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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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officer’s prior misconduct that could implicate his credibility must be disclosed
when that officer testifies in a criminal proceeding. | 2,555 | |
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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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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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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: Evan H. Nordby
Respondent: Social Security Administration
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-2280
Petition for Review of MSPB No. DE-4324-19-0012-I-1
Issuance Date: May 11, 2023
STATUTORY CONSTRUCTION
PAY AND BENEFITS
Petitioner Judge Nordby served as an Administrative Law Judge (ALJ)
with the agency and also as a Judge Advocate General with the Army
Reserve. From January through May 2017, he was activated to military
service under 10 U.S.C. § 12301(d) to perform basic training in the Army
Reserves. He requested differential pay pursuant to 5 U.S.C. § 5538(a)
to account for the difference between his military pay and his ALJ pay.
The agency denied his request on the basis that those called to
voluntary active duty pursuant to section 12301(d), like Judge Nordby,
were not entitled to differential pay.
Judge Nordby appealed the agency’s decision to the Board, and an
administrative judge issued an initial decision dismissing the appeal for
failure to state a legally cognizable claim. Judge Nordby appealed the
administrative judge’s decision to the U.S Court of Appeals for the
Federal Circuit.
Holding: Voluntary activations of reservists to active duty under
10 U.S.C. § 12301(d) do not necessarily entitle such employees to
differential pay under 5 U.S.C. § 5538(a).
1. The court noted that an employee is entitled to differential pay if he
meets the statutory requirements of 5 U.S.C. § 5538(a). That
provision states that only those called to perform active duty under a
“call or order to active duty under... a provision of law referred to
in 10 U.S.C. § 101(a)(13)(B)” qualify.
2. Section 101(a)(13)(B), in turn, defines a “contingency operation” as a
call to order under specific enumerated statutes, or under “any other
provision of law during a war or national emergency.”
3. Judge Nordby was called to duty under 10 U.S.C. § 12301(d), which
provides for voluntary activation of a reservist to active duty, and is
not specifically enumerated under 10 U.S.C. § 101(a)(13)(B).
Because section 12301(d) is not specifically enumerated under
10 U.S.C. § 101(a)(13)(B), the only way Judge Nordby would be
entitled to differential pay is if section 12301(d) qualifies as a
“provision of law during a war or national emergency.”
4.
As in its prior decision in Adams v. DHS, 3 F.4th 1375 (Fed. Cir.
2021), the court restated that voluntary duty under 10 U.S.C.
§ 12301(d) only entitles a Federal employee to differential pay if
there is “a connection between his voluntary military service and the
declared national emergency.” The fact that an employee’s
voluntary military service coincided with national emergency is
insufficient to entitle him to differential pay.
5. Because Judge Nordby did not allege any connection between his
service and the declared national emergency other than a temporal
overlap between his activation and the emergency, like the
petitioner in Adams, he does not qualify for differential pay.
6. The Federal Circuit distinguished its prior decision in O’Farrell v.
DOD, 882 F.3d 1080 (Fed. Cir. 2018) on the basis that the employee
in that case indirectly supported a “contingency operation” by
replacing a Navy member who was deployed to Afghanistan to
support a declared national emergency, and so his activation was
connected to the emergency.
NONPRECEDENTIAL:
Scott v. Merit Systems Protection Board, 2023-1134 (Fed. Cir. May 9,
2023) (DA-0752-22-0408-I-1) (per curiam). The court affirmed the
dismissal of the petitioner’s appeal challenging her removal as untimely
filed without good cause shown for her delay. The court determined
that the administrative judge did not abuse his discretion in concluding
that the petitioner failed to establish good cause for her 6 week delay in
filing her Board appeal based on her medical and family considerations
or due to her failure to regularly check her email.
Williams v. Department of the Navy, 2023-1010 (Fed. Cir. May 11, 2023)
(DC-3330-16-0292-B-1) (per curiam). The petitioner challenged the
Board’s decision which affirmed the initial decision denying his request
for corrective action under the Veterans Employment Opportunities Act
of 1998 (VEOA) based on the agency’s failure to select him for a
position. The petitioner argued that the agency violated his veterans’
preference rights including his right to compete and his pass-over
procedural rights when it filled the position pursuant to an expedited
hiring authority (EHA) instead of through the candidate referral list, and
that the agency failed to follow its own internal notice requirements for
using the EHA. The court disagreed, concluding that the agency did not
deny the petitioner the right to compete for the position by failing to
select him or by filling the position under the EHA procedures. The
court also agreed that the agency did not violate the petitioner’s
pass-over rights and that any failure by the agency to properly notice
the use of the EHA in the vacancy announcement was harmless and did
not affect the petitioner’s right to compete for the position.
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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: Michelle E. Kaszowski
Agency: Department of the Air Force
Decision Number: 2023 MSPB 15
Docket Number: CH-0752-16-0089-I-1
Issuance Date: April 4, 2023
Appeal Type: Adverse Action
Election of Remedies
The agency moved to dismiss the appellant’s removal appeal on the
basis that the appellant had previously elected to challenge her removal
through the negotiated grievance procedure, thus waiving her Board
appeal rights. In response, the appellant argued that, although she had
initially pursued a union-filed grievance, the union unilaterally declined
to pursue arbitration on her behalf. The administrative judge found
that the appellant had made a binding election under 5 U.S.C.
§ 7121(e)(1) to grieve her removal, thus waiving her Board appeal rights,
and that the union’s decision not to pursue arbitration did not render
her election invalid. Accordingly, the administrative judge dismissed
the appeal for lack of jurisdiction. The appellant petitioned for review.
Holding: The Board found that the appellant’s election to challenge
her removal through the negotiated grievance procedure was not
binding, and thus did not preclude her Board appeal. Although the
agency informed the appellant of the available methods for
challenging her removal, it did not advise her that electing to file a
grievance would result in waiver of her Board appeal rights.
1. Under 5 U.S.C. § 7121(e)(1), an employee subjected to an adverse
action and who is covered by a negotiated grievance procedure
may challenge such an action by filing either a grievance under
the negotiated grievance procedures or a Board appeal under
5 U.S.C. § 7701, “but not both.” However, for an election of
remedies to be binding, it must be knowing and informed. When
an agency takes an action without informing the appellant of her
procedural options under § 7121 and the preclusive effect of
electing one of those options, any subsequent election by the
appellant is not binding.
2. For this reason, the Board’s regulations require that when an
agency issues a decision notice to an employee on a matter
appealable to the Board, it must provide the employee with notice
of the available avenues of relief and the preclusive effect any
election will have on the employee’s Board appeal rights. Among
other things, the agency must provide notice of any right the
employee has to file a grievance or seek corrective action under
subchapters II and III or 5 U.S.C. chapter 12, including “[w]hether
the election of any applicable grievance procedure will result in
waiver of the employee’s right to file an appeal with the Board.”
5 C.F.R. § 1201.21(d)(1).
3. Here, the agency’s decision letter informed the appellant of the
available methods of challenging her removal, including
submitting a Board appeal, seeking corrective action from the
Office of Special Counsel [OSC], filing a grievance, and filing a
discrimination complaint. The letter further indicated that
“[w]hichever is filed first, an appeal to the MSPB, an appeal for
corrective action to OSC, a grievance under the negotiated
grievance procedure, or a discrimination complaint, shall be
considered an election by you to proceed under that appeal
process.”
4. However, the agency did not fully explain the consequences of
choosing the appeal or grievance procedures. In particular, the
letter did not specifically inform the appellant that she could
raise the matter at issue with the Board or under the negotiated
grievance procedures, “but not both,” 5 U.S.C. § 7121(e)(1), nor
did it provide her with notice as to [w]hether the election of any
applicable grievance procedure will result in waiver of the
employee’s right to file an appeal with the Board,” 5 C.F.R.
§ 1201.21(d)(1).
5. Thus, the appellant did not make a knowing an informed election
and did not waive her right to file a Board appeal. Accordingly,
the Board remanded the appeal for adjudication on the merits.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jason W. Reuter
Respondent: Department of Commerce
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-2216
Petition for Review of MSPB No. AT-0752-18-0388-I-2
Issuance Date: April 3, 2023
Due Process – Ex Parte Communications
Board Procedures
Mr. Rueter worked for the agency as a fishery biologist. In November 2014,
two female employees of agency contractors informed Mr. Reuter’s first-level
supervisor, Dr. Bolden, that Mr. Rueter had engaged in inappropriate conduct
toward them at a Halloween party and on the following day. In June 2015,
another troubling incident occurred when Mr. Rueter loudly yelled
disrespectful accusations at Dr. Bolden in her office. In November 2016,
Mr. Rueter’s second-level supervisor, Mr. Bernhart, proposed to remove him for
misconduct. Mr. Reuter filed a complaint with the Office of Special Counsel
(OSC), and OSC requested that the agency stay the removal action pending its
investigation. In August 2017, Mr. Rueter's third-level supervisor, Mr.
Strelcheck, informed him that the agency was rescinding the first proposed
removal letter.
In September 2017, Mr. Bernhart issued a second notice, proposing to remove
the appellant for conduct unbecoming a Federal employee (based on the
appellant’s conduct at the Halloween party and the following day), and
disrespectful conduct toward a supervisor (i.e., Dr. Bolden). In response, Mr.
Reuter claimed that his removal was retaliation for complaints he had made
regarding Dr. Bolden, including that she had committed terrible management
abuse” and created a “hostile work environment.” Mr. Strelcheck sustained
the charges and agreed that removal was the appropriate penalty.
Mr. Reuter appealed his removal to the Board. Following a hearing, the
administrative judge sustained the charges and affirmed Mr. Rueter’s removal.
The administrative judge found that Mr. Rueter failed to prove his affirmative
defenses, including his claim that the agency denied him due process by
engaging in improper ex parte communications on several occasions.
On appeal to the Federal Circuit, Mr. Reuter again argued that the agency
engaged in improper ex parte communications. He further argued that the
administrative judge erred by excluding the testimony of a requested witness,
Mr. Hoffman, and by denying Mr. Rueter’s motion requesting in camera
inspection of certain documents over which the agency asserted privilege.
Holding: The court found that the administrative judge correctly applied
the framework of Stone v. Federal Deposit Insurance Corporation, 179 F.3d
1368 (Fed. Cir. 1999), in determining that the ex parte communications at
issue did not violate Mr. Reuter’s right to due process. The court further
found that the administrative judge did not improperly deny the appellant’s
requests for testimony from Mr. Hoffman and in camera review of
documents over which the agency had asserted privilege.
1. Citing its decision in Stone, the court explained that while certain ex
parte communications can undermine due process, only those which
“introduce new and material evidence to the deciding official will
violate the due process guarantee of notice.” In determining whether
information is “new and material” such that it violates due process,
factors to be weighed include (1) “whether the ex parte communication
merely introduces ‘cumulative’ information or new information”; (2)
“whether the employee knew of the error and had a chance to respond
to it”; and (3) “whether the ex parte communications were of the type
likely to result in undue pressure upon the deciding official to rule in a
particular manner.” The ultimate inquiry is “whether the ex parte
communication is so substantial and so likely to cause prejudice that no
employee can be fairly required to be subjected to deprivation under
such circumstances.” After describing several cases in which the court
had applied the Stone factors to different sets of facts, the court turned
to the three communications Mr. Reuter challenged on appeal.
2. The first allegedly improper ex parte communication was a March 9,
2017 email from Dr. Bolden, sent to Mr. Strelcheck, Mr. Berhnart, and
other agency managers. In that email, Dr. Bolden responded to an
agency-wide announcement regarding sexual harassment policies,
criticizing the announcement as a “hollow gesture” in light of the “lack
of agency action” regarding Mr. Reuter, and also encouraged the
recipients to “follow through and take action on the pending harassment
matter.” The administrative judge found that this communication did
not violate Mr. Rueter’s due process rights, citing evidence that (1) Mr.
Strelcheck and Mr. Bernhart both testified that they agreed with Dr.
Bolden that the matter had been pending too long; (2) Mr. Strelcheck
further testified that the email had no effect on his decision to sustain
the proposed removal; and (3) the relationship between Dr. Bolden and
Mr. Strelcheck and Mr. Bernhart (her superiors) was such that the email
could not have exerted undue evidence on either individual. The court
agreed and found the administrative judge had correctly applied the
Stone factors.
3. The second communication at issue involved emails between Mr.
Strelcheck and Mr. Bernhart in which they discussed the status of the
removal process and the issuance of the second notice of proposed
removal. In the first email, Mr. Bernhart attached Dr. Bolden’s
comments on a performance plan and stated that her comments reflect
that Dr. Bolden perceives herself to be “the victim in this narrative” and
that he expected there to be “some risk of further complaints from”
Dr. Bolden regarding the pending action against Mr. Reuter. Mr.
Bernhart then asked for Mr. Strelcheck’s advice as to whether further
documentation should be prepared and proposed a discussion regarding
the pending OSC investigation. In reply, Mr. Strelcheck advised Mr.
Bernhart to contact HR regarding Dr. Bolden’s potentially biased
comments and stated generally that he had contacted OSC and would
continue to do so going forward. Before the court, Mr. Reuter asserted
that the communications showed that Mr. Bernhart “attempted to
influence [Mr.] Strelcheck... into taking action against” Mr. Reuter.
The court found that the emails were perfunctory and administrative in
nature, and agreed with the administrative judge that they merely
introduced cumulative information. The court further found that the
communications from Mr. Bernhart were not of the type likely to result
in undue pressure on Mr. Strelcheck, particularly given that Dr. Bolden
was their subordinate.
4. The third allegedly impermissible ex parte communication was an email
from November 10, 2016 (shortly after the first removal proposal) in
which Mr. Bernhart sent a timeline of events bearing on Mr. Reuter’s
case to Mr. Strelcheck. The court agreed with the administrative judge
that the timeline did not provide any new and material information. In
sum, the court found that none of the communications challenged by
Mr. Rueter rose to the level of a due process violation.
5. The court next turned to Mr. Rueter’s contention that the Board
improperly denied his request to present testimony from Mr. Hoffman,
who would have testified that he was willing to hire Mr. Reuter to work
in his own branch of the agency, but that Mr. Bernhart declined the
reassignment. On review, Mr. Reuter argued that the proffered
testimony would have been relevant to the Stone factor analysis, but
the court disagreed, and noted that the appellant had not made that
specific argument before the Board in any case.
6. Finally, the court considered Mr. Reuter’s argument that the
administrative judge improperly denied his request for in camera review
of documents the agency had withheld on grounds of attorney-client and
attorney work privilege. The court disagreed, finding no indication that
the agency had inappropriately asserted privilege over those documents.
NONPRECEDENTIAL:
Webb v. Office of Personnel Management, No. 2022-1984 (Fed. Cir. April 4,
2023) (MSPB No. DA-844E-16-0084-I-1)
Ms. Webb filed for disability retirement under FERS in 2014, nearly 8 years
after her separation from Federal service, and OPM disallowed the application
because it was not filed within the 1-year deadline under 5 U.S.C. § 8453. The
Board affirmed OPM’s decision. The court affirmed, finding that Ms. Webb had
not shown that her application was filed within the statutory deadline or that
waiver of the 1-year deadline was warranted.
Mungo v. Department of the Army, No. 2022-1266 (Fed. Cir. April 4, 2023)
(petition for review of arbitrator’s decision)
Mr. Mungo, a Department of the Army Security Guard (DASG), was required to
maintain a certification under the Army’s Individual Reliability Program (IRP),
a security program designed to ensure that security guards are fit for duty and
that their characters and trustworthiness comport with the high standards
expected of law enforcement personnel. In July 2020, Mr. Mungo was
permanently decertified from the IRP based on a May 2020 incident in which he
made violent threats toward another DASG. The agency then removed him on
charges of conduct unbecoming a Federal employee and failure to maintain a
condition of employment, i.e., the IRP certification. Mr. Mungo invoked
arbitration, and the arbitrator upheld the removal, sustaining both charges.
On appeal to the Federal Circuit, Mr. Mungo argued that the agency failed to
demonstrate a reasonable basis for the decertification and that the
decertification was procedurally improper because the decision-maker lacked
appropriate authority. The court disagreed on both counts and affirmed the
arbitrator’s decision.
Simmons v. Office of Personnel Management, No. 2022-2238 (Fed. Cir. April 5,
2023) (MSPB Docket No. SF-0842-16-0801-I-1)
Following her retirement, Ms. Simmons applied to make a deposit for four
periods of prior service for which no retirement deductions had been withheld.
OPM notified her that she had 30 days to make a required deposit, that an
election not to do so would be irrevocable, and that installment payments
were not permitted. Ms. Simmons asked to make the payment in installments,
citing financial hardship. OPM reiterated that she could not pay in
installments, and provided her a final 45-day period in which to make a
deposit. Before that period expired, Ms. Simmons informed an OPM
representative that she would not make the deposit, and OPM issued a final
decision stating that her annuity had been finalized without service credit for
the four periods at issue. The Board affirmed OPM’s final decision, and
Federal Circuit affirmed the Board’s decision on review. In doing so, the court
found that Ms. Simmons had identified no statute or regulation requiring OPM
to accept deposit statements in installments. The court further found that
OPM appropriately relied on Ms. Simmons’s statement that she would not pay
the deposit, and thus did not commit procedural error in finalizing her annuity
before the 45-day period expired.
Castillejos v. Office of Personnel Management, No. 2023-1207 (Fed. Cir. April
6, 2023) (MSPB Docket No. SF-0831-17-0586-I-1)
Mr. Castillejos sought review of the Board’s September 12, 2022 decision, but
the court did not receive his petition until 71 days later, after the 60-day filing
deadline under 5 U.S.C. § 7703(b)(1)(A). Accordingly, the court dismissed the
petition as untimely filed. The court noted that the deadline is mandatory and
jurisdictional, and requires actual receipt by the court, not just timely mailing.
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BOARD DECISION
Appellant: Arthur E. Fisher
Agency: Department of the Interior
Decision Number: 2023 MSPB 11
Issuance Date: March 16, 2023
Appeal Type: Reduction in Force
REDUCTION IN FORCE
WHISTLEBLOWER PROTECTION ACT
The appellant was a Realty Officer with the Bureau of Indian Affairs until
December 4, 2015, when he was separated from the agency by a reduction in
force. Prior to his separation, in or around May 2014, the appellant filed
complaints with the Office of Special Counsel (OSC) and the agency’s Office of
Inspector General (OIG).
The appellant appealed his separation to the Board and raised affirmative
defenses of age discrimination and whistleblower reprisal. After a hearing, the
administrative judge affirmed the separation and found that the appellant
failed to prove his affirmative defenses. Regarding the whistleblower reprisal
claim, the administrative judge found that the appellant failed to prove that
he made a protected disclosure under 5 U.S.C § 2302(b)(8). She found that, in
the alternative, if the appellant proved that his disclosures were protected, he
would have met his burden to show that they were a contributing factor in his
separation, but that the agency nevertheless proved by clear and convincing
evidence that it would have separated the appellant absent his protected
disclosures. The appellant filed a petition for review, primarily challenging
the administrative judge’s findings concerning his whistleblower reprisal
defense.
Holding: The appellant proved that he engaged in protected activity under
5 U.S.C. § 2302(b)(9)(C). Under the broadly worded provision of 5 U.S.C.
§ 2302(b)(9)(C), any disclosure of information to OIG or OSC is protected
regardless of its content, as long as such disclosure is made in accordance
with the applicable provisions of law.
1. The appellant did not challenge the administrative judge’s finding that
he failed to prove that he made protected disclosures under 5 U.S.C.
§ 2302(b)(8), and the Board therefore affirmed those findings.
2. Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected
activity when he discloses information to the agency’s OIG or to OSC “in
accordance with applicable provisions of law.” The Board held that,
under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any
disclosure of information to OIG or OSC is protected regardless of its
content as long as such disclosure is made in accordance with the
applicable provisions of law. Accordingly, the appellant’s filings with
OSC and the OIG qualified for protection under this provision.
Holding: The appellant failed to prove that his protected activity was a
contributing factor in his separation.
1. Although the administrative judge determined that, had the appellant
established that he made protected disclosures under 5 U.S.C.
§ 2302(b)(8), he would have met his burden of demonstrating that the
disclosures were a contributing factor in his separation, the Board found
that the appellant failed to show that his protected activity under
5 U.S.C. § 2302(b)(9)(C) was a contributing factor in the agency’s action.
2. The Board found no evidence that the agency official responsible for the
reduction in force knew of the appellant’s protected activity. Because
the appellant failed to prove that his protected activity was a
contributing factor in his separation, it is unnecessary to determine
whether the agency proved by clear and convincing evidence that it
would have taken the same action in the absence of the protected
activity.
Holding: The amendment of 5 U.S.C. § 2302(b)(9)(D) under the Follow the
Rules Act (FTRA) is not retroactive.
1. When the events at issue in this appeal took place, 5 U.S.C.
§ 2302(b)(9)(D) made it a prohibited personnel practice to take an
action against an employee for “refusing to obey an order that would
require the individual to violate a law.” The U.S.
Court of Appeals for
the Federal Circuit held in Rainey v. Merit Systems Protection Board,
824 F.3d 1359, 1361-62, 1364-65 (Fed. Cir. 2016), that protection in
section 2302(b)(9)(D) extended only to orders that would require the
individual to take an action barred by statute, and not to orders that
would require the individual to violate an agency regulation or policy.
2. On June 14, 2017, while this matter was pending before the Board, the
President signed into law the FTRA, which amended section
2302(b)(9)(D) by inserting after “law” the words “rule, or regulation.”
3. In considering whether the FTRA applies retroactively, the Board
considered that Congress did not expressly state that the FTRA should
apply retroactively and that, if applied retroactively, the FTRA would
increase a party’s liability for past conduct. Although there is some
evidence that Congress intended the FTRA to clarify the meaning of the
original language in section 2302(b)(9)(D), the Board found that the
FTRA was not a clarification of the prior law. Although declarations of
Congressional intent are relevant in determining whether a statutory
provision is a clarification, such declarations are entitled to less weight
when they appear in legislative history, rather than in the statute itself.
Further, the Board considered that there is no history of conflicting
interpretations or other evidence that the prior statutory language was
ambiguous.
4. Because the Board held that the FTRA is not retroactive, the appellant’s
claims that the agency retaliated against him for refusing to obey orders
that would require him to violate agency rules or regulations are outside
the scope of section 2302(b)(9)(D).
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Yuriy Mikhaylov
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Fourth Circuit
Case Number: 21-1169
Issuance Date: March 15, 2023
WHISTLEBLOWER PROTECTION ACT
The petitioner has worked for the agency’s Immigration and Customs
Enforcement division (ICE) since 1998. In 2018, the petitioner instructed
another employee to make a purchase for certain items on an agency purchase
card. The purchase would have violated agency policy and the employee
refused the petitioner’s order. Less than 1 hour after learning that the
employee would not make the purchases, the petitioner began the process of
removing him from his position of Senior Firearms Instructor.
The employee filed a complaint with the Joint Intake Center alleging that the
petitioner removed him from his position in retaliation for his refusal to violate
ICE policy. During the investigation, the petitioner made several protected
whistleblower disclosures. At the conclusion of the investigation, the Office of
Professional Responsibility recommended that the matter be referred to
management. Thereafter, a disciplinary panel concluded that the petitioner
committed conduct unbecoming by directing an employee to make a purchase
that was prohibited by ICE policy and recommended that the petitioner be
suspended for 14 days. The deciding official mitigated the proposed 14-day
suspension to a 2-day suspension.
The petitioner appealed to the Board. After a hearing, an administrative judge
concluded that three of the petitioner’s disclosures were protected, but that
the petitioner failed to prove that the protected disclosures contributed to the
agency’s decision to suspend him. Alternatively, agency established by clear
and convincing evidence that it would have taken the actions in the absence of
any protected disclosures. Accordingly, the administrative judge sustained the
2-day suspension and denied the petitioner’s request for corrective action.
The petitioner filed a petition for review with the Fourth Circuit.
Holding: The petitioner failed to prove that his protected disclosures were
a contributing factor in the agency’s decision to suspend him for 2 days.
1. The court disagreed with the petitioner’s assertion that the disclosures
were contributing factors in the personnel action as a matter of law
because the deciding official learned of the disclosures shortly before
imposing the suspension. Rather, it held that a disclosure is only a
contributing factor when the confluence of the official’s knowledge and
the timing of the action reasonably suggests a connection between the
two.
2. The court found that the petitioner’s disclosures were not a contributing
factor in the personnel action because the disciplinary process was
initiated before the petitioner made the disclosures and the deciding
official was outside of the petitioner’s chain of command and was not
connected in any way to the disclosures.
Holding: Alternatively, the agency proved by clear and convincing evidence
that it would have taken the same action in the absence of the petitioner’s
protected disclosures.
1. When considering whether the agency met its burden, the court
considered the factors set forth by the U.S.
Court of Appeals for the
Federal Circuit in Carr v. Social Security Administration, 185 F.3d 1318
(Fed. Cir. 1999).
2. As to the first Carr factor, i.e., the strength of the agency’s case
supporting the personnel action, the court deferred to the
administrative judge’s credibility determinations and agreed that there
was ample evidence to support the discipline against the petitioner.
3. The second Carr factor requires consideration of the existence and
strength of any motive to retaliate on the part of the agency officials
involved in the decision. The court found that this factor weighed in
favor of the agency because it was the employee’s complaint that began
the investigation and not any action by the petitioner’s supervisors. It
also noted that the disciplinary panel was composed of independent
managers that were not part of the petitioner’s chain of command and
that the fact that the penalty was mitigated by the deciding official
suggested there was no retaliatory motive.
4. Finally, the third Carr factor requires consideration of evidence that the
agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. On this point,
the court found unavailing the petitioner’s argument that the agency
did not discipline his supervisor for misconduct after her retirement,
citing the agency’s policy of not pursuing disciplinary actions after an
employee retires. Although the court noted that the supervisor was
rehired after her retirement from the agency as part of a settlement
agreement, it accepted the administrative judge’s conclusion, after
hearing all of the evidence, that the agency’s different treatment of the
supervisor did not show that the agency was retaliating against the
petitioner.
NONPRECEDENTIAL:
Kananowicz v. Merit Systems Protection Board, No. 2022-1596 (Fed. Cir.
March 14, 2023) (MSPB Docket No. PH-1221-22-0056-W-1). The court
affirmed the dismissal of the appellant’s individual right of action (IRA)
appeal for lack of jurisdiction, finding that the appellant failed to
nonfrivolously allege that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8)(A).
Mikhaylov v. Department of Homeland Security, No. 2021-2429 (4th Cir.
March 15, 2023) (MSPB Docket No. PH-1221-21-0255-W-1). The court
affirmed the denial of corrective action in the appellant’s IRA appeal,
finding that the agency proved that it would have taken the same
actions in the absence of the appellant’s protected whistleblowing.
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BOARD DECISION
Appellant: Jessie McCray
Agency: Department of the Army,
Decision Number: 2023 MSPB 10
Docket Number: AT-1221-20-0134-W-1
Issuance Date: March 7, 2023
Appeal Type: Individual Right of Action (IRA)
PROTECTED DISCLOSURES
PROTECTED ACTIVITIES
The appellant was employed as a GS-12 Human Resources Specialist with the
agency. He filed administrative grievances in May and July 2018. The May
2018 grievance included allegations that his supervisor discriminated against a
disabled coworker. With the second grievance, he submitted information on
other employees’ time off awards (TOAs). Effective October 3, 2018, the
agency suspended the appellant for 5 days for his misuse of TOA information.
He filed a Board appeal challenging the suspension, which was dismissed for
lack of jurisdiction. Effective October 14, 2018, the agency reassigned the
appellant to a new position for which he had previously applied and been
selected. In February 2019, the appellant filed a whistleblower complaint with
the Office of Special Counsel (OSC) involving the aforementioned incidents.
After OSC closed his complaint, the appellant filed the instant individual right
of action (IRA) appeal, reasserting the same claims.
In an initial decision on the written record, the administrative judge dismissed
the IRA appeal for lack of jurisdiction, finding that the appellant exhausted his
remedies with OSC but that he did not nonfrivolously allege that his purported
protected activities were a contributing factor in the agency’s actions—his
grievances did not constitute protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i), i.e. they did not seek to remedy a violation of section
2302(b)(8), and all of the alleged personnel actions occurred before his
October 2018 Board appeal of his 5-day suspension.
The appellant filed a petition for review. Based on his challenges and the
nature of his claims, the Board identified the relevant issue on review as
whether the appellant nonfrivolously alleged a protected disclosure or activity
1
under section 2302(b)(8), (b)(9)(B) or (b)(9)(C).
Holding: The appellant’s alleged disclosures of disability discrimination
were not a basis for finding jurisdiction under 5 U.S.C. § 2302(b)(8).
1. The Board found that, assuming as true the appellant’s facially plausible
claim that he disclosed disability discrimination in his May 2018
grievance, such disclosure cannot support a finding of jurisdiction under
section 2302(b)(8). Only disclosures made outside the context of a
grievance right granted by law, rule, or regulation are protected
thereunder.
2. Furthermore, the Board determined that, even if made outside of the
context of the administrative grievance process, the appellant’s claims
of reprisal for disclosing disability discrimination were protected under
the Rehabilitation Act and that the Board’s IRA jurisdiction does not
extend to reprisal for complaining of practices made unlawful by the
Rehabilitation Act. In support thereof, the Board referenced the WPA’s
legislative history, longstanding case law, and the Board’s recent
analogous findings concerning alleged violations of Title VII in the
context of IRA appeals.
Holding: The appellant did not nonfrivolously allege that his grievances
were protected under 5 U.S.C. § 2302(b)(9)(B).
1. Sua sponte, the Board considered whether the appellant’s grievances
1
The Board discerned no basis for disturbing the administrative judge’s findings
concerning the appellant’s section 2302(b)(9)(A)(i) claim and found the appellant did
not raise a claim of reprisal under section 2302(b)(9)(D).
constituted protected activity under section 2302(b)(9)(B), i.e.,
whether, by engaging in such action, the appellant was “testifying for or
otherwise lawfully assisting any individual in the exercise” of any
appeal, complaint, or grievance right.
2. The Board found that, rather than lawfully assisting another in
exercising their rights, the appellant instead was exercising his own
right to file a grievance; therefore, that activity was not protected
under section 2302(b)(9)(B).
Holding: The appellant did not nonfrivolously allege that his grievances
were protected activity under 5 U.S.C. § 2302(b)(9)(C).
1. Because all of the relevant events occurred after the amendments to
section 2302(b)(9)(C) by the 2018 National Defense Authorization Act
(NDAA), Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017), the Board,
sua sponte, considered whether the appellant’s administrative
grievances fell within the expanded scope of that subsection.
2. The 2018 NDAA amended section 2302(b)(9)(C) to provide that, in
addition to the Inspector General of an agency or the Special Counsel, a
disclosure to “any other component responsible for internal
investigation or review” also is protected.
3. The Board declined to interpret the full scope of the new phrase
“component responsible for investigation or review,” instead reaching a
finding on narrower grounds. The Board concluded that the appellant’s
disclosures in his administrative grievance cannot fall within the
expanded scope of section 2302(b)(9)(C) because they fell within section
2302(b)(9)(A)(ii). To construe the phrase as encompassing the
appellant’s disclosures would allow section 2302(b)(9)(C) to effectively
subsume section 2302(b)(9)(A), and (b)(9)(A)(ii) in particular,
contravening Congress’s carefully considered statutory scheme and the
principle that provisions of a statute should be read together to avoid
rendering any provision inoperative or superfluous.
Accordingly, the Board denied the appellant’s petition for review and found
the Board lacked jurisdiction over the appellant’s IRA appeal.
PRECEDENTIAL COURT ORDER
Petitioner: Mark Edenfield
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-2001
Docket Number: AT-1221-19-0440-W-2
Issuance Date: March 7, 2023
ATTORNEY FEES
The Board denied the appellant’s request for corrective action in his
individual right of action (IRA) appeal for failure to establish that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8).
In a
precedential opinion, Edenfield v. Department of Veterans Affairs,
54 F.4th 1357 (Fed. Cir. 2022), the court reversed the Board’s decision,
finding that the appellant proved he made a protected disclosure, and
remanded the matter to the Board for further adjudication. In
connection therewith, the petitioner filed an application with the court
for appellate attorney fees and costs under the Whistleblower
Protection Act, specifically, 5 U.S.C § 1221(g).
1. The court held that, under the doctrine of sovereign immunity and
Federal court rules, the court cannot order an award of corrective
action in an IRA appeal unless expressly authorized by law.
2. The court further held that section 1221 clearly provides for the
award of corrective action, including attorney fees and costs, in
IRA appeals brought before the Board and appealed to the court
from the Board; however, it does not grant the court the authority
to award such relief. Strictly construed, section 1221 grants only
the Board the authority to order corrective action in such cases.
3. The court rejected the petitioner’s arguments that the court was
the proper forum for his attorney fees petition. The court
disagreed with the petitioner’s apparent analogy to the Equal
Access to Justice Act (EAJA) because the EAJA, unlike the WPA,
contains language expressly allowing the court to grant an award
of attorney fees. To the petitioner’s argument that the court may
exercise the authority to award attorney fees because the
relevant statutory provisions and regulations are silent on the
issue, the court reiterated that such authority must be expressly
provided for.
Accordingly, in a per curiam order, the court denied the petitioner’s
application for an award of appellate attorney fees and costs.
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BOARD DECISIONS
Appellant: Cory Owens
Agency: Department of Homeland Security
Decision Number: 2023 MSPB 7
Docket Number: PH-0752-16-0349-I-1
Issuance Date: February 22, 2023
Appeal Type: Physical Inability to Perform
PHYSICAL INABILITY TO PERFORM
RESTORATION TO DUTY
NEXUS
The appellant was removed from his WG-10 Electrician position for physical
inability to perform and excessive absences after he sustained a work-related
injury. The administrative judge reversed his removal, finding that the
appellant fully recovered from his injury while the removal appeal was
pending, and he ordered the agency to reinstate the appellant to the
Electrician position, effective to the date of the removal. Because the
administrative judge reversed the appellant’s removal, he did not address the
restoration claim. The agency filed a petition for review, asserting that the
administrative judge erred in finding that the appellant is entitled to
restoration to his previous position as a result of his recovery. The appellant
filed a petition for enforcement of the interim relief order.
Holding: When an appellant presents unambiguous evidence of complete
recovery from the medical condition that resulted in his removal before the
administrative judge has issued an initial decision in his removal appeal, the
removal action does not promote the efficiency of the service.
1. The Board’s regulations do not provide for petitions for enforcement of
interim relief orders; such petitions only apply to final Board decisions.
2. The Board did not consider the agency’s argument that the appellant’s
initial appeal was untimely because the argument was raised for the
first time on review and the agency did not establish that it was based
on new and material evidence that was not previously available.
3. The Board held that regulations governing the restoration rights of
employees who recover from a compensable injury were not relevant to
the propriety of the appellant’s removal for physical inability.
4. Rather, the Board held that it is well settled that the “efficiency of the
service” standard of 5 U.S.C. § 7513(a) is the “ultimate criterion” for
determining whether any discipline is warranted and whether a
particular penalty may be sustained. When an appellant presents
unambiguous evidence of complete recovery from the medical
condition that resulted in his removal before the administrative
judge has issued an initial decision in his removal appeal, the
removal action does not promote the efficiency of the service.
5. Member Leavitt issued a dissenting opinion.
Appellant: Randall S. Desjardin
Agency: U.S. Postal Service
Decision Number: 2023 MSPB 6
Docket Number: SF-0353-15-0241-I-1
Issuance Date: February 22, 2023
Appeal Type: Restoration to Duty
RESTORATION TO DUTY
REMEDIES
The appellant is employed by the agency as a City Carrier. On December 11,
2014, he submitted a request to return to work following a compensable
injury. He included a medical note completed by his doctor, which identified
his medical restrictions. On January 7, 2015, the appellant filed a Board
appeal challenging the agency’s failure to restore him to duty. The agency
asserted that it had conducted two searches for available work. As to the first
search, the agency conceded that it did not conduct a full search of the local
commuting area. The second search was based on restrictions that differed
from the appellant’s medical documentation. After filing this appeal, the
appellant accepted a series of modified limited-duty assignments.
After a hearing, the administrative judge issued an initial decision granting the
appellant’s request for restoration, in part. She found that the agency’s initial
search was inadequate because it failed to include the entire local commuting
area and was based on incorrect medical restrictions. She further found that
the appellant’s partial restoration to work in January 2015 was so
unreasonable as to amount to an arbitrary and capricious denial of restoration.
She found that there were at least 2 hours of work available daily within the
appellant’s medical restrictions from the time he submitted his restoration
request in December 2014. Accordingly, she ordered the agency to pay the
appellant back pay and benefits for 2 hours per day for the period during which
his request for restoration was denied in its entirety and to conduct a proper
search for available work retroactive to December 12, 2014.
The administrative judge found that the appellant failed to show that the
agency denied him a reasonable accommodation and that he failed to prove his
affirmative defenses of disability discrimination, sex discrimination, and
retaliation for equal employment opportunity activity, whistleblowing, and
union activities. She also found that he failed to show any harmful error
separate from the merits of his restoration claim. The appellant filed a
petition for review and the agency filed a cross petition for review.
Holding: The agency violated the appellant’s restoration rights under
5 C.F.R. § 353.301(d) only to the extent it failed to conduct a proper search
for vacant positions.
1. Because partially recovered employees do not have an unconditional
right to restoration, they do not have the right to appeal every denial of
restoration.
2.
Under Cronin v. U.S. Postal Service, 2022 MSPB 13, the Board’s sole
jurisdictional inquiry in an appeal alleging an arbitrary and capricious
denial of restoration to a partially recovered employee is whether the
agency complied with its obligations under 5 C.F.R. § 353.301(d) to
search within the local commuting area for vacant positions to which it
can restore the employee and to consider him for such vacancies.
