment with direct 3 supervision and no subordinates. Such a position was unavailable at the time of my original decision, but is available now. Id. at 10. The agency informed the appellant that he was entitled to back pay for the period during which his removal was in effect. Id. at 7. ¶6 The appellant timely filed an appeal of his demotion with the Board on December 2, 2014. Singh v. U.S. Postal Service, MSPB Docket No. SF-0752- 0155-I-1, Initial Appeal File (0155 IAF), Tab 1. The administrative judge joined the removal and demotion appeals for adjudication. 0014 IAF, Tab 14; 0155 IAF, Tab 8. The agency later moved to dismiss the removal appeal as moot, 0014 IAF, Tab 27, but the appellant argued that the removal appeal was not moot because he had not been returned to the status quo ante and because he had not received a performance-based increase to his salary for 2013 and 2014, 0014 IAF, Tab 28. After a hearing on the joined appeals, the agency supplemented its motion to dismiss with additional evidence regarding the salary increase issue. 0014 IAF, Tab 82. The appellant responded, arguing that the removal appeal was still not moot. 0014 IAF, Tab 83. ¶7 The administrative judge issued an initial decision affirming the appellant’s demotion. 0014 IAF, Tab 86, Initial Decision (ID). She found that the agency proved the charge of misuse of position and the three specifications of improper conduct that were sustained by the deciding official, but that the agency failed to prove the charge of acceptance of gifts from subordinates. ID at 4-20. As to penalty, the administrative judge limited her review to the demotion to avoid the possibility of affirming a penalty more severe than the one the agency ultimately chose to impose. ID at 22. Even though she did not sustain all of the charges, the administrative judge found that the penalty of demotion was within the tolerable limits of reasonableness. ID at 22-24.1 1 The administrative judge also found that the agency fully rescinded the removal and provided the appellant with all of the relief he could have received in his removal 4 ¶8 The appellant has filed a timely petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. He argues that the administrative judge erred in crediting the testimony of one of the agency’s key witnesses. Id. at 23-24. Additionally, he argues that the administrative judge improperly denied his motion to compel discovery related to the consistency of the penalty with those imposed on employees for the same or similar offenses. Id. at 12-13. He also challenges the administrative judge’s analysis of the Douglas factors.2 Id. at 13‑16. Finally, the appellant argues that he was denied due process and that the deciding official was improperly influenced. Id. at 16-22. The agency has responded in opposition to the petition for review, PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. ANALYSIS The appellant’s disparate penalty claim does not provide a basis for reversing the initial decision. ¶9 The appellant argues that he was denied discovery regarding the agency’s treatment of other employees who engaged in similar misconduct. PFR File, Tab 1 at 12-13. He speculates that such discovery would have revealed that the agency treated similarly situated employees more leniently. Id. at 13. Before we address the appellant’s arguments relating to discovery, we take this opportunity to reinstate our former law governing the analysis of disparate penalty claims and thereby overrule Figueroa v. Department of Homeland Security, 119 M.S.P.R. 422 (2013); Villada v. U.S. Postal Service, 115 M.S.P.R. 268 (2010); Woebcke v. appeal. ID at 24-25. She did not find that the removal appeal was moot, however. ID at 24. On review, the appellant does not challenge the administrative judge’s disposition of the removal appeal, and therefore we will address only the demotion appeal. 2 In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-306 (1981), the Board articulated a nonexhaustive list of factors to be considered when evaluating the penalty to be imposed for an act of misconduct. 5 Department of Homeland Security, 114 M.S.P.R. 100 (2010), abrogated in part on other grounds as recognized in Bowman v. Small Business Administration, 122 M.S.P.R. 217 (2015); Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), and their progeny, except to the extent that the law may have been modified by the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit’s) decision in Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009), discussed infra. ¶10 It is well settled that among the factors an agency should consider in setting the penalty for misconduct is “consistency of the penalty with those imposed upon other employees for the same or similar offenses.” Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981). For decades after Douglas was decided, for a disparate penalty claim to succeed, the Board required close similarity in offenses between the appellant and any comparator(s), and that the appellant and the comparator(s) worked in the same unit and for the same supervisors. E.g., Jackson v. Department of the Army, 99 M.S.P.R. 604, ¶ 7 (2005); Fearon v. Department of Labor, 99 M.S.P.R. 428, ¶ 11 (2005); Rasmussen v. Department of Agriculture, 44 M.S.P.R. 185, 191-92 (1990); Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983). ¶11 In a series of cases issued in 2010, however, the Board changed its approach to disparate penalty claims. Under the new precedent, broad similarity in misconduct between the appellant and the comparator(s) was sufficient to shift the burden to the agency to explain the difference in treatment, and the universe for potential comparators was seemingly limitless. See Figueroa, 119 M.S.P.R. 422, ¶¶ 3‑4, 10-12; Villada, 115 M.S.P.R. 268, ¶¶ 10-12; Woebcke, 114 M.S.P.R. 100, ¶¶ 19‑22; Lewis, 113 M.S.P.R. 657, ¶¶ 5‑15. ¶12 In announcing its “more flexible approach” to disparate penalties claims, the Board relied in large part on a 2009 decision from our reviewing court. In Williams, 586 F.3d 1365, the Federal Circuit remanded an appeal to the Board for 6 further development of the record as to the agency’s treatment of an alleged comparator. Id. at 1368-69. Previously in that case, the administrative judge had found the comparator evidence irrelevant because the comparator was not in the same chain of command as the appellant. Id. at 1368. The court found that “[w]hile the fact that two employees are supervised under different chains of command may sometimes justify different penalties,” the record before it did not justify the alleged disparity in treatment, particularly because the appellant was a mere participant in a tax fraud scheme orchestrated by the comparator. Id. at 1368-69. Applying Williams, the Board in Lewis held that there must be enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly situated employees differently, but that the Board would not have “hard and fast rules regarding the ‘outcome determinative’ nature of these factors.” Lewis, 113 M.S.P.R. 657, ¶¶ 15, 21. ¶13 Under the binding precedent of Williams, a comparator need not always have to be in the same work unit or under the same supervisor.3 Williams, 586 F.3d at 1368-69. Thus, the Board’s pre-Williams statements to the contrary are no longer valid. Nevertheless, while no single factor is outcome determinative, the fact that two employees come from different work units and/or 3 A panel of the Federal Circuit recently held that “[a] comparator employee is an employee that ‘was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline.’” Miskill v. Social Security Administration, 863 F.3d 1379, 1384 (Fed. Cir. 2017) (quoting Lewis). To the extent this statement can be read as an absolute requirement that comparator employees be in the same work unit with the same supervisor, it conflicts with the prior panel decision in Williams, in which the court held that “the fact that two employees are supervised under different chains of command may sometimes justify different penalties.” Williams, 586 F.3d at 1368 (emphasis supplied). We remain bound by Williams, the earlier panel decision. See Deckers Corporation v. United States, 752 F.3d 949, 959, 966 (Fed. Cir. 2014) (explaining that only an en banc court opinion, intervening Supreme Court precedent, or Congressional change of an underlying statute may overrule prior precedential panel decisions). 7 supervisory chains remains an important factor in determining whether it is appropriate to compare the penalties they are given. In most cases, employees from another work unit or supervisory chain will not be proper comparators. In Williams, the court emphasized the fact that the comparator had originated and organized a tax fraud scheme in which Mr. Williams was one of several participants. Id. at 1366-69. Given the unusually close connection between the two employees’ misconduct in that case, the court found that the agency needed to justify the alleged disparity in the discipline they received.4 The unique circumstances in Williams illustrate that there must be a close connection between the misconduct or some other factor for an employee from another work unit or supervisory chain to be a proper comparator for disparate penalty purposes. The universe of potential comparators will vary from case to case, but it should be limited to those employees whose misconduct and/or other circumstances closely resemble those of the appellant. ¶14 Prior to Williams, a panel of the Federal Circuit held that when an employee raises an allegation that he received more severe discipline than another employee, the proper inquiry is whether the agency knowingly treated employees differently “in a way not justified by the facts, and intentionally for reasons other than the efficiency of the service.” Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988). To the extent the panel in Williams intended to remove the knowledge portion of the disparate penalty analysis, as we similarly noted, supra, in footnote 3, we are bound to follow the court’s previous analysis, as set forth in the court’s earlier panel decision in Facer, which includes the knowledge portion. See Deckers Corporation v. United States, 752 F.3d 949, 959, 966 (Fed. Cir. 2014) (holding that, “[i]n this Circuit, a later panel is bound 4 Mr. Williams alleged that the agency reemployed the comparator, an assertion the agency disputed. Williams, 586 F.3d at 1368-69. The court remanded the appeal for further development of the factual record. Id. at 1369. 8 by the determinations of a prior panel, unless relieved of that obligation by an en banc order of the court or a decision of the Supreme Court[]”). Thus, we overrule Lewis and subsequent cases to the extent they have deviated from the standard set forth in Facer. In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently. ¶15 Since 2010, the Board has used its “flexible” approach to disparate penalty claims as a basis for mitigating agency-imposed penalties. For example, in Portner v. Department of Justice, 119 M.S.P.R. 365, ¶¶ 2-6, 9, 16-22 (2013), the Board mitigated the removal of a supervisor who operated his official Government vehicle (OGV) and made multiple false statements to agency employees and the police regarding his actions in an attempt to hide the fact that he parked the OGV in a parking lot adjacent to a Hooters restaurant, where he consumed alcohol and ate dinner. In reducing the penalty to a 45-day suspension, the Board relied in part on evidence that other employees who had been charged with misuse of an OGV and other misconduct had received lesser penalties, even though none of the comparators had been charged with both misuse of an OGV and making false statements, like the appellant. Id., ¶¶ 20-22. The Board found that, although the misconduct of the comparators was not the same as the appellant’s, it “appear[ed] at least as serious as the appellant’s wrongdoing” and that the agency failed to offer a sufficient explanation for the significantly harsher penalty imposed on the appellant. Id., ¶¶ 21‑22. ¶16 In Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 2-13, 20-29 (2012), the Board affirmed an administrative judge’s decision mitigating the removal of a mail handler who was arrested near agency property while on duty and later convicted of a felony, unlawful possession of a controlled substance. In mitigating the removal to a 90-day suspension, the administrative judge cited another employee who worked at the same facility as the appellant and was not removed after being charged with drug possession. Id., ¶¶ 3, 11, 13. The Board 9 recognized several differences between the appellant’s circumstances and those of the comparator, including that the comparator was charged with possession of marijuana only, whereas the appellant was charged with possession of both cocaine and marijuana, and that the comparator was not arrested on or near agency property. Id., ¶¶ 21-22. Nevertheless, the Board determined that the comparison between the two penalties was appropriate because the comparator had engaged in “a more serious act” by attempting to smuggle marijuana into a prison facility. Id. ¶17 The Board’s disparate penalty analysis in cases like Portner and Boucher represents a departure from the standard set forth in Douglas, which calls for comparison with penalties “imposed upon other employees for the same or similar offenses.” Douglas, 5 M.S.P.R. at 305 (emphasis added). The Board in Portner and Boucher did not find that the comparators had engaged in the same or similar offenses as the appellants. Instead, the Board found comparisons of the penalties appropriate in those cases because the comparators’ misconduct was “as serious as” or “more serious” than that of the appellants. Portner, 119 M.S.P.R. 365, ¶ 22; Boucher, 118 M.S.P.R. 640, ¶ 22. We overrule Portner and Boucher to the extent they held that the disparate penalty analysis should extend beyond the same or similar offenses. The Board should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately. ¶18 Additionally, the consistency of the penalty with those imposed upon other employees for the same or similar offenses is simply one of a nonexhaustive list of 12 factors that are relevant for consideration in determining the appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The Board has frequently stated that the nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibility, is the most important factor in assessing the reasonableness of a penalty. E.g., Batara v. Department of the Navy, 123 M.S.P.R. 278, ¶ 8 (2016); Spencer v. U.S. Postal Service, 112 M.S.P.R. 10 132, ¶ 7 (2009). Under the Board’s post-Lewis standard, in some cases the consistency of the penalty has become not only more important than any of the other Douglas factors, it has become the sole outcome determinative factor. We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty. Therefore, while the fact that one employee receives a more severe penalty than that imposed on a comparator who has committed the same or similar misconduct should be considered in favor of mitigating the penalty in a given case, mitigation is by no means required in all such cases. There often will be a range of penalties that would fall within the tolerable limits of reasonableness in a given case. That an agency chooses to impose a penalty at the more lenient end of that range in one case should not mean that it cannot impose a penalty at the more severe end of that range in another case.5 ¶19 In light of our reinstatement of the former legal standard for analyzing disparate penalty claims, we now turn to the appellant’s argument that he was improperly denied discovery regarding potential comparators. PFR File, Tab 1 at 12-13. Specifically, the appellant sought information regarding the treatment of employees agency-wide who had engaged in similar misconduct. 0014 IAF, Tab 11 at 20. The agency objected to the appellant’s request as overbroad and limited its response to employees at the Los Angeles P&DC. Id. at 32-33. The appellant reiterated his request for agency-wide information. Id. at 60. The agency reiterated its objections, but it did supplement its discovery response with information regarding EAS employees within the Pacific Area (i.e., California 5 There is no guarantee that a prior agency penalty determination even fell within the tolerable limits of reasonableness. Thus, the consistency called for under Villada, Woebcke, and Lewis might be rooted in an earlier disciplinary decision that was unwise, meaning that a manager could be forced to go easy on an employee who committed serious misconduct because of the unwarranted leniency of some other manager in the past. 11 and Hawaii) who were charged with arguably similar misconduct over the prior 2 years. 0014 IAF, Tab 18 at 225. The appellant asked the administrative judge to compel the agency to produce information about potential comparators agency-wide. 0014 IAF, Tab 11 at 4-12, Tab 19. The administrative judge denied the appellant’s motion to compel, finding the requests to be “overbroad and burdensome and not likely to lead to the discovery of relevant admissible evidence.” 0014 IAF, Tab 74 at 1-2. ¶20 An administrative judge has broad discretion in ruling on discovery matters, and absent an abuse of discretion the Board will not find reversible error in such rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). We find no abuse of discretion in this matter, particularly in light of the above reinstatement of our former legal standard for analyzing disparate penalty claims. The agency provided information regarding potential comparators within reasonable geographic and temporal limits. Information regarding the treatment of employees across the country is simply not likely to lead to the discovery of admissible evidence regarding whether the agency knowingly and unjustifiably treated employees differently. ¶21 Beyond his arguments regarding discovery, the appellant offers nothing more than speculation regarding the treatment of similarly situated employees. “Had the record been developed,” he argues on review, “the evidence would have likely shown that employees with over 30 years of service, and no discipline with numerous high profile awards received a suspension or letter of warning for engaging in the same or similar conduct.” PFR File, Tab 1 at 13. In fact, the only evidence regarding the treatment of employees who engaged in conduct that was at all similar to the appellant’s indicates that those employees were either demoted or removed. Hearing Transcript (HT) at 666 (testimony of the deciding official). Thus, we find that the appellant has not shown that the administrative judge erred in her consideration of the consistency of the penalty. 12 The appellant has not shown that the agency violated his due process rights. ¶22 The appellant argues that the agency violated his due process rights because the deciding official contacted an official at agency headquarters about one of the specifications without notifying the appellant of that contact. PFR File, Tab 1 at 16-18. The deciding official testified that there was conflicting information as to whether the appellant was authorized to make the contract changes that formed the basis of the first specification of the improper conduct charge. The deciding official therefore contacted an official at agency headquarters to find out whether the appellant’s actions were in fact improper. HT at 697-700 (testimony of the deciding official). ¶23 Pursuant to the Federal Circuit’s decisions in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. See Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012); see also Gray v. Department of Defense, 116 M.S.P.R. 461, ¶ 6 (2011). An employee’s due process right to notice extends to both ex parte information provided to a deciding official and information personally known to the deciding official, if the information was considered in reaching the decision and was not previously disclosed to the appellant. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). Ward, Stone, and their progeny recognize, however, that not all ex parte communications that introduce new and material information to the deciding official rise to the level of a due process violation. Solis, 117 M.S.P.R. 458, ¶ 8. ¶24 In Stone, the Federal Circuit identified the following factors to be used to determine if ex parte information is new and material: (1) whether the ex parte information introduced cumulative, as opposed to new, information; (2) whether the employee knew of the information and had an opportunity to respond; and 13 (3) whether the communication was “of the type likely to result in undue pressure on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377. Ultimately, we must determine “whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Id. ¶25 A deciding official does not violate an employee’s due process rights by initiating an ex parte communication that only confirms or clarifies information already contained in the record. Blank v. Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001). On the other hand, information obtained from an ex parte communication may be considered new and material if it constitutes a significant departure from evidence already in the record and the deciding official considers it in reaching a decision. See Young v. Department of Housing & Urban Development, 706 F.3d 1372, 1376-78 (Fed. Cir. 2013). ¶26 We find that the ex parte communication in this case does not constitute a due process violation. The agency charged the appellant with improper conduct for his actions regarding the contract changes. 0014 IAF, Tab 4 at 139. The deciding official reached out to the official at headquarters because there was some indication in the record that the appellant’s actions may not have been improper. HT at 697-700; 0155 IAF, Tab 6 at 64. The effect of the ex parte communication appears to have been to confirm to the deciding official that the appellant’s actions were in fact improper, just as the agency indicated in the notice of proposed removal. Therefore, we find that the ex parte communication in this case did not introduce new and material information to the deciding official. Rather, it merely clarified or confirmed information that was already in the record. See Mathis v. Department of State, 122 M.S.P.R. 507, ¶¶ 12, 16 (2015) (applying the Stone factors and finding no due process violation when the deciding official contacted a human resources representative to determine 14 whether allegations made in response to the proposed removal were supported by the facts). The appellant failed to show that his demotion was ultra vires or otherwise procedurally improper. ¶27 The appellant alleges that the decision to demote him was actually made by another agency official and communicated to the deciding official; he argues that the action is therefore ultra vires and should be reversed as not in accordance with law. PFR File, Tab 1 at 19-22. Agency actions have been found to be not in accordance with law when the individual taking the action lacked the legal authority to do so. For example, in Hamilton v. U.S. Postal Service, 58 M.S.P.R. 486, 487-88 (1993), the Board found that a demotion was not in accordance with law because the deciding official had retired from the agency prior to issuing the decision. In McCollum v. National Credit Union Administration, 417 F.3d 1332, 1339 (Fed. Cir. 2005), the Federal Circuit held that a removal was not in accordance with law because the only entity within the agency with the authority to authorize the appellant’s removal never did so. Here, by contrast, there is no claim that the deciding official lacked the authority to demote the appellant. Therefore, that action was not ultra vires. ¶28 Nevertheless, the Board does require that the ultimate decision regarding an adverse action be made by the deciding official, not by some other individual. See Fontes v. Department of Transportation, 51 M.S.P.R. 655, 668 (1991). Here, the deciding official testified that the decision to demote the appellant was his alone. HT at 704-05 (testimony of the deciding official). The appellant points to testimony from another agency official who stated that he told the deciding official to place the appellant in the EAS-19 position. PFR File, Tab 1 at 19-22. However, the official could not recall when that conversation took place, except that it was sometime before December 1, 2014. HT at 793-94 (testimony of the Manager, Network Operations for the Pacific Area). The decision demoting the appellant was issued on November 26, 2014. 0014 IAF, Tab 7 at 7. Thus, even if 15 the conversation took place as the official claimed, it may have taken place after the decision to demote the appellant already had been made. Accordingly, we find that the appellant failed to show that the decision to demote him was made by someone other than the deciding official. See Gores v. Department of Veterans Affairs, 68 M.S.P.R. 100, 121 (1995) (finding no harmful procedural error when the appellant failed to show that the deciding official did not make the ultimate decision), rev’d on other grounds, 132 F.3d 50 (Fed. Cir. 1997) (Table). The appellant has not shown that the administrative judge erred in her credibility determinations. ¶29 The appellant argues that the administrative judge erred in crediting the testimony of one of the agency’s key witnesses because that witness had been charged with several types of misconduct. PFR File, Tab 1 at 11, 23-24. He also argues that the witness was biased against the appellant. Id. The administrative judge applied the Hillen factors6 and found the testimony of the agency’s witness to be more credible than that of the appellant. ID at 6-7. ¶30 The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing, and may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge found the witness’s testimony to be more consistent with the 6 To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version she believes, and explain in detail why she found the chosen version more credible, considering such factors as: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). 16 other evidence than the appellant’s. She also found the appellant’s testimony to be inherently improbable. In addition, the administrative judge explicitly cited the respective demeanors of the witness and the appellant during their testimony. ID at 6-7. We find the administrative judge’s credibility determinations to be well reasoned and supported by the record, and we find that the appellant has not presented sufficiently sound reasons for overturning those determinations.7 The penalty of demotion was within the tolerable limits of reasonableness. ¶31 In addition to his arguments regarding disparate penalty, the appellant challenges other aspects of the administrative judge’s penalty analysis. First, the appellant argues that the administrative judge failed to properly consider the adequacy and effectiveness of alternative sanctions. In support of his argument, the appellant cites the deciding official’s testimony that he did not consider giving the appellant a suspension or letter of warning. PFR File, Tab 1 at 13-14. However, the deciding official testified that the appellant’s misconduct made him “unsuitable to manage other people.” HT at 664 (testimony of the deciding official). When pressed about why he did not give the appellant a letter of warning, the deciding official testified that it was not a viable option because of the nature of the misconduct and the appellant’s position. HT at 701-02 (testimony of the deciding official). We find no error in the deciding official’s consideration of possible lesser sanctions. ¶32 The appellant also argues that the administrative judge, when assessing the penalty, failed to properly consider his lack of training. PFR File, Tab 1 at 14-16. The testimony he cites in support of that argument relates to one specification of the improper conduct charge dealing with changes to transportation contracts. Id. at 14-15. The appellant does not argue that there was a lack of training or notice 7 The appellant has not otherwise challenged the administrative judge’s findings regarding the charges. We have reviewed those findings and see no basis for overturning them. 17 regarding any of the other charges or specifications. Even if he is correct that he was not properly trained on the rules governing contract changes, we find that it is not a sufficient basis to mitigate the penalty. ¶33 The deciding official testified in detail regarding his consideration of each of the Douglas factors. HT at 660-72 (testimony of the deciding official). We agree with the administrative judge that the deciding official properly considered the relevant Douglas factors and that the penalty of demotion is within the tolerable limits of reasonableness for the sustained misconduct. Cf. Gonzalez v. Department of the Air Force, 51 M.S.P.R. 646, 654 (1991) (affirming the removal of an employee with 24 years of service and no prior disciplinary record for misuse of position and unauthorized off-duty employment). ORDER ¶34 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 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 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 18 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: 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. 19 (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 20 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 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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 9 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. 21 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SINGH_HARINDER_SF_0752_15_0014_I_1_OPINION_AND_ORDER_1929068.pdf
05-31-2022	2022 MSPB 14	Jane Malloy	https://www.mspb.gov/decisions/precedential/MALLOY_JANE_CAROL_NY_0752_15_0064_I_1_OPINION_AND_ORDER_1929384.pdf	Department of State	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 14 Docket No. NY-0752-15-0064-I-1 Jane Carol Malloy, Appellant, v. Department of State, Agency. May 31, 2022 Jane Carol Malloy, Trenton, New Jersey, pro se. Marianne Perciaccante, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that dismissed her adverse action appeal for lack of jurisdiction. For the reasons set forth below, we GRANT the petition for review under 5 C.F.R. § 1201.115(b), REVERSE the initial decision, and REMAND the appeal for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 On November 4, 1990, the agency appointed the appellant as a nonpreference eligible to the excepted-service Technical Information Specialist position, GG-12, at the United States Mission to the United Nations (USUN). 2 Initial Appeal File (IAF), Tab 9 at 13. The legal authority for the appointment recorded in her Standard Form 50 (SF-50) was United States Code chapter 22, section 287 (22 U.S.C. § 287). IAF, Tab 9 at 13. Section 287 of title 22 provides for the President to appoint individuals to various positions at the United Nations (U.N.). The appellant’s SF-50 remarks section also states: “Appointment without regard to civil service and classification laws in accordance with Public Law 341 (Section 8) Amendment to the U.N. Participation Act of 1945.” Id. Section 8 of the U.N. Participation Act is codified at 22 U.S.C. § 287e, which states: There is hereby authorized to be appropriated annually to the Department of State, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment by the United States of . . . all necessary salaries and expenses of the representatives provided for in section 287 of this title, and of their appropriate staffs, including personal services in the District of Columbia and elsewhere, without regard to the civil-service laws and chapter 51 and subchapter III of chapter 53 of Title 5. . . . 22 U.S.C. § 287e. ¶3 In 2014, the agency suspended the appellant for 30 days on charges of unprofessional behavior and disruptive behavior. IAF, Tab 14 at 44-58. The appellant appealed the 30-day suspension as an adverse action under chapter 75, arguing that the suspension was in retaliation for filing equal employment opportunity complaints concerning alleged discrimination based on race, color, and disability. IAF, Tab 1 at 5. The agency filed a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 9. The administrative judge informed the appellant in a show cause order that the Board may not have jurisdiction over her adverse action appeal. IAF, Tab 24. The appellant responded to the order. IAF, Tab 25. ¶4 Thereafter, the administrative judge issued an initial decision dismissing the appeal for lack or jurisdiction. IAF, Tab 29, Initial Decision (ID) at 1, 13. In doing so, she relied on a regulation issued by the Office of Personnel Management (OPM), 5 C.F.R. § 752.401(d)(12), which states that “[a]n employee 3 whose agency or position has been excluded from the appointing provisions of title 5, United States Code, by separate statutory authority” is excluded from coverage of 5 U.S.C. chapter 75 unless there is a provision specifically placing those employees under the protections of chapter 75. ID at 3; see 5 C.F.R. § 752.401(d)(12).1 The administrative judge noted that OPM’s most commonly used language to describe a statutory exclusion was “without regard to the provisions of title 5, United States Code, governing appointments in the competitive service” or “without regard to the civil-service laws.” ID at 3; 58 Fed. Reg. 13,191, 13,192 (Mar. 10, 1993). Given this language, the administrative judge found that 22 U.S.C. § 287e constituted a separate statutory authority which exempts USUN employees from the appointment provisions of title 5. ID at 9. She also found that the appellant pointed to no statutory provisions or any evidence that would specifically place her under the protections of chapter 75 despite an initial exclusion. Id. ¶5 In arriving at this conclusion, the administrative judge also relied on Suzal v. Director, U.S. Information Agency, 32 F.3d 574, 578-79 (D.C. Cir. 1994). In Suzal, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) was faced with a similar question of whether an appointment authority, 22 U.S.C. § 1474(1), excluded an employee appointed under that authority from the civil service laws altogether. Suzal, 32 F.3d at 578-79. The court in Suzal stated that “it would distort the statutory language to hold that people employed ‘without regard to the civil service . . . laws’ are actually covered by all the civil service laws applicable to members of the excepted service.” Id. at 578. 1 OPM also has indicated in its comments to 5 C.F.R. § 752.401(d)(12) that, although most statutory authorities only reference “appointments,” “all that is required for a statutory exclusion from chapter 75 is a legislative exclusion from the appointing requirements of title 5, United States Code, in the absence of any provision to place the employee within the coverage of chapter 75 of title 5.” 58 Fed. Reg. 13,191, 13,192 (Mar. 10, 1993). 4 ¶6 The appellant has filed a petition for review arguing that the Board should reevaluate the dismissal for lack of jurisdiction and renewing her discrimination and retaliation claims. Petition for Review (PFR) File, Tab 1 at 4. The agency has filed a response to the appellant’s petition. PFR File, Tab 4.2 ANALYSIS ¶7 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden to prove by preponderant evidence that her appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). ¶8 It appears undisputed that the appellant fits within the statutory definition of an employee under 5 U.S.C. § 7511(a)(1)(C), and thus is entitled to appeal rights under chapter 75 unless otherwise excepted by statute.3 The crux of this case is whether the appellant’s appointing authority, 22 U.S.C. § 287e, excludes 2 After submitting its opposition to the appellant’s petition for review, PFR File, Tab 4, the agency filed a motion for leave to file an additional pleading to alert the Board to a decision by the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 6. The agency, “in an abundance of caution,” sought to draw the Board’s attention to Lal v. Merit Systems Protection Board, 821 F.3d 1376 (Fed. Cir. 2016), noting that the case addressed a similar issue to the one currently before the Board and was issued after the parties briefed the jurisdictional issue below. Id. at 5. The agency’s motion did not ask the Board to do anything more than to consider Lal, which the Board has done. Accordingly, we DENY the motion for leave to file an additional pleading as moot. 3 The record shows that the appellant was not serving a probationary or trial period under an initial appointment pending conversion to the competitive service, IAF, Tab 1 at 1, Tab 25 at 11, and that she had completed at least 2 years of current continuous service in the same or similar position with the agency as a permanent employee, IAF, Tab 9 at 13, Tab 14 at 41, Tab 25 at 11, thereby establishing that she fits the statutory definition of “employee” under 5 U.S.C. § 7511(a)(1)(C). 5 her from the protections of chapter 75. For the reasons set forth below, we find that the appellant is not exempt from chapter 75 protections and that the Board has jurisdiction over her adverse action appeal. Section 287e of title 22 of the U.S. Code does not preclude the appellant’s adverse action appeal. ¶9 In 1990, Congress enacted the Civil Service Due Process Amendments of 1990 (the Due Process Amendments), Pub. L. No. 101-376, 104 Stat. 461 (1990) (codified in relevant part at 5 U.S.C. § 7511), which created administrative and judicial appeal rights for nonpreference eligibles in the excepted service, such as the appellant, that were not previously available to them under the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978), which gave limited administrative and judicial review rights to those in the competitive service and preference eligibles in the excepted service. Lal v. Merit Systems Protection Board, 821 F.3d 1376, 1379-80 (Fed. Cir. 2016). Despite providing administrative and judicial appeal rights to nonpreference eligibles in the excepted service generally, the Due Process Amendments nevertheless included a list of categories of individuals who are excluded from title 5 protection, even though they may otherwise fall within the broad definition of “employee” set forth in section 7511(a)(1). Lal, 821 F.3d at 1379. Those exclusions include political appointees and confidential or policy-making positions, as well as seven additional categories listed at 5 U.S.C. § 7511(b)(1)-(10). ¶10 The plain language of the appellant’s SF-50 remarks section only speaks in terms of appointment authority and does not discuss any other possible agency action. IAF, Tab 9 at 13. Further, the applicable statute fails to reference an “appointment” and discusses only the “salaries and expenses” of those representatives provided for in section 287. 22 U.S.C. § 287e. Thus, because neither the SF-50 remarks section, nor 22 U.S.C. § 287e, include an explicit reference to the agency’s ability to take an adverse action against the appellant, 6 the Board must determine if the Due Process Amendments extend appeal rights to employees appointed under section 287e. Lal, 821 F.3d at 1378. ¶11 In Lal, our reviewing court addressed the question of whether, in light of the Due Process Amendments, the appointing authority of 42 U.S.C. § 209(f) excluded the appellant in that case from chapter 75 protections. 821 F.3d at 1380. That statute states “[i]n accordance with regulations, special consultants may be employed to assist and advise in the operations of the [agency]. Such consultants may be appointed without regard to the civil-service laws.” 42 U.S.C. § 209(f). After discussing the CSRA and the Due Process Amendments in detail, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that, “absent a specific exclusion of appeal rights or exemption from section 7511’s definition of employee, a statute exempting an appointment from the civil-service laws cannot escape the broad reach of [the] Due Process Amendments and therefore does not strip the Board of jurisdiction to hear an appeal from an adverse action.” 821 F.3d at 1380. The court explained that, “[t]o the extent the OPM’s implementing regulation at 5 C.F.R. § 752.401(d)(12) calls for a result contrary to the plain meaning of 5 U.S.C. § 7511 and 42 U.S.C. § 209(f), ‘it has no force or effect in this case.’” Lal, 821 F.3d at 1381 (quoting King v. Briggs, 83 F.3d 1384, 1388 (Fed. Cir. 1996)). ¶12 Like 42 U.S.C. § 209(f), 22 U.S.C. § 287e contains no language exempting appointees from section 7511’s definition of “employee.” 22 U.S.C. § 287e. Thus, we must look to whether chapter 75 appeal rights were specifically excluded. Lal, 821 F.3d at 1380-81. The statutory language only makes a general reference to “civil-service laws,” but it goes on to explicitly exclude “chapter 51 and subchapter III of chapter 53 of Title 5.” 22 U.S.C. § 287e. There is no reference in the statute that explicitly excludes the appellant from the protections of chapter 75 appeal rights. Id. As our reviewing court noted, “Congress knows how to exempt a civil service position from the protections found in chapters 75 and 77 of title 5 if it so desires.” Briggs, 83 F.3d at 1388. Because Congress 7 could have excluded appointees from the protections of chapter 75 in enacting 22 U.S.C. § 287e, as it explicitly chose to do with chapter 51 and subchapter III of chapter 53, we find that 22 U.S.C. § 287e does not preclude the appellant from exercising her appeal rights pursuant to chapter 75. See Briggs, 83 F.3d at 1388 (finding that an appointment under 29 U.S.C. § 783(a)(1) made “without regard to the provisions of Title 5 governing appointments in the competitive service, or the provisions . . . of such title relating to classification and General Schedule pay rates” did not exempt the appointee from the broad reach of 5 U.S.C. § 7511(a)(1)(C) in light of the Due Process Amendments). Further, to the extent 5 C.F.R. § 752.401(d)(12) calls for a result contrary to the plain meaning of 5 U.S.C. § 7511 and 22 U.S.C. § 287e, “‘it has no force or effect in this case.’” Lal, 821 F.3d at 1381 (quoting Briggs, 83 F.3d at 1388). ¶13 Despite what appears to be a contradictory ruling from the D.C. Circuit, see Suzal, 32 F.3d at 578-59, it is well settled that decisions of other circuit courts are persuasive, but not controlling authority, and that decisions of the Federal Circuit constitute precedent binding on the Board, Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Therefore, we are bound by the Federal Circuit’s ruling in Lal and find that 22 U.S.C. § 287e does not foreclose Board jurisdiction over the appellant’s adverse action appeal. 8 ORDER ¶14 Accordingly, we REVERSE the initial decision and REMAND this appeal to the New York Field Office for adjudication on the merits consistent with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/MALLOY_JANE_CAROL_NY_0752_15_0064_I_1_OPINION_AND_ORDER_1929384.pdf
