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Case Report - January 23, 2026 | 01-23-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_23_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_23_2026.pdf | Case Report for January 23, 2026
BOARD DECISIONS
Appellant: Michael Sopko
Agency: Department of Veterans Affairs
Decision Number: 2026 MSPB 1
Docket Number: DC-4324-21-0052-I-4
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:
Petitioner: Jeremy H. Conklin
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2025-1613
MSPB Docket Number: SF-3330-23-0499-I-1
Issuance Date: January 22, 2026
USERRA/VEOA/VETERANS' RIGHTS
The petitioner, a physician and preference-eligible veteran, applied to
a position with the Veterans Health Administration (VHA) but was not
selected. After filing an unsuccessful complaint with the Department
of Labor, he challenged his nonselection before the Board under the
Veterans Employment Opportunities Act of 1998 (VEOA) arguing that
the agency had violated his hiring-preference rights in evaluating his
application. The Board dismissed the appeal for lack of jurisdiction
finding that VHA physician appointments are not subject to VEOA.
Holding: The Board correctly found that VHA physician appointments
are not subject to the provisions of VEOA.
(1) Pursuant to 38 U.S.C. §§ 7401, 7403(a), the VHA may appoint
certain healthcare-related professionals, including physicians,
“without regard to civil-service requirements.”
(2) In a prior precedential decision, Scarnati v. Department of
Veterans Affairs, 344 F.3d 1246 (Fed. Cir. 2003), the Federal
Circuit interpreted the phrase “civil-service requirements” as
used in § 7403(a) to include 5 U.S.C. § 3330a, thereby finding
that VHA physician appointments are not subject to VEOA. The
court found that this precedent “directly applies” to the
petitioner’s situation.
(3) The court considered, but found unpersuasive, the petitioner’s
arguments that (1) the statutory language of 38 U.S.C. § 7403(f)
requires the agency to apply Title 5 veterans’ preference
provisions when hiring physicians and (2) any contrary
interpretation of § 7403(f) is violative of the Equal Protection
Clause of the Fifth Amendment.
NONPRECEDENTIAL:
Smith v. Department of Veterans Affairs, No. 2025-1591 (Fed.
Cir. Jan. 21, 2026) (CH-0714-23-0143-I-1) The court affirmed the
Board’s decision, which affirmed the petitioner’s removal based
on charges of conduct unbecoming a Federal employee and failure
to meet position requirements. The court considered the
petitioner’s arguments that (1) the Board failed to properly
consider mitigating factors and (2) he was denied due process;
however, it found his arguments unpersuasive.
McKinnis v. Department of the Interior, No. 2024-1136 (Fed. Cir.
Jan. 22, 2026) (DA-1221-18-0200-W-1) The court affirmed the
Board’s decision, which denied corrective action in the
petitioner’s individual right of action appeal. The court
considered, but found unavailing, the petitioner’s claims that the
Board erred in finding that (1) a grievance he filed did not
constitute a protected disclosure or activity and (2) a protected
written disclosure was not a contributing factor in any of the
personnel actions at issue. | 6,251 | |
Case Report - January 20, 2026 | 01-20-2026 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_20_2026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_20_2026.pdf | Case Report for January 20, 2026
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Nicholas J. Palmeri
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: No. 2024-1918
MSPB Docket No. DC-0752-22-0341-I-1
Issuance Date: January 13, 2026
JURISDICTION
STATUTORY/REGULATORY/LEGAL CONSTRUCTION
The petitioner retired from his Senior Executive Service (SES) position
with the Drug Enforcement Administration (DEA). He appealed to the
Board, alleging that his retirement was involuntary. The Board
dismissed his appeal for lack of jurisdiction, holding that the DEA SES
lacks Board appeal rights.
Holding: Members of the DEA SES lack adverse action appeal rights to
the Board. Any such appeal must be heard pursuant to regulations
promulgated by the Attorney General.
1. The Civil Service Reform Act of 1978 (CSRA) divided civil service
employees into three main categories, including the SES,
competitive service, and excepted service. The CSRA specifically
excluded certain agencies, including the Federal Bureau of
Investigation (FBI) and the DEA, from the SES. Thus, when Title 5
of the U.S. code refers to the SES, that term excludes any
employees of the DEA or FBI.
2. In 1988, Congress established an independent SES for employees
of the FBI and DEA. Interpreting the plain text of the relevant
statutes and authorities, the court recognized that the FBI-DEA
SES is separate and distinct from the broader SES, and that Board
procedures for the broader SES do not apply to the FBI-DEA SES,
except as provided for by statute.
3. Although 5 U.S.C. § 3151 provides some standard SES rights to the
FBI-DEA SES, such as the right to posttermination notice and an
opportunity to respond, it does not provide the right to a
posttermination hearing or appeal to the Board. Instead, it
provides “that any hearing or appeal to which a member of the
FBI-DEA [SES] is entitled shall be held or decided pursuant to
procedures established by regulations of the Attorney General.”
5 U.S.C. § 3151(a)(5)(D). No such regulations have been
promulgated.
4. The court stated that the petitioner is not without a remedy and
that, if he wishes to compel the Attorney General to promulgate
the necessary regulations, he may petition for rulemaking
pursuant to 5 U.S.C. § 553(e). If he wishes to assert constitutional
claims, i.e., that he was denied due process, he may proceed in
district court.
5. The court rejected the petitioner’s argument that he should
retain Board appeal rights because the agency did not notify him
that he would lose such rights upon his promotion from GS-15 into
the DEA SES.
NONPRECEDENTIAL:
Resumadero v. Office of Personnel Management, MSPB Docket No. SF
0831-22-0093-I-1, No. 2025-1361 (Fed. Cir. Jan. 12, 2026). The court
dismissed as untimely the appellant’s petition challenging a Board order
affirming the Office of Personnel Management’s finding that she is not
entitled to a Civil Service Retirement System survivor annuity. Even
assuming equitable tolling applied, the petitioner did provide any facts
to support such a finding.
Madigan v. Department of the Navy, MSPB Docket No. SF-0752-22-0069-I
1, No. 2024-1815 (Fed. Cir. Jan. 12, 2026). The court affirmed the
Board’s decision affirming the petitioner’s removal from Federal service
for one charge and 55 specifications of failure to follow instructions.
The court found that the Board’s decision was supported by substantial
evidence.
Duvuvuei v. Merit Systems Protection Board, MSPB Docket No. CH-0752
19-0405-I-1, No. 2024-2263 (Jan. 14, 2026). The court affirmed the
Board’s decision dismissing the petitioner’s appeal as untimely filed by 1
day without good cause shown. The court did not consider arguments in
the petitioner’s brief that were not timely raised before the Board.
Farley v. Merit Systems Protection Board, MSPB Docket No. DA-1221-25
0189-W-1, No. 2025-1827 (Fed. Cir. Jan. 15, 2026). The court affirmed
the Board’s dismissal of the petitioner’s individual right of action
appeal, including its finding that equitable tolling did not apply under
t he circumstances. | 4,115 | |
Case Report - December 19, 2025 | 12-19-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_19_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_19_2025.pdf | Case Report for December 19, 2025
COURT DECISIONS
PRECEDENTIAL:
Petitioner: David Scott Brimer
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2024-1388
MSPB Docket No.: AT-3330-21-0119-I-1
Issuance Date: December17, 2025
Veterans Employment Opportunities Act of 1998 – Right to Compete
The petitioner is a preference-eligible veteran, employed by the agency
as a GS-13 Supervisory Human Resources Specialist. The
petitioner applied for a promotion to a GS-14 position under a
merit promotion vacancy announcement that was open to
“[c]urrent permanent employees, [Veterans Employment
Opportunities Act of 1998 (VEOA)] eligibles, and DoD Military
Spouse Preference (MSP) eligibles.”
The agency did not refer the petitioner’s application to the selecting
official because it erroneously determined that he had failed to
demonstrate that he met the time-in-grade requirements for the
promotion. The Board issued a final decision in which it denied the
petitioner’s request for corrective action on the basis that he was
already a current Federal employee, and so the right to compete under
5 U.S.C. § 3304(l)(1) did not apply to him.* The petitioner sought
judicial review.
Holding: The court affirmed the Board’s final decision, holding that
5 U.S.C. § 3304(l)(1) does not apply to current Federal employees.
1. Under 5 U.S.C. § 3304(l)(1), certain veterans, including
preference eligibles, “may not be denied the opportunity to
compete for vacant positions for which the agency making the
announcement will accept applications from individuals outside
its own workforce under merit promotion procedures.”
2.
In Kerner v. Department of the Interior, 778 F.3d 1336
(Fed. Cir. 2015), the court held that the purpose of VEOA
was to help veterans gain access to Federal employment—
not provide preferential treatment in promotion decisions.
Therefore, the right to compete in 5 U.S.C. § 3304(l)(1)
does not require agencies to apply the veterans’ preference
requirements of 5 U.S.C. § 3311 to merit promotion
selections.
3. The petitioner argued that the court should interpret Kerner
narrowly as holding only that preferential treatment, rather than
the fundamental right to compete, does not flow through
5 U.S.C. § 3304(l)(1) to current employees. The court disagreed,
finding that it had reached its ultimate holding in Kerner by
limiting § 3304(l) to veterans who are not already employed by
the Federal government.
4. The petitioner argued in the alternative that the court should
clarify or overrule Kerner. The court declined to do so on the
basis that prior precedential panel decisions are binding on
* At the time that the petitioner applied for the promotion, the statutory
right to compete was located at 5 U.S.C. § 3304(f)(1). Both the court’s
and the Board’s decisions cite to that subsection of the code.
Subsequently, the statute was amended, relocating the right to compete
clause unchanged to 5 U.S.C. § 3304(l)(1).
future panels unless or until they are overruled by the court
sitting en banc.
5. The petitioner argued that Kerner is inconsistent with the court’s
prior decisions in Lazaro v. Department of Veterans Affairs,
666 F.3d 1316 (Fed. Cir. 2012), and Joseph v. Federal Trade
Commission, 505 F.3d 1380 (Fed. Cir. 2007). The court
disagreed, finding that it had not reached in Lazaro and Joseph
the issue that it decided in Kerner.
NONPRECEDENTIAL:
Kulkarni v. Merit Systems Protection Board, No. 2025-1597 (Fed.
Cir., Dec. 15, 2025) (DE-1221-19-0157-W-1). The court affirmed
the Board’s final decision that dismissed the petitioners’
individual right of action appeals for lack of jurisdiction. The
petitioners failed to make a nonfrivolous allegation that they
made a protected disclosure. The court granted the Board’s
motion to strike the petitioners’ reply briefs on the basis that
they cited to “non-existing case law” and
“mischaraceriz[ed]... existent cases.” | 3,951 | |
Case Report - December 5, 2025 | 12-05-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_5_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_5_2025.pdf | Case Report for December 5, 2025
BOARD DECISIONS
Appellant: Michelle Shows
Agency: Department of the Treasury
Decision Number: 2025 MSPB 5
Docket Number: DC-0752-22-0160-I-3
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.
Appellant: Rosemary Jenkins
Agency: United States Postal Service
Decision Number: 2025 MSPB 6
Docket Number: DC-0752-11-0867-M-1
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:
Petitioner: Miguel P. Reyes
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 24-1717
Issuance Date: November 21, 2025
The petitioner, a former police officer with the Department of Veterans
Affairs (VA), entered into a settlement agreement with the VA in 2013,
resolving a Board appeal of his removal. The Board entered the
settlement agreement into its record for enforcement purposes. In
January 2018, the petitioner filed a petition for enforcement (PFE) of
the settlement agreement with the Board, arguing that the VA breached
the terms of the settlement agreement when it did not provide him with
a neutral employment reference.
In his PFE, he alleged that he received a conditional job offer for a
position with the Department of Homeland Security (DHS) that was
subject to completion of a satisfactory background investigation by
OPM. He received a copy of OPM’s background investigation in
November 2016, which reported that a VA Human Resources Officer told
OPM that “per a binding legal agreement, [she] was only allowed to
release [the petitioner’s] dates of employment.” In September 2017, he
received a letter from DHS revoking his conditional job offer. On
January 10, 2018, he informed the VA of the alleged breach, and he
subsequently filed his PFE, on January 18, 2018.
The administrative judge dismissed the PFE as untimely because the
petitioner was aware of the breach 14 months earlier based on the OPM
background investigation. The Board affirmed the dismissal. The
petitioner sought circuit court review.
Holding: The court reversed and remanded, holding that it was not
unreasonable for the petitioner to wait to file the PFE until he
suffered harm from the breach.
(1) The court noted the general rule in Kasarsky v. MSPB, 296 F.3d 1331,
1335 (Fed. Cir. 2002), that PFE alleging a breach of a settlement
agreement must be filed within a reasonable amount of time of the date
the petitioning party becomes aware of the breach of the agreement.
(2) The court found that, under the circumstances of the case, however, it
was not unreasonable for the petitioner to wait until he knew there was
harm from the alleged breach.
(3) The court then considered the four-month period after he was aware of
the harm until he filed his PFE and found that it also was reasonable
under the circumstances.
NONPRECEDENTIAL:
Senter v. Department of Energy, No. 25-1304 (Fed. Cir.
Nov. 21, 2025)
(MSPB Docket No. DA-0752-20-0434-I-1). The court affirmed the Board’s
decision affirming the petitioner’s removal for failure to meet a
condition of his employment. It found that substantial evidence
supported the Board’s finding that the petitioner failed to prove that he
was entitled to a waiver of the physical fitness qualification that was a
condition of his employment.
Bryant v. Merit Systems Protection Board, No. 24-2310 (Fed. Cir.
Nov.
26, 2025) (MSPB Docket No. DC-315H-23-0143-I-1). The court affirmed
the Board’s final order that dismissed the petitioner’s probationary
termination appeal for lack of jurisdiction.
Ferrell v. Department of the Interior, No. 25-1533 (Fed. Cir. Dec. 1,
2025) (MSPB Docket No. AT-1221-22-0459-W-1). The court affirmed the
Board’s final decision that denied the petitioner’s request for corrective
action pursuant to the Whistleblower Protection Enhancement Act. The
court determined, among other things, that the Board did not abuse its
discretion when it excluded the petitioner’s witnesses as a sanction and
that substantial evidence supported the Board’s findings regarding the
Carr factors.
Soto v. United States Postal Service, No. 25-1275 (Fed. Cir. Dec. 2,
2025) (MSPB Docket No. NY-0752-23-0059-I-1). The court affirmed the
Board’s decision sustaining the petitioner’s removal. The court was
unpersuaded by the petitioner’s primary argument on appeal that the
Board lacked chapter 75 jurisdiction to hear his case because he had
filed a union grievance before filing his Board appeal.
Hornberger v. Merit Systems Protection Board, No. 25-1156 (Fed. Cir.
Dec. 2, 2025) (MSPB Docket No. DC-3443-24-0906-I-1). The court
affirmed the Board’s decision dismissing the petitioner’s appeal of a
Library of Congress decision for lack of jurisdiction because the
petitioner was employed in the Legislative Branch and did not hold a
position within the competitive service.
Miller v. Department of the Air Force, No. 25-1380 (Fed. Cir. Dec. 3,
2025) (MSPB Docket No. DA-0752-21-0010-I-1). The court affirmed the
Board’s decision sustaining the petitioner’s removal after her security
clearance was revoked. The court found no error in the Board’s
determination that a security clearance was a requirement of her
position. It found that it lacked the authority to review any challenge
to the Air Force’s classification of her position or the Department of
Defense’s determination that her eligibility to occupy such a position
had been revoked.
Stevenson v. Department of Veterans Affairs, No. 25-1191 (Fed. Cir.
Dec. 3, 2025) (MSPB Docket No. DA-0714-19-0524-C-1). The court
affirmed the Board’s decision denying a petition for enforcement of a
Board order. The court found that the Board’s decision that the
petitioner was not entitled to back pay because he had not shown that
he was “ready, willing, and able” to work was supported by substantial
evidence—namely, OPM’s decision to grant a FERS disability retirement
a nnuity commencing the day after his removal. | 11,083 | |
Case Report - November 21, 2025 | 11-21-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_21_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_21_2025.pdf | Case Report for November 21, 2025
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Joseph Simone
Respondent: Secretary of Homeland Security
Tribunal: U.S. Court of Appeals for the Eleventh Circuit
Case Number: 23-11411
Issuance Date: October 17, 2025
AVIATION AND TRANSPORTATION SECURIT ACT
REHABILITATION ACT OF 1973
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
The petitioner was a Transportation Security Officer for the agency’s
Transportation Security Administration (TSA). His major duties
included airport screening of passengers and baggage. The agency
removed the petitioner for failure to maintain medical qualifications,
and the petitioner filed a disability discrimination suit in Federal
district court under the Rehabilitation Act of 1973.