3. Under Cronin, the agency’s efforts to find work that did not constitute
the essential functions of an established position cannot form the basis
of a restoration claim before the Board.
4. The Board vacated the administrative judge’s findings that the agency’s
actions in connection with its search for modified duties constituted an
arbitrary and capricious denial of restoration within the Board’s
jurisdiction.
5. However, the Board found that the agency violated its obligation under
5 C.F.R. § 353.301(d) to search the local commuting area for vacant
positions to which it could restore the appellant because its search did
not encompass the entire local commuting area and used incorrect
medical restrictions.
Holding: When the Board finds that an agency has violated 5 C.F.R.
§ 353.301(d), the proper remedy is for the agency to conduct an
appropriate search of the local commuting area retroactive to the date of
the appellant’s request for restoration and to consider him for any suitable
vacancies.
1. The appellant may be entitled to back pay only if the agency’s
retroactive search uncovers a position to which it could have restored
him. The appellant’s union duties are not themselves a position to
which he could have been reassigned.
2. The Board vacated the administrative judge’s order for the agency to
pay the appellant for 2 hours per day during the period in which his
request for restoration was denied.
Holding: The appellant did not prove his affirmative defenses.
1. In connection with denials of restoration over which the Board has
jurisdiction, it will adjudicate discrimination and retaliation claims as
affirmative defenses and not as “independent claims.”
2. Findings by the Equal Employment Opportunity Commission (EEOC) in a
class action appeal that the agency committed disability discrimination
in the past is not dispositive to the outcome of the disability
discrimination issue in this appeal because the Board has jurisdiction
over different matters than the EEOC and because the findings in the
EEOC case relate to a different time period. The appellant failed to
prove his disability discrimination defense.
3. The appellant failed to prove his affirmative defenses of discrimination
based on sex and retaliation for prior equal employment opportunity
activity.
4. The appellant’s claims of harmful procedural error and retaliation for
whistleblowing and union activities are moot because the appellant is
entitled to corrective action on the merits of his restoration claim.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: John Kluge
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-1787
MSPB Docket No.: DC-4324-20-0246-I-1
Appeal Type: Pay and Benefits
The petitioner is a commissioned officer in the U.S. Army Reserve and a
civilian employee of the Department of Homeland Security (DHS). From
January 15 through July 30, 2011, the petitioner was absent from his DHS job
because he was ordered to active duty under 10 U.S.C. § 12301(d), which
provides for voluntary active duty of reservists. For the first few weeks of this
period, the petitioner was on paid military leave and, from February 27 until
July 30, 2011, the petitioner was on unpaid leave, except for the July 4
holiday. The petitioner filed a Board appeal seeking to recover differential
pay for himself and similarly situated service members employed by the
Federal government, naming the Office of Personnel Management (OPM) as the
respondent. In an initial decision, which later became final, the administrative
judge denied class certification, substituted DHS for OPM as the respondent,
and found that DHS owed him $274.37 plus interest for differential pay. The
petitioner filed an appeal.
Holding: The administrative judge did not abuse her discretion in denying
class certification.
1. The court stated that the Board is not bound by Federal Rule of Civil
Procedure (FRCP) 23 in determining whether to grant or deny class
certification. Rather, the Board’s regulation at 5 C.F.R. § 1201.27(c)
states that the FRCP guide, but do not control, the administrative
judge’s decision. Under 5 C.F.R. § 1201.27(a), an administrative judge
should “hear the case as a class appeal if... she finds that a class
appeal is the fairest and most efficient way to adjudicate the appeal.”
2. The court agreed with the administrative judge that the proposed class
lacked commonality and that it would not be efficient to determine
class membership.
3. Although the court disagreed with the administrative judge’s finding
that certification of the class would require revealing private pay
information of all class members to all other class members, the court
found that this erroneous finding, alone, does not support a finding that
the administrative judge abused her discretion in denying class
certification.
Holding: The administrative judge correctly found that DHS, rather than
OPM, was the proper party to respond to the petitioner’s differential pay
claim.
1. DHS was the proper respondent because it was the petitioner’s
employing agency and had access to his employment records.
2. 38 U.S.C. § 4324 does not provide the petitioner with a right of action
against OPM based on alleged incorrect guidance which, at the time,
stated that “qualifying active duty does not include voluntary active
duty under 10 U.S.C. [§] 12301(d).” There were no plausible allegations
that the petitioner, or anyone else, was ever denied differential pay due
to OPM’s guidance.
Holding: The petitioner failed to show that the administrative judge
violated 5 U.S.C. § 5538 in calculating his differential pay.
1. 5 U.S.C. § 5538 provides that differential pay should be calculated by
determining the difference between civilian pay for a pay period and
the military pay allocable to that pay period.
NONPRECEDENTIAL:
Kristof v. Department of the Air Force, No. 2021-2033 (Fed. Cir.
Feb. 23, 2023). The court affirmed the Board’s decision upholding the
petitioner’s indefinite suspension without pay pending a final decision
regarding his eligibility for a security clearance.
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BOARD DECISIONS
Appellant: Rommie Requena
Agency: Department of Homeland Security
Decision Number: 2022 MSPB 39
Docket Number: DA-0752-16-0012-I-3
Issuance Date: December 6, 2022
Appeal Type: Election of Remedy
ELECTION OF REMEDY
The appellant appealed a notice suspending her for 30 days and changing her
position from Chief Supervisory Customs and Border Protection Officer to
Supervisory Customs and Border Protection Officer. The administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant made a
binding election to pursue her claims before the Office of Special Counsel
(OSC) and was therefore precluded from challenging the actions before the
Board pursuant to the procedures set forth in 5 U.S.C. § 7701. The appellant
filed a petition for review.
Holding: Because the appellant was a supervisor, the election of remedies
provisions found at 5 U.S.C. § 7121(g) did not apply and the appellant is
permitted to challenge the 30-day suspension and change in her position
before OSC and with the Board pursuant to the procedures set forth in
5 U.S.C. § 7701.
1. Pursuant to 5 U.S.C. § 7121(g), an employee subjected to an action
appealable to the Board who alleges that the contested action was
taken in reprisal for whistleblowing may elect to pursue a remedy
through only one of the following remedial processes: (1) an appeal to
the Board under 5 U.S.C. § 7701; (2) a grievance filed under an
applicable negotiated grievance procedure; or (3) a complaint seeking
corrective action from OSC. Generally, whichever option the appellant
selects first is a binding election.
2. Supervisors and management officials are excepted from the election of
remedies provisions described in 5 U.S.C. § 7121(g).
3. The Board overruled several prior Board decisions to the extent they
found that the election of remedies statute at 5 U.S.C. § 7121(g) is
applicable to supervisors and management officials.
4. The Board remanded the appeal for further adjudication on the merits.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Mark Edenfield
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-2001
MSPB Docket No.: AT-1221-19-0440-W-2
Appeal Type: Individual Right of Action (IRA)
The petitioner is a staff anesthesiologist at an agency medical center. In 2016,
the agency revised its policy for obtaining informed consent from patients for
certain medical procedures. The petitioner sent an email to the agency’s
credentialing office alleging that the medical center policy change violated
agency policy, in particular, provisions of the Veterans Health Administration
Handbook. The appellant later reiterated his belief in a meeting with the
Chief of Staff of his medical center. About 2 years later, a Market Pay Review
Panel, which included the Chief of Staff, met to review the petitioner’s salary
and voted against a pay increase. The petitioner filed a complaint with the
Office of Special Counsel (OSC) alleging that he had been retaliated against for
making protected disclosures regarding his belief that the medical center was
violating agency policy and its handbook. The administrative judge issued an
initial decision, which became the final decision of the Board, denying
corrective action and finding that the appellant failed to prove that he made a
protected disclosure pursuant to the Whistleblower Protection Act (WPA)
because he did not have a reasonable belief that his disclosure constituted a
violation of agency regulation or its handbook.
Holding: The court reversed and remanded for further proceedings, finding
the petitioner made a protected disclosure because the handbook provision
at issue was “ambiguous at best,” and both the agency’s and the
appellant’s interpretations were reasonable.
1. The WPA protects disclosures made by Federal employees who
reasonably believe that the disclosure evidences a violation of a law,
rule, or regulation. To determine whether a belief is reasonable, the
Board must determine whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the agency’s action violates a
law, rule, or regulation.
2. In determining that the appellant did not have a reasonable belief that
the agency was violating its handbook, the administrative judge held
that a plain reading of the regulation did not support the petitioner’s
belief. However, the court held that the provision was “ambiguous at
best” and it noted that an employee’s belief that a violation occurred
could still be reasonable even if it is wrong. Because it found that the
provision at issue was ambiguous and that both the agency’s and the
petitioner’s interpretations are reasonable, the Board erred in holding
that the petitioner did not have a reasonable belief that he was making
a protected disclosure.
3. The court further added that, when applying the test for what
constitutes a reasonable belief, the Board must look to the information
that would have been available to or ascertainable by a disinterested
observer at the time they made the disclosure.
NONPRECEDENTIAL:
Parrish v. Department of Health & Human Services, No. 2022-1170 (Fed.
Cir. Dec. 8, 2022). The court found that an arbitration decision, which
affirmed the appellant’s removal from Federal service for unacceptable
performance, was supported by substantial evidence and it therefore
affirmed the decision.
Oram v. Merit Systems Protection Board, No. 2022-1545 (Fed. Cir.
Dec. 8, 2022) (MSPB Docket No. DC-3330-22-0003-I-1). The court
affirmed the Board’s decision, which denied corrective action in the
appellant’s appeal under the Veterans Employment Opportunities Act of
1998 (VEOA) because the underlying complaint to the Department of
Labor was untimely filed. The court rejected the petitioner’s argument
that the 60-day time limit to file a VEOA complaint should run from the
date he discovered the alleged violation, rather than the date on which
the alleged violation occurred, finding that the statutory language
unambiguously identified the trigger for the filing deadline as the date
of the alleged violation. The court further found that the appellant
failed to preserve his argument about fraud for review, and, in any
event, there was no evidence that the agency fraudulently induced him
to miss the filing deadline.
Jordan v. Merit Systems Protection Board, No. 2022-1986 (Fed. Cir.
Dec. 8, 2022) (MSPB Docket No. CB-7121-22-0005-V-1). The court
dismissed the petitioner’s petition for review as untimely filed.
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BOARD DECISIONS
Appellant: George Haas
Agency: Department of Homeland Security
Decision Number: 2022 MSPB 36
Docket Number: AT-3330-19-0438-I-1
Issuance Date: November 7, 2022
Appeal Type: Removal
MEDICAL INABILITY TO PERFORM
The agency removed the appellant from his Customs and Border Patrol Officer
position for inability to perform the essential functions of his position. The
administrative judge affirmed, relying on 5 C.F.R. § 339.206, and the appellant
filed a petition for review.
Holding: Because the agency did not remove the appellant based solely on
his medical history, 5 C.F.R. § 339.206 does not apply to the agency’s
charge, even though the appellant’s position was one with medical
standards.
• Section 339.206 generally prohibits the removal of an employee whose
position is subject to medical standards based solely on their medical
history, while providing a limited exception if the condition itself is
disqualifying, recurrence “is based on reasonable medical judgment,”
and the position’s duties are such that a recurrence “would pose a
significant risk of substantial harm to the health and safety of the...
employee or others that cannot be eliminated or reduced by reasonable
accommodation or any other agency efforts to mitigate risk.”
• The Board has previously applied this regulation to all medical inability
cases involving positions with medical standards, rather than just those
in which the removal was based solely on the employee’s medical
history. That precedent was mistaken.
• For cases involving a current medical condition, the agency must prove
either a nexus between the employee’s medical condition and observed
deficiencies in his performance or conduct, or a high probability, given
the nature of the work involved, that his condition may result in injury
to himself or others.
• Although the appellant was asymptomatic at the time of his removal, his
bipolar disorder was a chronic condition, so section 339.206 does not
apply. Applying the correct standard, for a current condition, the
agency proved the appellant’s medical inability to perform.
Holding: The appellant failed to prove his claims of disability discrimination
or EEO reprisal.
• Status-based disability discrimination claims and disability
discrimination claims based on a failure to accommodate both require
that the individual be “qualified,” i.e., an individual who can “perform
the essential functions of the... position that such individual holds or
desires” with or without reasonable accommodation.
• Because the appellant in this appeal was not “qualified,” his disability
discrimination claim necessarily fails.
• Regarding his EEO reprisal claim, the applicable standard depends on
the nature of his EEO activity. The motivating factor standard applies
to claims of reprisal for engaging in activity protected by Title VII, while
but-for causation applies to reprisal claims arising under the ADA.
• The appellant failed to prove that his protected activities were a
motivating factor in his removal, much less a but-for cause of his
removal.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Elfina McIntosh
Respondent: Department of Defense
Intervenor: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-2454
MSPB Docket No.: DC-0752-17-0803-I-4
Appeal Type: Removal
APPOINTMENTS CLAUSE
The appellant challenged her removal before the Board and presented a
whistleblower reprisal affirmative defense. The administrative judge sustained
the removal. On appeal to the Court, the appellant challenged the
administrative judge’s findings. She also argued, for the first time, that the
administrative judge’s decision was invalid because the administrative judge
was not properly appointed under the Appointments Clause.
Holding: Board administrative judges are not principal officers.
• There are three factors that are particularly relevant for “distinguishing
principal and inferior officers: (1) whether an appointed official has the
power to review and reverse the officers’ decision; (2) the level of
supervision and oversight an appointed official has over the officers; and
(3) whether an appointed official has the power to remove the officers
without cause.”
• The first two factors weigh against a finding that Board administrative
judges are principal officers because the Board members are principal
officers and have “unfettered” review authority over the administrative
judges’ decisions. Those factors are controlling, even if Board
administrative judges cannot be removed without cause.
• The absence of a quorum was a “temporary circumstance, not a
structural defect” that rendered the Board’s review process
unconstitutional under the Appointments Clause throughout much of the
appellant’s case.
Holding: The appellant failed to timely present her claim that the
administrative judge was an inferior officer, not properly appointed.
• In her reply brief before the Court, the appellant argued for the first
time that the administrative judge was an inferior officer that was not
properly appointed. The Court found that the appellant forfeited this
argument by not including it in her opening brief.
Holding: The administrative judge properly sustained the appellant’s
removal.
• Despite the appellant’s arguments to the contrary, the administrative
judge’s findings regarding proof of the charges were supported by
substantial evidence, and the penalty of removal was not an abuse of
discretion.
• The agency also rebutted the appellant’s prima facie case of reprisal.
The evidence in support of the appellant’s removal was strong, while
the motive to retaliate was neutral, and there were no similarly situated
non-whistleblowers for purposes of comparison. Considered together,
these factors demonstrated that the agency would have removed the
appellant in the absence of her protected whistleblowing activity.
NONPRECEDENTIAL:
Lentz v. Department of the Interior, No. 2022-2007 (Fed. Cir.
Nov. 4,
2022) (MSPB Docket No. SF-4324-16-0680-I-1) The appellant filed a
USERRA claim, alleging that the agency provided negative references to
prospective employers in reprisal for his prior USERRA complaint. The
Court affirmed the Board’s decision, which denied corrective action.
The Court agreed with the Board’s determination that the appellant
failed to prove an improper motive.
Lentz v. Department of the Interior, No. 2022-2009 (Fed. Cir.
Nov. 4,
2022) (MSPB Docket No. SF-1221-15-0688-W-1) The appellant filed an
IRA appeal, alleging that his reprimand and suspension were reprisal for
protected whistleblowing. The Court affirmed the Board’s decision,
which denied corrective action. The Court agreed with the Board’s
determination that the appellant failed to prove that he made any
protected disclosures.
Norris v. Department of Commerce, No. 2021-2142 (Fed. Cir.
Nov. 7,
2022) (MSPB Docket No. DC-0752-19-0724-I-3) Rule 36 affirmance.
Melton v. Merit Systems Protection Board, No. 2022-1993 (Fed. Cir.
Nov.
9, 2022) (MSPB Docket No. CH-0752-09-0448-M-1) The court dismissed
the appellant’s petition as untimely, because it was filed more than 60
days after the Board’s final order.
Moghadam v. Department of Veterans Affairs, No. 2021-2221 (Fed. Cir.
Nov. 9, 2022) (MSPB Docket No. SF-1221-19-0198-W-2) The appellant
filed an appeal with the Court, requesting attorney fees for an IRA
appeal before the Board in which she did not prevail. The Court
declined to address the issue, since it was not decided below or
properly raised.
Cordaro v. Department of Defense, No. 2022-2247 (Fed. Cir.
Nov. 10,
2022) (MSPB Docket No. NY-0432-18-0217-I-1) Transferring the
appellant’s appeal to District Court because his is a mixed case.
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BOARD DECISIONS
Appellant: Robert C. Marcell
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 33
Docket Number: DE-0752-13-1551-I-1
ADVERSE ACTION
PROTECTED ACTIVITY
REASONABLENESS OF PENALTY
The appellant was employed as a Legal Administrative Specialist with the
agency. In 2012 and 2013, he took leave under the Family and Medical Leave
Act of 1993 (FMLA) to care for his parents and, later, for his own medical
condition. After returning to duty, he sustained an injury while walking to
work, and he submitted a claim for Office of Workers’ Compensation Programs
(OWCP) benefits. Following a leave of absence due to the injury, the agency
informed him that he was required to report to work, to which the appellant
responded, that if he was required to report to work, he would probably kill
someone. As a result, the agency removed the appellant for threatening
bodily injury to agency employees. In a timely appeal with the Board, he
argued that he was removed in retaliation for filing FMLA leave requests and
an OWCP claim. After holding a hearing, the initial decision sustained the
charge, concluded that the appellant failed to prove his retaliation claim
under 5 U.S.C. § 2302(b)(9), and found that the removal promoted the
efficiency of the service and was within the bounds of reasonableness.
Following the appellant’s petition for review, the Board issued this
precedential decision affirming the initial decision.
Holding: The agency proved by preponderant evidence that the appellant
made threats concerning bodily injury to agency employees.
1. Considering the appellant’s argument that he did not make a threat
because the statement was conditioned on him returning to work and
the agency ordered him not to return to work, the Board agreed with
the administrative judge that some threats of bodily harm, even if
conditional, are per se unsettling and support a finding that they
constitute a threat.
Holding: The appellant’s OWCP claim and request for FMLA leave do not
constitute protected activity under 5 U.S.C. § 2302(b)(9).
1. Regarding the appellant’s claim that his removal was in retaliation for
submitting an OWCP claim, the Board reiterated its finding in Von Kelsch
v. Department of Labor, 59 M.S.P.R. 503, 508-09 (1993) that an OWCP
claim is not protected activity under section 2302(b)(9) because it does
not constitute an initial step toward taking legal action against an
employer for the perceived violation of an employee’s rights.
2. The Board also found that the appellant’s FMLA leave requests are
similarly excluded from protection under section 2302(b)(9) because
they do not constitute an initial step toward taking legal action against
the agency for the perceived violation of his rights.
3. To the extent the Board’s prior decisions in Doe v. U.S. Postal Service,
95 M.S.P.R. 493, ¶ 11(2004) and Crump v. Department of Veterans
Affairs, 114 M.S.P.R. 224, ¶¶ 11-13 (2010) explicitly or implicitly found
that a FLMA leave request and an OWCP claim constitute protected
activity, those cases are overruled on that issue.
4. The Board considered whether the appellant could otherwise establish
his retaliation claim under 5 U.S.C. § 2302(b)(10), which makes it a
prohibited personnel practice to “discriminate for or against any
employee or applicant for employment on the basis of conduct which
does not adversely affect the performance of the employee or applicant
or the performance of others,” but found that he failed to do so.
Holding: The penalty of removal was within the bounds of reasonableness.
1. The Board found that, because the appellant failed to sufficiently
explain how his workplace injury was related to or otherwise led him to
engage in the misconduct with which he was charged, any argument
that the deciding official should have considered his illness or injury in
deciding to remove him is without merit.
2. The Board agreed with the administrative judge that the deciding
official’s testimony suggesting that he had a zero-tolerance policy for
threatening behavior did not run afoul of the Board’s decision in Wiley
v. U.S. Postal Service, 102 M.S.P.R. 535, 542-43 (2006), aff’d, 218 Fed.
App’x 1001 (Fed. Cir. 2007), which requires the Board to review a
penalty de novo when the deciding official fails to give serious
consideration to any penalty other than removal, because the record
established that the deciding official appropriately considered the
Douglas factors.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jacob Johnson
Respondent: Department of the Air Force
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 21-1579
Petition for Review from arbitrator’s decision in No. 20115-01709
Issuance Date: September 26, 2022
DUE PROCESS
EX PARTE COMMUNICATIONS
REMEDY
The petitioner was employed as a firefighter with the Department of the Air
Force. At the time relevant to this appeal, his mother lived with him and his
family, and she was taking approximately 13 pills to treat various health issues.
The petitioner was also taking approximately seven or eight pills for his own
health issues. As a condition of his employment, the petitioner was selected
for a random drug test, on which he tested positive for oxycodone and
oxymorphone. He explained to his supervisor that he believed he had
accidentally taken one of his mother’s pills instead of his own. Thereafter, the
agency removed him, and he challenged his removal under the applicable
grievance procedures. During an arbitration hearing, the deciding official
testified that, prior to arriving at his decision to remove the appellant, he had
consulted his wife, who is a registered nurse, and his brother-in-law, who is a
nurse practitioner, and that both confirmed that the likelihood of the
appellant taking his mother’s pills “is slim to none.” Ultimately, the arbitrator
denied the appellant’s grievance, finding that the petitioner’s explanation of
the misconduct was not believable. He also found that there was no
convincing evidence that the agency violated the petitioner’s due process
rights. The petitioner requested review of the arbitration decision from the
U.S. Court of Appeals for the Federal Circuit.
Holding: The agency violated the appellant’s due process rights when the
deciding official consulted with relatives regarding the likelihood of the
appellant’s explanation of the misconduct.
1. The court concluded that the deciding official’s decision to consult with
his relatives regarding the likelihood of the appellant’s explanation of
the misconduct was not cumulative information, and was instead, new
evidence because their opinions were not confirming anything already in
the record—they were providing new opinion on the evidence.
2. The court declined to consider whether the ex parte communications
were of the type likely to result in undue pressure upon the deciding
official because there were other sufficient reasons to conclude that the
agency violated the appellant’s due process rights.
3. The court explained that “[f]amilial bonds are often strong and
intimate, making family members arguably the most influential people
in anyone’s life,” and reasoned that it was, therefore, constitutionally
impermissible to allow a deciding official to receive additional material
that may undermine the objectively required to protect the fairness of
the process.
Holding: Because the parties did not brief the remedy due to the petitioner
following a finding of a due process violation, the appeal was remanded to
the arbitrator to determine the proper remedy.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Robert F. Zachariasiewicz
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Fourth Circuit
Case Number: 19-2343
Issuance Date: Aug. 31, 2022
JURISDICTION- DISCRIMINATION COMPLAINTS/MIXED CASE
The appellant, a GS-14 Special Agent with the Drug Enforcement
Administration, filed an individual right of action (IRA) appeal with the Board
alleging, among other things, that the agency had engaged in both
whistleblower retaliation and discrimination. The majority of the appellant’s
claims pertained to his nonselection for numerous GS-15 positions with the
agency. Upon motion from the agency, the administrative judge dismissed the
appellant’s discrimination claims and certain whistleblower retaliation claims
that the appellant had failed to exhaust with the Office of Special Counsel
(OSC). Subsequently, the appellant informed the administrative judge that he
intended to file a civil action in Federal district court. The administrative
judge issued an initial decision dismissing the matter without prejudice to
refiling.
Thereafter, the appellant filed a complaint in the U.S. District Court for the
Eastern District of Virginia. The district court dismissed the matter for lack of
subject matter jurisdiction and the appellant appealed to the U.S. Court of
Appeals for the Fourth Circuit. The appellant argued that the district court
had jurisdiction over his “mixed case” because his Whistleblower Protection
Act claims and his discrimination claims collectively satisfied the jurisdictional
requirements of 5 U.S.C. § 7702(a)(1). In other words, the appellant alleged
that his IRA appeal served as the basis for his purported mixed-case appeal.
Holding: Only personnel actions that are directly appealable to the Board
can form the basis of a mixed-case appeal.
1. The court explained that, pursuant to 5 U.S.C. § 7702(a), an employee
who “has been affected by an action which [he] may appeal” to the
Board and alleges that unlawful discrimination was a basis for such
action may elect to bypass the agency review process and instead
proceed before the Board. Such a claim is known as a mixed-case
appeal. If the Board denies relief in such an appeal, the employee may
seek judicial review of the Board’s decision in Federal district court.
2. The court reasoned that binding legal precedent precluded the court
from finding that 5 U.S.C. § 7702(a)(1)(A) encompasses IRA appeals. To
this end, precedential cases interpreting the Civil Service Reform Act
have distinguished between personnel actions that are directly
appealable to the Board, e.g., a removal, and those that are not. IRA
appeals fall into the latter category; indeed, pursuant to 5 U.S.C.
§ 1214(a)(3), an employee must first pursue such a claim with OSC.
3. The court next reasoned that the appellant’s reading of 5 U.S.C.
§ 7702(a)(1)(A) does not make sense when considered within the broader
statutory and regulatory framework. For example, an employee is
precluded by regulation, i.e., 5 C.F.R. § 1209.2(c), from raising a
discrimination claim in the context of an IRA appeal; thus, if an IRA
appeal could serve as the basis for a mixed-case appeal, then an
appellant litigating an IRA appeal would be unable to raise his
discrimination claims until he sought judicial review of the Board’s
decision in Federal district court.
4. The court found unpersuasive the appellant’s argument that, even if an
IRA appeal does not fall under the purview of 5 U.S.C. § 7702(a)(1)(A),
he had suffered a “constructive demotion” by virtue of the agency’s
actions. The court reasoned that the appellant had not identified any
agency actions that satisfied the narrow definition of a “constructive
demotion.”
5. Last, the court considered the appellant’s contention that, even if he
had failed to allege a mixed case, the district court should nonetheless
have considered his discrimination claims. The court explained that the
proper forum for title VII claims is Federal district court; accordingly, it
remanded the matter for the district court to consider whether it could
adjudicate the appellant’s title VII claims independent of his other
claims. The Fourth Circuit indicated that, in so considering, the district
court may evaluate whether the appellant properly exhausted such
claims.
Judge Diaz dissented, reasoning that (1) the majority imposed limitations that
were absent from a plain reading of the statutory text of 5 U.S.C. § 7702(a)(1);
(2) the majority misread the binding legal precedent that it cited, which had
not analyzed either the workings of IRA appeals or what agency actions an
employee “may appeal” pursuant to 5 U.S.C. § 7702(a)(1)(A); and (3) the
majority relied too heavily on a regulatory provision, i.e., 5 C.F.R. § 1209.2(c),
which stands in conflict with the statutory scheme. Last, the dissent
addressed the district court’s alternative basis for dismissal, i.e., the
untimeliness of the appellant’s IRA appeal, and concluded that, because the
agency had failed to timely raise this issue, it had waived any objection
thereto.
NONPRECEDENTIAL:
Brandt v. Merit Systems Protection Board, No. 2022-1441 (Fed. Cir.
Sept. 7, 2022) (SF-3330-22-0004-I-1) Mr. Brandt filed a Veterans
Employment Opportunities Act of 1998 (VEOA) appeal with the Board
regarding his nonselection for a nurse practitioner position with the
Veterans Health Administration (VHA). The administrative judge
dismissed the matter for lack of jurisdiction.
In so doing, he relied on
Scarnati v. Department of Veterans Affairs, 344 F.3d 1246 (Fed. Cir.
2003), wherein the U.S. Court of Appeals for the Federal Circuit held
that VHA appointments of certain healthcare personnel under 38 U.S.C.
§§ 7401(1) and 7403(a)(1) were not subject to the title 5 hiring-related
provisions that formed the basis of Mr. Brandt’s VEOA appeal. The court
agreed that Scarnati controlled and affirmed the decision.
Cooke v. Merit Systems Protection Board, No. 2022-1643 (Fed. Cir. Sept. 8,
2022) (DC-1221-22-0062-W-1) The court dismissed Mr. Cooke’s petition for
review for failure to prosecute because he failed to timely pay the docketing
fee required by Federal Circuit Rule 52(a)(1).
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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: William Cox
Respondent: Department of the Treasury
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 21-2098
Petition for Review from DC-0752-20-0325-I-1
Issuance Date: August 9, 2022
Interim Relief
The appellant worked for the agency as the Director of Compensation and
Benefits of the Comptroller of the Currency (OCC). He filed an appeal with the
Board seeking corrective action under the Uniformed Service and
Reemployment Rights Act (USERRA), alleging discrimination in compensation.
While pursuing that action, the appellant took advantage of his position to
access and download confidential employee data from two files within OCC
electronic systems, then transferred those files to his home computer.
By notice dated September 20, 2017, the agency proposed to remove the
appellant on a charge of Misuse of Government Property, with three supporting
specifications based on the appellant’s accessing and downloading the files for
personal use in his USERRA action, in violation of various regulations. The
deciding official sustained all three specifications and removed the appellant
effective April 13, 2018. The appellant filed a timely Board appeal.
On September 11, 2019, an administrative judge reversed the removal action,
agreeing with the appellant that the agency committed harmful error and
violated his due process rights when the deciding official considered factors
not referenced in the notice of proposed removal. The administrative judge
ordered the agency to provide the appellant with interim relief under 5 U.S.C.
§ 7701(b)(2)(A) in the event a petition for review was filed. Both parties
petitioned for review. Pursuant to the administrative judge’s interim relief
order, the agency restored the appellant effective September 11, 2019.
On October 27, 2019, while the petitions for review were still pending, the
agency again proposed the appellant’s removal, based on the same the same
charge and specifications. The agency sustained the charge and removed the
appellant a second time, effective December 27, 2019. The appellant filed a
timely appeal of the second removal action, but this time did not raise a due
process claim. The administrative judge assigned to the new appeal affirmed
the second removal action, finding that the agency proved the charge and that
it could initiate and effect a second removal action against the appellant
based on the same charge while a petition for review of the first removal
action was pending. That initial decision became final when neither party
filed a petition for review with the Board.
The appellant then petitioned for review by the Federal Circuit. Before the
court, the appellant argued for the first time that the interim relief statute,
5 U.S.C. § 7701(b)(2), precluded the second removal action. The court ordered
supplemental briefing on the issue, and both parties responded.
Holding: When an administrative judge reverses an adverse action on
procedural grounds and issues an interim relief order pursuant to 5 U.S.C.
§ 7701(b)(2), the order does not preclude the agency from taking a
duplicate removal action that cures the procedural defects of the first
action while the interim relief order is in effect.
1. The interim relief statute generally provides that an appellant who is
the prevailing party “shall be granted the relief provided in the decision
effective upon the making of the decision, and remaining in effect
pending the outcome of any petition for review[.]” The appellant
argued that interim relief must therefore remain in effect pending the
outcome of any petition for review, and that a repeat adverse action is
inconsistent with the interim relief order, unless the agency takes it on
different grounds.
2.
The court noted that in Guillebeau v. Department of the Navy, 362 F.3d
1320 (Fed. Cir. 2004), it had rejected an interpretation of the interim
relief statute that would bar all subsequent disciplinary actions until a
decision is final. In that case, the Navy had removed an employee for
poor performance, and an administrative judge reversed the action and
ordered interim relief. The Navy petitioned for review and provided
interim relief, and while the petition was still pending, it indefinitely
suspended the employee based on the suspension of his security
clearance. The court held that the interim relief order and statute did
not constitute an absolute bar on subsequent actions.
3. While Guillebeau involved a situation where the underlying employee
conduct was different in the two adverse actions, the court reasoned
that the principle applies equally to situations where the conduct is the
same, but the grounds of the Board’s decisions are different. In such
cases, the Board’s decision on the second action “is not inconsistent
with the initial decision” in which interim relief was ordered. This may
occur, for example, when the first adverse action is set aside for a
procedural deficiency not present in the second.
4. The court found that the legislative history of the interim relief statute,
which was enacted as part of the Whistleblower Protection Act of 1989,
confirms the narrow scope of the provision. Citing language from the
Senate Report and additional comments by Senator Pryor, the court
concluded that the interim relief statute was designed to prevent an
appellant from being denied the benefits of favorable initial decision
while waiting for a final decision by the Board. The statute was not
designed to preserve the appellant’s employment rights regardless of
the circumstances. The court noted in passing that its conclusion was
largely consistent with Board precedent.
5. Based on the statutory language, the prior decision in Guillebeau, and
legislative history, the court concluded that the clear purpose of the
interim relief statute is to prevent the agency from taking action
inconsistent with the initial decision on review. That did not occur in
this case, because the agency’s second removal action cured the
procedural deficiency in its first removal action. Hence, the second
removal action was permissible, even though a petition for review in the
first action was still pending.
NONPRECEDENTIAL:
Guardino v. Merit Systems Protection Board, No. 22-1881 (Fed. Cir. Aug. 5,
2022) (CH-114M-22-0234-Y-1) Because of the petitioner’s failure to pay the
docketing fee required by Federal Circuit 52(a)(1) and file the required
Statement Concerning Discrimination, the court dismissed his petition for
failure to prosecute in accordance with the rules.
Cash v. Central Intelligence Agency, No. 22-1852 (Fed. Cir. Aug. 8, 2022) (AT
844E-16-0508-I-1) The parties jointly requested a transfer of the case, which
involved a claim of discrimination, to the U.S. District Court for the Middle
District of Georgia. The court agreed and transferred the case to the district
court, pursuant to 28 U.S.C. § 1631.
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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: Timothy Schultz
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 23
Docket Number: CH-3330-17-0162-I-1
Issuance Date: July 22, 2022
Appeal Type: Veterans Employment Opportunities Act (VEOA)
Veterans’ Preference
The appellant, a 10-point preference-eligible veteran, applied for a
vacant Medical Support Assistant position at the agency’s Community
Based Outpatient Clinic (CBOC) in Dubuque, Iowa. He was not selected,
and he filed a complaint with the Department of Labor (DOL) regarding
his nonselection. In response to the complaint, the agency
acknowledged that it had violated the appellant’s preference veterans’
rights. The agency reported that, as a remedy, it had placed the
appellant on a priority placement list for 120 days for the Dubuque
CBOC. The DOL investigator informed the agency that placing the
appellant on a priority certification list was not an adequate remedy,
and requested that the agency reexamine the appellant’s application
and provide him consideration for the position advertised under the
original vacancy announcement.
In response, the agency cancelled the original vacancy announcement,
restored the selected employee to his previous position, and issued a
new vacancy announcement for a Medical Support Assistant position at
the Dubuque CBOC. The appellant did not apply under the new
announcement, and he elected to pursue his complaint with the Board.
Following a hearing, the administrative judge denied the appellant’s
request for corrective action, finding that the agency’s reannouncement
of the position was an adequate remedy for its admitted violation of the
appellant’s veterans’ preference rights. The administrative judge found
that the reannouncement provided equal advantages to all veterans who
applied under the first vacancy and fully comported with the legal
requirements necessary to reconstruct the selection process.
The appellant filed a petition for review, arguing that the agency’s
decision to reannounce the vacancy did not constitute a proper
reconstruction of the selection because it was not based on the same
circumstances surrounding the original selection.
Holding: The Board found that the agency’s decision to reannounce
the position did not constitute a proper reconstruction of the
selection process.
1. The agency conceded that it violated the appellant’s veterans’
preference rights when it considered his application under the
original vacancy announcement. However, it is unclear whether
the appellant would have been selected absent the violation.
Thus, the proper remedy under VEOA is to reconstruct the
selection process for the position.
2. To properly reconstruct a selection, an agency must conduct an
actual selection process based on the same circumstances
surrounding the original faulty selection. This includes taking the
original selectee out of the position, conducting and evaluating
interviews so that they are meaningfully comparable with the
original selectee’s interview, and filling the same number of
vacancies as before.
3. In reannouncing the position, the agency did not conduct a
selection process based on the same circumstances surrounding
the original selection. Hence, the agency never remedied its
faulty selection process, and its efforts to remedy its violation fell
short of the law’s requirements. Accordingly, the Board ordered
the agency to reconstruct the hiring process for the original
vacancy announcement.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Ayyakkannu Manivannan
Respondent: Department of Energy
Tribunal: U.S. Court of Appeals for the Third Circuit
Case Number: 20-3463
Issuance Date: July 26, 2022
Jurisdiction – Civil Service Reform Act Preclusion
The appellant, formerly a scientist with the Department of Energy
(DOE), resigned from his position following allegations of inappropriate
and abusive behavior against a student-intern. The allegations had led
to an internal investigation and a state criminal prosecution. The
appellant subsequently filed several lawsuits relating to these events.
In this case, the appellant claimed that the agency violated the Privacy
Act by disclosing information and records to state prosecutors (Count I),
along with failing to ensure the accuracy and completeness of the
internal investigation report and maintain an accurate Form 50 (Count
II). He also brought claims under the Federal Tort Claims Act, including
a conversion claim based on the agency’s refusal to return his personal
property (Count III); negligence claims tied to its internal investigation
and failure to maintain an accurate Form 50 (Claims IV and V); an
invasion-of-privacy claim arising from the conduct of the agency’s
outside counsel (Count VI)|; and an intentional-infliction-of-emotional
distress claim based on the agency investigator’s cooperation with the
state prosecutors (Count VII).
The Government moved to dismiss the complaint for lack of subject
matter jurisdiction, arguing, among other things, that the Civil Service
Reform Act (CSRA) barred the appellant from bringing his employment
related claims in a Federal district court. The Magistrate Judge granted
the motion, holding that “regardless of the existence of separate
remedies under the Privacy Act or under common law as to his [Tort
Claims Act action], Manivannan’s claims arise because of his DOE
employment and thus must be pursued through the CSRA review
process.” The appellant appealed that ruling to the Third Circuit.