05-24-2022	2022 MSPB 13	Roseanne Cronin	https://www.mspb.gov/decisions/precedential/CRONIN_ROSEANNE_H_DE_0353_15_0381_I_1_OPINION_AND_ORDER_1927198.pdf	United States Postal Service	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 13 Docket No. DE-0353-15-0381-I-1 Roseanne H. Cronin, Appellant, v. United States Postal Service, Agency. May 24, 2022 Roseanne H. Cronin, Larkspur, Colorado, pro se. Brian J. Odom, Esquire, Denver, Colorado, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision that dismissed for lack of jurisdiction her claim that the agency arbitrarily and capriciously denied her restoration as a partially recovered employee. For the reasons set forth below, we AFFIRM the initial decision as MODIFIED to clarify the basis for our finding that the Board lacks jurisdiction over this appeal. BACKGROUND ¶2 The agency formerly employed the appellant as a City Carrier at the Castle Rock Post Office in Castle Rock, Colorado. Initial Appeal File (IAF), Tab 11 at 10. On December 21, 1999, she suffered an injury to her right 2 shoulder, for which the Office of Workers’ Compensation Programs (OWCP) accepted her claim on March 22, 2000. Id. at 321. On January 7, 2002, she suffered an injury to her left shoulder, and OWCP accepted her claim for that injury on March 14, 2002. Id. at 206. She received OWCP benefits for scattered periods from 2000 to 2004. Id. at 107, 233, 286. ¶3 At some point following her compensable injuries, the appellant began working in a series of temporary limited-duty assignments. In March 2008, she accepted an assignment to a Modified Letter Carrier position in Castle Rock. Id. at 280-81. She accepted a limited-duty assignment as an Acting Supervisor of Customer Service effective May 3, 2010. Id. at 274-75.1 In November 2013, she accepted a temporary directed assignment to a Supervisor of Customer Service position. Id. at 61. That assignment was initially only for a few weeks, id., but it was later extended until May 16, 2014, id. at 231. ¶4 On November 26, 2013, the agency requested updated medical information from the appellant’s physician. Id. at 252. By letter dated January 31, 2014, the agency requested that the appellant have her treating physician complete and return a Form CA-17, Duty Status Report. IAF, Tab 1 at 7. On March 25, 2014, the appellant’s treating physician completed two CA-17s, one for each shoulder injury, permitting her to work with restrictions. Id. at 8-9. The appellant asserts that on July 11, 2014, she told the agency that she no longer wished to be a supervisor.2 IAF, Tab 4 at 4. By letter dated July 14, 2014, the agency advised the appellant that it had searched for alternative work in all crafts and on all tours 1 The appellant’s May 3, 2010 limited-duty assignment was to run until October 30, 2010. IAF, Tab 11 at 274. Whether the appellant continued in that assignment or received a different limited-duty assignment upon its expiration is unclear. 2 There is nothing in the record showing the appellant’s assignment after May 16, 2014. However, it appears from the appellant’s assertion that she remained in some type of supervisory assignment until at least July 11, 2014. 3 within the local commuting areas, and had found no work compatible with the medical restrictions described in the March 25, 2014 CA-17s. IAF, Tab 11 at 43. The appellant requested sick leave, effective July 12, 2014, citing “no work available,” and the agency approved her request. IAF, Tab 7 at 6. Her last day in pay status was October 23, 2014. IAF, Tab 11 at 10. ¶5 On November 25, 2014, the appellant filed a claim for disability compensation with OWCP for the period from October 18 through November 14, 2014, and submitted the March 25, 2014 CA-17s in support of her claim. Id. at 11-12. OWCP found that evidence insufficient, and on January 14, 2015, OWCP issued a formal decision disallowing the appellant’s claim. Id. Meanwhile, the Office of Personnel Management (OPM) approved the appellant’s application for disability retirement benefits and she retired effective January 2, 2015. Id. at 10. ¶6 On February 25, 2015, the appellant filed a Board appeal alleging that her retirement was involuntary. Cronin v. U.S. Postal Service, MSPB Docket No. DE-3443-15-0223-I-1. During the course of that appeal, the appellant filed an additional pleading, dated May 13, 2015, in which she alleged that she was partially recovered from a work-related injury and that the agency had violated her restoration rights. IAF, Tab 1. The administrative judge docketed that pleading as the initial appeal in this case, and apprised the appellant of the requirements for establishing Board jurisdiction over a restoration appeal brought under 5 C.F.R. § 353.304(c).3 IAF, Tab 2. 3 Shortly thereafter, on May 20, 2015, the administrative judge dismissed the involuntary retirement appeal for lack of jurisdiction, based on her finding that the appellant did not belong to any of the categories of postal employees who have been extended chapter 75 appeal rights pursuant to 39 U.S.C. § 1005(a). Cronin v. U.S. Postal Service, MSPB Docket No. DE-3443-15-0223-I-1, Initial Decision (May 20, 2015). Neither party filed a petition for review of that initial decision, which became final on June 24, 2015. To the extent the appellant’s petition for review in this case may be intended as a request to reopen her involuntary retirement appeal, her request is 4 ¶7 Subsequently, on April 11, 2016, OWCP issued a reconsideration decision vacating its January 14, 2015 decision and awarding the appellant compensation for the period from October 18 through November 14, 2014, in connection with her January 7, 2002 injury. IAF, Tab 13 at 4-6. The appellant supplemented the record in the instant appeal with a copy of that decision and a Board appeal form. IAF, Tab 13 at 4-6, Tab 14 at 1-5. She reiterated her previous request for a hearing. IAF, Tab 3 at 3, Tab 14 at 2. ¶8 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). The administrative judge found that the appellant had made nonfrivolous allegations that she was absent from her position due to a compensable injury, that she had partially recovered, and that the agency had denied her request for restoration. ID at 5-7. However, she further found that the appellant failed to nonfrivolously allege that the agency acted arbitrarily and capriciously in denying her restoration. ID at 7-12. Finally, the administrative judge found that the Board lacked jurisdiction over the appellant’s claims of disability discrimination absent an otherwise appealable action. ID at 12. ¶9 In her petition for review, the appellant contends that the agency arbitrarily and capriciously denied her request for reasonable accommodation when it required her to submit a CA-17, and that she could have established her discrimination claims had she been granted the hearing she requested. Petition for Review (PFR) File, Tab 1 at 3-6. The agency has filed a response in opposition to the petition for review. PFR File, Tab 4. denied. See 5 C.F.R. § 1201.118 (providing that the Board will exercise its discretion to reopen an appeal only in unusual or extraordinary circumstances and generally within a short period of time after the decision becomes final). 5 ANALYSIS To establish jurisdiction over a restoration appeal under 5 C.F.R. § 353.304(c), an appellant must, inter alia, make a nonfrivolous allegation that the agency arbitrarily and capriciously denied restoration. ¶10 The Federal Employees’ Compensation Act (FECA) provides, inter alia, that Federal employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Congress has explicitly granted OPM the authority to issue regulations governing the obligations of employing agencies in this regard. 5 U.S.C. § 8151(b). Pursuant to this authority, OPM has issued regulations requiring agencies to make certain efforts toward restoring employees with compensable injuries to duty, depending on the timing and extent of their recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92, ¶ 6 (1999). ¶11 The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as injured employees who, “though not ready to resume the full range” of their regular duties, have “recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements.” Section 353.301(d) requires agencies to “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” This means, “[a]t a minimum,” treating individuals who have partially recovered from a compensable injury substantially the same as other disabled4 individuals under the Rehabilitation Act, as amended. Id.; see 29 U.S.C. § 794. The Board has interpreted the regulation to require that an agency must at least search within the local commuting area for vacant positions 4 The regulation anachronistically refers to “handicapped” individuals. 6 to which it can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010).5 ¶12 Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to individuals affected by restoration decisions under 5 C.F.R. § 353.301. As to partially recovered employees, the regulation 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.” 5 C.F.R. § 353.304(c). The Board’s own regulations in turn provide that, to establish jurisdiction over an appeal arising under 5 C.F.R. § 353.304, an appellant must make nonfrivolous allegations regarding the substantive jurisdictional elements. 5 C.F.R. § 1201.57(a)(4), (b). Accordingly, to establish Board jurisdiction over a restoration claim as a partially recovered employee, the appellant must make nonfrivolous allegations that: (1) she was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of her; (3) the agency denied her request for restoration; and (4) the denial was arbitrary and capricious. Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016). 5 Although the Rehabilitation Act may in some cases require an agency to search beyond the local commuting area, we have found that, read as a whole, section 353.301(d) requires only that an agency search within the local commuting area, and that the reference to the Rehabilitation Act means that, in doing so, it must undertake substantially the same effort that it would exert under that Act when reassigning a disabled employee within the local commuting area. Sanchez, 114 M.S.P.R. 345, ¶ 18. 7 ¶13 Here, it is undisputed that the appellant has satisfied the first three jurisdictional elements.6 We take this opportunity to clarify our analysis of the fourth jurisdictional element. 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). ¶14 The jurisdictional standard established by 5 C.F.R. § 353.304(c) “reflects the limited substantive right enjoyed by partially recovered employees.” Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103 (Fed. Cir. 2011), superseded in part by regulation on other grounds as stated in Kingsley, 123 M.S.P.R. 365, ¶ 10. Whereas employees who fully recover from a compensable injury within a year have an “unconditional right to restoration under 5 C.F.R. § 353.301(a) and 5 U.S.C. § 8151(b)(1),” Bledsoe, 659 F.3d at 1103, a partially recovered employee does not have such an unconditional right. Rather, the agency only is obliged to “make every effort to restore” a partially recovered employee “in the local commuting area” and “according to the 6 The first jurisdictional element is satisfied because OWCP issued a reconsideration decision awarding the appellant compensation for at least some portion of her absence. IAF, Tab 13 at 4-6; see Manning v. U.S. Postal Service, 118 M.S.P.R. 313, ¶ 9 (2012) (holding that when OWCP reverses an earlier adverse decision, an appellant may rely on the more recent favorable decision in making a nonfrivolous allegation that her absence was due to a compensable injury). Regarding the second element, the appellant’s allegation of partial recovery is nonfrivolous in light of OWCP’s acceptance of medical documentation identifying certain physical restrictions that would permit her to return to work at the agency. IAF, Tab 13 at 6; Tab 1 at 8-9. As to the third jurisdictional element, it is undisputed that, after the appellant submitted CA-17s indicating her availability to work with restrictions, the agency determined that no craft positions consistent with her medical restrictions were available. IAF, Tab 11 at 43; Tab 7 at 5. Although the appellant previously had been restored to a variety of modified-duty assignments, the Board has held that wrongfully terminating a restoration previously granted may constitute a denial of restoration within the meaning of 5 C.F.R. § 353.304(c). Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463, ¶ 9 (2007). Although the record is not entirely clear, we assume for purposes of this decision that the appellant continued in her supervisory assignment until the agency sent her home in July 2014, due to a lack of available work. 8 circumstances in each case.” Bledsoe, 659 F.3d at 1103 (quoting 5 C.F.R. § 353.301(d)). The Board appeal right under 5 C.F.R. § 353.304(c) is likewise conditional: “[b]ecause partially recovered employees do not have an unconditional right to restoration, they do not have the right to appeal every denial of restoration.” Bledsoe, 659 F.3d at 1103 (emphasis in original). Accordingly, our reviewing court has found the arbitrary and capricious standard of 5 C.F.R. § 353.304(c) “limits jurisdiction to appeals where the substantive rights of the partially recovered [appellants] under section 353.301(d) are actually alleged to have been violated.” Id.; cf. Palmer v. Merit Systems Protection Board, 550 F.3d 1380, 1383 (Fed. Cir. 2008) (holding that a partially recovered employee alleging improper restoration “may appeal only on the limited grounds enumerated in [section 353.304(c)]”). In other words, for purposes of the fourth jurisdictional element, a denial of restoration is “rendered arbitrary and capricious by [an agency’s] failure to perform its obligations under 5 C.F.R. § 353.301(d).” Bledsoe, 659 F.3d at 1104. Section 353.301(d) does not itself require an agency to provide restoration rights beyond the minimum requirement of the regulation. ¶15 In Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶¶ 12-16 (2012), superseded in part by regulation on other grounds as stated in Kingsley, 123 M.S.P.R. 365, ¶ 10, the Board considered whether an agency’s obligations under 5 C.F.R. § 353.301(d) might exceed the “minimum” requirement of the regulation, i.e., to search the local commuting area for vacant positions to which the partially recovered employee can be restored and to consider her for such positions. The appellants in Latham alleged that the agency had arbitrarily and capriciously discontinued their modified assignments in violation of internal agency rules, set forth in the Employee and Labor Relations Manual (ELM), concerning restoring partially recovered employees. Latham, 117 M.S.P.R. 400, ¶¶ 2-3, 5. Under the pertinent provisions of the ELM and its accompanying handbook, the agency had agreed to restore partially recovered individuals to duty 9 in whatever tasks are available regardless of whether those tasks comprise the essential functions of an established position. Id., ¶¶ 3, 26. Thus, the agency had assumed obligations beyond the “minimum” requirement of 5 C.F.R. § 353.301(d). The Board noted that 5 C.F.R. § 353.301(d) was silent as to whether an agency may voluntarily assume restoration obligations beyond the “minimum” requirements of that section and, if so, whether such obligations are enforceable by the Board under 5 C.F.R. § 353.304(c). Latham, 117 M.S.P.R. 400, ¶ 12. ¶16 To help resolve the question, the Board sought and obtained an advisory opinion from OPM. Id. In its advisory opinion, OPM expressed the view that the phrase “at a minimum,” as it appears in 5 C.F.R. § 353.301(d), anticipates that an agency may adopt additional agency-specific requirements pertaining to restoring partially recovered individuals, and that the regulation requires “compliance with an agency’s own rules as well as the provisions of OPM regulation, at least where they confer additional protections or benefits on the employee.” Id., ¶ 13 (quoting OPM’s advisory opinion in Latham). OPM further advised: It is OPM’s opinion that if the Postal Service established a rule that provided the partially recovered employees with greater restoration rights than the “minimum” described in the OPM regulations, the Postal Service is required to meticulously follow that rule. To do otherwise would be arbitrary and capricious within the meaning of OPM’s regulation conferring jurisdiction on the Board at section 353.304(c). Id. In a split decision, the majority of the Board found that OPM’s interpretation of its regulation was entitled to deference under Bowles v. Seminole Rock & Sand Company, 325 U.S. 410, 414 (1945), because it was consistent with the language of the regulation and not plainly erroneous. Latham, 117 M.S.P.R. 400, ¶ 13; see Auer v. Robbins, 519 U.S. 452, 461 (1997) (stating that an agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulation) (citations and quotations omitted), superseded in part on other grounds by regulation as stated in Crowe v. Examworks, Inc., 10 136 F. Supp. 3d 16, 28 n.8 (D. Mass. 2015). Thus, the Board concluded that it has jurisdiction over appeals concerning the denial of restoration to partially recovered individuals when the denial results from the agency violating its own internal rules. Latham, 117 M.S.P.R. 400, ¶ 13. In dissent, then-Member Mary M. Rose expressed her view that OPM’s regulations could not be interpreted reasonably as granting the Board authority to adjudicate substantive entitlements conferred by internal agency rules concerning partially recovered employees. Id. (dissenting opinion of Member Rose), ¶¶ 8-17. One basis for this dissenting opinion was that the Board could enforce internal agency restoration entitlements that go beyond Federal law and OPM regulations only if OPM was permitted to redelegate the authority Congress granted it to promulgate restoration regulations, which Congress did not authorize OPM to do. Id., ¶¶ 15-17. ¶17 We are now persuaded by this dissenting opinion that, contrary to the majority opinion in Latham, OPM’s interpretation of its regulation at 5 C.F.R. § 353.301(d) was plainly erroneous and therefore not entitled to deference under Seminole Rock and Auer.7 Were the regulation interpreted as OPM suggested in 7 We assume for purposes of our analysis here that deference under Seminole Rock and Auer applies. The Supreme Court recently addressed the proper application of such deference in Kisor v. Wilkie, ___ U.S. ___, 139 S. Ct. 2400 (2019). Although a majority of the Court in Kisor declined to overrule Seminole Rock and Auer, it emphasized the limits on the deference that should be extended to agency interpretations of their own regulations. In particular, the Court held that “Auer deference is not the answer to every question of interpreting an agency’s rules,” and that deference should only be a consideration if a regulation is “genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Kisor, 139 S. Ct at 2414. The Court further held that even where such genuine ambiguity exists, deference should be given only when “the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416. If the Board in Latham had the benefit of the Court’s guidance in Kisor, it may not have deferred to OPM’s interpretation in the first instance. 11 its advisory opinion,8 OPM would not have the final say in determining what obligations its own regulation imposed. Rather, an employing agency would have free rein to determine the scope of its obligation under 5 C.F.R. § 353.301(d)— and, by extension, FECA itself—with the sole proviso that it provide at least the “minimum” rights described in the regulation. Thus, through its advisory opinion in Latham, OPM effectively claimed for itself the authority to redelegate a significant portion of its statutorily granted rulemaking authority to outside parties.9 ¶18 However, the statute refers only to “regulations issued by [OPM],” and says nothing about OPM’s authority to redelegate its rulemaking authority to an outside party. 5 U.S.C. § 8151(b); see Latham, 117 M.S.P.R. 400 (dissenting opinion of Member Rose), ¶ 15. Generally, “[w]hen a statute delegates authority to a [F]ederal officer or agency, subdelegation to a subordinate [F]ederal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent.” United States Telecom Association v. Federal Communications Commission, 359 F.3d 554, 565 (D.C. Cir. 2004). By contrast, “there is no such presumption covering [re]delegations to outside parties.” Id. 8 The validity of 5 C.F.R. § 353.301(d) itself is not before us. Rather, we proceed on the assumption that the regulation, if permissibly interpreted, is valid and within the scope of OPM’s authority under 5 U.S.C. § 8151(b). 9 We use the term “redelegation” to distinguish an agency’s delegation of authority to an outside entity from subdelegation to an agency’s own officials or internal components. See Jason Marisam, The Interagency Marketplace, 96 Minn. L. Rev. 886, 891-97 (2012). Redelegation also differs from situations in which an agency seeks outside input, such as fact-gathering, advice-giving, or establishing a reasonable condition for granting agency approval, but retains final decision-making authority. United States Telecom Association v. Federal Communications Commission, 359 F.3d 554, 566 (D.C. Cir. 2004); see, e.g., Louisiana Forestry Association v. U.S. Department of Labor, 745 F.3d 653, 671-73 (3d Cir. 2014) (finding that the Department of Homeland Security (DHS) had not redelegated to the Department of Labor (DOL) authority to decide H-2B petitions from employers that were required to obtain DOL certification prior to petitioning DHS for the admission of such workers but DHS retained final authority to approve or disapprove the petitions). 12 Rather, “[re]delegations to outside parties are assumed to be improper absent an affirmative showing of congressional authorization.” Id. (citing Shook v. District of Columbia Financial Responsibility & Management Assistance Authority, 132 F.3d 775, 783-84 & n.6 (D.C. Cir. 1998)); see Latham, 117 M.S.P.R. 400 (dissenting opinion of Member Rose), ¶ 15 (quoting United States Telecom, 359 F.3d). As the D.C. Circuit explained, this distinction rests on a fundamental policy consideration: When an agency delegates authority to its subordinate, responsibility—and thus accountability—clearly remain with the [F]ederal agency. But when an agency delegates power to outside parties, lines of accountability may blur, undermining an important democratic check on government decision-making. Also, delegation to outside entities increases the risk that these parties will not share the agency’s national vision and perspective, and thus may pursue goals inconsistent with those of the agency and the underlying statutory scheme. In short, [re]delegation to outside entities aggravates the risk of policy drift inherent in any principal-agent relationship. United States Telecom, 359 F.3d at 565-66 (citations and quotations omitted). This principle applies with equal force when, as in this case, the outside party is another Federal agency. Id. at 566 (finding that Federal agency officials may not redelegate their authority to outside entities, whether private or sovereign, “absent affirmative evidence” of their authority to do so); cf. Shook, 132 F.3d at 783-84 (finding that the Control Board, an agency of the District of Columbia Government, lacked authority to transfer its statutory oversight authority over the Board of Education to a Board of Trustees). ¶19 The Board’s post-Latham cases confirm that, under the interpretation of OPM’s regulations adopted by the majority in Latham, OPM has effectively redelegated its rulemaking authority to individual agencies. Most notably, since the Board decided Latham, the outcome of restoration appeals brought by U.S. Postal Service employees has often turned on whether the agency violated its 13 internal rules.10 See, e.g., Davis v. U.S. Postal Service, 120 M.S.P.R. 122, ¶¶ 12-13 (2013) (finding a violation of restoration rights based on the agency’s failure to comply with its ELM and handbook by searching for available tasks that did not necessarily comprise the essential functions of a position); Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶¶ 5-9 (2012) (finding a violation of restoration rights under the ELM despite the fact that the agency complied with its minimum obligations under 5 C.F.R. § 353.301(d)). ¶20 We conclude that Congress has not authorized OPM to redelegate its rulemaking authority in the manner articulated in OPM’s advisory opinion and approved by the majority in Latham. This is not to say that an agency may not undertake restoration efforts beyond the minimum effort required by OPM under 5 C.F.R. § 353.301(d); indeed, the phrase “at a minimum” implies that an agency is free to do so. However, an agency’s failure to comply with self-imposed obligations, such as the ELM provisions concerning partially recovered employees at issue in this appeal, 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). Accord Smith v. Merit Systems Protection Board, 813 F.2d 1216, 1218-19 (Fed. Cir. 1987) (stating that “[o]rdinarily a collective bargaining agreement cannot confer jurisdiction on the [B]oard if the employee would not otherwise have the right to appeal to the [B]oard.”); cf. Pogarsky v. Department of the Treasury, 7 M.S.P.R. 196, 198 (1981) (finding that, while a collective bargaining agreement may grant 10 A large percentage of the Board’s restoration appeals are brought by employees of the U.S. Postal Service. However, under the majority holding in Latham, to the extent other Federal agencies have internal restoration rules that impose greater obligations than 5 C.F.R. § 353.301(d) itself, the Board effectively would need to develop a separate body of law for each such agency based on the peculiarities of their internal rules. 14 procedural protections to probationary employees beyond those found in 5 C.F.R. part 315, the additional safeguards do not become extensions of those regulations or expand the appeal right under 5 C.F.R. § 315.806). Rather, to establish jurisdiction under 5 C.F.R. § 353.304(c), an appellant must, inter alia, make a nonfrivolous allegation that the agency failed to comply with the minimum requirement of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant positions to which it can restore a partially recovered employee and to consider her for any such vacancies. Sanchez, 114 M.S.P.R. 345, ¶ 12. The contrary holding of Latham and its progeny is hereby overruled.11 Claims of prohibited discrimination or reprisal for protected activity do not serve as independent means of showing that a denial of restoration was arbitrary and capricious for purposes of section 353.304(c). ¶21 The appellant alleged that the agency’s denial of restoration was based on prohibited disability discrimination. IAF, Tab 1 at 5. In Latham, we suggested that a claim of unlawful discrimination or reprisal for protected activity could serve as an “alternative means” of showing that a denial of restoration was arbitrary and capricious. 117 M.S.P.R. 400, ¶ 58 n.27; see Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 15 (2013). This holding was incorrect because, as explained above, a denial of restoration is arbitrary and capricious for purposes of section 353.304(c) only if an agency fails to meet its obligation under section 353.301(d). See Bledsoe, 659 F.3d at 1103-04. Determining whether an agency met its obligation under section 353.301(d) will turn on whether it 11 Cases citing Latham for the now-overruled holding include Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 5 (2016), aff’d per curiam, 679 F. App’x 1006 (Fed. Cir. 2017); Davis, 120 M.S.P.R. 122, ¶¶ 11-12; Davis, 119 M.S.P.R. 22, ¶ 6; Bennett v. U.S. Postal Service, 118 M.S.P.R. 271, ¶ 11 (2012); Coles v. U.S. Postal Service, 118 M.S.P.R. 249, ¶ 17 (2012); Richards v. U.S. Postal Service, 118 M.S.P.R. 242, ¶ 6 (2012); and Ashley v. U.S. Postal Service, 118 M.S.P.R. 231, ¶ 7 (2012), aff’d in part and vacated in part by Ashley v. U.S. Postal Service, MSPB Docket No. AT-0353-11- 0063-C-1, Final Order (Nov. 19, 2013). 15 “ma[d]e every effort” to restore a partially recovered employee “in the local commuting area” and “according to the circumstances in each case.” If the agency makes the required effort but fails to find suitable work for the appellant, the denial of restoration is not arbitrary and capricious, and the agency’s lack of success cannot be attributed to any improper motive on its part. If, on the other hand, the agency fails to make the effort required under section 353.301(d), the resulting denial of restoration is necessarily arbitrary and capricious, and no further analysis is required. While an agency’s failure to comply with section 353.301(d) may well be the result of prohibited discrimination or reprisal for protected activity, whether that is so is immaterial to the question of whether denying restoration in a particular instance is arbitrary and capricious for purposes of section 353.304(c).12 The appeal is dismissed for lack of jurisdiction. ¶22 Although the administrative judge did not have the benefit of this decision, she nonetheless correctly notified the appellant that she could establish the fourth jurisdictional element under 5 C.F.R. § 353.304(c) by making a nonfrivolous allegation that the denial of restoration was arbitrary and capricious due to the agency’s failure to comply with 5 C.F.R. § 353.301(d). IAF, Tab 2 at 3-4; 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). The appellant has not alleged, and there is nothing in the record to suggest, that the agency failed to comply with the minimum requirements of 5 C.F.R. § 353.301(d) when it denied her restoration as a partially recovered employee. Accordingly, we find that the 12 We do not decide at present whether and how the Board should address discrimination and reprisal claims in the event jurisdiction under 5 C.F.R. § 353.304(c) has been independently established. See Latham, 117 M.S.P.R. 400, ¶ 58 n.27 (observing that the concept of an “affirmative defense” fits better in matters such as adverse action appeals when the agency bears the burden of proof on the merits). 16 Board lacks jurisdiction over this appeal under 5 C.F.R. § 353.304(c). Absent an otherwise appealable action, we also lack jurisdiction to address the appellant’s claim of disability discrimination. See McDonnell v. Department of the Navy, 84 M.S.P.R. 380, ¶ 11 (1999).13 ORDER ¶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 OF APPEAL RIGHTS14 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 13 The fact that we lack jurisdiction to address the appellant’s discrimination claim does not mean that she is without recourse for her claim. The Equal Employment Opportunity Commission (EEOC) has held in a class action appeal, which did not implicate OPM’s restoration regulations at issue in this appeal and which the EEOC described as a nonmixed case, that the agency had discriminated against disabled employees who were injured on duty and assessed under the agency’s National Reassessment Program between May 2006, and July 2011. See Velva B. v. U.S. Postal Service, EEOC Appeal Nos. 0720160006 & 0720160007, 2017 WL 4466898 (Sept. 25, 2017), request for reconsideration denied, Request Nos. 0520180094 & 0520180095, 2018 WL 1392289 (Mar. 9, 2018). 14 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 17 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: 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. 18 (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 19 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 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.15 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). 15 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. 20 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. 21 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/CRONIN_ROSEANNE_H_DE_0353_15_0381_I_1_OPINION_AND_ORDER_1927198.pdf
05-23-2022	2022 MSPB 12	Bradley Sikes	https://www.mspb.gov/decisions/precedential/SIKES_BRADLEY_S_SF_0752_16_0813_I_1_OPINION_AND_ORDER_1926915.pdf	Department of the Navy	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 12 Docket No. SF-0752-16-0813-I-1 Bradley S. Sikes, Appellant, v. Department of the Navy, Agency. May 23, 2022 Jeff Letts, Ewing, New Jersey, for the appellant. Wendy Kelly, Bremerton, Washington, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal alleging that the agency had improperly continued his indefinite suspension after the restoration of his access to classified information. 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. BACKGROUND ¶2 The appellant serves as an Electrician at the agency’s Puget Sound Naval Shipyard, a sensitive position that requires him to maintain a security clearance and access to classified information. Initial Appeal File (IAF), Tab 6 at 25. On 2 April 13, 2015, the agency suspended the appellant’s access to classified information and proposed his indefinite suspension on that basis. Id. at 25-27. The appellant did not respond to the proposed indefinite suspension. Id. at 21. On April 29, 2015, the agency issued a decision indefinitely suspending the appellant, effective on June 18, 2015.1 Id. at 21-24. The agency’s decision informed the appellant that the suspension would continue until his security clearance status was resolved, or until there was sufficient evidence to either return him to duty or take other administrative or disciplinary action against him during the term of the suspension. Id. at 22. The decision specifically informed the appellant that if the Department of Defense Consolidated Adjudication Facility (DOD CAF) did not revoke his security clearance and restored his access to classified information, he would be returned to a duty status. Id. at 21. Although he was informed of his Board appeal rights, the appellant did not appeal the imposition of the indefinite suspension. See id. at 22. ¶3 On August 16, 2016, DOD CAF issued a favorable security determination rendering the appellant eligible for a Secret security clearance and assignment to a sensitive position. Id. at 18. On the same date, the agency was notified of the favorable adjudication and determined that the appellant was eligible to return to work. Id. at 19. On August 29, 2016, the appellant returned to duty. Id. at 17. ¶4 On September 22, 2016, the appellant filed an initial appeal to the Board. IAF, Tab 1. The administrative judged issued an order notifying the appellant of the requirements to prove Board jurisdiction over his appeal and ordering him to 1 The agency’s decision notified the appellant that administrative leave would end on May 13, 2015; at his request, he would be carried in an annual leave status from May 14 to June 17, 2015; and his indefinite suspension would be effective on June 18, 2015. IAF, Tab 6 at 21. Although the appellant did not appeal the agency’s decision, it is not clear whether his use of annual leave was a voluntary action or effectively part of the involuntary suspension. See Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014) (finding that an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the Board’s jurisdiction). 3 file evidence and argument establishing jurisdiction within 15 days of the date of the order. IAF, Tab 2 at 2-3. After receiving evidence and argument from both parties, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID). The administrative judge found that the condition subsequent necessary to end the appellant’s indefinite suspension, restoration of his access to classified information, occurred on August 16, 2016, and that the agency ended the indefinite suspension on that date. ID at 2-3. He also found that on the same date, the agency contacted the appellant to advise him that he could return to work, but he asked to return to duty on August 29, 2016, instead, to complete a training program he had begun. ID at 3. The administrative judge further found that on August 29, 2016, the appellant returned to work, and the agency issued a Standard Form 50 (SF-50) ending the indefinite suspension on that date; after the appellant filed his Board appeal, the agency retroactively returned the appellant to duty on August 16, 2016, and carried him in a leave without pay (LWOP) status from August 16 to 29, 2016. IAF, Tab 6 at 15-17; ID at 3 & n.1. The administrative judge concluded that, even if the appellant was constructively suspended from August 16 to 29, 2016, the period totaled at most 13 days, and thus the Board lacked jurisdiction over the suspension. ID at 3-4. ¶5 The appellant has timely filed a petition for review in which he argues that the administrative judge erred in requiring the length of the improper continuation of the indefinite suspension to be 15 days or more for the Board to have jurisdiction over his suspension, contrary to the holding of White v. U.S. Postal Service, 58 M.S.P.R. 22 (1993), and that he has established that the Board has jurisdiction over the suspension. Petition for Review (PFR) File, Tab 1 at 3-4. The agency has responded to the petition for review, and the appellant has replied to the response. PFR File, Tabs 3-4. 4 ANALYSIS ¶6 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A suspension of more than 14 days is within the Board’s jurisdiction, 5 U.S.C. §§ 7512(2), 7513(d), but a suspension of 14 days or fewer is not an appealable action, Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010). The Board’s jurisdiction is determined by the nature of an agency’s action against an appellant at the time his appeal is filed. Id., ¶ 10. An agency’s unilateral modification of its adverse action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents to such divestiture or the agency completely rescinds the action. Id. Here, the record reflects that the agency initially issued one SF-50 initiating the indefinite suspension on June 18, 2015, and one SF-50 returning the appellant to duty on August 29, 2016. IAF, Tab 6 at 12, 17, 20. It was only after the appellant filed his September 22, 2016 Board appeal that the agency took steps on October 6, 2016, to retroactively place him in an LWOP status from August 16 to 29, 2016. Id. at 12-13, 15-16. There is no evidence that the appellant consented to the agency’s unilateral modification of the indefinite suspension. Accordingly, we find that, when the appellant filed his appeal, the agency had continued the indefinite suspension until August 29, 2016. See Lefavor, 115 M.S.P.R. 120, ¶¶ 9-10 (finding that, as of the date the appellant filed his appeal, the agency had inadvertently imposed an appealable 15-day suspension, and the agency’s correction of the error after the appellant filed his appeal did not divest the Board of jurisdiction). ¶7 We further find that the Board has jurisdiction over the agency’s continuation of the indefinite suspension. By regulation, an indefinite suspension ends with the occurrence of the pending conditions set forth in the notice of action. 5 C.F.R. § 752.402. The parties do not dispute that the condition subsequent that should have ended the indefinite suspension occurred when the 5 appellant’s access to classified information was restored on August 16, 2016. PFR File, Tab 1 at 5, Tab 3 at 5, 10. When a suspension continues after the condition subsequent that would terminate it, the continuation of the suspension is a reviewable agency action separate from the imposition of the suspension itself. Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1381 (Fed. Cir. 2007). Both the imposition of an indefinite suspension—and the continuation of that suspension after the condition subsequent—concern the same personnel action; thus, the appeal of the continuation of a suspension relates to the entire suspension for jurisdictional purposes. White, 58 M.S.P.R. at 25-26; see also Rhodes, 487 F.3d at 1382 (recognizing that the Board treats an agency’s failure to end an indefinite suspension as a separately reviewable action from the imposition of the indefinite suspension, although both matters involve the same personnel action). As such, the length of the entire indefinite suspension is considered in determining if the Board has jurisdiction over the continuation of an indefinite suspension, regardless of whether the subject matter of an appeal concerning the continuation of an indefinite suspension is a suspension of 14 days or fewer. White, 58 M.S.P.R. at 25-26. Here, although the appeal concerned the improper continuation of the indefinite suspension for no more than 13 days, the entire indefinite suspension lasted over 14 days and is within the Board’s jurisdiction.2 IAF, Tab 6 at 17, 20. 2 The record is not clear as to whether the appellant’s initial appeal was timely filed, as his access to classified information was restored on August 16, 2016, and he filed his appeal on September 22, 2016, 37 days later. IAF, Tab 1, Tab 6 at 18. There is no evidence that the appellant was notified of his right to appeal a continuation of his indefinite suspension to the Board. See Shiflett v. U.S. Postal Service, 839 F.2d 669, 674 (Fed. Cir. 1988) (holding that the agency’s failure to give notice to the appellant of his appeal rights may constitute good cause for his untimely filing of a Board appeal). Neither the appellant nor the administrative judge addressed whether the appeal was timely, but given the lack of notice and the circumstances of this case, we would find that, if the appeal were untimely, good cause would exist for the delay in filing the appeal. 6 ¶8 The Board’s role in an appeal alleging an improper continuation of an indefinite suspension is to ascertain whether the condition subsequent identified by the agency has occurred and whether the agency acted within a reasonable amount of time to terminate the suspension following the satisfaction of the condition subsequent. Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 9 n.2 (2011). Here, there is no dispute that the identified condition subsequent, the restoration of the appellant’s access to classified information, occurred. PFR File, Tab 1 at 5, Tab 3 at 5, 10. The issue is whether the agency acted within a reasonable amount of time to end the suspension once the appellant’s access to classified information was restored. ¶9 As set forth above, on August 16, 2016, the same day that DOD CAF issued a favorable security determination for the appellant, the agency contacted the appellant to advise him that he could return to work. The existing record reflects that the appellant asked instead to return to duty on August 29, 2016, to complete a training period he had begun. The record does not appear to indicate the nature of the training and whether it was work-related. The agency ultimately retroactively returned the appellant to duty on August 16, 2016, but carried him in an LWOP status through August 29, 2016. ¶10 Here, whether the agency acted within a reasonable amount of time to end the suspension once the appellant’s access to classified information was restored may be affected by, among other things, whether the training the appellant requested to complete was work-related, and whether the agency was obligated to place him in a paid duty status during that training. Cf. Boudousquie v. Department of the Air Force, 102 M.S.P.R. 397, ¶ 10 (2006) (holding that an agency’s misleading statements that the appellant must request LWOP may support a finding of a constructive suspension). Thus, the appellant’s apparent request to continue training before his return, and the agency’s placement of him on LWOP in response, may implicate whether the agency acted within a 7 reasonable amount of time to end the suspension once the appellant’s access to classified information was restored. ¶11 The appellant did not have an opportunity to respond to the declarations regarding training that the agency submitted on the day the record closed. See Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347, 1355-56 (Fed. Cir. 2005) (noting the Board’s longstanding policy of affording the parties an opportunity to submit rebuttal evidence); White v. Department of the Army, 46 M.S.P.R. 63, 66-67 (1990) (closing of the record must comport with the basic requirements of fairness and notice, including an opportunity to respond to submissions of the parties); see also 5 C.F.R. § 1201.59(c)(2). ORDER ¶12 Under these circumstances, we vacate the initial decision and remand this appeal to the regional office for further adjudication consistent with this Opinion and Order. After affording the parties an opportunity to submit evidence and argument, the administrative judge shall determine whether the agency acted within a reasonable amount of time to end the suspension once the appellant’s access to classified information was restored. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SIKES_BRADLEY_S_SF_0752_16_0813_I_1_OPINION_AND_ORDER_1926915.pdf
05-12-2022	2022 MSPB 11	Kelly Lee	https://www.mspb.gov/decisions/precedential/LEE_KELLY_J_DE_0432_14_0448_I_1_OPINION_AND_ORDER_1924179.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 11 Docket No. DE-0432-14-0448-I-1 Kelly J. Lee, Appellant, v. Department of Veterans Affairs, Agency. May 12, 2022 Norman Jackman, Esquire, Lincoln, New Hampshire, for the appellant. Beth K. Chesney, St. Louis, Missouri, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s action removing her for unacceptable performance pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition for review, VACATE the initial decision, and REMAND the appeal to the Denver Field Office for further adjudication consistent with Santos v. National Aeronautics & Space Administration, 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND ¶2 The appellant was employed as a Program Support Assistant at the agency’s Central Plains Consolidated Patient Account Center (CPCPAC). Initial Appeal 2 File (IAF), Tab 10 at 71. On August 6, 2013, the agency placed the appellant on a performance improvement plan (PIP) to address her unacceptable performance in the critical element of Productivity. IAF, Tab 9 at 11-16, 30-32. At the end of the PIP, the agency proposed the appellant’s removal for unacceptable performance in four of the seven subcomponents of the Productivity critical element. IAF, Tab 10 at 13-64. ¶3 After providing the appellant with an opportunity to respond to the proposed removal, the agency issued a decision removing her for failing to meet the performance standards for the Productivity critical element of her position during the PIP period. Id. at 65-68. The appellant filed a timely Board appeal of her removal. IAF, Tab 1. During the adjudication of the appeal, the appellant stipulated that: (1) the agency’s performance appraisal system was approved by the Office of Personnel Management (OPM); (2) her performance standards were valid; (3) her performance standards were communicated to her; (4) she was advised that her performance was unacceptable and warned of her performance inadequacies; and (5) her performance under the PIP was unacceptable. IAF, Tabs 6, 36, 38 at 4. A hearing was scheduled for the sole remaining issue on appeal, which was whether the appellant was given a reasonable opportunity under the PIP to improve her performance above an unacceptable level. IAF, Tab 36 at 3. ¶4 After holding a telephonic hearing, the administrative judge issued an initial decision affirming the appellant’s removal, finding in relevant part that the agency proved by substantial evidence that the appellant’s performance was unacceptable after she was given a reasonable opportunity to improve. IAF, Tab 51, Initial Decision (ID) at 12. The appellant has filed a timely petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. In her petition for review, the appellant does not challenge merits of the initial decision, but instead argues that the administrative judge abused her discretion in connection with the appellant’s allegation that the agency violated the 3 administrative judge’s sequestration order during the hearing. Id. The agency has filed a response in opposition to the petition for review, PFR File, Tab 4, and the appellant has filed a reply, PFR File, Tab 5. ANALYSIS The administrative judge did not abuse her discretion in denying the appellant’s motion regarding the sequestration of witnesses. ¶5 During a supplemental prehearing conference, the appellant’s counsel indicated that he could not be present at the agency’s facility for the hearing and elected to convert the scheduled video hearing to a telephonic hearing. IAF, Tab 39. The administrative judge issued an order providing instructions for the telephonic hearing, including the requirement that all witnesses participating in the hearing be sequestered. Id. at 1-2. In a summary of the supplemental prehearing conference, the administrative judge noted again that all witnesses were to be sequestered during the telephonic hearing.1 IAF, Tab 40. ¶6 The telephonic hearing was held on April 29-30, 2015. IAF, Tab 45, Hearing Compact Disc. At the start of the first day of the telephonic hearing, the administrative judge reminded the parties, for the third time, of the requirement that the witnesses be sequestered such that no witness other than the testifying witness should be present in the room at any given time. Id. For the first day of the hearing, agency counsel appeared from a conference room at the CPCPAC. IAF, Tab 46 at 8-9. Three of the five agency witnesses testified telephonically from the same conference room. Id. at 8-11, 13-14. One additional agency 1 The administrative judge’s written orders did not specify what it meant to sequester witnesses. However, at the beginning of the hearing, the administrative judge indicated that she had discussed the sequestration requirement with the parties in detail before going on the record. IAF, Tab 45, Hearing Compact Disc. Specifically, she stated that she had informed the parties that no witness could be present in the room for the testimony of another witness and that no witness could be advised during the hearing about the testimony of another witness. Id. 4 witness began his telephonic testimony from the conference room, but finished it from another office due to technical issues. Id. at 15. The remaining agency witness testified telephonically from his office at another facility. Id. at 8-9. ¶7 A few days after the close of the hearing, the appellant filed a motion for sanctions against the agency in the form of striking all testimony of the agency’s witnesses and granting her default judgment because the agency allegedly violated the sequestration order. IAF, Tab 43. She also asked the administrative judge to order the agency to preserve video surveillance tapes from near the conference room where the hearing was held, along with other evidence. Id. Accompanying the motion was a signed affidavit from one of the appellant’s witnesses who was present at the CPCPAC on the first day of the hearing, stating that she “perceived” that all of the agency’s witnesses were present in the room while each witness testified because she heard multiple voices through the conference room wall. Id. at 10-11. The agency filed a response to the motion, denying any violation of the sequestration orders. IAF, Tab 46 at 4-7. The agency provided the signed affidavits of agency counsel and four agency witnesses indicating that no witness, other than the one testifying at that time, was present during each witness’s testimony. Id. at 8-9, 11, 13-15.2 After reviewing the parties’ submissions, the administrative judge denied the appellant’s motion. IAF, Tab 50 at 1-2. ¶8 On petition for review, the appellant argues that the administrative judge abused her discretion by: (1) denying the motion to strike without holding a hearing on the motion; (2) failing to find that the agency violated the sequestration order; and (3) failing to grant the appellant’s request for an order 2 As noted above, one of the agency’s witnesses completed part of his testimony in a separate room away from agency counsel. IAF, Tab 46 at 15. He indicated in his affidavit that he was the only person in the room during the latter portion of his testimony. Id. 5 preserving the conference room surveillance videos and agency cellular phone and computer records. PFR File, Tab 1, Tab 5 at 3. The appellant requests that the Board remand the case with an order to the administrative judge to review the conference room surveillance tapes if they still exist or to enter judgment in the appellant’s favor if they no longer exist. PFR File, Tab 5 at 3. In response, the agency argues that the administrative judge properly denied the appellant’s motion. PFR File, Tab 4. The agency asserts that the administrative judge weighed the competing affidavits and rightfully gave less weight to the appellant’s witness’s claim that she “perceived” the presence of additional individuals in the conference room in light of her concession that she “did not physically see them.” Id. at 6; IAF, Tab 43 at 11. ¶9 Absent an abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. See Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2015). Additionally, an administrative judge has wide discretion to control the proceedings before her, including the authority to exclude testimony she believes would be irrelevant, immaterial, or repetitious. Sigler v. Department of the Army, 63 M.S.P.R. 103, 110 (1994); Brownscombe v. Office of Personnel Management, 37 M.S.P.R. 382, 386 (1988), aff’d, 871 F.2d 1097 (Fed. Cir. 1989) (Table). Administrative judges also have substantial discretion over convening a hearing and ruling on motions. Smith v. Department of the Army, 41 M.S.P.R. 110, 113 (1989); 5 C.F.R. §§ 1201.41(b)(6), (8). Given the substantial discretion administrative judges have to control the proceedings before them, the Board will not reverse an administrative judge’s decision not to hold a hearing on a motion requesting sanctions absent an abuse of discretion. See generally Leseman, 122 M.S.P.R. 139, ¶ 6. ¶10 Here, following the appellant’s submission of her motion, the administrative judge afforded the agency an opportunity to respond and the appellant an opportunity to reply to the response. IAF, Tab 44. The agency filed a response, IAF, Tab 46, but the appellant did not avail herself of the opportunity to file a 6 reply. Additionally, although the appellant argues that the administrative judge erred by failing to hold a hearing on the veracity of the competing affidavits, the appellant did not request such a hearing in the motion itself, or at any time prior to the close of the record on the motion. PFR File, Tab 1 at 5; IAF, Tab 43. Further, the appellant has not identified a Board regulation requiring that an administrative judge hold a hearing to resolve a post-hearing request for sanctions. ¶11 In reaching her conclusion that her sequestration orders were not violated, the administrative judge reviewed the parties’ affidavits. IAF, Tab 50 at 1-2. In making her determination, the administrative judge relied heavily on the fact that the appellant’s sole affiant admitted that at no time could she physically see any of the agency’s witnesses inside the conference room, relying instead on her “perception” that they were in the same room based on the voices she heard coming from the room. Id. at 1 (quoting IAF, Tab 42 at 11). Weighed against this affidavit, the administrative judge credited the affidavits of agency counsel and the agency’s witnesses stating that no other witnesses were in the room during the hearing testimony of any witness. IAF, Tab 50 at 2. The administrative judge also identified four individuals who were present and speaking at various times on the telephonic conference call along with each witness, who may have accounted for any additional voices coming from the conference room. Id. Finally, the administrative judge noted that her review of the hearing recording did not reveal any unexplained or unusual voices, noises, or activities suggestive of the presence of additional individuals in the conference room. Id. ¶12 Having reviewed the appellant’s claim, we find that the administrative judge did not abuse her discretion in determining that the agency had not violated the sequestration orders. We further conclude that the administrative judge acted within her discretion when she denied, without holding an additional hearing, the appellant’s motion for default judgement and request to strike the testimony of all 7 agency witnesses. We further find no abuse of discretion in her denying the appellant’s request for an order preserving video surveillance and other evidence related to the motion. Remand is required in light of Santos. ¶13 In affirming the appellant’s performance-based removal, the administrative judge cited the Board’s precedent setting forth the relevant legal standard for such actions under chapter 43. ID at 4-5. Under that standard, the agency must prove by substantial evidence that: (1) OPM approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and (5) after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element. Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 & n.5 (2013); see 5 U.S.C. § 7701(c)(1)(A). The Board has consistently interpreted that standard as not requiring an agency to prove that an employee was performing unacceptably before being given an opportunity to demonstrate acceptable performance via placement on a PIP. Thus, the Board has declined to examine an employee’s pre-PIP performance in analyzing a performance-based action under chapter 43. See, e.g., Thompson v. Department of the Navy, 89 M.S.P.R. 188, ¶ 19 (2001); Clifford v. Department of Agriculture, 50 M.S.P.R. 232, 234 n.1 (1991); Wilson v. Department of the Navy, 24 M.S.P.R. 583, 586-87 (1984). ¶14 Although the administrative judge properly applied existing precedent as of the date she issued the initial decision, our reviewing court issued a precedential decision recognizing an additional element of an agency’s burden of proof under chapter 43 while this matter was pending before the Board on petition for review. In Santos, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held 8 for the first time that to support an adverse action under chapter 43, an agency “must justify institution of a PIP” by showing that the employee’s performance was unacceptable before the PIP. Santos, 990 F.3d at 1360-61. The court noted that the statute authorizes actions against employees “who continue to have unacceptable performance” after a PIP and reasoned that proving continued unacceptable performance requires a showing that the performance was unacceptable both prior to and during the PIP. Id. (quoting 5 U.S.C. § 4302(c)(6)). The court found that the Board’s failure to consider the appellant’s pre-PIP performance in Santos was an abuse of discretion and it remanded the appeal for further proceedings under the modified legal standard. Santos, 990 F.3d at 1363-64. ¶15 With limited exceptions not applicable here, decisions of the Federal Circuit are binding on the Board. See Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Therefore, we modify the standard applicable to chapter 43 actions in light of Santos. To defend an action under chapter 43, the agency must prove by substantial evidence that: (1) OPM approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s performance during the appraisal period was unacceptable in one or more critical elements; (5) the agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and (6) after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element. ¶16 The Federal Circuit’s new precedent in Santos applies to all pending cases, regardless of when the events at issue took place. See Porter v. Department of Defense, 98 M.S.P.R. 461, ¶ 14 (2005) (citing Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752, 759 (1995)). The parties did not have an opportunity before 9 the administrative judge to address the modified legal standard in light of Santos. We therefore remand this case for further adjudication of the appellant’s removal under the standard set forth in Santos.3 See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings under the modified legal standard); Blaha v. Office of Personnel Management, 106 M.S.P.R. 265, ¶ 11 (2007) (remanding an appeal where the parties were not informed of the correct legal standard). ¶17 On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable. The administrative judge shall hold a supplemental hearing if appropriate. The administrative judge shall then issue a new initial decision consistent with Santos. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate her prior findings on other elements of the agency’s case in the remand initial decision. See Hall v. Department of Transportation, 119 M.S.P.R. 180, ¶ 8 (2013). 3 While this matter was pending on petition for review, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, 131 Stat. 862 (2017). Among other things, the VA Accountability Act provided the Department of Veterans Affairs with an expedited, less rigorous process for removing, demoting, or suspending its employees for inadequate performance or misconduct. The VA Accountability Act thereby gave the agency “an expedited, less rigorous alternative to traditional civil service adverse action appeals” under chapter 43 and chapter 75 of title 5. Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1374 (Fed. Cir. 2020). However, the Federal Circuit has held that the VA Accountability Act does not apply to disciplinary action based on conduct or performance occurring before its enactment, id. at 1380-82, and no other court of appeals has reached a contrary conclusion. Therefore, the VA Accountability Act may not be applied to the appellant’s removal in this case because it is based on performance that occurred several years before the Act went into effect. Accordingly, the appellant’s removal must be adjudicated under chapter 43 on remand. 10 ORDER ¶18 For the reasons discussed above, we GRANT the petition for review, VACATE the initial decision, and REMAND this case to the regional office for further adjudication in accordance with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/LEE_KELLY_J_DE_0432_14_0448_I_1_OPINION_AND_ORDER_1924179.pdf	Issuance Date: May 25, 2017 Jurisdiction The petitioner had almost 6 years of Federal service under a series of term appointments. She began an appointment under the Federal Career Intern Program (FCIP) on March 16, 2008. On March 5, 2010, the agency notified her that her term would expire on March 15, 2010, and that it would not convert her appointment into a competitive service appointment. Thus, the agency terminated the petitioner from Federal service. She appealed her termination to the Board. The administrative judge dismissed her appeal for lack of jurisdiction and the Board affirmed the initial decision. Holding: The court affirmed the Board’s dismissal of the appeal for lack of jurisdiction. 1. An agency’s decision not to convert an FCIP intern to the competitive service is generally not an adverse action that is appealable to the Board because 5 C.F.R. § 213.3202(o)(6) (2006), which implemented the FCIP, explains that an intern has no right to further Federal employment after the expiration of his or her term. 2. Executive Order No. 13,162, which created the FCIP, does not confer further rights upon the petitioner because it states that competitive civil service status may be granted to a successful intern and not that it shall be granted, and because the Order states that it “does not create any right or benefit, substantive or procedural, enforceable in law or equity, by a party against the United States, its agencies, its officers or employees, or any other person.” NONPRECEDENTIAL: Gordon v. Office of Personnel Management, No. 2017-1165, (Fed. Cir. May 25, 2017) (MSPB Docket No. CH-0845-16-0204-I-1) (reversing the Board’s decision that found that the petitioner failed to prove that recovery of his overpaid benefits under the Federal Employees’ Retirement System would be against equity and good conscious because: (1) recovery would be unconscionable based upon OPM’s lengthy delays on two separate occasions; (2) the first delay hindered his ability to receive Department of Veterans Affairs and state benefits he likely would have received; and (3) the second delay fell only 40 days short of 4 years, and directing the Board to instruct the Office of Personnel Management to waive recovery of the claimed overpayment). MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