The district court dismissed the appeal for failure to state a claim upon
which relief can be granted. Specifically, the court found that the
petitioner’s requested relief was precluded by the Aviation and
Transportation Security Act, which exempts the TSA from the
requirements of the Rehabilitation Act.
The petitioner sought circuit court review.
Holding: The court reversed and remanded, holding that the TSA is
subject to the requirements of the Rehabilitation Act pursuant to the
Whistleblower Protection Enhancement Act of 2012 (WPEA).
1. The Aviation and Transportation Security Act provides in relevant
part that the TSA may hire screeners “[n]otwithstanding any
other provisions of law.” 49 U.S.C. § 44935 note. The court had
interpreted this language to mean that the TSA need not take
the requirements of the Rehabilitation Act into account when
formulating hiring standards for screeners.
Castro v.
Department of Homeland Security, 472 F.3d 1334, 1337-38 (11th
Cir. 2006).
2. However, in 2012, Congress enacted the WPEA, providing in
relevant part that “[n]otwithstanding any other provision
of law, any individual holding or applying for a position
within the [TSA] shall be covered by... (1) the provisions
of [5 U.S.C. §] 2302(b) (1).” 5 U.S.C. § 2304(a). Section
2302(b)(1), in turn, prohibits among other things discrimination
“on the basis of handicapping condition, as prohibited under
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).”
3. The court found that these provisions of the Transportation
Security Act and the WPEA could not be reconciled; the former
purports to exempt the TSA from the Rehabilitation Act and the
latter purports to mandate that the TSA follow the Rehabilitation
Act. In the face of this conflict, the court found that the WPEA
controls: “When two statutes irreconcilably conflict, we must
give effect to the later statute as repealing the prior, even if
that repeal occurs by implication.” The court concluded that its
prior decision in Castro was abrogated by the WPEA.
NONPRECEDENTIAL:
Akerman v. Merit Systems Protection Board, No. 2025-1314 (Fed.
Cir., Nov. 14, 2025) (DC-1221-25-0140-W-1). The court affirmed
the administrative judge’s decision that dismissed the appeal for
lack of jurisdiction. The court found that the petitioner was
collaterally estopped from establishing jurisdiction over his
appeal because the jurisdictional issues were identical to those
in a previous appeal involving the same parties, and those issues
had been fully litigated. The court concluded that the
petitioner’s argument that the Board denied him interlocutory
certification was moot because the Board’s proceedings had
ended. | 3,436 | |
Case Report - November 18, 2025 | 11-18-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_18_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_18_2025.pdf | Case Report covering the period from
September 26, 2025, to November 14, 2025
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Director of the Office of Personnel Management
Respondents: Ronald L. Moulton & U.S. Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2024-1774
MSPB Docket No. DE-0841-18-0053-I-1
Issuance Date: October 10, 2025
RETIREMENT
COURT/DOMESTIC RELATIONS ORDERS
FORMER SPOUSE ANNUITY
Mr. Moulton, a Federal employee, and his wife divorced in 2004. A Colorado
state court issued a divorce decree stating, in relevant part, that Ms. Moulton
was entitled to a pro rata share of Mr. Moulton’s “gross monthly annuity” and
any benefit he earned based on his Federal service, but did not explicitly
mention allocation of his annuity supplement. In 2010, Mr. Moulton retired
under the Federal Employees’ Retirement System (FERS) at 47 years of age.
The Office of Personnel Management (OPM) commenced paying Mr. Moulton his
full FERS annuity supplement because he was under the age of 62 and
therefore did not yet qualify for Social Security benefits.
Before 2016 and for almost 30 years, OPM did not include the annuity
supplement in its calculation of annuity benefits to be paid to a former spouse
except when a state court order expressly addressed the annuity supplement.
However, in 2016, OPM reversed course, determining that annuity supplements
would be divided in the same way as the basic annuity, even if the court order
did not expressly provide that the supplement should be divided. As a result of
its reinterpretation, OPM advised Mr. Moulton that he owed his ex-wife nearly
$25,000 in FERS annuity supplement benefits.
On appeal by Mr. Moulton, the Board’s administrative judge rejected OPM’s
new interpretation and concluded that 5 U.S.C. § 8421(c) required OPM to
divide an annuity supplement only if expressly provided for in a court order.
After OPM petitioned for review, the Board issued an Opinion and Order that
denied OPM’s petition and affirmed the administrative judge’s decision. The
Director of OPM petitioned for review of the Board’s final order.
Holding: The court affirmed the Board’s decision and held that OPM cannot
divide a retiree’s annuity supplement unless the division of the supplement
is expressly provided for in a court order.
1. The court noted that the case presented a purely legal question of
statutory interpretation, i.e., whether, under 5 U.S.C. §§ 8421(c) and
8467(a), OPM must apportion the FERS annuity supplement only when
the terms of a court order (e.g., a divorce decree) expressly provide for
division of the supplement. The court answered in the affirmative.
2. Beginning its analysis with the statutory text and dictionary definitions
of the relevant statutory terms from the time when FERS was enacted,
the court found that section 8421(c), which provided that an annuity
supplement “shall... be treated in the same way” as the basic annuity
amount under 5 U.S.C. § 8467(a), meant that, consistent with the
language of § 8467(a), the supplement may be apportioned only if
“expressly provided for” in a court order.
3. The court noted that the broader statutory scheme supported this
interpretation because annuity supplements were created for early
retirees who were not yet eligible for Social Security benefits, which
were presumptively not allocable between former spouses. In addition,
Congress knew how to specify when annuity supplements would be
included in an annuity division but did not do so for purposes of the
statutes at issue in this case. In particular, Congress separately
addressed the treatment of annuities for Central Intelligence Agency
employees by providing that the apportionment of the supplemental
annuity to a former spouse was determined by the apportionment of the
gross annuity. The court further held that adopting OPM’s
interpretation would result in OPM effectively rewriting divorce decrees
and departing from the express will of the parties when OPM’s task is
purely ministerial.
4. Finally, the court disagreed with OPM’s contention that adopting the
Board’s interpretation of the statutes would render § 8421(c)
superfluous. The court noted that this argument had its own superfluity
problem because it would render the “expressly provided for” language
in § 8467(a) superfluous. In addition, the court held that statutory
redundancies can serve a clarifying purpose, as they appeared to do
here.
NONPRECEDENTIAL:
Young v. Department of Defense, No. 2025-1575 (Fed. Cir. Oct. 7, 2025)
(MSPB Docket No. DC-1221-21-0296-W-4). The court affirmed the
Board’s final order denying the petitioner’s request for corrective action
in her individual right of action (IRA) appeal. The court found that the
Board’s findings were supported by substantial evidence, including the
finding that personnel actions that occurred after the petitioner’s
termination were not protected under the plain language of the
whistleblower protection statute.
Blackmon v. Merit Systems Protection Board, No. 2025-1154 (Fed. Cir.
Oct. 8, 2025) (MSPB Docket No. CH-0845-20-0028-I-3). The court
affirmed the Board’s final order dismissing the petitioner’s appeal
challenging her annuity calculation for lack of jurisdiction. The court
found that the Board correctly concluded that it lacked jurisdiction, as
the Office of Personnel Management (OPM) had not issued a final
decision, and the petitioner did not argued factors sufficient to
conclude that OPM refused or otherwise improperly failed to issue a
final decision.
Blevins v. Merit Systems Protection Board, No. 2025-1061 (Fed. Cir.
Oct. 9, 2025) (MSPB Docket No. NY-0353-20-0047-I-1). The court
affirmed the Board’s final order dismissing the petitioner’s restoration
appeal for lack of jurisdiction because he failed to nonfrivolously allege
that his absence from duty was due to a compensable injury. The court
agreed with the Board’s finding that the petitioner’s absence could not
have been due to a compensable injury, because the Office of Workers’
Compensation Programs already found that he failed to accept a
suitable job offer before he attempted to accept the U.S. Postal
Service’s job offer.
Frericks v. Department of the Navy, No. 24-9531 (10th Cir. Oct. 9, 2025)
(MSPB Docket No. PH-0752-20-0355-I-1). The court affirmed the Board’s
final order sustaining the petitioner’s removal, finding that substantial
evidence supported the Board’s analysis of his whistleblower reprisal
claims, including that the agency proved by clear and convincing
evidence that it would have removed the petitioner in the absence of
his whistleblowing.
Benton v. Merit Systems Protection Board, No. 2025-1507 (Fed. Cir.
Oct. 14, 2025) (MSPB Docket Nos. DA-0432-17-0073-I-1, DA-0752-17
0073-I-1). The court affirmed the Board’s final order dismissing the
petitioner’s petition for review as untimely filed without good cause
shown. The court agreed with the Board that the petitioner failed to
sufficiently justify the 4-year filing delay.
Mouton-Miller v. Department of Homeland Security, No. 2025-1173
(Fed. Cir. Oct. 15, 2025) (MSPB Docket Nos. AT-1221-19-0742-W-4,
AT-1221-21-0039-W-4). The court affirmed the Board’s final order
denying the petitioner’s request for corrective action in her individual
right of action (IRA) appeals. Regarding MSPB Docket No. AT-1221-19
0742-W-4, the court found that the Board’s analysis of the first two Carr
factors were supported by substantial evidence, but that the Board
improperly weighed the third Carr factor in the agency’s favor even
though the agency did not put forth any comparator evidence.
Nevertheless, the court agreed with the Board that the agency proved
by clear and convincing evidence that it would have removed the
appellant in the absence of her protected disclosures. Regarding MSPB
Docket No. AT-1221-21-0039-W-4, the court found that the Board’s Carr
factor analysis, and its conclusion that the petitioner’s protected
disclosures were not contributing factors in several nonselections, were
supported by substantial evidence.
Gallegos v. United States Department of Commerce, No. 24-6323 (9th
Cir. Oct. 16, 2025) (MSPB Docket No. DE-1221-22-0304-W-1). The court
denied the petitioner’s petition for review of the Board’s decision
denying corrective action in the individual right of action appeal. The
court concluded that substantial evidence supported the Board’s finding
that the agency would have terminated the petitioner regardless of her
protected disclosures.
Steigert v. Merit Systems Protection Board, No. 2025-1906 (Fed. Cir.
Oct. 20, 2025) (MSPB Docket No. PH-3443-25-1394-I-1). The court
dismissed the petitioner’s petition for judicial review of the Board’s
decision dismissing the appeal subject to automatic refiling in January
2026.
Startz v. Department of the Army, No. 2025-1375 (Fed. Cir. Oct. 20,
2025) (MSPB Docket No. SF-1221-23-0258-W-1). The court affirmed the
Board’s final order denying the petitioner’s request for corrective action
in his individual right of action appeal. The court found that the Board
did not err in determining that the appellant did not make a protected
disclosure under 5 U.S.C. § 2302(b)(8) as his disclosures did not involve
Government wrongdoing.
Butler v. Merit Systems Protection Board, No. 2025-1204 (Fed. Cir.
Oct. 20, 2025) (MSPB Docket No. DC-0752-23-0453-I-1). The court
affirmed the Board’s decision dismissing for lack of jurisdiction the
petitioner’s claims that her employing agency failed to reinstate her to
a position she held prior to her resignation.
Courtney v. Merit Systems Protection Board, No. 2025-1348 (Fed. Cir.
Oct. 31, 2025) (MSPB Docket No. SF-1221-23-0417-W-1). The court
affirmed the Board’s final order, which affirmed the administrative
judge’s initial decision dismissing the individual right of action appeal
for lack of jurisdiction. The court agreed with the Board that the
petition had not exhausted the subject of her Board appeal with the
Office of Special Counsel as required.
Demery v. Merit Systems Protection Board, No. 2024-2215 (Fed. Cir.
Nov. 4, 2025) (MSPB Docket No. PH-3330-19-0292-I-1). The court
affirmed the Board’s decision, denying the petitioner’s request for
corrective action under the Veterans Employment Opportunity Act
because she did not file a timely complaint with the Department of
Labor (DOL) within 60 days of her nonselection for a vacancy with the
Department of the Army’s (Army) National Guard Bureau. Even assuming
that the petitioner’s untimeliness was due to the Army’s “fraudulent
concealment” of information, she still did not file DOL complaint until
more than 11 months after she alleged that she discovered the
information at issue.
Demery v. Merit Systems Protection Board, No. 2025-1157 (Fed. Cir.
Nov. 4, 2025) (MSPB Docket No. DC-3443-24-0105-I-1). The court
affirmed the Board’s decision dismissing for lack of jurisdiction this
appeal from the same nonselection at issue in the case discussed above.
Despite the petitioner’s claims to the contrary, the Army’s decision not
to offer her a position is a nonselection, which is not an otherwise
appealable action. The Board did not have jurisdiction over her age
discrimination claim in the absence of otherwise appealable action. As
to her employment practices claims, the Army’s alleged failure to
properly apply regulations in passing over the petitioner’s application is
not an employment practice. Further, the petitioner did not show that
OPM was significantly involved in her nonselection as necessary to
establish jurisdiction over her claim as an employment practices appeal.
Barrette v. Department of Veterans Affairs, No. 2024-1708 (Fed. Cir.
Nov. 4, 2025) (MSPB Docket No. AT-1221-16-0840-W-1). The court
affirmed the Board’s final order, which denied corrective action in the
petitioner’s IRA appeal. The administrative judge’s determination that
agency officials did not have a strong motive to retaliate was supported
by substantial evidence, and the administrative judge did not err in
determining that the comparators identified by the petitioner were not
similarly situated.
Howard v. Department of Defense, No. 2025-1506 (Fed. Cir.
Nov. 5,
2025) (DC-1221-23-0349-W-1). The court affirmed the Board’s decision,
which denied corrective action in the petitioner’s IRA appeal because
the agency proved by clear and convincing evidence that it would have
terminated the petitioner during her probationary period even absent
her protected disclosures that she was not allowed meal breaks. In
weighing the Carr factors, the Board did not err in giving the greatest
weight to the first factor, i.e., the agency’s strong evidence that the
petitioner was terminated due to insubordination, poor performance,
and conduct that risked patient safety. The administrative judge did
not abuse her discretion in denying as unjustified the petitioner’s
request for discovery-related sanctions.
Boyd v. Department of the Treasury, No. 2025-1128 (Fed. Cir.
Nov. 6,
2025) (SF-0752-15-0128-I-1). The court dismissed as untimely filed the
petitioner’s appeal of the Board’s final decision, which dismissed her
removal appeal for lack of jurisdiction based on a finding that she had
violated the terms of a last chance agreement. The petitioner filed
with the court 9 years after the Board’s decision, exceeding the 60-day
deadline. Assuming equitable tolling was available to the petitioner,
she provided no evidence to support her claim that she did not receive
the Board’s decision until after the court filing period had passed.
Woodroof v. Department of Commerce, No. 2024-2139 (Fed. Cir.
Nov. 6,
2025) (DC-0432-15-0585-C-1). The court affirmed the Board’s decision,
which denied a petition for enforcement of the settlement agreement
resolving the petitioner’s removal appeal. In particular, the court
agreed with the Board that the agency did not breach a provision of the
agreement requiring the parties to keep the terms of the agreement
confidential. That provision had an exception for disclosures to the
Board and any disclosures of the agreement fell within this exception
because they were in the course of a Board hearing in an appeal filed by
a former coworker of the petitioner. The agency did not violate the
Privacy Act because the disclosures were subject to a “routine use”
exception permitting the agency to defend itself against the appellant’s
testimony in her former coworker’s hearing regarding the agency’s
alleged misconduct. The court found that the petitioner did not show
harm in the administrative judge’s alleged denial of her requests for
discovery or failure to hold a status conference.
Raiszadeh v. Department of Homeland Security, No. 2023-2409 (Fed.
Cir.
Nov. 7, 2025) (DC-1221-12-0452-B-1). The court affirmed the
Board’s decision, which denied corrective action in this IRA appeal.