Holding: The fact that the appellant’s claims arose in the context of
his Federal employment was not a sufficient basis for finding that all
of his were claims precluded by the CSRA. Rather, when assessing
whether the CSRA bars Federal jurisdiction over an otherwise
reviewable claim, courts should look to the specific underlying
conduct to determine whether that conduct is an employment action
covered by the statute.
1. The court noted that the appellant’s claims arising under Privacy
Act and Tort Claims Act are Federal claims, which a Federal court
would normally have jurisdiction to review. The question before
the court was whether the substance of those claims makes them
unreviewable under the CSRA, which governs the rights and
obligations of most Federal employees and provides exclusive
administrative and judicial review procedures for disputes fall in
its ambit.
2. The Government’s position, which the Magistrate Judge accepted,
was that the CSRA’s exclusive review procedures bar a Federal
court from exercising jurisdiction over any claim “aris[ing] in the
[Federal] employment context.” Thus, on the Government’s view,
none of the appellant’s claims could be heard in district court
because they arose in the context of his work with the DOE.
However, the court declined to read the statute so broadly.
3. The court explained that the CSRA channels certain employment
disputes to the Merit Systems Protection Board, with judicial
review of its decision by the Federal Circuit. For instance, an
employee may appeal an adverse action under 5 U.S.C. § 7512.
The statute also provides for administrative review of prohibited
personnel practices, i.e., any “personnel action” motivated by
certain impermissible grounds, such as whistleblower reprisal or
discrimination. (The court did not find it necessary to address the
finer points of the Board’s jurisdiction over prohibited personnel
practices involving personnel actions that are not otherwise
appealable.) Title 5 U.S.C. § 2302(a)(2)(A) specifically lists the
personnel actions covered by the statute.
4. Contrary to the Government’s position, there is no statutory
language suggesting that any dispute primarily involving a
plaintiff’s Federal employment must be heard by the Board.
Rather, Congress has carefully defined the types of employment
actions subject to the CSRA’s review scheme, and these statutory
definitions must guide the preclusion analysis. When assessing
whether the CSRA bars Federal jurisdiction over an otherwise
reviewable claim, courts should look to the specific underlying
conduct being challenged to determine whether that conduct is an
employment action covered by the statute. The mere fact that
the challenged conduct occurred in the Federal employment
context is not enough to bring it within the CSRA’s exclusive
ambit.
5. Turning to the appellant’s specific claims, the court found that
Counts II, IV, V, and VI were tethered to employment conduct
covered by the CSRA, and it affirmed the Magistrate Judge’s
dismissal of those claims. However, the court found that the
appellant’s claims based on DOE’s alleged cooperation with state
prosecutors and failure to return the appellant’s personal
property (Counts I, III, and VII) did not involve an adverse action
under 5 U.S.C. § 7512 or any of the personnel actions noted in
§ 2302, and thus were not precluded by the CSRA. Accordingly,
the court remanded the case for the Magistrate Judge to consider
whether those claims could withstand the other arguments raised
in the Government’s motion to dismiss.
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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.
PRECEDENTIAL COURT DECISION
Petitioner: Robert J. Klipp
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-1386
MSPB Docket Number: DA-0842-20-0192-I-1
Issuance Date: May 19, 2022
Law Enforcement Service Credit
Jurisdiction
The Federal Employees’ Retirement System Act provides early retirement
benefits to Federal law enforcement officers (LEO) who are credited with 25
years of LEO service, or 20 years of LEO service after reaching age 50. The
employing agency is primarily responsible for determining LEO credit, subject
to Board review.
The petitioner was employed by the agency in various positions from 1991 to
2009. He encumbered one position from 1991 to 1998, another from 1998 to
2004, and a third from 2004 to 2009. He sought LEO credit for this entire
period. In 2016, the agency issued a decision finding that the 1991-1998
position was creditable as a primary LEO position, the 1998-2004 position was
not creditable because it was a non-LEO position, and the 2004-2009 position
was creditable as a secondary LEO position. However, because the non-LEO
position represented a break in service of more than 3 days between the
primary and secondary LEO positions, the agency determined that the
petitioner was not entitled to LEO credit for the secondary position.
The petitioner filed a Board appeal, contesting the agency’s classification of
his 1998-2004 position as a non-LEO position. The administrative judge
affirmed the agency’s decision. A petition for review of that decision is
currently pending before the Board
The petitioner subsequently filed the instant appeal, seeking primary LEO
credit for his 2004-2009 position. The administrative judge affirmed the
agency’s decision, and the petitioner sought judicial review.
Holding: The Board has jurisdiction over this appeal pursuant to a final
agency decision denying the petitioner’s request for primary LEO credit.
1. Under 5 C.F.R. § 842.807(a), the Board has jurisdiction to review the
“final decision of an agency head denying an individual’s request” for LEO
credit.
2. Although the agency sent the appellant a November 2020 email denying
his request for primary LEO credit in the 2004-2009 position, it argued that this
was not a final decision but was merely a denial of the petitioner’s request for
reconsideration of its 2016 decision on the same subject. The court disagreed,
holding that the petitioner’s request for primary LEO credit in the 2004-2009
position was distinct from his earlier request that the agency ruled on in 2016
(regarding secondary LEO coverage in that position), and that the agency’s
November 2020 email, which contained notice of Board appeal rights,
constituted a new and separately appealable final decision.
Holding: The appeal must be remanded for further adjudication, consistent
with Federal Circuit precedent, of whether the petitioner is entitled to
primary LEO credit for the 2004-2009 position.
1. A primary LEO position is “a rigorous position whose primary duties are
the investigation, apprehension, or detention of individuals suspected or
convicted of offenses against the criminal laws of the United States, or the
protection of officials of the United States against threats to personal safety.”
5 C.F.R. § 842.802.
2. To determine whether a position is a primary LEO position, the Board
must consider both the position description and the actual duties performed.
The administrative judge considered these factors together but should have
considered them separately, in a two-step process. The first inquiry is based
solely on the position description; if the position description denotes a primary
LEO position, the analysis ends there. If the position description does not
denote a primary LEO position, the Board proceeds to the separate issue of
whether the duties actually performed by the employee qualify as rigorous
primary LEO duties, recognizing that there are sometimes discrepancies
between the duties in a position description and the duties actually performed
by the incumbent.
3. To determine whether a position is a primary LEO position based on
actual duties, the Board must consider two primary factors—vigorousness and
hazardousness. The administrative judge considered these factors together but
should have considered them separately. Vigorousness is determined by
considering whether the position has (1) strenuous physical requirements, (2)
maximum age limits, and (3) requirements that the employee be on call
24-hours per day. Hazardousness is determined by whether the employee (1)
has frequent and consistent contact with criminal suspects, and (2) is
authorized to carry a firearm.
3. Regarding hazardousness, the administrative judge found that, even if
the petitioner “frequently and regularly performed the duties of a primary
covered position, these situations were of an emergency, incidental, or
temporary nature.” The court determined that this finding was contradictory.
It also noted that one witness testified that the petitioner spent at least 50% of
his time pursuing criminal investigations. The court found that if this was true,
the petitioner would likely have satisfied the hazardousness test because he
was authorized to carry a firearm.
4. At oral argument, the parties agreed that this case should be joined with
the one pending with the Board on petition for review. The court urged the
parties on remand to consider how this might be accomplished.
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BOARD DECISIONS
Appellant: Fidelis O. Odoh
Agency: Office of Personnel Management
Decision Number: 2022 MSPB 5
Docket Number: CH-0731-16-0344-I-1
SUITABILITY
After investigating the appellant’s background and suitability for Federal
employment, the Office of Personnel Management (OPM) instructed the
Department of the Army to separate him from service, cancelled his eligibility
for reinstatement, cancelled his eligibility for appointment, and debarred him
for 3 years. OPM’s negative suitability determination was based on two
charges: (1) misconduct or negligence in employment; and (2) material,
intentional false statement, or deception or fraud in examination or
appointment. On appeal, the administrative judge sustained only the second
charge and remanded to OPM to determine whether the suitability action
taken was appropriate based on the sustained charge. The appellant filed a
petition for review.
Holding: The agency proved by preponderant evidence its charge of
material, intentional false statement, or deception or fraud in examination
or appointment.
1. OPM proved that the appellant provided false information on his
Optional Form (OF) 306, Declaration for Federal Employment, by
answering “no” to the question of whether he had been fired from
any job in the last 5 years, when he had been fired from his most
recent job just weeks prior.
2. OPM proved that the appellant provided false information with the
intent to deceive the agency for his own private material gain. The
appellant’s purported interpretation of the OF-306 question as asking
solely about prior Federal employment was unreasonable and
implausible based on the plain language of the question, which asked
if he had been fired from “any job for any reason.”
Holding: The Board lacks the authority to adjudicate a removal based on
OPM’s negative suitability determination as a chapter 75 adverse action,
even if the appellant is a tenured Federal employee.
1. The National Defense Authorization Act for Fiscal Year 2016, Pub.
L. No. 114-92, section 1086(f)(9), 129 Stat. 726, 1010 (2015),
amended 5 U.S.C. § 7512(F) to state that an appealable adverse
action does not include a suitability action taken by OPM.
2.
Archuelta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015), and Aguzie v.
Office of Personnel Management, 116 M.S.P.R. 64 (2011), which held
that a removal based on a negative suitability determination could be
adjudicated under chapter 75, were both decided prior to Congress
amending 5 U.S.C. § 7512(F) to exclude suitability actions from the list
of appealable adverse actions under chapter 75.
Holding: Remand to OPM is necessary because only one of OPM’s two
charges is sustained and the Board lacks jurisdiction to review or modify
the ultimate action taken as a result of a suitability determination.
Appellant: Javier Soto
Agency: Department of Veterans Affairs
Decision Number: 2022 MSPB 6
Docket Number: AT-1221-15-0157-W-1
WHISTLEBLOWER REPRISAL
PROTECTED ACTIVITY
CLEAR AND CONVINCING EVIDENCE
The appellant, a reemployed annuitant, was separated from Federal service by
a notice stating that his “services [were] no longer required.” He filed an
individual right of action (IRA) appeal with the Board, alleging that his
separation constituted reprisal for his protected disclosures and activity. After
a hearing, the administrative judge denied corrective action. The appellant
filed a petition for review, asserting that the administrative judge should have
found that he engaged in two additional activities protected under 5 U.S.C.
§ 2302(b)(9)(B) and that the agency failed to show by clear and convincing
evidence that it would have separated him in the absence of his protected
activity.
Holding: The appellant did not engage in additional protected activity
under 5 U.S.C. § 2302(b)(9).
1. The appellant’s reply to a proposed admonishment of another
bargaining-unit member was not protected activity because there is no
law, rule, or regulation granting a right to reply to a proposed
admonishment. Therefore, the appellant did not assist another
employee in an appeal, complaint, or grievance right granted by law,
rule, or regulation.
2. The appellant’s memorandum to the deciding official objecting to a
response from Human Resources Management regarding a request for
information from the union did not constitute protected activity under
5 U.S.C. § 2302(b)(9)(B). The memorandum was part of the union’s
effort to obtain information regarding the performance improvement
plans of two bargaining-unit members, not a complaint lodged in a
formal adjudicatory process, and therefore, did not meet the definition
of an “exercise of any appeal, complaint, or grievance right.”
Holding: The at-will status of reemployed annuitants does not alter the
agency’s clear and convincing burden in an IRA appeal.
1. While an agency may lawfully separate a reemployed annuitant with
relative ease, it is not sufficient for the agency to establish that its
action was justifiable, rather, it must show it would have taken the
same action absent the protected activity.
Holding: Remand was necessary for the administrative judge to conduct a
new analysis of whether the agency met its clear and convincing burden
applying the factors set forth in Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
1. The administrative judge took too narrow a view of the second
Carr factor—the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision—by failing
to consider all of the record evidence, including the tense relationship
between the union and agency management and management’s
frustration with the volume of union activity, which could have
extended to the appellant’s protected activities made in his capacity as
Executive Vice President of the American Federation of Government
Employees Local 1594.
2. Court decisions instruct that, in assessing Carr factor two, the Board
avoid an overly restrictive analysis and fully consider whether agency
officials involved possessed a “professional retaliatory motive” because
the disclosures implicated agency officials and employees in general.
3. Contrary to the findings in the initial decision, Carr factor three—any
evidence that the agency takes similar actions against employees who
do not engage in protected activity but who are otherwise similarly
situated—did not weigh in the agency’s favor because it failed to
introduce complete and fully explained comparator evidence and, thus,
the record was incomplete regarding whether the agency has taken
action against individuals who committed misconduct but did not engage
in protected activity.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: David A. Rickel
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2020-2147
Petition for Review from AT-1221-19-0576-W-1
Issuance Date: April 18, 2022
WHISTLEBLOWER REPRISAL
CLEAR AND CONVINCING EVIDENCE
The agency removed Mr. Rickel based on a charge of failure to follow
instructions after he repeatedly failed to update training records as instructed
by his supervisors. Mr. Rickel filed a Board appeal challenging his removal and
raised an affirmative defense of whistleblower reprisal. The Board found that
the agency proved its charge and the penalty of removal was reasonable. The
Board further found that Mr. Rickel proved that he had engaged in protected
activity and made protected disclosures that were a contributing factor in the
agency’s decision to remove him, but that the agency proved by clear and
convincing evidence that it would have removed him absent his whistleblowing
activity.
Considering the factors set forth in Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the Board concluded
that the strength of the agency’s evidence in support of the removal action
outweighed the relative weakness of any motive to retaliate against him.
Because neither party offered evidence relevant to the third Carr factor—any
evidence that the agency takes similar actions against employees who did not
engage in protected activities but who are otherwise similarly situated—the
Board found it appropriate to remove that factor from consideration. On
appeal before the Court, the petitioner challenged the Board’s decision with
respect to the third Carr factor.
Holding: The Court affirmed the Board’s decision that the agency met its
clear and convincing burden of proof.
1. The Board did not err in its determination that there was an absence of
evidence relevant to the third Carr factor, which is focused on evidence
that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.
2. The testimony of the deciding official that he had not previously
removed an employee for one charge of failure to follow instructions
and he was not aware of any other supervisor removing an employee for
a single charge of failure to follow instructions was not pertinent to the
third Carr factor because:
A. it did not address or identify an actual comparison employee who
had engaged in misconduct similar to Mr. Rickel’s; and
B. it suggested only that there was no record evidence regarding
whether the agency had taken similar actions against similarly
situated nonwhistleblowers.
NONPRECEDENTIAL:
Cruz v. Merit Systems Protection Board, No. 2022-1418 (Fed. Cir. Apr. 21,
2022) (MSPB Docket No. DC-3443-22-0015-I-1) (dismissing the petition for
review for failure to prosecute).
Coppola v. Department of Veterans Affairs, No. 20-70361 (9th Cir. Apr.
19, 2022) (MSPB Docket No. SF-1221-17-0027-M-1).
The court dismissed
as moot the petition for review in which the petitioner argued that the
administrative judge was defectively appointed under Lucia v. Securities
& Exchange Commission, 138 S. Ct. 2044 (2018), because the Board now
has a quorum and has duly appointed a new administrative judge to
adjudicate the petitioner’s case.
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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: Angela Bannister
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 21-1832
Petition for Review from DA-0714-20-0517-I-1
Issuance Date: February 24, 2022
Title 38 U.S.C. § 714
Whistleblowing Reprisal
The agency proposed Ms. Bannister’s removal under 38 U.S.C. § 714 on a
charge of conduct unbecoming. After considering her written response, the
deciding official issued a decision letter sustaining the charge, but mitigating
the penalty to a 30-day suspension. In doing so, the deciding official found
that “the charge as stated in the notice of proposed removal was supported by
substantial evidence.”
Ms. Bannister filed a Board appeal in which she contested whether the charged
conduct occurred, and further alleged as an affirmative defense that the
agency suspended her in retaliation for protected whistleblowing activity. The
administrative judge found that the agency proved by substantial evidence
that Ms. Bannister engaged in conduct materially consistent with the
specifications. The administrative judge further found that Ms. Bannister
failed to establish her defense of whistleblowing reprisal. The initial decision
subsequently became the final decision of the Board.
On appeal to the Federal Circuit, Ms. Bannister argued that the agency’s
decision was in error because the deciding official applied a substantial
evidence standard instead of determining whether the charge was established
by a preponderance of the evidence, as required under Rodriguez v.
Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir 2021). She also
contested the Board’s findings on her affirmative defense.
Holding: Applying Rodriguez, the court vacated the portion of the Board’s
decision that sustained the charge and remanded for further proceedings
under the correct legal standard. The court affirmed the portion of the
Board’s decision finding that the appellant failed to prove her defense of
whistleblowing reprisal.
1. The court explained that it held in Rodriguez that the agency may not
use a “substantial evidence” standard in taking an action under § 714.
Rather, under § 714, the agency must use a “preponderance of the
evidence” standard in determining whether the alleged misconduct
occurred. The references to “substantial evidence” in § 714 “are all
explicitly directed to the standard of review to be applied by
administrative judges and the Board.”
2. Because the deciding official used the incorrect standard of proof in
reaching the final decision, the court vacated for further proceedings
under the correct legal standard. The court suggested that this would
involve a remand to the agency: “Presumably those further proceedings
will include the Board requiring the VA’s deciding official to determine
whether the evidence as to the charge against Ms. Bannister satisfied
the requisite preponderance-of-the-evidence standard of proof.”
3. The court rejected the agency’s contention that Ms. Bannister forfeited
her Rodriguez argument because she did not raise it until her reply
brief, which she filed about two months after Rodriguez was decided.
Citing In re Micron Tech., Inc., 875 F.3d 1091 (Fed. Cir. 2017), the court
noted that “a sufficiently sharp change of law sometimes is a ground for
permitting a party to advance a position that it did not advance earlier
in the proceeding when the law at the time was strongly enough against
that position.” In this case, prior to Rodriguez, the court’s case law
“did not directly resolve” whether the agency was permitted to prove
misconduct by only substantial evidence.
4. Finally, the court affirmed the Board’s findings on Ms. Bannister’s
affirmative defense.
In particular, the court found that the Board
considered the relevant evidence in assessing which of the alleged
disclosures were protected, and properly applied the factors set forth in
Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), in
finding that the agency met its burden of showing that it would have
taken the same action absent the protected disclosures.
Petitioner: Eric Terrell Bryant
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 21-1896
Petition for Review from AT-0714-20-0709-I-1
Issuance Date: February 24, 2022
Title 38 U.S.C. § 714
Whistleblowing Reprisal
The agency removed Mr. Bryant under 38 U.S.C. § 714 on a charge of conduct
unbecoming a Federal employee. In the decision letter, the deciding official
found that “the charge as stated in the notice of proposed removal was
supported by substantial evidence.” The deciding official sustained the
proposed removal without mentioning the Douglas factors.
Mr. Bryant filed a Board appeal, in which he contested whether the charged
misconduct occurred and whether removal was an appropriate penalty under
the Douglas factors. He also raised an affirmative defense of whistleblowing
reprisal. The administrative judge found that the agency proved the charge by
substantial evidence, and upheld the removal penalty. However, like the
deciding official, the administrative judge did not conduct a Douglas factors
analysis. The administrative judge further found that Mr. Bryant failed to
establish his affirmative defense. The initial decision subsequently became
the final decision of the Board.
On appeal to the Federal Circuit, Mr. Bryant argued that the agency’s decision
was flawed because the deciding official applied a substantial evidence
standard instead of determining whether the charge was established by a
preponderance of the evidence, as required under Rodriguez v. Department of
Veterans Affairs, 8 F.4th 1290 (Fed. Cir 2021). Mr. Bryant further argued that
the Board’s decision to uphold the penalty was contrary to law because the
agency and the Board failed to properly consider the Douglas factors, as
required under Connor v. Department of Veterans Affairs, 8 4th 1319 (Fed.
Cir. 2021). Finally, Mr. Bryant contested the Board’s findings on his
affirmative defense.
Holding: Applying Rodriguez and Connor, the court vacated the portion of
the Board’s decision that sustained the charge and penalty and remanded
for further proceedings under the correct legal standard. The court
affirmed the portion of the Board’s decision finding that the appellant
failed to prove his defense of whistleblowing reprisal.
1. The court explained that it held in Rodriguez that the agency may not
use a “substantial evidence” standard in taking an action under § 714.
Rather, under § 714, the agency must use a “preponderance of the
evidence” standard in determining whether the alleged misconduct
occurred. The references to “substantial evidence” in § 714 “are all
explicitly directed to the standard of review to be applied by
administrative judges and the Board.”
2. Because the deciding official used the incorrect standard of proof in
reaching the final decision, the court vacated for further proceedings
under the correct legal standard. The court suggested that this would
involve a remand to the agency: “Presumably those further proceedings
will include the Board requiring the VA’s deciding official to determine
whether the evidence as to the charge against Mr. Bryant satisfied the
requisite preponderance-of-the-evidence standard of proof.”
3. The court further found that the Board’s penalty analysis was legally
erroneous under Connor, because the Board (and the agency) failed to
apply the Douglas factors. Accordingly, for that independent reason,
the court vacated the penalty portion of the Board’s decision and
remanded for further proceedings under the correct legal standard.
Because the court was remanding the case under Rodriguez in any
event, the court declined to address the agency’s argument that the
failure of the agency and the Board to consider the Douglas factors was
harmless error.
4. Finally, the court found no basis for disturbing the Board’s conclusion
that Mr. Bryant failed to show that his whistleblowing activity was a
contributing factor to the personnel action. Accordingly, the court
affirmed the Board’s decision with respect to the affirmative defense.
NONPRECEDENTIAL:
Allbee v. Department of Homeland Security, No. 21-1608 (Fed. Cir. Feb.22,
2022) (DA-0752-20-0238-I-1)
The agency removed the appellant from his Supervisory Border Patrol Agent
position for unauthorized travel expenses (25 specifications), making
unauthorized cash withdrawals on a government travel card, and failure to
cooperate in an official investigation. On appeal, the administrative judge
(AJ) found that the agency proved only charge 1, and only 20 of the 25
underlying specifications. However, the AJ determined that the agency had
demonstrated a nexus between Mr. Albee’s misconduct and the efficiency of
the service, and that the removal penalty was reasonable. On appeal to the
Federal Circuit, the appellant argued the following: (1) that the AJ erred in
ruling that the agency did not have to prove that the appellant had fraudulent
intent when he submitted the vouchers at issue in charge 1; (2) that the AJ
erred in finding that the agency proved 20 of the 25 specifications by a
preponderance of the evidence; (3) that the agency failed to demonstrate a
nexus between the misconduct alleged in charge 1 and the efficiency of the
service; and (4) that the AJ erred in finding that the removal penalty was
reasonable. Regarding the first argument, the court agreed with the AJ that
neither the charges nor the underlying specifications referred to any intent on
the part of Mr. Albee. The court further found that the AJ’s findings on the 20
sustained specifications of charge 1 were supported by substantial evidence.
The court also agreed with the AJ that the agency established nexus, and
found that, contrary to the appellant’s arguments, the 6-year delay between
the misconduct and the removal was not relevant to determining nexus.
Finally, the Board agreed with the AJ that the agency had considered the
relevant Douglas factors and that the penalty of removal was reasonable.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Standley v. Department of Energy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: No. 21-2149
MSPB Docket Number: DC-1221-20-0788-W-1
Issuance Date: February 16, 2022
COURT REVIEW
- MISCELLANEOUS (SUBSTANTIAL EVIDENCE)
Dr. Standley was a General Engineer in the National Nuclear Security
Administration, Office of Defense Nuclear Nonproliferation Research and
Development (DNN), Office of Nuclear Detonation Detection. He filed an
individual right of action appeal, claiming that the DNN Associate Assistant
Deputy Administrator and the DNN Assistant Deputy Administrator retaliated
against him for his efforts to change agency policy (regarding a mission to
provide space-based nuclear detection) by not selecting him for any of three
agency Director positions posted in 2014, 2015, and 2017. The administrative
judge denied corrective action, finding that Dr. Standley failed to meet his
burden to prove that agency personnel perceived him as a whistleblower. The
Board’s decision became final when neither party filed a petition for review.
Before the court, Dr. Standley alleged that the Board failed to consider certain
evidence indicating that agency, the DNN Associate Assistant Deputy
Administrator, and the DNN Assistant Deputy Administrator perceived his
activities to be protected and the Board failed to consider certain evidence
indicating that the agency acted fraudulently. The court found that the
administrative judge considered and rejected Dr. Standley’s interpretation of
the evidence, and the administrative judge’s analysis was supported by
substantial evidence. The court affirmed the Board’s decision to deny
corrective action.
NONPRECEDENTIAL:
Fleming v. Merit Systems Protection Board, No. 21-2080 (Fed. Cir. Feb. 15,
2022) (AT-844E-21-0223-I-1): Ms. Fleming applied for disability retirement in
2020. The Office of Personnel Management (OPM) issued a final decision
denying her application. Thereafter, Ms. Fleming appealed to the Board, and
OPM advised that it had rescinded its final decision and stated that it would
issue a new decision. The Board dismissed the appeal for lack of jurisdiction
because OPM had rescinded its final decision and indicated that it would issue a
new decision. The court affirmed the Board’s decision.
Haq v. Office of Personnel Management, No. 21-1536 (Fed. Cir. Feb. 11, 2022)
(DC-0842-20-0798-I-1): Ms. Haq requested a refund of her retirement
contributions in July 2004, and the refund was authorized in November 2004. In
June 2020, Ms. Haq applied for a deferred retirement annuity, but OPM denied
her claim because she had previously requested a refund of her retirement
contributions. Ms. Haq appealed to the Board. The administrative judge
affirmed OPM’s decision to deny her claim for a deferred retirement annuity.
The administrative judge further found that the doctrine of laches barred Ms.
Haq’s claim because her nearly 16-year delay materially prejudiced OPM’s
ability to access relevant records from the Department of the Treasury, which
maintains records for only 7 years. Ms. Haq appealed to the court, which found
that OPM “suffered material defense prejudice” because of Ms. Haq’s delay in
inquiring about her allegedly missing refund payment. The court affirmed the
Board’s conclusion that the doctrine of laches barred Ms. Haq’s request for a
deferred retirement annuity.
Barnes v. General Services Administration, No. 21-1799 (Fed. Cir. Feb. 11,
2022) (DC-0752-20-0202-I-2): Rule 36 affirmance.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Ash v. Office of Personnel Management
Tribunal: United States Court of Appeals for the Federal Circuit
Case Number: 2021-2194
MSPB Docket Number: DA-844E-20-0536-I-1
Issuance Date: February 9, 2022
COURT REVIEW
- MISCELLANEOUS
DISCRIMINATION
- MIXED CASE PROCEDURES
RETIREMENT
- PROCEDURES/MISCELLANEOUS
The petitioner filed a Board appeal challenging a reconsideration decision by
the Office of Personnel Management (OPM) denying his application for disability
retirement benefits. In his Board appeal, he alleged disparate treatment based
on race and prior protected activity. The Board affirmed OPM’s
reconsideration decision and found that the petitioner failed to prove his
disparate treatment claims. The petitioner then appealed the Board’s decision
to the U.S. Court of Appeals for the Federal Circuit. The court issued an order
to the parties to show cause whether the case should be transferred to a
United States district court as a mixed case under 5 U.S.C. § 7703(b)(1)(A).
HELD: An appeal arising from an OPM decision regarding retirement benefits
can be a “personnel action” giving rise to a mixed case over which the
Federal Circuit lacks jurisdiction.
The Federal Circuit generally has jurisdiction to review final decisions of the
Board. However, if the appellant (1) has been affected by an action that may
be appealed to the Board and (2) alleges that a basis for the action was
discrimination prohibited by certain Federal statutes, then the appeal is a
mixed case and the United States district courts have jurisdiction to hear the
case. 42 U.S.C. § 2000e-16 prohibits race discrimination in “personnel
actions.”
The court determined that the OPM decision in this case constitutes a
personnel action and that the petitioner had therefore brought a mixed case
appeal over which the Federal Circuit lacks jurisdiction. Accordingly, the court
transferred the case to the United States District Court for the District of
Maryland.
NONPRECEDENTIAL:
Ross v. Merit Systems Protection Board, No. 2021-2262 (Fed. Cir. Feb.
10, 2022) (MSPB Docket No. NY-0752-21-0008-I-1): The court affirmed
the Board’s decision dismissing the petitioner’s termination appeal for
lack of jurisdiction. The agency terminated the petitioner for breaching
a Last Chance Agreement (LCA) that included a waiver of Board appeal
rights. The court agreed with the Board that the petitioner failed to
nonfrivolously allege that (1) he complied with the LCA, (2) the agency
materially breached the LCA, or (3) he did not enter into the LCA
knowingly and voluntarily.
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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: George Smolinski
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 21-1751
Petition for Review from DC-1221-20-0814-W-1
Issuance Date: January 19, 2022
Whistleblower Protection Act
- Jurisdiction
- Abuse of Authority
In December 2017, Dr. Smolinski’s wife received allegedly substandard
treatment at an Army hospital where Dr. Smolinski (then a Lieutenant
Colonel) served as a visiting provider. Mrs. Smolinski filed a patient
complaint that made its way up the chain of command to the hospital’s
commander, Colonel H. Three days later, the Smolinskis attended a
holiday ball where Col. H. was present. According to Dr. Smolinski, Col.
H. was visibly intoxicated, tried to intimidate him as a lower-ranking
officer, and made his wife feel uncomfortable by whispering in her ear
and touching her, causing her to believe Col. H. would have assaulted
her had they been alone. Dr. Smolinski filed a complaint concerning
Col. H.’s behavior, and the agency launched an internal investigation
under Army Regulation (AR) 15-6. In April 2018, as part of that
investigation, both Dr. and Mrs. Smolinksi gave sworn testimony
describing Col. H.’s conduct at the holiday ball. The investigation
concluded in June 2018, and Col. H., who had been temporarily relieved
of his duties, was reinstated as hospital commander.
Subsequently, Mrs. Smoliksi told Col. B., the deputy commanding
officer, that she believed she had been kept from volunteer activities in
retaliation for her testimony in the AR 15-6 investigation, and was
fearful that her husband would experience similar retaliation. In July
2018, Dr. Smolinksi applied for his current position as a Supervisory
Physician in the Army hospital. He was found qualified and the agency
extended him a tentative job offer. However, in August 2018, Col. B.
launched an investigation into undisclosed “ethical concerns”
concerning the Dr. Smolinski’s hiring, and in November 2018, Col. B.
notified Dr. Smolinski that the Army was withdrawing the job offer.
Later that month, the agency reposted the same position, and Dr.
Smolinski applied using the same resume and credentials, but the Army
rejected his application, claiming that he was not qualified.
In May 2019, Dr. Smolinski filed a complaint with the Office of Special
Counsel (OSC), alleging that the August 2018 investigation, the
withdrawal of the tentative job offer, and his non-selection after the
agency reposted the job opening were in retaliation for his wife’s
December 2017 patient complaint and the Smolinskis’ testimony against
Col. H. in the AR 15-6 investigation.
In August 2019, after Col. H. had left his position as hospital
commander, Dr. Smolinski again applied for the same Supervisory
Physician, and the agency extended him a “final job offer” with salary
of $265,953. Dr. Smolinski counteroffered, asking for a salary of
$275,000 and a 15% signing bonus. The agency did not respond, and the
intended starting date in December 2019 came and went without a
decision regarding the counteroffer. In February 2020, the agency
extended Dr. Smolinksi a new job offer, at a lower salary of $221,604.
Dr. Smolinski accepted.
In March 2020, Dr. Smoliski amended his OSC complaint to recount the
developments since his original complaint, but he did not allege before
OSC that the Army had retaliated against him for filing his original or
amended complaint. In June 2020, OSC informed him that it had closed
the investigation and decided not to take further action.
Dr. Smolinski filed an Individual Right of Action (IRA) appeal with the
Board under 5 U.S.C. § 1221. Before the Board, he alleged that the
agency retaliated against him four protected activities: (1) his wife’s
December 2017 patient complaint; (2) his April 2018 testimony in the AR
15-6 investigation; (3) his original OSC complaint; and (4) his amended
OSC complaint. The agency moved to dismiss, arguing that Dr. Smolinski
failed to establish that these were protected disclosures. The
administrative judge agreed and dismissed the appeal for lack of
jurisdiction. Dr. Smolinski then appealed to the Federal Circuit.
Holding: The court found that the Board erred in dismissing Dr. Smolinski’s
claims of his reprisal for his April 2018 testimony, because he alleged
sufficient factual matter to state a plausible claim under 5 U.S.C.
§ 2302(b)(8) and (b)(9)(C). Regarding the (b)(8) claim, the court found it
plausible that the appellant’s disclosure evidenced an abuse of authority.
Although 5 U.S.C. § 2302 does not define the term “abuse of authority,”
the court found it appropriate to apply the definitions found in related
whistleblower protection statutes at 10 U.S.C. § 2409(g)(6)(1) and 41 U.S.C.
§ 4712(g)(1), and determined that the alleged conduct by Col. H. would
qualify. The court further clarified that, when considering whether an
appellant's allegations are sufficient to establish Board jurisdiction under
the Whistleblower Protection Act, the Board is not limited to the four
corners of the OSC complaint, and may consider agency evidence that
supports the appellant's allegations. The court also found that the Board
erred in failing to address the appellant’s claim under 5 U.S.C.
§ 2302(b)(9)(C), which prohibits retaliation for cooperating with or
disclosing information to any component responsible for internal
investigation or review. The court affirmed the Board’s dismissal of the
remaining claims.
1. The court first found that Dr. Smolinski failed to allege sufficient factual
matter to state a plausible claim that his wife’s December 2017 patient
complaint was a protected disclosure under 5 U.S.C. § 2302(b)(8).
Contrary to Dr. Smolinski’s argument before the court, his vague
allegations before OSC and the Board did not plausibly show that his
wife’s complaint evidenced gross mismanagement or a specific threat to
public health and safety.
2. The court next considered Dr. Smolinksi’s argument that his April 2018
testimony against Col. H. was protected under 5 U.S.C. § 2302(b)(8) and
(b)(9)(C). Regarding the (b)(8) claim, the court found that Dr. Smolinksi
made a nonfrivolous allegation that he disclosed an abuse of authority
on the part of Col. H. The court noted that, while § 2302 does not
define abuse of authority, related whistleblower statutes do.
Specifically, 10 U.S.C. § 2409(g)(6)(1), which extends whistleblower
protections to employees of defense contractors, defines abuse of
authority as “[a]n arbitrary and capricious exercise of authority that is
inconsistent with the mission of the Department of Defense.” Likewise,
41 U.S.C. § 4712(g)(1) defines abuse of authority as “an arbitrary and
capricious exercise of authority that is inconsistent with the mission of
the executive agency concerned.” Applying those definitions, the court
found that Dr. Smolinski’s allegations evidenced of an abuse of
authority, for whatever the Army’s mission may be, Col. H.’s alleged
bullying and sexual harassment were inconsistent with it. The alleged
conduct was also in violation of an Army regulation prohibiting
“[i]ntimidating, teasing, name calling, mockery, threats of violence,
harassment, [or] taunting.”
3. In reaching that conclusion, the court also found that, contrary to the
agency’s position, it was appropriate to consider Dr. Smolinski’s April
2018 testimony for purposes of determining jurisdiction.
The agency
cited to Hessami v. Merit Systems Protection Board, 979 F.3d 1362 (Fed.
Cir. 2020), which held that the Board must accept as true a
complainant’s well-pleaded factual allegations in assessing jurisdiction,
notwithstanding agency evidence that undermines those allegations.
However, the court clarified, Hessami did not hold that we must “turn a
blind eye to evidence specifically referenced in and supporting a
complainant’s allegations.”
4. The court further found that Dr. Smolinski had stated a plausible claim
under § 2302(b)(9)(C), which prohibits retaliation for “cooperating with
or disclosing information to [any] component responsible for internal
investigation or review.” The Board erred in failing to address that
claim.
5. Next, the court found that the Board did not err in dismissing Dr.
Smolinski’s claims of retaliation for his OSC complaints. Because he
never argued to OSC that the agency’s alleged reprisals were due to his
OSC complaints, he failed to show that he exhausted his remedies with
OSC regarding those claims.
6. Finally, the court denied Dr. Smolinski’s request to reassign the case to
a different administrative judge. Reassignment is an extraordinary
remedy that requires “a showing of a deep-seated favoritism or
antagonism that would make fair judgment impossible,” and Dr.
Smolinksi failed to make such a showing.
7. In sum, the court affirmed the Board’s dismissal of Dr. Smolinksi’s
claims of reprisal for his wife’s patient complaint and his OSC
complaints. However, it reversed the dismissal of his claims of reprisal
for his April 2018 testimony, and remanded those claims to the Board for
adjudication on the merits.
NONPRECEDENTIAL:
Aubart v. Merit Systems Protection Board, No. 21-2190 (Fed. Cir. Jan. 18,
2022) (SF-1221-20-0520-W-1)
Mr. Auburt filed an IRA appeal alleging that his employing agency (Department
of the Army) created a hostile work environment and proposed his removal in
retaliation for disclosing to agency officials that three Army employees had
made materially false statements in official proceedings in violation of 18
U.S.C. § 1001. The appellant had previously filed appeals with the U.S. Civilian
Board of Contract Appeals (CBCA) and the District Court of the District of
Hawaii, contesting the denial of his request for compensation for additional
commuting expenses resulting from a temporary change of duty station
pending renovation of his office building. According to the appellant’s
disclosures, two agency officials involved in the CBCA proceeding falsely
characterized the move as an “official change of duty station,” while the third
official falsely stated before the district court that the appellant’s “duty
station was being moved” because his original office “was no longer
available.” The Board dismissed the appeal, finding that Mr. Aubert failed to
nonfrivolously allege that he made a protected disclosure under the WPA. On
appeal to the Federal Circuit, Mr. Auburt argued that the Board “failed to
properly apply the non-frivolous standard at the jurisdictional stage.” The
court disagreed, finding that Mr. Auburt did not plausibly allege that a
disinterested observer would believe that the three individuals violated § 1001.