05-10-2022	2022 MSPB 10	Traci Scanlin	https://www.mspb.gov/decisions/precedential/SCANLIN_TRACI_CB_7121_17_0001_V_1_OPINION_AND_ORDER_1923219.pdf	Social Security Administration	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 10 Docket No. CB-7121-17-0001-V-1 Traci Scanlin, Appellant, v. Social Security Administration, Agency. May 10, 2022 Patricia J. McGowan, Esquire and Sophie Gage, Esquire, Baltimore, Maryland, for the appellant. David B. Myers, New York, New York, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a request for review of an arbitration decision concerning her removal, which the arbitrator mitigated to a suspension. For the reasons set forth below, we DISMISS the request for review for lack of jurisdiction. BACKGROUND ¶2 Effective July 21, 2015, the agency removed the appellant from her position as a Claims Representative based on charges of falsely attesting claims and gross negligence in the performance of duties. Request for Review (RFR) File, Tab 1 2 at 101-10. On behalf of the appellant, her union filed a grievance, which the agency denied, and later invoked arbitration. Id. at 33, 111-15. On September 1, 2016, the arbitrator issued a decision, finding that the agency proved its charges, but reducing the penalty to a time-served suspension. Id. at 14-47. ¶3 On October 1, 2016, the appellant filed the instant request for review of the arbitrator’s decision. Id. at 1-13. Among other things, the appellant asserted that the Board has jurisdiction over the arbitration decision because she raised allegations of disability discrimination in her grievance. Id. at 9-10. The agency filed a response asserting, inter alia, that the Board lacks jurisdiction over the matter because the appellant failed to raise allegations of discrimination before the arbitrator. RFR File, Tab 4 at 6-9. ANALYSIS ¶4 As explained in our acknowledgment order, it is the appellant’s burden of proving that the Board has jurisdiction over this matter by preponderant evidence. RFR File, Tab 2 at 2; see 5 C.F.R. § 1201.56(b)(2)(i)(A). As further explained, the Board has jurisdiction over a request for review of an arbitration decision when the following conditions are met: (1) the subject matter of the grievance is one over which the Board has jurisdiction; (2) the appellant either (i) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying action, or (ii) raises a claim of discrimination in connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if such allegations could not be raised in the negotiated grievance procedure; and (3) a final decision has been issued. 3 RFR File, Tab 2 at 2; Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); see 5 C.F.R. § 1201.155(a)(1),(c).1 ¶5 Here, conditions (1)2 and (3) are satisfied. RFR File, Tab 1 at 14-47, 101-10, Tab 4 at 7 n.3. But, we find that the appellant failed to meet her burden concerning condition (2). The relevant negotiated grievance procedure permits allegations of discrimination. RFR File, Tab 4 at 435-39. The appellant alleges that she raised allegations of discrimination in her grievance with the agency. RFR File, Tab 1 at 9-10. In that grievance, the appellant asserted that her “Weingarten interview was held under harsh conditions that affected her mental health” and that the meeting generally violated agency policy prohibiting disability discrimination. Id. at 111-15. However, to satisfy condition (2), it was incumbent upon the appellant to prove that she raised discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator. Jones, 120 M.S.P.R. 480, ¶ 8. ¶6 With her request for review, the appellant included her brief to the arbitrator. RFR File, Tab 1 at 49-82. In it, the appellant alluded to discrimination only by asserting that the issue to be decided was “[w]hether the [a]gency’s [a]ctions [v]iolated [f]undamental [d]ue [p]rocess, the [collective bargaining agreement] and [w]ere [d]iscriminatory.” Id. at 58. The brief 1 Because there is no dispute that the collective bargaining agreement in this case permitted the appellant to raise her claims before an arbitrator, we need not address the jurisdictional standard for those cases in which an employee does not have that right. See Parks v. Smithsonian Institution, 39 M.S.P.R. 346, 349 (1988) (noting that “[t]he final decision rendered pursuant to a negotiated grievance procedure, which is then appealable to the Board under 5 U.S.C. § 7121(d), is the arbitrator’s decision in cases where the grievance procedure provides for arbitration as the last resort”); 5 C.F.R. § 1201.155(c) (indicating that the Board will review only those claims of discrimination that were raised “in the negotiated grievance procedure”). 2 The appellant’s removal, which was the subject matter of the grievance, is an action appealable to the Board under chapter 75 of title 5 of the United States Code. 5 U.S.C. §§ 7512(1), 7513(d). 4 contained other substantive and lengthy arguments, including ones concerning due process, harmful error, and the reasonableness of the penalty. Id. at 59-81. However, it did not elaborate on the generic reference to discrimination. With her request for review, the appellant also included the arbitration decision, which recognizes the aforementioned assertion concerning the issues, but similarly fails to address discrimination in any substantive way. Id. at 14-47. The appellant has not identified and we were unable to locate any further details about possible discrimination claims presented to the arbitrator, even after considering the hearing transcript provided by the agency. RFR File, Tab 4 at 16-432. Therefore, we find that the appellant has failed to meet her burden. The generic posing of the question, “was the removal discriminatory,” without more, is insufficient for purposes of proving that she raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying action. Cf. Bennett v. National Gallery of Art, 79 M.S.P.R. 285, 294-95 (1998) (finding that a general allegation of national origin discrimination prohibited by section 2302(b)(1) was sufficient for purposes of Board jurisdiction over an arbitration decision, irrespective of whether the allegation was nonfrivolous).3 We find that, because the appellant could have raised a discrimination claim before the arbitrator, but has not proven that she did so, the Board lacks jurisdiction over her request for review. 3 The Bennett decision relies on an old jurisdictional standard that no longer applies. See Bennett, 79 M.S.P.R. at 295. Specifically, the standard applicable at that time merely required that the appellant allege discrimination prohibited by section 2302(b)(1). Id. The current standard requires that the appellant “raise[] a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying action.” Jones, 120 M.S.P.R. 480, ¶ 8 (emphasis added). 5 ORDER ¶7 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 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: 6 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 7 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 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 8 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.4 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 4 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. 9 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SCANLIN_TRACI_CB_7121_17_0001_V_1_OPINION_AND_ORDER_1923219.pdf
05-05-2022	2022 MSPB 9	John Edwards	https://www.mspb.gov/decisions/precedential/EDWARDS_JOHN_S_DC_1221_16_0227_W_1_OPINION_AND_ORDER_1922221.pdf	Department of Labor	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 9 Docket No. DC-1221-16-0227-W-1 John S. Edwards, Appellant, v. Department of Labor, Agency. May 5, 2022 Peter Broida, Esquire, Arlington, Virginia, for the appellant. Elizabeth L. Beason, Esquire and Rolando Valdez, Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of an initial decision that dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons set forth below, we DENY the petition for review and DISMISS the appeal for lack of jurisdiction, finding that the appellant did not make a protected disclosure under 5 U.S.C. § 2302(b)(8), or engage in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) or 5 U.S.C. § 2302(b)(9)(B). 2 BACKGROUND ¶2 The essential facts, as set forth in the initial decision and not contested on review, are that the appellant was a GS-15 Deputy Director of the agency’s Employment and Training Administration, Office of Information Systems and Technology, when he verbally “disclosed and protested” to his supervisors their alleged failure to provide opportunities and assignments to African American employees because of their race. Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 1-2; IAF, Tab 5 at 5. He also disclosed to his supervisors their alleged discrimination when they refused to promote one of the appellant’s subordinates to a vacant supervisory position for which he had competed, allegedly because of the subordinate’s race (African American). ID at 2; IAF, Tab 5 at 6. At about the same time, the appellant filed complaints of systemic race discrimination against African American employees under the agency’s Harassing Conduct Policy and with the agency’s Equal Employment Opportunity (EEO) Office. ID at 2; IAF, Tab 5 at 5-6. Within a few months after these actions, the agency reassigned the appellant to a nonsupervisory GS-15 position and posted his former position for recruitment. ID at 2; IAF, Tab 5 at 6, Tab 11 at 5. ¶3 The appellant filed a complaint with the Office of Special Counsel (OSC) alleging that his reassignment was in reprisal for his disclosures. IAF, Tab 1 at 20-49. After OSC closed its investigation, the appellant filed a timely IRA appeal alleging, among other things, that the Board had jurisdiction over his appeal pursuant to 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9). IAF, Tab 1 at 8-12, 16-17. ¶4 After acknowledging receipt of the appeal, IAF, Tab 2, the administrative judge issued an order noting that there was a question regarding whether the Board had jurisdiction over the appeal, setting forth the jurisdictional burdens of proof, and ordering the appellant to respond. IAF, Tab 3. In response, the appellant argued that his statements and complaints regarding race discrimination 3 constituted disclosures of an abuse of authority protected under 5 U.S.C. § 2302(b)(8) and lawful assistance to African American employees protected under 5 U.S.C. § 2302(b)(9)(B). IAF, Tab 5 at 25-26. ¶5 In her initial decision, the administrative judge found that the appellant exhausted his remedies before OSC. ID at 6. She then found that the appellant failed to make a nonfrivolous allegation that his statements or complaints were protected under either 5 U.S.C. § 2302(b)(8) or § 2302(b)(9)(B). ID at 7-11. Specifically, the administrative judge found that the appellant’s allegations of discrimination did not constitute disclosures of an abuse of authority protected under 5 U.S.C. § 2302(b)(8) because the allegations related solely to discrimination matters covered by 5 U.S.C. § 2302(b)(1),1 and such matters are not covered by section 2302(b)(8). ID at 8-9. The administrative judge noted that one Board decision, Armstrong v. Department of Justice, 107 M.S.P.R. 375, ¶ 17 (2007), held that the Board has IRA jurisdiction under section 2308(b)(8) over a disclosure regarding an EEO violation, but she found that it was inconsistent with the weight of Board authority, and she did not follow it. ID at 10 n.2. She found further that the appellant’s EEO complaint regarding discrimination against other agency employees was covered by 5 U.S.C. § 2302(b)(9)(A)(ii) and did not fall within the Board’s jurisdiction. ID at 9-10. ¶6 The administrative judge also found that the appellant’s support for African American employees did not constitute the giving of lawful assistance in their exercising any right regarding any appeal, complaint, or grievance and, therefore, the appellant failed to make a nonfrivolous allegation that his actions were protected under 5 U.S.C. § 2302(b)(9)(B). ID at 10-11. The administrative judge 1 Section 2302(b)(1) provides, in relevant part, that “[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . discriminate for or against any employee or applicant for employment” on the basis of race, as prohibited under section 717 of the Civil Rights Act of 1964. 4 observed that the appellant did not allege that his coworkers engaged in protected activity. ID at 11. ¶7 In his petition for review, the appellant argues that the administrative judge erred in failing to follow the precedent set forth in Armstrong, 107 M.S.P.R. 375, and Kinan v. Department of Defense, 87 M.S.P.R. 561 (2001). Petition for Review (PFR) File, Tab 1 at 12-13. The appellant also argues that under the Whistleblower Protection Enhancement Act (WPEA), Pub. L. No. 112-199, 126 Stat. 1465 (2012), his disclosures of violations of title VII of the Civil Rights Act of 1964 and his support for his colleagues are protected. PFR File, Tab 1 at 15-20. The agency has responded in opposition to the petition for review. PFR File, Tab 5. ANALYSIS ¶8 The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes nonfrivolous allegations that: (1) he 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 as defined by 5 U.S.C. § 2302(a).2 Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014); see 2 As argued by the appellant on review, the administrative judge stated in her initial decision that the appellant bears the burden of establishing by preponderant evidence that the Board has jurisdiction over his appeal. PFR File, Tab 1 at 14; ID at 4. However, in the next paragraph of the decision, the administrative judge set forth the correct jurisdictional standard for an IRA appeal in which an appellant alleges a violation of 5 U.S.C. § 2302(b)(8). ID at 4. Moreover, the administrative judge applied the correct jurisdictional standard in her analysis of the evidence. To the extent that the administrative judge erred in misstating at one point in the initial decision that the appellant must establish jurisdiction by preponderant evidence, her error did not prejudice the appellant’s substantive rights and provides no basis to reverse the initial decision. Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 41 (2012) (stating that an error that did not prejudice the appellant’s substantive rights provides no basis to 5 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Here, the appellant exhausted his administrative remedies before OSC regarding his allegations that: (1) in violation of section 2302(b)(8), the agency retaliated against him for his alleged protected disclosures regarding his supervisors’ purported failure to provide opportunities and assignments to African American employees, and the alleged refusal to promote his subordinate to a vacant supervisory position because of the subordinate’s race; (2) in violation of section 2302(b)(9)(A)(i), the agency retaliated against him for his protected activity of filing a complaint of the agency’s systemic race discrimination against African American employees under the agency’s Harassing Conduct Policy and with the agency’s EEO Office; and (3) in violation of section 2302(b)(9)(B), the agency retaliated against him for the protected activity of assisting another employee to exercise a right protected by section 2302(b)(9)(A). IAF, Tab 1 at 10-12, 24-49, Tab 5 at 29. ¶9 Thus, at issue in this appeal is whether the appellant made a nonfrivolous allegation that his disclosures and activity were protected under sections 2302(b)(8), 2302(b)(9)(A), and/or 2302(b)(9)(B). As explained below, while the appellant appears to have been admirably motivated in seeking to remedy perceived discrimination in his agency, we find that he failed to meet his jurisdictional burden, and that the proper forum for his allegation of retaliation for filing an EEO complaint is with the Equal Employment Opportunity Commission (EEOC). reverse the initial decision); Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (same). 6 The appellant’s disclosures are not within the Board’s jurisdiction under 5 U.S.C. § 2302(b)(8). (1) Board and circuit courts’ precedent have generally excluded EEO reprisal from consideration under 5 U.S.C. § 2302(b)(8). ¶10 Board precedent has long held that reprisal for filing an EEO complaint is a matter relating solely to discrimination and is not protected by 5 U.S.C. § 2302(b)(8). See Williams v. Department of Defense, 46 M.S.P.R. 549, 554 (1991). A rationale for the finding in Williams was the 1987 Congressional testimony of the Special Counsel regarding a previous, unenacted version of the Whistleblower Protection Act3 (WPA) expressing concern about granting IRA appeal rights to employees who also had the EEOC as an avenue to seek redress. Williams, 46 M.S.P.R. at 553-54; Whistleblower Protection Act of 1987: Hearings Before the Subcomm. on Fed. Services, Post Off., & Civ. Serv. of the Comm. on Governmental Affairs, U.S. Senate, 100th Cong. 138-39, 379-80 (1987).4 ¶11 In Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 505-06 (1993), overruled on other grounds by Thomas v. Department of the Treasury, 77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000), the employee filed a claim for Federal Employees Compensation Act (FECA) benefits in which she alleged the purported use of sexually offensive language directed at her as the cause of her injury and then filed an IRA appeal asserting reprisal for whistleblowing and 3 The Whistleblower Protection Act was enacted into law in 1989. Pub. L. No. 101-12, 103 Stat 16 (1989). 4 In Ganski v. Department of the Interior, 86 M.S.P.R. 32, ¶ 12 n.2 (2000), the Board held that it may rely on legislative history from the 100th Congress as an aid in interpreting the WPA, when the materials relate to language of bills that did not change before passage in the 101st Congress. In the instant matter, the materials relate to a principle—excluding title VII-related matters from the whistleblower protection statute—that did not change in the ultimately enacted law. 7 exercising an appeal right. She also filed an EEO complaint regarding the same incident. Von Kelsch, 59 M.S.P.R. at 506. ¶12 While the Board found that it did not lack jurisdiction to hear and decide an IRA appeal simply because the disclosure was made in a FECA claim, the nature of Ms. Von Kelsch’s disclosure of a purported title VII violation divested the Board of jurisdiction. Id. at 508-09. The Board held that the WPA’s legislative history and structure indicate Congress’ intent not to extend IRA appeal protection under section 2302(b)(8) for employees who allege that their agencies retaliated against them after they challenged practices made unlawful by title VII. Von Kelsch, 59 M.S.P.R. at 509. The Board further stated that, in creating an IRA appeal right under section 2302(b)(8), Congress expressed its intent to benefit those employees whose “only route of appeal [under the then-existing statute] is the OSC.” Von Kelsch, 59 M.S.P.R. at 509 (citing S. Rep. No. 100-413 at 32 (1988)) (brackets in original). ¶13 Further, in Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84 (2001), the Board held that it would not consider the appellant’s purported disclosures that involved alleged discrimination or reprisal for engaging in activities protected by title VII. The Board found that, even if the disclosures were made outside of the grievance or EEO processes, such disclosures did not constitute protected whistleblower activity under 5 U.S.C. § 2302(b)(8) because they pertain to matters of discrimination covered by 5 U.S.C. § 2302(b)(1)(A). Id. Thus, Ms. Redschlag’s disclosures of title VII-related matters—that she purportedly made to her Congressman, the agency’s Criminal Investigation Division, and while participating in the Secretary of the Army’s Focus Panel on Sexual Harassment—were not protected under section 2302(b)(8). Id. The decision in Redschlag cited the Board’s previous decision in Nogales v. Department of the Treasury, 63 M.S.P.R. 460, 464 (1994), in which the Board stated that disclosures about discrimination based on sex, race, color, religion, or national origin are excluded from the coverage of section 2302(b)(8) because they 8 are covered by 5 U.S.C. § 2302(b)(1)(A) and that such disclosures are not within the purview of the Board’s IRA jurisdiction regardless of the channels through which the employee makes the disclosure. ¶14 The Board’s decisions are consistent with the decisions of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Spruill v. Merit Systems Protection Board, 978 F.2d 679, 680-81 (Fed. Cir. 1992), the employee filed an IRA appeal asserting that a 3-day suspension was taken in reprisal for his having filed a discrimination complaint with the EEOC. Like the Board, the court looked to the WPA’s legislative history to support its finding that the EEO process was the appropriate forum for an employee alleging reprisal for filing a discrimination complaint. Id. at 690-92. The court observed that the division adopted by Congress, among other things, “avoids potentially conflicting procedures or outcomes,” and “acknowledges the EEOC role as an expert agency in discrimination matters.” Id. at 692. In Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1575 (Fed. Cir. 1996), the court restated the holding of its previous decision in Spruill that “the filing of a complaint with the [EEOC], in which an employee alleged discriminatory treatment by an agency in violation of title VII of the Civil Rights of 1964, did not constitute a whistleblowing disclosure within the meaning of section 2302(b)(8), but instead, was a nonwhistleblowing disclosure under section 2302(b)(9)(A)” (citing Spruill, 978 F.2d at 692). Most recently, in Young v. Merit Systems Protection Board, 961 F.3d 1323, 1327-28 (Fed. Cir. 2020), the court reiterated that discrimination claims may not be raised in an IRA appeal, because IRA appeals are limited to alleged violations of whistleblower protection statutes. 9 ¶15 When confronted with the issue of whether a title VII matter is within the scope of the whistleblower protection statutes, the regional circuits that have addressed the issue have agreed with the Federal Circuit.5 ¶16 The U.S. Court of Appeals for the Sixth Circuit affirmed a decision by the U.S. District Court for the Western District of Kentucky which determined that an employee’s claims of sexual harassment, race discrimination, and associated retaliation were not appropriately categorized as whistleblower claims, holding that “when dealing with issues of employment discrimination, the WPA/WPEA is displaced and preempted by [t]itle VII.” Carrethers v. Esper, No. 3:16-CV-62- CRS, 2019 WL 2330894, *1, 5 (W.D. Ky. May 31, 2019), aff’d sub nom. Carrethers v. McCarthy, 817 F. App’x 88 (6th Cir. 2020).6 Similarly, in a case before the U.S. Court of Appeals for the Seventh Circuit, an employee attempted to contest adverse actions based on his religion and national origin within the context of a WPA claim. The court held that “for [F]ederal employees claiming discrimination on the basis of religion and national origin (as well as reprisal for complaining about discrimination), [t]itle VII is the exclusive judicial remedy.” Malekpour v. Chao, 682 F. App’x 471, 475-76 (7th Cir. 2017). The U.S. Court of Appeals for the District of Columbia Circuit also has agreed with the “Federal Circuit’s longstanding precedent, which Congress has been aware of but has never overturned,” that “employees who specifically complain about 5 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on this issue. However, as a result of changes initiated by the Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, § 108, 126 Stat. 1465, 1469 (2012)), extended for 3 years (All Circuit Review Extension Act, Pub. L. No. 113-170, § 2, 128 Stat. 1894 (2014)), and eventually made permanent (All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018)), we must consider this issue with the view that the appellant may seek review of this decision before any appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B). 6 The Board may follow a nonprecedential decision of a court when it finds its reasoning persuasive, as we do here. Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 10 discrimination against them (or retaliation against them for having filed a discrimination claim) are not covered by the general whistleblower provisions and thus fall outside the Board’s whistleblower jurisdiction.” Coulibaly v. Merit Systems Protection Board, 709 F. App’x 9, 10 (D.C. Cir. 2017). Further, prior to the passage of all circuit review, the U.S. Court of Appeals for the Third Circuit concluded that, while reprisal for EEO activity can form the basis of a title VII claim, it “generally does not encompass whistleblowing activity, which usually involves disclosures outside established procedures.” Fleeger v. Principi, 221 F. App’x 111, 117 (3d Cir. 2007) (citing Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992)). ¶17 In addition to finding that allegations of discrimination in violation of title VII cannot be brought under the whistleblower protection statutes, courts have also found that the reverse is true; allegations of reprisal for whistleblowing cannot be brought under title VII. See Davis v. James, 597 F. App’x 983, 987 (10th Cir. 2015) (finding that the plaintiff failed to establish that she opposed conduct prohibited by title VII because she alleged in her EEO complaint that she was actually retaliated against for whistleblowing about timecard fraud); see also Jamil v. Department of Defense, 910 F.2d 1203, 1207 (4th Cir. 1990) (explaining that title VII is not a general “bad acts” statute, and “only addresses discrimination on the basis of race, sex, religion, and national origin, not discrimination for whistleblowing”). Indeed, courts have long adopted the proposition that claims of discrimination in Federal employment are to be addressed solely through title VII. See Brown v. General Services Administration, 425 U.S. 820, 835 (1976) (stating that title VII “provides the exclusive judicial remedy for claims of discrimination in [F]ederal employment”); see also Pretlow v. Garrison, 420 F. App’x 798, 801 (10th Cir. 2011) (explaining that “[i]nsofar as [a Federal employee] complains of discrimination and associated retaliatory conduct, his exclusive remedy is provided by [t]itle VII”); Mlynczak v. Bodman, 442 F.3d 1050, 1057 (7th Cir. 2006) (referring to title VII 11 as the “exclusive judicial remedy for claims of discrimination in [F]ederal employment”). Thus, it is clear that separate remedies exist for redress of claims of discrimination and claims of reprisal for whistleblowing, and that claims must be brought under the appropriate statutory scheme. This further supports the conclusion that allegations of discrimination may not be brought under the whistleblower protection statutes. (2) The Board’s decisions in Armstrong and Kinan are overruled. ¶18 In Armstrong, 107 M.S.P.R. 375, ¶ 17, the case referenced by the appellant in his petition for review, the employee, among other things, disclosed to an Office of Inspector General investigator that none of the African American employees in the office had been afforded the opportunity to work on an assignment that was often an avenue to promotion. Thus, his disclosure related to purported violations of title VII. The Board agreed with the administrative judge that Mr. Armstrong’s disclosure evidenced a violation of law, rule, or regulation or an abuse of authority. Id. The decision failed to discuss or even acknowledge the Board and court precedent set forth above regarding the scope of the coverage of 5 U.S.C. § 2302(b)(8), and provided no rationale for its departure from established precedent. Armstrong, 107 M.S.P.R. 375, ¶ 17. ¶19 In Kinan, 87 M.S.P.R. 561, ¶¶ 3-7, which the appellant also cited in his petition for review, the employee alleged that his employing agency first detailed and then reassigned him in reprisal for his disclosures that agency officials refused to hire African Americans, failed to take corrective action in a sexual harassment case, and retaliated against him for opposing his supervisor’s discriminatory practices. The Board agreed with the administrative judge that corrective action was not warranted in the Board appeal because the agency established by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosures, but the Board specifically addressed whether Mr. Kinan’s disclosures were protected and whether he established that one or more of the disclosures was a contributing factor to the 12 personnel action. Id., ¶¶ 9-10. In addressing whether the disclosures were protected, the Board explained that it found without merit the agency’s argument that the disclosures were not protected under 5 U.S.C. § 2302(b)(8) because they related to EEO and grievance matters under 5 U.S.C. § 2302(b)(9). Id., ¶ 13 n.2. The Board reasoned that Mr. Kinan did not file an EEO complaint on his own behalf, but complained to agency management about broader concerns, and thus, his disclosures fell under 5 U.S.C. § 2302(b)(8). Id. As in Armstrong, however, the Kinan decision failed to discuss or even acknowledge the Board and court precedent set forth above regarding the scope of the coverage of 5 U.S.C. § 2302(b)(8), and the reasoning the Board offered was inconsistent with established precedent.7 ¶20 We cannot reconcile the decisions in Armstrong and Kinan with the weight and reasoning of the Board and court precedent discussed above. Accordingly, we overrule Armstrong and Kinan to the extent that they found that alleged reprisal for opposition to practices made unlawful by title VII constitutes a protected disclosure under section 2302(b)(8). (3) The WPEA does not extend the coverage of the whistleblower protection statutes to title VII-related matters. ¶21 The appellant argues on review that, under the WPEA, the scope of the whistleblower protection statutes was expanded to include allegations of wrongdoing that fall within the purview of title VII. PFR File, Tab 1 at 15-20. To bolster this argument, the appellant cites the WPEA’s legislative history, 7 In support of the holding, the Board in Kinan cited the Federal Circuit’s decision in Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993), for the proposition that matters that could have been asserted in a 5 U.S.C. § 2302(b)(9) proceeding do not lose 5 U.S.C. § 2302(b)(8) protection as long as they are raised outside of it as well. Kinan, 87 M.S.P.R. 561, ¶ 13 n.2. The decision in Ellison is inapposite to the issue at hand as the appellant in that case did not file an EEO complaint or engage in activity that could fall within the purview of title VII. Ellison, 7 F.3d at 1033-36. 13 which generally supports broadly interpreting the statutory scheme’s protections. Id. ¶22 We agree that Congress intended the coverage of the whistleblower protection statutes to be broad. Nevertheless, the coverage is not boundless. Nothing in the statute or legislative history of the WPEA addresses Williams, Spruill, or their progeny. Thus, despite expanding the scope of whistleblower protection in other ways, nothing suggests that the WPEA altered the long-standing administrative and judicial interpretation that title VII-related claims are excluded from protection under the whistleblower protection statutes. Moreover, following the enactment of the WPEA, the circuit courts have reaffirmed that this interpretation is still controlling.8 See Young, 961 F.3d at 1327-28; Coulibaly, 709 F. App’x at 10; Malekpour, 682 F. App’x at 475-75. ¶23 To be clear, we strongly condemn managers taking personnel actions in reprisal for engaging in any protected activity, including alleging violations of title VII. Congress has not left such employees without recourse. Rather, they may seek redress under title VII, which is enforced by the EEOC. Courts have interpreted the anti-retaliation provision of title VII as providing broad protection to those who raise title VII violations. See, e.g., Ray v. Ropes & Gray, LLP, 799 F.3d 99, 107-08 (1st Cir. 2015); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997); see also Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee, 555 U.S. 271, 276 (2009). 8 We have considered whether other statutes enacted since the WPEA became law cast doubt on the interpretation and find that none do. See, e.g., National Defense Authorization Act of 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017); Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115-73, 131 Stat. 1235 (2017). 14 The appellant failed to show that his complaints to the EEO Office or under the agency’s Harassing Conduct Policy of systemic race discrimination against African American employees is protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). ¶24 Under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise “any appeal, complaint, or grievance right granted by any law, rule, or regulation— (i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However, of the two provisions, an employee or applicant for employment may seek corrective action from the Board only for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). ¶25 As explained above, the substance of the appellant’s complaints to the agency’s EEO Office and under its Harassing Conduct Policy did not concern remedying an alleged violation of section 2302(b)(8). Rather, he was seeking to remedy purported reprisal for matters covered by title VII. Therefore, his complaints to the EEO Office and under the agency’s Harassing Conduct Policy regarding race discrimination are not within the purview of section 2302(b)(9)(A)(i), and the Board lacks jurisdiction to consider such allegations in the context of this IRA appeal. Mudd, 120 M.S.P.R. 365, ¶ 7; see 5 U.S.C. § 1221(a). The appellant failed to show that the Board has jurisdiction over his IRA appeal under 5 U.S.C. § 2302(b)(9)(B). ¶26 The WPEA expanded the scope of 5 U.S.C. § 2302(b)(9)(B) to afford the Board jurisdiction in IRA appeals over allegations of reprisal for “testifying for or otherwise lawfully assisting any individual in the exercise of any” “appeal, complaint, or grievance right granted by any law, rule, or regulation.” WPEA § 101(b)(1)(A); 5 U.S.C. § 2302(b)(9)(A)-(B). On review, the appellant argues that his disclosures and protests about racial discrimination constituted “lawful assistance” because “it is a regulatory requirement that employees 15 disclose abuse to appropriate authorities,” and “discrimination, whether against oneself or others in the workplace, is a form of abuse which, when reported, deserves all available protection against reprisal.” PFR File, Tab 1 at 11; see 5 C.F.R. § 2635.101(b)(11) (stating that Federal employees “shall disclose waste, fraud, abuse, and corruption to appropriate authorities”). The appellant also argues that the right to oppose discriminatory practices “is a fundamental component of the civil rights laws, and lawful assistance is embodied in the opposition clause” of the civil rights statutes. PFR File, Tab 1 at 11; see 42 U.S.C. § 2000e-3(a). Finally, he argues that the First Amendment to the Constitution guarantees the right to petition the Government for redress of grievances. PFR File, Tab 1 at 12. ¶27 We are not persuaded by these arguments. The statute provides that the Board has jurisdiction under section 2302(b)(9)(B) only when the individual for whom the appellant is testifying or is otherwise lawfully assisting in exercising “any appeal, complaint, or grievance right granted by any law, rule, or regulation.” Accordingly, the Board has held that neither testifying on behalf of a coworker as part of an administrative investigation, nor filing a motion to dismiss a criminal indictment, were protected under section 2302(b)(9)(B) because these activities were not the exercise of an appeal, complaint, or grievance right by another employee, as they did not constitute initial steps toward taking legal action against the agency for perceived violations of employment rights. 9 Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 18 (2016); Linder, 122 M.S.P.R. 14, ¶¶ 7-11. 9 As discussed below, Congress has since explicitly protected under 5 U.S.C. § 2302(b)(9)(C) cooperating with or disclosing information to “any . . . component responsible for internal investigation or review.” National Defense Authorization Act of 2018 § 1097(c)(1)(A). 16 ¶28 Here, there is no indication in the record that the appellant’s subordinate, who purportedly was denied a promotion based on his race, or any of the employees who allegedly were not afforded opportunities and assignments based on race, filed any appeal, complaint, or grievance. Accordingly, we find that, given the scope of the statutory language, there is no basis to conclude that the appellant’s activities were protected by 5 U.S.C. § 2302(b)(9)(B), and we agree with the administrative judge that the appellant failed to make a nonfrivolous allegation regarding this statutory provision. The amendment to 5 U.S.C. § 2302(b)(9)(C) contained in the National Defense Authorization Act of 2018 (2018 NDAA) is not retroactive and does not apply to this appeal. ¶29 Prior to December 12, 2017, the whistleblower protection statutory scheme provided that “cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law,” is protected. 5 U.S.C. § 2302(b)(9)(C). Section 1097(c)(1) of the 2018 NDAA, Pub. L. No. 115-91, 131 Stat. 1283 (2017), amended section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an agency or the Special Counsel, a disclosure to “any other component responsible for internal investigation or review” is also protected. ¶30 Here, as noted above, the appellant made purported disclosures to his supervisors, the EEO Office, and under the agency’s Harassing Conduct Policy. ID at 1-2; IAF, Tab 5 at 5-6. All of the events relevant to this appeal occurred prior to the 2018 NDAA’s enactment. Accordingly, we need not decide whether the appellant’s disclosures fall within the coverage of the amended section 2302(b)(9)(C) because, as discussed below, the statutory provision is not retroactive and thus does not apply to this appeal. ¶31 The proper analytical framework for determining whether a new statute should be given retroactive effect was set forth by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994): 17 When a case implicates a [F]ederal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result. ¶32 When Congress intends for statutory language to apply retroactively, it is capable of doing so very clearly. King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 9 (2013) (citing Presidio Components, Inc. v. American Technical Ceramics Corporation, 702 F.3d 1351, 1364-65 (Fed. Cir. 2012) (giving retroactive effect to amendments enacted in 2011 in light of express statutory language applying the amendments to “all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act”)). Here, the 2018 NDAA as enacted is silent regarding the retroactivity of this amendment to the whistleblower protection statute. Thus, applying the first part of the Landgraf test, we find that Congress has not expressly prescribed the statute’s proper reach. ¶33 Turning to the second part of the Landgraf test, we find that the 2018 NDAA would increase the agency’s liability for past conduct. As noted above, when this appeal was filed, it was not a prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(C) to take a personnel action against an employee for making a disclosure to “any other component responsible for internal investigation or review.”10 Thus, to now hold that such conduct, if it occurred 10 Such a disclosure could have been protected if it fell within the coverage of 5 U.S.C. § 2302(b)(8). 18 under the facts of this appeal, constituted a prohibited personnel practice, would increase the agency’s liability.11 Accordingly, considering the test set forth in Landgraf, we find no basis for finding that the 2018 NDAA amendment to 5 U.S.C. § 2302(b)(9)(C) is retroactive. ¶34 In sum, while we reiterate that the appellant appears to have been admirably motivated in seeking to remedy perceived discrimination in his agency, in this appeal he has failed to meet his burden to make a nonfrivolous allegation that he engaged in activity protected by sections 2302(b)(8), 2302(b)(9)(A), or 2302(b)(9)(B). Therefore, we conclude that the administrative judge properly dismissed this IRA appeal for lack of jurisdiction, and that this complaint more properly belongs before the EEOC under title VII itself. ORDER ¶35 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 RIGHTS12 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 11 Although this provision was requested by OSC following the Board’s decision in Graves, 123 M.S.P.R. 434, nothing in the 2018 NDAA, the standalone Office of Special Counsel Reauthorization Act of 2017 in which the provision first appeared, S. 582, 115th Cong. (2017), or the latter’s bill report indicated that it was intended to clarify an existing law. Cf. Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26 (2013). 12 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. 19 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: 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 20 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 21 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 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.13 The court of appeals must receive your petition for 13 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 22 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. 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. 23 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/EDWARDS_JOHN_S_DC_1221_16_0227_W_1_OPINION_AND_ORDER_1922221.pdf