Because hearsay is admissible in Board proceedings, the court discerned
no abuse of discretion by the administrative judge in admitting a
document authored by a union official titled “draft notes,” which
summarized complaints by the petitioner’s subordinates. The court also
discerned no basis to disturb the Board’s determination, based in part
on the petitioner’s conduct summarized in the “draft notes,” that the
agency proved by clear and convincing evidence that it would have
terminated the petitioner’s probationary employment absent her
protected disclosure.
Rivers v. Merit Systems Protection Board, No. 2025-1573 (Fed. Cir.
Nov. 7, 2025) (AT-844E-23-0604-I-1). The court affirmed the Board’s
decision, which dismissed the petitioner’s appeal of an OPM
reconsideration decision as untimely filed without good cause shown.
The court agreed with the Board that the petitioner did not show good
cause for his filing delay based on his excuses that he was gathering
additional evidence, he experienced difficulty in electronically filing his
appeal, and he did not receive the administrative judge’s timeliness
order.
Warne v. Merit Systems Protection Board, No. 2025-1258 (Fed. Cir.
Nov. 10, 2025) (SF-1221-23-0305-W-1). The court affirmed the Board’s
decision, which dismissed the petitioner’s IRA appeal as untimely filed
more than 65 days after the Office of Special Counsel (OSC) notified him
via email that it was terminating its investigation into his complaint.
Although the petitioner was “locked out” of his email account, the
65-day time period began when the email was delivered, not when the
petitioner read it. The court agreed with the Board that the
petitioner’s pursuit of an equal employment opportunity complaint did
not equitably toll the deadline for filing his IRA appeal.
Rough v. Department of Veterans Affairs, No. 2025-1479 (Fed. Cir.
Nov. 12, 2025) (DE-1221-21-0078-W-1). The court affirmed the Board’s
decision, which denied corrective action in the petitioner’s IRA appeal
because the she did not show that she made a protected disclosure.
The Board did not err in finding that the petitioner’s uncorroborated
testimony that she made a disclosure to a union representative was not
credible.
Jackson v. Department of Homeland Security, No. 2025-1614 (Fed. Cir.
Nov. 13, 2025) (CH-3330-23-0216-I-1). The court affirmed the Board’s
decision, which denied the petitioner’s request for corrective action
under the Veterans Employment Opportunities Act because his complaint
with the DOL was untimely. The court agreed with the Board that the
petitioner was not entitled to equitably toll the deadline DOL complaint
filing deadline. Specifically, the petitioner failed to show due diligence
because he withdrew a prior, timely DOL complaint, and took no
additional action until he filed the second, untimely DOL complaint that
served as the basis for his Board appeal.
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Case Report - June 20, 2025 | 06-20-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_20_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_20_2025.pdf | Case Report for June 20, 2025
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Anthony S. Stuart
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2024-1024
MSPB Docket No. NY-0842-17-0107-I-1
Issuance Date: June 13, 2025
RETIREMENT ANNUITIES - SERVICE CREDIT
Mr. Stuart served on active duty in the Navy during three different periods
between 1974 and 1991. The Navy subsequently determined that Mr. Stuart
was eligible to receive military retired pay. The Defense Finance and
Accounting Service calculated the amount of Mr. Stuart’s retired pay using two
methods, one based on the percentage of his disability rating (60%), and the
other based on his total years of service (13 years and 8 months). Mr. Stuart
received the amount calculated based on his disability rating because it
yielded a greater gross pay amount.
After his military service, Mr. Stuart entered into Federal civilian service. He
retired from his civil service position on November 28, 2015. On his Federal
Employees’ Retirement System (FERS) retirement application form, Mr. Stuart
indicated that he was not waiving his military retired pay to receive credit
toward his FERS retirement benefits for his military service.
The Office of Personnel Management (“OPM”) issued a final decision that Mr.
Stuart was ineligible to receive credit for his military service in the calculation
of his FERS annuity. The Board affirmed OPM’s final decision.
Holding: The Board properly found that Mr. Stuart’s military retired pay,
which was calculated based on his percentage of disability, qualified as
retired pay based his military service for purposes of the statutory bar
against double crediting of military service.
1. Absent a waiver of military retired pay, 5 U.S.C. § 8411(c)(2) provides
only two exceptions to the rule against crediting a period of military
service toward the calculation of FERS annuity benefits. First, a period
of military service may be credited for purposes of a FERS annuity when
military retired pay for that period is awarded “based on a service
connected disability (i) incurred in combat with an enemy of the United
States; or (ii) caused by an instrumentality of war and incurred in line of
duty during a period of war as defined by section 1101 of title 38.” Id.
§ 8411(c)(2)(A). Second, a period of non-regular military service (i.e.,
reserve service) may be credited toward a FERS annuity when military
retired pay for that period is awarded under 10 U.S.C. chapter 1223.
5 U.S.C. § 8411(c)(2)(B). Mr. Stuart had not waived, and was receiving,
military retired pay for his military service.
2. Mr. Stuart did not establish that either exception under section
8411(c)(2) applied to him. The court considered Mr. Stuart’s argument
that section 8411(c)(2) did not apply because his military retired pay
was calculated based on his disability rating rather than his periods of
service. In rejecting this argument, the court stated that section
8411(c)(2) clearly contemplates that military retired pay awarded
“based on a service-connected disability” constitutes a type of “retired
pay based on any period of military service.” Otherwise, it would make
no sense for the statute to refer to retired pay based on specific
service-connected disabilities as exceptions to the principle against
double crediting a period of military service.
3. The court found unpersuasive Mr. Stuart’s argument that its decision in
Babakitis v. Office of Personnel Management, 978 F.2d 693 (Fed. Cir.
1992), required that he receive civilian retirement credit for his military
service because his military retired pay was based on the percentage of
his disability rather than his length of service. Mr. Babakitis served in
the military and then as a Federal employee, after which he received a
civilian retirement calculated based on his combined military service
and Federal employment. Following his civilian retirement, he again
served in the military, was disabled during that period, and received a
military pension based on his second period of military service. Mr.
Babakitis did not receive military retired based on his first period of
military service.
4. The court considered Mr. Stuart’s argument that “[h]is military retired
pay had to be based on his final period of service because the U.S.
military would not have allowed [him] to re-enlist with a disabling
medical condition.” However, Mr. Stuart did not make this argument
before the Board. Further, the court found no error in the Board’s
determination there was “no evidence to suggest that [Mr. Stuart’s]
military retired pay was based solely on his most recent period of
service.”
NONPRECEDENTIAL:
Stevenson v. Department of Veterans Affairs, No. 2025-1418 (Fed. Cir.
June 13, 2025). The court granted the agency’s request to retransfer
the case back to Federal district court. The Federal Circuit found that
the district court’s dismissal of the appellant’s discrimination claim did
not divest that court of jurisdiction over whatever remained of the
appellant’s claims or otherwise convert the mixed case into one that the
Federal Circuit has jurisdiction to review. | 5,177 | |
Case Report - February 28, 2025 | 02-28-2025 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_28_2025.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_28_2025.pdf | Case Report for February 28, 2025
BOARD DECISIONS
Appellant: Kali Mary Holman
Agency: Department of the Army
Decision Number: 2025 MSPB 2
Docket Number: AT-1221-19-0410-W-1
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:
Petitioner: Mark L. Sadler
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2023-1981
MSPB Docket Number: DE-1221-16-0122-W-1
Issuance Date: February 25, 2025
WHISTLEBLOWER PROTECTION ACT
EVIDENCE
Mr. Sadler was employed by the agency as a GS-13 Computer
Scientist. In October 2012, he was assigned the task of developing
and supporting a “software testing program” with a proposed
completion date in December 2012. Mr. Sadler testified that he
came to believe that the assignment “seemed to be
inappropriate” because he would be “injecting” himself into a
contractor’s software development process. In January 2013, Mr.
Sadler emailed his second-level supervisor and a higher-level
agency official with concerns about his assigned task; he also
submitted to his supervisor a revised project plan that indicated,
among other things, that he would provide a final document by
March 18, 2013. However, in February 2013, Mr. Sadler declined
to update his supervisor regarding the status of the assignment.
The supervisor thereafter instructed Mr. Sadler to provide all
information and documents related to the task. Mr. Sadler
responded to this instruction by emailing his supervisor, second
level supervisor, and other agency officials and informing them
that there was “no new activity” regarding the assignment.
On March 14, 2013, Mr. Sadler filed his first complaint with OSC
alleging whistleblower retaliation. In this complaint, Mr. Sadler
alleged that he had made protected disclosures regarding
potential improprieties with contract employees as well as
possible waste, fraud, and abuse; however, it was unclear what,
if any, personnel actions he believed the agency had taken against
him. In April 2013, OSC concluded its investigation into Mr.
Sadler’s allegations, and, on June 18, 2013, Mr. Sadler filed a
Board IRA appeal. On June 26, 2013, Mr. Sadler’s supervisor
proposed suspending him for 5 days for insubordination; however,
Mr. Sadler was ultimately suspended for 4 days. In August 2013,
Mr. Sadler received an unfavorable performance rating.
Thereafter, Mr. Sadler’s supervisor again inquired about the
status of the task, and Mr. Sadler responded that there was “[n]o
change.” On August 21, 2013, Mr. Sadler’s supervisor proposed
removing Mr. Sadler from his position for insubordination. On
August 22, 2013, the administrative judge assigned to the
appellant’s Board IRA appeal dismissed the matter without
prejudice to allow Mr. Sadler to exhaust his remedies with OSC
regarding his claim that his suspension was in retaliation for
whistleblowing.
On August 31, 2013, Mr. Sadler filed a second OSC complaint
alleging whistleblower retaliation as related to the filing of his
first OSC complaint and his Board appeal. Mr. Sadler alleged that
the retaliation included his 4-day suspension, unsatisfactory
performance appraisal, and his proposed removal. On
September 23, 2013, the agency removed the appellant from his
position. In October 2015, OSC informed Mr. Sadler that it had
closed its investigation into his second OSC complaint.
Thereafter, Mr. Sadler filed his second IRA appeal. In
adjudicating this appeal, the administrative judge considered
both OSC complaints.
During the pendency of the appeal, Mr. Sadler filed a motion for
sanctions, alleging that the agency had lost or destroyed a “.pst
file” that contained archived emails and documents. The
administrative judge denied Mr. Sadler’s motion for sanctions
both in an original order and an order denying reconsideration
issued in conjunction with the initial decision. In the initial
order, the administrative judge found, among other things, that
the agency had “wiped and reimaged” the hard drive after an
agency official had left his command. The administrative judge
concluded that the.pst file was lost due to “an ordinary
procedure when there was a change in command” and declined to
sanction the agency. In the order denying reconsideration, the
administrative judge followed the standard for failing to preserve
electronically stored information adopted in the 2015
amendments to Rule 37(e) of the Federal Rules of Civil Procedure,
which require a finding that the party that failed to preserve
information “acted with the intent to deprive another party of
the information’s use in litigation” in order to apply adverse
inferences.
In the initial decision, the administrative judge denied Mr.
Sadler’s request for corrective action. Regarding the appellant’s
first OSC complaint, the administrative judge found that the
appellant had failed to allege a protected disclosure. Regarding
Mr. Sadler’s second OSC complaint, the administrative judge
found that Mr. Sadler had engaged in protected activity by
(1) filing his first OSC complaint and (2) appealing his first OSC
complaint to the Board. The administrative judge also found that
these protected activities were a contributing factor in the
personnel actions at issue. However, the administrative judge
concluded that the agency showed by clear and convincing
evidence that it would have taken the same actions absent Mr.
Sadler’s protected activity. Mr. Sadler thereafter filed a petition
for review of the initial decision, which the Board denied.
Holding: The Board properly found that the appellant was not
entitled to corrective action.
(1) The court considered Mr. Sadler’s contention that he had
identified protected disclosures in his first OSC
complaint; however, the court found his contention
unpersuasive. The court reasoned that the Board had
properly found that Mr. Sadler’s allegations were
“vague, conclusory, and failed to reveal circumstances
from which a disinterested person in his position could
reasonably conclude that the agency’s actions evidenced
any of the violations described in [5 U.S.C.
§ 2302(b)(8)].”
(2) The court considered Mr. Sadler’s arguments on appeal
regarding his disclosures but reasoned that “the problem
common to each of [Mr. Sadler’s] arguments is that [he]
failed to allege the substantive details required to
establish jurisdiction.”
(3) The court also considered, but found unpersuasive, Mr.
Sadler’s argument that the Board had failed to consider
whether he had disclosed a violation of a law, rule, or
regulation in his first OSC complaint. The court
reasoned that, to the extent Mr. Sadler was arguing that
his refusal to complete his assignment was protected
activity under 5 U.S.C. § 2302(b)(9)(D), which protects
an individual from refusing “to obey an order that would
require the individual to violate a law, rule, or
regulation,” he had not raised such an argument before
the Board and, therefore, had forfeited such a claim.
(4) Regarding the second OSC complaint, the court
considered Mr. Sadler’s arguments that the Board had
misapplied two of the three factors set forth in Carr v.
Social Security Administration, 185 F.3d 1318 (Fed. Cir.
1999), in finding that the agency showed by clear and
convincing evidence that it would have taken the same
actions against him absent his protected activity. The
court found that substantial evidence supported the
Board’s finding in favor of the agency as to the first two
Carr factors. Thus, the court agreed that the agency
met its burden to show independent causation.
Holding: The Board did not abuse its discretion in declining to
draw adverse inferences against the agency due to spoliation
of evidence.
(1) The court explained that the term “spoliation”
encompasses the destruction of evidence and failure to
preserve evidence.
(2) The court reasoned that the Board’s statutes and
regulations do not address spoliation of evidence or
sanctions for spoliation; however, Board regulations
provide both that an administrative judge “may impose
sanctions upon the parties as necessary to serve the ends
of justice,” 5 C.F.R. § 1201.43, and that the Board considers
the Federal Rules of Civil Procedure “a general guide for
discovery practice[],” 5 C.F.R. § 1201.72(a).
(3) The court reasoned that it was undisputed that the agency
should have, but failed to, preserve the.pst file; however,
a dispute remained as to “what state of mind can serve as
the basis for imposing an adverse inference sanction for the
destruction of relevant evidence and whether the Board
appropriately applied the correct standard.”
(4) The court acknowledged Mr. Sadler’s argument that the
Board erred in not applying the negligence standard
previously recognized by the Federal Circuit in Kirkendall
v. Department of the Army, 573 F.3d 1318 (Fed. Cir. 2009),
and instead applying the intent standard set forth in the
Federal Rules of Civil Procedure. The court found this
argument unpersuasive, explaining that it did not hold in
Kirkendall that negligence was the correct standard.
Moreover, at the time Kirkendall was issued, there existed
a circuit split regarding the requisite state of mind for a
court to apply an adverse inference for destruction of
evidence.
(5) The court explained that the 2015 amendments to
Rule 37(e) resolved this split as to the failure to preserve
electronically stored information by developing an “intent
to deprive” standard for such cases. The court explained
that it is unclear what the standard under the Federal Rules
is for spoliation of other types of evidence.
(6) Under this amended rule, a court may impose an adverse
inference “only upon finding that the party acted with the
intent to deprive another party of the information’s use in
the litigation.” The court explained that the commentary
to the 2015 amendments indicates that the new
Rule 37(e)(2) “rejects cases... that authorize the giving
of adverse-inference instructions on a finding of negligence
or gross negligence.”
(7) The court explained that it need not decide whether the
Board was bound to follow this new rule; instead, it found
that the Board did not abuse its discretion or act arbitrarily
and capriciously by choosing to follow the new standard set
forth in Rule 37(e).
(8) The court considered, but found unpersuasive, Mr. Sadler’s
argument that the Board erred in relying on the 2015
amendments because the agency had destroyed the.pst file
sometime between 2013 and early 2015. The court
explained that, when the U.S. Supreme Court amended the
rules in 2015, it provided, in pertinent part, that the
amendments “shall govern in all proceedings thereafter
commenced and, insofar as just and practicable, all
proceedings then pending.” The court explained that Mr.
Sadler’s proceeding was pending when the amendments
took effect, and that he filed his motion for sanctions in
November 2016, well after the amendments had taken
effect.