Accordingly, the court affirmed the Board’s decision.
Thompson v. Merit Systems Protection Board, No. 21-2036 (Fed. Cir. Jan. 18,
2022) (SF-0752-21-0019-I-1)
Mr. Thompson, an employee of the Department of the Navy, applied for
disability retirement, and on August 27, 2018, the Office of Personnel
Management (OPM) approved his application. However, OPM incorrectly
awarded Mr. Thompson, who was 69 years old at the time, a 60% disability
computation available only to applicants 62 or under. Mr. Thompson
attempted to notify OPM of the mistake and verify that he could accept the
payments, but OPM assured him there would be no problems and that he
should enjoy his retirement. OPM eventually noticed its error, however, and in
February 2019, it notified Mr. Thompson that he had been overpaid $5,432.48.
Mr. Thompson first filed an appeal against OPM, which resulted in a
settlement. Next, he filed an appeal against the Navy, alleging that his
retirement was involuntary because OPM had misrepresented his retirement
benefits. The Board dismissed that appeal for lack of jurisdiction. On appeal,
the Federal Circuit affirmed the Board’s decision, finding that Mr. Thompson
had not produced evidence that the Navy misinformed, deceived, or coerced
him into retiring.
Gessel v. Merit Systems Protection Board, No. 21-1815 (Fed. Cir. Jan. 19,
2022) (SF-1221-21-0023-W-1)
Mr. Gessel, an employee of the Department of the Air Force, was fired during
his probationary period after he lost a key to a government building, which
required costly rekeying. After exhausting his remedies with OSC, he filed an
IRA appeal with the Board alleging that the agency wrongfully terminated him
for whistleblowing--specifically, for notifying his supervisor about the behavior
of one of his nonsupervisory coworkers, which Mr. Gessel found troubling. In
his disclosures, Mr. Gessel reported that his coworker made him
“uncomfortable,” was “confrontational and attempt[ed] to supervise or
discipline him,” and “often watch[ed] foolish and juvenile rap videos and other
material,” which he found offensive. Mr. Gessel also reported that he
overheard his coworker say “[t]herea aint no Whiteboys upstairs,” and believed
that his remark was “intended for [him] to hear” and was “mean-spirited and
retaliatory.” Mr. Gessel also described an incident in which his coworker
entered an isolated storage area where Mr. Gessel was working, leading him to
be “frightened and alarmed” his coworker would attack him. The Board
dismissed Mr. Gessel’s IRA appeal, finding that he failed to make a nonfrivolous
allegation that he made a protected disclosure. Mr. Gessel appealed to the
Federal Circuit, and the court affirmed the Board’s decision. The court noted
that in cases where a supervisor had engaged in similar conduct, or there were
similar conflicts between an employee and supervisor, it had found that
reports of the conduct or the strained working relationship were not covered
under the WPA. Hence, the court reasoned, the same must be true of
comparable conduct or relations with nonsupervisory coworkers, who have no
authority to abuse the employee.
Brown v. Department of the Air Force, No. 21-2245 (Fed. Cir. Jan. 20, 2022)
(SF-1221-21-0350-W-1)
The agency notified Ms. Brown that she would terminated during her
probationary period because she “failed to perform” certain duties and her
supervisor “received complaints” regarding her lack of civility and refusal to
perform certain work. Before the effective date of the termination, Ms. Brown
met with the local commander and stated that she declined work to comply
with certain Air Force regulations. The commander and another officer
informed Ms. Brown that the regulations did not apply to her position, and the
commander subsequently concurred with the decision to terminate her.
Ms. Brown’s termination led to three Board proceedings. In the first appeal
(Brown-1), the Board dismissed her appeal for lack of jurisdiction. In the
second appeal (Brown-2), Ms. Brown cured the jurisdictional deficiency and
raised a new allegation that her termination was in retaliation for protected
whistleblowing disclosures under 5 U.S.C. § 2302(b)(8). The Board denied that
appeal on the merits, finding that she failed to show by preponderant evidence
that her alleged disclosures were protected. The Federal Circuit affirmed.
Following the court’s affirmance, Ms. Brown filed a new complaint with OSC,
which determined that the matters raised in her complaint had already been
addressed in Brown-2. Ms. Brown then filed the instant appeal (Brown-3),
where she again argued that she was terminated in retaliation for the same
allegedly protected disclosures. The Board concluded that, in light of the final
decision in Brown-2, the doctrine of res judicata, or, in the alternative, the
doctrine of collateral estoppel, precluded Ms. Brown from relitigating her
claim. She again appealed to the Federal Circuit, challenging the Board’s
decision on the merits in Brown-2, and arguing that the Board improperly
applied res judicata because she “ha[d] not exhausted all avenues of her
judicial rights” and because the Board declined to consider all the evidence.
The court affirmed. It first noted that the doctrine of res judicata applies
when (1) the prior decision was rendered by a forum with competent
jurisdiction; (2) the prior decision was a final decision on the merits; and (3)
the same cause of action and the same parties or privies were involved in both
actions. The court agreed with the Board that all three elements were
satisfied. The court further found that, to the extent Ms. Brown was raising
new challenges to the Board’s fact findings and legal conclusions, any such
arguments could have been raised in Brown-2, and therefore were also
precluded by res judicata.
Marana v. Merit Systems Protection Board, No. 21-1463 (Fed. Cir. Jan 20,
2022) (AT-1221-20-0543-W-1)
Mr. Marana, a nurse at an Army hospital, was removed for conduct unbecoming
a federal employee in connection with his inappropriate disclosures of personal
health information. He then filed a complaint with OSC, which closed its
investigation without taking action. In its closing letter, OSC identified six
alleged disclosures: (1) reporting problems with recordation and infection
control at the hospital; (2) informing the agency that his position could be
performed by a nurse or administrative assistant with a lower GS rating; (3)
accusing the Chief of Medical Management of denying care to patients; (4)
complaining to supervisors about alleged favoritism in the Medical Evaluation
Board process; (5) raising concerns about the treatment of “against medical
advice” patients; and (6) making disclosures about the sterilization of flexible
endoscopes.
Mr. Marana filed an IRA appeal, which the administrative judge dismissed for
lack of jurisdiction. The administrative judge found that Mr. Marana had
exhausted his remedies with OSC, and had nonfrivolously alleged that he was
subjected to covered personnel actions when (1) his access to electronic health
records was suspended, (2) when the agency proposed his removal, and (3)
when it removed him. However, the administrative judge found that Mr.
Marana had failed to make a nonfrivolous allegation that disclosures 4 and 5
were protected, and had failed to show that disclosures 1, 2, 3, and 6, even if
protected, contributed to the personnel actions the agency took against him.
Mr. Marana appealed the Board’s decision to the Federal Circuit.
The court agreed with the administrative judge that Mr. Marana failed to
nonfrivolously allege that disclosures 4 and 5 were protected under 5 U.S.C.
§ 2302(b)(8). Regarding disclosures 1, 3, and 6, the court agreed with the
administrative judge that the disclosures were too remote in time from the
challenged personnel actions to meet the knowledge-timing test, and that the
other circumstances surrounding the disclosure were not suggestive of
whistleblowing. However, as the government acknowledged, the
administrative judge erred in treating disclosure 2 in the same manner, since
that disclosure took place shortly before the issuance of the removal letter.
The government argued that, although the administrative judge’s decision with
respect to disclosure 2 could not be sustained based on the timing of the
disclosure, it could still be sustained on the alternative ground that Mr. Marana
failed to nonfrivolously allege that the disclosure was protected.
The court noted that it is a general principle of administrative law that a court
may not uphold an agency’s decision on grounds different from those employed
by the agency in the decision under review. See Sec. & Exch. Comm’n v.
Chenery Corp., 318 U.S. 80, 87 (1943). Here, the government acknowledged
that principle but invoked an exception to that principle that applies when the
reviewing court can uphold the agency’s decision on a purely legal basis
without making any factual determination not previously made by the agency.
The court found that it was unnecessary to decide whether the Chenery
doctrine would permit it to decide the jurisdictional issue, because the
appropriate course of action was to remand the case to the Board to address
the jurisdictional question in the first instance. To decide that question, the
Board would need to determine whether disclosure 2 went beyond allegations
concerning the staffing level necessary for the duties assigned to his position
and whether such allegations, if made, could be viewed as involving a
reasonable belief that what he disclosed evidenced an abuse of authority,
gross mismanagement or waste of funds, or a substantial danger to public
health or safety. The court found that the record before it did not make
resolution of those questions practicable, and that the administrative judge,
who can obtain further submissions from the parties if necessary, was in a
much better position to address those issues. In addition, the Board would
need to address on remand the extent to which Mr. Marana exhausted his
administrative remedies before OSC with respect to disclosure 2. Accordingly,
the court remanded the portion of the case relating to disclosure number 2 to
allow the Board to decide whether disclosure 2, to the extent it was preserved
for consideration by the Board, is sufficient to give the Board jurisdiction over
Mr. Marana’s IRA appeal, and for any further proceedings that may be
necessary thereafter.
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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.
PRECEDENTIAL COURT DECISION
Petitioner: Joseph Valles
Respondent: Department of State
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-1686
MSPB Docket Number: DE-0752-19-0297-I-2
Issuance Date: October 29, 2021
Adverse Actions
Performance and Misconduct
Harmful Error
Penalty/Frequently Repeated Offenses
The petitioner was a Passport Specialist for the agency, who in 2016 served a
3-day suspension for making inappropriate comments at work, and in 2018
served a 5-day suspension for failure to follow instructions and failure to
protect personally identifiable information. Nevertheless, the petitioner
received a fully successful performance rating for calendar year 2018.
On May 9, 2019, the agency removed the petitioner based on four charges:
(1) failure to follow instructions (eleven specifications), (2) failure to protect
personally identifiable information (one specification), (3) failure to follow
policy (five specifications), and (4) improper personal conduct (one
specification). Some of this conduct occurred during the 2018 rating period.
The petitioner filed a Board appeal, and the administrative judge issued an
initial decision affirming his removal. The administrative judge credited the
agency’s distinction between issues of performance and misconduct, the
former involving employees who “can’t do” and the latter involving employees
who “won’t do.” Finding that the charges “presented an issue of misconduct
more than performance,” the administrative judge declined to consider the
2018 performance evaluation as a rebuttal to the charges. He found that the
agency proved its charges and established nexus and that the removal penalty
was reasonable under the circumstances. The initial decision became final,
and the petitioner sought judicial review.
Holding: Issues of performance and misconduct may overlap. The
existence of a fully successful performance evaluation does not necessarily
bar discipline for matters covered by that evaluation, but it still must be
considered in determining whether the employee committed the offenses
charged and the reasonableness of the penalty imposed.
1. The court explained that performance and conduct issues “may
overlap.” In this case, the petitioner’s performance plan required that he
follow instructions, and some of the specifications under the failure to follow
instructions charge occurred during the period covered by the 2018
performance evaluation. Therefore, the administrative judge should have
considered that evaluation in assessing that charge.
2. Nevertheless, the administrative judge’s failure to consider the 2018
performance evaluation did not constitute reversable error because the
petitioner failed to show that it likely affected the outcome of the Board’s
decision. The petitioner did not dispute that any of the events underlying the
charges occurred, and five of the eleven specifications of failure to follow
instructions occurred outside the 2018 performance year.
3. Even assuming that the administrative judge erred in failing to consider
the 2018 performance evaluation in assessing the penalty, the petitioner did
not show harmful error. First, the deciding official considered the evaluation
in reaching his penalty determination, in the context of his thorough Douglas
factor analysis. Second, even if the evaluation suggested that the 2018
specifications of failure to follow instructions were not serious in and of
themselves, their seriousness was magnified in light of the petitioner’s prior
discipline for similar infractions and his continued failure to follow instructions
after the 2018 appraisal period ended.
NONPRECEDENTIAL COURT DECISIONS
Moreno v. Department of the Interior, No. 2020-1507 (November 2, 2021) (DE
0752-18-0418-I-1): The court vacated and remanded the Board’s decision that
affirmed the petitioner’s removal for attendance reasons because the Board
failed to conduct a proper Douglas factor analysis. The agency removed the
petitioner based on charges of absence without leave (AWOL) and excessive
absences. The administrative judge sustained the AWOL charge only and found
“nothing unreasonable” in the deciding official’s penalty analysis. Because he
sustained fewer than all the charges, the administrative judge should have
weighed the Douglas factors independently to determine the maximum
reasonable penalty for the sole sustained charge.
Finizie v. Department of Veterans Affairs, No. 2021-1493 (November 3, 2021)
(PH-1221-18-0304-W-2): The court affirmed the Board’s decision that
dismissed the petitioners’ consolidated individual right of action appeal for
lack of jurisdiction. The petitioners alleged that the agency retaliated against
them for three protected disclosures. However, substantial evidence
supported the administrative judge’s finding that none of the disclosures were
protected under the Whistleblower Protection Act (WPA). The petitioners
lacked a reasonable belief that the misconduct alleged in the first and third
disclosures amounted to wrongdoing covered under the WPA, and they lacked a
reasonable belief that the misconduct alleged in the second disclosure actually
occurred.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Marcato v. United States Agency for International
Development
Tribunal: United States Court of Appeals for the District of
Columbia Circuit
Case Number: 19-1041
MSPB Docket Number: DC-0752-18-0075-I-2
Issuance Date: August 24, 2021
WHISTLEBLOWER PROTECTION ACT
- CLEAR AND CONVINCING EVIDENCE
Exercising its jurisdiction under 5 U.S.C. § 7703(b)(1)(B) to review
challenges regarding the Board’s disposition of whistleblower retaliation
claims, the United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) reviewed the petitioner’s removal for misconduct.
The agency removed the petitioner from her position as a management
analyst in the Office of the Inspector General based on charges of
disclosing sensitive information about an ongoing investigation, violating
the agency’s security policy and communications protocol, and making
false statements. On appeal to the Board, the petitioner alleged
whistleblower retaliation. The administrative judge sustained the
removal, finding in relevant part that although the petitioner had
established a prima facie case of retaliation, the agency had shown by
clear and convincing evidence that it would have taken the same action
in the absence of the petitioner’s protected disclosures. The petitioner
sought review of the Board’s disposition of her retaliation claim before
the D.C. Circuit.
HELD: The agency met its burden to prove by clear and convincing
evidence that it would have removed the petitioner in the absence of
her protected disclosures.
1.
In determining whether the agency met its burden by clear and
convincing evidence, the court considered the factors set forth in
Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir.
1999).
2. As to the first Carr factor, “the strength of the agency’s evidence in
support of its personnel action,” the court agreed with the
administrative judge that the agency presented strong evidence
that the petitioner engaged in the charged misconduct.
3. As to the second Carr factor, “the existence and strength of any
motive to retaliate on the part of the agency officials who were
involved in the decision,” the court agreed with the administrative
judge that there was not evidence of a substantial retaliatory
motive on the part of the relevant agency officials.
4. As to the third Carr factor, whether the agency has taken “similar
actions against employees who are not whistleblowers but who are
otherwise similarly situated,” the court agreed with the
administrative judge that the evidence on that question weighed in
favor of the agency.
5. Weighing the Carr factors together, the court agreed with the
administrative judge’s determination that the agency proved by
clear and convincing evidence that it would have removed the
petitioner in the absence of her protected disclosures.
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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.
PRECEDENTIAL COURT DECISIONS
Petitioner: Stephen Connor
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal circuit
Case Number: 2021-1064
MSPB Docket Number: DC-0714-20-0275-I-1
Issuance Date: August 12, 2021
VA Accountability Act
Penalty
The petitioner was Chief of Police Services for the Fayetteville, North Carolina
VA Medical Center. The agency removed him under the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), codified at 38 U.S.C. § 714, based on a charge of failure to
provide management oversight, with 27 specifications. Twenty-four
specifications pertained to the petitioner’s alleged failure to provide
performance plans and progress reviews to subordinates, two specifications
pertained to his alleged failure to provide training and keep training records,
and one specification pertained to the alleged improper storage of 4,000
rounds of ammunition.
On appeal to the Board, the administrative judge sustained the charge,
but only one of the 27 specifications – the one pertaining to the
improper storage of ammunition. Regarding the remaining
specifications, he found that the petitioner was not responsible for the
missing performance plans and progress reviews, and that he provided
training and kept records as required.
Nevertheless, considering the
factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280,
305-06 (1981), the administrative judge found substantial evidence to
support the removal penalty based on the sole sustained specification.
Holding: Both the Department of Veterans Affairs and the Merit Systems
Protection Board must apply the Douglas factors to the selection and review
of penalties in actions taken under 38 U.S.C. § 714.
1. The Board’s authority to review the agency’s chosen penalty is distinct
from the Board’s authority to mitigate that penalty. As the court has
previously explained, although 38 U.S.C. § 714 statutorily precludes the Board
from mitigating the penalty in adverse actions taken under that section, the
Board nevertheless remains responsible for considering the reasonableness of
the penalty.
2. Even absent mitigation authority, the longstanding Douglas factors are
still required for determining whether a penalty imposed under 38 U.S.C. § 714
was reasonable. If the Board determines that the agency failed to consider the
Douglas factors or that the chosen penalty was unreasonable, the Board must
remand to the agency for a redetermination of the penalty
3. In this case, substantial evidence supported the administrative judge’s
finding that the deciding official considered the relevant Douglas factors, that
the sole sustained specification was serious, and that this specification alone
justified removal.
Judge Newman wrote separately, concurring in part and dissenting in part. She
agreed that the agency is required to consider the Douglas factors in making a
penalty determination under 38 U.S.C. § 714. However, she disagreed that
there was substantial evidence that the agency considered the relevant
Douglas factors in arriving at its decision. In particular, she would find that
consistency of the penalty was an important factor in this case and that the
deciding official failed to consider it.
Petitioner: Ariel Rodriguez
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal circuit
Case Number: 2019-2025
MSPB Docket Number: AT-0714-18-0735-I-1
Issuance Date: August 12, 2021
VA Accountability Act
Standard of Proof
Penalty
Due Process
Appointments Clause
The petitioner was a Supervisory Consumer Affairs Specialist whom the agency
proposed to remove under the VA Accountability Act based on various charges
of misconduct stemming from his heated verbal altercation with a patient and
the ensuing investigation. The deciding official sustained all the charges,
finding that they were supported by substantial evidence. She incorporated by
reference the proposing official’s rationale in deciding that the petitioner
should be removed.
On appeal, the administrative judge affirmed the removal, finding that the
charges were supported by substantial evidence. The administrative judge
found that the deciding official applied the correct standard of proof in
reaching her decision.
The administrative judge further found that the agency
was not required to base its penalty determination on the factors set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and even if
it were, removal was not grossly disproportional to the sustained misconduct.
Holding: The deciding official applied the wrong standard of proof in
sustaining the charges and erred in failing to consider the Douglas factors in
her penalty determination.
1. Although 38 U.S.C. § 714 provides for substantial evidence review by the
Merit Systems Protection Board, it does nothing to alter the traditional
standard of proof by preponderant evidence for agency disciplinary
proceedings. The agency’s contrary interpretation was inconsistent with the
plain text of the statute and longstanding universal principles of administrative
law. The appeal would therefore be remanded to the Board for further
proceedings. The court indicated that “[p]resumably those further proceedings
will include” the deciding official determining whether the charges in the
proposal notice were supported by preponderant evidence.
2. Notwithstanding the Board’s lack of authority to mitigate the agency’s
chosen penalty under 38 U.S.C. § 714, the agency is still required to consider
the Douglas factors in making its penalty decision. The Board must overturn a
penalty if it is “unreasonable on its face” or if the deciding official failed to
consider the pertinent Douglas factors. Although the administrative judge
found that the selected penalty was not unreasonable on its face, this finding
did not satisfy the requirement that the deciding official consider the relevant
Douglas factors.
3. The petitioner failed to show that he was denied due process. The
evidence was insufficient to show that the deciding official failed to consider
his response to the notice of proposed removal, and both the proposal notice
and the decision letter were adequate to inform the petitioner of the reasons
for his removal.
4. The petitioner failed to show that the delegation of removal authority by
the Secretary of Veterans Affairs to the deciding official was improper, and he
failed to show that the substantial evidence standard of Board review violated
his right to due process.
5. The petitioner failed to show a violation of the Appointments Clause by
virtue of a non-appointed official making a removal decision that is subject to
mere substantial evidence review by the Board. There is no support for the
proposition that disciplinary actions can only be taken by principal or inferior
officers. In any event, there is no evidence that the deciding official in this
case was not an inferior officer, and moreover, substantial evidence review
does not amount to “rubberstamping” as the petitioner asserted.
6. The petitioner questioned whether the administrative judge who issued
the initial decision was properly appointed, but the factual record was not
sufficiently developed for the court to make a determination on whether there
was an Appointments Clause violation.
7. The current absence of a Board quorum did not mean that the
administrative judge was exercising unconstitutional authority due to the
absence of any possibility of Board review of the initial decision. The absence
of a quorum was a temporary circumstance and not a structural defect; it may
entail delays in Board review of initial decisions, but it does not foreclose that
avenue of review, and it does not render the statutory adjudicative scheme
constitutionally suspect.
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COURT DECISIONS
PRECEDENTIAL:
Appellant: Bryan Adams
Appellee: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2020-1649
Issuance Date: July 2, 2021
MSPB Docket Number: DE-4324-19-0288-I-1
USERRA
The appellant was both an employee of the agency and a member of the Arizona
Air National Guard. Between April and September 2018, there were three
periods during which the appellant performed military service. The appellant
requested differential pay for those periods, but the agency determined that his
military service did not qualify under the applicable statutes. The appellant
challenged that determination in a Board appeal, alleging that the denial of
differential pay violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA).
After developing the record, the administrative judge issued an initial decision,
denying the appellant’s request for corrective action. He did so based on a
determination that the appellant failed to prove that the agency’s differential pay
decision was based on an improper motivation.
Holding: The administrative judge applied an incorrect standard.
Nevertheless, the appellant was not entitled to corrective action under
USERRA.
The court first acknowledged that, when an employee makes a USERRA claim
under 38 U.S.C. § 4311, their burden of proof generally does include proof that
their military service was a substantial or motivating factor in the denial of a
benefit of employment. However, the court indicated that an employee need not
prove the substantial or motivating factor element where, as here, the benefit of
employment at issue is only available to members of the military. Therefore, the
appellant was not required to show that his military service was a substantial or
motivating factor in the agency’s denial of differential pay.
Although the appellant was not required to prove the substantial or motivating
factor element, he was still required to prove that the agency denied him a
benefit of employment. Here, the benefit was differential pay, as provided for in
5 U.S.C. § 5538(a). That benefit only applies to a call to “active duty” for a
“contingency operation,” as those terms are defined in the statutory scheme.
Here, there appellant had reported for training pursuant to 32 U.S.C. § 502(a),
but that was not “active duty.” The appellant had also reported to support
military personnel appropriation tours pursuant to 10 U.S.C. § 12301(d), but
those were not “contingency operations.” Therefore, the court found that the
agency properly denied the appellant’s request for differential pay.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Sarah Vestal
Respondent: Department of the Treasury
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2020-1771
MSPB Docket Number: DA-0752-19-0497-I-1
Issuance Date: June 14, 2021
CHAPTER 75 REMOVAL
- PENALTY
The petitioner was an Internal Revenue Agent who performed
examinations for small businesses and self-employed taxpayers. In
preparing her defense to a proposed suspension, the petitioner sent her
attorney a document that contained personally identifiable and other
taxpayer information, which her attorney was not authorized to receive.
Subsequently, the agency proposed and then effected the petitioner’s
removal for disclosing taxpayer information to an unauthorized person.
In sustaining the penalty of removal, the deciding official found that the
petitioner’s disclosure was intentional.
On appeal to the Merit Systems Protection Board, the administrative
judge affirmed the petitioner’s removal. The administrative judge
found that the agency proved its charge, the agency showed a nexus
between the petitioner’s conduct and the efficiency of the service, and
the penalty of removal was not unreasonable. The administrative
judge’s initial decision became the final decision of the Board, and the
petitioner petitioned the court for review.
Holding: The court affirmed the Board’s final decision, finding that
the penalty of removal was not so harsh and unconscionably
disproportionate to the offense as to amount to an abuse of
discretion.
1.
The court concluded that the deciding official properly assessed
the factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280 (1981), in imposing the penalty of removal. In
particular, the deciding official found that the petitioner
intentionally disclosed taxpayer information to an unauthorized
person for her own benefit. The petitioner was aware that any
disclosure of taxpayer information outside of the agency was
prohibited. She failed to seek advice from agency officials or her
attorney or redact taxpayer information before disclosing the
information. Her disclosure was particularly serious because
disclosing taxpayer information erodes taxpayer confidence when
entrusting such information to the agency.
2. The court rejected the petitioner’s argument that the agency
incorrectly imposed the penalty for willful disclosure and should
have imposed a lesser penalty associated with a negligent
disclosure because she incorrectly believed that attorney-client
privilege protected the disclosure from being unauthorized.
A. The agency imposed the penalty of removal consistent with its
guidelines for an intentional disclosure of information to
unauthorized individuals. The petitioner’s disclosure of
taxpayer information to her attorney was intentional in that it
was made on purpose, even if she did not know that the
disclosure was wrong.
B. An intentional disclosure is not synonymous with a willful
disclosure, which is made voluntarily and intentionally with the
full knowledge that it is wrong. Under the agency’s penalty
guidelines, a finding of willfulness is not required.
C. The agency properly considered the petitioner’s disclosure as
intentional, rather than negligent. The agency’s penalty
guidelines regarding careless, reckless, or negligent disclosures
pertain to disclosures made without any intent to disclose
information to an unauthorized person.
Circuit Judge Plager concurred in the result.
NONPRECEDENTIAL:
Stern v. Department of Veterans Affairs, No. 2020-2192 (Fed. Cir. June
11, 2021) (MSPB Docket No. NY-1221-19-0193-W-1): The court affirmed
the administrative judge’s decision to dismiss for lack of jurisdiction the
petitioner’s hostile work environment claim prior to conducting the
hearing in her individual right of action appeal. The court agreed that
the petitioner’s allegations of discourteous treatment, even in
combination with two other agency actions, did not approach the level
of severe or pervasive conduct needed to establish a hostile work
environment. The court also concluded that any error the
administrative judge committed in finding that the petitioner failed to
nonfrivolously allege that other agency actions created a hostile work
environment was harmless.
Gossage v. Merit Systems Protection Board, No. 2021-1458 (Fed. Cir.
June 11, 2021) (MSPB Docket No. SF-3330-20-0625-I-1): The court
affirmed the administrative judge’s decision denying the petitioner’s
request for corrective action in an appeal filed under the Veterans
Employment Opportunities Act of 1998. The court concluded that the
administrative judge properly applied collateral estoppel to bar the
petitioner from relitigating the timeliness of his complaint to the
Department of Labor.
Meisenheimer v. Department of Commerce, No. 2020-2025 (Fed. Cir.
June 11, 2021) (MSPB Docket No. SF-0752-19-0652-I-1): The court
affirmed, per Rule 36, the administrative judge’s decision affirming the
agency’s removal action.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Braun v. Department of Health & Human Services
Tribunal: United States Court of Appeals for the Federal Circuit
Case Number: 2019-1949
MSPB Docket Number: DC-0752-16-0743-I-2
Issuance Date: June 4, 2021
In a per curiam order, the court denied the petitioner’s petition for
rehearing and rehearing en banc regarding the court’s December 21,
2020 decision affirming the petitioner’s removal. A summary of that
decision appeared in the December 23, 2020 case report. Judges
Newman and O’Malley each wrote separately to dissent from the denial
of the petition for rehearing en banc. Both dissenting judges wrote that
the agency’s failure to comply with its own procedures for the removal
of tenure of a NIH scientist in this case warranted rehearing en banc.
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COURT DECISIONS
PRECEDENTIAL:
Appellant: Jerry Edward Beck
Appellee: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1205
Issuance Date: May 14, 2021
MSPB Docket Number: DC-4324-13-0128-B-1
- UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT
RIGHTS ACT OF 1994 (USERRA)
The appellant filed an appeal alleging that the agency failed to select him for a
positon because of his previous military service, in violation of his rights under
USERRA. The administrative judge assigned to his appeal dismissed the appeal
for lack of jurisdiction. Thereafter, the appellant filed a petition for review and
the Board granted it, finding that his allegations were sufficient to establish
jurisdiction.
After holding a hearing on remand, the administrative judge issued an initial
decision denying the appellant corrective action in his USERRA appeal. In
pertinent part, the administrative judge found that the appellant established by
preponderant evidence that his military service was a motivating or substantial
factor in the agency’s nonselection decision. The administrative judge then
turned to the question of whether the agency would have not selected him
withstanding his military service. The administrative judge concluded that,
because the agency was determined to select a specific candidate for the positon
regardless of who else applied, it would have taken the same selection action
regardless of the appellant’s military status.
Holding: The administrative judge erred in finding that the appellant’s
nonselection would have occurred regardless of his prior military service.
“[P]reselection is a category of personnel practices that can give rise to a
USERRA claim when, as here, the [appellant] has established that the
preselection was coupled to unlawful discrimination based on an
individual’s current or past military service.”
The court affirmed the administrative judge’s determination that the appellant’s
prior military service was a motivating or substantial factor in his nonselection.
The court, however, reversed the administrative judge’s denial of the appellant’s
request for corrective action, finding that the administrative judge’s
determination that the agency had “preselected” the successful candidate
constituted an abuse of discretion. Specifically, the court found that the
administrative judge’s preselection determination relied on “cherry-picked”
testimony and was not supported by substantial evidence. The court found,
however, that a remand on the preselection issue was unnecessary under the facts
of the case. Even if the Board were to find that a preselection occurred on
remand, the agency could not establish its evidentiary burden under USERRA
because its preselection decision was tainted by USERRA-based discrimination.
The court ultimately remanded the case and instructed the Board to enter
corrective action for the appellant.
NONPRECEDENTIAL:
Doyle v. Department of Veterans Affairs, No. 2019-2149 (Fed. Cir.
May 14, 2021) (MSPB Docket No. PH-1221-18-0012-W-3): The court reversed
the administrative judge’s initial decision, which denied the appellant’s request
for corrective action in her individual right of action appeal. The administrative
judge determined that the appellant made protected disclosures and established
the contributing factor criterion. The administrative judge found, however, that
the appellant failed to establish that the complained of actions constituted
personnel actions and, even if they had, the agency would have taken the same
actions in the absence of the protected whistleblowing.
The court found that, contrary to the administrative judge’s finding, the
Administrative Investigation Board (AIB) investigation at issue in this case
constituted a personnel action because it was “a retaliatory investigation closely
related to at least one reassignment.” The court then turned to the question of
whether the agency proved, by clear and convincing evidence, that it would have
conducted an AIB investigation absent the appellant’s protected disclosures.
After weighing the factors set forth in Carr v. Social Security Administration,
185 F.3d 1318 (Fed. Cir. 1999), the court found that the agency failed to meet its
burden. The court found that Carr factors one and two weighed in favor of the
appellant. Regarding Carr factor three, the court determined that potential
comparator evidence existed and that the administrative judge should have
conducted a comparator analysis. The court emphasized that the “focus of the
inquiry is on agency actions taken against similarly situated employees that were
not whistleblowers” and determined that the agency failed to “ask and answer
this question.”
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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: Lawrence Brenner
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-2032
MSPB Docket No. NY-0714-19-0007-I-1
Issuance Date: March 9, 2021
Performance Based Actions
Penalty
Statutory Interpretation
On June 23, 2017, Congress enacted the Department of Veterans Affairs
Accountability Act (the Act), codified in relevant part at 38 U.S.C. § 714, which
provides the agency with streamlined authority for disciplining employees for
misconduct or poor performance, and places limitations on Board review of
those actions. The statute provides that in an appeal of an action taken under
section 714, the Board “shall uphold the decision of the [VA] Secretary... if
the decision is supported by substantial evidence.” Section 714 further
provides that, if the decision is supported by substantial evidence, the Board
may not mitigate the penalty.
In September 2018, the agency removed Mr. Brenner under section 714 for
failing to meet performance standards. In taking that action, the agency
relied on Brenner’s alleged performance deficiencies both before and after
June 23, 2017.
On appeal, the Board affirmed the removal action. Applying section 714, the
Board concluded that the agency met its burden of proof by substantial
evidence, and that Brenner failed to prove his various affirmative defenses. In
finding that the agency met its burden of proof, the Board considered only the
charges, finding that it lacked authority under the Act to consider the
reasonableness of the penalty.
Brenner appealed to the Federal Circuit, arguing, inter alia, that (1) the Board
erred in concluding that the Act prohibited it from reviewing the
reasonableness of the penalty; and (2) that the agency and the Board
improperly applied the Act retroactively to actions that occurred prior to its
enactment.
Holding: Relying on its recent decision in Sayers v. Department of
Veterans Affairs, 954 F.3d 1307 (Fed. Cir. 2020), the court found that the
Board erred (1) in finding that it could not review the agency’s penalty
determination, and (2) in applying section 714 retroactively to conduct
occurring before June 23, 2017. The court clarified that both the penalty
review and retroactivity holdings of Sayers extend to performance-based
actions under section 714.
1. Addressing Brenner’s first argument, the court cited its recent decision
in Sayers v. Department of Veterans Affairs, 954 F.3d 1307 (Fed. Cir.
2020), which held that the Board’s review of an adverse action under
section 714 must include review of the penalty. As explained in Sayers,
the Board’s review of the agency’s “decision” necessarily encompasses
not only the facts, but also the decision to impose a certain penalty
based on those facts. The court further explained that review of the
penalty is consistent with both the plain meaning of the statute and the
congressional intent underlying the Act. The court also noted that,
because the Board lacks authority to mitigate the penalty in section 714
actions, if it determines that the agency did not support the removal
penalty by substantial evidence, it must remand to the agency to assess
the appropriate penalty.
2. The court considered the agency’s counterargument that the holding of
Sayers concerning penalty review was obiter dicta. The agency
reasoned that the court remanded Sayers because the agency had
improperly applied section 714 retroactively. The court rejected that
argument, explaining that it could not have addressed the retroactivity
issue without first determining the Act’s “meaning and effect.”
3. The court next considered the agency’s argument that the holding of
Sayers regarding penalty review did not extend to Brenner’s removal,
because he was removed for performance reasons and not for
misconduct. The court found that argument unpersuasive, reasoning
that section 714 does not distinguish between removals based on
performance and removals based on misconduct.
4. Proceeding to Brenner’s second argument, the court found that the
administrative judge erred in applying section 714 retroactively to
conduct occurring before June 23, 2017. As the court previously held in
Sayers, section 714 does not apply to proceedings based on conduct
occurring before its enactment. Even if Brenner’s performance
worsened after the effective date of the Act, as the agency alleged, this
did not allow the agency to base its actions events that took place
before that date. Rather, Brenner was entitled to the legal protections
that were in place at the time the alleged poor performance occurred.
5. Finally, the court considered the agency’s argument that Sayers did not
preclude retroactive application of section 714 in this case, because
section 714 did not significantly change the procedures for performance
based actions under chapter 43. The court found that, although section
714 and chapter 43 both involve the substantial evidence standard and
do not allow for mitigation of the penalty, the differences are not
merely procedural, and that removing Brenner under section 714 for
events occurring before the effective date of the Act would give the Act
impermissible retroactive effect.
6. The court vacated the Board’s decision and remanded for further
proceedings to consider whether the agency’s decision—including the
penalty—was supported by substantial evidence postdating the Act. The
court noted that if the agency wishes to rely on evidence predating the
enactment of the Act, it must proceed in accordance with 5 U.S.C.
chapter 43 or 75.
Petitioner: Fernando Santos
Respondent: National Aeronautics & Space Administration
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-2345
MSPB Docket No. AT-0432-19-0074-I-1
Issuance Date: March 11, 2021
Performance Based Actions
Statutory Interpretation
USERRA
Mr. Santos was a mechanical engineer for NASA and a commander in the U.S.
Navy Reserve, with 18 years of service and numerous accolades. Following his
transfer to a new division, Santos began receiving letters of instruction and
reprimand from his new supervisor, alleging poor performance. The timing of
many letters coincided with Santos’s request for or absences for military leave,
and emphasized his alleged inability to “report to work in a timely manner and
maintain regular attendance at work.” After months of difficulties, the
supervisor placed Santos on a performance improvement plan (PIP), and
ultimately removed him under chapter 43. Santos then filed a Board appeal, in
which he alleged, among other things, that the agency discriminated against
him because of his military service, in violation of the Uniformed Services
Employment and Reemployment Rights Act (USERRA).
Pursuant to 5 U.S.C. chapter 43, the Board considered whether the agency
proved by substantial evidence that: (1) Santos’s performance failed to meet
the PIP-established standards in one or more critical elements of his position;
(2) the agency established performance standards and critical elements and
communicated them to Santos at the beginning of the PIP; (3) the agency
warned Santos of the inadequacies of his performance during the PIP and gave
him adequate opportunity to improve; and (4) after an adequate improvement
period, Santos’s performance remained unacceptable in at least one critical
element. After considering the evidence concerning Santos’s performance
during the PIP, the Board concluded that the agency established each element
by substantial evidence. However, the Board declined to address Santos’s
argument that he should not have been put on a PIP in the first place.
As
justification for that decision, the Board cited Wright v. Department of Labor,
82 M.S.P.R. 186 (1999), in which the Board held that “an agency is not required
to prove that an appellant was performing unacceptably prior to the PIP.”
The Board also rejected Santos’s USERRA claim, finding that he failed to show
that his uniformed service was a substantial or motivating factor in his
removal. In reaching that conclusion, the Board found that there was no
evidence supporting his claim because Santos’s supervisor “thanked him for his
service,” was “very patriotic,” and did not express to others that Santos took
too much military leave.