05-02-2022	2022 MSPB 8	Dwyne Chambers	https://www.mspb.gov/decisions/precedential/CHAMBERS_DWYNE_PH_1221_17_0161_W_1_OPINION_AND_ORDER_1920913.pdf	Department of Homeland Security	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 8 Docket No. PH-1221-17-0161-W-1 Dwyne Chambers, Appellant, v. Department of Homeland Security, Agency. May 2, 2022 Dwyne Chambers, Jarrettsville, Maryland, pro se. Lorna J. Jerome, Esquire, Washington, D.C., for the agency. Sally Gnat, Esquire and Christopher G. Leo, Esquire, Washington, D.C., for amicus curiae, Office of Special Counsel. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his whistleblower individual right of action (IRA) appeal for lack of jurisdiction. For the reasons set forth in this Opinion and Order, we DENY the appellant’s petition for review, VACATE the initial decision, and DISMISS the appeal for lack of jurisdiction. BACKGROUND ¶2 The appellant is employed as a Pipefitter at the agency’s U.S. Coast Guard Yard in Baltimore, Maryland. Initial Appeal File (IAF), Tab 9 at 81-85. On or 2 about March 30, 2016, he filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) alleging that the agency took various actions against him in reprisal for his protected disclosures and protected activity. IAF, Tab 1 at 5-57. On October 14, 2016, OSC sent him a preliminary determination letter with its proposed factual and legal determinations regarding his complaint and notified him that he had 13 days to respond. Id. at 3. On November 16, 2016, OSC sent the appellant a closure letter notifying him that it had not received any comments from him, it was terminating its investigation, and he could file an appeal with the Board. Id. at 3-4. ¶3 On January 14, 2017, the appellant filed this IRA appeal. IAF, Tab 1. The administrative judge issued a jurisdictional order informing the appellant of his burdens of proving that he had exhausted his administrative remedies before OSC and of raising nonfrivolous allegations that he made a protected disclosure or engaged in protected activity that was a contributing factor in the agency’s decision to take a personnel action against him. IAF, Tab 7. After the appellant failed to respond to the order, the administrative judge issued an initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID). The administrative judge found that the appellant failed to exhaust his administrative remedies before OSC because he failed to respond to OSC’s preliminary determination letter. ID at 6-7. Alternatively, the administrative judge found that the appellant’s claims were conclusory and vague and, thus, failed to amount to nonfrivolous allegations that he made a protected disclosure or engaged in protected activity that was connected to any action taken against him. ID at 7. ¶4 The appellant has filed a petition for review to which the agency has not responded. Petition for Review (PFR) File, Tab 1. OSC has filed an amicus 3 curiae brief in which it argues that the administrative judge erred in finding that the appellant failed to exhaust his administrative remedies.1 PFR File, Tab 3. ANALYSIS The administrative judge erred in finding that the appellant failed to exhaust his administrative remedies as a result of his failure to respond to OSC’s preliminary determination letter.2 ¶5 In a whistleblower IRA appeal, an appellant “shall seek corrective action from the Special Counsel before seeking corrective action from the Board.” 5 U.S.C. § 1214(a)(3). This requirement of administrative exhaustion entails both substantive and procedural requirements. Procedurally, it requires that an appellant show that OSC has notified him that it terminated its investigation and no more than 60 days have elapsed since such notification was provided to him.3 5 U.S.C. § 1214(a)(3)(A); see 5 C.F.R. § 1209.5(a). ¶6 The administrative judge found that the appellant failed to exhaust his administrative remedies before OSC because OSC terminated its investigation after the appellant failed to respond to its preliminary determination letter. ID at 6-7. The administrative judge reasoned that, by failing to respond to OSC’s preliminary determination letter, the appellant failed to comply with OSC’s procedures and, thus, failed to fully exhaust his administrative remedies. ID at 7. 1 We grant OSC’s unopposed motion for leave to file an amicus curiae brief. PFR File, Tab 3 at 2-3 & n.1; see 5 C.F.R. § 1201.34(e). OSC has also filed a request for leave to file an additional pleading. PFR File, Tab 4. Because Member Leavitt served as Principal Deputy Special Counsel at the time of this request, he has recused himself from considering it. Therefore, a sufficient quorum does not exist to rule on the second motion. 2 Although the appellant’s one-line petition for review does not meet the Board’s criteria for review, see 5 C.F.R. § 1201.115, the issue of the Board’s jurisdiction is always before the Board and may be raised sua sponte by the Board at any time, see Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010). 3 Alternatively, an appellant also can show that 120 days have elapsed since he sought corrective action from OSC, and he has not been notified by OSC that it would seek corrective action on his behalf. 5 U.S.C. § 1214(a)(3)(B). 4 The administrative judge, however, cited no authority in support of such a finding. In its amicus brief, OSC argues that the appellant was not required to respond to its preliminary determination letter in order to have exhausted his administrative remedies. PFR File, Tab 3. We agree. ¶7 The statutory requirements for OSC’s processing of whistleblower complaints are set forth in 5 U.S.C. § 1214. In pertinent part, that section provides that, no later than 10 days before terminating its investigation, OSC must provide to the individual who made an allegation of a prohibited personnel practice a written status report containing its proposed findings of fact and legal conclusions.4 5 U.S.C. § 1214(a)(1)(D). It further provides that the individual who made the allegation of a prohibited personnel practice “may submit written comments about the report” to OSC. Id. (emphasis added). After reviewing any comments submitted by the individual, if OSC nonetheless decides to terminate its investigation, it must provide that individual with written notice of the termination of its investigation, containing a summary of the relevant facts, its response to any comments submitted by the individual, and the reasons for terminating its investigation.5 5 U.S.C. § 1214(a)(2)(A). ¶8 As OSC points out, the language in 5 U.S.C. § 1214(a)(1)(D) is permissive regarding an individual’s response to OSC’s preliminary determination letter and nothing in the statute requires an individual to respond to OSC’s preliminary determination letter to retain his IRA appeal rights. Thus, we find that the appellant was not required to respond to OSC’s preliminary determination letter to prove that he exhausted his administrative remedies and the administrative judge erred in misconstruing the appellant’s opportunity to respond under 5 U.S.C. § 1214(a)(1)(D) as a requirement to respond. Instead, as explained 4 OSC refers to such a report as a preliminary determination letter. PFR File, Tab 3 at 6. 5 OSC refers to this as a closure letter. PFR File, Tab 3 at 7. 5 below, the relevant inquiry concerning exhaustion in this matter is whether the appellant provided OSC with sufficient detail concerning his claims. The appellant’s request for corrective action concerning events that occurred prior to August 15, 2014, is barred by a settlement agreement. ¶9 The appellant seeks corrective action concerning events that occurred between 2008 and 2012. IAF, Tab 1 at 4, 11-12, 14-15. The agency moved to dismiss the appeal, in part arguing that it was barred by a prior settlement agreement resolving the appellant’s equal employment opportunity (EEO) complaint in which he alleged that his nonselection in 2012 was due to discrimination. IAF, Tab 6 at 5, 76-79. The appellant did not respond to the agency’s motion and has not contested the validity of the settlement agreement, which he signed on August 15, 2014. Id. at 79. In the agreement, the agency agreed to place the appellant in a Work Leader position for 30 days, provide him with priority consideration for the next Work Leader position, provide him certain training, and pay his attorney’s fees. Id. at 76-77. In exchange, the appellant agreed to withdraw his EEO complaint and “to waive his rights to pursue any complaint, related claim, or charge arising from facts extant [sic] through the date of this Agreement.” Id. at 77. He further agreed that the Settlement Agreement and General Release included “all Claims that he has the right to pursue before the [Equal Employment Opportunity Commission], the Merit Systems Protection Board, the Office of Special Counsel, whether past, present, or future, regarding facts arising on or prior to the date of his signing this Agreement, which he may have against the Agency.” Id. at 78. Thus, we find that the settlement agreement precludes the appellant from pursuing any claims before the Board against the agency regarding facts arising on or before August 15, 2014. See, e.g., Vogel v. Department of the Navy, 106 M.S.P.R. 451, ¶¶ 2, 5 (2007) (construing the language in a similar settlement agreement to preclude a subsequent appeal based on matters that occurred prior to the settlement agreement). In particular, to the extent the appellant is alleging that he was not selected for Pipefitter Work 6 Leader positions in 2008 and 2012 in reprisal for his whistleblowing, IAF, Tab 1 at 11-12, such claims are barred by the settlement agreement. The appellant exhausted his administrative remedies regarding his claim that he received a written admonishment on February 18, 2016, in reprisal for making protected disclosures on May 17 and August 1, 2007, and for filing grievances in June 2007, and May 2011. ¶10 As described above, 5 U.S.C. § 1214(a)(3) requires that an appellant in an IRA appeal exhaust his administrative remedies by seeking corrective action from OSC before seeking corrective action from the Board. The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Mount v. Department of Homeland Security, 937 F.3d 37, 47-48 (1st Cir. 2019); Delgado v. Merit Systems Protection Board, 880 F.3d 913, 916 (7th Cir. 2018); Acha v. Department of Agriculture, 841 F.3d 878, 883-84 (10th Cir. 2016); McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1374 (Fed. Cir. 2016); Briley v. National Archives & Records Administration, 236 F.3d 1373, 1377-78 (Fed. Cir. 2001); Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992); Knollenberg v. Merit Systems Protection Board, 953 F.2d 623, 626 (Fed. Cir. 1992); Tuten v. Department of Justice, 104 M.S.P.R. 271, ¶ 5 (2006) aff’d, No. 2007-3145, 2007 WL 2914787 (Fed. Cir. Oct. 5, 2007).6 The purpose of requiring an appellant to exhaust his remedies with OSC before filing an IRA appeal with the Board is to give OSC “the opportunity to take corrective action 6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on this issue. However, as a result of changes initiated by the Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat 1465), extended for three years (All Circuit Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894), and eventually made permanent (All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510), we must consider this issue with the view that the appellant ultimately may seek review of this decision before any appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B). 7 before involving the Board in the case.” Ward, 981 F.2d at 526. Thus, “the Board’s jurisdiction over an IRA appeal . . . is . . . limited to those issues that have been previously raised with OSC.” Miller v. Merit Systems Protection Board, 626 F. App’x 261, 267 (Fed. Cir. 2015). An appellant may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Briley, 236 F.3d at 1378. ¶11 An appellant may demonstrate exhaustion through his initial OSC complaint or correspondence with OSC. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). In the alternative, exhaustion may be proved through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in the MSPB appeal. Delgado, 880 F.3d at 927.7 The appellant must prove exhaustion with OSC by preponderant evidence, not just present nonfrivolous allegations of exhaustion. 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.57(c)(1). ¶12 On appeal to the Board, the appellant submitted his OSC complaint and other correspondence with OSC, but did not explain his claims further. IAF, Tab 1. OSC characterized the appellant’s complaint as alleging that he received a written admonishment on February 18, 2016, and was not selected for several positions in reprisal for his May 17, 2007 email disclosing violations of agency regulations COMDTINST 5375.1 and 5375.1B, for filing a statement with the U.S. Coast Guard police,8 and for filing union grievances. Id. at 4. The appellant 7 Notably, MSPB’s Appeal Form, OMB No. 3124-0009, specifically requires a certification attesting to the truthfulness of the statements made in the appeal and is entitled to evidentiary weight. See Geier v. Department of the Treasury, 90 M.S.P.R. 186, ¶ 8 (2001). Should an appellant attest in the initial appeal that they raised with OSC the substance of the facts in the appeal, this should be sufficient to prove they have met the requirements of 5 U.S.C. § 1214(a)(3) if it is unrebutted. See Fouchia v. Office of Personnel Management, 108 M.S.P.R. 271, ¶ 7 (2008). 8 In his OSC complaint, the appellant indicated that he filed the U.S. Coast Guard police statement on August 1, 2007. IAF, Tab 1 at 10, 25. 8 has not disputed OSC’s characterization of his claims. Before OSC, the appellant referenced and provided documentation concerning his July 2007 grievance, which concerned his claim that a Pipefitter Foreman was subjecting him to a hostile work environment and had made a sarcastic comment about doing union business on overtime, tried to provoke him into a confrontation, and requested his time and attendance report in reprisal for his alleged May 17, 2007 disclosure. Id. at 10, 26-37. He also referenced a grievance that he filed concerning his performance evaluation rating for the period from April 1, 2010, to March 31, 2011, and asserted that he believed his rating constituted reprisal because the evaluating supervisor previously had received disciplinary action as a result of his May 17, 2007 email.9 Id. at 11-12. ¶13 Thus, we find that the appellant exhausted before OSC his claims that he made the following protected disclosures: (1) on May 17, 2007, he disclosed that his coworkers had violated agency regulations COMDTINST 5375.1 and 5375.1B by sending sexually explicit material via the U.S. Coast Guard’s data network and email accounts using U.S. Coast Guard computer equipment; and (2) on August 1, 2007, he filed a statement with U.S. Coast Guard Police asserting that someone had cut his rear passenger tire. Id. at 4, 10, 22, 25. The appellant also exhausted his allegation that he engaged in protected activity when he filed union grievances in July 2007, and May 2011. Id. at 10, 26-37. Finally, the appellant exhausted his claim that, on February 18, 2016, he received a written admonishment in reprisal for such disclosures and protected activity.10 Id. at 14-15, 54-55. 9 Although the appellant did not indicate the date that he filed this grievance, according to the agency’s evidence, it appears to have been filed in or around May 2011. IAF, Tab 9 at 36-38. 10 Before OSC the appellant also raised claims that he was not selected for three Pipefitter Work Leader positions. IAF, Tab 1 at 11. He provided specific details concerning his nonselection in 2008. Id. The agency’s evidence indicates that it also 9 The appellant failed to raise nonfrivolous allegations of IRA jurisdiction concerning the February 18, 2016 written admonishment. ¶14 If an appellant has exhausted his administrative remedies before OSC, he can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging that: (1) he made a protected 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 as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). To satisfy the contributing factor criterion at the jurisdictional stage, an appellant need only raise a nonfrivolous allegation11 that the fact of, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Id., ¶ 13. ¶15 One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure or activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or activity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Id.; see 5 U.S.C. § 1221(e)(1). If an appellant fails to satisfy the knowledge/timing test, the Board must consider other evidence, such as that pertaining to the strength or weakness of the agency’s did not select the appellant for Pipefitter Work Leader positions in 2012 and 2014. IAF, Tab 6 at 14, 48. As discussed above, the appellant’s nonselections in 2008 and 2012 are barred by the settlement agreement. Given the appellant’s failure to provide any detail about a reprisal claim concerning the 2014 nonselection, we find that he failed to nonfrivolously allege a prima facie case of whistleblower reprisal concerning this claim. 11 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 10 reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding official, and whether those individuals had a desire or motive to retaliate against the appellant. Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013). ¶16 Assuming without deciding that the appellant made protected disclosures and engaged in protected activity and that the February 18, 2016 written admonishment amounts to a personnel action as defined in 5 U.S.C. § 2302(a)(2)(A), we find that the appellant failed to nonfrivolously allege that any of his alleged protected whistleblowing was a contributing factor in the agency’s decision to issue him the written admonishment. The appellant’s prior alleged disclosures and protected activity occurred between 4 to 8 years before he received the February 18, 2016 written admonishment. Such a gap in time is too remote to satisfy the knowledge/timing test. See Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a disclosure made 2 ½ to 3 years before the relevant personnel actions was too remote for a reasonable person to conclude the disclosure was a contributing factor to the actions). ¶17 Regarding the strength of the agency’s evidence, the agency contends that the appellant was issued the written admonishment based on unexcused tardiness and his failure to complete an assigned task in a timely manner. IAF, Tab 1 at 53, Tab 8 at 8. The appellant contends that he did very well on the assigned task and completed it well within the time frame. IAF, Tab 1 at 14-15, 17. He also appears to argue that his tardiness was due to his medical condition, of which management was aware. Id. at 15, 17. It is difficult to meaningfully assess the strength of the agency’s evidence based on the current record at the jurisdictional stage. Thus, consideration of this factor does not materially assist the Board in deciding whether the appellant has met his burden of proof. 11 ¶18 Regarding motive to retaliate, the record does not reflect that the appellant’s disclosures or grievances were personally directed at the official who issued the written admonishment.12 IAF, Tab 1 at 11-12, 22, 26-30, 53-54. The appellant asserts that he believes that the official who issued the written admonishment was disciplined as a result of his May 17, 2007 email. Id. at 15. However, there is no indication in the record that this official was named in or included on the appellant’s May 17, 2007 email, or that he was among those disciplined by the agency as a result of its investigation into the matter disclosed in the email. IAF, Tab 1 at 22, Tab 9 at 46-66. Such conclusory and unsubstantiated speculation is insufficient to amount to a nonfrivolous allegation of a retaliatory motive. See, e.g., Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 9 n.5 (2015) (finding that the appellant’s assertion that his first- and second-line supervisors were likely among the many people who knew of his disclosure amounted to conjecture unsupported by any record evidence and, thus, did not amount to a nonfrivolous allegation); Jones v. Department of the Treasury, 99 M.S.P.R. 479, ¶ 8 (2005) (finding that an appellant’s insinuation that an individual might have known of his prior whistleblowing activity amounted to unsubstantiated speculation, not a nonfrivolous allegation of jurisdiction); 5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation generally as an allegation that is more than conclusory). Therefore, we find that the appellant failed to raise nonfrivolous allegations that he made a protected disclosure or engaged in protected activity that was a contributing factor in the 12 The appellant also does not allege that any other individual involved in the decision to issue him the written admonishment was aware of his alleged prior protected disclosures or activity or had a motive to retaliate against him. 12 agency’s decision to issue him the written admonishment. Accordingly, we dismiss the appeal for lack of jurisdiction.13 ORDER ¶19 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 RIGHTS14 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 13 In light of our finding that the appellant failed to raise nonfrivolous allegations of Board jurisdiction, we need not address the agency’s argument in its motion to dismiss that the appeal was untimely filed. IAF, Tab 6 at 4; see Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005), aff’d, 191 F. App’x 954 (Fed. Cir. 2006). 14 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. 13 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 14 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 15 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 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.15 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: 15 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. 16 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/CHAMBERS_DWYNE_PH_1221_17_0161_W_1_OPINION_AND_ORDER_1920913.pdf
04-26-2022	2022 MSPB 7	Arnold Wilson	https://www.mspb.gov/decisions/precedential/WILSON_ARNOLD_AT_0714_19_0113_I_1_OPINION_AND_ORDER_1919286.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 7 Docket No. AT-0714-19-0113-I-1 Arnold Wilson, Appellant, v. Department of Veterans Affairs, Agency. April 26, 2022 Adam Jerome Conti, Atlanta, Georgia, for the appellant. Kathleen Pohlid and Lois F. Prince, Nashville, Tennessee, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency petitions for review and the appellant cross petitions for review of the initial decision, which reversed the appellant’s reduction in grade taken under the authority of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714). For the reasons set forth below, we DENY the agency’s petition and GRANT the appellant’s cross petition for review. We AFFIRM the portion of the initial decision that found the appeal timely and determined the agency failed to prove its charge as expressly MODIFIED by this Opinion and Order to clarify the 2 administrative judge’s analysis of the timeliness of the appeal and reverse the appellant’s reduction in grade based on the reasoning in Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1372-73, 1380-82 (Fed. Cir. 2020). We REVERSE the portion of the initial decision that found the appellant did not prove his affirmative defense of whistleblower reprisal and we GRANT corrective action on that claim. BACKGROUND ¶2 The appellant occupied a GS-11 Supervisory General Supply Specialist position, more informally known as an Assistant Chief position, in the Tennessee Valley Healthcare System (TVHS) Sterile Processing Service (SPS). Initial Appeal File (IAF), Tab 6 at 29, 34, 127. The SPS is responsible for “performing sterilization and high level disinfection” of all critical and semi-critical reusable medical equipment (RME) within the TVHS. Id. at 62-63. ¶3 As relevant here, the agency’s National Program Office for Sterile Processing (NPOSP) performs inspections of SPS and related operations throughout the country, identifying areas of deficiency and providing specific recommendations as needed. IAF, Tab 28 at 18; Hearing Transcript (HT), Volume (Vol.) I at 9-10, 12 (testimony of an NPOSP Health Systems Specialist). It conducted site visits of the TVHS SPS on March 21-23, 2017, April 18-27, 2017, and July 24-28, 2017. IAF, Tab 6 at 61-73, Tab 28 at 17-54. At the conclusion of its July 24-28, 2017 site visit, the NPOSP found numerous errors and deficiencies in the cleaning, packaging, and storage of RME at the SPS. IAF, Tab 6 at 63-65, 67-72. The NPOSP also concluded the SPS lacked documentation reflecting that staff members had received necessary training and that their 3 supervisors had reviewed their ability to perform discrete tasks.1 Id. at 66-67. It recommended that “SPS leadership . . . be immediately removed as evidence indicates there is a steady decline in the education, implementation, and oversight of regulatory standards and practices.” Id. at 72. ¶4 By letter dated September 19, 2017, the agency proposed the appellant’s removal pursuant to the authority of 38 U.S.C. § 714 based on a charge of neglect of duty. IAF, Tab 6 at 48. In support of its charge, the agency cited deficiencies identified during the July 2017 site review as demonstrating that the appellant failed to exercise appropriate oversight of the SPS. Id. The underlying tasks at issue were performed by individuals managed by the appellant. HT, Vol. II at 179 (testimony of the appellant), Vol. III at 93 (testimony of the appellant’s former first-level supervisor); IAF, Tab 6 at 35, 48-49. The specified problems included failing to follow up on quality assurance deficiencies, nonconforming RME processed by the SPS, and incomplete SPS training and competency documentation. IAF, Tab 6 at 48-49. On November 27, 2017, the agency’s deciding official found the charge proven but reduced the penalty to a reduction in grade from the appellant’s GS-11 Assistant Chief position in the SPS to a GS-9 Inventory Management Specialist position in the Logistics Service. Id. at 34-36. In its demotion decision, the agency advised the appellant that he could, among other options, appeal directly to the Board within 10 business days or seek equal employment opportunity (EEO) counseling with the agency within 45 days, followed by a formal EEO complaint. Id. at 35-36. The agency effected the action on December 10, 2017. Id. at 29. ¶5 Within 4 days of receiving the agency’s decision notice, the appellant amended a pending formal EEO complaint to include his demotion. IAF, Tab 1 1 The agency refers to the latter as a competency or competency assessment. HT, Vol. I at 49-50, 52-54 (testimony of a NPOSP Health Systems Specialist); IAF, Tab 31 at 49-50. 4 at 4, Tab 6 at 13, 15-21, 36. After the agency failed to issue a final decision on that complaint, he filed the instant appeal of the action with the Board on November 14, 2018. IAF, Tab 1. ¶6 Following a hearing, the administrative judge issued an initial decision reversing the agency’s action. IAF, Tab 57, Initial Decision (ID) at 2, 27. She first determined that the appeal was timely filed. ID at 2 n.2. In making this finding, she reasoned that, because the agency had provided the appellant with mixed-case appeal rights and he had filed a formal complaint of discrimination challenging his demotion, after the agency apparently failed to issue a final decision within 120 days, the appellant timely filed his Board appeal. ID at 1 n.1, 2 n.2; IAF, Tab 1 at 4, 6, Tab 6 at 18-19, 36. ¶7 The administrative judge concluded that the agency failed to prove its charge by substantial evidence, the standard of Board review for a disciplinary action taken pursuant to the VA Accountability Act. ID at 10-20; 38 U.S.C. § 714(d)(2)-(3). She reasoned that the agency did not show, among other things, that the appellant directed, knew, or should have known of his subordinates’ misconduct. ID at 10, 13-16, 20. Because she concluded that the agency failed to prove its charge, the administrative judge determined it was unnecessary to reach the appellant’s claims of harmful error and violation of law. ID at 20. She further found that the appellant failed to prove his affirmative defense of race discrimination, and that the agency proved it would have taken the same action absent the appellant’s whistleblowing disclosures. ID at 22-27. ¶8 The agency petitions for review of the initial decision. Petition for Review (PFR) File, Tabs 3-4. The appellant cross petitions for review of the initial decision and responds to the agency’s petition for review. PFR File, Tab 6. The agency responds to the cross petition for review and replies to the appellant’s response to its petition for review. PFR File, Tabs 8-9. ¶9 Because the administrative judge found the appeal timely filed without affording the parties an opportunity to address the timeliness issue, ID at 2 n.2; 5 IAF, Tab 47 at 1, the Clerk of the Board informed the parties that the appeal appeared to be filed after the 10-business-day time limit at 38 U.S.C. § 714(c)(4)(B), and ordered the appellant to submit evidence and argument as to why the appeal should not be dismissed as untimely filed, PFR File, Tab 10. The appellant has responded that the appeal was timely filed as a mixed-case appeal under 5 U.S.C. § 7702 and its implementing regulations, a process that existed before, and was not expressly altered by, the enactment of the VA Accountability Act. PFR File, Tab 11 at 4, 6-8. He contends, alternatively, that the deadline should be waived or tolled because the agency’s decision notice informed him that he could file an EEO complaint followed by a Board appeal.2 Id. at 9. The agency has replied to the appellant’s response, agreeing that the appeal was timely filed as a mixed case. PFR File, Tab 12 at 4. ANALYSIS We clarify the basis for the administrative judge’s conclusion that the appeal was timely filed. ¶10 In finding the appeal timely filed, the administrative judge reasoned that the agency essentially conceded that the appellant was entitled to file using mixed-case procedures, and that he timely did so. ID at 2 n.2. We agree with the administrative judge that the appeal is timely filed. However, because the parties cannot stipulate to a legal conclusion such as this one, we modify the initial decision to clarify the legal basis for finding the appeal was timely filed, as discussed below. King v. Department of Veterans Affairs, 105 M.S.P.R. 21, ¶ 16 n.2 (2007). ¶11 The agency took the instant action under the VA Accountability Act, which was enacted on June 23, 2017, and which authorizes the agency to “remove, 2 We need not address this alternative argument because, as set forth below, we find that the appellant timely filed his appeal under 5 U.S.C. § 7702(e)(2). 6 demote, or suspend” “covered individual[s].”3 IAF, Tab 6 at 29, 34, 48; 38 U.S.C. § 714(a)(1). Pursuant to that Act, an employee may appeal to the Board a removal, demotion, or suspension of greater than 14 days, but such appeal “may only be made . . . not later than 10 business days after the date of” the action. 38 U.S.C. § 714(c)(4). Thus, pursuant to the plain language of the statute, because the agency effected the appellant’s demotion on December 10, 2017, an appeal under section 714(c)(4) was due on or about December 22, 2017. IAF, Tab 6 at 29, 34. The appellant’s November 14, 2018 appeal appears to be nearly 11 months untimely filed under the time limit set forth at section 714(c)(4)(B). ¶12 Section 714, however, is silent as to the procedures and filing times for a Board appeal in which, as here, an appellant seeks review of a matter within the Board’s appellate jurisdiction and also raises a claim of discrimination or retaliation in violation of EEO statutes, known as a mixed case. IAF, Tab 1 at 6, Tab 6 at 29, 129; see Miranne v. Department of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014) (explaining that a mixed case arises when an appellant has been subject to an action that is appealable to the Board, and he alleges that the action was effected, in whole or in part, because of discrimination). Congress extended title VII statutory protections to Federal employees with the Equal Employment Opportunity Act of 1972 (EEO Act), Pub. L. No. 92-261, § 717, 86 Stat. 103, 111-13 (codified as amended at 42 U.S.C. § 2000e-16). The intent of the EEO Act was to eliminate discrimination from Federal employment. H.R. Rep. No. 92-238, at 2141 (1971), as reprinted in 1972 U.S.C.C.A.N. 2137, 2158-60. 3 A “covered individual” includes all individuals occupying positions at the agency, except for individuals who are in the Senior Executive Service, appointed under certain title 38 appointment authorities, still under a probationary or trial period, or political appointees. 38 U.S.C. § 714(h)(1). The appellant occupies a position at the agency that does not fall under any of the exceptions to the above definition. IAF, Tab 6 at 29, 127, 129. 7 ¶13 The Board’s processing of mixed cases subsequently was addressed in the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, title II, § 205, 92 Stat. 1111, 1140-43 (codified as amended at 5 U.S.C. § 7702) (1978). An appellant has two options when filing a mixed case: (1) he may initially file a mixed-case EEO complaint with his employing agency followed by an appeal to the Board; or (2) he may file a mixed-case appeal with the Board and raise his discrimination claims in connection with that appeal. Miranne, 121 M.S.P.R. 235, ¶ 8. An employee may file either a mixed-case complaint or a mixed-case appeal, but not both, and whichever is filed first is deemed an election to proceed in that forum. Id. The CSRA provides, at 5 U.S.C. § 7702, as relevant here, that an employee may file an EEO complaint in a mixed case, which an agency “shall resolve . . . within 120 days.” 5 U.S.C. § 7702(a)(2). If the agency fails to issue a final decision within 120 days, the employee’s right to file a Board appeal vests and he may appeal to the Board “at any time” thereafter. 5 U.S.C. § 7702(a)(2), (e)(2); Miranne, 121 M.S.P.R. 235, ¶ 9; see H.R. Conf. Rep. No. 95-1717, at 141 (1978), as reprinted in 1978 U.S.C.C.A.N. 2860, 2874 (stating that a “final agency action must occur within 120 days after” an employee files an EEO complaint and that, “[a]fter these 120 days, the employee may appeal to the Board” if the employing agency has not yet issued a final decision). The Board’s regulations implementing the statute also reflect this rule, 5 C.F.R. §§ 1201.151(a)(1), .154(b)(2), as do the regulations of the Equal Employment Opportunity Commission (EEOC), 29 C.F.R. § 1614.302(d)(1)(i). ¶14 Under the CSRA, in mixed cases the Board “shall . . . decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures under section 7701 of [title 5].” 5 U.S.C. § 7702(a)(1). A Senate Report by the Governmental Affairs Committee stated that “[a]ny provision denying the Board jurisdiction to decide certain adverse action appeals because discrimination is raised as an issue would make it impossible for the Government to have a single unified personnel policy which took into account the 8 requirements of all the various laws and goals governing Federal personnel management.” S. Rep. No. 95-969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N. 2723, 2775. Thus, under the CSRA, when an employee elects to file an EEO complaint first, he retains his right to later Board review of the agency’s adverse action and the discrimination claim. ¶15 We turn now to the impact of the newly enacted 38 U.S.C. § 714 on the processing of mixed cases under the CSRA. This case is not the first time that a tribunal has confronted how a newly enacted statute affects related laws that it does not reference. For example, in Morton v. Mancari, 417 U.S. 535, 537-39, 545 (1974), the U.S. Supreme Court addressed the alleged inconsistency between a prior act providing an employment preference for qualifying Native Americans in the Bureau of Indian Affairs with the later enacted EEO Act requiring that Federal employment decisions be free from discrimination. The Court declined to find that the EEO Act repealed the preexisting statute by implication. Morton, 417 U.S. at 549-50. Rather, in the absence of an affirmative showing of an intent by Congress to repeal the prior statute, it read the statutes as permitting the employment preference for Native Americans to continue along with the “general rule prohibiting employment discrimination on the basis of race.” Id. at 550. In so finding, the Court observed that repeals by implication are disfavored. Id. at 549-51. “When there are two acts upon the same subject, the rule is to give effect to both if possible.” Id. at 551 (quoting United States v. Borden Company, 308 U.S. 188, 198 (1939)). An intention by Congress to repeal a statute “must be clear and manifest.” Id. The Court concluded that, “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Id. at 551; see Isabella v. Department of State, 109 M.S.P.R. 453, ¶ 12 (2008) (same); see also Von Zemenszky v. Department of Veterans Affairs, 80 M.S.P.R. 663, 668-69, 673-74 (1999) (holding that, if Congress had intended to exempt Veterans Health Administration (VHA) health-care professionals appointed under 9 38 U.S.C. § 7401(1) from the preexisting reduction in force rules of the Veterans’ Preference Act of 1944 when it created the VHA, it would have done so in explicit terms). ¶16 The Court recognized factors that might lead to a repeal by implication, although it found them inapplicable in Morton. 417 U.S. at 550-51. These included when the statutes at issue are “irreconcilable,” or when the older statute is broader in scope than the newer, more specific statute. Id.; see Todd v. Merit Systems Protection Board, 55 F.3d 1574, 1577-78 (Fed. Cir. 1995) (stating that repeal by implication is appropriate only when statutes are irreconcilable or “the enactment so comprehensively covers the subject matter of the earlier statute that it must have been intended as a substitute;” a statute addressing a “narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum”); Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 6 (2006) (holding that specific statutory language aimed at a particular situation ordinarily controls over general statutory language). We find that neither situation is presented here. ¶17 While 38 U.S.C. § 714(c)(4)(B) includes a 10-business-day time limit for filing a Board appeal that is specific to covered employees of the agency, it is nevertheless silent regarding the procedures and time limits applicable when such employees file mixed-case complaints of discrimination followed by appeals to the Board. Those procedures and time limits are addressed in 5 U.S.C. § 7702. Thus, 38 U.S.C. § 714 does not reveal a clear and manifest intent to repeal the time limits and procedures of 5 U.S.C. § 7702. Moreover, 38 U.S.C. § 714 is not the more specific statute when it comes to the time limits and procedures for filing appeals that include discrimination claims; rather, the relevant provisions of 5 U.S.C. § 7702 are more specific. The above canon of statutory construction does not, therefore, indicate that the section 714 deadline controls in this case. See Morton, 417 U.S. at 550-51 (declining to find that a specific statute was implicitly repealed by one of more general application). 10 ¶18 Our conclusion is supported by a recent order issued by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Gates v. Department of Veterans Affairs, No. 2020-2187, slip op. (Fed. Cir. Feb. 2, 2021), addressing a similar issue. In Gates, the court confronted the issue of whether the VA Accountability Act expanded its jurisdiction to include review of Board decisions in mixed-case appeals arising under 38 U.S.C. § 714. Gates, No. 2020-2187, slip op. at 3-4 (interpreting 38 U.S.C. § 714(d)(5)(A)). Such cases previously fell within the province of the Federal district courts pursuant to 5 U.S.C. § 7703(b)(2). Gates, slip op. at 3. The court concluded that the VA Accountability Act did not give it authority over mixed cases. Id. at 4. The court reasoned, as relevant here, that if Congress intended such a significant change to the avenues of judicial review established by the CSRA, as codified at 5 U.S.C. § 7703, “it presumably would have made such intention clear from the face of the text” of the VA Accountability Act. Gates, slip op. at 4. We find the court’s reasoning equally applicable here.4 ¶19 We also find the statutes are reconcilable and capable of coexistence. If an appealable action is taken pursuant to 38 U.S.C. § 714 against a “covered individual” who has not filed a formal complaint of discrimination with the agency, the 10-business-day time limit set forth at 38 U.S.C. § 714(c)(4)(B) would apply.5 If, however, such an individual has first filed a formal discrimination complaint with the agency from such an action, and the agency has not issued a decision within 120 days, then the time limit set forth at 5 U.S.C. 4 The Board may rely on unpublished decisions of the Federal Circuit if it finds the court’s reasoning persuasive, as we do here. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011). 5 We do not address in this case which time limit would apply if a “covered individual” directly filed a Board appeal from an action taken pursuant to 38 U.S.C. § 714 and alleged before the Board that the action was based on discrimination. Compare 38 U.S.C. § 714(c)(4)(B) (setting forth a 10-business-day time limit), with 5 C.F.R. § 1201.154(a) (setting forth a 30-day time limit). 11 § 7702(e)(2) applies to any subsequent Board appeal. Thus, 38 U.S.C. § 714(c)(4)(B) and 5 U.S.C. § 7702(e)(2) are capable of coexistence. ¶20 Further, we decline to read 38 U.S.C. § 714 to stymie an employee’s right to a hearing before the Board. Doing so would be inconsistent with the intent of the EEO Act and the CSRA to eliminate discrimination in Federal employment and ensure the Board’s jurisdiction over mixed cases. The Board has held that, regardless of whether an employee elects to first file a mixed-case complaint with the agency or proceed directly to the Board, the employee’s only right to an evidentiary hearing in such cases is before the Board, not the EEOC. Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶¶ 11, 18 (2016). Pursuant to 5 U.S.C. §§ 7701(a)(1) and 7702(a)(1), an appellant is entitled to a hearing in any appeal brought before the Board under any law, rule, or regulation, and to have the Board decide the merits of any claim of statutorily prohibited discrimination raised in such an appeal. Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161, ¶ 24 (2017); see S. Rep. No. 95-969, at 53, as reprinted in 1978 U.S.C.C.A.N. at 2775. Thus, the Board cannot decide a cognizable discrimination claim without first holding an appellant’s requested hearing. Hess v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 1, 4, 9-10 (2016). ¶21 There is no indication that Congress intended, through enacting the filing deadline set forth at 38 U.S.C. § 714(c)(4)(B), to effectively eliminate the right to an evidentiary hearing for agency employees who choose to first file a formal complaint of discrimination with the agency before coming to the Board. See Wassenaar v. Office of Personnel Management, 21 F.3d 1090, 1092 (Fed. Cir. 1994) (observing that “statutes must be construed in light of their purpose. A reading of them which would lead to absurd results is to be avoided when they can be given a reasonable application consistent with their words and legislative purpose” (citations omitted)). Rather, the VA Accountability Act reflects the continued importance of the right to a hearing before the Board. Section 714(c)(4)(A) of title 38 requires to Board to “refer” an appeal filed under 12 the VA Accountability Act “to an administrative judge pursuant to section 7701(b)(1) of title 5.” The assigned administrative judge must then “expedite any such appeal under section 7701(b)(1) of title 5.” 38 U.S.C. § 714(d)(1). Thus, the procedures of 5 U.S.C. § 7701(b)(1), as “expedited,” apply to the administrative judge’s adjudication of an appeal filed under 38 U.S.C. § 714. Section 7701(b)(1) cross references, as one such procedure, an appellant’s “right to a hearing for which a transcript will be kept.” 5 U.S.C. § 7701(a)(1), (b)(1); see Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984) (interpreting 5 U.S.C. § 7701(a)(1) as preventing the Board from issuing summary judgment). ¶22 Although the legislative history of the VA Accountability Act does not specifically address the issue of the right to file a formal complaint of discrimination with the agency followed by a mixed-case appeal to the Board, there is some support for finding that section 714(c)(4)(A) was not intended to eliminate preexisting employee rights in general. For example, the legislative history reveals that Senator Tester said of the bill that later resulted in the VA Accountability Act that it “does not trample on workers’ rights,” but “keeps all the existing due process protections under current law.” 163 Cong. Rec. S3261-01, S3268 (daily ed. June 6, 2017) (statement of Sen. Tester); see also 163 Cong. Rec. H4867-07, H4868 (daily ed. June 13, 2017) (statement of Rep. Buck that the legislation was needed “not because all the employees at the [agency] have problems,” but rather because “there are bad apples,” and that “[t]he bill also bolsters protection for whistleblowers”); 163 Cong. Rec. H4863-02, H4864 (daily ed. June 13, 2017) (statement of Rep. Roby that a prior law “didn’t go far enough to protect whistleblowers” and “most [agency] employees care a great deal about veterans and work very hard to provide the best service”). Such an intent to retain the existing protections for employees is consistent with the more limited stated purpose of the VA Accountability Act, which is to “improve the accountability of employees of the Department of 13 Veterans Affairs,” Pub. L. No. 115-41, 131 Stat. 862, not to change the established processes for filing mixed-case complaints and appeals. ¶23 The silence of the VA Accountability Act as to mixed-case complaints and appeals is in stark contrast to the language set forth therein pertaining to grievances. If an employee elects to grieve an action through a collective bargaining agreement, the “timeliness and procedures,” including the 10-day time limit, under subsection (c) nonetheless “shall apply.” 38 U.S.C. § 714(d)(10). There is, however, no comparable provision for employees who file a mixed-case complaint followed by a Board appeal, thereby suggesting that Congress did not intend to alter the time limits for mixed-case appeals set forth in 5 U.S.C. § 7702. See Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016) (under the maxim expressio unius est exclusio alterius (“the expression of one thing is the exclusion of the other”), it should not be assumed that other things that could have been listed in a statute were meant to be included; rather, the specific mention of certain things implies the exclusion of other things). ¶24 Our conclusion is further supported by the language of 5 U.S.C. § 7702. “Notwithstanding any other provision of law,” such as the VA Accountability Act, in the case of an employee who has been affected by an action that the employee may appeal to the Board and who alleges that a basis for the action was certain prohibited discrimination, the Board “shall . . . decide both the issue of discrimination and the appealable action.”6 5 U.S.C. § 7702(a)(1). 6 The relevant statutory language provides more specifically that, “[n]otwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection,” the Board shall decide the issue of discrimination and the appealable action. 5 U.S.C. § 7702(a)(1). Section 7702(a)(2), in turn, provides that an affected employee may first bring those same matters before an agency, as occurred in this case, which shall resolve the matter within 120 days. The decision of the agency shall be judicially reviewable unless the employee appeals the matter to the Board under 5 U.S.C. § 7702(a)(1), which the appellant did in this case. Thus, because subsection 7702(a)(2) contemplates a possible Board appeal of an agency decision under subsection 7702(a)(1), we find that 14 This “notwithstanding” language of 5 U.S.C. § 7702 signals an intent to override conflicting provisions and to supersede other laws. Taylor v. Department of the Army, 107 M.S.P.R. 638, ¶ 6 (2008); see also Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (noting that “notwithstanding” statutory language generally overrides “all other laws,” and that “[a] clearer statement is difficult to imagine” (citations omitted)); Coster v. United States, 485 F.2d 649, 651-52 (Ct. Cl. 1973) (recognizing that “language such as ‘notwithstanding the provisions of this or any other law’ covers the waterfront regarding the operational scope of the statute”). Under 5 U.S.C. § 7702(e)(2), if, after the 120th day following the filing of a mixed-case complaint with an agency, there is no final agency decision, the employee may appeal the matter to the Board under section 7702(a)(1). See 5 U.S.C. § 7702(a)(2); 5 C.F.R. § 1201.154(b)(2). ¶25 Accordingly, we find that the appellant timely filed his appeal pursuant to 5 U.S.C. § 7702(e)(2), which was not foreclosed by the time limit set forth at 38 U.S.C. § 714(c)(4)(B). Having found that the applicable laws provide for this appeal to the Board following the filing of a mixed-case complaint, even when the action is taken under 38 U.S.C. § 714, we further find that election of remedy principles also apply under these circumstances. As previously indicated, when an appellant has been subjected to an action that is appealable to the Board and alleges that the action was effected in whole or in part because of discrimination on the basis of race, color, religion, sex, national origin, disability, or age, he may initially file a direct Board appeal or an EEO complaint with his agency, but not both, and whichever is filed first is deemed to be an election to proceed in that forum. Dowell v. U.S. Postal Service, 113 M.S.P.R. 250, ¶ 6 (2010); see 5 U.S.C. § 7702(a); see also Lang v. Merit Systems Protection Board, 219 F.3d 1345, 1347-48 (Fed. Cir. 2000) (concluding that a removed Federal employee timely the “and except as provided in paragraph (2) of this subsection” language of 5 U.S.C. § 7702(a)(1) does not negate the “notwithstanding” clause of that subsection. 15 filed a mixed-case appeal with the Board after 120 days had passed without a final agency decision on his formal EEO complaint, even though he improperly received an EEOC hearing on the same complaint). The appellant timely filed his formal EEO complaint regarding his proposed removal on or about September 21, 2017, IAF, Tab 6 at 15-16, 18, timely amended the complaint to include his reduction in grade on November 30, 2017, id. at 18-19, and filed his Board appeal challenging that action on November 14, 2018, IAF, Tab 1 at 1. Thus, he elected to first proceed through the agency’s EEO process before filing a Board appeal, and the procedures and time limits of 5 U.S.C. § 7702(e)(2), 5 C.F.R. § 1201.154(b)(2), and 29 C.F.R. § 1614.302(d), which we have found have been satisfied by the appellant, apply in this case. The charge is not sustained and the action must be reversed.7 ¶26 The agency raises a number of arguments disputing the administrative judge’s finding that it did not prove its charge. PFR File, Tab 3 at 8-15. We do not reach these arguments here because we conclude that the agency improperly demoted the appellant under 38 U.S.C. § 714 for conduct predating the VA Accountability Act. See Sheffield v. Office of Personnel Management, 39 M.S.P.R. 507, 513-14 & n.6 (1989) (finding that because the Board was affirming an initial decision reversing an agency’s action on an alternative basis, it did not need to address the arguments in the agency’s petition for review); 5 C.F.R. § 1201.115(e) (providing that the Board reserves the authority to consider any issue in an appeal before it). ¶27 After the administrative judge issued the initial decision in the instant appeal, the Federal Circuit issued its opinion in Sayers, 954 F.3d 1370. In that case, the agency had removed Dr. Sayers from his Chief Pharmacist position 7 The agency has provided evidence of compliance with the interim relief order set forth in the initial decision. PFR File, Tab 3 at 18-25; ID at 28-29. The appellant has not disputed this evidence. 