(9) Lastly, the court reasoned that the Board did not err in its
application of the new standard to the facts of Mr. Sadler’s
appeal. Accordingly, it affirmed the Board’s decision.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jabeen N. Abutalib
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2023-1400
MSPB Docket Number: CH-0752-22-0357-I-1
Issuance Date: January 28, 2025
WHISTLEBLOWER PROTECTION ACT
In July 2019, the petitioner, Dr. Abutalib, filed an equal employment
opportunity (EEO) complaint against her supervisor and her employing
agency, the Veterans Health Administration (VHA), alleging a hostile
work environment and unprofessional conduct. The parties initially
settled the matter in August 2019, via an agreement that, according to
the petitioner, included a salary adjustment. A dispute thereafter arose
regarding the salary adjustment, and the petitioner continued to pursue
her EEO complaint, claiming retaliation. In January 2020, the complaint
was settled via an agreement that contained a provision requiring an
investigation into the equality of pay amongst physicians.
In June 2022, the petitioner filed a whistleblower complaint with the
Office of Special Counsel (OSC). Two days later, she filed a Board
appeal challenging a “reduction in grade or pay” that had occurred in
March 2022. In July 2022, OSC informed Dr. Abutalib that it was closing
its investigation into her complaint. Thereafter, in September 2022, the
administrative judge assigned to the petitioner’s Board appeal informed
her that her claims may be actionable as an individual right of action
(IRA) appeal and explained how to establish Board jurisdiction over such
an appeal. In response, Dr. Abutalib identified five “disclosures” that
she had made to OSC, one of which was that she had asked OSC to
review her supervisor’s pay because she believed that he was being
overcompensated. The appellant also provided the text of what she
identified as the parties’ January 2020 settlement agreement. The
appellant argued that the Board had IRA jurisdiction over her appeal
because (1) various actions of her supervisor constituted an abuse of
authority and (2) she had suffered reprisal for filing her 2019 EEO
complaint.
The administrative judge thereafter issued an initial decision dismissing
the appeal for lack of jurisdiction. The administrative judge found that
the Board lacked chapter 75 jurisdiction over the matter and that the
appellant had failed to establish IRA jurisdiction. Regarding the latter
finding, the administrative judge reasoned that the appellant had failed
to make a nonfrivolous allegation that she had engaged in
whistleblowing or other protected activity. The administrative judge
found that the thrust of Dr. Abutalib’s allegations was that the agency
had retaliated against her for her 2019 EEO complaint and for
discriminatory reasons. The administrative judge explained that
complaints of discrimination and reprisal in violation of Title VII do not
constitute protected whistleblowing disclosures; rather, they fall under
the purview of 5 U.S.C. § 2302(b)(1) and are actionable through other
administrative mechanisms. The administrative judge noted that the
appellant had not alleged that her EEO activity concerned remedying a
violation of 5 U.S.C. § 2302(b)(8). After the initial decision became the
Board’s final decision, Dr. Abutalib appealed to the Federal Circuit.
Holding: The Board lacks IRA jurisdiction over claims of retaliation for
EEO activity; however, whistleblowing disclosures made during the
course of EEO activity may confer Board IRA jurisdiction.
(1) The court considered Dr. Abutalib’s argument that the Board
has IRA jurisdiction over her appeal because the settlement
agreement stemming from her 2019 EEO complaint showed that
she had made “whistleblower allegations” during the course of
her EEO activity.
(2) The court found this assertion unpersuasive for two reasons.
First, it found that, although Dr. Abutalib had submitted a copy
of the settlement agreement into the record before the
administrative judge, she had never argued that the settlement
agreement constituted evidence that she had made
whistleblowing disclosures in conjunction with her EEO
activity; thus, the court concluded that she could not
permissibly raise this new argument.
(3) Second, the court reasoned that the matters addressed in the
settlement agreement were not the subject of Dr. Abutalib’s
OSC complaint; thus, she had failed to exhaust her
administrative remedies with OSC with respect to her alleged
disclosures, which is a jurisdictional prerequisite for a Board
IRA appeal. The court explained that the only statement in the
settlement agreement that related in any way to the
petitioner’s OSC complaint was the provision involving
investigating the equality of physician pay. The court reasoned
that this provision was too general to constitute a
whistleblowing disclosure, “even assuming the terms of the
settlement agreement could be regarded as evidence of
disclosures at all.”
(4) The court clarified that the fact that the Board lacks IRA
jurisdiction over retaliation for EEO activities “does not mean
that the Board lacks jurisdiction over claims of retaliation for
true whistleblowing disclosures just because those disclosures
may have been made in the course of EEO proceedings.”
(5) The court concluded that Dr. Abutalib had failed to make a
nonfrivolous allegation of a protected disclosure for which the
VHA had retaliated against her and had failed to show that she
had exhausted her administrative remedies. Accordingly, the
court affirmed the Board’s decision.
NONPRECEDENTIAL:
A.M. v. United States, No. 2022-2235 (Fed. Cir. Jan. 29, 2025) The court
affirmed the decision of the U.S. Court of Federal Claims, which
dismissed the appellant’s complaint regarding his removal from Federal
service for lack of subject matter jurisdiction. The court explained,
inter alia, that, under the Civil Service Reform Act of 1978, the Board,
and not the Court of Federal Claims, is authorized to review Federal
e mployee removals.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Neena Biswas
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2023-1552
MSPB Docket Number: DA-1221-15-0471-W-2
Issuance Date: January 17, 2025
WHISTLEBLOWER PROTECTION ACT (WPA)
The agency (or VA) hired the petitioner as a physician in August 2010 in a
temporary appointment under 38 U.S.C. § 7405(a)(1)(A), not-to-exceed July
30, 2012. On April 25, 2012, the agency converted her appointment to a
permanent appointment under 38 U.S.C. § 7401(1), retroactively effective
January 15, 2012. Around April 2012, the petitioner applied but was not
selected for the position of Chief of the Hospitalist Section. Over the next
several months, the petitioner sent numerous emails to VA staff questioning
why she was not selected for the Chief position, complaining about the hiring
for that position and that section’s scheduling practices, and, among other
things, refusing to see patients assigned to her and threatening to take
unscheduled leave. In August 2012, the petitioner began emailing her concerns
to the Secretary of the VA. The agency instructed her to stop bringing her
complaints outside of her chain of command and told her that her refusal to do
so was insubordination.
In September 2012, the agency corrected the petitioner’s and five other
physicians’ appointments, by converting it from permanent back to temporary
under 38 U.S.C. § 7405(a)(1)(A), with a not-to-exceed date of February 14,
2013, and retroactively effective to January 15, 2012. Several days later, the
agency notified the petitioner that she was being terminated. An email
specified that she was being terminated for: (1) insubordination for
contravening an instruction to bring complaints only within her chain of
command; (2) insubordination for contravening an instruction to cease
disseminating inflammatory and defamatory emails concerning her colleagues;
(3) insubordination for refusing a patient assignment; and (4) creating a hostile
work environment.
The petitioner subsequently filed an individual right of action (IRA) appeal with
the Board, alleging that the VA unlawfully retaliated against her for engaging
in protected whistleblowing by (1) converting her appointment from
permanent to temporary, and (2) terminating her appointment.
In the initial
decision, the administrative judge found that the petitioner made protected
disclosures under the WPA, that the protected disclosures were a contributing
factor in both personnel actions at issue, and that, after consideration of the
three factors set forth in Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999), the agency proved by clear and convincing evidence that
it would have converted the petitioner to a temporary appointment and
terminated her appointment notwithstanding her protected disclosures.
Regarding the termination, the administrative judge was particularly
persuaded by the strength of the evidence in support of the agency’s action,
Carr factor one, and the petitioner’s “unprofessional and improper” acts
including refusing to see assigned patients, threatening to take unscheduled
leave, and repeatedly contacting the Secretary of the VA after being instructed
not to. On petition for review, the Board affirmed the initial decision.
Holding: The Board correctly denied corrective action regarding the VA’s
conversion of the petitioner’s appointment from permanent to temporary.
1. Under the first Carr factor, the Board properly relied on testimony to
find that the agency presented very strong evidence that its initial
conversion of the petitioner’s appointment was erroneous and that its
conversion of her status back to a temporary appointment was made to
correct that error.
2. With regard to the second Carr factor, although the Board found agency
testimony during the hearing to be credible in denying any retaliatory
motive, it acknowledged that the petitioner presented some evidence of
a motive to retaliate and appeared to weigh this factor slightly in the
petitioner’s favor.
3. For the third Carr factor, the Board found that the VA took similar
actions with regard to the status of five other physicians, whose status
had been erroneously changed and were retroactively converted back to
temporary appointments, and that the petitioner failed to support her
claim that the agency converted the status of the other doctors back to
temporary appointments solely to retaliate against her.
4. The court found that the Board made proper credibility determinations
and, given that Carr factors one and three weighed strongly in the
agency’s favor, the Board’s finding that agency presented clear and
convincing evidence that it would have converted the petitioner’s status
to a temporary appointment absent her protected disclosures was
supported by substantial evidence.
Holding: The Board’s finding that the petitioner’s contacting the Secretary
of the VA after being instructed not to do so constituted improper,
insubordinate conduct weighing in the agency’s favor under Carr factor one
was contrary to law.
1. The WPA prohibits an agency employee with the requisite authority from
taking, failing to take, or threatening to take or fail to take a personnel
action because of “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.” 5 U.S.C.
§ 2302(b)(8)(A) (Supp. V 2011) (emphasis added).
2.
In Huffman v. Office of Personnel Management, 263 F.3d 1341, 1347-48
(Fed. Cir. 2001), the court explained that the WPA employed the term
“any disclosure” to deliberately broaden the scope of disclosures
protected by the predecessor version of the statute, which merely
covered “a disclosure.” In that case, the court held that 5 U.S.C.
§ 2302(b)(8)(A) protects disclosures made to any supervisor even if that
supervisor lacks actual authority to correct the reported wrongdoing.
3. Here, the VA’s restrictions on the channels through which the petitioner
could make disclosures of alleged government wrongdoing ran afoul of
the WPA. The WPA does not require protected disclosures to be
channeled through a whistleblower’s chain of command and such a
restriction is contrary to the text and spirit of the WPA.
4. The court concluded that the WPA does not permit an agency to
discipline an employee for disclosing protected information merely
because that information was reported outside of the chain of
command. A report of wrongdoing made outside of the chain of
command or even to the head of an agency is still protected under the
WPA and may not be prohibited nor retaliated against.
Holding: Nevertheless, the Board’s error was harmless and the Board’s
denial of corrective action regarding the petitioner’s termination is
supported by substantial evidence.
1. The Board’s ultimate finding that Carr factor one weighed strongly in
the agency’s favor was based on evidence other than the petitioner’s
continuing emails to the Secretary, including the petitioner’s
communications with name-calling, demands for non-renewal of
colleagues’ appointments, accusations of a betrayal of the government,
and other improper, unprofessional, and disruptive conduct. The court
found these findings supported by substantial evidence.
2. The court found that the Board’s analysis weighing the second Carr
factor in the petitioner’s favor was reasonable.
3. The Board found no evidence that similarly situated employees who
were not whistleblowers were treated more favorably, and it thus
weighed the third Carr factor neutrally. The court found no error in the
Board’s analysis.
4. The court found that the Board’s findings were supported by substantial
evidence and that the Board reasonably concluded that the agency met
its burden of proving independent causation by clear and convincing
evidence based on the strength of Carr factor one.
NONPRECEDENTIAL:
Gard v. Office of Personnel Management, No. 2024-1711 (Fed. Cir. Jan.
23, 2025) (MSPB Docket No. AT-0845-18-0059-I-1). The court dismissed
as untimely filed by 10 days an appeal of the Board’s final decision
finding that the appellant was not entitled to a waiver of overpayment
of disability retirement benefits. The court stated that even if
equitable tolling applied here, the appellant did not show that he had
been pursuing his rights diligently and thus had not established a basis
for equitable tolling.
Chapman v. Merit Systems Protection Board, No. 2024-1718 (Fed. Cir.
Jan. 17, 2025) (MSPB Docket No. PH-0841-17-0440-I-1). The court
affirmed the Board’s decision dismissing the appellant’s petition for
review as untimely filed, concluding that the appeal was not a “mixed
case” alleging discrimination that fell outside the court’s appellate
jurisdiction and that the appellant failed to identify any fact that would
have required the Board to find good cause to excuse his untimely
appeal.
Lee v. Department of the Army, No. 2024-2096 (Fed. Cir. Jan. 17, 2025)
(MSPB Docket No. DE-0752-18-0161-I-1). The court affirmed the Board’s
decision affirming the appellant’s removal for insubordination, finding
no error in the Board’s analysis of the charge or the penalty and
rejecting as vague and unsupported the appellant’s argument that the
Board overlooked certain issues.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Anthony Knox
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2023-1160
MSPB Docket Number: SF-4324-20-0191-I-3
Issuance Date: January 6, 2025
USERRA/VETERANS' RIGHTS
The petitioner was employed by the agency from 1997 until his
retirement in 2020. He also served as a Reservist in the uniformed
service and was deployed on active duty from November 2002 through
November 2003. In November 2002, the petitioner served in a GS-12,
step 2 position, and while he was on deployment, his supervisor
submitted a request for a within-grade increase (WIGI) to GS-12, step 3,
to be effective February 23, 2003. However, the WIGI erroneously was
not effectuated until April 20, 2003. In March 2004, the petitioner’s
supervisor submitted a GS-13 promotion request for 1 year after the
effective date of the WIGI, April 20, 2004—the earliest possible date for
promotion, consistent with the agency’s then-existing policy. Under the
policy in effect at that time, although promotions were not
“automatic,” they were normally accepted and approved.
In June 2004, however, the agency revised its promotion policy to
clarify that such promotions were “neither an entitlement nor
automatic.” Although the petitioner’s promotion request had been
submitted prior to the June 2004 policy change, it was held and not
processed based on an instruction to hold promotion requests in
anticipation of the impending policy change. The petitioner
subsequently was not promoted to the GS-13 position until over 12 years
later, in April 2016.
In January 2020, the petitioner filed a Board appeal alleging
reemployment and discrimination claims under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). For his
USERRA reemployment claims, the petitioner alleged that the agency (1)
erroneously approved his WIGI effective April 2003 instead of February
2003 due to his military service obligation, and as a result of the delay
in his WIGI, (2) his promotion eligibility was delayed from February 2004
to April 2004, and consequently, his promotion application was
considered and not approved under the less-favorable post-June 2004
promotion policy. For his USERRA discrimination claims, the petitioner
alleged that the WIGI approval delay and GS-13 promotion denial
determinations were the result of discrimination based on his uniformed
service. As a remedy for each of these claims, the petitioner sought
retroactive correction of his WIGI increase to GS-12, step 3, to be
effective February 23, 2003, and his promotion to GS-13, to be effective
February 2004.
The administrative judge granted the petitioner’s WIGI reemployment
claim but denied his WIGI discrimination claim. He also denied the
petitioner’s promotion reemployment and discrimination claims. The
initial decision became final when neither party filed a petition for
review with the Board, and a petition for judicial review followed.
Holding: The Board applied the incorrect legal standard in denying
the petitioner’s promotion reemployment claim and the appeal must
be remanded for the Board to apply the appropriate legal standard.
1. Pursuant to 38 U.S.C. § 4312(a), USERRA provides that military
service members are entitled to a right to reemployment and
other employment benefits after completing their military service
obligations.
2. Under the applicable regulations, agencies are obligated to
consider employees absent due to military service obligations for
any advantage of employment they may have been otherwise
entitled to but for their absence.
3. Agencies are to consider three factors in determining whether an
employee absent for military service is entitled to an advantage
of employment: (1) whether the advantage is one generally
granted to all employees and whether it was denied solely
because of the military service absence, (2) whether the absent
employee was treated the same as if he had remained at work,
and (3) whether it was reasonably certain that the benefit would
have accrued but for the absence for military service.
4. The administrative judge erred by framing the issue in terms of
whether the promotion was or was not “automatic,” and the claim
must be remanded for consideration based on the correct standard
(set forth above). In doing so, the Board should determine
whether it is necessary to decide if all three of the above factors
must be met to prove a USERRA reemployment claim, and which
party bears the burden of proof on those factors.
Holding: The Board did not err in denying the petitioner’s USERRA
discrimination claims based on his delayed WIGI and GS-13 promotion.
1. An employer violates 38 U.S.C. § 4311(a) and engages in
discrimination based on uniformed service if an individual can
show that his membership in the uniformed services 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 membership.
2. The administrative judge determined that the petitioner failed to
prove that his uniformed service played any role—much less a
substantial or motivating role—in causing the delay of the
effective date of his WIGI, or the approval of his GS-13 promotion
package to April 2004. The court found no error in this conclusion
and declined to reweigh the evidence on appeal.