Santos appealed the Board’s decision to the Federal Circuit, arguing that the
Board (1) failed to consider the events preceding his PIP in assessing the
propriety of his removal; (2) failed to engage in the correct inquiry when
assessing his USERRA claim; and (3) predicated its conclusion that his military
service was not a primary motivating factor in his removal on inadequate facts.
Holding: The court interpreted 5 U.S.C. § 4302(c)(6) to require that in an
appeal of performance-based removal following a PIP, the agency must
show by substantial evidence that the employee’s unacceptable
performance “continued”—i.e., that it was unacceptable both before the
PIP and during the PIP. In other words, the agency must justify the
imposition of the PIP. The court found that the events leading to the PIP
were also relevant to the employee’s USERRA claim.
1. Title 5 U.S.C. § 4302(c)(6) provides that employees “who continue to
have unacceptable performance” may only be removed “after an
opportunity to demonstrative acceptable performance.” In Wilson v.
Department of the Navy, 24 M.S.P.R. 583, 586 (1984), and subsequent
cases, the Board held that this provision does not require an agency to
prove that an employee was performing unacceptably prior to the PIP in
order to justify a post-PIP removal. The court rejected the Board’s
interpretation, reasoning that, to “continue to have unacceptable
performance,” an employee must have displayed unacceptable
performance prior to the PIP, as well as during the PIP.
2. The court observed that requiring the agency to justify initiation of a
PIP is particularly appropriate in cases such as this one, where an
employee alleges that both the PIP and the removal based on the PIP
were in retaliation for protected conduct. Otherwise, an agency could
establish a PIP in direct retaliation for protected conduct and set up
unreasonable expectations in the PIP in the hopes of predicating
removal on them without ever being held accountable for the original
retaliatory conduct.
3. The court considered and rejected the agency’s counterarguments. The
agency first argued that section 4303 is silent as to whether agencies
bear the burden of establishing the unacceptability of pre-PIP
performance, but the court found that the agency’s argument ignored
the more relevant statutory language at section 4302(c)(6). The agency
further argued that since an agency is not required to notify an
employee of unacceptable performance prior to the issuance of a PIP, it
is also not required to affirmatively establish the employee’s
unacceptable performance prior to the PIP. The court rejected this
argument as well, reasoning that allowing a PIP to serve as notice of
unacceptable performance is not the same allowing the PIP to create a
presumption that the pre-PIP performance was actually unacceptable.
4. In sum, the court concluded that, once an agency chooses to impose a
post-PIP termination, it must prove by substantial evidence that the
employee’s unacceptable performance “continued”—i.e., that it was
unacceptable before the PIP and remained so during the PIP.
Accordingly, the court vacated and remanded the issue for the Board to
decide whether Santos performed unacceptably before the PIP.
5.
Turning to the USERRA claim, the court explained that, under Sheehan
v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001), an employee
making a discrimination claim under USERRA bears the initial burden of
showing by a preponderance of the evidence that the employee’ s
military service was a substantial or motivating factor in the adverse
employment action. In determining whether showing has been made,
factors to be considered include: (1) proximity in time between the
employee’s military activity and the adverse employment action; (2)
inconsistencies between the proffered reason and other actions of the
employer; (3) an employer’s expressed hostility towards members
protected by the statute together with knowledge of the employee’s
military activity; and (4) disparate treatment of certain employees
compared to other employees with similar work records or offenses.
Once the employee has made the required showing, the agency has the
opportunity to show by a preponderance of the evidence that it would
have taken the adverse action anyway, for a valid reason.
Under
Erickson v. U.S. Postal Service, 571 F.3d 1364 (Fed. Cir. 2009), an
agency may not treat employees on military leave the same as
employees on nonmilitary leave.
6. Having vacated and remanded the Board’ s conclusions regarding
Santos’s performance, the court found it was also necessary to vacate
and remand the Board’s assessment of his USERRA claim. The court
reasoned that the two inquiries are related, since the validity of the
reason proffered for the discharge is a factor in the Sheehan analysis.
Hence, the events leading to Santos’s PIP may be directly relevant to
Santos’s ability to satisfy his initial burden under USERRA.
7. The court stressed that, on remand, the Board should actually apply the
Sheehan factors, which it had not yet done. In particular, the court
noted that Santos had detailed the extent to which his supervisor’s
complaints about his performance dovetailed with his military
obligations, whereas the Board had relied on its findings that Santos’s
supervisor “thanked him for his service” and was “very patriotic.”
Those minimal findings did not suffice under Sheehan.
8. Judge Hughes issued a brief concurrence in which he agreed that
remand was appropriate because Board failed to properly consider
Santos’s USERRA claims, including his claim that the agency’s decision to
place him on a PIP was due to unlawful retaliation or discrimination
under USERRA.
NONPRECEDENTIAL:
Smith v. General Services Administration, No. 2020-1463 (Fed Cir. Mar. 11,
2021) (MSPB Docket No. AT-0752-17-0470-M-1)
Mr. Smith was removed on charges of disrespectful conduct towards his
supervisor, absence without leave (AWOL), failure to follow supervisory
instructions, and failure to comply with the agency’s information technology
security policy. On appeal to the Board, the administrative judge affirmed the
removal action. He sustained all charges except AWOL, and found that Smith
failed to prove his affirmative defenses, which included a claim of
whistleblowing reprisal.
After the initial decision became final, the appellant petitioned for review by
the Federal Circuit.
In a precedential decision, Smith v. General Services
Administration, 930 F.3d 1359 (Fed. Cir. 2019), the court affirmed in part,
reversed in part, and vacated in part the Board’s decision, and remanded the
case for further adjudication.
The court determined that, in finding that the
agency showed by clear and convincing evidence it would have removed Smith
in the absence of his protected disclosures, the administrative judge relied
only on the seriousness of the sustained misconduct and failed to apply the
factors set forth in Carr v. Social Security Administration, 185 F.3d 1318 (Fed.
Cir. 1999). The court also reversed the administrative judge’s findings as to the
charge of failure to comply with information technology, and one specification
of failure to follow supervisory instructions.
On remand, the administrative judge again sustained the charge of failure to
follow supervisory instructions, based on the remaining specifications. He
considered the Carr factors in accordance with the court’s instructions, again
concluding that the agency proved by clear and convincing evidence that it
would have removed Smith absent his whistleblowing. Finally, he found that
the agency established nexus and that the penalty of removal was reasonable
based on the sustained misconduct. After the remand decision became final,
Smith again appealed to the Federal Circuit, which affirmed the Board’s
decision without opinion, pursuant to Rule 36.
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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: McKenzie Holmes
Respondent: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1973
MSPB Docket Number: CH-0752-18-0233-I-1
Issuance Date: February 8, 2021
CHAPTER 75 REMOVAL
- STANDARD OF PROOF
- 5th AMENDMENT, SELF-INCRIMINATION
- DISPARATE PENALTY
The petitioner was a preference eligible city carrier for the agency.
The agency removed the petitioner, along with seven other carriers, for
purchasing marijuana from a colleague on agency premises, while in a
duty status. During the investigation, the petitioner invoked his Fifth
Amendment right against self-incrimination and declined to admit to the
charge. Each of the seven other carriers admitted to their misconduct.
On appeal to the Merit Systems Protection Board, the administrative
judge affirmed the petitioner’s removal. He found that the agency
proved its charge and that the removal penalty was reasonable. The
administrative judge’s initial decision became the final decision of the
Board, and the petitioner petitioned for review before the court.
Meanwhile, five of the seven other carriers whom the agency removed
for the same misconduct filed grievances that went to arbitration. The
arbitrator in each case mitigated the removal to a lesser penalty.
Holding: The court affirmed the Board’s final decision, finding
substantial evidence to support the administrative judge’s findings on
both the charge and the penalty.
1. In sustaining the charge, the court acknowledged that the only
direct evidence supporting the charge was an unclear surveillance
video recording that showed the petitioner entering his
colleague’s Postal vehicle, handing his colleague what appeared
to be money, and taking from the cup holder what appeared to be
an item in a small plastic bag. Circumstantial evidence came
from two agency witnesses who testified that: (1) the petitioner
had no official reason to be in his colleague’s vehicle at that
time, and (2) the actions captured in the recording were
consistent with a narcotics transaction, and similar footage was
captured of six of the seven other carriers removed as a result of
the same investigation.
Regardless of whether this evidence would have been sufficient to
prove a criminal charge beyond a reasonable doubt, substantial
evidence showed that it was sufficient to satisfy the lesser
preponderant evidence standard applicable in a Board proceeding.
This is especially so to the extent that the administrative judge’s
findings were based on credibility determinations, i.e., that the
agency witnesses testified credibly regarding their interpretations
of the surveillance video and the petitioner’s denials were not
credible.
2. In affirming the penalty, the court rejected the petitioner’s
argument that the removal penalty should be mitigated because it
was inconsistent with the lesser penalties meted out to the five
other carriers pursuant to arbitration rewards.
A. The petitioner failed to raise this argument before the
administrative judge, even though all five arbitration decisions
occurred before the initial decision was issued. Thus, the
petitioner was precluded from raising this argument for the
first time on judicial review.
B. Even if he had timely raised the issue, the agency treated all
of the proffered comparators similarly because it removed each
of them. That this penalty was later mitigated by arbitrators
for five employees who pursued grievance arbitration does not
reflect any disparate treatment by the agency itself.
C. Arbitration decisions are not binding on the Board, and the
Board’s decision does not need to be consistent with
arbitration decisions in other cases.
D. Even if the Board was required to consider the mitigated
penalties in the other cases, there was a rationale for treating
this petitioner differently. Specifically, the other five
employees admitted to their misconduct, but the petitioner in
this case failed to take responsibility for his actions.
E. Regarding the other penalty factors, substantial evidence
supported the administrative judge’s conclusion that the
agency proved by a preponderance of the evidence that it
properly weighed the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981), in determining the
appropriate penalty and that removal was within the tolerable
limits of reasonableness.
Judge Newman issued a dissenting opinion. She would have mitigated
the penalty in light of the fact that five other carriers who committed
substantially the same conduct received lesser penalties than removal.
1. Although the administrative judge inquired about the grievances,
they had not been decided at the time of the hearing in the
instant case. Neither party submitted the decisions to the Board
thereafter.
2. The administrative judge simply deferred to the agency’s penalty
selection rather than conduct an independent penalty review.
3. The evidence in all five cases was practically identical apart from
the petitioner’s decision not to confess. The petitioner should not
be penalized for exercising his constitutional right against self
incrimination.
4. Regardless of whether the mitigations in the other cases occurred
in the context of grievance decisions, precedent does not support
ignoring disparate treatment.
5. The majority’s reliance on Supreme Court precedent permitting an
agency to consider an employee’s invocation of the Fifth
Amendment is misplaced. The cases cited only hold that an
agency may consider an employee’s refusal to testify in
ascertaining the truth of a charge; they do not support removing
the requirement to consider the consistency of the penalty with
those imposed upon other employees in reviewing the
reasonableness of the penalty.
6. The Board was established for the purpose of assuring reliability,
fairness, and consistency in federal employment actions. The
majority decision represents an abdication of the court’s
responsibility to uphold these principles.
NONPRECEDENTIAL:
Brown v. Department of the Air Force, No. 2020-1702 (Fed. Cir. Feb. 12, 2021)
(MSPB Docket No. SF-1221-19-0481-W-1): The court affirmed the
administrative judge’s decision denying corrective action in the petitioner’s
individual right of action appeal. The court concluded that the petitioner
failed to show that the administrative judge erred in his evidentiary rulings or
credibility findings. Moreover, the petitioner’s arguments regarding the
administrative judge’s failure to consider the factors set forth in Carr v. Social
Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), were irrelevant
because the petitioner failed to demonstrate that she made a protected
disclosure that was a contributing factor in her probationary termination, thus
the burden never shifted to the agency to establish that it would have taken
the action in the absence of a protected disclosure.
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PRECEDENTIAL COURT DECISIONS
Case Name: Mouton-Miller v. Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2020-1266
MSPB Docket Number: AT-0752-19-0643-I-1
Issuance Date: January 19, 2021
JURISDICTION
PROBATIONARY PERIOD
- SUPERVISORY PROBATIONARY PERIOD
The appellant held an excepted-service supervisory position at the U.S. Postal
Service. She was then, without a break in service, appointed to a
competitive-service supervisory position at the Department of Homeland
Security (DHS). This latter appointment was subject to the completion of a
1-year supervisory probationary period pursuant to 5 U.S.C. § 3321(a)(2).
Before the end of the appellant’s probationary period, DHS demoted her to a
non-supervisory position due to alleged performance issues. While DHS
initially reduced the appellant’s step when effectuating this action, it later
determined that it did so in error and provided her with back pay and other
employment benefits associated with the step correction.
The appellant appealed her demotion to the Board. In an initial decision, the
Board dismissed the appellant’s appeal for lack of jurisdiction, finding that
because the appellant did not complete her competitive-service supervisory
probationary period, the Board was barred under 5 U.S.C. § 7512(C) from
adjudicating the merits of her demotion as an adverse action. Once the initial
decision became the Board’s final decision, the appellant sought review in the
U.S. Court of Appeals for the Federal Circuit.
Holding: In a 3-0 panel decision, the court affirmed the Board’s dismissal of
the appellant’s adverse action appeal for lack of jurisdiction.
1. As set forth in 5 U.S.C. § 7512(C), adverse action appeals under the
Board’s jurisdiction do not include, “the reduction in grade of a
supervisor or manager who has not completed the probationary period
under section 3321(a)(2) of this title if such reduction is to the grade held
immediately before becoming such a supervisor or manager.” Therefore,
the appellant in this case had the burden to prove that she completed her
competitive-service supervisory probationary period under 5 U.S.C.
§ 3321(a)(2). The court outlined that section 3321 expressly refers to the
competitive service, as do the accompanying regulations at 5 C.F.R.
§§ 315.901-909. Thus, the court determined that tacking to meet the
probationary period timing requisite is generally permitted between two
competitive-service supervisory positions. However, the tacking of
supervisory roles in the excepted and competitive services is prohibited.
2. In applying these holdings to the appellant in this case, the court found
that she could not tack on her service as a supervisor in an
excepted-service position at the U.S. Postal Service to her
competitive-service supervisory position with DHS when calculating the
duration spent in her supervisory probationary period. It was
undisputed that DHS demoted the appellant before her 1-year
competitive-service supervisory probationary period concluded. Thus,
5 U.S.C. § 7512(C) applies and prohibits the Board from taking
jurisdiction to hear the merits of the appellant’s demotion as an adverse
action appeal.
3. The appellant misplaced her reliance on Board decisions recognizing that
“current continuous service” under 5 U.S.C. § 7511(a)(1)(A)(ii) includes
the excepted and competitive services. The jurisdictional issue in this
case is not whether the appellant is an “employee” under 5 U.S.C. § 7511;
rather, it is whether she completed her competitive-service supervisory
probationary period. The court clarified that the interpretation of
“current continuous service” under section 7511 is “irrelevant” when
determining whether an agency subjected an individual to an appealable
adverse action under section 7512.
4. The appellant did not allege that DHS demoted her due to partisan
political affiliation or marital status, meaning the Board could not take
jurisdiction under 5 C.F.R. § 315.908(b).
5. The court recognized an agency’s broad discretion under 5 C.F.R.
§ 315.905 to determine the length of a competitive-service supervisory
probationary period. In this case, DHS did not have an internal policy
on the matter and relied on the statute and regulations.
NONPRECEDENTIAL COURT DECISIONS
Searcy, Jr. v. Department of Agriculture, No. 2020-2089, (Fed. Cir. January 21,
2021) (MSPB Docket No. AT-1221-17-0227-W-1): The Board dismissed the
appellant’s individual right of action appeal for failing to state a claim upon
which relief could be granted and due to the doctrine of res judicata. On appeal,
the Federal Circuit affirmed the Board’s decision by holding: (1) the Board did
not err when making its jurisdictional determination based solely on the written
record; (2) the Board’s jurisdiction to hear claims under the Whistleblower
Protection Enhancement Act of 2012 does not extend to claims under 5 U.S.C.
§ 2302(b)(11); (3) the Board correctly applied the doctrine of res judicata, as the
appellant’s claims are premised on the same facts previously investigated and
litigated and the statutes cited by the appellant do not bar the application of this
doctrine; and (4) the remaining arguments proffered by the appellant were found
to be meritless.
Huang v. Department of Homeland Security, No. 2020-70242, (9th Cir.
January 15, 2021) (MSPB Docket No. SF-1221-19-0228-W-1): In this
individual right of action appeal, the Board found that while the appellant
established a prima facie case of reprisal based on the agency’s perception of her
as a whistleblower, the agency proved by clear and convincing evidence that it
would have suspended her regardless of this perception. The appellant sought
review in the Ninth Circuit Court of Appeals under the All Circuit Review Act.
The court affirmed the Board’s decision, finding: (1) the Board did not err in
assessing the strength of the agency’s evidence in support of the suspension;
(2) the Board did not commit an error in finding insufficient evidence of
retaliatory animus; (3) the third Carr factor played no role in the analysis
because the agency did not set forth a similarly-situated comparator who was not
a whistleblower but still received the same discipline; and (4) the Board’s
conclusion that the agency met its clear and convincing standard is supported by
substantial evidence.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Baca v. Department of the Army
Tribunal: United States Court of Appeals for the Tenth Circuit
Case Number: 19-9536
MSPB Docket Number: DE-0752-19-0022-I-1
Issuance Date: December 22, 2020
The Court granted in part the petitioner’s request for rehearing,
and replaced its September 2, 2020 opinion with a revised opinion.
The court indicated that the changes to the prior opinion were non
substantive and did not affect the outcome of the appeal.
Case Name: Braun v. Department of Health & Human Services
Tribunal: United States Court of Appeals for the Federal Circuit
Case Number: 2019-1949
MSPB Docket Number: DC-0752-16-0743-I-2
Issuance Date: December 21, 2020
ADVERSE ACTION CHARGES
- PERFORMANCE BASED ACTIONS
CONSTITUTIONAL ISSUES/DUE PROCESS
- DUE PROCESS
DEFENSES AND MISCELLANEOUS CLAIMS
- HARMFUL ERROR
The petitioner sought review of a Board decision affirming his removal from his
position as a research doctor at the National Institutes of Health (NIH). The
petitioner had worked at NIH for more than 30 years and had obtained tenure
in 2003. In 2015, the petitioner notified his director that he had deviated from
the approved protocol for screening human subjects of a study. The agency
commissioned an audit of the petitioner’s records, which found among other
things that complete records existed for less than 9% of participants in the
petitioner’s study, which had been ongoing for 6 years. The agency suspended
the study pending appropriate remediation. It also proposed the petitioner’s
removal for negligence in the performance of his duties. The petitioner argued
that under its own policy the agency could not remove him on performance
grounds without first de-tenuring him. The agency nevertheless removed the
petitioner, who filed a Board appeal.
The administrative judge found that the agency removed the petitioner “for
cause” and therefore it was not required to de-tenure him before taking the
removal action. The administrative judge also rejected the petitioner’s claims
of harmful procedural error, age discrimination, and reprisal for prior equal
employment opportunity activity. After the initial decision became the final
decision of the Board, the petitioner sought review before the Federal Circuit.
Holding: By a 2-1 decision, the court affirmed the petitioner’s removal and
held that the agency was permitted to remove him without first de-tenuring
him.
1. First, the majority held that the agency was authorized under its policy
to remove the petitioner for cause without first de-tenuring him. The
petitioner argued that agency policy provided for the removal of tenured
scientists for unacceptable performance only after de-tenuring, and thus
the agency could only remove him based on his performance if it first
de-tenured him. The majority rejected that argument, holding that a
separate provision of the agency policy, which authorized removals “for
cause” without de-tenuring, could be applied to cases of scientific
misconduct. The majority analogized the two agency policy provisions
to Chapter 43 and Chapter 75 of Title 5 and noted that although Chapter
43 deals specifically with actions based on unacceptable performance,
an agency may nevertheless take a performance-based action under
Chapter 75. The majority found that the specific allegations against the
petitioner here, which involved a failure to comply with scientific
protocols over a long period of time, fell within the scope of the “for
cause” provision.
2. The majority also rejected the petitioner’s argument that the agency
denied him due process in its penalty determination. Specifically, the
petitioner argued that the agency considered the recommended penalty
in its Table of Penalties for “violation[s] of recognized professional or
agency standards of medical ethics or patient care,” which was not the
specific charge set forth in his notice of proposed removal. Additionally,
he asserted that the agency violated his due process rights by using the
term “misconduct” in its removal decision, while that term did not
appear in the notice of proposed removal. The majority agreed with the
Board that the notice of proposed removal provided the petitioner with
sufficient information to prepare an informed reply, thereby satisfying
the requirements of due process.
3. The majority also rejected the petitioner’s argument that the agency
committed harmful procedural error by misrepresenting the timing of his
removal to its Institutional Review Board. The majority agreed with the
Board that the petitioner failed to show that any error by the agency was
harmful.
4. Finally, the majority declined to consider the petitioner’s argument
regarding alleged disparate treatment because he failed to raise it in his
opening brief.
5. Judge Newman dissented, arguing that the majority had erroneously
conflated negligence in the performance of one’s duties with
misconduct, which in her view had the effect of rendering virtually
meaningless the tenure protections for NIH scientists.
NONPRECEDENTIAL:
Pak v. Department of Veterans Affairs, No. 2020-1845 (Fed. Cir. Dec.
22, 2020) (MSPB Docket No. CH-1221-19-0337-W-1): The court affirmed
the Board’s decision denying the petitioner’s request for corrective
action in his individual right of action appeal. The court found that the
administrative judge properly excluded the petitioner’s evidence and
witnesses as a sanction for repeated failure to comply with orders. The
court also found that the Board’s findings on the merits were supported
by substantial evidence.
Franco v. Department of Defense, No. 2020-1499 (Fed. Cir. Dec. 18,
2020) (MSPB Docket No. SF-4324-19-0187-I-2): The court affirmed, per
Rule 36, the Board’s decision dismissing as moot the petitioner’s appeal
under the Uniformed Services Employment and Reemployment Rights Act
of 1994.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Esparraguera v. Department of the Army
Tribunal: United States Court of Appeals for the Federal Circuit
Case Number: 2019-2293
MSPB Docket Number: CB-3592-18-0022-U-1
Issuance Date: December 4, 2020
COURT REVIEW
- APPEAL RIGHTS UNDER CSRA
PERFORMANCE BASED ACTIONS
- JURISDICTION
The petitioner sought review of the agency’s action removing her for
performance reasons from her Senior Executive Service (SES) position and
placing her in another high-level position outside the SES. The Board did not
issue a decision under its normal appellate procedures. Instead, pursuant to 5
U.S.C. § 3592(a), the Board held an informal hearing and issued an order
referring the record to the respondent agency, as well as to the Office of
Special Counsel and Office of Personnel Management. The petitioner then filed
an appeal at the Federal Circuit, arguing that she had been denied due
process.
Holding: The court held that it lacked jurisdiction to review the Board’s
order referring the record because that order did not constitute a “final
order or final decision” that “adversely affected or aggrieved” the
petitioner.
1. First, the court held that the Board lacked authority to review the
petitioner’s removal from her SES position. By granting employees like
the petitioner an informal hearing, Congress was providing an
opportunity to be heard, not an adversarial forum. Section 3592(a)
permits an affected employee to “appear and present argument,” but it
does not incorporate any of the substantive or procedural requirements
that apply to adverse action appeals under chapter 75. The fact that
Congress specifically gave the Board authority to review actions against
other Federal employees and against SES employees removed for
misconduct demonstrates that it did not intend to provide for review in
performance-based actions against SES employees.
2. The court rejected the petitioner’s argument that a post-deprivation
hearing is required as a matter of due process. The court held that even
if the petitioner were deprived of a due process interest, the clear text
and structure of the Civil Service Reform Act prevents a court from
expanding the Board’s jurisdiction in this context.
3. The court then held that because the Board lacked review authority in
this matter, its order referring the record was not a reviewable “final
order or decision.” Under 5 U.S.C. § 7703(a), an employee who is
“adversely affected or aggrieved by a final order or decision of [the
Board] may obtain judicial review of the order or decision.” Applying
this standard, the Federal Circuit generally only reviews final judgments
from the Board, i.e., orders or decisions that end the litigation on the
merits and leave nothing for the court to do but execute the judgment.
The Board’s order in this case was a ministerial act of record keeping,
not a final judgment.
4. Finally, the court rejected the petitioner’s argument that it should
exercise jurisdiction over her appeal because of the presumption in
favor of judicial review of constitutional claims. The court held that
even if the petitioner was correct that some court would be required to
hear her constitutional claims, she did not establish that the Federal
Circuit was the proper court to do so. The court therefore dismissed the
appeal for lack of jurisdiction.
Case Name: Harrington v. Department of Veterans Affairs
Tribunal: United States Court of Appeals for the Federal Circuit
Case Number: 2019-1882
MSPB Docket Number: AT-0714-18-0615-I-1
Issuance Date: December 7, 2020
ADVERSE ACTIONS
- STANDARD OF PROOF
- PENALTY
COURT REVIEW
- MISCELLANEOUS
The agency removed the petitioner from his position as a Police Officer based
on 38 U.S.C. § 714, which streamlined disciplinary actions by the agency and
limited the Board’s review of those actions. The Board affirmed the removal
and the petitioner appealed to the Federal Circuit.
After briefing concluded in
this appeal, the court decided Sayers v. Department of Veterans Affairs, 954
F.3d 1370 (Fed. Cir. 2020), in which it held that (1) section 714 requires the
Board to review for substantial evidence the entirety of the agency’s removal
decision, including the penalty, and (2) section 714 cannot be applied
retroactively. The petitioner submitted Sayers to the court as supplemental
authority.
Holding: The court held that the § 714 action against the petitioner was
improper under Sayers because it relied on conduct that predated
enactment of § 714.
1. First, the court held that the Board’s failure to review the agency’s
penalty determination was sufficient to warrant remand for further
proceedings consistent with Sayers.
2. The court then considered whether the petitioner had waived his
argument regarding retroactivity by failing to raise it prior to
supplemental briefing. The court found that it was appropriate to
excuse waiver under these circumstances, given that retroactivity is a
pure question of law, the proper resolution is beyond any doubt, and it
would have been difficult for the pro se petitioner to mount a
retroactivity defense before the Board.
3. On the merits of the retroactivity issue, the court found that the agency
could not remove the petitioner under § 714 without impermissibly
applying the statute retroactively. It therefore vacated the removal
and remanded the matter to the Board with instructions to remand it to
the agency.
NONPRECEDENTIAL:
Flynn v. Department of Veterans Affairs, No. 2020-1898 (Fed. Cir.
Dec. 7, 2020) (MSPB Docket No. SF-1221-19-0192-W-1): The court
affirmed the Board’s final decision denying the petitioner’s request for
corrective action in his individual right of action appeal. The court
rejected the petitioner’s argument that he was entitled to the
procedures set forth at 5 U.S.C. § 7513; the court found that the
petitioner’s registered nurse position was specifically exempted from
those procedures.
Heslop v. Internal Revenue Service, No. 2020-1314 (Fed. Cir. Dec. 9,
2020): The court affirmed an arbitrator’s decision that sustained the
petitioner’s removal for excessive absences. The court rejected the
petitioner’s argument that she had submitted post-removal medical
evidence that warranted mitigation of the penalty.
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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: Negar Hassami
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-2291
Docket Number: PH-1221-17-0271-W-2
Issuance Date: November 9, 2020
WHISTLEBOLWER PROTECTION ACT
- JURISDICTION
- NONFRIVOLOUS ALLEGATIONS
- GROSS MISMANAGEMENT
- GROSS WASTE OF FUNDS
- SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH AND
SAFETY
- POLICY DISAGREEMENT
The petitioner was a Chief of Pharmacy for the Department of
Veterans Affairs at the Martinsburg, West Virginia Veterans
Administration Medical Center (VAMC). Between November 2014 and
February 2015, the petitioner raised concerns about the prescribing
practices of another physician. Specifically, she alleged that this
physician was prescribing Hepatitis C medication inconsistent with
national guidelines. According to the petitioner, the physician was
prescribing an older form of medication when the guidelines supported
prescribing a newer form of medication instead. Because the older
medication was far more expensive than the newer medication, this
resulted in the VAMC’s Hepatitis C medication budget being rapidly
depleted. In addition, she alleged that the physician was prescribing
more lengthy courses of medication than recommended. This not only
compounded the problem of expense but also presented a health risk to
patients who were subjected to the medication regimen for more than
the recommended period of time.
Later in 2015, the petitioner was suspended and demoted based charges
of conduct unbecoming a supervisor stemming from accusations of
misconduct made by a subordinate pharmacy employee.
After exhausting her administrative remedies with the Office of Special
Counsel, the petitioner filed an individual right of action (IRA) appeal.
The administrative judge dismissed the appeal for lack of jurisdiction,
finding that the petitioner failed to make a nonfrivolous allegation that
her disclosures were protected. The administrative judge’s initial
decision became final, and the petitioner petitioned for review before
the court.
Holding: The court vacated and remanded for further adjudication of
the jurisdictional issue, finding that the petitioner made a
nonfrivolous allegation that her disclosures were protected.
1. In finding that the petitioner failed to make a nonfrivolous
allegation that her disclosures were protected, the administrative
judge considered affidavits and other evidence submitted by the
agency. In particular, the administrative judge adopted many of
the agency’s “essentially undisputed” statements of fact,
including that the petitioner raised no concerns over patient
safety, the physician’s prescription decisions were approved by
the relevant VAMC authority, and the physician’s treatment
decisions, including his occasional deviation from standard
practice, were all clinically justified and within the standard of
care.
A. The court clarified the law surrounding the IRA jurisdictional
standard, including its prior analogies between nonfrivolous
allegations and summary judgment. Although there are
similarities between the two standards, the Board must assess
nonfrivolous allegations solely on information submitted by the
petitioner, to the exclusion of evidence submitted by the agency.
B. As in appeals adjudicated under 5 U.S.C. § 7701, in IRA
appeals, there is an unconditional right to a hearing on the
merits. The respondent agency cannot be allowed to circumvent
that right by effectively obtaining summary judgment in the guise
of a jurisdictional dismissal.
C. When evaluating the Board’s jurisdiction over an IRA appeal,
the question of whether the petitioner has nonfrivolously alleged
protected disclosures contributing in a personnel action must be
determined based on whether she alleged a sufficient factual
matter, accepted as true, to state a claim that is plausible on its
face. The Board may not deny jurisdiction by crediting the
agency’s interpretation of the evidence as to whether the alleged
disclosures were protected or whether they were a contributing
factor in a personnel action.
D. The petitioner’s allegations were “nonfrivolous” within the
meaning of 5 U.S.C. § 1201.4: They were made under oath, they
described a facially plausible series of events, and they were
supported by specific facts.
E. The allegations were also material. Assuming they were true,
a reasonable person in the petitioner’s position could conclude
that the disclosures evidenced (i) a gross waste of funds because
the prescribed medication was vastly more expensive than the
newer alternatives, (ii) gross mismanagement because cost
overruns jeopardized the budget that the VAMC uses to accomplish
its mission, and (iii) a substantial and specific danger to public
health and safety because the lengthy prescription regimens
exposed patients to unnecessary risk of side effects.
2. The administrative judge concluded that the disclosures evidenced
disagreement about policy and a robust debate about how best to
manage treatment of Hepatitis C. However, the Whistleblower
Protection Enhancement Act of 2012 makes clear that protected
disclosures and policy disagreements are not mutually exclusive.
3. On remand, the Board was to determine whether the petitioner
made a nonfrivolous allegation that her disclosures were a
contributing factor in her suspension and demotion, and if so, to
conduct a hearing on the merits as requested by the petitioner.
NONPRECEDENTIAL:
Page v. Merit Systems Protection Board, No. 2020-1329 (Fed. Cir.
Nov. 6, 2020)
(MSPB Docket No. DA-0714-20-0009-I-1): The court affirmed the administrative
judge’s decision dismissing the petitioner’s removal appeal as untimely filed.
Under 38 U.S.C. § 714(c)(4)(B), the petitioner had 10 business days from the
date of his removal to file his Board appeal, and under that standard, his
appeal was untimely by 15 days. The petitioner failed to show that the agency
delayed in delivering its decision letter or that equitable tolling of the filing
deadline was otherwise warranted.
Chan v. Equal Employment Opportunity Commission, No. 2020-1239 (Fed. Cir.
Nov. 10, 2020) (MSPB Docket No. SF-4324-19-0153-I-1): The court affirmed,
per Rule 36 judgment, the administrative judge’s decision denying the
petitioner’s request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994.
Hairston v. Department of Defense, No. 2020-1607 (Fed. Cir.
Nov. 13, 2020)
(MSPB Docket No. DC-0752-20-0126-I-1): The court affirmed the administrative
judge’s initial decision sustaining the petitioner’s removal for computer
related misconduct. The petitioner admitted to the charges but raised
affirmative defenses of violation of due process and harmful procedural error.
There was no due process violation; although the petitioner did not review the
evidence against him prior to the removal, he had the opportunity to do so.
There was no harmful procedural error either; although the agency erred by
treating a union official as the petitioner’s representative without a written
designation, the petitioner failed to show that the agency would likely have
reached a different result in the absence or cure of the error. The petitioner
also claimed inadequate representation before the agency, but because he
admitted to the misconduct at all stages of the appeal, he failed to show that
the quality of his representation likely affected the outcome.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Adam Delgado
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Seventh Circuit
Case Number: No. 19-2239
Docket Number: CH-1221-14-0737-M-1 & CH-1221-18-0149-W-2
Issuance Date: October 29, 2020
COURT REVIEW
- MISCELLANEOUS
WHISTLEBLOWER PROTECTION ACT
- CLEAR AND CONVINVING EVIDENCE
- CONTRIBUTING FACTOR
- PROOF OF CLAIM, GENERALLY
- PROTECTED DISCLOSURE
- VIOLATION OF LAW
This report summarizes the Seventh Circuit’s recent panel opinion amending its
July 16, 2020 decision in this matter, Delgado v. Merit Systems Protection
Board, 966 F.3d 556 (2020), and updates the Case Report for July 17, 2020
discussing that prior opinion.
In these individual right of action (IRA) appeals, the petitioner sought
corrective action for retaliation based on alleged protected disclosures. The
Board dismissed the first appeal for lack of jurisdiction, finding that the
petitioner had not exhausted his administrative remedies. The Seventh Circuit
found that the petitioner had proven exhaustion. The court therefore
remanded the appeal to the Board for further adjudication. In remanding the
appeal, the court also indicated that the petitioner’s allegations to the Office
of Special Counsel and the Board were sufficient to allege that he made
protected disclosures regarding possible perjury by one of his coworkers.
Around the same time the Seventh Circuit issued its remand decision, the
petitioner filed a second IRA appeal with the Board, alleging additional acts of
retaliation for the same or similar disclosures alleged in the first appeal. After
holding a consolidated hearing in the two pending appeals, the administrative
judge issued separate initial decisions denying the petitioner’s requests for
corrective action in both cases. The administrative judge found that the
petitioner’s disclosures were a contributing factor in at least some of the
challenged personnel actions. However, she found that the petitioner’s
disclosures were not protected because he did not have a reasonable belief
that the coworker committed perjury. She therefore found that the appellant
had not established a prima facie case of whistleblower reprisal. The
petitioner sought review of both decisions.
On review, the court vacated the Board’s decisions in both appeals, found that
the petitioner was entitled to corrective action, and remanded the appeal for
further proceedings regarding the appropriate remedy. The agency filed a
petition for panel rehearing. The court granted the agency’s petition only as
to its request for the court to correct an error and consider in more detail its
arguments pertaining to its affirmative defense; the court denied the petition
in all other respects. The court issued an amended opinion, in which it
expanded its analysis of the agency’s clear and convincing burden, but still
found that the petitioner was entitled to corrective action.
Holding: The court vacated the Board’s decisions in both IRA appeals,
found that the petitioner was entitled to corrective action, and remanded
the appeal for further proceedings regarding the appropriate remedy.
1. The following holdings were largely unchanged from the court’s July 16,
2020 opinion:
a. The court determined that in light of its prior decision and the
evidence submitted on remand, the Board was bound by the law
of the case doctrine to find that the petitioner’s disclosures of
alleged perjury were protected.
b. The court agreed with the administrative judge that the
petitioner proved that his disclosures were a contributing factor
in several nonselections. The court also found that, contrary to
the administrative judge’s findings, the petitioner established
that his disclosures were a contributing factor in two additional
nonselections.
2. As before, the court found that the administrative judge did not address
whether the agency met its burden to prove by clear and convincing
evidence that it would have taken the same actions in the absence of
the petitioner’s disclosures. Although the court normally would remand
the case to the Board to consider that issue in the first instance, it
determined that remand was not necessary because the record was fully
developed and the agency failed as a matter of law to meet its burden.
a. On this latter issue, the court amended its July 16, 2020 opinion
and set forth more detailed reasoning for finding that the agency
failed to meet its burden. The court applied the Federal Circuit’s
decision in Whitmore v. Department of Labor, 680 F.3d 1353
(Fed. Cir. 2012), and weighed the evidence as a whole. The court
found ample evidence that members of the selection panels
harbored animus towards the petitioner because of his disclosures
and took decisive actions that prevented the petitioner’s
selection for several promotions. The court further found the
agency’s evidence to be “highly subjective” and “so inconsistent
with the record that it could support a finding of pretext.”
3. The court again “strongly urge[d]” the Board to assign a new
administrative judge to the appeal on remand.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Angela D. Fuerst
Respondent: Secretary of the Air Force
Tribunal: U.S. Court of Appeals for the Sixth Circuit
Case Number: 19-4139
Docket Number: CH-0353-15-0193-C-1
Date Issued: October 14, 2020
Subject Matter Jurisdiction
- Mixed case
- Petition for Enforcement
Ms. Fuerst was removed from Federal service after the agency determined that
her ability to only work part-time was affecting the agency’s mission. The
Department of Labor subsequently determined that Ms. Fuerst was no longer
disabled, and she applied to participate in a fast-track reemployment program for
civil service employees who were removed from service because of a disability
but have since recovered. Ms. Fuerst asked the agency to place her on the
appropriate priority reemployment list, but the agency did not act on her request.