16 under 38 U.S.C. § 714 for conduct that took place before the law’s enactment. Sayers, 954 F.3d at 1372-73. Because Congress did not express any intent as to whether the VA Accountability Act applied to preenactment conduct, the court in Sayers examined whether the Act had an impermissible retroactive effect, i.e., whether it “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed,” (quoting Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994)), and concluded that it did. Sayers, 954 F.3d at 1380-82. ¶28 The court compared 38 U.S.C. § 714 to the existing authorities for taking adverse actions against tenured Federal employees under chapters 43 and 75 of title 5. Sayers, 954 F.3d at 1374-79. It determined that the VA Accountability Act introduced “an expedited, less rigorous alternative” to the two prior authorities, did not provide the type of procedural protections for employees as those required for chapter 43 performance-based actions, lowered the agency’s burden of proof, and disallowed penalty mitigation for what would otherwise be chapter 75 actions based on conduct or performance.8 Id. at 1374-76, 1378-79. The court held that the VA Accountability Act’s lowered substantial evidence standard of proof and elimination of the Board’s authority to mitigate the penalty detrimentally affected Dr. Sayers’s property right to continued employment and “substantive rights to relief from improper removal.” Id. at 1372 n.1, 1374, 1380-81. The court reasoned that Dr. Sayers “had a right to the substantive civil service protections from improper or unjustified removal in effect at the time of his alleged misconduct,” and that those protections remained terms of his employment until Congress altered those terms when it passed the VA 8 The VA Accountability Act provides that chapter 43 procedures do not apply to a removal, demotion, or suspension taken under 38 U.S.C. § 714. 38 U.S.C. § 714(c)(3); Sayers, 954 F.3d at 1379. 17 Accountability Act. Id. at 1381. Thus, the court vacated his removal. Id. at 1382. ¶29 Here, as in Sayers, the agency demoted the appellant under the VA Accountability Act for conduct by the appellant that predated its June 23, 2017 enactment. See Pub. L. No. 115-41, 131 Stat. 862. In removing the appellant for neglect of duty, the proposing and deciding officials relied on a “steady decline” in the SPS, ending with the July 2017 site visit by NPOSP. IAF, Tab 6 at 35, 48-49. The agency did not identify the period of this decline. Id. at 35, 48-49, 72. However, both below and on review it relied on testimony and evidence of deficiencies by the appellant’s subordinates beginning as early as December 2016. PFR File, Tab 3 at 9-11 (citing, among other evidence, IAF, Tab 6 at 63-72, Tab 31 at 49-50, Tab 40 at 68-121, Tab 41 at 12, 48; HT, Vol. I at 54-56 (testimony of an NPOSP Health Systems Specialist), Vol. III at 192-93 (testimony of the deciding official)). ¶30 We have considered whether it is possible to sustain the agency’s action solely based on any alleged post-June 23, 2017 neglect of duty by the appellant. In Boss v. Department of Homeland Security, 908 F.3d 1278, 1279, 1282-83 (Fed. Cir. 2018), the Federal Circuit held that a due process error that affects one charge does not necessarily require vacating the remaining charges. Rather, if the remaining, unrelated charges are untainted by the error, they may be reviewed on their merits. Id. at 1279, 1281-84. However, even assuming that we could similarly separate the specifications of the same charge using this reasoning, we find it inappropriate to do so here. ¶31 As discussed above, the agency’s charge is based on the “steady decline” in the SPS based on errors of the appellant’s subordinates over a period spanning at least 8 months. Only 1 of these months fell after the enactment of the VA Accountability Act. Therefore, we cannot find, as in Boss, that there is an “absence of evidence indicating that the procedural defect tainted the decision-making” process as to some portion of the charge. Id. at 1282-83. 18 Instead, the underlying alleged instances of misconduct by the appellant’s subordinates “are so factually interrelated that they cannot be fairly separated.” Id. ¶32 The Federal Circuit addressed a similar situation in Brenner v. Department of Veterans Affairs, 990 F.3d 1313 (Fed. Cir. 2021). In its decision in that case, the court vacated the removal of an agency employee based on alleged poor performance beginning before, and continuing after, the June 23, 2017 enactment of the VA Accountability Act. Id. at 1320-22, 1330. The court reasoned that an action taken under VA Accountability Act may rely only on employee behavior occurring after its enactment. Id. at 1328-29. It was not persuaded by the agency’s argument that consideration of prior poor performance was allowed because the removal “resulted from a pattern of poor performance that began before the Act was passed,” and “became worse” thereafter. Id. (quoting the agency’s argument). Rather, the court found that such consideration of preenactment events impermissibly “‘attaches new legal consequences’ to that conduct and thereby gives the Act impermissible retroactive effect,” endangering an employee’s “‘property interest in [his] continued employment.’” Id. at 1329-30 (quoting Landgraf, 511 U.S. at 270; Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374 (Fed. Cir. 1999)). ¶33 Because applying 38 U.S.C. § 714 in this case would attach new legal consequences to events before its enactment, the statute may not be applied to those prior events. Sayers, 954 F.3d at 1380. Under these circumstances, and given our determination that the agency’s charge and specifications do not distinguish between alleged misconduct that predates and postdates June 23, 2017, the agency’s charge is not sustained and its action must be reversed. See Sayers, 954 F.3d at 1380-82. 19 The appellant is entitled to corrective action based on retaliation for whistleblowing. ¶34 The administrative judge found that she did not need to address the appellant’s claims of a violation of law and harmful error because there was no further relief she could grant him based on those allegations given her reversal of the action on the merits.9 ID at 20. She further found that the appellant did not prove race discrimination. She reasoned that the appellant relied on the agency’s allegedly more favorable treatment of individuals who were not similarly situated to him. ID at 22-23. The appellant does not challenge this finding on review, and we decline to disturb it. PFR File, Tab 6 at 17. ¶35 The appellant does, however, dispute the administrative judge’s decision to deny corrective action for alleged whistleblower reprisal. PFR File, Tab 6 at 4, 16-18. When such a claim is made in the context of an otherwise appealable action, as here, the appellant must prove by preponderant evidence that he made a protected disclosure that was a contributing factor in the personnel action at issue. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶¶ 20, 22 (2013). If the appellant makes this showing, the agency is given the opportunity to prove by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure. Id., ¶ 32. ¶36 The appellant alleged below that, beginning in 2015, he reported to the agency that the SPS had inadequate and defective equipment. IAF, Tab 1 at 6, Tab 18 at 8, Tab 47 at 4-5. The administrative judge found that the appellant made such reports, the reports were protected disclosures of a substantial and specific danger to public health or safety, and that they were a contributing factor in his demotion. ID at 23-25. The administrative judge went on to find, however, 9 The appellant asserts that the Board should remand the case to the administrative judge to address these affirmative defenses if the Board finds that the agency proved its charge. PFR File, Tab 6 at 16. Because we agree with the administrative judge that the agency did not prove its charge, we need not address these affirmative defenses. 20 that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of the disclosures. ID at 25-27. The appellant disputes this finding on review. PFR File, Tab 6 at 17-18. We agree with the appellant and grant corrective action for the reasons set forth below. The administrative judge properly determined that the appellant proved his protected disclosures were a contributing factor in his demotion. ¶37 As an initial matter, the agency disputes the administrative judge’s determination that the appellant’s disclosures were protected and asserts that there was no evidence of actual harm to particular patients. PFR File, Tab 3 at 5, Tab 9 at 8-13. We are not persuaded. ¶38 Protected disclosures include “any disclosure of information” that the disclosing employee “reasonably believes evidences . . . a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A)(ii). “[T]he inquiry into whether a disclosed danger is sufficiently substantial and specific to warrant protection under the [whistleblower reprisal statutes] is guided by several factors, among these: (1) the likelihood of harm resulting from the danger; (2) when the alleged harm may occur; and (3) the nature of the harm, i.e., the potential consequences.” Chambers v. Department of the Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010) (internal citations and quotation marks omitted). In January 2017, the appellant reported to agency employees, including the deciding official, equipment breakdowns involving sterilizers that could delay the availability of RME required to provide immediate patient care. IAF, Tab 23 at 4-5; HT, Vol. III at 163-64, 166-70, 176 (testimony of the deciding official). The NPOSP’s March 21-23, 2017 report specifically noted that “[d]owntime of SPS equipment” such as sterilizers “causes accumulation of non-reprocessed critical RME which can negatively impact patient access to care.” IAF, Tab 7 at 42, 49. Delays in the processing of RME can lead to the cancellation of surgeries that “severely reduce the effectiveness of the entire organization.” IAF, Tab 35 at 9. The record reflects, for example, that on January 11, 2017, one 21 “ENT case was delayed 3 hours due to inability to do a rapid turnaround of equipment with only one sterilizer working.” IAF, Tab 23 at 8. ¶39 In addition, a December 13, 2017 Report of Investigation conducted by an Administrative Investigation Board investigating numerous aspects of SPS operations noted the following: Surgeons were concerned about the safety of continuing surgeries as it was unknown if the equipment would be available and/or sterile. In some cases, procedures were cancelled or a different surgical approach was utilized because of instrument concerns. For example, a Veteran’s surgery was canceled because of suspected unsterile equipment and was postponed to the following week. There were three attempts to perform the Veteran’s surgery. IAF, Tab 27 at 4, 8. A total of 70 patients had to have their surgeries cancelled and rescheduled on March 30 and 31, 2017, due in part to an insufficient number of sterilized instruments. IAF, Tab 24 at 5-6, 8-9. Additional cases were cancelled between April 3 and 26, 2017, due to a lack of instrumentation. Id. at 11-12. At least one veteran complained to a news reporter about the cancellation of his surgery, which had yet to be rescheduled. Id. at 12. The agency’s decision letter notes that the “reviewers found the status of TVHS SPS had the potential to place Veterans at risk.” IAF, Tab 6 at 35. ¶40 These reports support the administrative judge’s conclusion that the appellant reasonably believed he was disclosing evidence of a substantial and specific danger to public health or safety. ID at 23-24. As outlined above, the likelihood of harm was sufficiently high that the NPOSP, an expert body independent of the TVHS, warned of a negative impact on patient access to care that could severely reduce the effectiveness of the TVHS. The nature of, and potential for, the harm was also severe, as evidenced by the fact that surgeons at the TVHS cancelled medical procedures to avoid risking patient exposure to unsterile equipment. Contrary to the agency’s assertions on review, the appellant was not required to provide evidence of actual harm to particular patients. PFR File, Tab 9 at 11-12; Chavez v. Department of Veterans Affairs, 22 120 M.S.P.R. 285, ¶¶ 19-20 (2013) (finding an appellant reasonably believed she disclosed a substantial and specific danger to public health or safety in that medical carts were not cleaned and restocked at shift change because harm could result directly from delays in providing immediate treatment or careful monitoring to patients who needed it). Thus, we agree with the administrative judge that the appellant made protected disclosures. ¶41 Although the agency generally also asserts that the administrative judge erred in finding the appellant’s disclosures were a contributing factor in his demotion, it provides no argument for its position. PFR File, Tab 9 at 4. We decline to disturb the administrative judge’s finding, which is supported by the record. ID at 25. One of the ways to prove that a disclosure was a contributing factor in a personnel action is the knowledge/timing test, in which the appellant may demonstrate that the official taking the personnel action knew of the disclosure, and that the personnel action occurred within 1 to 2 years of the disclosure. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015). The deciding official, who was the Health Safety Director for the TVHS, testified that beginning in late 2016, the appellant, among others, reported to her that the equipment in SPS was frequently breaking down. HT, Vol. III at 163-64, 170, 172, 175-76 (testimony of the deciding official). She made her decision to demote the appellant in November 2017. IAF, Tab 6 at 34-36. Thus, the disclosures were sufficiently close in time to the demotion for the appellant to prove contributing factor. The administrative judge erred in her determination that the agency proved by clear and convincing evidence that it would have demoted the appellant absent his whistleblower disclosures. ¶42 Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e). It is a higher standard than a preponderance of the evidence, which is the degree of relevant evidence that a 23 reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. §§ 1201.4(q), 1209.4(e). ¶43 In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board will consider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). “Congress considered it very important that [F]ederal agencies be required to clearly and convincingly rebut a prima facie case of whistleblower retaliation, especially given the evidentiary disadvantages” that whistleblowers face. Whitmore v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012) (emphasis in original). “Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Id. at 1368. However, the Board does not view the Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence. Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 42 (2016). Rather, the Board will weigh the factors together to determine if the evidence is clear and convincing as a whole. Id. ¶44 The administrative judge found that, although the evidence in support of the action was not strong, the existence and strength of any motive to retaliate was not great and weighed heavily in the agency’s favor because the equipment issues raised by the appellant were widely known, individuals throughout the agency were involved in trying to resolve them, and the reduction-in-grade decision was largely motivated by the recommendation in the NPOSP site visit report that SPS 24 leadership be removed, not by the appellant’s disclosure. ID at 26. She also held that evidence showing that the agency removed or reassigned other individuals in leadership positions who were not properly managing their departments weighed only slightly in the agency’s favor because these individuals were not similarly situated to the appellant. ID at 22-23, 26. ¶45 The agency disagrees with the administrative judge’s determination that its evidence in support of the appellant’s demotion was “not strong,” PFR File, Tab 9 at 13; ID at 26, while the appellant disagrees with her conclusion that the second factor weighed “heavily in the agency’s favor,” ID at 26; PFR File, Tab 6 at 17-18. We will address each of the Carr factors in turn. ¶46 As to the first Carr factor, the strength of the agency’s evidence in support of its action, we have reversed the agency’s charge based on its legal error of demoting the appellant under 38 U.S.C. § 714 for conduct predating the statute’s enactment. However, our reversal on this basis does not shed light on whether the agency had legitimate reasons for the appellant’s reduction in grade at the time it took the action, as necessary to assess Carr factor 1. See Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1372-73 (Fed. Cir. 2001) (finding that the agency’s explanation for its action should be judged based on the evidence before the agency at the time the action was taken). Therefore, in assessing Carr factor 1, we must determine whether the administrative judge erred in finding that the agency failed to prove by substantial evidence that the appellant neglected his duty. ID at 10-20, 26. We discern no error in that regard. ¶47 The administrative judge evaluated the neglect of duty charge under the same standard applicable to a charge of negligent performance of duties. ID at 10. The parties do not dispute the use of this standard, and we discern no error under the circumstances here. Culpable negligence in the performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Velez v. Department of 25 Homeland Security, 101 M.S.P.R. 650, ¶ 11 (2006), aff’d per curiam, 219 F. App’x 990 (Fed. Cir. 2007). When the actual duties at issue were carried out by an appellant’s subordinates, as here, the agency must prove that the appellant “directed, knew, or should have known of the subordinate[s’] misconduct and acquiesced to the improper behavior.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1011 (Fed. Cir. 2019). ¶48 The administrative judge found the agency did not prove that the appellant directed, knew, or should have known of his subordinates’ lack of proper care, and that even if he did, such knowledge would not support a finding that he was negligent in performing his duties under the circumstances of this case. ID at 10-20. The administrative judge found that, beginning in the fall of 2016 and extending through July 2017, SPS was experiencing a “perfect storm” of significant problems with its sterilization equipment, which could not be replaced because SPS was operating in a space that was too small and needed to be renovated. ID at 12-13. In addition to the equipment issues, there were significant staff shortages and problems with the existing staff, including disciplinary and performance problems, all while the number of surgical cases was increasing. ID at 12, 16-20. Although these problems had been identified by the NPOSP as issues in its March and April 2017 site visits, they had not been remedied by July 2017. ID at 12. ¶49 Despite these issues, the administrative judge found that the appellant’s supervisors testified that he had not neglected his duties, worked long hours, and was doing an outstanding job, which matched his performance rating, and that his immediate subordinates testified that he had never asked them to do anything improper or questionable and was not negligent in performing his duties. ID at 12, 14-20. The administrative judge further determined that the appellant was not aware, nor should he have been aware, as a second-level supervisor of technicians performing the sterilization work, that the deficiencies found in the July 2017 report were occurring, including the lack of second checks on 26 Operating Room (OR) instrument trays, problems with various types of RME processed by SPS, and a failure to document employee competencies and training. ID at 13-15, 20. She noted that it was unclear whether the high discrepancy rates in processed RME cited in the July 2017 site visit represented a pervasive problem or an anomaly because, among other things, evidence indicated that there would always be some discrepancies due to human error and an OR nurse had stopped compiling a monthly report detailing such discrepancies in April 2017. ID at 14. ¶50 The administrative judge further found that, even if the appellant had direct knowledge of the problems identified in the July 2017 NPOSP report, he was not negligent in performing his duties. ID at 16. Among other things, she found no testimony that he was anything but conscientious and hard-working, and he was dealing with systemic issues outside his control that higher-level TVHS managers were slow to resolve and that contributed to the NPOSP findings, such as the aforementioned record low staffing levels, difficulties recruiting new employees, and equipment failures, and insufficient space for SPS operations. ID at 16. Thus, the administrative judge concluded that the agency did not prove its charge. ID at 20. ¶51 The agency disagrees with the administrative judge’s finding that the appellant did not know and should not have been aware of unresolved quality assurance deficiencies resulting in SPS producing nonconforming RME. PFR File, Tab 3 at 8-11. The agency points to the testimony of the OR nurse mentioned above, who completed monthly reports of deficient RME. PFR File, Tab 3 at 11. The reports in question reflect the OR nurse’s compilation of discrepancies in RME processed by SPS and arriving in the TVHS OR from December 2016, through March 2017. IAF, Tab 40 at 50, 121-122, Tab 41 at 13, 49; HT, Vol. I at 136-37 (testimony of the OR nurse). The appellant received these reports monthly via email. IAF, Tab 40 at 48, 68-69, Tab 41 at 12, 48. The administrative judge concluded that because the OR nurse stopped compiling 27 the report at the beginning of April 2017, there is no evidence that the appellant was aware that RME deficiencies were continuing after that time. ID at 13-14; HT, Vol. I at 181 (testimony of the OR nurse). The agency argues on review that the reports “did not include all of the RME discrepancies identified by OR [employees].” PFR File, Tab 3 at 11; HT Vol. I at 154-57. We are not persuaded that the fact that other, unreported deficiencies existed between December 2016, and March 2017, supports the appellant’s alleged knowledge of such deficiencies. Further, because the agency alleged a “steady decline” in the SPS, ending with the July 2017 site visit by NPOSP, any reported deficiencies in the RME provided to the OR through March 2017, rather than through July 2017, would have given the appellant an incomplete picture of the alleged decline. IAF, Tab 6 at 35, 48-49. ¶52 The agency also argues that the administrative judge misread a document as supporting the appellant’s claim that he was unaware, prior to July 2017, that SPS staff were not conducting a second round of quality assurance checks, as required, on RME that it prepared for the OR. PFR File, Tab 3 at 9-11; ID at 13; HT, Vol. I at 36-38 (testimony of an NPOSP Health Systems Specialist). We discern no error. ¶53 The document at issue is an action plan prepared following the April 2017 NPOSP site visit. IAF, Tab 22 at 7; HT, Vol. II at 33 (testimony of the appellant). The plan states that, since February 15, 2017, “SPS Supervisors and Lead technicians provide a second check of OR instrumentation prior to packaging and sterilization.” IAF, Tab 22 at 7. This information is also stated as a finding in the April 2017 site visit report. IAF, Tab 28 at 49. We discern no error in the administrative judge’s determination that the agency’s finding that second checks were being conducted as of April 2017, supports testimony, including the appellant’s, that he was unaware second checks were not being 28 conducted as of the July 2017 site visit 3 months later.10 ID at 13; HT, Vol II at 182-83 (testimony of the appellant), 273, 275, 285 (testimony of an SPS supervisor), 303 (testimony of a Quality Assurance Specialist); see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (identifying factors, including the consistency of a witness’s version of events with other evidence, that an administrative judge must consider in making credibility determinations). ¶54 The agency asserts that an SPS supervisor who reported directly to the appellant told the appellant’s supervisor, the SPS Chief, that second checks were not being done. PFR File, Tab 3 at 10. It argues that the fact that the appellant was unaware that second checks were not being done evidences his neglect of duties. Id. Further, the agency contends that the appellant received “count sheets” between January and April 2017, showing that second checks were not being done because there were no double signatures from SPS staff. Id. These arguments are without merit. The SPS Chief’s testimony cited by the agency does not suggest any neglect of duty by the appellant. Rather, she testified that the SPS supervisor who told her about the second checks complained that the SPS supervisory staff “had to follow-up with corrective action” because the technicians were not conducting the second checks of equipment. HT, Vol. III at 142 (testimony of appellant’s first-level supervisor). This indicates that the SPS supervisors, subordinate to the appellant, were appropriately correcting the work of their subordinate technicians when second checks were not completed. Further, the count sheets identified by the agency, which appear to be entitled “Instrument Set” records, address discrepancies in the instruments included in the sets but do not identify an absence of SPS second counts as an issue. E.g., IAF, Tab 40 at 51-61, 66-67, 70-98. In fact, the count sheets appear 10 To the extent the administrative judge suggested the agency made this finding in March or June 2017, we modify the initial decision. ID at 13. The agency made the finding in April 2017. IAF, Tab 22 at 7, Tab 28 at 49. 29 to have signature lines for an SPS technician, a preoperative scrub nurse, and a post-operative scrub nurse, but they do not contain a line or suggest the need for a second signature from another SPS employee. E.g., id. ¶55 The agency also asserts that the administrative judge cited no evidence to support her finding that the appellant reported the issues in SPS to agency leadership. PFR File, Tab 3 at 11. It additionally claims that staff shortages and equipment failures did not excuse the appellant’s neglect of duty because such staff shortages would only account for a delay in the delivery of RME, not quality assurance discrepancies. Id. at 11-13, 16. The agency points out that it permitted SPS to slow its processing to maintain quality assurance. Id. at 12-13. ¶56 In finding that the equipment and staffing issues affecting SPS were reported to agency leadership, the administrative judge relied upon the appellant’s testimony, which was unrebutted. ID at 19; see HT, Vol. II at 16-17, 30-31, 95-96 (testimony of the appellant); Williams v. Office of Personnel Management, 105 M.S.P.R. 29, ¶ 11 (2007) (holding that testimony that is unrebutted and not inherently incredible may be sufficient to establish the accuracy of the allegations). Further, other evidence in the record supports the credibility of this testimony. See Hillen, 35 M.S.P.R. at 458. Specifically, the appellant identified the reports in the record that were provided to leadership, and the deciding official testified that she was aware of the equipment problems in SPS by April 2017. HT, Vol. II at 30-31 (testimony of the appellant) (citing IAF, Tab 20); HT, Vol. III at 175-76 (testimony of the deciding official). ¶57 Moreover, we disagree with the agency’s suggestion that the administrative judge excused any neglect of duty by the appellant due to SPS staff shortages and equipment failures or misconstrued the charge. Although the administrative judge noted the staffing and equipment problems in describing the basis for and results of the NPOSP site visits, ID at 12-13, she ultimately found that the agency did not prove its charge because it did not prove by substantial evidence that the appellant was aware of, nor should he have been aware of, the problems identified 30 in the July 2017 NPOSP report, and did not, therefore, prove by substantial evidence that he neglected his duties, ID at 20. ¶58 The agency claims that the number of RME discrepancies decreased and the completion of competencies increased after the appellant’s reduction in grade, that any compensatory hours he accumulated were related to courier tasks not within his job description, and that he was rarely seen wearing scrubs or at meetings to discuss discrepancies in RME processing. PFR File, Tab 3 at 12. Further, the agency asserts that the administrative judge did not support her finding that an agency witness who testified that competency validations were not properly completed was not credible. Id. at 13, 15-16. These arguments are unavailing because they do not address the central issue underlying the agency’s charge, which is whether the appellant directed, knew about, or should have known about the improprieties in question. Moreover, the administrative judge expressly relied on witness demeanor in addressing the competency validations issue. ID at 15. Specifically, she found that the witness in question “appeared to have a grudge against the appellant.” Id. The administrative judge instead credited that the “consistent” and “honest and forthright” testimony of two other witnesses that the appellant was not aware of any deficiencies in how competencies were being completed.11 ID at 14-15. The Board must defer to an administrative judge’s credibility determinations when, as here, they are based, 11 The agency additionally argues the administrative judge abused her discretion in disallowing an additional witness that it requested “to confirm that employee competencies were not validated and that supervisors knew second checks [of RME processed by SPS] were not being done.” PFR File, Tab 1 at 16. The administrative judge denied the agency’s request for this witness prior to the hearing on the basis that her testimony was either duplicative or not relevant. IAF, Tab 46 at 5. We do not discern any basis to grant review. The administrative judge offered the parties the opportunity to object to this and other prehearing rulings. Id. at 6. Neither party did so. Because the agency did not object to this ruling below, it is precluded from doing so on petition for review. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). 31 explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The agency has not demonstrated such sufficiently sound reasons in this case. ¶59 The agency also argues that the appellant should have known of the insufficient training and competency assessments and quality assurance deficiencies identified in the July 2017 NPOSP report. PFR File, Tab 3 at 8-11. In finding otherwise, the administrative judge made credibility determinations, explicitly relying in some instances on the demeanor of witnesses during their testimony, and in other instances, impliedly doing so. ID at 13-20 & n.21. As set forth above, we must defer to these determinations. Haebe, 288 F.3d at 1301; see also Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (concluding that the Board must defer to an administrative judge’s credibility determinations even when she relies on demeanor “by necessary implication”). We find that the agency has not articulated sufficiently sound reasons for disregarding the administrative judge’s credibility findings. ¶60 Further, in disputing the administrative judge’s findings as to competency assessments and quality assurance, the agency makes a number of arguments that the administrative judge “ignored” or failed to discuss particular witness testimony and documents in her comprehensive initial decision. PFR File, Tab 3 at 9-13. A failure to mention all of the evidence, without more, will not afford a reason to disturb the decision below. Kendricks v. Department of Veterans Affairs, 79 M.S.P.R. 510, 518 (1998). Similarly, the agency points to certain evidence that it contends supports its position that the appellant should have known that competency assessments were not being performed properly. PFR File, Tab 3 at 8-9. In particular, the agency asserts that the appellant was the first-line supervisor of the SPS supervisors who signed the competency records, 32 he had an affirmative duty to ensure that the supervisors were doing the competencies properly, and “[a]lthough the paperwork reported that competencies had been done, in fact, they were not.” Id. The agency also contends that the appellant admitted during his oral reply to the proposal notice that the SPS supervisors “did not individually validate competencies,” thereby suggesting that they had been “pencil-whipped,” or signed off on without verifying that the competencies were completed. Id. at 9; HT, Vol. III at 133-34 (testimony of the appellant’s first-level supervisor). ¶61 These arguments do not, however, prove by substantial evidence that the appellant should have known of any problems regarding competencies. As the agency suggests, the paperwork in question shows on its face that the competencies were, for the most part, properly completed. E.g., IAF, Tab 31 at 4-58. Thus, any review by the appellant of the paperwork itself would not have placed him on notice of a problem. Moreover, the agency’s assertion that the appellant admitted during his oral reply that competencies were not individually validated is incorrect. The deciding official testified that the appellant told her during the oral reply that “the way they were documented doesn’t mean that they didn’t do them.” HT, Vol. III at 192 (testimony of the deciding official). This statement is not an admission that the competencies were fabricated or that the appellant acted negligently. The agency’s other arguments do not show that the appellant should have been aware of any problems with the completion of employee competency forms.12 PFR File, Tab 3 at 9; see ID at 14-15. After considering the agency’s arguments, we discern no error in the 12 Because we decline to disturb the administrative judge’s finding that the agency failed to prove the appellant knew or should have known of these problems, we do not reach the agency’s argument that the administrative judge erred in finding, in the alternative, that the appellant exercised reasonable care in performing his job duties in light of challenges such as a staffing shortage and sterilization equipment failures. PFR File, Tab 3 at 10-13; ID at 16-20. 33 administrative judge’s conclusion that the agency did not have strong reasons for demoting the appellant. ¶62 Regarding the second Carr factor, we disagree with the administrative judge’s determination that the existence and strength of any motive to retaliate was “not great” and weighed in the agency’s favor. ID at 26. The appellant asserts that the administrative judge erred in finding that the deciding official simply followed the recommendation of the NPOSP site visit report to reduce him in grade and therefore had little motive to retaliate based on his disclosures. PFR File, Tab 6 at 17-18. The administrative judge correctly found that the deciding official relied heavily upon the NPOSP report in demoting the appellant from a leadership position in the SPS. IAF, Tab 6 at 34-35; HT, Vol. III at 187-88, 199-200 (testimony of the deciding official). Moreover, there is no indication in the record that the authors of that report were aware of the appellant’s disclosures. IAF, Tab 6 at 61-73; see, e.g., HT, Vol. I at 86 (testimony of an NPOSP Health Systems Specialist), 192, 205, 213 (testimony of another NPOSP Health Systems Specialist). Nonetheless, this factor does not favor the agency. ¶63 The deciding official testified that she became the Health System Director for the TVHS, the position she occupied at the time she made her decision to demote the appellant, in late 2016. HT, Vol. III at 163 (testimony of the deciding official); IAF, Tab 6 at 36. Prior to serving in that position, she stated that she was not aware of the extent of the equipment problems in the SPS. Id. at 203 (testimony of the deciding official). The appellant informed her when she first started in her position that the SPS needed a renovation and that equipment needed replacing. Id. at 166-67 (testimony of the deciding official). He later informed her that equipment started breaking “pretty frequently.” Id. at 168-69 (testimony of the deciding official). ¶64 The deciding official further testified that “any time” the appellant or his supervisor advised her that SPS equipment broke down, she “sent an information 34 brief” to higher-level management officials “to get funding for the renovation” SPS required to install new equipment. Id. at 169-70 (testimony of the deciding official). She also indicated that sometime after the NPOSP site visit in March 2017, she had to shut down the OR for 4 days, in part because of the equipment breakdowns in the SPS. Id. at 175-76, 205-06 (testimony of the deciding official). The deciding official advised her superiors of the shutdown, including that many patient operations had to be cancelled, how TVHS was handling those patients, and how long it would take to get back up to speed. Id. at 176 (testimony of the deciding official). The deciding official testified that there was adverse publicity in April 2017, regarding the shutdown in operations, including television news stories for which she was interviewed. Id. at 206 (testimony of the deciding official). ¶65 “Those responsible for the agency’s performance overall,” like the deciding official in this case, “may well be motivated to retaliate even if they are not directly implicated by the disclosures . . . as the criticism reflects on them in their capacities as managers and employees.” Whitmore, 680 F.3d at 1370. An appellant’s criticism that reflects on an agency official in her capacity as a manager and employee is sufficient to establish a substantial retaliatory motive. Chavez, 120 M.S.P.R. 285, ¶ 33. As set forth above, the deciding official was responsible for ensuring that the equipment problems were sufficiently documented to justify to her superiors the replacement of that equipment, and for responding to media inquiries regarding the resulting shutdown in operations. Thus, the appellant’s disclosures generally put higher-level management officials, including the deciding official, in a critical light by disclosing problems with equipment that those officials were responsible for replacing. ¶66 Moreover, an agency’s failure to investigate a charge sufficiently before bringing an action might indicate an improper motive. Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 30 (2011). The administrative judge indicated that the deciding official “was largely motivated by” the July 2017 NPOSP report, 35 as opposed to the appellant’s disclosures, in demoting him. ID at 26. In particular, she found the deciding official relied on the statement in the report recommending that SPS leadership be removed. ID at 26; IAF, Tab 6 at 72. However, NPOSP was not referring to the appellant in making that recommendation. HT, Vol. I at 123-24 (testimony of the National Director for Sterile Processing). Instead, NPOSP was recommending the removal of the appellant’s first-line supervisor. Id. (testimony of the National Director for Sterile Processing). Thus, it appears that the agency failed to ask the critical question of who NPOSP recommended be removed. In sum, we find that the agency had a strong motive to retaliate because the appellant’s disclosures reflected negatively on the deciding official as a manager and other higher-level management officials, and the agency did not sufficiently investigate which individuals NPOSP recommended removing from leadership positions before demoting the appellant. Thus, we find that the second Carr factor weighs in the appellant’s favor given the evidence and considerations set forth above. ¶67 Finally, the administrative judge found that the third Carr factor weighed slightly in the agency’s favor because the agency removed or reassigned other individuals in leadership positions who were not properly managing their departments. ID at 26. We disagree with the administrative judge’s conclusion that this factor weighs in the agency’s favor. Although not raised by the appellant on review, we observe that the record does not reflect, and the administrative judge did not determine, whether these individuals were nonwhistleblowers. ID at 26; HT, Vol. II at 234-38 (testimony of the appellant’s second-level supervisor); HT, Vol. III at 132-33 (testimony of the appellant’s first-level supervisor), 194-97 (testimony of the deciding official); IAF, Tab 48 at 4-5. Only evidence reflecting the agency’s treatment of similarly situated nonwhistleblower employees is relevant to Carr factor 3. Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). The risk associated with producing no evidence for a particular Carr factor falls on the Government. 36 Id. Because the agency did not submit evidence that nonwhistleblowers who were similarly situated to the appellant were treated the same, this factor “cannot favor” the agency. Id. ¶68 After weighing the relevant factors and considering the record as a whole, we find that the agency has not met its burden given the weakness of its evidence when it acted, the existence of evidence of a strong motive to retaliate, and the absence of evidence regarding its treatment of nonwhistleblowers. See Chambers, 116 M.S.P.R. 17, ¶ 71 (finding an agency did not meet its burden after reaching the same conclusions regarding the Carr factors); Brewer v. Department of the Interior, 76 M.S.P.R. 363, 371 (1997) (finding an agency did not meet its burden when the evidence in support of its action was not strong, the rating and reviewing officials were essentially the subjects of the appellant’s disclosure, and the agency presented no evidence that it treated similarly situated nonwhistleblowers the same as the appellant). ¶69 Accordingly, we affirm the initial decision, in part, as modified by this Opinion and Order, still reversing the appellant’s reduction in grade. Further, we reverse the initial decision in part, granting the appellant’s request for corrective action. ¶70 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). ORDER ¶71 We ORDER the agency to reverse the appellant’s reduction in grade and to restore the appellant effective December 10, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶72 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel 37 Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶73 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶74 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶75 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. 38 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204. In addition, the Whistleblower Protection Enhancement Act of 2012 authorized the award of compensatory damages including interest, reasonable expert witness fees, and costs, 5 U.S.C. §§ 1214(g)(2), which you may be entitled to receive. If you believe you are entitled to these damages, you must file a motion for consequential damages and/or compensatory damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. 39 NOTICE TO THE PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214(f). NOTICE OF APPEAL RIGHTS13 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 13 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. 40 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 41 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 42 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 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.14 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: 14 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. 43 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 2 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/WILSON_ARNOLD_AT_0714_19_0113_I_1_OPINION_AND_ORDER_1919286.pdf	Issuance Date: December 7, 2016 Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Adverse actions – Removal Security clearances The petitioner was a civilian Resource Analyst for the Nuclear Propulsion Directorate – a position requiring a security clearance. On July 25, 2014, the Department of Energy revoked the petitioner’s security clearance based on several instances of alleged misconduct. On September 12, 2014, the Department of the Navy removed the petitioner for failure to maintain a security clearance. The petitioner appealed his removal to the Board, arguing that the security clearance determination, and therefore resultant removal, was based on his uniformed service. The Board affirmed the removal, finding that the agency had provided the petitioner the procedural protections of 5 U.S.C. § 7513(b), there was no requirement for the agency to reassign the petitioner to a position that did not require a security clearance, and the Board was precluded from determining whether the security clearance determination was based on the petitioner’s uniformed service. The petitioner appealed to the court Holding: The court affirmed. 1. Although the petitioner argued that USERRA authorizes review of security clearance determinations, the court found that, under well-settled Supreme Court precedent, neither the court nor the Board has the authority to determine whether discrimination was the reason for a security clearance revocation. 2. The petitioner argued that the Board may review the reasons for initiating a security clearance action without reaching the merits of the action. The court, however, found this to be a distinction without a difference. 3. The petitioner argued that USERRA entitles him to reemployment, but the Court found that this entitlement pertains only to reemployment after an absence related to uniformed service. If an employee is removed due to antimilitary animus, he has no reemployment claim under USERRA, even if a USERRA discrimination claim might otherwise be available. NONPRECEDENTIAL: Sutton v. Department of Veterans Affairs, No. 2016-2205 (Dec. 8, 2016) (MSPB No. DC-300A-14-0641-I-1) (affirming the Board’s decision that dismissed the petitioner’s employment practice claim for lack of jurisdiction and denied his VEOA claim; the petitioner failed to identify any employment practice that he was challenging, and his VEOA claim was disposed of in a prior Board decision for which the time for seeking judicial review had already elapsed). Ahuruonye v. Department of the Interior, No. 2016-2493 (Dec. 8, 2016) (MSPB No. CH-1221-15-1172-W-1) (affirming the Board’s decision denying the petitioner’s IRA appeal on the merits because the petitioner failed to establish that his disclosure was a contributing factor in the personnel action). Carpenter v. Navy, No. 2016-2180 (Dec. 7, 2016) (MSPB No. DC-0752-13-2215 B-1) (affirming the Board’s decision that upheld the petitioner’s 6-day furlough; the Board did not abuse its discretion in limiting the petitioner’s discovery to information pertaining to similarly-situated employees, and substantial evidence supported the Board’s finding that the furlough was taken for such cause as to promote the efficiency of the service). Lundberg v. Merit Systems Protection Board, No. 2016-2536 (Dec. 6, 2016) (MSPB No. CH-3443-15-0448-I-1) (affirming the Board’s decision finding that the petitioner was collaterally estopped from establishing jurisdiction over his appeal concerning improper charge of annual leave). MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