NONPRECEDENTIAL:
Reed v. Department of Health and Human Services, 2024-1620 (Fed. Cir.
January 8, 2025) (DC-1221-21-0222-W-3) (per curiam). The court found
no error in the Board’s conclusion that the petitioner made a protected
disclosure in connection with her refusal to sign a telework agreement
in response to the COVID-19 pandemic on the grounds that it would
violate the parties’ collective bargaining agreement, and further, that
the agency failed to prove by clear and convincing evidence that it
would have terminated the petitioner in the absence of her protected
disclosure and so she was entitled to corrective action, in part, in her
individual right of action (IRA) appeal. The court found unpersuasive
the petitioner’s argument that the agency violated the Telework
Enhancement Act provision that employees may telework on a voluntary,
not mandatory basis, when it required her to take leave after she
refused to sign a telework agreement. The court noted that the Act
permitted agencies to incorporate telework into continuity of operations
plans that supersede any other telework policy, and the COVID-19
pandemic met the definition of an emergency situation that permitted
the agency to mandate employees to enter into telework agreements.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Eric Terrell Bryant
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 16
Docket Number: AT-0714-23-0137-I-1
Issuance Date: November 18, 2024
VA ACCOUNTABILITY ACT
DUE PROCESS
The agency removed the appellant under 38 U.S.C. § 714 based on his
alleged improper behavior towards officers of a local police department
when they attempted to serve the appellant with a temporary protective
order. An administrative judge issued an initial decision that sustained the
removal. The appellant sought review of the Board decision in the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit).
The Federal
Circuit issued a precedential decision, Bryant v. Department of Veterans
Affairs, 26 F.4th 1344 (Fed. Cir. 2022), vacating the Board’s decision in
this case and remanding the appeal for the Board to address the deciding
official’s review of the charge under too low of a burden of proof.
The
Federal Circuit also directed the Board to apply the relevant factors in
assessing the penalty, consistent with Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981).
The Board remanded the appeal to the administrative judge, who
remanded the matter to the agency for the deciding official to analyze the
charge under the preponderant evidence burden of proof and to apply the
Douglas factors to the removal penalty, consistent with the Federal
Circuit’s instructions. The deciding official issued a new decision finding
that the charge was supported by preponderant evidence and included an
analysis of the Douglas factors supporting the removal penalty. The
appellant appealed the new removal decision, arguing in part that the
agency violated his constitutional due process rights. The administrative
judge subsequently issued a new initial decision affirming the removal
action.
Holding: The agency violated the appellant’s due process rights by
failing to provide him with notice and an opportunity to respond to all of
the aggravating factors the deciding official considered in determining
the penalty.
1. Due process requires that a tenured Federal employee be provided
with advance notice of a deciding official’s intention to rely on
aggravating factors as the basis for an imposed penalty so that the
employee has a fair opportunity to respond to those factors before
the deciding official.
2. Although the Board has applied these due process requirements to
appeals of actions taken under 5 U.S.C. chapter 75 and 5 U.S.C.
chapter 43, due process requirements are equally applicable to
actions taken under 38 U.S.C. § 714, like the appellant’s removal.
3. The deciding official completed a Douglas factor worksheet following
remand of the appeal that included consideration of some
aggravating factors that were not included in the appellant’s
proposed removal, and therefore were ex parte. These factors
included a potential future and broader conflict between the agency
and local police departments as a whole based on the appellant’s
behavior during the incident for which he was removed; whether
alternative sanctions could serve as a deterrent; and the consistency
of the penalty with agency’s table of penalties.
4. The appellant was not aware that the deciding official would
consider these factors and did not have an opportunity to respond to
them. Further, these factors influenced the deciding official’s
decision. The Board concluded that the deciding official’s
consideration of the ex parte information was so substantial and so
likely to cause prejudice that it rose to a due process violation and
reversed the removal action on this basis.
Appellant: Tammie Morley
Agency: Department of Veterans Affairs
Decision Number: 2024 MSPB 17
Docket Number: CH-0714-22-0256-A-1
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.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Herbert McCoy, Jr.
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Decision Number: 2024-1565
MSPB Docket Number: DC-3330-19-0007-I-1
Issuance Date: October 24, 2024
VEOA
The petitioner appealed a non-selection to the Board, asserting that his
veterans’ preference was not considered in the selection process. The
administrative judge dismissed the appeal for lack of jurisdiction
because the petitioner had not proven that he exhausted his remedy
with the Department of Labor (DOL) as required by the Veterans
Employment Opportunities Act of 1998 (VEOA). The Board affirmed the
initial decision on petition for review. The petitioner appealed to the
court.
Holding: One requirement for Board jurisdiction over a VEOA claim is
a showing that the appellant exhausted his remedies with DOL.
1. 5 U.S.C. § 3330a outlines the exhaustion process. A complaint
relating to veterans’ preference must be filed with the Secretary
of Labor, who is responsible for investigating the matter. If the
Secretary is unable to resolve the complaint, the Secretary must
notify the complainant, in writing, of the results of the
investigation. The complainant then has 15 days to appeal to the
Board. The complainant can also appeal to the Board if more than
60 days have passed since the complaint was filed and the
complainant has not received written notification from the
Secretary. A complainant may not appeal to the Board without
first providing written notification to the Secretary of his or her
intention to bring an appeal. Additionally, evidence of written
notification to the Secretary must be included with the notice of
appeal to the Board.
2. The court affirmed the Board’s determination that, because the
petitioner did not show that he exhausted his DOL remedies
before filing his appeal, it lacked jurisdiction over his appeal.
NONPRECEDENTIAL:
Aguirre v. Department of Defense, No. 2024-1349 (Fed. Cir. Oct. 24,
2024) (MSPB Docket No. SF-4324-22-0026-I-1). The court affirmed the
Board’s denial of corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994, finding, inter alia,
the Board’s determination that the petitioner failed to show his combat
military service was a substantial or motivating factor in his termination
supported by substantial evidence.
Marshall v. Merit Systems Protection Board, No. 2024-1330 (Fed. Cir.
Oct. 21, 2024) (MSPB Docket No. DA-3443-23-0415-I-1). The court
affirmed the Board’s jurisdictional dismissal of the appeal, finding that
payment for on-call hours constituted premium pay excluded from the
definition of “pay” for purposes of Board jurisdiction over a “reduction
in pay.” The court also found that the Board properly denied
jurisdiction over the petitioner’s involuntary retirement claim.
Meyokovich v. Department of Justice, No. 2024-1239 (Fed. Cir. Oct. 21,
2024) (MSPB Docket Nos. SF-0752-23-0289-I-1, SF-1221-23-0290-W-1).
The court affirmed the Board’s partial denial of corrective action for
the petitioner’s whistleblower reprisal claim and denial of jurisdiction
over her constructive removal claim, finding that substantial evidence
supported the Board’s finding that the petitioner did not establish
contributing factor through the knowledge/timing test or other
evidence, and deeming her challenge to the dismissal of her
constructive removal claim forfeited because she presented no
argument regarding the dismissal.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jo Spence
Respondent: United States Department of Veterans Affairs
Tribunal: United States Court of Appeals for the District of Columbia Circuit
Case Number: 22-5273
Appeal from United States District Court for the District of Columbia (1:19
cv-01947)
MSPB Docket No. DC-0714-19-0123-I-1
Issuance Date: July 23, 2024
FEDERAL RULES OF CIVIL PROCEDURE – Pro Se Litigants
In 2018, the agency removed Spence from her position as Senior Attorney for
unacceptable performance. Spence appealed her removal to the Board,
arguing that her termination was retaliatory, but the Board affirmed the
agency’s removal decision. Spence then filed a 98-page complaint with the
United States District Court for the District of Columbia alleging five counts of
discrimination and retaliation by the agency. After the agency moved for
summary judgment, Spence moved to amend her complaint to add a sixth
count challenging the Board’s decision and she attached a 234-page complaint.
The district court denied Spence's motion and imposed a 50-page limit on any
subsequent amended complaints. Spence then moved to amend her complaint
a second time, proposing a 148-page complaint that contained her original
98-page complaint as well as an additional 50 pages regarding her Board claim.
The district court denied Spence’s motion and clarified that its cap was
50 pages total, not 50 pages for the additional count.
Spence moved to amend her complaint a third time, attaching a 50-page
complaint and three extensive exhibits containing submissions from her Board
proceeding. The district court granted the motion to amend. However, the
agency moved to dismiss the amended complaint, arguing that Spence was still
violating the court’s filing requirements and that her exhibits were merely
another attempt to skirt the page limit. The agency pointed out that Spence’s
first exhibit was a 57-page statement of facts that she incorporated by
reference, thereby making her 50-page complaint really 107 pages. The
district court subsequently reversed its decision and dismissed Spence’s
amended complaint because it incorporated the statement of facts and thus
violated the page limit. The district court explained it was “troubled” by
Spence's “flagrant disregard” of the limits it had imposed, but dismissed the
complaint without prejudice, giving Spence a last chance to meet the length
requirement.
Spence subsequently filed an amended complaint that complied with the
district court’s page limit. The agency again moved to dismiss the complaint
based on several grounds. Spence filed a memorandum in opposition to the
motion alleging additional facts supporting her claims. The district court
construed the allegations in Spence's complaint liberally because she was
proceeding pro se, but it declined to consider the additional allegations in her
opposition memorandum because Spence was an attorney and so was a “poor
candidate for [the] special treatment” afforded pro se plaintiffs. The district
court thereafter dismissed Counts I–IV and VI for failure to state a claim and
granted summary judgment on Count V, and dismissed Spence's claims with
prejudice because she had disregarded the court's repeated warnings about
pleading requirements and was imposing on the “finite resources” of the
agency and the courts. Spence timely appealed.
Holding: The requirement to afford a liberal construction to a pro se
plaintiff’s pleadings does not apply when the litigant is a licensed attorney.
Rather, such questions are left to the sound discretion of the district court.
1. The D.C. Circuit explained that, today, the pleading standard under the
Federal Rules of Civil Procedure provides that plaintiffs must put forth
only “a short and plain statement of the claim” and “a demand for the
relief sought,” and that courts must construe pleadings “so as to do
justice.” FED. R. CIV. P. 8(a), (e). It noted that this liberal pleading
standard has been extended further for plaintiffs proceeding pro se and
that when weighing whether a pro se plaintiff has stated a claim, courts
must treat technical deficiencies in the complaint leniently and
scrutinize the entire pleading to determine if any legally cognizable
claim can be found. This standard considers “supplemental material
filed by a pro se litigant in order to clarify the precise claims being
urged,” such as facts set forth in a plaintiff's opposition to a motion to
dismiss like in this case.
2. The D.C. Circuit observed that it had never decided whether this liberal
pleading standard applies when a pro se litigant is a licensed lawyer and
held that it does not invariably apply when the litigant is a licensed
attorney. The D.C. Circuit noted that it has recognized in similar
circumstances that the typical leniency afforded pro se litigants does
not necessarily follow for pro se lawyers.
3. The D.C. Circuit explained that although district courts must construe
complaints “so as to do justice,” they retain discretion to consider
supplemental materials submitted by a pro se attorney. The D.C.
Circuit found that, here, the district court did not abuse its discretion in
only considering the allegations in Spence’s complaint and disregarding
her opposition memorandum because Spence is a licensed attorney, has
over 36 years of legal work experience, and has performed litigation
related work, and is thus not the typical pro-se litigant.
4. The D.C. Circuit then affirmed the district court’s findings as to each
count. The court found, among other things, that Spence failed to
plead facts sufficient to state a claim for retaliation under Title VII or
the Age Discrimination in Employment Act; that she did not plead facts
that plausibly suggested her complaints about the agency’s hiring
practices were a contributing factor in her termination; that she failed
to state a prohibited personnel practices claim; and that she did not
prove her claim the agency unlawfully terminated her without first
receiving approval from the Office of Special Counsel per 38 U.S.C.
§ 714(e)(1).
5. Additionally, the D.C. Circuit found that the district court did not abuse
its discretion in dismissing Spence’s complaint with prejudice because
dismissal with prejudice is permissible when a plaintiff has violated
court rules or engaged in egregious conduct. The court agreed that the
circumstances presented here warranted such an outcome.
NONPRECEDENTIAL:
Bowden v. Office of Personnel Management, No. 23-2377 (Fed. Cir. July
24, 2024) (MSPB Docket No. DC-0831-23-0285-I-1). The court affirmed
the Board’s decision, which affirmed a final decision by the Office of
Personnel Management (OPM) notifying the appellant that his monthly
annuity would be reduced when he reached the age of 62 and became
eligible for social security old-age benefits, as required by law and in
accordance with the Civil Service Retirement System (CSRS) Offset. The
court found that the Board correctly determined that the appellant was
properly enrolled in CSRS Offset instead of CSRS without the offset,
which he was ineligible for. The court also found that substantial
evidence supported the Board’s finding that the appellant received
proper notice that he was enrolled in CSRS Offset.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: George Jarkesy, Jr., et al.
Respondent: Securities and Exchange Commission
Tribunal: U.S. Supreme Court
Case Number: 22-859
Issuance Date: June 27, 2024
SEVENTH AMENDMENT
SEPARATION OF POWERS
ALJ FOR CAUSE REMOVAL
Following Congress’s passage of the Dodd-Frank Act, the Securities and
Exchange Commission (SEC) initiated an enforcement action for civil penalties
against investment adviser George Jarkesy, Jr. and his advisory firm, Patriot28
concerning the launch of two investment funds in 2011. The SEC alleged
that Jarkesy and Patriot28 mislead investors in at least three ways:
(1) misrepresenting the strategies the firm employed; (2) lying about
the identity of the funds’ auditor and prime broker; and (3) inflating the
funds’ claimed value so that Jarkesy and Patriot28 could collect larger
management fees. It its enforcement action, the SEC alleged that these
actions violated the antifraud provisions of the Securities Act, the
Securities Exchange Act, and the Investment Advisers Act.
Relying on the authority conferred by the Dodd-Frank Act that the SEC
may impose civil penalties through its own in-house proceedings in
addition to seeking them in federal court, the SEC opted to adjudicate
the matter itself rather than in federal court. In 2014, the presiding
Administrative Law Judge issued an initial decision, and the SEC
reviewed the decision and issued a final order in 2020. Among other
things, the 2020 final order levied a civil penalty of $300,000 against
Jarkesy and Patriot28.
Jarkesy and Patriot28 petitioned for judicial review to the U.S. Court of
Appeals for the Fifth Circuit. A panel granted their petition and vacated
the final order. In doing so, it held that, because the SEC antifraud
claims were akin to a traditional action in debt, Jarksey and Patriot28
were entitled to a jury trial before an Article III court. It further
concluded that the “public rights” exception, which permits Congress
under certain circumstances to assign an action to an agency tribunal
without a jury, consistent with the Seventh Amendment, did not apply
here. Additionally, the Circuit Court identified two additional
constitutional issues: (1) It found that Congress had violated the
nondelegation doctrine by authorizing the SEC, without adequate
guidance, to choose whether to litigate this action in an Article III court
or to adjudicate the matter itself; and (2) It found that the insulation of
the SEC ALJs from executive supervision with two layers of for-cause
removal protections violated the separation of powers. The U.S.
Supreme Court granted certiorari.
Holding: The Seventh Amendment entitles a defendant to a jury trial when
the SEC seeks civil penalties against him for jury fraud.
1. The Seventh Amendment extends to a particular statutory scheme if the
claim is “legal in nature.” To determine whether a suit is legal in
nature, the Court considers the cause of action and the remedy it
provides, but reiterated its precedent that the remedy is the more
important consideration. In this matter, the remedy “is all but
dispositive,” given that the SEC sought civil penalties, a form of
monetary relief, which “are the prototypical common law remedy.” It
further reasoned that the civil penalties in this case were designed to
punish and deter, not to compensate, and that they are, therefore, a
type of remedy at common law that could only be enforced in courts of
law. Thus, the Court concluded that this suit implicates the Seventh
Amendment providing that a defendant is entitled to a jury on these
claims.