Ms. Fuerst filed a Board appeal challenging her removal, arguing that the
removal was based on disability discrimination and claiming that she had a right
to be placed on the priority reemployment list. The Board disagreed that her
removal was improper or motivated by disability discrimination, but it found
that Ms. Fuerst should have been placed on the reemployment list retroactively.
The Board therefore ordered the agency to place Ms. Fuerst on that list
retroactively and to hire her for any job she would have been given had she been
on the list in the first place. The agency offered Ms. Fuerst two jobs at her pay
grade.
Ms. Fuerst believed that the agency negotiated in bad faith and failed to comply
with the Board’s order, and she filed a petition for enforcement. The Board
denied the petition for enforcement, finding that the agency complied by
offering her two suitable jobs. Ms. Fuerst appealed that decision to a district
court. The agency moved to dismiss the appeal for lack of subject matter
jurisdiction because the U.S. Court of Appeals for the Federal Circuit has
exclusive jurisdiction over the appeal. The district court agreed with the agency
and dismissed the appeal. Ms. Fuerst sought judicial review of that decision.
The court explained that a mixed case has to be based on an action that is (1)
appealable to the Board and (2) motivated in part by discrimination. The court
noted that Ms. Fuerst’s original appeal was a mixed case because she challenged
the removal and the agency’s failure to place her on the priority reemployment
list and she raised a discrimination claim regarding the removal. By contrast,
the petition for enforcement was not a mixed case because it was not an appeal
of an agency action, even though Ms. Fuerst petitioned the Board to enforce an
order issued in a mixed case. Because the petition for enforcement was not a
mixed case, it was not within the district court’s jurisdiction, and the court
affirmed the district court’s dismissal for lack of jurisdiction. The court noted
that the U.S. Court of Appeals for the Federal Circuit was the only proper
avenue for judicial review of the Board’s final decision in the petition for
enforcement matter.
NONPRECEDENTIAL COURT DECISIONS
Foster v. Department of the Army, No. 2020-1691 (Fed. Cir. Oct. 15, 2020): In
this petition for enforcement matter, the court found that there was substantial
evidence to support the Board’s finding that the agency complied with its
cancellation order as to back pay but not as to uniform allowance. The court
therefore remanded the appeal so the parties could present additional evidence
and the Board could conduct additional fact-finding on the uniform allowance
necessary to place Mr. Foster in status quo ante.
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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: Roberto Ramirez
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1534
Petition for Review from Arbitration
Issuance Date: September 15, 2020
Arbitration - Miscellaneous
Constitutional Issues - Due Process
Following a domestic incident involving the alleged use of a firearm, the
agency ordered Mr. Ramirez, a Customs and Border Protection Officer, to
complete a psychiatric evaluation. The evaluation was inconclusive, but the
examining psychiatrist, Dr. Skop, reported that he could not “confidently say”
that Mr. Ramirez was able to safely carry a government-issued weapon,
because there was evidence that he was not “totally forthcoming” during the
assessment. The agency ordered a second evaluation by a different
psychiatrist, Dr. Nahmias, who also did not reach a definite conclusion as to
Mr. Ramirez’s dangerousness or ability to safely weapon, but nonetheless
recommended that he be restricted from a weapon-carrying position based on
his “lack of full cooperativeness” during his evaluation. Both psychiatrists
based their conclusions on the findings of a third-party clinical psychologist,
Dr. Frederick, who determined that the results of the Minnesota Multiphasic
Personality Inventory (MMPI), a written assessment Mr. Ramirez completed as
part of each evaluation, were “invalid” due to “extreme defensiveness.”
Based on the report by Dr. Nahmias, the agency found that Mr. Ramirez was no
longer fit for duty and proposed his removal. The agency provided Mr. Ramirez
with copies of the reports by the two examining psychiatrists, but did not
provide him access to the MMPI scores or their interpretation by Dr. Frederick.
After considering his responses, the agency removed Mr. Ramirez.
Mr. Ramirez elected to challenge his removal through arbitration. During the
arbitration proceeding, Mr. Ramirez requested copies of the MMPI assessments
and Dr. Frederick’s tabulation and interpretation of the scores. The agency
denied the requested records on the ground that it had not obtained them
from Dr. Frederick. Mr. Ramirez objected to the agency’s introduction of
evidence that relied on the MMPI assessments, on the ground that he did not
have access to the test results, but the arbitrator reserved judgment and
allowed the agency to present its evidence. During the hearings, Mr. Ramirez
called his own expert witness, who had administered him another MMPI
assessment and interpreted his scores as being within the range typical for law
enforcement personnel.
Following the hearings, the arbitrator issued an Interim Award ordering
Mr. Ramirez to undergo yet another psychiatric evaluation. In concluding that
another examination was necessary, the arbitrator declined to credit
Mr. Ramirez’s expert witness, but found that the conclusions of the agency’s
medical witnesses fell “technically short of preponderantly proving” that
Mr. Ramirez was unfit for duty. Mr. Ramirez appealed the Interim Award to the
Federal Circuit, which determined that it lacked jurisdiction because the
award was not yet final. Mr. Ramirez then reported for the new examination,
during which he completed another MMPI assessment. The new MMPI
assessment was again reviewed by Dr. Frederick, who again interpreted the
results as invalid due to “high defensiveness.” Based in part on Dr. Frederick’s
interpretation, the new examining psychiatrist, Dr. Yi, concluded that she
could not declare the petitioner was safe to return to the workplace. The
petitioner requested copies of all records relating to that evaluation, including
the MMPI assessments, but agency refused, stating that that it had not
received the test results. The petitioner challenged the agency’s response,
renewed his earlier objections to the agency’s medical evidence, and
requested that the arbitrator order the agency to produce the MMPI records.
The arbitrator issued a Final Award affirming Mr. Ramirez’s removal. He also
denied Mr. Ramirez’s request to order the agency to produce the records of his
MMPI assessments, and declined to reopen the record for a new hearing.
Mr. Ramirez petitioned for review, arguing (1) that the arbitrator exceeded his
authority in ordering a new psychiatric evaluation and considering the merits
of the removal after issuing the Interim Award; and (2) that the agency’s
denial of access to the records of the MMPI assessments deprived him of due
process.
Holding: The court held that (1) the arbitrator did not exceed his authority
by seeking additional evidence after issuing the Interim Award, and (2) the
petitioner was entitled to a meaningful opportunity to review and challenge
the written assessments underlying his adverse psychiatric evaluations.
1. The court first considered Mr. Ramirez’s argument that the arbitrator’s
jurisdiction over the case terminated once he found that the expert
opinions proffered by the agency failed to satisfy its burden of proof. In
making that argument, Mr. Ramirez relied on the doctrine of functus
officio, which dictates that once an arbitrator has issued a final decision
on a submitted issue, he has no further authority, absent agreement by
the parties, to redecide the issue. The court noted that it had not
previously considered the question of whether an interim award by an
arbitrator constitutes a final decision that triggers functus officio. The
court answered in the negative, holding that “an arbitrator does not
lose the authority to further consider a submitted issue by announcing
an interim finding when the award expressly defers a final decision on
that issue pending the availability of additional evidence.”
2. The court next considered whether Mr. Ramirez was afforded due
process in light of the agency’s refusal to provide him with access to the
records of his MMPI assessments.
To begin, the court took note of
relevant Supreme Court precedent, including Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985), which held that the
“essential requirements of due process” for public employees facing
removal are “notice and an opportunity to respond”; Mathews v.
Eldridge, 424 U.S. 319 (1976),which listed the factors to be considered
in determining the process due to an individual in a given context; and
Greene v. McElroy, 360 U.S. 474 (1959),which recognized that a
“relatively immutable” principle of due process is that “where
governmental action seriously injures an individual, and the
reasonableness of the action depends on fact findings, the evidence
used to prove the Government’s case must be disclosed to the individual
so that he has the opportunity to show that it is untrue.” The court then
considered cases involving comparable circumstances, in particular
Banks v. Federal Aviation Admininstration, 687 F.2d 92 (5th Cir. 1982),
which held that Government employees removed on drug charges
established through urinalysis are entitled to access to samples for
independent verification, and Houston Federation of Teachers, Local
2415 v. Houston Independent School District, 251 F. Supp. 3d 1168 (S.D.
Tex. 2017), which held that a school district violates the due process
rights of its teachers when it bases retention decisions on the results of
a proprietary assessment without providing an opportunity to review and
assess the accuracy of the testing data and methodology. The court
similarly concluded that, in light of the Mathews factors and the
“immutable” principle of due process announced in Greene, Mr. Ramirez
was entitled to an opportunity to independently review the tests and
their interpretation by Dr. Frederick. The court further noted that the
agency made no showing that it would have been unduly burdensome to
obtain and produce those records.
3. The court next addressed the arbitrator’s reasoning that: (1) the records
were not in the agency’s custody, and it therefore had not regulatory or
contractual obligation to produce them; (2) the agency itself did not
directly rely on the records in making its removal decision; (3)
Mr. Ramirez had the opportunity to cross-examine Dr. Nahmias and
present testimony from his own expert; and (4) Dr. Skop and Dr. Yi
generally concurred with Dr. Nahmias’s findngs. The court found that
none of these grounds undermined Mr. Ramirez’s due process rights to
the records at issue.
4. The court found, however, that the agency’s failure to provide
Mr. Ramirez with the MMPI records before removing him was not by
itself a sufficient basis for vacating the removal decision. The agency
did notify Mr. Ramirez that the proposed removal was based on the
conclusions of his psychiatric evaluations, and he received the reports of
those evaluations, which informed him that they relied on MMPI results
that neither he nor the agency had reviewed first hand. That
information explained the basis for the agency’s decision and allowed
him to challenge the decision by pointing out ways in which the
underlying evidence may have been unreliable. While he was ultimately
entitled to independently review the MMPI records with the assistance
of his own expert, the fact that he was unable to do so during the pre
termination proceedings was not a constitutional violation so substantial
and so likely to cause prejudice that it could not be remedied through
post-termination procedures.
5. In sum, the court held that “when an agency relies, directly or indirectly
on the results of a psychological assessment in justifying an employee’s
removal, the agency must provide the employee with a meaningful
opportunity to review and challenge the data, analysis, and results of
that assessment.”
6. Because Mr. Ramirez was denied that opportunity, the court vacated the
Final Award and remanded for further proceedings. The court stated
that, on remand, the arbitrator must (1) order the agency to provide
Mr. Ramirez (or his designated agent) access to the records of the MMPI
assessments, including the assessments themselves, his responses, and
Dr. Frederick’s interpretations; and (2) provide Mr. Ramirez an
opportunity to present new evidence and testimony at a hearing
concerning those records.
7. The court declined to address the question of what remedies would be
acceptable should the parties discover on remand that the relevant
records were no longer available. The court reasoned that this would be
for the arbitrator to decide in the first instance, should the need arise.
8. Bryson, J. wrote a separate, concurring opinion. Although he agreed
with the outcome, he stated that, in his view, the remand order should
require the agency to ascertain whether the test results and scoring
reports were available, and direct the agency to attempt those items if
they are available. He further explained that, if the agency could not
obtain those materials despite bona fide effects to do so, he would not
regard the unavailability of the tests as necessarily having deprived
Mr. Ramirez of a fair opportunity to respond to the case against him.
NONPRECEDENTIAL:
Mason v. Department of Defense; Defense Commissary Agency, No. 19-72488
(9th Cir. Sept. 16, 2020) (MSPB Docket No. SF-1221-19-0468-W-1)
The Board dismissed the appellant’s individual right of action (IRA) appeal as
barred by res judicata, because it had previously dismissed with prejudice his
prior IRA appeal based on the same retaliation claim. The appellant petitioned
the Ninth Circuit for review, and the court denied the petition, finding that the
Board properly dismissed the appeal as barred by res judicata.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Larry Baca
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Tenth Circuit
Case Number: No. 19-9536
Docket Numbers: DE-0752-19-0022-I-1
Date Issued: September 2, 2020
Jurisdiction
- All Circuit Review Act
Affirmative Defenses
- Reprisal for whistleblowing disclosures or activity
- Lawful assistance under 5 U.S.C. § 2302(b)(9)(B)
The agency proposed Mr. Baca’s removal from his Supervisory Engineer
position based on charges of (1) conduct unbecoming a Federal employee, (2)
interfering with an agency investigation, (3) abusive, offensive, disgraceful, or
inflammatory language, and (4) lack of candor. The agency sustained the
removal, and Mr. Baca filed a Board appeal. The administrative judge
determined that the agency proved charges 1 and 3 and that Mr. Baca did not
prove any of his affirmative defenses. The administrative judge affirmed the
removal based on the two sustained charges. The initial decision became the
Board’s final decision when neither party filed a petition for review.
Before the court, Mr. Baca explicitly waived his discrimination claim and only
appealed his claim of reprisal for whistleblowing disclosures. The Board joined
the appeal as an intervenor and provided a brief in support of the court’s
jurisdiction to review the appeal. The court determined that it has jurisdiction
over appeals from final Board decisions on whistleblower claims where the
claims arise either directly (as in an individual right of action appeal) or, as here,
as an affirmative defense.
The court’s discussion of the remaining issues appear to involve the allegations
in charge 2, i.e., that Mr. Baca attempted to intimidate his colleague to write a
statement that another employee battered a co-worker when she allegedly
slammed a door into the co-worker’s back as he left her office. Below, the
administrative judge credited the testimony of another employee and found that
Mr. Baca tried to intimidate the colleague into providing information on behalf
of the co-worker. However, the administrative judge did not ultimately sustain
this charge because there was insufficient evidence that the attempt to intimidate
the colleague interfered with a government investigation.
The court evaluated whether Mr. Baca’s conduct of seeking a statement from a
colleague to assist a co-worker in exercising the co-worker’s right to disclose an
alleged assault constituted lawful assistance under 5 U.S.C. § 2302(b)(9)(B),
which states that it is a prohibited personnel practice to take an action against an
employee for “otherwise lawfully assisting any individual in the exercise of [any
appeal, complaint or grievance right described in section 2302(b)(9)(A)(i) or
(ii)].” Mr. Baca argued before the court that the administrative judge ignored
this “primary theory.” The court noted that the Board “must consider all
pertinent evidence but it need not discuss each piece of evidence in its decision,”
and it stated that it would not presume that the administrative judge ignored
evidence that was not explicitly referenced in the initial decision. The court
noted that the administrative judge credited the testimony of several agency
employees, but not Mr. Baca, and it found that trying to intimidate a witness to
provide a false statement is not conduct protected by the whistleblower statutes.
Even if the court considered Mr. Baca’s citations to new legal authority (agency
and Department of Defense (DOD) policies) to support his contention that he
had a duty to investigate the co-worker’s complaint, a different outcome was not
warranted because attempting to intimidate a witness violated the DOD policy
and did not constitute lawful assistance.
The court also evaluated Mr. Baca’s disclosure, i.e., that he told his supervisor
that he witnessed another employee slam her office door into a co-worker’s
back, which led to an injury. The administrative judge held below that Mr. Baca
did not prove that he had a reasonable belief that he made a whistleblowing
disclosure. The court noted that the administrative judge made numerous
credibility determinations in favor of other agency officials and against Mr.
Baca. The court concluded that the administrative judge “provided more than
sufficient support for the conclusion that a disinterested observer could not have
reasonably concluded” that the employee battered the co-worker. Because the
court affirmed the administrative judge’s finding that Mr. Baca did not make a
protected disclosure under 5 U.S.C. § 2302(b)(8), it stated that it need not
address the remainder of Mr. Baca’s arguments that he is entitled to relief under
the whistleblower protection statutes.
NONPRECEDENTIAL COURT DECISIONS
Aviles-Wynkoop v. Department of Defense, No. 2019-1908 (Fed. Cir. September
2, 2020) (MSPB Docket No. DC-315H-16-0327-B-1): The agency terminated
the appellant from her Program Analyst position during her first year of
employment based on misconduct charges. The administrative judge dismissed
the appeal for lack of jurisdiction because Ms. Aviles-Wynkoop was in her
probationary period, but the full Board vacated that decision because there was a
genuine issue of material fact as to whether her previous Federal service
qualified her to skip the probationary period. On remand, the administrative
judge found that she qualified as a full employee, and the Board had jurisdiction
over the appeal. The administrative judge issued an initial decision that
affirmed the removal action. On review, the court considered Ms. Aviles
Wynkoop’s arguments that the agency failed to adequately consider the relevant
penalty factors, violated her due process rights, and retaliated against her for
whistleblowing disclosures. The court rejected each of these arguments and
affirmed the removal action.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Leonard G. Dyer
Respondent: Department of the Air Force
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-2185
Docket Number: PH-0752-19-0083-I-1
Issuance Date: August 21, 2020
JURISDICTION
NATIONAL GUARD TECHNICIANS/MILITARY RESERVE MEMBERS
In 1990, while the petitioner was enlisted in the West Virginia National Guard
(WVNG), the serving adjunct general of the WVNG appointed him to a
dual-status military technician position with the Department of the Air Force.
As a dual-status technician, the petitioner’s position was part civilian, as a
Federal employee of the U.S. Air Force, and part military, as a member of the
state national guard. Under 32 U.S.C. § 709(b), (f)(1)(A), dual-status
technicians must maintain military membership with the National Guard, and
the adjunct general must terminate from dual-status employment any
technician who has been separated from the National Guard. Effective
June 30, 2018, the serving adjunct general separated the petitioner from the
WVNG and terminated him from his dual-status technician position for failure
to fulfill the section 709(b) requirement of National Guard membership.
The petitioner filed an initial appeal challenging his termination. In response,
the agency argued that the Board lacked jurisdiction over the appeal. The
administrative judge agreed that the Board had no authority to consider the
WVNG’s decision to separate the petitioner, but determined that the National
Defense Authorization Act of 2017 (2017 NDAA) gave the Board jurisdiction
over the termination action. The administrative judge adjudicated the appeal
on the merits and affirmed the petitioner’s termination.
After the initial decision became final, the petitioner filed a petition for
review with the Federal Circuit. On review, the agency reargued that the
Board lacks jurisdiction over the appeal.
Holding: The Board lacks jurisdiction over the petitioner’s appeal of his
termination from his dual-status technician position as a result of his
separation from the National Guard.
1. The court discussed the changes made to the National Guard
Technicians Act of 1968, as codified in relevant part at 32 U.S.C. § 709,
and Title 5 by the 2017 NDAA. The court recognized that the 2017 NDAA
provided that dual-status technicians are employees under 5 U.S.C.
§ 7511, allowing them adverse action appeal rights to the Board, except
as limited by section 709(f). Pursuant to section 709(f)(4), such appeal
rights do not apply, in relevant part, when the appeal “concerns fitness
for duty in the reserve components." In such case, the appeal rights are
limited to those available before the state adjutant general.
2. The court observed that, despite the changes, section 709 retained the
above-mentioned provisions requiring National Guard membership for a
dual-status technician and the technician’s termination upon his
separation from the National Guard. The court found that it was clear
from the statute that the petitioner’s “membership in the National
Guard is a fundamental military-specific requirement.” Thus, the
petitioner’s termination from dual-status employment as a result of his
separation from the National Guard concerned his "fitness for duty in
the reserve components."
3. The court found that the administrative judge erred in relying on cases
when an adverse action is taken for failure to maintain a security
clearance to find jurisdiction to review the termination at issue here.
The court stated that security clearance cases were inapposite because
the petitioner’s termination was not "for cause," but rather compelled
by statute.
4. The court therefore vacated the Board's decision and remanded with
instructions to dismiss the appeal for lack of jurisdiction.
Petitioner: Tawana Harris
Respondent: Securities & Exchange Commission
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1676
Docket Number: DC-0432-18-0390-I-1
Issuance Date: August 25, 2020
PERFORMANCE-BASED ACTIONS
MIXED CASE PROCEDURES
OPPORTUNITY TO DEMONSTRATE ACCEPTABLE PERFORMANCE
In October 2017, the agency placed the petitioner on a 90-day performance
improvement plan (PIP) because, during the last 3 months of the FY 2017
appraisal period, she had performed unacceptably in two of the three critical
elements of her 2017 performance work plan. Ultimately, after the end of the
PIP period, the agency removed the petitioner under chapter 43 for
unacceptable performance during the PIP.
The petitioner filed a mixed case appeal challenging the merits of her removal
and alleging that the action was based on race discrimination and in retaliation
for filing an Equal Employment Opportunity complaint. After holding a
hearing, the administrative judge issued an initial decision sustaining the
petitioner’s removal and finding that she did not prove her affirmative
defenses of discrimination and retaliation.
After the initial decision became final, the petitioner filed a petition for
review with the Federal Circuit. Therein, she argued that the administrative
judge erred in finding that the agency proved she was warned of inadequacies
in critical elements during the appraisal period and that she was afforded an
opportunity to improve after proper notice—i.e., the agency did not establish
elements three and four of its burden of proving the chapter 43 removal for
unacceptable performance. She also submitted a Form 10 Statement
Concerning Discrimination waiving her title VII claims raised before and
decided by the administrative judge.
Holding: Substantial evidence supported the administrative judge’s finding
that the petitioner was warned of her inadequate performance.
1. The petitioner asserted that the agency failed to “warn her during the
appraisal period” because the agency issued the PIP in a different
performance appraisal period, FY 2018, than the one in which the
agency issued her performance appraisal and the performance at issue
occurred, FY 2017. The court rejected this argument.
2. The court recognized that in a chapter 43 removal action, the agency
must show, among other things, the “twin requirements” that it
communicated an employee’s written performance standards and
critical elements of her position at the beginning of the rating period,
and that it warned the employee of related inadequacies during the
rating period.
3. The court clarified that the warning, i.e., the PIP, must “relate to
inadequacies that occurred during the same appraisal period for which
the written performance standards were communicated.” However,
there was no basis for concluding that the agency also must issue the
warning in that same rating period.
4. Focusing on the content, as opposed to the timing of the PIP, the court
determined that the PIP included the necessary information.
Holding: Substantial evidence supported the administrative judge’s finding
that the petitioner was afforded a reasonable opportunity to improve.
1. The court also considered the petitioner’s claim that she did not have a
reasonable opportunity to improve because her PIP standards were not
reasonable, her PIP placement was pretextual, and her removal was
predetermined. In so doing, it also considered the agency’s argument
that the court lacked authority to consider any of the petitioner’s claims
of pretext and predetermination. The court rejected both the
petitioner’s and the agency’s contentions.
2. The court found that it had the authority to review the agency’s action,
including any nondiscrimination-related pretext claims, because her
explicit waiver of her discrimination claims “effectively convert[ed]”
her mixed case appeal to a standard chapter 43 removal appeal within
the court’s jurisdiction. The court further found that the petitioner’s
concurrent district court case concerning her placement on a PIP, a
distinct personnel action, did not affect the court’s authority to review
the agency’s removal action.
3. As to the merits of the petitioner’s claims, the court concluded that
substantial evidence supported the administrative judge’s finding that
the petitioner was afforded a reasonable opportunity to improve,
findings that were based heavily on explicit credibility determinations.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Adam Delgado
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Seventh Circuit
Case Number: 19-2239
Docket Numbers: CH-1221-14-0737-M-1 & CH-1221-18-0149-W-2
Issuance Date: July 16, 2020
COURT REVIEW
- MISCELLANEOUS
WHISTLEBLOWER PROTECTION ACT
- CLEAR AND CONVINVING EVIDENCE
- CONTRIBUTING FACTOR
- MISCELLANEOUS
- PROOF OF CLAIM, GENERALLY
- PROTECTED DISCLOSURE
- VIOLATION OF LAW
In these individual right of action (IRA) appeals, the petitioner sought
corrective action for retaliation based on alleged protected disclosures. The
Board dismissed the first appeal for lack of jurisdiction, finding that the
petitioner had not exhausted his administrative remedies. The Seventh Circuit
found that the petitioner had proven exhaustion. The court therefore
remanded the appeal to the Board for further adjudication. In remanding the
appeal, the court also indicated that the appellant’s allegations to the Office
of Special Counsel and the Board were sufficient to allege that he made
protected disclosures regarding possible perjury by one of his coworkers.
Around the same time the Seventh Circuit remanded the first IRA appeal, the
petitioner filed a second IRA appeal alleging additional acts of retaliation for
the same or similar disclosures alleged in the first appeal. After holding a
consolidated hearing in the two pending appeals, the administrative judge
issued separate initial decisions denying the petitioner’s requests for corrective
action in both cases. The administrative judge found that the petitioner’s
disclosures were a contributing factor in at least some of the challenged
personnel actions. However, she found that the petitioner’s disclosures were
not protected because he did not have a reasonable belief that the coworker
committed perjury. She therefore found that the appellant had not
established a prima facie case of whistleblower reprisal. The petitioner sought
review of both decisions.
Holding: The court vacated the Board’s decisions in both appeals, found
that the petitioner was entitled to corrective action, and remanded the
appeal for further proceedings regarding the appropriate remedy.
1. The court determined that in light of its prior decision and the evidence
submitted on remand, the Board was bound by the law of the case
doctrine to find that the petitioner’s disclosures of alleged perjury were
protected.
2. The court agreed with the administrative judge that the petitioner
proved that his disclosures were a contributing factor in several non
selections. The court also found that, contrary to the administrative
judge’s findings, the petitioner also established that his disclosures were
a contributing factor in two additional non-selections.
3. The administrative judge did not address whether the agency met its
burden to prove by clear and convincing evidence that it would have
taken the same actions in the absence of the petitioner’s disclosures.
Normally, the court would remand the case to the Board to consider that
issue in the first instance. Here, however, the court determined that
the record on that issue was fully developed and the agency failed as a
matter of law to meet its burden. Thus, the court determined that
remand was not necessary on the merits of the petitioner’s claims. The
court remanded the case to the Board only to calculate damages.
4. The court “strongly urge[d]” the Board to assign a new administrative
judge to the appeal on remand.
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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: Edward M. Avalos
Respondent: Department of Housing & Urban Development
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1118
Docket Number: DE-0752-18-0004-I-1
Date Issued: June 26, 2020
Chapter 75 Jurisdiction
- Improper appointments
- Current continuous service
Merit System Principles
- Political influence in appointments
- Variations
Efficiency of the service standard
The petitioner was a Level III Senior Executive for the Department of
Agriculture who applied for a competitive service GS-15 Field Office Director
position with the Department of Housing and Urban Development, the
respondent agency in this appeal. A Regional Administrator with whom the
petitioner was professionally acquainted was involved in developing the
vacancy announcement and assessing the candidates. The petitioner did not
appear on the certificate of eligibles, which contained only one candidate, a
preference eligible veteran. Dissatisfied with the certificate, the Regional
Administrator allowed it to expire without a selection. She then revised the
vacancy announcement and reposted it. This time, the petitioner appeared on
the certificate as the only candidate, and the agency selected him. The
petitioner resigned his position with the Department of Agriculture on
September 16, 2016, and began his new Field Office Director position the next
day.
In April 2017, the Office of Personnel Management (OPM) noticed that agency
had appointed the petitioner without its approval. After investigating, OPM
determined that the appointment was not free from political influence and in
compliance with merit system principles, so it instructed the agency to
regularize it. After assessing the petitioner’s appointment, the agency
determined that it could not certify that it met merit and fitness requirements
because the Regional Administrator’s involvement created the appearance of a
prohibited personnel practice.
The agency issued the petitioner a notice of proposed termination on the basis
that his appointment was improper. After the petitioner responded, the
agency separated him from service effective September 14, 2017.
The petitioner filed a Board appeal. The administrative judge found that the
Board had jurisdiction over the appeal under 5 U.S.C. chapter 75, that the
agency reasonably concluded that it could not certify that the petitioner’s
appointment was free from political influence, and that the only option for the
agency to regularize the appointment was to remove the petitioner. The
initial decision became the final decision of the Board, and the petitioner
sought review before the Federal Circuit.
A. Jurisdiction
1. The agency argued that OPM’s failure to approve the petitioner’s
appointment rendered the appointment invalid, and absent a valid
appointment, the petitioner lacked Board appeal rights. The court
disagreed, finding that absent an absolute statutory prohibition on an
appointment or fraud, misrepresentation, or concealment by an
appointee material to the appointment, an appointee who meets the
definition of an “employee” for purposes of chapter 75 has Board appeal
rights. Although the petitioner’s appointment violated several statues,
none of these constituted an “absolute statutory prohibition”
categorically barring the petitioner from the Field Office Director
position.
2. Although the petitioner may not have received a proper appointment
according to the requirements of 5 U.S.C. § 2105, the court has more
generously defined the scope of appointment in applying the statutory
definition of “employee” under 5 U.S.C. § 7511. The former section
implicates substantive rights, whereas the latter section implicates only
procedural rights. The court declined to interpret the applicable
statutes in such a way that the petitioner would lose his appeal rights
based on the very facts that he was disputing, without any
post-termination process to dispute those facts.
3. The agency argued, that the petitioner was not a competitive-service
“employee” with adverse action Board appeal rights under 5 U.S.C.
§ 7511(a)(1)(A)(i) because he had not completed his 1-year initial
probationary period at the time of his termination. However, the court
found the petitioner satisfied the alternative definition of “employee”
under section 7511(a)(1)(A)(ii) by having 1 year of current continuous
service at the time of his termination. The makeup of the civil service
is broad and includes political appointees; the petitioner’s prior service
as a Level III Senior Executive counted toward his 1 year of current
continuous service.
B. Merits
1. The administrative judge found that the agency could not reasonably
certify that the petitioner’s competitive service appointment was free
from political influence. The court found substantial evidence to
support this conclusion, including the fact that the Regional
Administrator abandoned the first certificate of eligibles rather than
seeking permission to pass over the preference eligible veteran, and
recordkeeping errors prevented the agency from concluding that the
Regional Administrator recused herself from the selection process. This
was especially so considering the deference owed to the findings that
the administrative judge made after hearing live testimony.
2. The petitioner argued that his removal did not promote the efficiency of
the service because it was not taken for performance or conduct
reasons. The court disagreed, finding that the efficiency of the service
standard is sufficiently broad to encompass other legitimate
Government interests, including upholding the Merit Systems Principles
and preventing the appearance of political influence in competitive
service appointments.
3. Because the agency has broad discretion in deciding what action to take
to promote the efficiency of the service, it was not required to seek a
variation from OPM’s regulations under 5 C.F.R. § 5.1 in lieu of removal.
Furthermore, even if the agency were required to seek a variation, it
had a reasonable basis to determine that OPM would not grant one.
Variations may be authorized only when they are within the spirit of the
regulations and support the integrity of the competitive service, and a
variation in this case would not meet that standard.
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COURT DECISIONS
PRECEDENTIAL:
Case Name: Bostock v. Clayton County, Georgia
Tribunal: Supreme Court of the United States
Case Number: 17-1618
Issuance Date: June 15, 2020
DISCRIMINATION
- SEX DISCRIMINATION
In each of three consolidated cases, employers fired long-time employees for
*
being homosexual or transgender. Each employee sued under Title VII of the
Civil Rights Act of 1964, alleging sex discrimination. The courts of appeal
reached conflicting decisions as to whether Title VII prohibits discrimination
based on sexual orientation or gender identity. The Court granted certiorari to
resolve the conflict.
*
We use this term because the Court itself used it in its decision.
Holding: By a 6-3 majority, the Court held that an employer who fires an
individual for being homosexual or transgender has violated the Title VII
prohibition against sex discrimination.
1. Writing for the majority, Justice Gorsuch first addressed the ordinary
public meaning of Title VII’s command that it is “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 race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1).
2. Although the parties offered competing definitions of the term “sex,”
the Court assumed for purposes of this decision that the term refers only
to biological distinctions between male and female. Title VII prohibits
employment actions taken because of one’s sex, and the Court held that
if sex is a but-for cause of an action, the action has necessarily been
taken because of sex. The Court acknowledged the 1991 amendments to
Title VII that provided for limited relief based on the lower “motivating
factor” standard, but it determined that it need not address that
standard for purposes of this decision.
3. The Court then looked to the term “discriminate.” The Court defined
that term to mean intentionally treating an individual worse than others
who are similarly situated. Thus, the Court held, “an employer who
intentionally treats a person worse because of sex—such as by firing the
person for actions or attributes it would tolerate in an individual of
another sex—discriminates against the person in violation of Title VII.”
The Court rejected an argument that discrimination should be defined in
terms of the treatment of groups rather than individuals, noting that
Title VII specifically makes it illegal to discriminate against “any
individual.”
4. The Court derived the following rule from the plain meaning of the
statute: “An employer violates Title VII when it intentionally fires an
individual employee based in part on sex.” Thus, if changing the
employee’s sex would have yielded a different choice by the employer, a
statutory violation has occurred.
5. The Court held that it is impossible to discriminate against a person for
being homosexual or transgender without discriminating against that
individual based on sex. A man who is fired for his attraction to men has
been discriminated against because of his sex if he would not have been
fired had he been a woman attracted to men. Similarly, an employee
who was identified as male at birth and who is fired for identifying as
female has been discriminated against because of her sex if she would
not have been fired had she been identified as female at birth. The fact
that another factor besides the employee’s sex (i.e., sexual orientation
or gender identity) played a role in the firing does not preclude liability
for sex discrimination if sex remains a but-for cause of the action.
6. Given the law’s focus on the treatment of individuals, an employer
cannot escape liability by demonstrating that it treats males and females
comparably as groups (e.g, by demonstrating that it fires all homosexual
or transgender employees, whether male or female).
7. The Court acknowledged concerns that complying with Title VII’s
requirements as applied here might require some employers to violate
their religious convictions. The Court noted that Title VII itself exempts
religious organizations and that both the First Amendment and the
Religious Freedom Restoration Act may provide additional protection for
employers. However, because no claim of religious liberty was before
the Court, it did not attempt to determine how any of those protections
apply in cases like these.
8. Justice Alito, joined by Justice Thomas, dissented. He argued that the
majority had written protections into the law that were not
contemplated at the time Title VII was enacted. Justice Kavanaugh
wrote a separate dissenting opinion, arguing that the majority had
followed the literal meaning of the statute but not its ordinary meaning.
NONPRECEDENTIAL:
Pollitt v. Department of Veterans Affairs, No. 2019-1481 (Fed. Cir.
June 12, 2020) (MSPB Docket Nos. PH-0752-15-0452-I-3, PH-1221-14
0780-W-5): The court affirmed, per Rule 36, the administrative judge’s
decision affirming the petitioner’s removal and denying her request for
corrective action in her individual right of action appeal.
Oliva v. Department of Veterans Affairs, No. 2019-1990 (Fed. Cir.
June 15, 2020) (MSPB Docket No. DA-1221-17-0225-P-1): The court
affirmed the Board’s decision awarding the petitioner $3,500 in
emotional harm damages for whistleblower reprisal. The court rejected
the petitioner’s claim for lost relocation incentive pay, finding that it
was not a foreseeable consequence of the agency issuing the petitioner a
letter of reprimand. The court also found no error in the amount of the
Board’s award for emotional harm.
However, on the same day it issued
its decision in this matter, the Federal Circuit also issued a decision in
Oliva v. United States, No. 2019-2059, a breach of contract action filed
in the U.S. Court of Federal Claims. In that case, the Federal Circuit
held that the petitioner had stated claims for lost salary and relocation
incentive pay based on the agency’s alleged breach of a settlement
agreement, and it remanded the case to the Court of Federal Claims for
further proceedings.
Green-Doyle v. Department of Homeland Security, No. 2019-1955 (Fed.
Cir. June 16, 2020) (MSPB Docket No. DC-0432-18-0711-I-1): The court
dismissed the petitioner’s appeal for lack of jurisdiction, finding that
the appeal was a mixed case. The court found that the petitioner’s
removal was an action appealable to the Board and that she had alleged
reprisal for prior equal employment opportunity activity, which is a form
of discrimination provided in 5 U.S.C. § 7702(a)(1)(B). Because the
petitioner did not abandon her discrimination claim before the Federal
Circuit, the court determined that it lacked jurisdiction to review her
case.
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COURT DECISIONS
PRECEDENTIAL:
Appellant: Teresa Young
Appellee: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-2268
Issuance Date: June 11, 2020
MSPB Docket Number: AT-1221-19-0574-W-1
WHISTLEBLOWER PROTECTION ACT
- JURISDICTION, GENERALLY
- PROTECTED “DISCLOSURE”
The Internal Revenue Service removed the appellant before the end of her
probationary period. The appellant filed a complaint with the Office of Special
Counsel (OSC), alleging that her removal was the product of whistleblower
retaliation. After OSC closed the matter, the appellant filed an individual right
of action (IRA) appeal with the Board.
In her IRA appeal, the appellant identified a number of alleged disclosures,
ranging from attendance violations to a failure to accommodate her disabilities,
but those allegations lacked specificity. The administrative judge issued an
order explaining the appellant’s jurisdictional burden and instructing her to meet
that burden. She ordered the appellant to provide additional argument and
evidence about her alleged disclosures. The appellant did not respond.
The administrative judge dismissed the appeal, finding that the appellant failed
to present nonfrivolous allegations of a protected disclosure.
Holding: The appellant’s petition was properly before the court, and the
Board correctly dismissed the appellant’s IRA appeal for lack of
jurisdiction.
The court first addressed the Supreme Court’s decision in Perry v. Merit Systems
Protection Board, 137 S. Ct. 1975 (2017), which held that a Board dismissal of a
“mixed case” for lack of jurisdiction is appealable to a United States district
court. After describing the relevant statutory schemes, the court concluded that
Perry had no impact on IRA appeals, because IRA appeals never constitute
“mixed case” appeals. Therefore, the appellant’s IRA appeal was rightly before
the Federal Circuit, rather than a district court.