04-20-2022	2022 MSPB 6	Javier Soto	https://www.mspb.gov/decisions/precedential/SOTO_JAVIER_AT_1221_15_0157_W_1_OPINION_AND_ORDER_1917859.pdf	Department of Veterans Affairs	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 6 Docket No. AT-1221-15-0157-W-1 Javier Soto, Appellant, v. Department of Veterans Affairs, Agency. April 20, 2022 Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant. Kristin Langwell, Esquire, St. Petersburg, Florida, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action under 5 U.S.C. § 1221(e). For the reasons set forth below, we GRANT the appellant’s petition and REMAND this matter for further adjudication consistent with this Opinion and Order. BACKGROUND ¶2 The appellant, a reemployed annuitant, occupied the GS-0996-12 Ratings Veterans Service Representative position with the agency’s Veterans Service Center in Orlando, Florida. Initial Appeal File (IAF), Tab 5 at 127. By notice dated June 30, 2014, the deciding official, who was the Director of the St. Petersburg Regional Office, separated the appellant from his position and the 2 Federal service, stating without elaboration that his “services [were] no longer required.” Id. at 27-28. The following day, the appellant sought corrective action from the Office of Special Counsel (OSC). IAF, Tab 7 at 10-18. He alleged that his separation was in reprisal for protected disclosures contained in two Quality Review Team (QRT) Studies, and for various grievances and complaints he filed in his capacity as Executive Vice President of the American Federation of Government Employees (AFGE) Local 1594. IAF, Tabs 28-42. ¶3 While the OSC complaint was pending, the deciding official prepared a memorandum, dated September 22, 2014, setting forth her reasons for separating the appellant. IAF, Tab 4 at 55-57. Her stated reasons were that the appellant had engaged in misconduct involving his attendance and work schedule at an April 2014 equal employment opportunity training and a May 2014 training with AFGE, and had improperly claimed case credit by making duplicate entries in the agency’s Automated Standardized Performance Elements Nationwide database in June 2014. Id. The deciding official explained that, during this 3-month period, the appellant was dishonest and misled management, refused to follow instructions, and demonstrated a lack of integrity. Id. at 57. She further stated— apparently, unbeknownst to her, incorrectly—that removal was the only disciplinary option available, because, as a reemployed annuitant, the appellant was “excluded from the legal authority to admonish, reprimand or suspend.” Id. ¶4 By letter dated September 30, 2014, OSC informed the appellant that it had completed its investigation, and advised him of his right to file an individual right of action (IRA) appeal with the Board. IAF, Tab 1 at 14-15. The appellant filed a timely IRA appeal on November 18, 2014. IAF, Tab 1. Following a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 75, Initial Decision (ID). As a preliminary matter, he found that the appellant had established Board jurisdiction concerning his claims that the agency separated him in reprisal for protected disclosures under 5 U.S.C. § 2302(b)(8) and protected activity under 5 U.S.C. 3 § 2302(b)(9)(A)(i) and (B).1 ID at 3-6. Turning to the merits, the administrative judge found that, assuming the appellant’s comments in the QRT Studies were protected disclosures, he failed to show that they were a contributing factor in his separation. ID at 8-12. The administrative judge further found that the appellant failed to prove that he participated in activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), because the grievances he had filed on his own behalf did not include allegations of whistleblowing reprisal under 5 U.S.C. § 2302(b)(8). ID at 12-14. However, the administrative judge found that some of the appellant’s representational activities on behalf of other employees were both protected under 5 U.S.C. § 2302(b)(9)(B) and a contributing factor in his separation. ID at 14-22. After conducting an analysis of the factors identified in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the administrative judge determined that the agency had met its burden of proving by clear and convincing evidence that it would have separated the appellant in the absence of his protected activity. ID at 22-51. ¶5 This petition for review followed. Petition for Review (PFR) File, Tab 1. On review, the appellant does not contest the findings below concerning his claims under 5 U.S.C. § 2302(b)(8) and (b)(9)(A)(i), but he contends that the administrative judge should have found that he engaged in two additional protected activities under 5 U.S.C. § 2302(b)(9)(B). Id. at 32-33. He further argues that, contrary to the findings in the initial decision, the agency failed to show by clear and convincing evidence that it would have separated him in the 1 The Board has long held that reemployed annuitants enjoy the protections of 5 U.S.C. § 2302, unless explicitly excluded from coverage by 5 U.S.C. § 2302(a)(2)(B)(i) or (ii). Acting Special Counsel v. U.S. Customs Service, 31 M.S.P.R. 342, 346-47 (1986). We agree with the administrative judge that there is nothing in the statutory language of the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, to suggest that the Board’s jurisdiction over IRA appeals would not extend to reemployed annuitants claiming reprisal for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) or (B). ID at 5-6. 4 absence of his protected activity. Id. at 4-31. He also provides medical documentation concerning a witness, the President of AFGE Local 1594, on the theory that her health condition explains behavior upon which the administrative judge relied in making an adverse credibility determination against her. Id. at 16, 36-38; ID at 41-42. The agency has filed a response, to which the appellant has replied. PFR File, Tabs 3-4. ANALYSIS The appellant failed to show that his new claims that he engaged in additional activity are protected under 5 U.S.C. § 2302(b)(9)(B). ¶6 Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice to take a personnel action against an employee “because of [the employee] testifying for or otherwise lawfully assisting any individual” in “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C. § 2302(b)(9)(A)-(B). In deciding the merits of a claim that an agency took a personnel action in violation of 5 U.S.C. § 2302(b)(9)(B), the Board will analyze the claim under the burden-shifting framework set forth at 5 U.S.C. § 1221(e). Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 13 (2015). First, the Board will determine whether the appellant has established by preponderant evidence2 that he was involved in protected activity under 5 U.S.C. § 2302(b)(9)(B). Alarid, 122 M.S.P.R. 600, ¶ 13. Next, the Board will determine whether the appellant’s participation in the protected activity was a contributing factor in the challenged personnel action at issue. Id. One way of proving that an appellant’s protected activity was a contributing factor in a personnel action is the “knowledge/timing” test, which is satisfied by showing that the responsible agency official knew of the protected activity and took the personnel action 2 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 5 within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the action. Id.; see 5 U.S.C. § 1221(e)(1). If the appellant makes both of these showings by preponderant evidence, the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected activity.3 Alarid, 122 M.S.P.R. 600, ¶ 14. ¶7 An appellant can establish that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B) by proving that he testified or otherwise lawfully assisted another employee in “any appeal, complaint, or grievance right granted by any law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(A); Alarid, 122 M.S.P.R. 600, ¶ 13. The Board has interpreted the term “appeal, complaint, or grievance” to mean an initial step toward taking legal action against the agency for a perceived violation of employment rights. See Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶¶ 18-19 (2016); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶¶ 9-11 (2014). Performing union-related duties in support of another employee’s appeal, complaint, or grievance may constitute protected activity under 5 U.S.C. § 2302(b)(9)(B). See Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 (2014) (finding that representing an agency employee during an informal grievance meeting falls under the protective umbrella of the statute). ¶8 The administrative judge found below that the following activities were both protected under 5 U.S.C. § 2302(b)(9)(B) and a contributing factor in the appellant’s separation: (1) a March 2014 discussion with the deciding official 3 Clear and convincing evidence is that measure or degree of proof that produces in the mind of a trier of fact a firm belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e). Section 1221(e)(2) does not explicitly state that the clear and convincing evidence test applies to claims of retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(B), because it only addresses disclosures, which are covered by subsection (b)(8), but the Board has consistently adopted that interpretation. See Alarid, 122 M.S.P.R. 600, ¶ 14; 5 C.F.R. § 1209.7(b). 6 regarding the venue of a grievance meeting; (2) a May 20, 2014 third-step grievance filed against an official in the agency’s West Palm Beach location, alleging improper management interference with union representation of an unnamed bargaining-unit member regarding a performance improvement plan (PIP); (3) a May 23, 2014 third-step grievance filed against Human Resources Management (HRM), concerning a dispute over requests for information (RFIs) regarding the PIPs of two bargaining-unit members; (4) a June 10, 2014 third-step grievance alleging that management failed to include AFGE in an unnamed bargaining-unit member’s PIP meeting; and (5) a June 10, 2014 third-step grievance against the Chief of HRM, alleging continued delay in responding to RFIs concerning the PIPs for the two bargaining-unit members. ID at 14-22; IAF, Tab 40 at 32-33, Tab 41 at 10-11, 43-44, 55-56, Tab 51 at 14-18. On review, the appellant contends that the administrative judge should have found that the following activities also were protected: (1) an April 16, 2014 reply to the proposed admonishment of a bargaining‑unit member; and (2) a May 23, 2014 memorandum to the deciding official objecting to HRM’s response to an RFI concerning the PIPs of the two bargaining-unit members. IAF, Tab 40 at 32-33; ID at 16-21; IAF, Tab 39 at 64-72, Tab 40 at 4-13, Tab 41 at 66-67. ¶9 Regarding the April 16, 2014 reply to the proposed admonishment of another bargaining-unit member, the administrative judge correctly found that the appellant’s activity was not protected, because there is no law, rule, or regulation granting a right to reply to a proposed admonishment. ID at 16-17. Thus, in making that reply, the appellant did not assist another employee in an appeal, complaint, or grievance right granted by law, rule, or regulation. 5 U.S.C. § 2302(b)(9)(B); see Graves, 123 M.S.P.R. 434, ¶¶ 3, 14 (finding that the appellant’s testimony before an agency investigative board in support of a coworker was not protected under 5 U.S.C. § 2302(b)(9)(B) because the investigation did not constitute the exercise of an appeal, complaint, or grievance right). On review, the appellant argues that the administrative judge should have 7 considered that a proposed admonishment may be grieved under the applicable collective bargaining agreement. PFR File, Tab 1 at 32. However, assuming the appellant is correct that there was a law, rule, or regulation granting the employee the right to grieve her proposed admonishment under the collective bargaining agreement, the record does not show that the appellant in fact assisted her in exercising that right. ¶10 As to the May 23, 2014 memorandum objecting to HRM’s response to the union’s RFI, the administrative judge found that 5 U.S.C. § 2302(b)(9)(B) does not cover an RFI unless it was filed in direct support of a grievance or unfair labor practice complaint. ID at 18-21. The appellant argues that in so finding, the administrative judge read the statute too narrowly. PFR File, Tab 1 at 32. We disagree. As noted previously, for activity to be protected under 5 U.S.C. § 2302(b)(9)(B), an appellant must prove that he lawfully assisted another employee in “any appeal, complaint, or grievance right granted by any law, rule, or regulation,” meaning that he took an initial step toward taking legal action against the agency for a perceived violation of employment rights. 5 U.S.C. § 2302(b)(9)(B); Graves, 123 M.S.P.R. 434, ¶ 18. Not every objection, gripe, or protest about a workplace matter constitutes the sort of complaint lodged in a formal adjudicatory process that is protected under 5 U.S.C. § 2302(b)(9)(B). See Owen v. Department of the Air Force, 63 M.S.P.R. 621, 624, 627-28 (1994) (finding that, although the appellant referred to his report to the Occupational Safety & Health Administration about his exposure to fumes as a “complaint,” it was merely an informal “complaint” as the term is used to denote gripes or objections, rather than a complaint lodged in a formal adjudicative process, and thus it was not covered by 5 U.S.C. § 2302(b)(9)(B)); see also Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 505-06, 508 (1993) (concluding that filing a claim for compensation under the Federal Employees’ Compensation Act was not the “exercise of any appeal, complaint, or grievance right” within the meaning of section 2302(b)(9)(B)), overruled on other grounds by Thomas v. 8 Department of the Treasury, 77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000). The appellant’s objection to HRM’s RFI response was part of the union’s effort to obtain information regarding the PIPs of two bargaining-unit members, not a complaint lodged in a formal adjudicatory process. Conversely, the administrative judge correctly found protected the appellant’s grievance, which he filed on the same date as the memorandum and which concerned the same subject matter. See ID at 17-18; IAF, Tab 40 at 32-33, Tab 40 at 66-67. Thus, the administrative judge properly determined that the appellant failed to establish that his May 23, 2014 memorandum separately constituted protected activity under 5 U.S.C. § 2302(b)(9)(B). The administrative judge should conduct a new Carr factors analysis on remand. ¶11 We next turn to the question of whether the agency proved by clear and convincing evidence that it would have separated the appellant absent his protected activity. In determining whether an agency has met its burden, the Board will consider all relevant factors, including the following: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who do not engage in such protected activity, but who are otherwise similarly situated. Alarid, 122 M.S.P.R. 600, ¶ 14; see Carr, 185 F.3d at 1323. The Board must consider all the pertinent evidence in the record, and must not exclude or ignore countervailing evidence by only looking at the evidence that supports the agency’s position. Alarid, 122 M.S.P.R. 600, ¶ 14; see Whitmore v. Department of Labor, 680 F.3d 1353, 1367-70 (Fed. Cir. 2012). ¶12 This appeal presents an issue of first impression in that, as a reemployed annuitant, the appellant served at the will of the agency, and was not entitled to the procedural protections afforded under chapter 75 of title 5. See 5 U.S.C. § 3323(b)(1); Garza v. Department of the Navy, 119 M.S.P.R. 91, ¶ 7 (2012). 9 The administrative judge found that, in light of the appellant’s at-will status, the analysis of the first Carr factor should be modified as follows: The critical inquiry for this Carr factor is the mindset of the agency official who separated the employee at the time the employee was separated. In this analysis, even if, upon subsequent investigation, the reasons the official separated a reemployed annuitant turn out to be unsupported, the agency may still prevail on this Carr factor if it can demonstrate by clear and convincing evidence that, at the time he or she took the action, the official’s belief in the reasons warranting the employee’s separation were objectively both reasonable and supportable. ID at 38-39. On review, the appellant contends that the administrative judge erred in imposing the modified standard, and that the lack of due process protections for reemployed annuitants does not affect the agency’s burden of persuasion under the clear and convincing test. PFR File, Tab 1 at 30-31. ¶13 For the following reasons, we decline to adopt the administrative judge’s analysis. First, it is not correct to state that an agency may “prevail” on the first Carr factor, or that it must establish the strength of its reasons by any particular quantum of evidence. The Board does not view the Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole.4 Alarid, 122 M.S.P.R. 600, ¶ 14; Lu v. 4 For the same reason, the appellant is mistaken in his impression that the agency must prove the elements of its charges by clear and convincing evidence. PFR File, Tab 1 at 11. In a chapter 75 adverse action appeal involving an affirmative defense of whistleblowing reprisal, proof of the agency’s charges may lend support to a finding that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosures or protected activity. See Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (finding that the administrative judge should reweigh the evidence on remand in light of the full Board’s finding that the agency proved both of its charges). This does not imply, however, that proof of the alleged misconduct is either necessary or sufficient to satisfy the agency’s overall burden, although it is relevant evidence that must be considered. Id. (reminding the administrative judge that on remand “all the relevant evidence as a whole” should be considered). 10 Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). Furthermore, we agree with the appellant that the agency’s burden of proof is not diminished by his at-will status. While it is true the appellant could have been lawfully separated with relative ease, it is not sufficient for the agency to establish that its action was justifiable; rather, the agency must show by clear and convincing evidence that it would have taken the same action in the absence of his protected activity. See 5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14; cf. Whitmore, 680 F.3d at 1374 (stating that “[t]he whistleblower statute is clear that even where the charges have been sustained and the agency’s chosen penalty is deemed reasonable, the agency must still prove by clear and convincing evidence that it would have imposed the exact same penalty in the absence of the protected disclosures”). To that end, the agency has offered an explanation that relies on specific allegations of misconduct, and the strength of the evidence supporting those allegations does not turn on the procedural protections to which the appellant was entitled. Cf. Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶¶ 30-31 (2013) (assessing the strength of the misconduct allegations underlying the appellant’s probationary termination, notwithstanding the limited procedural protections afforded to probationary employees). We therefore find no basis for departing from the traditional analysis.5 5 In considering the first Carr factor, the Board assesses the evidence as it stood at the time of the action, and in light of what the agency officials knew at the time they acted. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001). We agree with the appellant, however, that to focus exclusively on the actual beliefs held by the agency officials would be inconsistent with our obligation to consider all pertinent evidence. PFR File, Tab 1 at 31; see Whitmore, 680 F.3d at 1368. For example, if an agency official fails to investigate a charge sufficiently before bringing an action, such a failure might indicate an improper motive. Social Security Administration v. Carr, 78 M.S.P.R. 313, 335 (1998), aff’d, 185 F.3d 1318 (Fed. Cir. 1999). If, on the other hand, relevant facts are developed on appeal to the Board that the agency had no prior reason to know, we would find that such facts do not undercut the agency’s otherwise sufficiently clear and convincing evidence that, at the time of 11 ¶14 Turning to the second Carr factor, we agree with the administrative judge that the appellant’s protected activities, taken in isolation, would not have created a strong motive to retaliate on the part of either the deciding official, who issued the decision to separate the appellant, or the HRM official who assisted the deciding official in taking that action. ID at 48-49. However, the Federal Circuit, the only circuit to have addressed this issue, has cautioned us against taking too narrow a view of the second Carr factor.6 In Whitmore, 680 F.3d at 1370, the court stated “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” The court in Whitmore determined that, when a whistleblower makes highly critical accusations of an agency’s conduct that draws the attention of high-level agency managers, the fact that an agency official is “outside the whistleblower’s chain of command, not directly involved in alleged retaliatory actions, and not personally named in the whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory motive or retaliatory influence,” and that the Board should consider any motive to retaliate on the part of the agency official who ordered the action, as well as that of any officials who influenced the action. Id. at 1371. In Miller v. Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016), the court also instructed the Board not to limit its consideration of a the action, its decision would have been the same in the absence of the protected activity. Id. 6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on this issue. However, as a result of changes initiated by the Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat 1465), extended for 3 years (All Circuits Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894), and eventually made permanent (All Circuits Review Act, Pub. L. No. 115-195, 132 Stat. 1510), we must consider this issue with the view that the appellant may seek review of this decision before any appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B). 12 motive to retaliate to the appellant’s supervisors, but to examine whether a retaliatory motive could be imputed more broadly. Similarly, in Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court found that, although the deciding official did not have a personal motive to retaliate against the appellant for contradicting an agency Under Secretary, the Board’s administrative judge erred by failing to consider whether he had a “professional retaliatory motive” against the appellant because his disclosures “implicated the capabilities, performance, and veracity of [agency] managers and employees, and implied that the [agency] deceived [a] Senate Committee.” ¶15 In sum, the Federal Circuit’s decisions instruct that, in assessing Carr factor two, the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision, the Board and its administrative judges should avoid an overly restrictive analysis and should fully consider whether a motive to retaliate can be imputed to the agency officials involved and whether those officials possessed a “professional retaliatory motive,” because the whistleblower’s disclosures implicated agency officials and employees in general. In conducting this analysis, all of the record evidence relevant to whether there was a motive to retaliate and the extent of that motive must be considered.7 See Whitmore, 680 F.3d at 1368 (“[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion”). ¶16 In the instant case, we find that the administrative judge took too narrow an approach in his analysis of Carr factor two and failed to address all of the relevant record evidence. In particular, the appellant’s protected activities take 7 In Robinson, for example, the court noted that the administrative judge failed to discuss whether the deciding official had a “professional motive to retaliate,” but ultimately decided that Carr factor two slightly favored the agency based on its conclusion that the administrative judge’s crediting of the deciding official’s testimony that he lacked a motive to retaliate was “not unreasonable.” 923 F.3d at 1019-20. 13 on greater significance against the background of the tense relationship between the union and agency management in the Orlando office, which several witnesses described as “dysfunctional.” Hearing Transcript (HT) (Jan. 13, 2016) at 42 (testimony of the deciding official); HT (Jan. 14, 2016) at 261 (testimony of the third level supervisor), 409 (testimony of the union president). In addition, in a March 20, 2014 email from the deciding official to the appellant concerning the proposed location of two third-step grievance meetings, the deciding official stated: “AFGE’s unwillingness to cooperate on this issue is duly noted. I had hoped this didn’t have to be such an adversarial relationship.” IAF, Tab 51 at 14. Furthermore, the appellant’s third-level supervisor had complained to the deciding official that the union was burdening the Orlando office by filing a large volume of complaints and RFIs that took up most of management’s time. HT (Jan. 14, 2016) at 262, 264-66 (testimony of the third level supervisor). The administrative judge found that this evidence was not relevant because the deciding official and Chief of HRM did not view the activity as coming from the appellant in particular. ID at 46. However, it stands to reason that management’s frustration with the volume of union activity could extend, to at least some degree, to the appellant’s protected activities, which, though only a small portion of the whole, could nonetheless have been perceived as adding to the overall burden. This evidence of labor-management tension in the workplace may or may not support a conclusion that the second Carr factor weighs against the agency. However, by rejecting as irrelevant evidence of labor-management tension in the appellant’s working environment, the administrative judge failed to consider all of the evidence potentially pertaining to motive. ¶17 Regarding the third Carr factor, we find that, contrary to the initial decision, the record does not definitively establish that the agency has taken separation actions against reemployed annuitants who engaged in misconduct and did not engage in protected activity under 5 U.S.C. § 2302(b)(9)(B). ID at 51. At the hearing, the HRM Chief testified that she had been involved in the separation 14 of 5 to 10 other reemployed annuitants, but she did not identify what positions those employees occupied or what conduct issues they may have had. HT (Jan. 29, 2016) at 84 (testimony of the HRM Chief). She further testified that, to her knowledge, none of them was “vice president to the union.” Id. However, protected activity under 5 U.S.C. § 2302(b)(9)(B) is not solely the province of union vice presidents. Thus, while we agree with the administrative judge that the record contains no evidence that the agency does not separate reemployed annuitants who committed misconduct and did not engage in protected activity under 5 U.S.C. § 2302(b)(9)(B),8 ID at 51, the record is incomplete regarding whether the agency does, in fact, take action against individuals who committed misconduct and did not engage in protected activity under 5 U.S.C. § 2302(b)(9)(B). ¶18 As the appellant correctly observes, it is the agency that bears the burden of proving that it would have taken the same action in the absence of his protected activity. PFR File, Tab 1 at 28; see Alarid, 122 M.S.P.R. 600, ¶ 14. While the agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, the Federal Circuit has held that “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” but that the failure to produce such evidence if it exists “may be at the agency’s peril,” and “may well cause the agency to fail to prove its case overall.” Whitmore, 680 F.3d at 1374-75. Moreover, because it is the agency’s burden of 8 The appellant identified another reemployed annuitant, also a GS-12 RSVR, who did not engage in whistleblowing or union activity, and who was placed on “second signature” as a result of performance problems relating to his failure to follow policy and procedures in rating claims. HT (Jan. 29, 2016) at 248‑50 (testimony of the appellant). However, while the third Carr factor requires that the Board take into account different kinds and degrees of conduct between otherwise similarly situated employees, Whitmore 680 F.3d at 1373-74, we find that a meaningful comparison cannot be drawn between the other reemployed annuitant’s performance issues and the appellant’s conduct. 15 proof, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency. Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, the agency has introduced some comparator evidence, but its evidence is insufficient to show that the proffered comparators are in fact appropriate comparators. Under the circumstances, we find that the agency has failed to introduce complete, fully explained comparator evidence, the Federal Circuit’s admonitions in Smith and Siler apply, and Carr factor 3 does not weigh in the agency’s favor.9 ¶19 In light of our findings above, we conclude that it is necessary to conduct a new analysis of the Carr factors. We further find that the administrative judge is in the best position to do so, having heard the live testimony. See Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013). Accordingly, we remand the appeal for a new finding as to whether the agency proved by clear and convincing evidence that it would have separated the appellant in the absence of his protected activity. The administrative judge may adopt his previous factual findings and credibility determinations as appropriate.10 9 We recognize that there are different reasons why a record in a whistleblowing case might not contain relevant comparator evidence. Here, as in Smith and Siler, the reason is that the agency failed to make a sufficient proffer of such evidence. In another case, the agency may present persuasive evidence that no appropriate comparators exist. Until we are presented with that fact pattern, however, we need not decide that case. 10 On remand, the administrative judge should address documentary evidence indicating that the agency issued a directive that Automated Standardized Performance Elements Nationwide records were not to be used in determining employee performance during the period from May through August 2014. IAF, Tab 34 at 16, ¶ 9. The administrative judge also may consider whether and to what extent the medical evidence concerning the union president might lead him to revise his assessment of her credibility. 16 ORDER ¶20 We remand the appeal to the Atlanta Regional Office for further adjudication consistent with this Opinion and Order. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/SOTO_JAVIER_AT_1221_15_0157_W_1_OPINION_AND_ORDER_1917859.pdf	Appellant: Javier Soto Agency: Department of Veterans Affairs Decision Number: 2022 MSPB 6 Docket Number: AT-1221-15-0157-W-1 WHISTLEBLOWER REPRISAL PROTECTED ACTIVITY CLEAR AND CONVINCING EVIDENCE The appellant, a reemployed annuitant, was separated from Federal service by a notice stating that his “services [were] no longer required.” He filed an individual right of action (IRA) appeal with the Board, alleging that his separation constituted reprisal for his protected disclosures and activity. After a hearing, the administrative judge denied corrective action. The appellant filed a petition for review, asserting that the administrative judge should have found that he engaged in two additional activities protected under 5 U.S.C. § 2302(b)(9)(B) and that the agency failed to show by clear and convincing evidence that it would have separated him in the absence of his protected activity. Holding: The appellant did not engage in additional protected activity under 5 U.S.C. § 2302(b)(9). 1. The appellant’s reply to a proposed admonishment of another bargaining-unit member was not protected activity because there is no law, rule, or regulation granting a right to reply to a proposed admonishment. Therefore, the appellant did not assist another employee in an appeal, complaint, or grievance right granted by law, rule, or regulation. 2. The appellant’s memorandum to the deciding official objecting to a response from Human Resources Management regarding a request for information from the union did not constitute protected activity under 5 U.S.C. § 2302(b)(9)(B). The memorandum was part of the union’s effort to obtain information regarding the performance improvement plans of two bargaining-unit members, not a complaint lodged in a formal adjudicatory process, and therefore, did not meet the definition of an “exercise of any appeal, complaint, or grievance right.” Holding: The at-will status of reemployed annuitants does not alter the agency’s clear and convincing burden in an IRA appeal. 1. While an agency may lawfully separate a reemployed annuitant with relative ease, it is not sufficient for the agency to establish that its action was justifiable, rather, it must show it would have taken the same action absent the protected activity. Holding: Remand was necessary for the administrative judge to conduct a new analysis of whether the agency met its clear and convincing burden applying the factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 1. The administrative judge took too narrow a view of the second Carr factor—the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision—by failing to consider all of the record evidence, including the tense relationship between the union and agency management and management’s frustration with the volume of union activity, which could have extended to the appellant’s protected activities made in his capacity as Executive Vice President of the American Federation of Government Employees Local 1594. 2. Court decisions instruct that, in assessing Carr factor two, the Board avoid an overly restrictive analysis and fully consider whether agency officials involved possessed a “professional retaliatory motive” because the disclosures implicated agency officials and employees in general. 3. Contrary to the findings in the initial decision, Carr factor three—any evidence that the agency takes similar actions against employees who do not engage in protected activity but who are otherwise similarly situated—did not weigh in the agency’s favor because it failed to introduce complete and fully explained comparator evidence and, thus, the record was incomplete regarding whether the agency has taken action against individuals who committed misconduct but did not engage in protected activity. COURT DECISIONS PRECEDENTIAL:
04-19-2022	2022 MSPB 5	Fidelis Odoh	https://www.mspb.gov/decisions/precedential/ODOH_FIDELIS_O_CH_0731_16_0344_I_1_OPINION_AND_ORDER_1917389.pdf	Office of Personnel Management	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 5 Docket No. CH-0731-16-0344-I-1 Fidelis O. Odoh, Appellant, v. Office of Personnel Management, Agency. April 19, 2022 Janice L. Jackson, Leavenworth, Kansas, for the appellant. Joyce B. Harris-Tounkara, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the suitability determination of the Office of Personnel Management (OPM), but remanded it to OPM to decide whether the resulting suitability action was appropriate based on the sustained charge. For the reasons discussed below, we DENY the appellant’s petition for review, and AFFIRM the initial decision. BACKGROUND ¶2 In February 2015, the appellant’s private employer terminated him for sleeping on duty. Initial Appeal File (IAF), Tab 8, 54-61. In May 2015, the Department of the Army appointed him to a Recreation Specialist position. Id. 2 at 105. Two months prior to his appointment, in March 2015, he completed and electronically signed an Optional Form (OF) 306, Declaration for Federal Employment. Id. at 209-10. Among other things, he answered “no” to the question of whether during the last 5 years he had “been fired from any job for any reason.” Id. at 209. Upon reporting for his new position, in May 2015, he signed a hardcopy OF-306 containing the same response. Id. at 211-13. ¶3 In March 2016, after investigating his background and suitability, OPM instructed the Department of the Army to separate the appellant from service, cancelled his eligibility for reinstatement, cancelled his eligibility for appointment, and debarred him for a period of 3 years. Id. at 16. OPM’s negative suitability determination was based upon two charges: (1) misconduct or negligence in employment; and (2) material, intentional false statement, or deception or fraud in examination or appointment. Id. at 19-21. The Department of the Army separated the appellant effective March 26, 2016. Id. at 11. ¶4 The appellant filed the instant appeal challenging OPM’s negative suitability determination. IAF, Tab 1 at 2. After holding the requested hearing, the administrative judge remanded the matter to OPM. IAF, Tab 15, Initial Decision (ID) at 1, 9. She found that OPM only proved its second charge—material, intentional false statement, or deception or fraud in examination or appointment. ID at 5-8. Therefore, pursuant to 5 C.F.R. § 731.501(b)(2), she ordered OPM to determine whether the suitability action taken was appropriate based on that remaining charge. ID at 8-9. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response, and the appellant has replied. PFR File, Tabs 5-6. ANALYSIS ¶6 To prevail in a negative suitability determination appeal, OPM must demonstrate by preponderant evidence that the appellant’s conduct or character 3 may have an impact on the integrity or efficiency of the service, based on one of the specific factors listed in 5 C.F.R. § 731.202(b). Hawes v. Office of Personnel Management, 122 M.S.P.R. 341, ¶ 5 (2015); see 5 C.F.R. §§ 731.101(a), 731.202(a), 731.501(b). One of those factors mirrors the charge at issue in this appeal—material, intentional false statement, or deception or fraud in examination or appointment. 5 C.F.R. § 731.202(b)(3). ¶7 The Board has jurisdiction to review all aspects of a suitability determination, including whether the charged conduct renders an individual unsuitable for the position in question. Hawes, 122 M.S.P.R. 341, ¶ 5. If the Board determines that one or more of the charges brought by OPM is supported by a preponderance of the evidence, regardless of whether all specifications are sustained, it must affirm the suitability determination. Id.; 5 C.F.R. § 731.501(b)(1). If the Board sustains fewer than all the charges, the Board must remand the case to OPM to determine whether the resulting suitability action taken is appropriate based on the sustained charge. Hawes, 122 M.S.P.R. 341, ¶ 5; 5 C.F.R. § 731.501(b)(2). ¶8 The single charge that the administrative judge sustained was based upon an allegation that the appellant provided false information when he twice answered “no” in response to the question of whether he had been fired during the past 5 years, even though he had been fired from his most recent job just weeks earlier.1 IAF, Tab 8 at 19-22, 50-61, 209-13. When confronted during OPM’s investigation, the appellant attributed his responses to a misunderstanding of the question. Id. at 32. According to the appellant, he interpreted the question as asking whether he had been fired from Federal employment. Id. ¶9 OPM was required to prove, by preponderant evidence, that the appellant: (1) supplied wrong information; and (2) knowingly did so with the intention of 1 On review, neither party challenges the administrative judge’s finding that the agency failed to prove its other charge. ID at 5-6. We decline to disturb that finding. 4 defrauding, deceiving, or misleading the agency. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 10 (2014); see Hawes, 122 M.S.P.R. 341, ¶ 21 (analyzing a charge of “material, intentional false statement, or deception or fraud in examination or appointment” under the same standards as a falsification charge). The appellant does not dispute the administrative judge’s finding that he supplied wrong information, and we see no reason to disturb that finding. ID at 7-8. The appellant does, however, dispute the administrative judge’s finding of intent. PFR File, Tab 1 at 6-8. ¶10 To prove the intent element of a falsification charge, an agency must establish that the employee intended to deceive the agency for his own private material gain. Leatherbury v. Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008); Boo, 122 M.S.P.R. 100, ¶¶ 11-12 & n.3. Such intent may be established by circumstantial evidence or inferred when the misrepresentation is made with reckless disregard for the truth or with conscious purpose to avoid learning the truth. Boo, 122 M.S.P.R. 100, ¶ 10. In determining whether an agency has proven intent, the Board must consider the totality of the circumstances, including the appellant’s plausible explanation, if any. Id. Securing employment, as here, is private material gain that will support the charge. Hawes, 122 M.S.P.R. 341, ¶ 21. ¶11 In relevant part, the OF-306 asks: During the last 5 years, have you been fired from any job for any reason, did you quit your job after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by [OPM] or any other Federal agency? IAF, Tab 8 at 209. Below, the appellant argued that he answered the question on the OF-306 properly, based upon his understanding of the question. Specifically, he suggested that he understood the question to be asking about only Federal jobs. IAF, Tab 11 at 9-10; see Leatherbury, 524 F.3d at 1301 (observing that a reasonable good faith belief that a statement is true “precludes a finding that an 5 employee acted with deceptive intent”); Boo, 122 M.S.P.R. 100, ¶ 10 (observing that a plausible explanation must be considered in deciding intent). The administrative judge found that it was more likely that he sought to conceal his prior termination in order to secure employment. ID at 7-8. ¶12 On review, the appellant reasserts that the charge should not be sustained because he simply misunderstood the question. PFR File, Tab 1 at 6-8. However, we find that his disagreement with the administrative judge’s well-reasoned credibility-based findings provides no basis for disturbing the initial decision. See 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 on issues of credibility); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). As the administrative judge noted, the question includes ordinary language and is plain on its face. ID at 7-8. It asked if he had been fired from “any job for any reason.” IAF, Tab 8 at 209. We agree that the appellant’s purported interpretation of the OF-306 question was unreasonable and implausible. ¶13 We also find no merit to the appellant’s suggestion that, if the question was asking about all jobs, the inclusion of the word “Federal” was superfluous. PFR File, Tab 6 at 6-7. The question clearly asked if the appellant had “been fired from any job . . . or . . . debarred from Federal employment.” IAF, Tab 8 at 209, 212 (emphasis added). Accordingly, the appellant has failed to provide a reason for disturbing the administrative judge’s finding of intent. ¶14 The appellant next suggests that the administrative judge should have treated his appeal as a chapter 75 action and mitigated his removal to a lesser penalty. PFR File, Tab 1 at 6-9. This argument also fails. ¶15 Our reviewing court analyzed the interplay between the statutory appeal rights of tenured Federal employees for adverse actions and OPM’s suitability regulations in Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015). The court 6 concluded that an “employee,” as defined in 5 U.S.C. § 7511(a)(1), had the right to appeal an adverse action under 5 U.S.C. § 7513(d) even if that adverse action stemmed from a negative suitability determination by OPM. Archuleta, 786 F.3d at 1347-51; see Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64, ¶¶ 25-31 (2011) (reaching the same result). In such cases, the court found that the Board must conduct an independent review of OPM’s penalty in light of the relevant Douglas factors. Archuleta, 786 F.3d at 1352-53; see Aguzie, 116 M.S.P.R. 64, ¶¶ 33-34; see also Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (listing factors relevant to a determination of the appropriateness of a penalty). In reaching these conclusions, the court reasoned that Congress could have, but had not, excluded suitability-based removals from the coverage of chapter 75. Archuleta, 786 F.3d at 1348, 1351. However, Congress has since amended the relevant statute to do just that. ¶16 Pursuant to the National Defense Authorization Act for Fiscal Year 2016 (NDAA for Fiscal Year 2016), Pub. L. No. 114-92, section 1086(f)(9), 129 Stat. 726, 1010 (2015), an appealable adverse action does not include “a suitability action taken by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the President under this title for the administration of the competitive service.”2 5 U.S.C. § 7512(F). Accordingly, when OPM makes a suitability determination pursuant to its regulations, as it did here, the Board does not have the authority to adjudicate the matter as a chapter 75 adverse action, 2 The Act refers to actions taken by the “Office,” without identifying the office in question. We have reviewed the legislative history, but have similarly been unable to find any definition. See Legislative Intent and Joint Explanatory Statement to Accompany S. 1356, Pub. L. No. 114-92, 114th Cong., 1st Sess., 750 (Comm. Print 2015). However, “Office” is used elsewhere in chapter 75 to refer to OPM. 5 U.S.C. §§ 7511(b)(2)(B), (c). Therefore, we assume that it has the same meaning here. See Norman J. Singer, 2A Statutes & Statutory Construction § 47:16, at 265, 272 (6th ed. 2000) (explaining that an unclear word can be assumed to have the same meaning as clearly provided for elsewhere in a statute). 7 even if the appellant is a tenured Federal employee.3 Instead, the Board’s jurisdiction over a negative suitability determination is limited to that provided under 5 C.F.R. § 731.501, which does not extend to reviewing or modifying the ultimate action taken as a result of a suitability determination. See Folio v. Department of Homeland Security, 402 F.3d 1350, 1353, 1355-56 (Fed. Cir. 2005). Because the administrative judge sustained only one of the two charges, she properly remanded the matter for OPM to decide whether the actions taken are still appropriate.4 See id. at 1355 (observing that, under 5 C.F.R. § 731.501, the Board must remand the suitability action to OPM if it sustains one or more, but not all, of the charges). ORDER ¶17 We REMAND this appeal to OPM pursuant to 5 C.F.R. § 731.501(b)(2) to determine whether the suitability actions taken are appropriate based on the sustained charge. 3 Even if 5 U.S.C. § 7512(F) did not explicitly preclude us from addressing OPM’s negative suitability determination under chapter 75, the record demonstrates that the appellant was serving an initial 1-year probationary period in the competitive service. IAF, Tab 8 at 11, 105. Thus, he was not an “employee” with chapter 75 Board appeal rights. See 5 U.S.C. § 7511(a)(1)(A). Therefore, we do not address any question concerning the retroactivity of 5 U.S.C. § 7512(F) to the circumstances at hand, in which the misconduct occurred prior to the November 25, 2015 enactment of the NDAA for Fiscal Year 2016, but OPM took its suitability action after its enactment. See Pub. L. No. 114-92, 129 Stat. 726 (reflecting the date of enactment). Given the appellant’s status as a probationary appointee without chapter 75 appeal rights, any concerns about potential retroactivity cannot change the outcome here. 4 In his reply brief, the appellant mistakenly asserts that OPM missed the deadline for complying with the administrative judge’s instructions to decide whether the suitability actions taken are still appropriate. PFR File, Tab 6 at 5. In fact, the administrative judge instructed OPM to act within 30 days of the initial decision becoming final. ID at 9-10. Because the appellant filed a timely petition for review, the initial decision is not yet final. Id.; 5 C.F.R. § 1201.113(a). 8 ¶18 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described 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). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 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 10 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact 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 11 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 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 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 12 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/ODOH_FIDELIS_O_CH_0731_16_0344_I_1_OPINION_AND_ORDER_1917389.pdf	Appellant: Fidelis O. Odoh Agency: Office of Personnel Management Decision Number: 2022 MSPB 5 Docket Number: CH-0731-16-0344-I-1 SUITABILITY After investigating the appellant’s background and suitability for Federal employment, the Office of Personnel Management (OPM) instructed the Department of the Army to separate him from service, cancelled his eligibility for reinstatement, cancelled his eligibility for appointment, and debarred him for 3 years. OPM’s negative suitability determination was based on two charges: (1) misconduct or negligence in employment; and (2) material, intentional false statement, or deception or fraud in examination or appointment. On appeal, the administrative judge sustained only the second charge and remanded to OPM to determine whether the suitability action taken was appropriate based on the sustained charge. The appellant filed a petition for review. Holding: The agency proved by preponderant evidence its charge of material, intentional false statement, or deception or fraud in examination or appointment. 1. OPM proved that the appellant provided false information on his Optional Form (OF) 306, Declaration for Federal Employment, by answering “no” to the question of whether he had been fired from any job in the last 5 years, when he had been fired from his most recent job just weeks prior. 2. OPM proved that the appellant provided false information with the intent to deceive the agency for his own private material gain. The appellant’s purported interpretation of the OF-306 question as asking solely about prior Federal employment was unreasonable and implausible based on the plain language of the question, which asked if he had been fired from “any job for any reason.” Holding: The Board lacks the authority to adjudicate a removal based on OPM’s negative suitability determination as a chapter 75 adverse action, even if the appellant is a tenured Federal employee. 1. The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, section 1086(f)(9), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512(F) to state that an appealable adverse action does not include a suitability action taken by OPM. 2. Archuelta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015), and Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64 (2011), which held that a removal based on a negative suitability determination could be adjudicated under chapter 75, were both decided prior to Congress amending 5 U.S.C. § 7512(F) to exclude suitability actions from the list of appealable adverse actions under chapter 75. Holding: Remand to OPM is necessary because only one of OPM’s two charges is sustained and the Board lacks jurisdiction to review or modify the ultimate action taken as a result of a suitability determination.