2. The Court next considered whether the “public rights” exception
applies, as considered by the Fifth Circuit. Under this exception,
Congress may assign the matter for decision to an agency without a jury,
consistent with the Seventh Amendment. The Court provided some
examples of when the exception applies, including patient rights,
aspects of customs law, immigration law, relations with “Indian tribes,”
and the granting of public benefits, such as payments to veterans and
pensions. The Court concluded that the “public rights” exception does
not apply here because the action involves a matter of private, rather
than public, right. In so finding, it explained that it is the substance of
the suit, not where it is brought, who brings it, or how it is labeled that
governs the analysis, and that the object of this SEC action is to
regulate transactions between private individuals interacting in a pre
existing market. The Court explained that efforts aimed at the public
interest, such as increasing efficiency and reducing public costs, are not
enough to trigger the exception.
Holding: The Court explicitly declined to consider the other constitutional
issues presented by the Fifth Circuit as set forth above, including whether
the insulation of the SEC ALJs from executive supervision with two layers of
for-cause removal protections violates the separation of powers.
1. The Court affirmed the ruling of the Fifth Circuit on the Seventh
Amendment grounds alone.
2. Neither the concurring nor dissenting opinions opined on these
additional constitutional issues.
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COURT DECISIONS
PRECEDENTIAL
Petitioner: Deborah Perlick
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: No. 2023-1091
MSPB Docket Number: NY-1221-19-0052-P-2
Issuance Date: June 20, 2024
WHISTLEBLOWER DAMAGES
COMPENSATORY DAMAGES
The petitioner, who was a temporary Research Health Science Specialist,
alleged that her termination from her term appointment, which the agency
had consistently renewed from 2010 to 2017, was in retaliation for reporting
missing funds to agency officials. The petitioner filed an individual right of
action (IRA) appeal with the Board, and the Board found that the petitioner
established her claim of whistleblower reprisal, and granted corrective action.
As part of that corrective action, the Board awarded the petitioner back pay
until March 31, 2020, i.e., the completion date of her final project, as well as
$20,000 in non-pecuniary compensatory damages. The Board found that the
petitioner was not entitled to consequential damages or pecuniary
compensatory damages for lost earning capacity because the petitioner had no
guarantees of future employment beyond the date of her final project. The
petitioner challenged the Board’s decision as it related to the denial of future
lost earnings.
HOLDING: Future lost earnings are recoverable as compensatory damages
under 5 U.S.C. § 1221(g)(1)(A)(ii).
1. The court explained that the common law meaning of compensatory
damages includes future lost earnings, and that without contrary
indication, Congress adopts the common law definition of statutory
terms.
2. Quoting the Restatement (Second) of Torts § 903, the court explained
that“[c]compensatory damages are the damages awarded to a person as
compensation, indemnity, or restitution for harm sustained to him,”
which is divided into pecuniary or nonpecuniary damages. The court
further explained that, per section 906 of the Restatement, pecuniary
compensatory damages include future pecuniary losses, such as “harm
to earning capacity.” In the context of whistleblowers, the court
reasoned that loss of earning capacity may result from reputational
harm because of defamation due to that employee making protected
disclosures.
3. Accordingly, the court concluded that, by including the term
“compensatory damages” in section 1221(g)(1)(A)(ii), Congress intended
for whistleblower corrective action to include future lost earnings.
4. The court also reviewed the legislative history of section 1221(g)(1)(A),
noting that Congress expanded the recovery available to whistleblowers
in 1994, by including section 1221(g)(1)(A)(i) which required make-whole
relief, and in 2012, which added compensatory damages to the
corrective actions available. Thus, the court found that, based on
Congress’s expansion of recovery available to whistleblowers, it should
interpret the term compensatory damages broadly.
5. The court also noted that interpretations of other similar statutes, such
as Title VII, supports the conclusion that future lost earnings are
recoverable as compensatory damages.
6.
The court declined to determine whether future lost earnings were also
recoverable as consequential damages, noting that its previous decision
in Bohac v. Department of Agriculture, 239 F.3d 1334 (Fed. Cir. 2001),
which limited consequential damages to reimbursement for
out-of-pocket expenses, interpreted an older version of section
1221(g)(1)(A)(ii) that did not contemplate recovery for compensatory
damages. While the court declined to interfere with its findings in
Bohac, or to hold that future lost earnings are not recoverable as
consequential damages under section 1221(g), the court did note that
the correction action provision had been amended since Bohac to
include recovery for compensatory damages, which included future lost
earnings.
HOLDING: The appropriate standard for review of compensatory damages
under the Whistleblower Protection Enhancement Act (WPEA) is the
preponderant evidence standard.
7. The court agreed with the Board that the appropriate standard of
review for both consequential and compensatory damages under the
WPEA is the preponderant evidence standard. However, the court found
that the Board had improperly raised the standard. As the court noted,
the preponderant evidence standard does not require certainty, and
thus, the petitioner should not have to “guarantee” future employment
in order to recover future lost earnings.
8. The court therefore vacated the Board’s decision with respect to the its
denial of future earnings, and remanded the matter for further
consideration of the petitioner’s future lost earnings in accordance with
the decision.
Petitioner: Deborah Strickland
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Fifth Circuit
Case Number: No. 23-60191
MSPB Docket Number: AT-0714-18-0320-I-1
Issuance Date: June 18, 2024
VA ACCOUNTABILITY ACT
DUE PROCESS
The petitioner was a secretary and timekeeper in the agency’s Information
Technology Office, who received a 15-day suspension issued under 38 U.S.C.
§ 714 for charges of unauthorized absence, inappropriate conduct, and conduct
unbecoming a Federal employee. The petitioner appealed her suspension to
the Board, and an administrative judge sustained the suspension, finding that
the agency had proven the third charge, and therefore, there was no reason to
address the remaining two charges, or the petitioner’s affirmative defenses of
discrimination or retaliation under the Rehabilitation Act. Regarding the
affirmative defenses, the administrative judge limited the evidence to that
directly related to the third charge, refusing to hear evidence of pretext or
comparator employees. The petitioner filed a complaint with the U.S. District
Court for the Southern District of Mississippi, which affirmed the initial
decision and dismissed the petitioner’s Rehabilitation Act claims. The
petitioner appealed the district court’s decision to the U.S. Court of Appeals
for the Fifth Circuit, arguing that the administrative judge erred in refusing to
review the Douglas factors, that the agency denied her due process by serving
the proposal notice while she was on leave, and that the suspension decision
was invalid because it was issued after the 15 business-day deadline set forth
in 38 U.S.C. § 714(c)(1)(A).
HOLDING: The administrative judge erred in considering only the third
charge and in failing to consider the Douglas factors, rendering the initial
decision unsupported by substantial evidence, and otherwise not in
accordance with the law.
1.
Applying the reasoning set forth in Sayers v. Department of Veterans
Affairs, 954 F.3d 1370, 1375-76 (Fed. Cir. 2020), the court determined
that section 714 does not override 5 U.S.C. § 7701(c)(2)(C), which
requires the agency’s decision to be in accordance with law,
necessitating that the Board “review[] the adverse action in its
entirety.” Accordingly, the court found that the administrative judge
erred in only reviewing the third charge, and excluding evidence not
related to that charge, including evidence related to the petitioner’s
affirmative defenses.
2.
Next, the court applied the reasoning set forth in Connor v. Department
of Veterans Affairs, 8 F.4th 1319, 1324-27 (Fed. Cir. 2021), and found
that the administrative judge erred in not considering whether the
penalty was reasonable in light of the Douglas factors. Specifically, the
court noted that by preventing the petitioner from presenting evidence
on her affirmative defenses, or any evidence related to the other two
charges, the administrative judge “blocked consideration” of certain
Douglas factors, such as the consistency of the penalty with other
employees, and any mitigating circumstances. The court also found
that, to the extent the administrative judge did consider the Douglas
factors, he did not review the same factors the deciding official
analyzed, resulting in unexplained and incongruent determinations.
HOLDING: The agency did not deny the appellant due process by sending
her the proposal notice while she was on leave.
3. The court found that the agency took sufficient steps to satisfy
procedural due process requirements, noting that the petitioner knew of
the contents of the proposal notice because the agency had rescinded a
prior proposal notice that was substantively similar, and that the agency
took reasonable steps to provide the proposal notice to the petitioner,
including sending a copy of the proposal notice to her work email
address, and mailing copies to the petitioner’s home address.
4. The court concluded that the agency’s actions constituted reasonably
diligent steps to ensure that the petitioner received the proposal notice
with sufficient time to respond, and therefore, there was no denial of
due process.
HOLDING: Absent statutory command, Federal courts will not invalidate an
agency’s decision solely for exceeding a statutory deadline.
5. The petitioner did not establish that Congress stripped the agency of the
authority to act beyond the statutory deadline contained within
38 U.S.C. § 714(c)(1)(A), and therefore, the agency’s delay in issuing its
decision notice did not render it invalid.
6. Instead, an agency’s failure to meet the statutory deadline for
disciplinary decisions is considered a procedural error, and therefore,
harm to the employee must be shown to constitute reversible error.
Here, the petitioner did not allege she suffered any harm from the
agency’s 2-day delay, and thus, there is no reversible error.
HOLDING: The petitioner forfeited her claim that the deciding official erred
by applying the substantial evidence standard of review instead of the
preponderance of the evidence standard because she had not exhausted
the claim before the Board and the district court, and thus had not properly
preserved her argument.
NONPRECEDENTIAL:
Koke v. Merit Systems Protection Board, No. 2023-2173 (Fed. Cir.
Jun. 18, 2024) (MSPB Docket No. PH-0752-17-0202-I-1). The Court
affirmed the Board’s decision, which dismissed the appellant’s removal
appeal for lack of jurisdiction, because the appellant had clearly and
unequivocally withdrawn his appeal, and had made no allegation of new
and material evidence that would render his withdrawal void.
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Mark JONES, Michael Taylor, Fred A. Wynn
Respondent: U.S. Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Fourth Circuit
Case Number: 23-1328
MSPB Docket Number: DE-1221-22-0231-W-1
Issuance Date: June 6, 2024
JURISDICTION (NONFRIVOLOUS ALLEGATION)
In the fall of 2017, the petitioners were serving as the Acting Director,
Acting Deputy Director, and a Program Analyst for the Customs and
Border Protection's Weapons of Mass Destruction Division (WMDD). The
WMDD had been very successful and was receiving much praise from the
agency's leadership at that time. There were also indications that the
petitioners would be rewarded with an increase in pay, rank, and status.
In November 2017, members of the WMDD began to express concerns to
agency leadership that the agency was out of compliance with the law
regarding the collection of DNA from certain people. Dissatisfied with
the agency’s response, on February 15, 2018, a lower-level WMDD
employee sent an email elevating their concerns to the Chief Advisor to
the Secretary of the Department of Homeland Security. According to
the petitioners, agency leadership began retaliating against them after
this email, because, among other things, projects were soon taken away
from WMDD, and the division was transferred to work as a branch under
another division. The petitioners each filed timely individual right of
action appeals with the Board, which the administrative judge
consolidated into a single appeal. The consolidated appeal alleged 22
specific acts of reprisal. The administrative judge found that, on all of
the claims, the petitioners satisfied the jurisdictional requirements that
they prove that they exhausted their administrative remedies before the
Office of Special Counsel (OSC) and nonfrivolously allege that they
engaged in whistleblowing activity under 5 U.S.C. § 2302(b)(8).
However, he found that 15 of the claims did not nonfrivolously allege
that the agency took or failed to take a “personnel action” as defined
by 5 U.S.C. § 2302(a) and that, therefore, they were not within the
Board jurisdiction. The petitioners ultimately appealed only three of
those 15 claims to the U.S. Court of Appeals for the Fourth Circuit, after
the administrative judge’s decision became the final decision of the
Board. The only issue on appeal was whether the petitioners
nonfrivolously alleged that those three retaliatory acts constituted
appealable personnel actions under the whistleblower protection
statutes. The court found that they did and reversed the Board’s
decision, which dismissed the appeal for lack of jurisdiction.
Holding: The Board has jurisdiction over the petitioners’ allegation
that the agency “[c]eased contemplating permanent promotions for
[the petitioner]s, which were anticipated prior to February 15,
2018.” The allegation is nonfrivolous because, if true, it could
establish that the agency did not promote the petitioners in reprisal
for disclosures.
1. The administrative judge erred in dismissing the allegation based on his
finding that it was not cognizable as a personnel action because the
agency’s remarks concerning the anticipated promotions were too
preliminary and speculative. The bar for jurisdiction is low and does not
require that the alleged conduct meet the statutory definition of
“personnel action,” only that it possibly could.
2. The jurisdictional element that the agency “took or did not take” a
personnel action does not connote a reasonable expectation that an
action will be taken, only a lack of action. Moreover, it need only be
plausible that the agency did not take the action.
3. The petitioners’ allegation that the agency “ceased contemplating”
their promotions is not conclusory, implausible, or immaterial because it
is supported by additional factual assertions. The assertion that WMDD
was recognized as highly successful prior to the February 15, 2018 email
supports a contemplated promotion, and the assertion that their
responsibilities and statuses plummeted after that email supports that
agency stopped considering the petitioners for promotions.
Holding: The Board has jurisdiction over the petitioners’ allegations
that the agency relegated WMDD to a branch under another division
and that it “[r]educed the WMDD’s size and proceeded to dismantle
the Division.” The allegations are nonfrivolous because, if true, they
could establish that the agency significantly changed the petitioners’
duties, responsibilities, or working conditions.
4. Like the petitioners’ first allegation, these allegations are
nonconclusory, plausible, and material because they are “backed
by extensive, believable factual allegations.” The petitioners
cited, among other things, numerous emails concerning WMDD’s
transfer and OSC’s determination that agency leadership isolated
WMDD and minimized its role.
5. The administrative judge erred in considering these allegations as
events that contributed to the first alleged personnel action, instead of
analyzing them as discrete personnel actions. The petitioners alleged
them as separate actions, and the mere fact that they are related is not
a basis to combine them.
NONPRECEDENTIAL:
Ramirez v. Department of Veterans Affairs, No. 2024-1305 (Fed. Cir.
June 4, 2024) (MSPB Docket No. DE-0752-14-0482-I-1). The court
affirmed the Board’s decision, which affirmed the agency’s removal
action, finding, in part, that the agency proved the charged misconduct
(violations of the Health Insurance Portability and Accountability Act
and the Privacy Act). The court concluded that the Board’s legal
determinations were not erroneous, and that its factual findings were
supported by substantial evidence.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Stuart Harrow
Respondent: Department of Defense
Tribunal: U.S. Supreme Court
Case Number: 23-21
MSPB Docket No.: PH-0752-13-3305-I-1
Issuance Date: May 16, 2024
JURISDICTION
TIMELINESS – EQUITABLE TOLLING
The petitioner appealed a 6-day furlough to the Board. In 2016 an
administrative judge upheld the furlough, and the petitioner petitioned
the Board for review. Due to its loss of quorum, the Board did not issue
an order affirming the administrative judge’s decision until May 2022.
The petitioner appealed to the U.S. Court of Appeals for the Federal
Circuit in September 2022, past the 60-day deadline provided in 5 U.S.C.
§ 7703(b)(1). The petitioner explained that his filing was delayed
because, during his years-long wait for the Board’s decision, his work
email address had changed, the old email address had at some point
stopped forwarding emails to his new email address, and that he only
learned of the decision from a search of the Board’s website after the
60-day period had run. The Federal Circuit declined the petitioner’s
request for equitable consideration, explaining that the 60-day deadline
was a jurisdictional requirement not subject to equitable tolling.
HOLDING: The 60-day deadline for petitioning the Federal Circuit for
review of a final Board decision or order in 5 U.S.C. § 7703(b)(1) is
not jurisdictional.
1. A court may be able to excuse a party’s noncompliance with a
procedural rule for equitable reasons, except in a small set of
cases where the rule is jurisdictional. The Supreme Court will
treat a procedural requirement as jurisdictional only if Congress
clearly states that it is. Most time bars are nonjurisdictional,
regardless of whether they are framed in mandatory terms. No
language in section 7703(b)(1) suggests that the 60-day deadline is
jurisdictional, as there is no mention of the Federal Circuit’s
jurisdiction, whether generally or over untimely claims.
2. 28 U.S.C. § 1295(a)(9) grants the Federal Circuit jurisdiction “of
an appeal from a final order or final decision of the Merit Systems
Protection Board, pursuant to section[] 7703(b)(1).” But to file an
appeal from a Board’s order “pursuant to” section 7703(b)(1)
likely means to invoke that section as the basis for the appeal,
rather than to comply with its associated time limit. Section
1295(a)(9)’s use of the words “pursuant to” does not plainly show
that section 7703(b)(1)’s deadline has jurisdictional
consequences. Such a reading is confirmed by the rest of section
1295, which uses the term “pursuant to” several more times to
reference laws containing a bevy of other procedural rules. If all
those requirements too would become jurisdictional, the result
would be untenable.