Turning to the merits, the court agreed with the administrative judge’s
conclusions. First, the appellant’s allegations of time and attendance violations
were conclusory in nature, without identifying particular instances of the
violations. Second, although the appellant asserted that the agency subjected her
to EEO reprisal, those allegations are covered by 5 U.S.C. § 2302(b)(9)(A)(ii)
and, therefore, fall outside the Board’s jurisdiction in an IRA appeal. Third, the
appellant’s alleged disclosures concerning the agency’s failure to accommodate
her disabilities did not reflect a “substantial and specific danger to public health
and safety.” Lastly, to the extent that the appellant identified disclosures that
were not exhausted before OSC, those matters are outside the court’s purview.
NONPRECEDENTIAL:
Cerulli v. Department of Defense, No. 2019-2022 (Fed. Cir. June 9, 2020)
(MSPB Docket No. SF-1221-18-0624-W-1): The court affirmed the
administrative judge’s decision, which denied the appellant’s request for
corrective action in an individual right of action appeal. Although the appellant
presented a prima facie case of reprisal concerning a single protected disclosure
and two personnel actions, the agency proved that it would have taken the same
personnel actions in the absence of the protected disclosure. The court was not
persuaded by the appellant’s various arguments regarding additional alleged
disclosures, the administrative judge’s credibility findings, or her analysis of the
agency’s burden.
Bussey v. Esper, No. 19-2116 (10th Cir. June 5, 2020) (MSPB Docket No. DE
0752-16-0165-I-1): The court upheld the district court’s decision, which
affirmed a decision by an administrative judge for the Board, sustaining the
appellant’s removal and denying claims of discrimination and whistleblower
reprisal. On review, the appellant raised new allegations of protected
disclosures but the court declined to consider them. The court also rejected the
appellant’s assertion that the administrative judge somehow erred by identifying
the disputed issues, allowing the parties to identify any others, then limiting the
scope of the appeal to those matters.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jimmiekaye Buffkin
Respondent: Department of Defense
Tribunal: U.S. Court of Appeals, Federal Circuit
Case Number: No. 2019-1531
Docket Number:
Issuance Date: May 1, 2020
ARBITRATION/COLLECTIVE BARGAINING-RELATED ISSUES
- INTERPRETATION OF CONTRACT
- DEPARTURE FROM PRECEDENT
TIMELINESS
- TIMELY FILING
- PREMATURITY
The appellant was employed by the agency as a teacher in a school for the
children of military personnel operated by the agency. The appellant is a
member of the Federal Education Association—Stateside Region (the “union”)
and covered by a collective bargaining agreement (CBA) between the union
and the agency. The agency removed the appellant for misconduct. She
elected to challenge her removal through the CBA’s negotiated grievance
process.
In relevant part, the CBA provided that to invoke arbitration, a party must
submit a written request for arbitration on the opposing party within 20 days
of the “last day of mediation.” The parties engaged in mediation in 2012, but
did not reach an agreement. In 2014, the union submitted a written request
for arbitration to the agency on the appellant’s behalf. Between 2014 and
2017, the appellant and the agency prepared for arbitration, including holding
another mediation session in 2015 and selecting an arbitrator in 2017. In
January 2018, the agency argued before the arbitrator, for the first time, that
the union’s request was untimely. After holding a hearing, the arbitrator
dismissed the case as untimely under the CBA because the union did not make
its request within 20 days of the end of the 2012 mediation.
The appellant filed an appeal with the Federal Circuit, challenging the
arbitrator’s dismissal of her case.
Holding: The arbitrator was bound by the Board’s substantive rules and the
decisions of the Federal Circuit, not those of the Federal Labor Relations
Authority (FLRA).
1. The arbitrator applied FLRA law because he concluded that he was
bound to do so by the CBA. The court disagreed.
2. The court explained that, under the Civil Service Reform Act’s scheme,
Congress intended for FLRA law to apply in a case that is appealable to
the FLRA, such as an unfair labor practice charge. In contrast, “matters
involving hiring, firing, failure to promote, and the like,” such as the
removal at issue here, are within the Board’s jurisdiction.
3.
The court determined that, under the long-standard Supreme Court
precedent set forth in Cornelius v. Nutt, 472 U.S. 648 (1985), and
consistent with Congress’ intent, arbitrators therefore must apply the
Board’s substantive rules and the decisions of the Federal Circuit when
reviewing otherwise appealable actions an individual has elected to
challenge through arbitration, rather than before the Board.
Holding: The union’s 2014 request for arbitration was not untimely;
however, remand is necessary for the arbitrator to determine in the first
instance whether the union’s premature request is now ripe for review.
1. The time limits at issue here were procedural and set by the CBA, not by
statute; the court reviewed the arbitrator’s timeliness decision de novo.
2. The arbitrator strictly construed the CBA to find that “the last day of
mediation,” which triggered the filing period, was the end of the 2012
mediation, not the 2015 mediation, because the CBA did not provide for
a second mediation.
3. The court disagreed, finding that, under the plain language of the CBA,
the union had 20 days after the last day of mediation, which occurred in
2015, to invoke arbitration. The past practices of the agency in over 60
contemporaneous grievances it handled and the conduct of the parties
during this process showed that the parties intended for the grievance
to remain open through the second mediation. Thus, the invocation of
arbitration in 2014 was not too late under the CBA.
4. The court next considered whether the request was premature. It
observed that, both in practice and as codified in its rules, the Federal
Circuit may consider prematurely filed notices of appeals to be ripe for
review upon the entry of a final judgment below. Further, it recognized
that forfeiture of rights due to a timeliness issue generally is disfavored
when the issue is not jurisdictional, but rather is a procedural defect,
and unless the defect is “clearly harmful to the resolution of the
merits.”
5. The court posited that the union’s 2014 arbitration request was not a
clearly harmful procedural defect; however, it determined that the
arbitrator should address the issue in the first instance before reaching
a finding.
The Federal Circuit vacated the arbitrator’s dismissal and remanded the case
to the arbitrator.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Sean C. Higgins
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-2352
Docket Numbers: AT-0752-17-0625-I-2, AT-1221-18-0019-W-2
Date Issued: April 17, 2020
Penalty
- Reasonableness
- Consideration of medical evidence and/or conditions
Hearings
- Witnesses
Mr. Higgins was employed at the Memphis Veterans Administration Medical
Center (VAMC). Throughout his employment, he reported unlawful activity at
the VAMC, and he had a reputation for being a whistleblower. He also had a
history of conflict with his supervisors and coworkers. In 2016, Mr. Higgins
was diagnosed with chronic post-traumatic stress disorder (PTSD). Because Mr.
Higgins continued to experience significant anxiety at work and ongoing
conflict, his psychologist concluded that he “cannot work, even with restrictions,
and this [status] is permanent.” In March 2017, the VAMC suspended Mr.
Higgins for using disrespectful language toward a supervisor during a December
2016 interaction with his immediate supervisor and a new second-level
supervisor. In June 2017, the VAMC removed Mr. Higgins based on charges of
disruptive behavior and use of profane language. These charges stemmed from 3
incidents: (1) in February 2017, Mr. Higgins was observed to have said to the
Interim Associate Medical Director “remember I know where you live” or words
to that effect; (2) during a March 2017 meeting in the equal employment
opportunity office, Mr. Higgins appeared very upset and made threatening and
profane statements that caused a witness to contact the VA police; (3) in April
2017, Mr. Higgins loudly confronted another VAMC employee who was
escorting a veteran’s family to the morgue after the employee greeted Mr.
Higgins by his first name.
Mr. Higgins appealed the suspension and removal decisions to the Board, the
appeals were joined, and a hearing was held. The administrative judge (AJ)
declined to order corrective action regarding the suspension. Regarding the
removal, the AJ found that the agency proved the disruptive behavior and use of
profane language charges and a nexus between the charges and the efficiency of
the service. He also determined that the agency considered and balanced the
relevant penalty factors, including mitigating factors such as Mr. Higgins’s
PTSD. The AJ determined that the mitigating factors “could not overcome the
extreme seriousness of the charges.” He therefore concluded that the penalty of
removal was within the range of reasonableness. The AJ determined that Mr.
Higgins established a prima facie whistleblower retaliation defense. He
concluded that the agency’s evidence was strong, Mr. Higgins failed to prove a
strong institutional motive to retaliate, and neither party had presented relevant
evidence of agency actions taken against similarly situated employees.
Therefore, he found that the agency would have removed him even in the
absence of his protected whistleblowing activity and affirmed the removal
action.
Mr. Higgins appealed to the court. He made the following assertions: (1) the
Board improperly discounted his medical evidence of PTSD in assessing the
reasonableness of the penalty; and (2) the AJ erred by excluding the testimony of
certain witnesses regarding an agency motive to retaliate against him due to his
whistleblower disclosures.
The court stated that Mr. Higgins did not separately argue that the AJ improperly
discounted his PTSD in analyzing the suspension, and it would only address that
issue regarding the removal action. The court noted that Mr. Higgins’s PTSD
was one of several mitigating factors considered by the both the agency and the
AJ, and the AJ properly balanced his PTSD with the severity of the misconduct
and other penalty factors. The court reiterated that the Board’s role in reviewing
an agency penalty is limited to assuring that the chosen penalty is within
tolerable limits of reasonableness, and the AJ did not err in concluding as much
here. The court considered Mr. Higgins’s contention that this case is similar to
Malloy v. U.S. Postal Service, 578 F.3d 1351 (Fed. Cir. 2009), and Bal v.
Department of the Navy, 728 F. App’x 923 (Fed. Cir. 2018), both of which were
remanded, but it found his arguments unpersuasive because the deciding official
and the AJ acknowledged Mr. Higgins’s PTSD and expressly considered it as a
mitigating factor in the penalty analysis.
The court also considered Mr. Higgins’s argument that the AJ abused his
discretion by excluding the testimony of two agency officials regarding an
institutional motive to retaliate against him, but it concluded that the AJ did not
abuse his discretion. Regarding the first witness, the court noted that Mr.
Higgins conceded that this witness “likely possessed no retaliatory motive,” but
he did not proffer this witness to testify about an institutional motive to retaliate,
nor did he proffer the testimony of other individuals who had allegedly spoken
with the witness who could have provided first-hand testimony regarding an
institutional motive to retaliate. Regarding the second witness, the court noted
that some of the proffered topics of testimony of the second witness overlapped
with the eleven additional witnesses that Mr. Higgins was permitted to call at the
hearing, and thus, the AJ did not abuse his discretion by excluding the second
witness’s testimony as irrelevant or redundant. The court found unpersuasive
Mr. Higgins’s remaining arguments and affirmed the Board’s decision.
NONPRECEDENTIAL COURT DECISIONS
Martin v Department of Homeland Security, No. 2019-1578 (Fed. Cir. Apr. 20,
2020) (MSPB Docket No. DE-0752-17-0341-I-2): The court affirmed the AJ’s
decision to sustain the appellant’s removal based on charges of conduct
unbecoming a Customs and Border Protection Officer, lack of candor, and
failure to follow a nondisclosure warning. These charges stemmed from an
investigation of Mr. Martin by the agency’s Office of Inspector General (OIG),
during which OIG recorded, with the consent of two employees, Mr. Martin’s
telephone conversations with them and made a video recording of him with one
of the employees in a hotel room, and a subsequent OIG interview. Regarding
the conduct unbecoming charge, the court considered Mr. Martin’s argument that
the AJ erred in considering surveillance evidence gathered during an OIG
investigation. The court found that it was appropriate to consider Mr. Martin’s
off-duty conduct, particularly because it involved another agency employee and
agency manager. The court also rejected Mr. Martin’s contention that the Fourth
Amendment’s exclusionary rule applied to bar certain recorded communications
because the U.S. Supreme Court has declined to extend the exclusionary rule
beyond criminal trials and the recordings in question were consented to by other
individuals. The court considered Mr. Martin’s apparent assertion of “a union
representative-bargaining unit member privilege”; it stated that it had not
recognized such a privilege but, even if it exists, it does not protect union
representatives from misconduct charges based on discussions with unit
members. Regarding the lack of candor charge, the court found that there was
substantial evidence that Mr. Martin was not credible in testifying that he does
not recall whether he had made certain sexually suggestive or racially
inappropriate comments towards employees because they were part of his
“everyday banter.” The court rejected Mr. Martin’s contention that the AJ did
not consider the fact that he was on medication (Bumetanide) that allegedly
could cause memory loss because the record only shows that trouble
concentrating, condition and memory loss could be possible side effects for
people with liver disease, and Mr. Martin admitted that he did not have this
condition. The court considered Mr. Martin’s remaining arguments, and it
concluded that they lacked merit.
Flynn v Department of the Army, No. 18-73009 (9th Cir. Apr. 21, 2020) (MSPB
Docket No. SF-1221-18-0406-W-1): The court concluded that the Board
properly dismissed for lack of jurisdiction Dr. Flynn’s claims related to her
filing an Equal Employment Opportunity Commission (EEOC) complaint and
reporting sexual harassment because such complaints fell within the province of
the EEOC and her claims related to the agency’s alleged lack of transparency
because she failed to allege nonfrivolous allegations of protected whistleblower
activity. The court further found that the Board properly dismissed Dr. Flynn’s
remaining claims related to the agency’s mismanagement and abuse of
government contracts as barred by res judicata because she could have raised
these claims in her prior Board appeal, which was adjudicated in a final decision
on the merits. The court rejected Dr. Flynn’s remaining arguments.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Noris Babb
Respondent: Robert Wilkie, Secretary of Veterans Affairs (DVA)
Tribunal: Supreme Court of the United States
Case Number: No. 18-882
Docket Number:
Issuance Date: April 6, 2020
AGE DISCRIMINATION
STATUTORY CONSTRUCTION
REMEDIES
The petitioner is employed by the Department of Veterans Affairs as a
Clinical Pharmacist. In 2014, she filed a complaint in district court alleging,
inter alia, that the agency subjected her to age discrimination in violation of
the Federal-sector provision of the Age Discrimination in Employment Act
(ADEA), codified at 29 U.S.C. § 633a(a). The district court granted the
agency’s motion for summary judgment on the petitioner’s ADEA claim, finding
that the appellant established a prima facie case of age discrimination, but
that the agency proffered legitimate nondiscriminatory reasons justifying its
actions and that no jury could reasonably conclude that those reasons were
pretextual.
The petitioner filed an appeal with the U.S. Court of Appeals for the
Eleventh Circuit, which affirmed the denial of her ADEA claim. The circuit
court explained that, despite its misgivings, it was bound by precedent to
apply the but-for causation standard and the McDonnell-Douglas framework to
the petitioner’s age discrimination claim.
Babb petitioned the Supreme Court of the United States, which granted a
writ of certiorari and heard the case to resolve a circuit split regarding the
interpretation of 29 U.S.C. § 633a(a) and rule on the appropriate causation
standard for Federal-sector ADEA claims.
Holding: In an 8-1 decision (written by J. Alito), the Supreme Court held
that the Federal-sector provision of the ADEA demands that personnel
actions be “untainted by any consideration of age.”
1. In relevant part, and absent some exceptions, 29 U.S.C. § 633a(a),
provides that “personnel actions” affecting employees or applicants for
employment aged 40 and older shall be “made free from any
discrimination based on age.”
a. After scrutinizing the syntax and plain meaning of the operative
phase, the Court concluded that the statutory language
unambiguously “demands that personnel actions be untainted by
any consideration of age.”
b. In other words, a plaintiff may establish a violation of section
633a(a) by showing that her age was a consideration in the
making of a personnel decision; she need not show that her age
was a but-for cause of the action.
2. The Court rejected the Government’s argument that the “any
consideration” standard was inconsistent with its holdings in Safeco,
Gross, and Nasser.1
a. The Court determined that Safeco was inapposite. Moreover,
unlike in Gross and Nasser, in which the Court determined that
the “based on” language mandated the application of a but-for
causation standard to prove a violation, “the object of [the but
for] causation [in section 633a(a)] is ‘discrimination,’ i.e.,
1
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013); Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167 (2009); Safeco Ins. Co. of America v.
Burr, 551 U.S. 47 (2007).
differential treatment, not the personnel action itself.”
3. The Court recognized that, in applying the expansive “any
consideration” standard, the Federal Government would be held to a
stricter standard than private employers under the ADEA. It concluded
that Congress acted deliberately to hold the Federal Government to this
higher standard.
Holding: To obtain “reinstatement, backpay, compensatory damages, or
other forms of relief related to the end result of the action,” an individual
must show that age was a but-for cause of the personnel action.
1. The Court recognized that, although but-for causation is not necessary
to prove a violation of section 633a(a), it is “important in determining
the appropriate remedy.”
2. Allowing an appellant to obtain relief related to the end result of the
action without showing that it was the but-for cause of the action would
unfairly place that individual in a more favorable position than she
would have been in absent the discrimination.
3. “[I]njunctive or other forward-looking relief” may be available to
individuals who show that age discrimination played a lesser part in the
decision.
4. The Court declined to reach a finding as to what the particular remedy
should be in this case, leaving it to the district court to decide in the
first instance.
The Court reversed the eleventh circuit’s decision and remanded the case for
further consideration.
Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg
joined, emphasizing that 29 U.S.C. § 633a(a) does not foreclose claims
arising from discriminatory processes or consequential damages related to
such actions.
Justice Thomas filed a dissenting opinion, arguing that the “default rule” of
but-for causation should apply because the “any consideration” standard of
liability set forth in the majority opinion was ambiguous and contrary to
“settled expectations of federal employers and employees.”
Petitioner: Leonard A. Sistek, Jr.
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: No. 2019-1168
Docket Number: DE-1221-18-0100-W-1
Issuance Date: April 8, 2020
WHISTLEBLOWER PROTECTION ACT
- PERSONNEL ACTIONS
STATUTORY CONSTRUCTION
The appellant, now retired, was appointed to a director role in the VA’s
Chief Business Office Purchased Care in Denver, Colorado. From 2011 to 2014,
the appellant disclosed concerns he had about various financial practices to
the Office of Inspector General (OIG) and the misappropriation of funds to
management officials. In 2014, the agency convened an Administrative
Investigation Board (AIB) to investigate separate allegations of misconduct in
the organization, including inappropriate relationships between managers and
subordinates. The AIB interviewed the appellant and later named him as a
subject of the investigation. In April and July 2014, the AIB issued reports
substantiating the allegations and concluding that management, including the
appellant, had failed to report properly the allegations of an inappropriate
relationship. Consistent with the AIB’s recommendation, the agency issued
him a letter of reprimand, which it later rescinded.
In this Individual Right of Action (IRA) appeal, the appellant alleged, inter
alia, that the agency investigated him in reprisal for his whistleblowing, which
led to the letter of reprimand. In an initial decision, the administrative judge
denied the appellant’s request for corrective action. In relevant part, the
administrative judge found that the alleged retaliatory investigation, in and of
itself, did not constitute a personnel action under the Whistleblower
Protection Act (WPA), as amended by the Whistleblower Protection
Enhancement Act of 2012 (WPEA). The administrative judge’s decision became
the final decision of the Board when neither party filed a petition for review.
The appellant filed a timely appeal with the U.S. Court of Appeals for the
Federal Circuit.
Holding: A retaliatory investigation, in and of itself, is not a qualifying
personnel action under the WPA, as amended by the WPEA.
1. The court reviewed de novo the Board's interpretation of the statute
and agreed that the plain meaning of the statute and the legislative
history supported the Board’s finding that an allegedly retaliatory
investigation, in and of itself, is not a qualifying personnel action. The
court recognized in particular that although the WPEA authorized
damages relating to retaliatory investigations when raised in
conjunction with a qualifying personnel action, Congress did not add
retaliatory investigations to the list of personnel actions under 5 U.S.C.
§ 2302(a)(2)(A).
2. The appellant argued that, notwithstanding the plain language of the
statute and the legislative history, the allegedly retaliatory investigation
in this case constituted a covered personnel action because it
constituted a significant change in working conditions under 5 U.S.C.
§ 2302(a)(2)(A)(xii) (the “catch-all” provision).
3. The court found that, while a retaliatory investigation could qualify as a
personnel action under the WPA's catch-all provision if it constituted a
significant change in working conditions, the investigation here did not
rise to the level of a "significant change." The court reasoned that the
catch-all provision could not be satisfied by conduct, as occurred here,
that would apply to almost any routine investigation that results in a
letter of reprimand.
Holding: The administrative judge erred when she did not consider the
allegedly retaliatory investigation in conjunction with the propriety of the
letter of reprimand; however, that error was harmless.
1.
The appellant further argued that the administrative judge erred by
failing to find that a retaliatory investigation was independently
actionable under the Board's decision in Russell v. Department of
Justice, 76 M.S.P.R. 317 (1997).
2. The court rejected the appellant’s argument. The court explained, with
approval, that Russell establishes that, in the WPA context, the Board
should consider evidence regarding the conduct of an agency
investigation when the investigation was so closely related to the
personnel action that it could have been a pretext for gathering
evidence to retaliate for whistleblowing.
3. Although the administrative judge did not properly consider the
retaliatory investigation as part of her evaluation of the letter of
reprimand consistent with Russell, the court found that such error was
harmless because there was no evidence that the official who initiated
the allegedly retaliatory investigation had knowledge of any of the
appellant's protected disclosures.
Accordingly, the court affirmed the Board’s denial of corrective action.
NONPRECEDENTIAL:
Demery v. Department of the Army, No. 2019-2282 (Apr. 9, 2020) (MSPB
Docket No. PH-1221-18-0105-W-1): The court affirmed the administrative
judge’s decision denying the appellant’s request for corrective action under
the WPA, as amended by the WPEA. It agreed that one of her two disclosures
was too vague to constitute a protected disclosure. As to the other, protected
disclosure, the court agreed with the administrative judge’s finding that the
deciding officials had no knowledge of the disclosure and the appellant made
her disclosure after the agency selected another candidate for the position.
The court also rejected the appellant’s challenges that the administrative
judge improperly denied her additional witnesses and her perceived
whistleblower claim.
Kammunkun v. Department of Defense, No. 2019-1374, (Apr. 6, 2020) (MSPB
Docket Nos. SF-0752-17-0667-I-1, SF-1221-17-0675-W-1): The court affirmed
the administrative judge’s denial of corrective action in the appellant’s IRA
appeal. However, the court vacated the administrative judge’s dismissal of
the appellant’s removal appeal based on his finding that the appellant’s filing
of a complaint with OSC and the election requirement of 5 C.F.R. § 1209.2(d)
prevented her from subsequently challenging her removal as a chapter 75
action before the Board. The Federal Circuit held that the Board’s election of
remedies regulation, like the statute from which it is derived, 5 U.S.C.
§ 7121(g)(3), does not apply to supervisors, such as the appellant. The court
remanded the appellant’s chapter 75 appeal for further proceedings.
Noffke v. Department of Defense, No. 2019-2183 (Apr. 8, 2020) (MSPB Docket
No. CH-0752-18-0540-I-1): The court affirmed the administrative judge’s
decision affirming the appellant’s removal based on charges of absence
without leave, falsification, and conduct unbecoming an employee. The court
discerned no error in the administrative judge’s finding that the appellant
received adequate notice of the charges and rejected the appellant’s
challenges to the sufficiency of the evidence supporting the charges.
Willingham v. Department of the Navy, No. 2019-2031 (Apr. 8, 2020) (MSPB
Docket No. DC-0752-18-0850-I-1): The court affirmed the administrative
judge’s decision affirming the appellant’s indefinite suspension based on the
suspension of his security clearance. In particular, the court agreed with the
administrative judge’s finding that the agency met the notice requirement
under 5 U.S.C. § 7513(b)(1). The court reasoned that, even though the notice
of proposed suspension was vague, the information contained in the evidence
file provided to the appellant with the proposal notice sufficiently apprised
him of the reason his access to classified information was suspended.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jeffrey F. Sayers
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-2195
MSPB Docket No. SF-0714-18-0067-I-1
Issuance Date: March 31, 2020
ADVERSE ACTIONS
- STANDARD OF PROOF
- PENALTY
STATUTORY INTERPRETATION
- RETROACTIVITY
On June 23, 2017, Congress enacted the Department of Veterans Affairs
Accountability and Whistleblower Protection Act, codified at 38 U.S.C.
§ 714, which provides the respondent with streamlined authority for
disciplining employees for misconduct or poor performance, and places
limitations on the Board’s review of those actions. After the statute’s
enactment, the respondent removed the petitioner, pursuant to section
714, from his position as Chief of Pharmacy Services of the Greater Los
Angeles Health Care System based on charges arising from misconduct
that occurred prior to the statute’s enactment.
The petitioner filed a Board appeal of his removal. Applying section
714, the administrative judge found that the respondent proved its
charges by substantial evidence and rejected the petitioner’s claims
that the respondent had violated his due process rights and committed
harmful procedural error during the removal. The administrative judge
found that the Board did not have the ability to mitigate or otherwise
review the reasonableness of the penalty and affirmed the removal.
The administrative judge’s decision became the final decision of the
Board when neither party filed a petition for review. The petitioner
timely filed an appeal with the U.S. Court of Appeals for the Federal
Circuit.
Holding: The Court held that: (1) 38 U.S.C. § 714 requires the Board
to review for substantial evidence the entirety of the respondent’s
removal decision, including the penalty; and (2) section 714 cannot
be applied retroactively.
(1) Although the petitioner did not argue before the administrative judge
that it was error to apply section 714 to his removal because the
underlying misconduct took place before the statute’s enactment,
the Court exercised its discretion to resolve the issue on appeal. The
Court observed that the retroactivity of section 714 raises a pure
issue of law that affects many of the respondent’s employees, the
Board lacks a quorum to decide the issue, and administrative judges
have interpreted the statute differently. Accordingly, the Court
concluded that the interests of justice are best served by reaching
the retroactivity issue.
(2) The Court rejected the petitioner’s argument that the respondent
improperly applied a substantial evidence standard to review the
sufficiency of the charges that formed the basis of his removal
because the statute leaves the proper standard to the respondent’s
discretion.
(3) Section 714 gives the Board the authority to review the respondent’s
entire “decision,” including the choice of penalty. Although section
714(d)(2)(B) prohibits the administrative judge from mitigating a
penalty supported by substantial evidence, the statute does not
prohibit the Board from reviewing the penalty to ensure it accords
with law. The Court rejected the respondent’s attempt to analogize
section 714 to 5 U.S.C. chapter 43, under which the Court has held
that the Board lacks mitigation authority, reasoning that chapter 43
only applies to performance-based removals, but section 714 applies
to both performance-based and adverse actions. Additionally,
chapter 43 actions provide more pre-determination due process than
section 714 and are remedial in nature, rather than punitive.
Accordingly, section 714 requires the Board to review for substantial
evidence the entirety of the respondent’s removal decision, including
the penalty, but the Board may not revise the respondent’s choice of
penalty.
(4) Section 714 cannot be applied to remove the petitioner without
giving the statute impermissible retroactive effect. The Court found
that section 714 is silent on retroactivity and examined whether the
application of the statute to the conduct at issue would result in a
retroactive effect. Section 714 operates to lower the evidentiary
burden in reviewing the removal decision and prevents the mitigation
of the penalty. When a statute changes standards of proof and
persuasion in a way favorable to the government, the statute affects
an employee’s substantive entitlement to relief. Moreover, the
Supreme Court has held that the loss of “reasonable reliance on the
continued availability of discretionary relief” akin to penalty
mitigation has an impermissible retroactive effect. Accordingly, the
deviations that section 714 makes from the prior standard applied
under 5 U.S.C. chapter 75 diminish the petitioner’s property right in
continued employment such that there is a presumption against
statutory retroactivity.
(5) Because section 714 cannot be applied to the petitioner’s removal
without impermissible retroactive effect, the Court vacated and
remanded the administrative judge’s decision upholding the removal.
NONPRECEDENTIAL:
Valenzuela v. Department of the Treasury, No. 2019-2069 (Fed. Cir.
Apr. 1, 2020) (MSPB Docket No. SF-0752-18-0805-I-1): The court
affirmed the administrative judge’s decision affirming the petitioner’s
removal because of his medical inability to perform the essential duties
of his position.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Helen Z. Ricci
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1626
MSPB Docket Number: DC-0731-18-0837-I-1
Issuance Date: March 19, 2020
JURISDICTION
- MISCELLANEOUS
MISCELLANEOUS AGENCY ACTIONS
- SUITABILITY
The Department of Homeland Security tentatively selected the petitioner for a
Criminal Investigator position subject to her successful completion of a
background investigation. The agency later rescinded its tentative offer of
employment based on derogatory information obtained during the background
investigation.
The petitioner filed a Board appeal alleging that the agency has subjected her
to a negative suitability determination. The administrative judge dismissed the
appeal for lack of jurisdiction. The administrative judge found that, although
the agency based its decision on suitability criteria, the action it took based on
those factors was nonselection for a specific vacant position rather than any
broader action such as debarring the petitioner from future agency
employment. The initial decision became the final decision of the Board when
neither party filed a petition for review. The petitioner filed a timely appeal
with the U.S. Court of Appeals for the Federal Circuit.
Holding: The Court held that the Board lacks jurisdiction over a
nonselection for a specific position and that a claim of a “de facto” or
“constructive” debarment will not bring a nonselection within the Board’s
jurisdiction.
1) The Board’s jurisdiction is limited to matters appealable under law,
rule, or regulation. The failure to select an individual for a specific
vacant position generally is not an appealable action.
2) The Board does have jurisdiction over suitability actions pursuant to
Office of Personnel Management (OPM) regulation at 5 C.F.R. part 731.
However, those regulations explicitly provide that the nonselection for a
specific position is not an appealable suitability action even when an
agency bases such nonselection on the same considerations that support
suitability determinations.
3) The court rejected the petitioner’s argument that her nonselection was
in effect a debarment, which is an appealable suitability action. The
court found that the nonselection here differed from a debarment
because it did not apply to any position other than the specific one for
which the petitioner had been tentatively selected. The court further
determined that OPM made clear in its revised suitability regulations
that the Board no longer had any authority to take jurisdiction over “de
facto” or “constructive” debarments.
4) Finally, the court rejected the petitioner’s argument that the Board’s
interpretation of “debarment” as excluding de facto debarment
constituted a substantive rule that was not made in accordance with the
Administrative Procedures Act (APA). The court found that this matter,
like most Board adjudications, was specifically excluded from APA
coverage.
NONPRECEDENTIAL:
Plasola v. Merit Systems Protection Board, No. 2019-2453 (Fed. Cir. March 17,
2020) (MSPB Docket No. SF-0841-19-0308-I-1): The court affirmed the
administrative judge’s initial decision dismissing the appeal for lack of
jurisdiction because OPM had not rendered a final decision concerning the
recalculation of the petitioner’s Federal Employees’ Retirement System
retirement annuity to provide a monthly benefit to his former spouse. The
court rejected the petitioner’s argument that OPM had refused or improperly
failed to issue a final decision.
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Case Report - February 14, 2020 | 02-14-2020 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_14_2020_1701557.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_14_2020_1701557.pdf | Case Report for February 14, 2020
COURT DECISIONS
PRECEDENTIAL:
Appellant: Jose Sanchez
Appellee: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-2171
Issuance Date: February 10, 2020
MSPB Docket Number: NY-1221-01-0225-C-2
SETTLEMENT
- BREACH
- INTERPRETATION
The appellant filed an individual right of action appeal in 2001, which the
parties resolved by entering into a settlement agreement. In pertinent part, that
settlement agreement provided that the agency would reassign the appellant from
where he had been working, in San Juan, to a clinic much further away, in
Ponce. The agreement further provided that the appellant would have a
compressed work schedule of 10 hour days, 4 days per week, including 3 hours
per workday for travel. The parties adhered to that agreement for 16 years.
In 2017, the agency unilaterally decided that the appellant’s schedule would
change, requiring that he be at the Ponce clinic from 7:30 a.m. to 4:00 p.m.,
Monday through Friday.
The appellant filed a petition for enforcement with the Board, arguing that the
agency was in breach of the settlement agreement. The administrative judge
denied the petition, finding that the agency permitted the compressed schedule
for a reasonable amount of time and that the agreement did not bar the change in
schedule.
Holding: The Board correctly determined that 16 years of adherence was
reasonable, and the appellant failed to prove a breach of the settlement
agreement.
When a contract contains no time limit for the agreed upon terms, those terms
will ordinarily control for “a reasonable time.” To determine what amounts to a
reasonable time, it is appropriate to consider the underlying circumstances.
Here, the parties agreed to the reassignment to alleviate any hostilities in San
Juan that resulted from the appellant’s whistleblowing. After the passage of 16
years, the court found it reasonable to conclude that those hostilities had
dissipated, and the record contained no evidence to the contrary. The court
further noted that it was highly unusual for the agency to agree to compensate
the appellant for his lengthy commuting time as part of the settlement
agreement, thereby suggesting that the parties did not intend for the arrangement
to remain in place indefinitely.
To the extent that the appellant argued that the administrative judge erroneously
closed the record and denied him a hearing, the court was not persuaded because
the appellant merely sought evidence pertaining to the agency’s “claimed needs
for efficiency,” which was irrelevant in this particular case.
Appellant: Tiffany Potter
Appellee: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2019-1541
Docket Number: DE-1221-18-0165-W-1
Issuance Date: February 13, 2020
COURT REVIEW
- MISCELLANEOUS
The appellant filed an individual right of action appeal with the Board, alleging
that she was subjected to retaliation for engaging in protected whistleblowing
activities. In particular, the appellant alleged that she made four protected
disclosures and cooperated with the Office of Inspector General (OIG), resulting
in four retaliatory personnel actions.
The administrative judge found that the appellant proved that her disclosures
were protected, but failed to prove that her cooperation with OIG was protected.
He then determined that the appellant proved that these disclosures were a
contributing factor in only the first of the alleged retaliatory personnel actions,
i.e. a change in her title from Chief Nurse Manager to Nurse Manager. Finally,
the administrative judge concluded that the appellant was not entitled to
corrective action for that remaining personnel action because the agency met its
burden of proving that it would have taken the same action in the absence of the
appellant’s whistleblowing.
Holding: The administrative judge incorrectly found that the appellant
failed to prove that her second disclosure was a contributing factor in a
subsequent personnel action. Because the error necessitated additional
findings of fact, remand was required.
Before the court, the parties agreed that a relevant party had knowledge of the
appellant’s July 2014 disclosure prior to her November 2015 nonselection, and
the administrative judge erred in finding otherwise. The agency further
conceded that the appellant likely met her corresponding burden of presenting a
prima facie case of whistleblower reprisal.
The agency argued that the aforementioned error did not necessitate remand
because the court could reach findings in the first instance concerning the
agency’s burden of proving that it would have taken the same action in the
absence of the appellant’s whistleblowing. The court disagreed. In doing so,
the court recognized a distinction between cases in which the central question is
one of law versus one of fact. Where, as here, the central question involves one
of fact—whether the agency would have taken the same November 2015
nonselection action in the absence of the appellant’s July 2014 disclosure—the
administrative judge must conduct that fact finding in the first instance.
To the extent that the appellant presented arguments concerning the other
alleged retaliatory personnel actions or any other matter, the court was not
persuaded.
NONPRECEDENTIAL:
Lehr v. Merit Systems Protection Board, No. 2019-1677 (Fed. Cir. Feb. 7, 2020)
(MSPB Docket No. CH-1221-19-0002-W-1): The court affirmed the
administrative judge’s decision, which dismissed the appellant’s individual right
of action appeal for lack of jurisdiction. Although the appellant responded to the
administrative judge’s jurisdictional order, that response provided insufficient
information about the nature of any disclosures she may have exhausted before
the Office of Special Counsel. To the extent that the appellant argued that she
had additional information to meet her jurisdictional burden, the court found no
basis for excusing the appellant’s failure to present such information below.
Rutila v. Department of Transportation, No. 2019-1712 (Fed. Cir. Feb. 10, 2020)
(MSPB Docket No. DC-1221-18-0474-W-1): The court affirmed the
administrative judge’s decision, which denied the appellant’s request for
corrective action in an individual right of action appeal. The administrative
judge found that the appellant failed to prove that he engaged in protected
whistleblowing activity. She further found that, even if the appellant had met
that burden, the agency proved that it would have taken the same removal action
in the absence of that activity. Although the appellant argued that the
administrative judge erred by relying on 5 U.S.C. § 2302(b)(9)(A)(i) rather than
section 2302(b)(8), the court found it unnecessary to rule on this issue. The
court noted that the Board has jurisdiction over individual right of action appeals
under both sections and that the appellant did not show how he was prejudiced
by the administrative judge’s reliance on § 2302(b)(9). The court also found it
unnecessary to rule on whether the appellant’s activity was protected. Instead,
the court agreed with the administrative judge’s alternative conclusion—that the
agency proved by clear and convincing evidence that it would have removed the
appellant in the absence of the alleged protected activity. The court found the
appellant’s remaining arguments unavailing, including ones concerning
additional alleged disclosures, discovery, and the right to a hearing.
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Case Report - December 20, 2019 | 12-20-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_20_2019_1685761.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_20_2019_1685761.pdf | Case Report for December 20, 2019
COURT DECISIONS
PRECEDENTIAL:
Appellant: Johnnetta Punch
Appellee: Jim Bridinstine
Tribunal: U.S. Court of Appeals for the Fifth Circuit
Case Number: 18-40580
Issuance Date: December 17, 2019
COURT REVIEW
- MISCELLANEOUS
DISCRIMINATION
- MIXED CASE PROCEDURES
The appellant filed a mixed case Board appeal challenging her removal and
alleging discrimination and retaliation for prior equal employment opportunity
(EEO) activity. The Board affirmed the removal and denied the appellant’s
discrimination claims. The appellant filed an appeal of the Board’s decision at
the U.S. Court of Appeals for the Federal Circuit; in doing so, she certified that
she had not and would not claim discrimination in her case.