04-13-2022	2022 MSPB 4	Garilynn Smith	https://www.mspb.gov/decisions/precedential/SMITH_GARILYNN_PH_1221_16_0010_W_1_OPINION_AND_ORDER_1915929.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 4 Docket No. PH-1221-16-0010-W-1 Garilynn Smith, Appellant, v. Department of the Army, Agency. April 13, 2022 Graig P. Corveleyn, Esquire, Hopewell, New Jersey, for the appellant. Jason Guiliano, Picatinny Arsenal, New Jersey, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which granted the appellant’s request for corrective action in this individual right of action (IRA) appeal. For the reasons set forth below, we DENY the petition and AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still granting corrective action. We modify the initial decision by applying the clear and convincing evidence standard for nondisciplinary IRA cases set forth in Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶¶ 11-12 (2006), and by directly addressing the second and third factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 2 BACKGROUND ¶2 On July 17, 2006, the appellant’s husband, a U.S. Army sergeant and explosive ordnance disposal technician, was killed in action in Iraq. Initial Appeal File (IAF), Tab 20 at 38; Hearing Transcript, Volume 1 (HT1) at 7, 18 (testimony of the appellant). Following her husband’s death, the appellant attempted to obtain information about the disposition of his remains, which had been flown to Dover Air Force Base, where they were handled by Air Force Mortuary Affairs Operations (Dover MAO) personnel. HT1 at 29-39, 121 (testimony of the appellant). On April 21, 2011,1 Dover MAO’s Deputy Commander sent the appellant a letter stating that her husband’s remains had been cremated, further incinerated by a medical disposal company, and sent to a Virginia landfill. IAF, Tab 20 at 39. ¶3 Shortly after receiving this information, the appellant notified the media and a policy advisor for U.S. Congressman Rush Holt about the mishandling of service members’ remains by Dover MAO. Id. at 40; HT1 at 42, 48 (testimony of the appellant). On December 7, 2011, The Washington Post published an article about the matter that identified the appellant by name. IAF, Tab 8 at 22-26. The following week, Representative Holt delivered a speech in the U.S. House of Representatives in which he explained that he would not vote for the National Defense Authorization Act of 2012 (NDAA) because, inter alia, it did not mention the desecration of the remains of deceased service members at Dover MAO. IAF, Tab 21 at 59-60. In his speech, Representative Holt stated that the appellant had brought the matter to his attention. Id. at 60. ¶4 During this time, the appellant was working at the agency’s Picatinny Arsenal (Picatinny) in New Jersey. IAF, Tab 4 at 19-20. The appellant served as 1 Due to an apparent typographical error, the letter is dated April 21, 2008, rather than April 21, 2011. HT1 at 40-41 (testimony of the appellant). 3 a GS-08 Management Support Assistant with the Office of the Project Manager, Maneuver Ammunition Systems (PM MAS), at Picatinny from October 2010, until March 2012, when she transferred to the Naval Sea Systems Command. Id.; HT1 at 23 (testimony of the appellant). The appellant was unhappy with her new position, however, and sought to return to PM MAS. IAF, Tab 20 at 77-79; HT1 at 76 (testimony of the appellant). On July 24 and August 14, 2012, respectively, a PM MAS Management Services Specialist notified the appellant that a GS-09 Executive Assistant (EA) at PM MAS had taken another job and that a vacancy announcement for the position was forthcoming. IAF, Tab 20 at 70, 74; HT1 at 80 (testimony of the appellant). The agency issued the vacancy announcement on September 4, 2012. IAF, Tab 4 at 40-46. ¶5 The appellant applied for the position and was one of 14 candidates on the certificate of eligibles. IAF, Tab 6 at 33-37. Shortly after the vacancy announcement closed, two additional news reports were published about the landfill issue: (1) a September 23, 2012 article in The Washington Post, which identified the appellant by name, included a photograph of her at the landfill, and stated that she was instrumental in uncovering the scandal; and (2) a September 29, 2012 article in The Army Times, which also identified the appellant by name. IAF, Tab 23 at 5-14. In early October, the selecting official canceled the vacancy announcement. IAF, Tab 17 at 13. ¶6 On October 19, 2012, the agency posted a second vacancy announcement for the EA position, which included three additional duties. IAF, Tab 4 at 30-36, 38. The appellant applied for the position and was again placed on the certificate of eligibles; however, the selecting official chose another candidate for the position. IAF, Tab 6 at 28-32, Tab 21 at 158-59. ¶7 On January 11, 2013, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that she was not selected for the EA position in reprisal for her disclosures concerning the improper disposal of human remains 4 by Dover MAO. IAF, Tab 1 at 13-21. On August 4, 2015, OSC terminated its inquiry into her allegations and issued her a close-out letter and notice of Board appeal rights. Id. at 9-12. ¶8 The appellant timely filed this IRA appeal and requested a hearing. IAF, Tab 1. The administrative judge determined that the Board had jurisdiction over the appeal. IAF, Tab 11. Following a hearing, the administrative judge issued an initial decision granting the appellant’s request for corrective action. IAF, Tab 47, Initial Decision (ID) at 1, 25. He found that the appellant proved by preponderant evidence that she made protected disclosures regarding Dover MAO’s improper handling of her husband’s remains, and that these disclosures were contributing factors in the agency’s decision not to select her for the EA position. ID at 17-22. The administrative judge also concluded that the agency failed to prove by clear and convincing evidence that it would not have selected the appellant for that position in the absence of her protected disclosures. ID at 22-24. ¶9 The agency has filed a petition for review,2 alleging that the administrative judge failed to properly admit evidence at the hearing, relied on “inadmissible” hearsay evidence in the initial decision, and improperly allowed the appellant to testify as an expert witness on mortuary affairs, yet denied the agency the opportunity to present a rebuttal expert witness. Petition for Review (PFR) File, Tab 3 at 5-16. The agency further alleges that the appellant failed to prove the contributing factor element of her whistleblower claim and that, in any event, it proved by clear and convincing evidence that it would not have selected the 2 With its petition for review, the agency submits the hearing transcript in this appeal. Petition for Review (PFR) File, Tab 3 at 21-550. Because the transcript is already part of the record, IAF, Hearing Transcript, Volumes 1-2, it does not constitute new evidence. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). 5 appellant for the EA position absent her disclosures. Id. at 16-20. The appellant has filed a response to the petition for review.3 PFR File, Tab 6. ANALYSIS4 The Board declines to dismiss the agency’s petition for review for failure to comply with the administrative judge’s interim relief order. ¶10 When, as here, the appellant was the prevailing party in the initial decision and the decision granted the appellant interim relief, any petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order. 5 C.F.R. § 1201.116(a). The agency’s failure to provide the required certification may result in the dismissal of the agency’s petition for review. 5 C.F.R. § 1201.116(e). ¶11 In her response to the agency’s petition for review, the appellant moves to dismiss the petition on the grounds that the agency has failed to provide interim 3 On July 6, 2017, the day before the agency filed its petition for review, the appellant filed a “Motion for Enforcement of Interim Relief” with the Board’s Northeastern Regional Office, alleging that the agency has failed to comply with the administrative judge’s interim relief order. Smith v. Department of the Army, MSPB Docket No. PH-1221-16-0010-C-1, Compliance File (CF), Tab 1. The regional office docketed the motion as a petition for enforcement. Id. On August 17, 2017, the administrative judge issued an initial decision in the compliance matter stating that the appellant should have filed her petition for enforcement with the Clerk of the Board instead of the regional office because the agency had a petition for review of the initial decision pending before the Board. CF, Tab 5, Compliance Initial Decision (CID) at 3 (citing 5 C.F.R. § 1201.116). The administrative judge thus dismissed the petition for enforcement and forwarded it to the Clerk of the Board for joinder with the agency’s petition for review. CID at 3. The initial decision became final on September 21, 2017, when neither party filed a petition for review. Id. at 4. We DENY the petition for enforcement because our regulations do not allow for a petition for enforcement of an interim relief order. See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 7 (2015); 5 C.F.R. § 1201.182(a)-(b). 4 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 6 relief as ordered by the administrative judge, and has failed to certify its compliance with the interim relief order. PFR File, Tab 6 at 5-6; see 5 C.F.R. § 1201.116(d). We agree with the appellant that the agency has failed to show that it has complied with the administrative judge’s interim relief order. The agency’s petition for review did not include a certification that the agency had complied with the interim relief order,5 and the agency has not presented any evidence of compliance. Moreover, although it had the opportunity to do so, the agency did not reply to the appellant’s response to the petition for review. Thus, it has not challenged the appellant’s allegations that it failed to provide interim relief.6 ¶12 Although the Board may dismiss an agency’s petition for review if the agency fails to establish its compliance with the interim relief order, it need not do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101, ¶ 11 (2013). We exercise our discretion in this case not to dismiss the petition for review because the issue of the agency’s compliance with the interim relief order is now moot by virtue of our final decision ordering corrective action. See Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016). 5 As the appellant notes on review, the agency does not mention interim relief in its petition for review. PFR File, Tab 6 at 6; see generally PFR File, Tab 1. 6 Although the agency has not addressed the compliance issue, the record in the compliance matter indicates that the appellant returned to work with the agency as a GS-09 EA on August 7, 2017. CF, Tab 4. This does not demonstrate full compliance with the interim relief order, however, as the order directed the agency to appoint the appellant to the GS-09 EA position effective as of the date of the initial decision, i.e., May 19, 2017. ID at 1, 26. 7 The appellant made protected disclosures. ¶13 Under the Whistleblower Protection Enhancement Act, at the merits stage of the appeal, the appellant must prove by preponderant evidence7 that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or activity was a contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant meets that burden, the agency is given an opportunity to prove by clear and convincing evidence8 that it would have taken the same personnel action absent the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7. ¶14 A protected disclosure is a disclosure that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Parkinson v. Department of Justice, 874 F.3d 710, 713 (Fed. Cir. 2017). A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the actions of the Government evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). The appellant need not prove that the matter disclosed actually established one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant 7 Preponderant evidence is “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q). 8 Clear and convincing evidence is “that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.” 5 C.F.R. § 1209.4(e). 8 must show that the matter disclosed was one which a reasonable person in her position would believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). ¶15 Following the hearing in this appeal, the administrative judge issued a close of record order directing the appellant to submit a brief addressing why she believed that her disclosure reported a type of wrongdoing listed in 5 U.S.C. § 2302(b)(8). IAF, Tab 37. In response, the appellant asserted that Dover MAO’s practice of sending service members’ remains to a landfill violated Department of Defense (DOD) Directive 1300.22, Mortuary Affairs Policy, paragraph 4.2, which provides that the remains of all military members “will be handled with the reverence, care, and dignity befitting them and the circumstances.” IAF, Tab 39 at 20. ¶16 The administrative judge provided the agency the opportunity to respond to the appellant’s brief, and it did so. IAF, Tabs 37, 45. In its post-hearing brief, the agency argued that the appellant did not make a protected disclosure because the DOD directive cited by the appellant does not clearly state that what occurred with the ashes in this case violated that directive or any law, policy, or regulation. IAF, Tab 45 at 5-6. ¶17 The administrative judge agreed with the appellant, and found that “dumping the ashes of [service members] into a landfill” fails to accord those remains the “reverence, care and dignity” required by the DOD directive. ID at 19-20. Therefore, the administrative judge found that the appellant made a protected disclosure by reporting conduct that violated this directive. ID at 18-20. ¶18 In the alternative, the administrative judge found that, even if Dover MAO did not violate the DOD directive, the appellant’s disclosures were nonetheless protected because she established that she reasonably believed that Dover MAO 9 had committed some violation of law, rule, or regulation when it dumped portions of her husband’s remains in a Virginia landfill. ID at 20-21. The administrative judge noted that all of the agency’s managerial witnesses, including a U.S. Army Major General, testified that they were appalled to learn how the appellant’s husband’s remains had been handled, and Representative Holt also believed that Dover MAO had treated service members’ remains in a most undignified manner. ID at 19-21. Based on this evidence and hearing testimony, the administrative judge found that a disinterested observer could reasonably conclude that the actions the appellant disclosed evidenced a violation of a law, rule, or regulation. ID at 21. Therefore, the administrative judge found, and we agree, that the appellant’s disclosures are protected. Id. The appellant proved contributing factor under the knowledge/timing test. ¶19 To prevail in an IRA appeal, an appellant also must prove by preponderant evidence that her protected disclosures were a contributing factor in a personnel action. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016). The term “contributing factor” means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action regarding the individual who made the disclosure. Id.; 5 C.F.R. § 1209.4(d). The most common way of proving the contributing factor element is the “knowledge/timing test.” Scoggins, 123 M.S.P.R. 592, ¶ 21. Under that test, an appellant may prove the contributing factor element through evidence that the official taking the personnel action knew of the disclosure and took the personnel action within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. Once an appellant has satisfied the knowledge/timing test, she has demonstrated that a protected disclosure was a contributing factor in a personnel action. Id. ¶20 Regarding the knowledge prong of the test, the administrative judge found that the evidence presented at the hearing shows that Picatinny management 10 officials were aware of the appellant’s disclosures since at least the spring of 2011. ID at 21. As for the timing prong of the test, the administrative judge found that the appellant’s disclosures, and the news reports about those disclosures, continued until September 2012, i.e., approximately 1 month before the selecting official decided not to select the appellant for the EA position.9 Id.; see Scoggins, 123 M.S.P.R. 592, ¶ 25 (finding that a personnel action that occurs within 2 years of the appellant’s disclosure satisfies the timing component of the knowledge/timing test). Therefore, the administrative judge found, the appellant clearly satisfied the knowledge/timing test. ID at 22. ¶21 The agency challenges this finding on review; however, it does not dispute that Picatinny management officials knew of the appellant’s disclosures before they decided not to select her. PFR File, Tab 3 at 16 (stating that the agency “freely admits” that it was aware of the appellant’s alleged whistleblowing prior to the personnel action in question); IAF, Tab 24 at 4-5 (same). It also does not dispute that the length of time between the appellant’s disclosures and her nonselection was sufficiently short to satisfy the timing prong of the test. PFR File, Tab 3 at 16-18. The agency contends that the appellant nonetheless failed to prove contributing factor because the knowledge/timing test also “requires a reasonable person standard as to that knowledge being a contributing factor to the personnel action” and the appellant has not met that standard. Id. at 16. ¶22 This argument is unpersuasive. As previously indicated, once an appellant has satisfied the knowledge/timing test, she has met her burden of proving contributing factor. Scoggins, 123 M.S.P.R. 592, ¶ 21. The appellant clearly has 9 Although it is unclear exactly when the agency decided not to select the appellant for the EA position, the agency contends that the appellant’s nonselection occurred on or about October 31, 2012. IAF, Tab 4 at 8. 11 satisfied that test, as it is undisputed that agency management officials knew of the appellant’s whistleblowing disclosures and made the decision not to select her within a period of time sufficiently short to satisfy the knowledge/timing test. Under these circumstances, we agree with the administrative judge that the appellant proved that her protected disclosures were a contributing factor in her nonselection. ID at 21. The agency failed to show by clear and convincing evidence that it would have nonselected the appellant for the EA position absent her protected disclosures. ¶23 When, as in this case, an appellant shows by preponderant evidence that she made protected disclosures and that those disclosures were a contributing factor in the decision to take a personnel action, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the personnel action in the absence of the whistleblowing. See 5 U.S.C. § 1221(e)(2); Scoggins, 123 M.S.P.R. 592, ¶ 26. In determining whether an agency has met its burden, the Board generally considers the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Factor (1) does not apply straightforwardly to this case, however, as the personnel action at issue here is not disciplinary in nature, and therefore does not require supporting evidence of misconduct. Gonzales, 101 M.S.P.R. 248, ¶ 12. Instead, it is appropriate to consider instead the broader question of whether the agency had legitimate reasons for the appellant’s nonselection. Id.; see Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶¶ 17, 23 (2010) (applying Gonzales in adjudicating a nonselection for a temporary position). The U.S. Court of Appeals for the Federal Circuit has further clarified that “[e]vidence only clearly 12 and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). ¶24 Regarding the first Carr factor, the administrative judge found that the agency’s explanation for not selecting the appellant lacked credibility because it was “riddled with inconsistencies” and that the agency “utterly failed to justify its selection decision.” ID at 23-24. In making this finding, the administrative judge noted that the selecting official and two other management officials testified during the hearing that the appellant was not suited for the EA position for the following reasons: (1) the appellant had problems getting along with coworkers; (2) she had “leave usage” issues; and (3) she frequently demanded teleworking arrangements. ID at 24. The administrative judge found that none of these reasons for refusing to select the appellant were supported by the evidentiary record. Id. In particular, the administrative judge found that the agency’s claim that the appellant had trouble getting along with coworkers was directly contradicted by management in the appellant’s 2010-2011 performance evaluation, as she received the highest possible rating under the category “Working Relationships & Communications.” ID at 15, 24; IAF, Tab 22 at 89. ¶25 The administrative judge further noted that the appellant’s second-line supervisor, who criticized the appellant’s ability to work with other administrative assistants and cast doubt on her leadership ability during the hearing, praised the appellant’s performance on her evaluation form. ID at 15. As the administrative judge noted, the supervisor stated in his Senior Rater comments that the appellant could be relied on to train and assist senior administrative assistants on various tasks, had the capability and desire to excel in positions well above the administrative level, and had outstanding potential to succeed in a position of higher authority and responsibility. ID at 15-16; IAF, 13 Tab 22 at 89. The administrative judge also found management’s purported concern about the appellant’s request for telework “an odd one,” given that she made the request so that she could work for the agency while she was out on maternity-related sick leave, instead of being unable to make any work-related contributions during that time. ID at 14. ¶26 On review, the agency argues that, because the appellant was applying for a GS-09 position and the performance evaluation pertains to her performance in a GS-08 position, the administrative judge should have given less weight to the appellant’s performance evaluation and more weight to the testimony of agency officials regarding their concerns about the appellant’s potential for accomplishing GS-09 level work. PFR File, Tab 3 at 18. This argument is unpersuasive. If the appellant had difficulty getting along with others, that should have been reflected in her performance evaluation. Her excellent rating in all categories, including “Working Relationships & Communications,” and the praise she received from agency management in her performance evaluation, severely undermine the legitimacy of the agency’s reasons for its decision not to select her for the EA position. Accordingly, we agree with the administrative judge’s assessment of the first Carr factor and find that the agency did not have legitimate reasons for not selecting the appellant. ¶27 We next consider the second Carr factor, the strength of any motive to retaliate on the part of any agency officials who were involved in the decision in question. As the administrative judge noted in the initial decision, although the appellant’s protected disclosures exposed misconduct by personnel from the Department of the Air Force, rather than the Department of the Army, the evidence shows that the ramifications of the appellant’s disclosures were not confined to the Air Force. ID at 22. For example, the record contains a December 6, 2011 email from a Washington Post reporter notifying the appellant of DOD personnel’s reaction to a Facebook post in which she stated that an 14 article about Dover MAO would be published soon. IAF, Tab 23 at 299. In the email, the reporter states that the appellant “gave some DoD people a heart attack” and that DOD personnel were “really worried” about the upcoming article. Id. Thus, as the administrative judge found, the record shows that the appellant’s disclosures were a source of anxiety for DOD personnel other than Air Force officials. ID at 22. Further, because Representative Holt decided not to vote for the NDAA of 2012, in part due to the appellant’s disclosures, and the NDAA provides funding to all DOD agencies, those disclosures arguably jeopardized funding for every agency in DOD. Id.; IAF, Tab 21 at 59-60. ¶28 In evaluating the second Carr factor, we also have considered the court’s decision in Whitmore, 680 F.3d at 1371, which cautioned the Board against taking an unduly dismissive and restrictive view of retaliatory motive. The Whitmore court stated that, “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Id. at 1370. Applying this broader view of retaliatory motive, the court has found that an official may have a retaliatory motive even if he is not “directly involved in the work at issue in an employee’s disclosure.” Miller v. Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016). In another case, an agency official took a personnel action against a whistleblower employee, but that official was not personally implicated in the employee’s disclosures, which concerned congressional testimony by a different agency official. The court determined that the Board’s administrative judge erred by failing to consider whether the agency official who took the personnel action nonetheless had a “professional retaliatory motive” against the employee because his disclosures regarding the alleged inaccuracy of an agency Under Secretary’s congressional testimony “implicated the capabilities, performance, and veracity of [agency] 15 managers and employees, and implied that the [agency] deceived [a] Senate Committee.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1008-09, 1018-19 (Fed. Cir. 2019). ¶29 In this matter, although none of the agency officials involved in the decision not to select the appellant was directly implicated in the mishandling of service members’ remains, the misconduct the appellant disclosed was egregious and her disclosures generated a significant amount of negative publicity for the DOD. Given these circumstances, the appellant’s disclosures reflected poorly on DOD officials as representatives of the general institutional interests of the DOD, which is sufficient to establish a retaliatory motive. See Whitmore, 680 F.3d at 1370; Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 69 (2011). We therefore find that the agency officials involved in the decision not to select the appellant had some motive to retaliate against her for her disclosures. ¶30 As for the third Carr factor, there is no record evidence concerning the agency’s treatment of similarly situated nonwhistleblowers. As previously explained, it is the agency that bears the burden of proving that it would have taken the same action in the absence of the appellant’s protected activity. Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). While the agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, and “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” the failure to produce such evidence if it exists “may be at the agency’s peril,” and “may well cause the agency to fail to prove its case overall.” Whitmore, 680 F.3d at 1374-75. Moreover, because the agency bears the burden of proof at this stage of the analysis, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot favor the agency. Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, the agency has 16 failed to proffer any evidence pertaining to Carr factor three. Under these circumstances, Carr factor 3 cannot weigh in the agency’s favor. ¶31 We therefore find that the agency did not have legitimate reasons for its failure to select the appellant for the EA position, that the agency officials involved in the decision had some motive to retaliate, and that the agency’s failure to provide evidence in support of Carr factor 3 does not favor the agency. Thus, we agree with the administrative judge that the agency failed to prove by clear and convincing evidence that it would have taken the same action absent the appellant’s protected disclosures.10 ID at 24. We therefore agree with the administrative judge’s determination that the appellant is entitled to corrective action. Id. The agency’s evidentiary arguments provide no basis to disturb the initial decision. ¶32 The agency also argues on review that the administrative judge did not follow “required evidentiary procedures” and erred in relying on documents that were not properly admitted as evidence during the hearing. PFR File, Tab 3 at 5, 7-11. In addition, the agency claims that the administrative judge improperly considered hearsay evidence, such as excerpts from Representative Holt’s speech. Id. These arguments are unavailing, as it is well settled that strict adherence to the Federal Rules of Evidence and of Civil Procedure is not mandatory in administrative proceedings, Crawford v. Department of the Treasury, 56 M.S.P.R. 10 Although the administrative judge did not explicitly address the second and third Carr factors in his analysis, we find it unnecessary to remand the appeal because resolution of the clear and convincing issue in this case does not require additional credibility determinations or further development of the record. Cf. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (finding that the administrative judge was in the best position to reweigh the evidence on the clear and convincing issue because she was the one who heard the live testimony and made credibility determinations). 17 224, 233 (1993), and hearsay evidence is admissible in Board proceedings, Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014). ¶33 The agency further argues on review that the administrative judge erred by allowing the appellant to testify as an expert in Air Force mortuary affairs policy, but not granting its post-hearing request to present rebuttal expert testimony from Dover MAO personnel familiar with the regulations at issue and the handling of remains by the Air Force. PFR File, Tab 3 at 11-16; IAF, Tab 45. The agency asserts that such testimony was necessary for the appellant to prove that Dover MAO’s handling of service members’ remains violated a law, rule, or regulation. PFR File, Tab 3 at 15. ¶34 An administrative judge has wide discretion to control the proceedings before him, to receive relevant evidence, and to ensure that the record on significant issues is fully developed. See Tisdell v. Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41(b). The hearing transcript shows that the appellant did not testify as an expert witness in mortuary affairs. Hearing Transcript, Volume 2 (HT2) at 517-26 (testimony of the appellant). Rather, the administrative judge merely questioned the appellant as to her knowledge of Dover MAO policy regarding the disposition of service members’ remains. Id. at 519-26 (testimony of the appellant). This line of questioning was entirely appropriate and agency counsel did not object to it during the hearing. Id. Also, agency counsel had the opportunity to question the appellant about her testimony, but chose not to do so. HT2 at 526 (testimony of the appellant). ¶35 Further, even assuming that expert testimony was necessary for the appellant to establish that Dover MAO’s mishandling of service members’ remains violated a law, rule, or regulation, the absence of such testimony provides no reason to disturb the initial decision because it did not affect the outcome of the case. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (explaining that an administrative judge’s procedural error is of no 18 legal consequence unless it is shown to have adversely affected a party’s substantive rights). As previously discussed, the appellant was not required to prove that a violation of law, rule, or regulation had occurred. Rather, she was required to prove that a disinterested observer could reasonably conclude that the actions of Dover MAO personnel evidenced a violation of a law, rule, or regulation. Lachance, 174 F.3d at 1381. Satisfying this standard did not require expert testimony. The agency has failed to prove its allegation of judicial bias. ¶36 The agency also raises an apparent claim of bias on review, alleging that the administrative judge “was obviously sympathetic” to the appellant and was so outraged by the mishandling of her husband’s remains that he decided to rule against the agency, regardless of the evidence. PFR File, Tab 3 at 5, 14. It further contends that, in the initial decision, the administrative judge engaged in a “shocking personal attack” on agency counsel when addressing the agency’s argument in its post-hearing brief that, because DOD Directive 1300.22 does not specify what qualifies as the “requisite care, reverence, and dignity befitting [the remains] and the circumstances . . . what we have here is more of a philosophical or theological debate than anything else.” Id. at 14. ¶37 Although the agency does not specifically identify the administrative judge’s alleged “personal attack” on agency counsel, it appears to be referring to the following statement by the administrative judge in response to the above argument: “The agency should be disabused of the notion that a landfill is a dignified resting place for the remains of a U.S. Army Soldier who gave his life in the service of his nation.” ID at 18. This statement is not a personal attack on agency counsel. Moreover, given the reprehensible manner in which Dover MOA personnel handled the remains of the appellant’s husband and other service members, we find the administrative judge’s statement to be a measured and reasonable response to the agency’s appalling suggestion that dumping service 19 members’ remains in a landfill could ever qualify as “the requisite care, reverence, and dignity befitting the remains and the circumstances.” ¶38 Further, in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if his comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012). The agency’s allegations on review, which do not relate to any extrajudicial conduct by the administrative judge, neither overcome the presumption of honesty and integrity that accompanies an administrative judge, nor establish that he showed a deep-seated favoritism or antagonism that would make fair judgment impossible. ORDER ¶39 We ORDER the agency to appoint the appellant to the position of Executive Assistant, GS-03019-09, at Picatinny Arsenal, New Jersey. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶40 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, 20 and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶41 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). ¶42 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). ¶43 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all 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. ¶44 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). 21 NOTICE TO THE 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. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL DAMAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be found at 5 C.F.R. § § 1201.202, 1201.202 and 1201.204. If you believe you meet these requirements, you must file a motion for consequential damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note 22 that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214(f). NOTICE OF APPEAL RIGHTS11 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 11 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. 23 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of 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. ____ , 137 S. Ct. 1975 (2017). If you have a 24 representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 25 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 12 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. 26 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C. DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. 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 not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job 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). 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/SMITH_GARILYNN_PH_1221_16_0010_W_1_OPINION_AND_ORDER_1915929.pdf	Petitioner: Robert Smith Respondent: General Services Administration Tribunal: U.S. Court of Appeals for the Federal Circuit Case Number: 2018-1604 Docket Number: AT-0752-17-0470-I-1 Date Issued: July 19, 2019 Adverse Action Charges - Failure to comply with IT policy - Failure to follow instructions Whistleblower Reprisal - Clear and convincing analysis Penalty The appellant filed an appeal challenging his removal and asserting that the agency retaliated against him for his disclosures of gross mismanagement and waste. In the initial decision, the administrative judge upheld the appellant’s removal based on charges of failure to comply with IT policy, failure to comply with instructions, and frequent disrespectful conduct towards his supervisors, charges he found had an “obvious nexus” to the efficiency of the service. The administrative judge also found that the appellant had shown that he was a whistleblower based on a December 2015 disclosure in a report to upper management and, based on the knowledge-timing test, that his disclosure contributed to the decision to remove him. However, the administrative judge found “based on the strength of the agency’s evidence” that the agency proved by clear and convincing evidence that it would have removed him absent any disclosure. Notably, the administrative judge found that “the defiantly disrespectful misconduct described... alone would have justified his removal, especially in light of his previous suspension for similar misconduct.” The appellant sought judicial review. The Court found that the administrative judge erred in finding the appellant’s misconduct alone justified the agency’s action because the merits of a whistleblower defense do not turn on the strength of the agency’s evidence alone. The proper inquiry, it stated, is whether the agency would have acted in the same way in the absence of the whistleblowing. The Court noted that the administrative judge did not analyze the second and third factors described in Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), in the clear and convincing analysis. In particular, the Court noted the following evidence, among other evidence, which relates to these factors, including the appellant’s large number of disclosures of management failures, some of which embarrassed agency managers, the communication restrictions and other actions imposed against him by his managers, and his punishment for working over a weekend when the record did not show whether another employee working on that same weekend was punished. The Court thus vacated the administrative judge’s whistleblower analysis and remanded for application of the proper standard and consideration of relevant evidence. The Court also reviewed the three sustained charges on which the appellant’s removal was based. With respect to the failure to comply with IT policy charge, the Court noted that the policy required users to remove PIV cards from their laptops, the appellant was trained in the IT policy, and he did not remove his PIV card. However, the Court concluded that the record lacked substantial evidence to show that this policy was applicable to the appellant, who was a quadriplegic and could not physically remove a PIV card. Therefore, the Court reversed the administrative judge’s decision to sustain this charge. The Court also addressed one of the specifications of the failure to follow instructions charge, involving the appellant’s decision to send a short email on a weekend after his supervisor instructed him not to work on a weekend. The Court noted that the administrative judge failed to discuss the propriety of the no weekend work instruction, particularly since the agency introduced no formal policy forbidding weekend work, no evidence that other employees had been instructed not to work on the weekend, and no supporting rationale for imposing the ban on the appellant alone. The Court therefore reversed the administrative judge’s decision to sustain this specification. The Court affirmed the administrative judge’s decision to sustain the remaining specifications of this charge, but it remanded for a determination of whether the charge as a whole could be sustained. The Court also affirmed the administrative judge’s decision to sustain the disrespectful conduct charge. Finally, in light of the charge and specification that were not sustained and the decision to vacate the whistleblower analysis, the Court also vacated the penalty decision and remanded to reassess the appropriate penalty, which should include consideration of the mitigating circumstances cited by the appellant and the propriety of the breadth of his supervisors’ communication bans. NONPRECEDENTIAL: Winterton v. Merit Systems Protection Board, No. 2018-1774 (Fed. Cir. July 19, 2019) (MSPB Docket No. SF-0752-18-0030-I-1): The court affirmed, per rule 36 judgment, the administrative judge’s initial decision, which dismissed the appellant’s involuntary retirement appeal for lack of jurisdiction. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv
03-31-2022	2022 MSPB 3	Chong McClenning	https://www.mspb.gov/decisions/precedential/MCCLENNING_CHONG_U_SF_0752_15_0702_I_6_OPINION_AND_ORDER_1912124.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 3 Docket No. SF-0752-15-0702-I-6 Chong U. McClenning, Appellant, v. Department of the Army, Agency. March 31, 2022 David Weiser, Esquire, Austin, Texas, for the appellant. Ryan K. Bautz, Fort Shafter, Hawaii, for the agency. Brandon Iriye, USAG Daegu, South Korea, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan A. Leavitt, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal. For the following reasons, we DENY the petition for review and AFFIRM the initial decision. We find that the appellant’s argument regarding the appointment of the administrative judge, which she raised for the first time on petition for review, is not timely raised. BACKGROUND ¶2 The appellant was employed by the agency as an Information Assurance Manager, GS-0301-12, in Daegu, South Korea. McClenning v. Department of the 2 Army, MSPB Docket No. SF-0752-15-0702-I-1, Initial Appeal File (IAF), Tab 6 at 76. In April 2015, the agency proposed the appellant’s removal for conduct unbecoming a Federal employee (six specifications), unauthorized possession of Government property (one specification), and lack of candor (six specifications). Id. at 76-87. The appellant responded to the proposed removal both orally and in writing. Id. at 21, 34-75. On May 19, 2015, the agency issued a decision sustaining all of the charges and specifications against her and removing her effective June 18, 2015. Id. at 21-32. ¶3 The appellant timely filed this appeal challenging her removal. IAF, Tab 1. She requested a hearing. Id. at 2. The administrative judge dismissed the appeal without prejudice five times between August 2015, and May 2017, pending the resolution of criminal proceedings in South Korea. McClenning v. Department of the Army, MSPB Docket No. SF-0752-15-0702-I-5, Appeal File, Tab 4, Initial Decision (May 25, 2017). On June 13, 2018, after holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming the appellant’s removal. McClenning v. Department of the Army, MSPB Docket No. SF-0752-15-0702-I-6, Appeal File (I-6 AF), Tab 52, Initial Decision (I-6 ID). The administrative judge found that the agency proved four of the six specifications of conduct unbecoming a Federal employee and all six specifications of lack of candor, but that it failed to prove either the remaining two specifications of conduct unbecoming a Federal employee or the charge of unauthorized possession of Government property. I-6 ID at 3-32. He further found that the agency established a nexus between the sustained charges and the efficiency of the service, id. at 32, and that the appellant failed to prove her affirmative defenses of a due process violation, harmful procedural error, whistleblower reprisal, or discrimination based on race, national origin, or sex, id. at 33-42. Finally, the administrative judge found that the penalty of removal was within the tolerable limits of reasonableness for the sustained misconduct. Id. at 42-46. 3 ¶4 The appellant has filed a timely petition for review of the initial decision on July 15, 2018. Petition for Review (PFR) File, Tab 1. On petition for review, she argues for the first time that the initial decision should be reversed because the administrative judge was not properly appointed under the Appointments Clause of the U.S. Constitution.1 Id. at 3. In support of that argument, she cites the decision of the U.S. Supreme Court in Lucia v. Securities & Exchange Commission, 138 S. Ct. 2044 (2018), which was issued a few days after the initial decision in this case. PFR File, Tab 1 at 3. As to the merits of the initial decision, the appellant resubmits the closing brief she filed before the administrative judge. Id. The agency has responded in opposition to the petition for review. PFR File, Tab 3. ANALYSIS The appellant did not timely raise her argument regarding the appointment of the administrative judge. Recent Supreme Court precedent does not preclude the Board from applying timeliness and issue exhaustion requirements to Appointments Clause claims. ¶5 In Lucia, the Supreme Court held that administrative law judges (ALJs) of the Securities & Exchange Commission (SEC) qualify as Officers of the United States subject to the Appointments Clause, rather than as mere employees. 138 S. Ct. at 2049, 2052-55. Because SEC ALJs were appointed by SEC staff members, rather than the Commission itself, the Court held that the appointment of those ALJs violated the Appointments Clause. Id. at 2050-51. The Court further held that because Lucia had made a timely challenge to the constitutional 1 Under the Appointments Clause, the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2. 4 validity of the appointment of the ALJ who adjudicated his case, he was entitled to relief in the form of a new hearing before a different, properly appointed official. Id. at 2055.2 ¶6 The Court in Lucia did not specifically define what constitutes a timely challenge to an appointment, but it cited Ryder v. United States, 515 U.S. 177, 182-83 (1995), in this regard. Lucia, 138 S. Ct. at 2055. In Ryder, the Court held that a challenge concerning the appointment of judges was timely because the challenging party raised it “before those very judges and prior to their action on his case.” Ryder, 515 U.S. at 182. In so finding, the Court distinguished the facts of Ryder from those of three other cases in which the challenges to the judges’ authority were untimely because they were raised after the judges had decided those cases and the complaining parties had not objected to the judges’ authority during the proceedings before them. Id. at 180-82. ¶7 Since the Supreme Court issued its Lucia decision, a number of Federal courts have considered what constitutes a timely Appointments Clause challenge regarding an administrative adjudication. Several courts have held that parties forfeit Appointments Clause claims that are not timely and properly raised before the adjudicating administrative agency. For example, courts have rejected as untimely claims that were not raised before the Department of Labor’s Benefits Review Board, as well as claims that were raised before the Benefits Review Board but that had not been raised in accordance with that entity’s regulations. Joseph Forrester Trucking v. Director, Office of Workers’ Compensation Programs, 987 F.3d 581, 587-93 (6th Cir. 2021) (rejecting as untimely an Appointments Clause claim that was raised before the Benefits Review Board, but not in earlier proceedings before a Department of Labor ALJ, contrary to Benefits 2 The holding in Lucia applied only to SEC ALJs and therefore did not address whether the Board’s method of appointing administrative judges violated the Appointments Clause, and we do not reach that question here. 5 Review Board regulations); David Stanley Consultants v. Director, Office of Workers’ Compensation Programs, 800 F. App’x 123, 127-28 (3d Cir. 2020) (nonprecedential) (holding that the employer forfeited its Appointments Clause claim when it failed to raise the claim in its opening brief to the Benefits Review Board, which is required by that entity’s regulations); Zumwalt v. National Steel & Shipbuilding Company, 796 F. App’x 930, 931-32 (9th Cir. 2019) (nonprecedential) (holding that the claimant forfeited his Appointments Clause claim when he raised it for the first time in a second reconsideration motion to the Benefits Review Board, contrary to the relevant regulations); Energy West Mining Company v. Lyle, 929 F.3d 1202, 1206 (10th Cir. 2019) (rejecting as untimely an Appointments Clause claim that was not raised before the Benefits Review Board); Island Creek Coal Company v. Bryan, 937 F.3d 738, 750-54 (6th Cir. 2019) (rejecting for failure to exhaust Appointments Clause claims that were raised for the first time in motions for reconsideration of decisions of the Benefits Review Board, contrary to its regulations and interpretation thereof). Multiple courts also have rejected Appointments Clause claims that were not first raised before the SEC. Gonnella v. Securities & Exchange Commission, 954 F.3d 536, 544-46 (2d Cir. 2020); Malouf v. Securities & Exchange Commission, 933 F.3d 1248, 1255-58 (10th Cir. 2019); Cooper v. Securities & Exchange Commission, 788 F. App’x 474, 474-75 (9th Cir. 2019) (nonprecedential). ¶8 Many of the post-Lucia Appointments Clause cases have involved claims before the Social Security Administration (SSA). In Carr v. Saul, 141 S. Ct. 1352 (2021), the Supreme Court resolved a split among the circuits and held that claimants are not required to exhaust Appointments Clause claims before SSA to preserve them for judicial review. Id. at 1362. Although Carr is controlling precedent for claims arising out of Social Security disability adjudications, we find for the reasons set forth below that it does not control in the context of Board appeals. 6 ¶9 The Court has recognized that the doctrine of administrative remedy exhaustion requires parties to first raise an issue before the appropriate administrative agency prior to seeking judicial review on that topic. Id. at 1358. It noted that, usually, rules of issue exhaustion are governed by statute or regulation. Id. (citing Sims v. Apfel, 530 U.S. 103, 107-08 (2000)). Further, proper exhaustion of claims before an administrative agency “demands compliance with [that] agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). The Board’s regulations require that issues first be raised before the administrative judge before they may be raised with the full Board on petition for review. ¶10 The issue in Carr was whether the Federal courts should recognize an issue exhaustion requirement in Social Security disability proceedings when none is specifically imposed by statute or regulation. Id. at 1358. In the instant matter, by contrast, the issue is whether an Appointments Clause claim should be subject to the Board’s existing regulations and precedent requiring parties to timely raise issues during Board adjudications. Proceedings before the Board are a key element in the “comprehensive system” established by the Civil Service Reform Act of 1978 (CSRA) “for reviewing personnel action[s] taken against [F]ederal employees.” Elgin v. Department of the Treasury, 567 U.S. 1, 5 (2012) (quoting United States v. Fausto, 484 U.S. 439, 455 (1988)). “The statutory provisions [in the CSRA] for appeals to the [B]oard give the [B]oard broad discretion in handling appeals and controlling its own docket by requiring that appeals be processed in accordance with” its regulations. Phillips v. U.S. Postal Service, 695 F.2d 1389, 1390-91 (Fed. Cir. 1982). ¶11 Under the authority granted to it by Congress in the CSRA, see 5 U.S.C. § 1204(h), the Board has prescribed regulations governing the proceedings before 7 it. Pursuant to those regulations, the Board generally does not accept arguments raised after the close of the record before the administrative judge. 