3. The Court explained that the deadline for filing an appeal from a
U.S. district court’s decision in a civil case held to be
jurisdictional in Bowles v. Russell, 551 U.S. 205 (2007), is
exceptional in nature, and Bowles governs statutory deadlines to
appeal from one Article III court to another. The present case
falls outside of that exception because the petitioner appealed to
the Federal Circuit from the Board.
NONPRECEDENTIAL:
Fleming v. Merit Systems Protection Board, U.S. Department of Interior,
No. 23-10962 (11th Cir. May 23, 2024) (MSPB Docket No. AT-1221-11
0460-B-3). The petitioner filed a petition for review against both the
Board and her employing agency, challenging the Board’s decision
denying corrective action in her individual right of action appeal. The
court dismissed the petition for review as to the Board, which the court
found was an improper party as the petitioner sought review of the
merits of a termination. The court then denied the petition for review
as to the petitioner’s employing agency because the Board’s
determination that the agency showed by clear and convincing evidence
that it would have terminated the petitioner absent her whistleblowing
was supported by substantial evidence.
Harris v. Department of Defense, No. 2023-1677 (Fed Cir. May 21, 2024)
(MSPB Docket Nos. CH-0752-17-0303-I-1, CH-3443-16-0593-I-1). The
court affirmed the Board’s dismissals of the petitioner’s appeals—one
pertaining to a 14-day suspension and placement on absence without
leave status which was dismissed for lack of jurisdiction, the other a
removal appeal which was dismissed as settled.
Johnson v. Merit Systems Protection Board, No. 2023-1996 (Fed. Cir.
May 21, 2024) (MSPB Docket No. AT-1221-20-0201-M-1). The court
affirmed-in-part and vacated-in-part the Board’s remand decision,
specifically affirming the dismissal of the petitioner’s involuntary
retirement claim for lack of jurisdiction, but vacating the Board’s
conclusion that she failed to submit briefing on her claims for (1)
economic damages stemming from the delay of her retirement annuity
and (2) sanctions against her employing agency for filing personally
identifiable information into the appeal docket. The court remanded
those issues to the Board for further consideration.
Sanders v. Merit Systems Protection Board, No. 2023-2058 (Fed. Cir. May
17, 2024) (MSPB Docket No. AT-0843-17-0575-I-1). The court affirmed
the Board’s jurisdictional dismissal of an appeal of an Office of
Personnel Management (OPM) initial decision on the grounds that the
petitioner did not challenge the Board’s determination that it lacked
jurisdiction, nor contend that OPM constructively denied a
reconsideration request.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Anthony W. Perry
Respondent: Gina Raimondo, United States Secretary of Commerce
Tribunal: U.S. Court of Appeals for the District of Columbia Circuit
Case Number: 22-5319
MSPB Docket Numbers: DC–0752–12–0486–B–1, DC–0752–12–0487–B–1
Issuance Date: May 14, 2024
JURISDICTION
INVOLUNTARY RETIREMENT
MIXED CASE APPEALS
The petitioner entered into a settlement agreement before the Equal
Employment Opportunity Commission (EEOC) wherein he agreed to serve
a 30-day suspension in lieu of a removal action, voluntarily resign or
retire following the suspension, and waive his Board appeal rights with
respect to the two actions. He subsequently filed a mixed case appeal
with the Board alleging that the actions were involuntary and raising
discrimination claims. The Board dismissed his suspension and
involuntary retirement appeals for lack of jurisdiction and, therefore,
found no authority to consider his affirmative defenses. The petitioner
sought review from the U.S. Court of Appeals for the D.C. Circuit, which
transferred the petition for review to the U.S. Court of Appeals for the
Federal Circuit. The U.S. Supreme Court granted certiorari and held
that the proper review forum when the Board dismisses a mixed case on
jurisdictional grounds is district court.
Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). Thus, the court reversed and
remanded to the D.C. Circuit, which transferred the case to the U.S.
District Court for the District of Columbia. The district court entered
summary judgment in favor of the agency and affirmed the Board’s
decision dismissing the petitioner’s claims for lack of jurisdiction.
The petitioner appealed to the D.C. Circuit, arguing that the district
court erred by failing to consider his discrimination claims de novo and
by affirming the Board’s dismissal for lack of jurisdiction.
Holding: The Board properly dismissed the petitioner’s mixed case
for lack of jurisdiction. However, the district court erred by not
allowing the petitioner to litigate the merits of his discrimination
claims as required by statute.
1. Federal employees are protected from unlawful employment
actions by two different – but overlapping – statutory regimes: (1)
various federal anti-discrimination laws; and (2) the Civil Service
Reform Act (CSRA), which establishes a framework for evaluation
personnel actions taken against Federal employees. A Federal
employee alleging both unlawful discrimination and a serious
adverse employment action may proceed by bringing a standard
claim under Title VII by exhausting administrative remedies and
then filing a case in the district court. Or, instead, the employee
may bring the case before the Board as a “mixed case”—either by
first filing an EEO complaint with the agency and appealing an
unfavorable outcome to the Board or, alternatively, by appealing
the adverse action directly to the Board. If the employee chooses
to proceed in a mixed case before the Board, as was the case
here, the employee may seek review by the district court.
2. The district court was required to consider the petitioner’s
discrimination claims de novo even if the Board did not address
those claims. The provision of the CSRA that addresses judicial
review of Board decisions states that “in the case of
discrimination... the employee or applicant shall have the right
to have the facts subject to trial de novo by the reviewing court.”
5 U.S.C. § 7703(c). The Supreme Court has held that the
“reviewing court” identified in the statute is the federal district
court and, thus, mixed cases shall be “reviewed” in district court,
5 U.S.C. § 7703(c), regardless of whether the Board decided it on
the merits, on procedural grounds, or on jurisdictional grounds.
Perry, 582 U.S. at 429; Kloeckner v. Solis, 568 U.S. 41, 56 (2012).
The district court was thus required to provide a “trial de novo”
on the petitioner’s claims of discrimination. 5 U.S.C. § 7703(c).
a. The court noted that this framework raises the question of
whether an employee is required to pursue an EEO
complaint before the agency—thereby exhausting his
administrative remedies—before litigating the discrimination
part of his mixed case in the district court. Because it was
undisputed that the petitioner exhausted his administrative
remedies—albeit after he filed his Board appeal, the court
reserved the issue for another day.
3. The Board’s underlying jurisdictional determination concerning
the petitioner’s involuntary retirement claim was not arbitrary or
capricious. The petitioner contended that his retirement was
involuntary because the agency lacked reasonable grounds for
threatening to terminate his employment based on unauthorized
absences from work. Specifically, he argued that he had an
unofficial accommodation for osteoarthritis that allowed him to
be absent as necessary. However, the appellant did not attribute
all his absences to the alleged accommodation, and the
undisputedly unexcused absences provided reasonable grounds for
his termination. Thus, he did not make nonfrivolous allegations
that his retirement was involuntary.
4. The petitioner’s argument that the court should apply the Douglas
factors to determine that his termination would not have been
justified was unavailing because a Douglas analysis would not
render arbitrary or capricious the Board’s conclusion that the
agency had reasonable grounds for his termination.
See Douglas
v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981)
(identifying 12 non-exhaustive factors relevant to evaluating the
lawfulness of an agency’s employment action).
NONPRECEDENTIAL:
Mulligan v. Merit Systems Protection Board, No. 2023-2405 (Fed. Cir.
May 16, 2024) (MSPB Docket No. SF-0752-16-0093-I-2) (per curiam). The
court affirmed the Board’s decision, which dismissed the petitioner’s
petition for review as untimely filed after he failed to respond to the
Board’s notice to show cause for his one-day delay. The court noted
that the Board previously considered the arguments raised by the
petitioner on appeal when it granted the appellant an extension of time
to file his petition for review. The court stated that perhaps it would
not have exercised its discretion in the same manner as the Board but
nevertheless concluded that the Board did not abuse its discretion.
Etzel v. Environmental Protection Agency, No. 2022-2050, 2022-2051
(Fed. Cir. May 16, 2024) (MSPB Docket Nos. DC-1221-19-0827-W-2, DC
3443-21-0391-I-1). The court affirmed the Board’s decisions, which
found the following: (1) the petitioner failed to make a protected
disclosure under the Whistleblower Protection Act (WPA) contributing to
an adverse personnel action; and (2) the petitioner failed to raise a
nonfrivolous allegation of Board jurisdiction with respect to her pay
reduction. Concerning the WPA, the court agreed with the Board that
two out of three of the petitioner’s alleged disclosures reraised on
appeal were not protected because one disclosure was overly broad and
generalized, and the other disclosure pre-dated the events that
allegedly formed the basis of her reasonable belief in the unlawfulness
of the matter disclosed. The court also affirmed the Board’s credibility
based finding that the third disclosure, while protected, did not
contribute to an adverse personnel action because the petitioner did not
prove that she suffered a lack of substantive work assignments, i.e. the
alleged personnel action. The court also found no abuse of discretion in
the administrative judge’s denial of the petitioner’s motion to compel
discovery as untimely. Concerning the pay reduction appeal, the court
found no error in the Board’s conclusion that it lacked jurisdiction
because pay reductions for Senior Executive Service members are not
reviewable by the Board.
Bumgardner v. Department of the Navy, No. 2023-1713 (Fed. Cir. May
13, 2024) (MSPB Docket No. DC-3330-22-0043-I-1) (per curiam). The
court affirmed the Board’s decision denying the petitioner’s request for
corrective action under the Veterans Employment Opportunities Act of
1998 (VEOA). The court found no error in the Board’s conclusion that,
as a matter of law, the agency could not have violated veteran
preference rights when it selected a different candidate for the position
because both the petitioner and the selectee were entitled to the same
exact statutory benefits under the VEOA and agency policy. The court
found no persuasive support for the petitioner’s argument that he and
the selectee were not entitled to the exact same veteran-preference
benefits because the selectee was an internal candidate. The court also
determined that the Board did not abuse its discretion by denying the
petitioner a full hearing and deciding the appeal as a matter of law
based on the written record.
Swick v. Merit Systems Protection Board, No. 2023-2085 (Fed. Cir. May
10, 2024) (MSPB Docket No. DC-1221-17-0008-W-1) (per curiam). The
petitioner appealed her resignation as involuntary and alleged
whistleblower reprisal. The court affirmed the Board’s dismissal for
lack of jurisdiction based on the written record. Concerning the
involuntary resignation claim, the court found that the petitioner’s
allegations did not demonstrate that she had no choice but to resign or
that the agency’s threat of disciplinary action was untrue or misleading.
Concerning the whistleblower reprisal claim, the court found no error in
the Board’s determination that the petitioner failed to exhaust her
administrative remedies with the Office of Special Counsel.
Broaden v. Department of Transportation, No. 2023-2316 (Fed. Cir. May
10, 2024) (MSPB Docket No. DE-4324-23-0098-I-1) (per curiam). The
petitioner applied for numerous vacancies for Air Traffic Control
Specialist, Support Specialist positions with the Federal Aviation
Administration (FAA) but was not selected based on the FAA’s
requirement of civilian FAA experience. He previously appealed several
of these nonselections with the Board, arguing that the FAA’s
requirement was inherently violative of the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). The
Board, finding that the credible testimony of an agency employee
demonstrated sound reasons for not treating military air traffic
controller experience as equal to civilian FAA experience, denied the
petitioner’s request for corrective action, and the court affirmed. The
petitioner filed another USERRA appeal with the Board, raising the same
challenges related to nonselections that preceded the court’s final
adjudication as well subsequent nonselections to Support Specialist
positions. The Board invoked res judicata and applied collateral
estoppel, respectively. Finding no error, the court affirmed the Board’s
d ecision.
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BOARD DECISIONS
Appellant: Macaulay Wiiliams
Agency: Department of Commerce
Decision Number: 2024 MSPB 8
Docket Number: DC-0752-17-0595-I-1
Issuance Date: April 23, 2024
Appeal Type: Adverse Action
ADVERSE ACTION CHARGES
ABSENCE RELATED
The agency proposed the appellant’s removal for improper conduct, including,
among other things, excessive absences. It alleged that the appellant had
been absent with no foreseeable end for over 1 year, or 2,840 hours due to his
medical condition. In response, the appellant indicated that he could return
to work and submitted supporting documentation. The appellant returned to
work on a part-time intermittent schedule for almost two months before he
began requesting leave again. Thereafter, the agency removed the appellant
for excessive absences. The administrative judge sustained the removal,
finding that the agency proved the excessive absence charge.
Holding: When an employee is removed for excessive, approved absences,
an agency cannot rely on absences that predate its warning to prove a
charge of excessive approved absences.
1. The Board has generally held that, in order to prove an excessive,
approved absences charge, an agency must show that, amongst other
things, 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. The Board clarified when an employee is not
adequately notified that he could be disciplined for his excessive,
approved absences, a charge of excessive absences will only be
sustained when the post-warning absences were themselves excessive.
It further stated that a notification of potential discipline could not be
considered as a “warning” to the extent that the notice was given after
the underlying conduct already occurred.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Kevin Jones
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2022-1788
Petition for Review of MSPB No DC-0752-21-0375-I-1.
Issuance Date: April 19, 2024
JURISDICTION
“EMPLOYEE”
PROBATIONERS/5 U.S.C. § 7511(a)(1)(B)
The petitioner transferred without a break in service from a term
appointment as an Attorney, GS-0905-14, with the U.S. Department of
Agriculture (USDA) to the position of Attorney, GS-0905-14, with the
Department of Justice’s (DOJ) Bureau of Alcohol, Tobacco, Firearms and
Explosives. During his probationary period, the appellant resigned after
the agency informed him of its intent to recommend his termination.
He filed an EEO complaint alleging that the agency discriminated against
him on the basis of his race, sex, age, disability, and reprisal when it
forced him to resign. The agency issued a Final Decision finding no
evidence of discrimination and the petitioner appealed the decision to
the Board.
After a hearing on jurisdiction, the administrative judge found that the
Board lacked jurisdiction over the petitioner’s alleged involuntary
resignation because he had not shown that he was an “employee” as
required by 5 U.S.C. § 7511(a)(1)(B). The petitioner appealed the
administrative judge’s decision to the U.S Court of Appeals for the
Federal Circuit.
Holding: Substantial evidence supported the administrative judge's
finding that the attorney's positions at DOJ and USDA were not similar
and, thus, that he could not add his time at USDA to his four months
at DOJ to meet the one-year-of-continuous-service requirement for
qualifying as an employee under 5 U.S.C. § 7511(a)(1)(B) who could
appeal the DOJ's adverse employment action to Board.
1. Section 7511(a)(1)(B) defines an “employee” as “a preference
eligible in the excepted service who has completed 1 year of
current continuous service in the same or similar positions.”
“Similar positions” are further defined by 5 C.F.R. § 752.402 as
“positions in which the duties performed are similar in nature and
character and require substantially the same or similar
qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue
interruption to the work.” The court asserted that, in
determining similarity, it is essential to consider “the nature of
the work performed in the two jobs” and “the fundamental
character of the work” performed.
2. Both of the petitioner's GS-0905-14 Attorney-Advisor positions had
a general focus on employment law. The administrative judge
concluded the two positions were not “similar” as required by
5 U.S.C. § 7511(a)(1)(B) reasoning that at USDA, the petitioner
litigated already filed employment discrimination cases before the
Equal Employment Opportunity Commission (EEOC), whereas at
DOJ, he advised others on potential employment disciplinary
actions. The court agreed and held that the record supported the
administrative judge’s finding that the two positions involved
different duties and required different skills, fundamentally
affecting the nature and character of the work.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jatonya Muldrow
Respondent: City of St. Louis, Missouri
Tribunal: United States Supreme Court
Case Number: 22-193
Issuance Date: April 17, 2024
TITLE VII
ADVERSE EMPLOYMENT ACTIONS/REASSIGNMENT
The petitioner, a sergeant for the St. Louis Police Department, was
involuntarily reassigned to another unit, and was replaced by a male police
officer. Although the petitioner had the same pay and title, the reassignment,
among other things, impacted her schedule, put her in a less prestigious
environment, reduced her visibility and responsibilities within the department,
and impacted her daily attire, as she previously could wear plainclothes but
now had to wear a uniform. The petitioner sued the City for violations of Title
VII, alleging that she was reassigned because she was a woman. The United
States District Court for the Eastern District of Missouri granted summary
judgment to the City, finding that the petitioner had not suffered a significant
change in working conditions producing a material employment disadvantage
The United States Court of Appeals for the Eighth Circuit affirmed the decision,
agreeing with the district court that the petitioner was required to—and
failed—to show a material significant disadvantage.