5 C.F.R. § 1201.59(c). In addition, the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d). Our reviewing court, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), has consistently upheld the Board’s regulatory requirement that parties must raise arguments before the assigned administrative judge, or the full Board may properly decline to review those arguments. E.g., Carson v. Department of Energy, 398 F.3d 1369, 1376 (Fed. Cir. 2005) (finding that the Board properly declined to review a claim that was not adjudicated by the administrative judge); Bosley v. Merit Systems Protection Board, 162 F.3d 665, 668 (Fed. Cir. 1998) (concluding that a party in a Board proceeding was required to raise an issue before the administrative judge to preserve it for court review and that the court would not consider an issue raised for the first time in a petition for review to the full Board); Meglio v. Merit Systems Protection Board, 758 F.2d 1576, 1577-78 (Fed. Cir. 1984) (affirming the Board’s decision to deny a petition for review when the appellant failed to raise the salient issue before the administrative judge). As the Federal Circuit determined: the [B]oard has promulgated its regulations in accordance with the law and Congress’ desire to streamline and prevent duplicative efforts in processing employee complaints. Where petitioner fails to frame an issue before the presiding official and belatedly attempts to raise that same issue before the full [B]oard, and the [B]oard properly denies review of the initial decision, petitioner will not be heard for the first time on that issue in the Federal Circuit.3 3 Even when the Federal Circuit has exercised its discretion to allow a claim to be raised for the first time on judicial review after the completion of an administrative 8 Meglio, 758 F.2d at 1577. ¶12 Here, the appellant does not allege that she discovered new and material evidence that was previously unavailable. Rather, her argument appears to be that she discovered a new legal argument when the Supreme Court decided Lucia. In a few cases, the Board has cited intervening legal precedent as good cause for an untimely filed petition for review.4 For example, in Duft v. Office of Personnel Management, 33 M.S.P.R. 533 (1987), the Board found good cause for an untimely petition for review in light of new decisions from the Supreme Court and the Federal Circuit holding that successful appellants in retirement appeals could obtain attorney fees. In denying the appellant’s request for fees, the administrative judge had relied upon the prior binding Federal Circuit precedent holding that fees were not available in retirement cases. The Board determined that the appellant reasonably understood that it would be fruitless and costly for him to appeal that ruling at that time. Id. at 535. Thus, because the appellant had filed his petition for review shortly after learning of the change in the controlling precedent, the Board found good cause for the filing delay. Id. ¶13 In this matter, by contrast, there was no binding precedent regarding the appointment of Board administrative judges at the time the record before the adjudication, it has nevertheless required that those claims be timely raised in accordance with its procedural rules. Compare Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1326-27 (Fed. Cir. 2019) (considering an Appointments Clause claim regarding Administrative Patent Judges of the Patent and Trademark Appeals Board (PTAB) even though that claim was not raised before PTAB itself because PTAB had not and could not correct the problematic appointments itself), vacated and remanded on other grounds sub nom. United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), with Immunex Corporation v. Sanofi-Aventis U.S. LLC, 977 F.3d 1212, 1223 n.10 (Fed. Cir. 2020) (rejecting as untimely an Appointments Clause claim regarding PTAB that was raised for the first time in a reply brief filed with the Federal Circuit, rather than in the opening brief), cert denied, 141 S. Ct. 2799 (2021). 4 Although the good cause standard itself does not apply to arguments presented for the first time on petition for review, we find that the relevant standards are sufficiently similar that the Board’s precedent regarding good cause is useful to our analysis here. 9 administrative judge closed in April 2018. I-6 AF, Tab 34 at 12. Therefore, the appellant did not have grounds to believe that raising an Appointments Clause claim would have been fruitless. See Island Creek Coal Company v. Wilkerson, 910 F.3d 254, 257 (6th Cir. 2018) (rejecting the argument that Appointments Clause challenges lacked merit until the Supreme Court decided Lucia). By the time the record closed before the administrative judge in this appeal, one court of appeals had already held that SEC ALJs are inferior officers subject to the Appointments Clause, Bandimere v. Securities & Exchange Commission, 844 F.3d 1168 (10th Cir. 2016), reh’g and reh’g en banc denied, 855 F.3d 1128 (10th Cir. 2017), cert. denied, 138 S. Ct. 2706 (2018), and the Supreme Court had granted certiorari to address that issue in Lucia v. Securities & Exchange Commission, 138 S. Ct. 736 (U.S. Jan. 12, 2018) (No. 17-130). Thus, we hold that the appellant’s purported discovery of a new legal theory is insufficient to justify her failure to raise the Appointments Clause argument before the administrative judge. See In re DBC, 545 F. 3d 1373, 1377-79 (Fed. Cir. 2008) (rejecting a newly discovered Appointments Clause argument raised for the first time on judicial review because the party failed to raise it first before the administrative board). ¶14 In addition to the general standards for raising new arguments after the close of the record, the Board’s regulations impose particular requirements on litigants who wish to challenge the qualifications of the individual assigned to hear their cases. Specifically, a party seeking to disqualify a judge must file a motion to disqualify as soon as the party has reason to believe there is a basis for disqualification and, if the administrative judge denies that motion, the party must request certification of an interlocutory appeal or the disqualification issue is considered waived. 5 C.F.R. § 1201.42(b)-(c); see Thomas v. Office of Personnel Management, 350 F. App’x 448, 451 (Fed. Cir. 2009) (finding that the appellant 10 had waived her request for recusal of the administrative judge by failing to comply with the provisions of 5 C.F.R. § 1201.42).5 In the absence of this requirement, a party before a Board administrative judge who believed there was a basis for disqualification could wait until after the initial decision was issued and then seek disqualification on petition for review if the initial decision was unfavorable. Allowing such gamesmanship by parties would waste the Board’s resources to the extent that disqualification of an administrative judge after the initial decision would result in relitigation of the appeal. The same policy considerations that support the Board’s regulation regarding the procedures for raising disqualification claims also support our decision here regarding the appellant’s Appointments Clause claim. As recognized in Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring in part and concurring in the judgment), the trial phase of a case is when the litigants’ arguments first must be raised and considered; permitting an Appointments Clause claim to be raised for the first time on appeal would encourage “sandbagging,” i.e., for strategic reasons, allowing the trial court to pursue a certain course only to argue on appeal that it constituted reversible error if the outcome of the case was unfavorable. ¶15 We acknowledge that courts have on occasion considered Appointments Clause claims even if those claims were not timely raised under normal standards. See, e.g., Freytag, 501 U.S. at 878-89 (considering an Appointments Clause challenge regarding Special Trial Judges of the Tax Court even though the litigant failed to raise that challenge before the Tax Court itself). However, the courts have never held that an Appointments Clause challenge must be heard in any case regardless of when it is raised; to the contrary, the courts have used language 5 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 11 suggesting that consideration of an untimely Appointments Clause claim should be done only in “rare cases.” See id. at 879; In re DBC, 545 F.3d at 1380 (concluding that the Supreme Court never stated that Appointments Clause challenges must be heard regardless of waiver). Under the circumstances presented in this matter, we are not convinced that this qualifies as one of those “rare cases.” ¶16 The Board’s regulations reserve to it the authority to consider any issue in an appeal before it. 5 C.F.R. § 1201.115(e). Pursuant to that authority, we may exercise our discretion to consider an untimely Appointments Clause claim in an appropriate case. However, we find no basis to exercise that discretion on the facts of this case. The issue exhaustion requirements set forth in the Board’s regulations are justified based on the adversarial nature of its proceedings. ¶17 In declining to require Social Security claimants to exhaust Appointments Clause claims before the agency, the Court in Carr noted several characteristics about Social Security disability adjudications that make an issue-exhaustion rule inappropriate in that context. First, the Court noted that whereas typical administrative review schemes have issue-exhaustion requirements imposed by statute or regulation, SSA was asking the Court to impose a judicially-created requirement. Carr, 141 S. Ct. at 1358. The Court held that whether a court should impose a requirement of issue exhaustion “depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Id. (quoting Sims, 530 U.S. at 109). ¶18 The Court in Carr relied on the nonadversarial nature of Social Security disability adjudications in determining that an issue exhaustion requirement was inappropriate in that context. It explained that the justification for requiring issue exhaustion is greatest when it is expected that the parties will develop the issues in an adversarial administrative proceeding, but that the rationale for requiring issue exhaustion is much weaker when the administrative proceeding is not 12 adversarial in nature. Carr, 141 S. Ct. at 1359 (citing Sims, 530 U.S. at 110). The Court noted that in proceedings before SSA, the ALJ is responsible for developing the factual record and arguments both for and against granting benefits, and the Commissioner has no representative before the ALJ opposing the benefits claim. Carr, 141 S. Ct. at 1359 (citing Sims, 530 U.S. at 111). ¶19 The Board’s regulations establish a procedure that is much more adversarial. The parties are responsible for developing the factual record and presenting their evidence and arguments to the administrative judge. Unlike SSA disability proceedings, both parties may be represented before the Board. 5 C.F.R. § 1201.31. Further, the parties each must meet their respective burdens of proof in establishing their claims and defenses. 5 C.F.R. §§ 1201.56-.57. An appellant initiates a Board proceeding by filing an initial appeal that must include a statement of the reasons why the appellant believes the agency action at issue is wrong. 5 C.F.R. § 1201.24(a)(4). The agency’s response to the appeal must include a statement of the reasons for the action and all documents contained in the agency’s record of the action. 5 C.F.R. § 1201.25(b). The parties are expected to start and complete discovery with minimal intervention from the Board. 5 C.F.R. §§ 1201.71-.75. The appellant may generally raise additional claims or defenses before the end of the conference(s) held to define the issues in the case; after that point, the appellant may raise additional claims or defenses only upon a showing of good cause. 5 C.F.R. § 1201.24(b). The appellant generally has a right to a hearing at which both parties present their cases. 5 C.F.R. §§ 1201.24(d), 1201.51, 1201.58. Once the record in an appeal closes, either after the hearing or, if the appellant waived the hearing, on the deadline set by the administrative judge for written submissions, the Board will not accept additional evidence or argument unless there is a showing that it was not readily available before the record closed or that it is in rebuttal to new evidence or argument submitted by the other party just before the close of the record. 5 C.F.R. § 1201.59(a)-(c). A petition for review of an initial 13 decision must state the party’s objections to the initial decision supported by references to applicable laws and regulations and specific references to the factual record. A party submitting new evidence or argument on petition for review must explain why such evidence or argument was not presented before the close of the record below. 5 C.F.R. § 1201.114(b). ¶20 The Board’s regulations make clear that, unlike Social Security disability proceedings, Board appeals are adversarial in nature. In such circumstances, “the rationale for requiring issue exhaustion is at its greatest.” Carr, 141 S. Ct. at 1359 (quoting Sims, 530 U.S. at 110). The circumstances of the instant case are otherwise distinguishable from those set forth in Carr. ¶21 The Court in Carr noted two additional factors in support of allowing Social Security claimants to raise Appointments Clause claims for the first time in Federal court. First, the Court noted that “agency adjudications are generally ill suited to address structural constitutional challenges, which usually fall outside the adjudicators’ area of technical expertise.” Carr, 141 S. Ct. at 1360. Second, the Court recognized a futility exception to exhaustion requirements when agency adjudicators would be powerless to grant the relief requested. Id. at 1361. The Court specifically highlighted the fact that SSA’s administrative review scheme did not afford claimants access to the Commissioner, “the one person who could remedy their Appointments Clause challenges.” Id. We find that neither of these factors apply to Board proceedings. ¶22 First, consideration of constitutional claims, such as the Appointments Clause claim at issue here, is consistent with the Board’s role in adjudicating appeals. The comprehensive system under the CSRA applies to constitutional claims, whether facial or as-applied. Elgin, 567 U.S. at 12-23. Thus, parties are required to bring even their facial constitutional challenges to the Board, despite the fact that the Board “has repeatedly refused to pass upon the constitutionality of legislation.” See id. at 16 (citing Malone v. Department of Justice, 14 14 M.S.P.R. 403 (1983)). A party’s failure to raise a constitutional claim before the Board generally precludes the party from raising that claim for the first time when seeking judicial review of the Board’s decision. See Hansen v. Department of Homeland Security, 911 F.3d 1362, 1369 (Fed. Cir. 2018) (declining to address a Fourth Amendment claim not raised before the Board). The requirement that a party exhaust his administrative remedies by first raising a constitutional claim during an administrative agency’s proceeding before raising it in court has two main purposes: (1) to provide the administrative agency with the opportunity to correct its own errors regarding the programs it administers before being brought into Federal court, and thereby “discourage[] disregard of the agency’s procedures”; and (2) to promote judicial efficiency because claims typically are resolved faster and more economically during administrative agency proceedings than they are in Federal court litigation. Woodford, 548 U.S. at 89-90. Thus, the “unnecessary expenditure of the administrative resources of the original Board panel, the judicial resources of th[e] court, and the substantial delay and costs incurred” in the litigation may be avoided. In re DBC, 545 F. 3d at 1378-79.6 As explained previously, for similar reasons, the Board’s regulations provide that all issues must first be raised before the administrative judge before the full Board will consider them. 5 C.F.R. §§ 1201.59(c), 1201.115(d); see Freytag, 501 U.S. at 895 (Scalia, J., concurring in part and concurring in the judgement). ¶23 Additionally, it would not have been futile for the appellant to timely raise an Appointments Clause claim before the administrative judge. Had the appellant raised the Appointments Clause issue to the administrative judge before the close of the record, the administrative judge could have certified the question for 6 Our reviewing court has recognized the value in having the Board address a constitutional claim before the court considers it. See, e.g., Helman v. Department of Veterans Affairs, 856 F.3d 920, 936 n.8 (Fed. Cir. 2017) (finding that whether the Board’s administrative judges are inferior officers for purposes of the Appointments Clause is “more appropriately dealt with by the [Board] in the first instance”). 15 interlocutory appeal to the Board. See 5 C.F.R. §§ 1201.42(b)-(c), 1201.91. The interlocutory appeal process permits the Board members, who are appointed by the President and confirmed by the Senate, 5 U.S.C. § 1201, to address an issue while an appeal is still pending before an administrative judge. 5 C.F.R. § 1201.91. Thus, the interlocutory appeal process permits a party raising an Appointments Clause claim to present that claim to the Board’s principal officers. ¶24 Indeed, by the time the record closed before the administrative judge in this appeal, another litigant before the Board had raised an Appointments Clause claim before the administrative judge in his appeal. Flynn v. Securities & Exchange Commission, MSPB Docket No. DC-1221-14-1124-M-1, Motion to Vacate (Feb. 14, 2018). After initially dismissing the appeal without prejudice, the administrative judge issued an order in April 2019, certifying the Appointments Clause issue for interlocutory appeal. Flynn v. Securities & Exchange Commission, MSPB Docket No. DC-1221-14-1124-M-4, Order and Certification for Interlocutory Appeal (Apr. 23, 2019).7 Thus, there is reason to believe that, if the appellant here had timely raised her Appointments Clause claim before the close of the record before the administrative judge, the administrative judge issue would have certified the issue for interlocutory appeal 7 Another appellant before the Board raised an Appointments Clause claim in two separate initial appeals filed shortly after the initial decision was issued in this appeal. Jolley v. Department of Housing & Urban Development, MSPB Docket No. AT-4324-18-0576-I-1, Initial Appeal (June 25, 2018), MSPB Docket No. AT-4324-19-0041-I-1, Initial Appeal (Oct. 15, 2018). The administrative judge also certified the Appointments Clause issue for interlocutory appeal in both of those matters. Jolley v. Department of Housing & Urban Development, MSPB Docket Nos. AT-4324-18-0576-I-2 & AT-4324-19-0041-I-1, Order and Certification for Interlocutory Appeal (Apr. 23, 2019). Parties that have timely raised the Appointments Clause issue in other appeals have generally had their appeals dismissed without prejudice to refiling once the Board decides the interlocutory appeals or otherwise addresses the Appointments Clause issue. See, e.g., Alvarez v. Department of Health & Human Services, MSPB Docket No. DC-0432-19-0122-I-4, Initial Decision (June 23, 2021). 16 and the Board would have had an opportunity to address the administrative judge’s appointment before he issued an initial decision on the merits of the appeal. ¶25 For the foregoing reasons, the instant appeal is dissimilar to Carr. Because the appellant failed to comply with the Board’s regulations by first raising the Appointments Clause issue before the administrative judge, we will not address the merits of the appellant’s Appointments Clause claim raised for the first time on petition for review. The appellant has not provided any basis to disturb the initial decision. ¶26 As to the merits of the initial decision, the appellant resubmits the closing argument she submitted to the administrative judge. PFR File, Tab 1 at 3, 8-58. However, the administrative judge considered the appellant’s closing argument and addressed it throughout his initial decision. A petition for review that merely repeats arguments made below does not meet the criteria for Board review, and we find no basis to disturb the explained findings of the administrative judge. See Tigner-Keir v. Department of Energy, 20 M.S.P.R. 552, 553 (1984); 5 C.F.R. § 1201.115. We therefore deny the petition for review. ORDER ¶27 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 17 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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: 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 18 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 19 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the 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 you wish to challenge the Board’s rulings on your whistleblower claims only, excluding all other issues, then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of 20 appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 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. 9 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. 21 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/MCCLENNING_CHONG_U_SF_0752_15_0702_I_6_OPINION_AND_ORDER_1912124.pdf
03-29-2022	2022 MSPB 2	Rodney Cowan	https://www.mspb.gov/decisions/precedential/COWAN_RODNEY_CB_1216_16_0018_T_1_OPINION_AND_ORDER_1911389.pdf	Office of Special Counsel	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 2 Docket No. CB-1216-16-0018-T-1 Special Counsel, Petitioner, v. Rodney Cowan, Respondent. March 29, 2022 Erica S. Hamrick, Esquire, Washington, D.C., for the petitioner. Bryan Delius, Esquire, Sevierville, Tennessee, for the respondent. BEFORE Raymond A. Limon, Vice Chair Tristian L. Leavitt, Member OPINION AND ORDER ¶1 This case is before the Board on interlocutory appeal from the administrative law judge’s order staying the proceedings and certifying his ruling that the parties’ Modified Settlement Agreement cannot be approved because it is inconsistent with Board precedent and prohibitions in the Hatch Act set forth at 5 U.S.C. § 7323(a). For the following reasons, we REVERSE the administrative law judge’s ruling, GRANT the parties’ joint motion to approve the agreement, FIND, based on stipulations in the agreement, that the respondent violated the Hatch Act by being a candidate for election to a partisan political office while he was a full-time employee of the U.S. Postal Service (USPS), ORDER USPS to 2 suspend the respondent without pay for 180 days consistent with the terms of the agreement, and DISMISS this matter as settled. BACKGROUND ¶2 The Office of Special Counsel (OSC) initiated this proceeding by filing a complaint for disciplinary action against the respondent for violating the Hatch Act, which generally restricts the political activity of Federal employees. Complaint File (CF), Tab 1 at 4. Specifically, OSC alleged that the respondent violated 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304 by being a candidate for the partisan political office of County Commissioner of Sevier County, Tennessee, in the 2014 general election while he was a full-time USPS employee at the Seymour Post Office located in Sevier County, Tennessee. CF, Tab 1 at 5. ¶3 After the matter was assigned to an administrative law judge for adjudication, the parties filed a joint motion for approval and enforcement of their settlement agreement. CF, Tab 3. Under the terms of the agreement, the respondent admitted that he violated the Hatch Act’s prohibition against being a candidate for partisan political office while being a full-time USPS employee during the 2014 general election, and he agreed and accepted that, as a penalty for his action, he would be suspended without pay from his USPS position for 180 days. Id. at 7-8. OSC agreed not to reinstitute this Hatch Act complaint absent a material breach of the terms of the settlement agreement. Id. at 8. The parties requested that the administrative law judge approve the agreement, order USPS to suspend the respondent without pay for 180 days, enter the agreement into the record so that the Board will retain jurisdiction to ensure compliance with the agreement, and dismiss the complaint with prejudice as settled. Id. at 5-6. ¶4 The administrative law judge raised concerns with the parties about the validity of the agreement because the respondent had been elected to and continued to hold the state office. CF, Tab 5. The administrative law judge ordered the parties to file written submissions addressing whether the Hatch Act 3 and Board precedent permit a settlement agreement allowing a respondent to maintain both a Federal and state-elected position, “which generated a Hatch Act complaint before the Board.” Id. at 3. The administrative law judge further ordered that, if the parties maintained that such a settlement is permitted, then they must modify the proposed settlement agreement to include language specifying whether the respondent may retain both positions. Id. ¶5 OSC responded that the Hatch Act permits a settlement agreement allowing a respondent to maintain his Federal position and an elected office that was won in violation of the Hatch Act.1 CF, Tab 6. OSC explained that the Hatch Act does not prohibit a Federal employee from holding an elected office but rather prohibits a Federal employee from running for the nomination or as a candidate for the election to a partisan political office. Id. at 4-5 (citing 5 U.S.C. § 7323(a)(3); 39 U.S.C. § 410(b)(1)). OSC argued that Board precedent did not require a Federal employee to vacate an elected office as a condition of a settlement agreement and that, to the extent language in prior Board decisions may have suggested otherwise, such language was not controlling after the Hatch Act Modernization Act of 2012 (Modernization Act), Pub. L. No. 112-230, 126 Stat. 1616 (2012), which increased the Board’s discretion in imposing appropriate penalties for Hatch Act violations. CF, Tab 6 at 5-6. OSC asserted that the 180-day suspension is a substantial penalty within the range of permissible penalties under the Modernization Act. Id. at 7. OSC submitted a Modified Settlement Agreement, executed by OSC and counsel for the respondent, which included provisions that, “because the Hatch Act does not prohibit [the respondent] from holding the elective County Commissioner office, [OSC] will not pursue additional disciplinary action against him for continuing to hold the office” and that, “should [the respondent] again become a candidate for 1 The respondent did not file any separate response. 4 partisan political office while employed in a Hatch Act-covered position, such action would constitute an additional violation of the Hatch Act for which OSC would pursue disciplinary action against him.” Id. at 10-11. ¶6 The administrative law judge found that the Modified Settlement Agreement is inconsistent with the Hatch Act and Board precedent indicating that holding an elected office is an aggravating factor in determining the penalty for a Hatch Act violation. CF, Tab 7 at 2, 4-7 (citing Special Counsel v. Bradford, 62 M.S.P.R. 239 (1994), as modified on recons., 69 M.S.P.R. 247 (1995)). The administrative law judge further found that the Modernization Act does not support allowing an individual who knowingly violates the Hatch Act to retain both his Federal employment and elected position obtained by the violation. Id. at 7-11. The administrative law judge disapproved the settlement agreement and certified his ruling for interlocutory review by the Board. Id. at 11. ANALYSIS The administrative law judge properly certified an interlocutory appeal. ¶7 An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a Board proceeding. 5 C.F.R. § 1201.91. The Board’s regulations permit a judge, on his own motion, to certify an interlocutory appeal if the issue presented is of such importance to the proceeding that it requires the Board’s immediate attention. Id. The ruling must involve an important question of law or policy about which there is substantial ground for difference of opinion. 5 C.F.R. § 1201.92. Further, the circumstances must be such that either an immediate ruling will materially advance the completion of the proceeding or the denial of an immediate ruling will cause undue harm to a party or the public. Id. We find these requirements are satisfied here. The Board has not addressed the issue presented since the enactment of the Modernization Act, and an immediate ruling avoids the potential for the unnecessary expenditure of the parties’ and the Board’s resources in litigating matters that, in the interest of justice and judicial 5 economy, can be appropriately resolved on the existing record pursuant to the parties’ settlement agreement. The parties’ Modified Settlement Agreement is valid. ¶8 Under 5 U.S.C. § 7323(a)(3), a Federal employee may not “run for the nomination or as a candidate for election to a partisan political office.” It is not the holding of the office that violates the Hatch Act but rather partisan candidacy for that office. E.g., Special Counsel v. Bradford, 69 M.S.P.R. 247, 249 (1995). The prohibition against such a candidacy applies to USPS employees such as the respondent. See 39 U.S.C. § 410(b)(1); Special Counsel v. Lewis, 121 M.S.P.R. 109, ¶ 2, aff’d, 594 F. App’x 974 (Fed. Cir. 2014). ¶9 OSC investigates allegations of such prohibited political activity and may seek disciplinary action by filing a complaint with the Board. 5 U.S.C. §§ 1215(a)(1)(B), 1216. If the Board finds the employee has engaged in prohibited political activity, current law provides that the Board “may impose” the following penalties: (1) “disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand”; (2) “an assessment of a civil penalty not to exceed $1,000”; or (3) any combination of such disciplinary actions and civil penalty. 5 U.S.C. §§ 1215(a)(3)(A), 7326. ¶10 The Board favors the use of settlements to avoid the unnecessary expenditure of resources and litigation. Special Counsel v. Giles, 56 M.S.P.R. 465, 467 (1993). A settlement must be freely entered and lawful on its face before the Board will give it any effect. See id.; Special Counsel v. Reckard, 69 M.S.P.R. 130, 132 (1995). There are additional considerations when, as here, the settled Board proceeding is based on a disciplinary action complaint brought by OSC and the employing agency is not a party to the settlement agreement. See Special Counsel v. Evans-Hamilton, 29 M.S.P.R. 516, 517 n.1 (1984). In such a situation, the Board must exercise its statutory penalty authority to direct the nonparty, employing agency to effect any agreed upon and approved discipline. 6 Id. The Board may reject a settlement of a disciplinary action complaint if it provides for a penalty outside the scope of permissible penalties for a Hatch Act violation. Reckard, 69 M.S.P.R. at 132. ¶11 Here, the parties have asked the Board to accept their settlement agreement under which the respondent would be suspended from his USPS position without pay for 180 days. A suspension is within the scope of permissible penalties the Board may impose under current law for a Hatch Act violation. 5 U.S.C. § 1215(a)(3)(A). We find nothing in the statute that requires an employee to relinquish the elected position before the Board may impose an authorized penalty less than removal. See 5 U.S.C. §§ 1215, 7323. ¶12 Prior to the enactment of the Modernization Act, the Board’s penalty authority for Hatch Act violations was more restricted. Prior law required that an individual found to have violated the Hatch Act would be removed from his Federal position unless the Board found by unanimous vote that the violation did not warrant removal. Lewis, 121 M.S.P.R. 109, ¶ 20. If that unanimous finding was made, the Board could direct the Federal employing agency to impose a suspension of not less than 30 days. Id.; e.g., Special Counsel v. Zanjani, 21 M.S.P.R. 67, 69 (1984). A respondent found to have violated the Hatch Act bore the burden of presenting evidence showing that the presumptive penalty of removal should not be imposed. Lewis, 121 M.S.P.R. 109, ¶ 20. ¶13 Given these prior restrictions, the Board generally would not accept a settlement of a Hatch Act complaint that would result in a penalty less than removal of the Federal employee unless the record contained stipulations or admissions as to the circumstances of the violation or to relevant mitigating or aggravating factors. See Special Counsel v. Baker, 69 M.S.P.R. 36, 39 (1995); Zanjani, 21 M.S.P.R. at 69. In that context, the Board would, as in the Bradford case cited by the administrative law judge, take into account an employee’s refusal to relinquish his elected position as an aggravating factor in determining the appropriate penalty for a Hatch Act violation. Bradford, 69 M.S.P.R. at 250. 7 Conversely, an employee’s decision to forgo the elected position could be considered a mitigating factor. See Special Counsel v. DeWitt, 113 M.S.P.R. 458, ¶¶ 3, 6-7 (2010); Special Counsel v. Pierce, 85 M.S.P.R. 281, ¶¶ 2-5 (2000). To the extent, however, that such pre-Modernization Act cases could be read as imposing a requirement that a Federal employee relinquish an elected office as a condition of accepting a settlement providing for the suspension, rather than removal, of the employee from Federal service, we find that such a requirement would not apply under current law. ¶14 Under current law, removal is no longer the presumptive penalty for a Hatch Act violation, and a unanimous vote of the Board is no longer required to impose a penalty of less than removal. Lewis, 121 M.S.P.R. 109, ¶¶ 20-21. Further, the range of appropriate penalties has been expanded to encompass a broader array of lesser disciplinary actions, identical to the range of penalties available when OSC brings a complaint for disciplinary action based on a prohibited personnel practice. 5 U.S.C. § 1215(a)(3)(A); Lewis, 121 M.S.P.R. 109, ¶ 21; see S. Rep. No. 112-211, as reprinted in 2012 U.S.C.A.A.N. 750, 754-55. When adjudicating a complaint under the Modernization Act, the Board will apply the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in determining the proper penalty for a Federal employee’s violation of the Hatch Act. Lewis, 121 M.S.P.R. 109, ¶ 23. ¶15 We find, however, that a Douglas factors analysis is not required under the Modernization Act before the Board may accept and approve a settlement agreement that would result in a disciplinary action short of removal for a violation of 5 U.S.C. § 7323. The Board has not required such an analysis before accepting settlements in another analogous situation within its original jurisdiction: disciplinary actions against administrative law judges. By statute, certain disciplinary actions against administrative law judges may be taken “only for good cause established and determined by the [Board] on the record after opportunity for hearing.” 5 U.S.C. § 7521. In such matters, the choice of penalty 8 is for the Board, which will look to the relevant Douglas factors as guidance in making its decision. E.g., Social Security Administration v. Steverson, 111 M.S.P.R. 649, ¶ 18 (2009), aff’d, 383 F. App’x 939 (Fed. Cir. 2010). The Board has relied on stipulations in a settlement agreement to find good cause for disciplining an administrative law judge and has authorized agreed-upon penalties that are lawful on their face without engaging in an independent analysis of the Douglas factors. See Social Security Administration v. Liebling, 71 M.S.P.R. 465, 466-67 (1996); Social Security Administration, Department of Health & Human Services v. Givens, 27 M.S.P.R. 360, 361-62 & n.2 (1985). ¶16 We find that the Modified Settlement Agreement has been freely entered into by the parties and is lawful on its face. The parties’ stipulations are sufficient to establish that the respondent violated the Hatch Act, 5 U.S.C. § 7323(a)(3), and the discipline to which the respondent has agreed (a 180-day suspension without pay), is within the range of statutorily authorized penalties for such a violation, see 5 U.S.C. §§ 1215(a)(3)(A), 7326. We find no basis for concluding that settlement of the complaint on the agreed terms would be against the interest of justice or prejudicial to the respondent or any other interested party. ORDER ¶17 Accordingly, we APPROVE the parties’ Modified Settlement Agreement, ENTER it into the record for enforcement purposes, and DISMISS this matter with prejudice as settled. ¶18 We ORDER the USPS to suspend the respondent without pay for 180 days. We ORDER the Office of Special Counsel to notify the Board within 30 days of this Opinion and Order whether the respondent has been suspended as ordered. This is the final decision of the Merit Systems Protection Board in this matter. 5 C.F.R. § 1201.126. 9 NOTICE TO THE PARTIES OF THEIR ENFORCEMENT RIGHTS If the petitioner or the respondent has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the Office of the Clerk of the Board. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182; see 5 C.F.R. § 1201.121(b)(2). NOTICE OF APPEAL RIGHTS You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 10 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 11 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 12 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board's disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.2 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. 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. 2 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 13 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/COWAN_RODNEY_CB_1216_16_0018_T_1_OPINION_AND_ORDER_1911389.pdf
03-24-2022	2022 MSPB 1	Tahuana Bryant	https://www.mspb.gov/decisions/precedential/BRYANT_TAHUANA_SF_315H_17_0558_I_1_OPINION_AND_ORDER_1910305.pdf	Department of the Army	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2022 MSPB 1 Docket No. SF-315H-17-0558-I-1 Tahuana Bryant, Appellant, v. Department of the Army, Agency. March 24, 2022 Tahuana Bryant, Pearl City, Hawaii, pro se. Teresa M. Garcia, Fort Shafter, Hawaii, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member OPINION AND ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s termination for lack of due process. For the reasons discussed below, we GRANT the agency’s petition for review, VACATE the initial decision, and DISMISS the appeal for lack of jurisdiction. BACKGROUND ¶2 The agency appointed the appellant to the position of Nurse effective June 13, 2016. Initial Appeal File (IAF), Tab 4 at 41. The original Standard Form 50 (SF-50) documenting this appointment indicated that it was subject to a 1-year probationary period. Id. Several months later, the agency issued another 2 SF-50, correcting the earlier one to instead indicate that the appointment was subject to a 2-year probationary period. Id. at 40. ¶3 In a letter dated June 9, 2017, the agency explained that it was terminating the appellant during her probationary period for failing to meet conditions of her employment and delay in carrying out instructions. Id. at 13-14. However, the agency did not effectuate her termination until July 10, 2017, more than 1 year, but less than 2 years, after her initial appointment. Id. at 12. ¶4 The appellant filed the instant appeal, suggesting that her termination was improper because she was on leave for medical reasons during much of the relevant period. IAF, Tab 1 at 5. The administrative judge issued an acknowledgment order, instructing both parties to address whether the Board has jurisdiction over the instant appeal. IAF, Tab 2. In response, the agency argued that the termination was outside the Board’s jurisdiction. IAF, Tabs 4-6. The appellant did not respond. Subsequently, the administrative judge issued an initial decision that reversed the agency’s action. IAF, Tab 7, Initial Decision (ID). She found that the appellant met the definition of an “employee” with Board appeal rights under chapter 75 because she had completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. ID at 3. The administrative judge further found that the agency did not provide the appellant with an opportunity to respond to her termination letter, and thus deprived her of due process. ID at 4. ¶5 The agency has filed a petition for review, reasserting that the Board lacks jurisdiction over the appellant’s termination. Petition for Review (PFR) File, Tab 1. The appellant has filed a response. PFR File, Tab 4. She also has filed what she titles as a petition for enforcement, questioning whether the agency provided full interim relief. PFR File, Tab 3. 3 ANALYSIS The agency has submitted sufficient evidence of compliance with the interim relief order. ¶6 The appellant’s petition for enforcement is denied because the Board’s regulations do not allow for a petition for enforcement of an interim relief order. Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016); see 5 C.F.R. § 1201.182(a)-(b) (providing for petitions for enforcement of final Board orders). We instead consider the appellant’s pleading as a challenge to the agency’s certification of compliance. Elder, 124 M.S.P.R. 12, ¶ 20; 5 C.F.R. § 1201.116(b). Therein, the appellant asserts that the agency should pay her back pay from the effective date of her termination. PFR File, Tab 3 at 4. However, she is mistaken. ¶7 When, as here, the appellant was the prevailing party in the initial decision and interim relief was ordered, a petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order. Elder, 124 M.S.P.R. 12, ¶ 18. When a petition for review is filed, an agency is required to pay back pay and associated benefits from the date on which the initial decision was issued. 5 U.S.C. § 7701(b)(2)(A); Sanders v. Department of Homeland Security, 122 M.S.P.R. 144, ¶ 8, aff’d per curiam, 625 F. App’x 549 (Fed. Cir. 2015). Here, the agency certified that it instructed the appellant to return to work effective October 20, 2017, the date of the initial decision. PFR File, Tab 1 at 10-15. With its petition for review, the agency filed the email in which it instructed the appellant to return to duty, and a Standard Form 52 reflecting her reinstatement effective October 20, 2017. Id. at 12-15. The Board previously has found such evidence sufficient to establish compliance with an interim relief order. Caryl v. Department of Treasury, 53 M.S.P.R. 202, 206 (1992). Additionally, with her petition for enforcement, the appellant provided evidence that the agency was processing her back pay and benefits between October 20 and November 27, 2017, the date the agency instructed her to report 4 to duty. PFR File, Tab 1 at 15, Tab 3 at 4, 11, 13-17. Because there is no dispute that the agency was in the process of providing the appellant with this relief at the time it filed its petition for review, we deny the appellant’s request for additional back pay and benefits, and consider the agency’s petition for review.1 The appellant was terminated during her 2-year probationary period. ¶8 The definition of an employee with adverse action appeal rights to the Board under chapter 75 is found at 5 U.S.C. § 7511(a)(1). Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶ 7 (2014). That section provides that an individual appointed to a competitive-service position is an employee with appeal rights if she “is not serving a probationary or trial period under an initial appointment,” or “has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.” Id. On November 25, 2015, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2016 (2016 NDAA), Pub. L. No. 114-92, 129 Stat. 726 (2015). The 2016 NDAA added an exception to the definition of employee. Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified as relevant here at 10 U.S.C. § 1599e (2016) and 5 U.S.C. § 7511(a)(1)(A)(ii) (2016)). The amended statute defined a competitive-service “employee” for purposes of chapter 75 appeal rights as follows: (A) an individual in the competitive service— (i) who is not serving a probationary or trial period under an initial appointment; or (ii) except as provided in section 1599e of title 10, who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less[.] 5 U.S.C. § 7511(a)(1)(A)(i)-(ii) (emphasis added). 1 Neither party has indicated whether the appellant did, in fact, return to duty on November 27, 2017. 5 Section 1599e provided, inter alia, that individuals appointed to a permanent competitive-service position at the Department of Defense (DOD) were subject to a 2‑year probationary period and only qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of current continuous service.2 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). On December 27, 2021, President Biden signed into law the National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period for DOD appointments made on or after December 31, 2022. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. ¶9 As the agency correctly argues on review, the administrative judge failed to recognize 10 U.S.C. § 1599e and the aforementioned amendment to 5 U.S.C. § 7511(a)(1)(A)(ii) (2016), instead relying on the latter as it previously was written. PFR File, Tab 1 at 7-8; ID at 3. Taking those statutes into account, it is evident that the appellant was not an “employee” with chapter 75 appeal rights. Because the appellant was appointed on June 13, 2016, before the effective date that the 2016 NDAA was repealed, she was subject to a 2-year probationary period. IAF, Tab 4 at 41. She had not yet completed a 2-year probationary period or 2 years of current continuous service in her competitive-service position 2 For purposes of 10 U.S.C. § 1599e, the “Department of Defense” included the Department of the Army. See 10 U.S.C. § 101(a)(6) (defining DOD for title 10 as including “the executive part of the department, including the executive parts of the military departments, and all field headquarters, forces, reserve components, installations, activities, and functions under the control or supervision of the Secretary of Defense, including those of the military departments”), (8) (defining the military departments as including the Departments of the Army, Navy, and Air Force). Because the term being defined here is “Department of Defense” under title 10, this situation is distinguishable from those in which the Board has found that a military department is a separate “agency” from DOD for purposes of title 5. See, e.g., Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶¶ 5-8 (2013) (explaining that the Department of the Air Force and DOD are separate and independent agencies for purposes of the right to compete provision of the Veterans Employment Opportunities Act of 1998). 6 when the agency terminated her employment. IAF, Tab 4 at 12-14, 40-41. Therefore, her termination appeal is outside the Board’s jurisdiction. ¶10 The appellant does not present any argument concerning the effect of the aforementioned statutes.3 Instead, she simply reasserts that she completed 1 year of current continuous service before her removal, and that 1 year was all that was required to satisfy her probationary period. PFR File, Tab 4 at 4. In doing so, the appellant points to the vacancy announcement and the original SF-50 that followed her appointment, each of which reflected that the position required only a 1-year probationary period. IAF, Tab 4 at 41; PFR File, Tab 4 at 8. Nevertheless, the statutes control the Board’s jurisdiction in this case, not the agency’s misstatements. See Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (recognizing that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation); Grigsby v. Department of Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984) (finding that an “SF-50 is not a legally operative document controlling on its face an employee’s status and rights”); see also Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210, ¶ 13 (2009) (explaining that an agency’s erroneous notification of appeal rights cannot expand the Board’s limited jurisdiction); cf. Williams v. Merit Systems Protection Board, 892 F.3d 1156, 1162-63 (Fed. Cir. 2018) (recognizing that an agency’s failure to advise an employee that he would lose his Board appeal rights if he voluntarily transferred to a different position did not create appeal rights). The controlling statutes clearly establish that the threshold for the appellant to become a permanent competitive-service employee with chapter 75 appeal rights was 2 years. Absent 3 The appellant also states no basis for invoking the Board’s limited regulatory jurisdiction over probationary terminations, despite being informed of the same. IAF, Tab 2 at 2-3; see 5 C.F.R. § 315.806 (providing for Board jurisdiction over claims that a competitive-service probationary appointee’s termination was for certain prohibited reasons). 7 jurisdiction over the appellant’s termination, we cannot review whether the agency denied her due process. See Smith v. Department of Defense, 106 M.S.P.R. 228, ¶ 13 (2007) (explaining that the Board has no jurisdiction to review constitutional claims that are not coupled with independently appealable actions). We therefore must vacate the initial decision and dismiss the appeal for lack of jurisdiction. ORDER ¶11 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 9 judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 10 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 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 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: 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. 11 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.	https://www.mspb.gov/decisions/precedential/BRYANT_TAHUANA_SF_315H_17_0558_I_1_OPINION_AND_ORDER_1910305.pdf	Issuance Date: February 24, 2022 Title 38 U.S.C. § 714 Whistleblowing Reprisal The agency removed Mr. Bryant under 38 U.S.C. § 714 on a charge of conduct unbecoming a Federal employee. In the decision letter, the deciding official found that “the charge as stated in the notice of proposed removal was supported by substantial evidence.” The deciding official sustained the proposed removal without mentioning the Douglas factors. Mr. Bryant filed a Board appeal, in which he contested whether the charged misconduct occurred and whether removal was an appropriate penalty under the Douglas factors. He also raised an affirmative defense of whistleblowing reprisal. The administrative judge found that the agency proved the charge by substantial evidence, and upheld the removal penalty. However, like the deciding official, the administrative judge did not conduct a Douglas factors analysis. The administrative judge further found that Mr. Bryant failed to establish his affirmative defense. The initial decision subsequently became the final decision of the Board. On appeal to the Federal Circuit, Mr. Bryant argued that the agency’s decision was flawed because the deciding official applied a substantial evidence standard instead of determining whether the charge was established by a preponderance of the evidence, as required under Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir 2021). Mr. Bryant further argued that the Board’s decision to uphold the penalty was contrary to law because the agency and the Board failed to properly consider the Douglas factors, as required under Connor v. Department of Veterans Affairs, 8 4th 1319 (Fed. Cir. 2021). Finally, Mr. Bryant contested the Board’s findings on his affirmative defense. Holding: Applying Rodriguez and Connor, the court vacated the portion of the Board’s decision that sustained the charge and penalty and remanded for further proceedings under the correct legal standard. The court affirmed the portion of the Board’s decision finding that the appellant failed to prove his defense of whistleblowing reprisal. 1. The court explained that it held in Rodriguez that the agency may not use a “substantial evidence” standard in taking an action under § 714. Rather, under § 714, the agency must use a “preponderance of the evidence” standard in determining whether the alleged misconduct occurred. The references to “substantial evidence” in § 714 “are all explicitly directed to the standard of review to be applied by administrative judges and the Board.” 2. Because the deciding official used the incorrect standard of proof in reaching the final decision, the court vacated for further proceedings under the correct legal standard. The court suggested that this would involve a remand to the agency: “Presumably those further proceedings will include the Board requiring the VA’s deciding official to determine whether the evidence as to the charge against Mr. Bryant satisfied the requisite preponderance-of-the-evidence standard of proof.” 3. The court further found that the Board’s penalty analysis was legally erroneous under Connor, because the Board (and the agency) failed to apply the Douglas factors. Accordingly, for that independent reason, the court vacated the penalty portion of the Board’s decision and remanded for further proceedings under the correct legal standard. Because the court was remanding the case under Rodriguez in any event, the court declined to address the agency’s argument that the failure of the agency and the Board to consider the Douglas factors was harmless error. 4. Finally, the court found no basis for disturbing the Board’s conclusion that Mr. Bryant failed to show that his whistleblowing activity was a contributing factor to the personnel action. Accordingly, the court affirmed the Board’s decision with respect to the affirmative defense. NONPRECEDENTIAL: Allbee v. Department of Homeland Security, No. 21-1608 (Fed. Cir. Feb.22, 2022) (DA-0752-20-0238-I-1) The agency removed the appellant from his Supervisory Border Patrol Agent position for unauthorized travel expenses (25 specifications), making unauthorized cash withdrawals on a government travel card, and failure to cooperate in an official investigation. On appeal, the administrative judge (AJ) found that the agency proved only charge 1, and only 20 of the 25 underlying specifications. However, the AJ determined that the agency had demonstrated a nexus between Mr. Albee’s misconduct and the efficiency of the service, and that the removal penalty was reasonable. On appeal to the Federal Circuit, the appellant argued the following: (1) that the AJ erred in ruling that the agency did not have to prove that the appellant had fraudulent intent when he submitted the vouchers at issue in charge 1; (2) that the AJ erred in finding that the agency proved 20 of the 25 specifications by a preponderance of the evidence; (3) that the agency failed to demonstrate a nexus between the misconduct alleged in charge 1 and the efficiency of the service; and (4) that the AJ erred in finding that the removal penalty was reasonable. Regarding the first argument, the court agreed with the AJ that neither the charges nor the underlying specifications referred to any intent on the part of Mr. Albee. The court further found that the AJ’s findings on the 20 sustained specifications of charge 1 were supported by substantial evidence. The court also agreed with the AJ that the agency established nexus, and found that, contrary to the appellant’s arguments, the 6-year delay between the misconduct and the removal was not relevant to determining nexus. Finally, the Board agreed with the AJ that the agency had considered the relevant Douglas factors and that the penalty of removal was reasonable. MSPB \| Case Reports \| Recent Decisions \| Follow us on Twitter \| MSPB Listserv

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