Holding: An employee challenging a reassignment under Title VII must show
that the reassignment caused some harm with respect to an identifiable
term or condition of employment, but the harm need not be significant.
1. Title VII makes it unlawful for an employer “to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s... sex.”
42 U.S.C. § 2000e-2(a)(1). The Court carefully analyzed this statutory
language, explaining that, in order “to discriminate against” an
individual, there must be “differences in treatment that injure” the
individual, citing to its decision in Bostock v. Clayton County, 590 U.S.
644, 681 (2020). In other words, the phrase “discriminate against”
means to treat an individual worse, but does not establish an elevated
threshold of harm.
2. The Court reiterated that “terms [or] conditions” covers more than
economic or tangible terms or conditions of employment. The Court
also noted that the parties agreed that the petitioner’s reassignment
implicated terms or conditions of her employment.
3. The Court concluded that, in order to establish a Title VII discrimination
claim involving a reassignment, an employee must show that the
reassignment resulted in some harm with respect to an identifiable term
or condition of employment. However, the employee does not have to
prove that the harm resulting from the reassignment was “significant”
or otherwise surpass a heightened bar.
4. The Court remanded the matter to the courts below to apply the proper
standard and determine whether the petitioner established that her
transfer caused some injury with respect to the terms or conditions of
her employment.
5. Justice Alito, Justice Thomas, and Justice Kavanaugh wrote concurring
opinions.
NONPRECEDENTIAL:
Mellick v. Department of the Interior, No. 2023-1733 (Fed. Cir. Apr. 17,
2024) (MSPB Docket No. SF-0752-16-0121-B-1). The Court affirmed the
Board’s decision, which dismissed the appellant’s removal appeal under
a Last Chance Agreement (LCA) for lack of jurisdiction, finding that he
did not establish that the agency breached the confidentiality provision
of the agreement, and he did not otherwise establish that his waiver of
appeal rights was unenforceable. The Court agreed with the Board, and
rejected the appellant’s claim that the agency breached the agreement,
finding, among other things, that it was not a breach of the
confidentiality provision to disclose the terms of the LCA to the agency
personnel responsible for executing those terms.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Sha’lisa Lewis
Respondent: Federal Bureau of Prisons
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2023-2015
Arbitrator’s decision No. FMCS 220523-06204
Issuance Date: March 4, 2024
ARBITRATION/COLLECTIVE BARGAINING-RELATED ISSUES
PROBATIONARY TERMINATION
The petitioner was a probationer, and the final day of her probationary
period was April 8, 2022. The agency placed her on paid administrative
leave ten days prior to April 8th, and subsequently prepared a notice
terminating her two days prior to the last day of her probationary
period. It then attempted to inform her of the notice by several
methods; first, it instructed her on April 5, 2022, to report to duty the
following day with the intention of serving the termination notice in
person, second, it sent her the termination notice by USPS Certified Mail
and overnight FedEx mail on April 6, 2022, and third, an agency human
resources manager called the petitioner on the last day of her
probationary period and left a voicemail message referencing the
termination notice. The petitioner did not appear for duty on April 6,
2022, as instructed, and produced a medical notice stating that she was
seen at a medical clinic the previous day and was excused from duty
until the day after her probationary period ended. She also denied
receiving the FedEx package, despite the fact that it was signed for, and
further, an attempt by USPS to deliver the notice on April 8, 2022, was
unsuccessful. Finally, the phone call to the petitioner was unanswered,
and although the human resources manager left a voicemail message,
the petitioner asserted that she did not receive the message until after
the end of the workday on the last day of her probationary period.
The petitioner’s union grieved her termination, alleging that she was
removed without due process and applicable statutory and regulatory
protections and invoked arbitration after the grievance was denied. The
arbitrator determined that the petitioner was terminated during her
probationary period and that she was not entitled to advanced notice or
other due process protections. She did not resolve whether the
petitioner had received the notice of termination prior to the end of her
probationary period, and instead determined that probationary
employees are entitled to a written explanation of the reasons for
termination, but that nothing in the relevant regulation requires that
the notice be provided prior to termination. The petitioner appealed
the arbitration decision to the U.S Court of Appeals for the Federal
Circuit.
Holding: Under 5 C.F.R. § 315.804(a), an agency is required to notify
an employee of her termination, in writing, before the end of the
probationary period, but that notice need not be actually received in
order to be effective.
1. Under the regulation, an agency may not rely only on an internal
decision to terminate an employee without informing her of the
termination, but the regulation does not require that the
employee actually receive the notice before the end of the
probationary period.
2.
Pursuant to a decision by the United States Court of Claims, Shaw
v. United States, 622 F.2d 520 (Ct. Cl. 1980), a termination is
effective if the agency does “all that could be reasonably
expected under the circumstances” to timely deliver the notice.
3. Although Shaw predated the enactment of the Civil Service
Reform Act of 1978, the regulation at issue here is identical to the
one at issue in Shaw, and so it is relevant precedent.
4. A contrary rule that would require timely actual notice would
permit probationary employees to evade notice in order to
prevent termination.
5. Based on the agency’s numerous attempts to serve the
termination notice on the petitioner, no reasonable arbitrator
could find that the agency’s efforts were not reasonable under the
circumstances, and so the agency effectively terminated the
petitioner during her probationary period.
NONPRECEDENTIAL:
Martinez v. Office of Personnel Management, 2023-2394 (Fed. Cir.
March 7, 2024) (DA-844E-21-0160-I-1) (per curiam). The court dismissed
for lack of jurisdiction an appeal of the Board’s decision affirming the
Office of Personnel Management’s reconsideration decision denying the
petitioner’s application for Federal Employees’ Retirement System
disability retirement benefits on the basis that his disabling condition
pre-existed his Federal service and there was no evidence that his single
day of Federal service exacerbated his pre-existing condition.
Dempsey v. United States Marshals Service, 2022-1665 (Fed. Cir. March
5, 2024) (FMCS 211117-01415) (per curiam). The court affirmed the
arbitrator’s decision affirming the petitioner’s removal for unacceptable
performance under 5 U.S.C. Chapter 43. The court concluded that
substantial evidence supported the arbitrator’s findings that the
petitioner was warned that his performance was unacceptable, his
placement on the performance improvement plan (PIP) was justified, he
was provided with a reasonable opportunity to improve his performance,
and his performance nevertheless remained unacceptable in at least one
critical element at the end of the PIP period. The court acknowledged
the petitioner’s arguments that his workload during the PIP period was
too great and that he was given additional tasks, that his PIP effectively
lasted less than 30 days, and that he was improperly faulted for failing
to provide notice that he could not meet some of the PIP deadlines but
determined that these arguments did not warrant a different outcome.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Torres v. Department of Homeland Security
Tribunal: United States Court of Appeals for the Federal Circuit
Case Number: 2022-2003
Issuance Date: December 20, 2023
PENALTY
- DISPARATE PENALTIES
- FALSIFICATION/FRAUD
- MISCELLANEOUS
The agency removed the petitioner from his Deportation Officer position based
on charges of Falsification of Certified Records and Absence without Leave.
The petitioner’s union invoked arbitration. The arbitrator affirmed the
removal.
HELD: Remand to the arbitrator was required for further consideration of
the Douglas factors, specifically factor 6 (“consistency of the penalty with
those imposed on other employees for the same or similar offenses”) and
factor 10 (“potential for the employee’s rehabilitation”).
Regarding Douglas factor 6, the arbitrator distinguished the appellant’s
circumstances from those of one potential comparator on the grounds that in
the comparator’s case, the agency did not rely on Giglio-impairment1 as it did
in the appellant’s case. However, the court found that the arbitrator failed to
explain why Giglio-impairment was a distinguishing factor; the court noted that
the agency did not remove every Giglio-impaired officer and it was not clear
from the record whether the appellant even routinely testifies in court as part
of his duties.
Regarding Douglas factor 10, the court found that the arbitrator failed to
provide substantial evidence to support his conclusion that the appellant had
no potential for rehabilitation. The court therefore vacated the decision of the
arbitrator and remanded the case for consideration of the appellant’s evidence
regarding the consistency of the penalty and his potential for rehabilitation.
NONPRECEDENTIAL:
English v. Merit Systems Protection Board, 23-9526, 9527, 9528 (10th Cir.
December 21, 2023). The court affirmed the Board’s decisions in two
individual right of action (IRA) appeals and an adverse action appeal
challenging a 30-day suspension. The court agreed with the Board that the
agency proved by clear and convincing evidence that it would have taken the
same actions at issue in all three appeals in the absence of the petitioner’s
p rotected disclosures.
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1 Under Giglio v. United States, 405 U.S. 150 (1972), a law enforcement
officer’s prior misconduct that could implicate his credibility must be disclosed
when that officer testifies in a criminal proceeding. | 2,555 | |
Case Report - July 7, 2023 | 07-07-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_7_2023_2047493.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_7_2023_2047493.pdf | Case Report for July 7, 2023
BOARD DECISIONS
Appellant: Marnie B. Golden
Agency: Department of Veterans Affairs
Decision Number: 2023 MSPB 19
Docket Number: CH-3330-16-0556-I-1
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:
Petitioner: Jacquana Williams
Respondent: Federal Bureau of Prisons
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2022-1575
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.
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Case Report - June 23, 2023 | 06-23-2023 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_23_2023_2043566.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_23_2023_2043566.pdf | Case Report for June 23, 2023
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Adam Robinson
Respondent: Department of Homeland Security, Office of Inspector General
Tribunal: U.S. Court of Appeals for the D.C. Circuit
Case Number: 22-5093
Appeal from U.S. District Court for the District of Columbia (1:20-cv-02021)
MSPB Docket No. AT-0752-18-0388-I-2
Issuance Date: June 16, 2023
Judicial Review - Timeliness
In February 2019, the agency removed Robinson from his Program Analyst
position for performance-based reasons. Robinson filed a mixed-case appeal
with the Board, raising affirmative defenses of race and sex discrimination and
retaliation for filing a Title VII complaint. On April 15, 2020, the
administrative judge issued an initial decision sustaining the agency’s removal
and rejecting Robinson’s Title VII claims. The decision informed Robinson that,
unless he filed a petition for review, the initial decision would become the
final decision of the Board on May 20, 2020, and that he could seek judicial
review by filing an appeal with an appropriate U.S. district court within 30
days after the finality date. The Board did not receive a petition for review,
and so the ALJ’s initial decision became final on May 20, 2020.
On June 15, 2020, twenty-six days after the Board decision became final,
Robinson (then proceeding pro se) called the Clerk of the U.S. District Court
for the District of Columbia “to ask about the processing of mail during the
Covid-19 outbreak.” According to Robinson, the clerk personnel “informed
[him] that filing deadlines during this period were not being strictly enforced
due to the pandemic and the clerk’s office [was] operating on a modified
schedule where Court clerks were only on-site two days per week to process
filings.” Robinson was also advised that “it was more important to just file
rather than to worry about meeting a strict deadline.”
At that time, the district court was operating under a standing order that
directed pro se litigants to submit a filing to the court (1) “by sending the
filing via email to the Court’s email address” or (2) “by date-stamping and
depositing papers in drop boxes located at the entrance to the Courthouse.”
Robinson instead mailed his complaint by standard mail on June 15, four days
before the June 19, 2020 filing deadline. Robinson anticipated that his
complaint would be delivered on June 17, but it arrived late and was posted to
the court’s docket on June 20, 2020, one day after the filing deadline.
The agency moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6),
and on March 10, 2022, the district court granted the agency’s motion. The
district court held that it was without authority to equitably toll Robinson’s
complaint, citing King v. Dole, 782 F.2d 274 (D.C. Cir. 1986), which held that
the 30-day filing limit under 5 U.S.C. § 7703(b)(2) is a jurisdictional
requirement. Alternatively, the district court found that Robinson was not
entitled to equitable tolling on the record before it. Robinson timely appealed
to the D.C. Circuit.
Holding: The D.C. Circuit overruled its prior decision in King and held that
the 30-day filing deadline under 5 U.S.C. § 2302(b)(2) is a non-jurisdictional
claims-processing rule.
1. Robinson’s appeal of the Board’s decision is governed by 5 U.S.C.
§ 7703(b)(2), which provides that judicial appeals in cases of
discrimination subject to § 7702 (i.e., mixed cases) are to be filed under
42 U.S.C. § 2000e-16(c), 29 U.S.C. § 633a(c), or 29 U.S.C. 216(b), as
applicable, and that “[n]otwithstanding any other provision of law, any
case filed any such section must be filed within 30 days after the date
the individual filing the case received notice of the judicially reviewable
action under such section 7702.” The longstanding rule in the D.C.
Circuit, set out in King, was that the 30-day deadline is a jurisdictional
requirement, and not subject to equitable tolling.
2. However, three years after King was decided, the Supreme Court held
that the filing deadline in 42 U.S.C. § 2000e-16(c), one of the three
listed causes of action in § 7703(b)(2), is nonjurisdictional and that “the
same rebuttal presumption of equitable tolling applicable to suits
against private defendants should also apply to suits against the United
States.” Irwin v. Department of Veterans Affairs, 498 U.S. 89 95-96
(1990). Moreover, since Irwin, all but one of the other circuits that
have interpreted § 7703(b)(2)’s 30-day filing deadline have held that it
is nonjurisdictional. Accordingly, the D.C. Circuit found it appropriate
to reconsider its prior holding in King.
3. The court noted that the Supreme Court has held that procedural rules,
including filing deadlines, affect subject matter jurisdiction only if
Congress has “clearly state[d] as much.” United States v. Wong, 575
U.S. 402 (2015). Here, neither text nor the structure of § 7703(b)(2)
clearly indicates that Congress intended the 30-day filing deadline to be
a jurisdictional requirement.
4. First, the filing deadline does not speak in jurisdictional terms or refer
to the jurisdiction of the district court. The inclusion of the language
“[n]otwithstanding any other provision of law” does not show that the
deadline is jurisdictional, as it is plausible that this language refers to
§ 2000e-16(c)’s 90-day time limit for a Title VII-only suit or
§ 7703(b)(1)’s 60-day deadline for an appeal of a non-mixed case.
5. Nor does the structure of § 7703(b)(2) mandate a jurisdictional reading.
Language authorizing the district court to hear mixed appeals from the
Board appears in the first sentence of § 7703(b)(2), whereas the 30-day
deadline appears in the second sentence. The separation of these
provisions suggests that the time bar is not jurisdictional.
6. Accordingly, because § 7703(b)(2) lacks a clear statement that Congress
intended to limit the district court’s jurisdiction through the 30-day
deadline, the court held that the 30-day deadline is a non-jurisdictional
claims processing rule. The court overruled its prior decisions to the
contrary, including King.
Holding: The court nonetheless affirmed the district court’s dismissal
because Robinson did not demonstrate that he was entitled to equitable
tolling.
1. A party seeking equitable tolling must show (1) that he had been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way. The second prong requires a litigant to
demonstrate that the circumstances that caused the delay are both
extraordinary and beyond his control.
2. Here Robinson identified two circumstances that “stood in his way,”
thus preventing him from timely filing. First, he contended that the
extraordinary circumstances brought on by the COVID-19 pandemic
caused logistical hurdles that prevented him from timely filing. Second,
he argued that mistaken or misleading advice from court personnel
created an extraordinary circumstance that prevented him from timely
filing his complaint.
3. The court found that neither of these contentions met the high
threshold for applying the rare remedy of equitable tolling. Robinson
made no assertion that COVID-19 kept him from delivering his filing in
person to the courthouse drop box, that the court personnel’s guidance
impaired his timely filing, that COVID-19 prevented his use of overnight
delivery of his filing or that COVID-19 otherwise impeded him from
timely filing electronically. The record instead shows that Robinson
chose to mail his complaint four days before the statutory deadline and
thereby assumed the risk his complaint would arrive late. This was a
“garden variety claim of excusable neglect” insufficient to warrant
equitable tolling. Accordingly, the D.C. Circuit affirmed the district
court’s dismissal of Robinson’s appeal.
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