Shortly after filing her Board appeal, the appellant also filed an EEO complaint
raising a number of alleged acts of discrimination, including her proposed
removal. Her employing agency, the National Aeronautics & Space
Administration (NASA), investigated several other allegations but declined to
investigate the proposed removal because the appellant had already filed a
Board appeal challenging her removal. NASA investigated the appellant’s other
claims and found no discrimination. The appellant then appealed that finding
to the Equal Employment Opportunity Commission (EEOC). When EEOC failed
to issue a final decision within 180 days, the appellant filed suit in U.S. district
court.
After the appellant filed her action in district court, NASA moved to dismiss her
appeal before the Federal Circuit. In response, the appellant indicated that
she had actually filed an EEOC appeal of the Board’s decision before she filed
her Federal Circuit appeal. However, the parties later stipulated that no such
EEOC appeal was ever formally filed. Nevertheless, the appellant still had both
a Federal Circuit appeal challenging her removal in which she said she was not
pursuing a discrimination claim and an action in district court in which she was
alleging discrimination in connection with matters that preceded her removal.
The Federal Circuit determined that the appellant had not really waived her
discrimination claims and that it therefore lacked jurisdiction over her appeal.
The Federal Circuit transferred the appeal to the district court, where it was
consolidated with her discrimination suit.
The district court dismissed the consolidated case in its entirety. The court
found that the appellant’s Federal Circuit appeal and district court complaint
related to the same matter and because the Federal Circuit appeal was filed
first, the district court complaint had to be dismissed as a matter of law. The
court further found that the claims raised in the Federal Circuit appeal were
untimely.
Holding:
The appellant’s attempts to simultaneously pursue her claims through
multiple procedural paths at the same time require dismissal of her appeals.
1) At the beginning of this process, the appellant had the option to file
either a Board appeal or an EEO complaint, but not both. Whichever
option she pursued first precluded pursuing the other. Here, the
appellant filed her Board appeal first. However, she subsequently tried
to pursue an EEO complaint on the same matter.
2) The court rejected the appellant’s argument that NASA was responsible
for her pursuit of both procedures at the same time because it accepted
at least a portion of her EEO complaint for investigation. Because the
appellant had already filed a Board appeal on the same matter, her EEO
complaint was a legal nullity.
3) After MSPB affirmed her removal, the appellant had the option to pursue
only the Civil Service Reform Act (CSRA) portion of her case before the
Federal Circuit or to continue pursuing a mixed case before the EEOC or
in district court. Again, the appellant had to choose one of those
options to pursue to the exclusion of the others. Here, the appellant
attempted to pursue all three options.
4) The court determined that the appellant timely appealed the Board’s
decision to the EEOC, despite the parties’ later stipulation that the EEOC
appeal was a nullity. Because that appeal was pending before the EEOC
at the time the appellant filed her Federal Circuit appeal, there was no
“judicially reviewable action” for the Federal Circuit to review.
5) Although the appellant certified to the Federal Circuit that she had not
and would not pursue any discrimination claims in her case, she had
already pursued such claims and continued to do so before both NASA
and the EEOC. In the absence of a valid waiver of her discrimination
claims, the appellant could not pursue her appeal before the Federal
Circuit.
6) By the time the appellant filed her Federal Circuit appeal, the deadline
to pursue her mixed case before the EEOC or in district court had
passed. The court rejected the appellant’s argument that the
deadline(s) should be equitably tolled.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Clarence McGuffin
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2433
Docket Number: DC-4324-14-0938-B-1
Issuance Date: November 7, 2019
USERRA
The agency removed Mr. McGuffin, a preference-eligible veteran, from his
position as an attorney advisor during his 1-year probationary period due to
poor performance. Following his termination, Mr. McGuffin sought corrective
action before the Board, alleging that the agency had denied him a benefit of
his employment because of his military status when it terminated him within
the 1-year probationary period applicable to preference-eligible veterans, in
violation of the Uniformed Services Employment and Reemployment Rights Act
(USERRA).
In an initial decision, which became the Board’s final decision after neither
party filed a petition for review, the administrative judge denied Mr.
McGuffin’s request for corrective action, finding that the agency had not
violated USERRA. In particular, the administrative judge concluded that the
agency properly found that Mr. McGuffin’s performance during his probationary
period was unacceptable and acted promptly to terminate his employment
before he acquired employee status with Board appeal rights. She further
credited the testimony of Mr. McGuffin’s supervisors that they would have
terminated any employee who was performing as poorly as Mr. McGuffin was
after almost 1 year of training, even if their trial periods extended for an
additional year. Thus, she concluded that the agency demonstrated by
preponderant evidence that it would have taken the same action against Mr.
McGuffin without regard to his military status.
On appeal before the Court, the petitioner challenged the Board’s decision.
Holding: The Court reversed the Board’s decision that the agency did not
violate USERRA and remanded the case to the Board to determine an
appropriate remedy.
1. The agency’s decision to terminate Mr. McGuffin when it did—4 days
before he completed his 1-year probationary period—was
substantially motivated by his preference-eligible veteran status.
a. The proper inquiry on appeal is not whether Mr. McGuffin’s
preference-eligible veteran status played a substantial or
motivating factor in his termination, but also whether it was a
substantial or motivating factor in the agency’s timing of his
termination.
b. The evidence showed that after becoming aware of Mr.
McGuffin’s preference-eligible veteran status, the agency
decided that he must be terminated before his 1-year mark to
prevent him from obtaining CSRA benefits.
c. The 1-year timeline for obtaining the procedural safeguards
afforded to employees under the Civil Service Reform Act of
1978 is intertwined with a veteran’s military service.
d. If employer’s could discriminate against veterans based on this
1-year timeline, then what Congress created as a benefit to
veterans for their service—a shortened timeframe for obtaining
CSRA protection—could be turned against the veteran by
employers who wish to avoid the inconvenience and
administrative burden of defending themselves should the
veteran obtain and assert such procedural safeguards.
2. Substantial evidence did not support a finding that the agency
terminated Mr. McGuffin for a valid reason.
a. The documentary evidence did not support the Board’s finding
that Mr. McGuffin was performing poorly. Rather, it reflected
that the agency improperly held Mr. McGuffin to a higher
standard by applying the performance element of producing
his fair share of work, which under the agency’s performance
policy, only applied to attorney advisors after they had
completed their first year of employment.
b. The record reflected that Mr. McGuffin’s supervisors delayed
providing him with adequate training and disregarded the
positive results of such training as well as ignored positive
feedback from various administrative law judges concerning
the quality of Mr. McGuffin’s work.
c. In sum, the evidence demonstrated that Mr. McGuffin was not
performing poorly, let alone so poorly as to justify the
agency’s rush to remove him 4 days before the end of his
probationary period. Thus, the evidence pointed to only one
reasonable motive—that the agency rushed to terminate Mr.
McGuffin solely to prevent him from obtaining CSRA benefits.
NONPRECEDENTIAL:
Ferguson v. U.S. Postal Service, No. 2019-1403 (Nov. 7, 2019) (MSPB Docket
No. CH-0752-18-0164-I-1): The Court affirmed the Board’s decision sustaining
the appellant’s removal from his position as a postmaster based on a charge of
inappropriate conduct. The court rejected the petitioner’s arguments that the
administrative judge erred in her credibility determinations, erred in failing to
consider every one of factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981), and made various other alleged procedural
errors.
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Case Report - October 4, 2019 | 10-04-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_4_2019_1662349.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_4_2019_1662349.pdf | Case Report for October 4, 2019
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Michael Montelongo
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-2095
MSPB Docket Number: DE-0842-18-0087-I-1
Issuance Date: October 2, 2019
RETIREMENT
- DEFINITIONS
- SERVICE CREDIT
The petitioner attended the U.S. Military Academy from 1973 to 1977. He then
served in the Army from 1977 to 1996, when he retired from the military. In
2001, he received a civilian appointment as a Presidential appointee in the
Department of the Air Force. He served in that civilian appointment for a little
less than 4 years. During his civilian service, a human resources official advised
him that he could pay a deposit for the time he spent as a cadet at the
academy in order for that time to be credited toward an eventual Federal
Employees’ Retirement System (FERS) retirement annuity. The appellant made
the deposit.
However, when the petitioner applied for an annuity, OPM found that he was
ineligible because only his time as a Presidential appointee constituted
creditable civilian service and he therefore lacked the required 5 years of such
service. He filed a Board appeal challenging his determination.
The administrative judge affirmed OPM’s decision, finding that the appellant’s
service as a cadet was military service and therefore could not be used to
satisfy the requirement that he have at least 5 years of creditable civilian
service. The appellant did not file a petition for review with the Board, but he
did timely file an appeal at the Federal Circuit.
Holding: The Court held that although cadet service is creditable service, it
is military service that cannot be used to satisfy the requirement that an
employee complete at least 5 years of creditable civilian service in order to
be eligible for a FERS retirement annuity.
1) To be eligible for a FERS annuity under 5 U.S.C. § 8410, an employee
“must complete at least 5 years of civilian service creditable under
section 8411.” Thus, the 5 years of service must qualify as both civilian
service and creditable service.
2) West Point cadet time is specifically defined in 5 U.S.C. § 8401(31) as
military service. Because the statute defines military service and
civilian service as separate categories, cadet time cannot qualify as
civilian service.
3) The petitioner argued that the court should treat his cadet time as
distinct from “pure” military service. However, the court found no basis
in the statute for such a distinction.
4) In support of his position, the petitioner cited both the advice he
received regarding the deposit and guidance contained in an OPM
handbook. However, the court held that neither government advice nor
an OPM handbook could override the clear language of the statute that
he needed at least 5 years of creditable civilian service in order to be
eligible for a FERS annuity.
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Case Report - August 30, 2019 | 08-30-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_30_2019_1651016.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_30_2019_1651016.pdf | Case Report for August 30, 2019
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jason Mount
Respondent: U.S. Department of Homeland Security
Tribunal: U.S. Court of Appeals for the First Circuit
Case Number: 18-1762
MSPB Docket Number: PH-1221-17-0243-W-2
Issuance Date: August 29, 2019
Whistleblower Reprisal
- Perceived whistleblower claim
At the direction of his supervisor, the petitioner delivered an email to
one of his colleagues that his supervisor thought could be useful to the
colleague in pursuing his whistleblower case against agency officials.
The colleague used the email during the deposition of one of the
accused agency officials in his whistleblower case. The agency
subsequently investigated how the colleague had obtained the email,
including interviewing the petitioner. During the investigation, the
petitioner was not selected for promotion twice and received a
performance appraisal that was lower than those he had received in the
past. The petitioner filed a complaint with the Office of Special
Counsel (OSC) alleging that agency officials retaliated against him for
providing information to the colleague that was used in the colleague’s
whistleblower complaint against the agency. OSC did not take action on
the complaint, and the petitioner filed a request for corrective action in
an individual right of action appeal to the Board.
In an initial decision, the administrative judge denied the petitioner’s
request for corrective action because he found that the petitioner’s
conduct had been too miniscule to constitute actual assistance
protected under 5 U.S.C. § 2302(b)(9)(B) and that the petitioner had not
exhausted before OSC his claim that agency officials perceived him to
have provided actual assistance to his colleague. Neither party
petitioned the Board to review the administrative judge’s initial
decision, and it became the final decision of the Board. The petitioner
timely petitioned the First Circuit for review.
Holding: The court held that it is unnecessary for an employee to
correctly label the cause of action or legal theory behind his claim
for it to be deemed exhausted before OSC, as long as he provides a
“sufficient [factual] basis” to pursue an investigation regarding that
particular claim. The court concluded that the petitioner exhausted
his perceived assistance claim before OSC, granted his petition for
review, and remanded the case for further proceedings regarding this
claim.
(1) The court declined to address the petitioner’s claim that the
administrative judge erred by admitting certain evidence, on which
the administrative judge relied to find that the petitioner did not
actually assist his colleague in his whistleblower complaint, because
the petitioner failed to raise objections to the evidence before the
administrative judge.
(2) As to the petitioner’s claim that he was perceived to have assisted
his colleague in his whistleblower complaint, the court observed that
the Board has not adopted a perceived activity analysis in cases
brought under 5 U.S.C. § 2302(b)(9)(B), but presumed that such an
analysis is applicable for the limited purpose of resolving the instant
appeal, as the Board has noted in prior cases that such an analysis is
cognizable, and neither party contested this issue.
(3) The court found that the exhaustion language set forth in the
Whistleblower Protection Act, as amended, does not require an
employee to articulate the legal theory behind his claim to OSC, nor
does the legislative history of the statute suggest that Congress
intended such a legally technical exhaustion requirement.
(4) The court concluded that, while the petitioner’s OSC complaint did
not expressly state that his supervisors perceived him to have
engaged in protected activity, he alleged to OSC that agency officials
appeared to believe that he provided information to his colleague to
help him in his whistleblower case. The court found such allegations
amount to a claim of retaliation for perceived protected activity.
Accordingly, the petitioner’s OSC complaint provided a sufficient
factual basis to put OSC on notice of a potential perceived assistance
claim and satisfied the exhaustion requirement.
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Case Report - July 26 2019 | 07-26-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_26_2019_1640132.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_26_2019_1640132.pdf | Case Report for July 26, 2019
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Robert Smith
Respondent: General Services Administration
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-1604
Docket Number: AT-0752-17-0470-I-1
Date Issued: July 19, 2019
Adverse Action Charges
- Failure to comply with IT policy
- Failure to follow instructions
Whistleblower Reprisal
- Clear and convincing analysis
Penalty
The appellant filed an appeal challenging his removal and asserting that
the agency retaliated against him for his disclosures of gross mismanagement
and waste. In the initial decision, the administrative judge upheld the
appellant’s removal based on charges of failure to comply with IT policy, failure
to comply with instructions, and frequent disrespectful conduct towards his
supervisors, charges he found had an “obvious nexus” to the efficiency of the
service. The administrative judge also found that the appellant had shown that
he was a whistleblower based on a December 2015 disclosure in a report to
upper management and, based on the knowledge-timing test, that his disclosure
contributed to the decision to remove him. However, the administrative judge
found “based on the strength of the agency’s evidence” that the agency proved
by clear and convincing evidence that it would have removed him absent any
disclosure. Notably, the administrative judge found that “the defiantly
disrespectful misconduct described... alone would have justified his removal,
especially in light of his previous suspension for similar misconduct.” The
appellant sought judicial review.
The Court found that the administrative judge erred in finding the
appellant’s misconduct alone justified the agency’s action because the merits of
a whistleblower defense do not turn on the strength of the agency’s evidence
alone. The proper inquiry, it stated, is whether the agency would have acted in
the same way in the absence of the whistleblowing.
The Court noted that the
administrative judge did not analyze the second and third factors described in
Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), in the
clear and convincing analysis. In particular, the Court noted the following
evidence, among other evidence, which relates to these factors, including the
appellant’s large number of disclosures of management failures, some of which
embarrassed agency managers, the communication restrictions and other actions
imposed against him by his managers, and his punishment for working over a
weekend when the record did not show whether another employee working on
that same weekend was punished. The Court thus vacated the administrative
judge’s whistleblower analysis and remanded for application of the proper
standard and consideration of relevant evidence.
The Court also reviewed the three sustained charges on which the
appellant’s removal was based. With respect to the failure to comply with IT
policy charge, the Court noted that the policy required users to remove PIV
cards from their laptops, the appellant was trained in the IT policy, and he did
not remove his PIV card. However, the Court concluded that the record lacked
substantial evidence to show that this policy was applicable to the appellant,
who was a quadriplegic and could not physically remove a PIV card. Therefore,
the Court reversed the administrative judge’s decision to sustain this charge.
The Court also addressed one of the specifications of the failure to follow
instructions charge, involving the appellant’s decision to send a short email on a
weekend after his supervisor instructed him not to work on a weekend. The
Court noted that the administrative judge failed to discuss the propriety of the no
weekend work instruction, particularly since the agency introduced no formal
policy forbidding weekend work, no evidence that other employees had been
instructed not to work on the weekend, and no supporting rationale for imposing
the ban on the appellant alone. The Court therefore reversed the administrative
judge’s decision to sustain this specification. The Court affirmed the
administrative judge’s decision to sustain the remaining specifications of this
charge, but it remanded for a determination of whether the charge as a whole
could be sustained. The Court also affirmed the administrative judge’s decision
to sustain the disrespectful conduct charge.
Finally, in light of the charge and specification that were not sustained
and the decision to vacate the whistleblower analysis, the Court also vacated the
penalty decision and remanded to reassess the appropriate penalty, which should
include consideration of the mitigating circumstances cited by the appellant and
the propriety of the breadth of his supervisors’ communication bans.
NONPRECEDENTIAL:
Winterton v. Merit Systems Protection Board, No. 2018-1774 (Fed. Cir.
July 19, 2019) (MSPB Docket No. SF-0752-18-0030-I-1): The court affirmed,
per rule 36 judgment, the administrative judge’s initial decision, which
dismissed the appellant’s involuntary retirement appeal for lack of jurisdiction.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Lance Robinson
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2143
Docket Number: DE-0752-16-0351-I-1
Issuance Date: May 6, 2019
Adverse Action Charge
-Negligent performance of job duties
-failure to ensure accuracy of information provided
-whistleblower reprisal
Due Process
Whistleblower Reprisal
The agency removed the petitioner from his position as Associate Director
of the Phoenix Veterans Administration Health Care System (Phoenix VA) based
on three charges of negligent performance of duties, failure to ensure
accuracy of information provided, and retaliation against an employee for
making protected disclosures. As Associate Director, the petitioner was
responsible for, among other things, supervising the Health Administration
Services (HAS), which handles the scheduling of patient appointments at the
Phoenix VA. Charges 1 and 2 relate to revelations made public in 2014 that
veterans had died while on secret waitlists at the Phoenix VA and a subsequent
Office of the Inspector General (OIG) report, which suggested that HAS
supervisors should have known that approximately 1,700 veterans had been on
the New Enrollee Appointment Request waitlist for longer than 30 days without
having seen a physician.
In an initial decision, which became the Board’s final decision after neither
party filed a petition for review, the administrative judge found that the
agency proved charges 1 and 2, the appellant failed to prove his affirmative
defenses of whistleblower reprisal and due process violations, and the penalty
removal was reasonable.
On appeal before the Court, the petitioner challenged the Board’s decision
to uphold his removal and to deny his affirmative defenses of whistleblower
reprisal and due process violations.
Holding: The Court affirmed the Board’s decision to sustain the petitioner’s
removal.
1. The Court affirmed the Board’s finding that the agency proved its
charge of Negligent Performance of Duties.
a. Substantial evidence supported a finding that the petitioner
knew or should have known that his subordinates consistently
failed to use scheduling practices required by VA policy.
b. The petitioner was aware of the agency’s Scheduling Directive
and had actual knowledge of the Phoenix VA’s scheduling
problems based on an audit report and emails he received,
which detailed occurrences at the Phoenix VA where
scheduling policies were not properly followed.
c. Regardless of whether the petitioner had actual knowledge
that employees failed to use required scheduling practices, he
had an affirmative duty to investigate in light of the audit
report, emails he received, and the OIG report. A prudent
supervisor with 27 years of the experience at the VA would
have sought an investigation into the incidents discussed in the
emails he received and the general findings of the audit and
OIG reports.
2. The Court affirmed the Board’s finding that the agency proved its
charge of Failure to Ensure Accuracy of Information Provided.
a. Substantial evidence supported a finding that the petitioner
neglected his duty to ensure the accuracy of information
contained in flowcharts, which showed the process from
appointment creation to outcome metrics, submitted to the
Veterans Integrated Service Network (VISN) 18, the regional
entity that oversees the Phoenix VA.
b. Substantial evidence supported a finding that the petitioner
neglected his duty to ensure the accuracy of information
submitted to VISN 18 in an Outpatient Scheduling Processes
and Procedures Checklist.
3. Substantial evidence supported the Board’s conclusion that removal
was reasonable.
a. The Board did not err in its conclusion that removal was
reasonable even though it did not sustain charge 3.
b. Substantial evidence supported the Board’s finding that the
petitioner failed to show disparate penalty because other
similarly situated employees charged with similar misconduct
were removed or retired/resigned before the agency could
remove them, and the petitioner failed to identify particular
individuals in upper management at the VA accused of similar
misconduct who were not removed.
4. Substantial evidence supported the Board’s conclusion that the VA
met its burden of proving by clear and convincing evidence that it
would have removed the petitioner absent his protected disclosures.
a. The evidence strongly supported the agency’s decision to
remove the petitioner. Thus, this factor favored the VA.
b. Although the administrative judge found that the deciding
official did not have a motivate to retaliate because the
petitioner’s disclosures did not target him personally, the
administrative judge failed to consider whether the deciding
official nonetheless had a “professional retaliatory motive.”
i. The appellant’s disclosures implicated the capabilities,
performance, and veracity of VA managers and
employees and implied that the VA had deceived a
Senate Committee. The Court has held that those
responsible for the agency’s performance overall may be
motivated to retaliate even if they are not directly
implicated by the disclosures as the criticism reflects on
them in their capacities as managers and employees.
ii. Nonetheless, the Board’s conclusion that the deciding
official lacked a motive to retaliate was not
unreasonable based on testimony of the deciding
official, which the administrative judge found credible.
Thus, the Court concluded that this factor slightly
favored the VA.
c. The record contained mixed evidence concerning whether the
VA treated the appellant the same as similarly situated
nonwhistleblowers. The VA removed similarly situated
individuals, including the petitioner’s direct supervisor, the
Director of the Phoenix VA, as well as the petitioner’s direct
subordinate, the Chief of HAS. The administrative judge
properly weighed this evidence against the petitioner’s
evidence that individuals at other VA centers were not
removed despite their scheduling improprieties. Thus, the
administrative judge’s conclusion that this factor was neutral
was not unreasonable.
5. Substantial evidence supported the Board’s conclusion that the
petitioner failed to prove a violation of his due process rights.
a. The Court found no error in the Board’s determination that the
petitioner failed to show that his removal was predetermined
based on public statements made by the deciding official to the
New York Times.
i. According to the New York Times article, the deciding
official stated that he was disappointed that it took so
long to remove the petitioner, who was presumably
responsible, along with others, for a national scandal
over secret waiting lists and unnecessary deaths.
ii. The Court found “greatly troublesome” the statements
credited to the deciding official in the New York times
article, which occurred 1 day before the petitioner
received his proposed removal. As the Court described,
the New York Times article painted a picture showing
the petitioner to be responsible, in part, for the wait-list
scandal and that the deciding official had made up his
mind about the petitioner’s guilt before issuing the
March 16, 2016 proposed removal.
iii. Although the deciding official’s public statements appear
on their face to violate the petitioner’s due process
rights, the administrative judge credited the deciding
official’s testimony that he was misquoted by the
article’s author as well as his testimony that he did not
predetermine the outcome of the petitioner’s case and
he gave the evidence a lot of deliberation. The Court
declined to disturb the administrative judge’s finding
that the deciding official’s testimony was credible.
b. The Court found no error in the Board’s determination that the
petitioner failed to show that his removal was predetermined
due to political pressure and public assurances that those
responsible at the VA would be removed.
c. The Court found no error in the Board’s determination that it
was not a violation of the petitioner’s due process rights that
the same individual proposed and decided his removal.
d. The Court found no error in the Board’s conclusion that the
deciding official fully considered the petitioner’s reply to the
proposal notice to the extent the record showed that the
petitioner’s response persuaded the deciding official not to
sustain one of the agency’s specifications in support of charge
3.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: AFGE LOCAL 3599
Respondent: Equal Employment Opportunity Commission
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-1888
Arbitrator’s Decision No.: 170711-0278
Issuance Date: March 29, 2019
Attorney Fees
- Authority to Award
The agency removed an employee and his union, the petitioner here,
took his removal case to arbitration. After a hearing, the arbitrator
reversed the employee’s removal and ordered his reinstatement. The
arbitrator also denied the union’s request that the agency pay the
arbitration costs and attorney fees. Both parties requested
reconsideration of the arbitrator’s decision, which the arbitrator
denied.
On appeal to the Federal Circuit, the union challenged the arbitrator’s
failure to award attorney fees for the arbitration proceeding. The
agency did not seek review of the arbitrator’s decision to reverse the
employee’s removal.
Holding: The court held that the arbitrator erred by failing to provide an
explanation for his decision not to award fees. The court therefore vacated
the arbitrator’s decision as to the fees issue and remanded the case for the
arbitrator to reconsider the issue of fees and to include a statement of
reasons for whatever decision he reaches on that issue.
1. The court set forth that the fee statute that applies to Board cases,
5 U.S.C. § 7701(g), also applies to arbitration awards. Under
section 7701(g), an adjudicator may require an agency to pay the
employee’s reasonable attorney fees if the employee is the
prevailing party and the adjudicator determines that payment by the
agency “is warranted in the interest of justice.”
2. The court determined that the arbitrator did not articulate a rational
explanation for denying a fee award. The court stated that, in order
for it to be able to conduct its reviewing responsibility, even on a
matter as to which the adjudicator is given broad deference, it is
ordinarily necessary for the adjudicator to provide some sort of
explanation for its action.
3. The court further noted that the agency had argued to the arbitrator
that attorney fees could not be awarded here given the wording of
the arbitration clause in the parties’ collective bargaining
agreement. The court found, however, that the argument was
“plainly invalid.” The court reasoned that, because the agency
made that invalid argument to the arbitrator, the agency could not
assert that the arbitrator denied fees based on a valid ground, rather
than on the invalid ground that it had proposed.
NONPRECEDENTIAL:
McPherson v. Department of Homeland Security, No. 2018-2218 (Fed. Cir.
Apr. 4, 2019) (MSPB Docket No. DA-1221-17-0462-W-1) (affirming the Board’s
decision in this individual right of action appeal that found that the agency
proved by clear and convincing evidence that it would have terminated the
petitioner in the absence of his protected disclosures).
Green v. Merit Systems Protection Board, No. 2018-2264 (Fed. Cir. Apr. 4,
2019) (MSPB Docket No. CH-0841-18-0317-I-1) (affirming the Board’s decision
that dismissed the petitioner’s appeal of a decision from the Office of
Personnel Management (OPM) for lack of jurisdiction because the OPM decision
was not a final agency decision reviewable by the Board).
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Kevin Sharpe
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2356
MSPB Docket No. SF-4324-15-0593-B-1
Issuance Date: March 1, 2019
The appellant, a GS-13 agent with the Drug Enforcement Agency who
had deployed three times as a reservist in the United States Navy,
applied for fourteen GS-14 positions with the agency between 2012 and
2015. Because he scored 91 out of 100 on his Special Agent Promotion
Program examination, he was placed on the Best Qualified List (BQL) for
each of the GS-14 positions for which he applied. However, his
supervisor, who selected and ranked three applicants from the BQL for a
final selection decision by the Career Board, selected the appellant only
three times and never chose him as the first-ranked agent. The Career
Board did not select the appellant for any of the GS-14 positions.
The appellant filed a request for corrective action under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) alleging,
among other things, that his nonselections were motivated by his
military status as a reservist. After holding the appellant’s requested
hearing, the administrative judge denied his request for corrective
action, and the appellant filed a petition for review of the initial
decision. The Board granted his petition and remanded the appeal for
further adjudication. In a remand initial decision that become the final
decision of the Board after neither party filed a petition for review, the
administrative judge again denied the appellant’s request for corrective
action, finding that he did not show that his reservist status was a
substantial or motivating factor in his nonselections. The appellant
appealed the decision to the court, arguing, in relevant part, that the
administrative judge erred by excluding relevant evidence and
testimony regarding his supervisor’s hostility towards reservists.
Holding: The administrative judge abused her discretion by excluding
relevant evidence and testimony that harmed the appellant’s ability to
meet his burden of proof to show that his military service was a
substantial or motivating factor in his nonselections. Specifically, the
court held that the administrative judge abused her discretion by
excluding a disparaging email sent to another reservist shortly after he
filed a USERRA appeal with the appellant’s supervisor copied on the
email. The court recognized that the email did not mention the
appellant but found it to be relevant because it pertained to another
agent who worked in the same division under the same supervisor as the
appellant, was also a reservist, and filed a USERRA claim naming the
same supervisor as the appellant named his USERRA claim.
In light of its holding, the court vacated the administrative judge’s
decision and remanded the appeal for further proceedings.
NONPRECEDENTIAL
Hairston v. Department of Veterans Affairs, No. 2018-2053 (Fed. Cir.
Mar. 8, 2019) (MSPB Docket No. PH-0714-18-0186-I-1): The court
affirmed the initial decision, which became the final decision of the
Board after neither party filed a petition for review, affirming the
agency’s decision to remove the appellant based on a charge of conduct
unbecoming a Federal employee. The court found that the appellant
provided no basis to overturn the administrative judge’s credibility
determinations and found no merit to his due process claims. The court
further found that, because the agency removed the appellant pursuant
to 38 U.S.C. § 714, the administrative judge was not required or
permitted to mitigate the penalty. Finally, the court found that the
appellant failed to show that the administrative judge abused his
discretion in making certain evidentiary rulings.
Cooper v. Department of the Army, No. 2018-1350 (Fed. Cir. Mar. 5,
2019) (MSPB Docket No. PH-0752-16-0130-I-1): Rule 36 affirmance.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Shawn A. Hornseth
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-1188
Issuance Date: February 27, 2019
MSPB Docket No. SF-0752-17-0271-I-1
Indefinite suspension based on suspended security clearance/access to
classified information
--Due process
Mr. Hornseth worked as a combined trade supervisor at the Puget Sound Naval
Shipyard and Intermediate Maintenance Facility (Shipyard). Every position at
the Shipyard required a security clearance because the facility housed nuclear
powered vessels. On December 12, 2016, Mr. Hornseth was informed that the
Commander of the Shipyard intended to suspend his access to classified
information and his assignment to a sensitive position. Three days later, the
Commander issued a letter notifying Mr. Hornseth that his security clearance
was suspended. On the same day, the Navy proposed to indefinitely suspend
him. Mr. Hornseth responded to the proposal and the agency assigned
supervisor C.C. to be the deciding official. While the proposed suspension was
pending before him, supervisor C.C. had numerous communications with
Shipyard Human Resources (HR) staff. Supervisor C.C. issued the suspension on
January 20, 2017.
Mr. Hornseth filed an appeal and argued that he was denied minimum due
process for two reasons: (1) the reply period was an empty formality because
supervisor C.C. did not have the ability to take or recommend alternative
agency action, and (2) supervisor C.C. and the Shipyard HR staff engaged in
improper ex parte communications. The administrative judge noted that a due
process violation may occur when a deciding official lacks the ability to take or
recommend an alternative agency action based on the employee’s response;
the administrative judge determined sua sponte, however, that Mr. Hornseth
was given due process because supervisor C.C. could have provided him with
investigative leave. Regarding the ex parte communications, the
administrative judge credited supervisor C.C.’s testimony—that his ex parte
contacts with HR staff were to clarify the arguments raised in Mr. Hornseth’s
response and that HR staff drafted the decision letter after he had made his
decision—as “forthright, plausible, reasonable, and consistent with or at least
not contradicted by other evidence.” The administrative judge determined
that there was no due process violation or harmful procedural error, and he
affirmed the suspension action. The initial decision became the final decision
of the Board, and Mr. Hornseth appealed that decision to the court.
HOLDING: The court concluded that Mr. Hornseth received the procedural
protections to which he was entitled and the communications between
supervisor C.C. and Shipyard HR staff were cumulative and did not
constitute a due process violation.
Mr. Hornseth raised two arguments before the court (1) the administrative
judge erred in finding no due process violation, and (2) supervisor C.C.’s ex
parte contacts with HR staff constituted a due process violation.
Regarding the first argument, the court noted that a review of adverse
actions stemming from security clearance determinations is limited to
determining (1) whether a security clearance was denied, (2) whether the
security clearance was a requirement of the position, and (3) whether the
procedures set forth in 5 U.S.C. § 7513 were followed. The parties did not
dispute that Mr. Hornseth’s security clearance was revoked and that
maintaining it was a requirement for his position. Therefore, the court
focused on the procedures identified in section 7513, which included at
least 30 days’ written notice, a reasonable time (but not less than 7 days)
to answer orally and in writing and to furnish affidavits and other
documentary evidence, representation by an attorney or other
representative, and a written decision and the specific reasons therefor at
the earliest practicable date. The court found that the procedures were
satisfied in this case because Mr. Hornseth received notice, had an
opportunity to respond and be represented, and he was provided with a
written decision with reasons.
The court noted that the administrative judge erred in his analysis of this
issue because he concluded that an alternative position must be available
to comport with due process. The court noted that an employee has a right
to be transferred to a nonsensitive position only if that right is conferred by
a statute or regulation; here, if there is no alternative position authorized
by statute, the deciding official was not authorized to create one. The
court found that the administrative judge’s error was harmless because Mr.
Hornseth was given all of the procedural protections to which he was
entitled.
Regarding ex parte contacts, the court determined that the administrative
judge applied the relevant factors under Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368 (Fed. Cir. 1999): (1) whether the ex parte
communication merely introduces "cumulative" information or new
information; (2) whether the employee knew of the error and had a chance
to respond to it; and (3) whether the ex parte communications were of the
type likely to result in undue pressure upon the deciding official to rule in a
particular manner. The court concluded that the administrative judge’s
finding that the communications were cumulative was supported by
substantial evidence.
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Eric Cerwonka
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-1398
MSPB Docket Number: DA-0752-17-0264-I-1
Issuance Date: February 13, 2019
The Louisiana State Board of Examiners of Psychologists (LSBEP) revoked
the petitioner’s license to practice psychology in Louisiana for cause.
The respondent removed the petitioner from his position pursuant to
38 U.S.C. § 7402(f), which provides that a person may not be employed
as a psychologist with the Veterans Health Administration (VHA) if his
license has been terminated for cause.
The petitioner appealed his license revocation to a Louisiana district
court, which reinstated his license. The LSBEP appealed the district
court’s decision to a Louisiana court of appeals, which reversed and
remanded the district court’s decision. The Supreme Court of Louisiana
denied the petitioner’s petition for writ of certiorari, and the
proceedings regarding the merits of the license revocation remain
pending.
In addition to pursuing his license revocation appeal, the petitioner
appealed his removal to the Board. The administrative judge issued an
initial decision sustaining the removal. Specifically, the administrative
judge found that the petitioner’s license was revoked for cause, placing
him in violation of 38 U.S.C. § 7402(f) and the respondent’s handbook,
which requires employees to maintain all qualifications required for
appointment. The administrative judge rejected the petitioner’s
affirmative defense that he was subjected to disparate treatment based
on his prior equal employment opportunity activity. Finally, the
administrative judge found that the respondent proved a nexus between
the charge and the efficiency of the service and that the penalty of
removal was reasonable. The petitioner did not petition the Board to
review the administrative judge’s decision, and it became the final
decision of the Board. The petitioner timely petitioned the Federal
Circuit for review.
Holding: The court concluded that 38 U.S.C. § 7402(f) governs the
petitioner’s removal and that the respondent complied with the
terms of the statute; accordingly, it affirmed the petitioner’s
removal.
(1) 38 U.S.C. § 7402(f), not Chapter 75 of the Civil Service Reform Act
(CSRA), governs the petitioner’s removal. Chapter 75 of the CSRA
provides that an agency may remove an employee “only for such
cause as will promote the efficiency of the service.” Under Chapter
75 of the CSRA, in taking an adverse action against an employee, an
agency must prove that the charged conduct occurred, establish a
nexus between that conduct and the efficiency of the service, and
demonstrate that the penalty imposed was reasonable. 38 U.S.C.
§ 7402 governs the qualifications of appointees to the VHA.
Specifically, 38 U.S.C. § 7402(f) prohibits the VHA from employing
any psychologist who had a license terminated for cause, without
permitting additional considerations or affording discretion. Under
38 U.S.C. § 7425(b), Congress has provided that no provision of Title
5 that is inconsistent with a provision of Chapter 74 of Title 38 shall
supersede, override, or modify a provision of Chapter 74 of Title 38,
unless otherwise stated. Nothing in Chapter 75 of the CSRA provides
that the CSRA supersedes, overrides, or modifies 38 U.S.C. § 7402(f).
Accordingly, the CSRA does not supersede, override, or modify the
removal standard set forth in 38 U.S.C. § 7402(f).
(2) The respondent’s removal decision complied with the standard in
38 U.S.C. § 7402(f). Although the respondent was not required to
consider the standard for removal set forth within Chapter 75 of the
CSRA, the decision also complied with that standard.
(3) The express terms of 38 U.S.C. § 7402(f) compel removal and do not
permit the respondent to consider subsequent events or give it
discretion to impose lesser penalties. Accordingly, the court
declined to consider the petitioner’s arguments that the Board should
have considered subsequent events, such as the reinstatement of his
license, or that there should be a waiting period prior to removal to
give an opportunity for an appeal of the license revocation.
(4) The court concluded that substantial evidence supported the
administrative judge’s findings that neither of the relevant agency
officials were aware of the petitioner’s prior protected activity, and
that the respondent’s proffered reason for the removal was the real
reason for the action, thus the petitioner did not show that he was
removed in retaliation for his prior protected activity.
(5) The court concluded that the petitioner’s arguments that the
respondent failed to give him 30-day advance notice of his removal,
in accordance with the respondent’s handbook, or that the
respondent improperly supplied evidence to the administrative judge,
were without merit.
NONPRECEDENTIAL:
Redmond v. Department of Veterans Affairs, No. 2018-2233 (Fed. Cir.
Feb. 8, 2019) (MSPB Docket No. NY-1221-18-0025-W-1): The court
affirmed the administrative judge’s decision denying the petitioner’s
request for corrective action under the Whistleblower Protection Act.
The court affirmed the administrative judge’s findings that the
petitioner established a prima facie case of retaliation based on a
protected disclosure of erroneous invoicing and that the respondent
showed by clear and convincing evidence that it would have
reprimanded the petitioner notwithstanding his protected disclosure.
Fernandez v. Department of the Navy, No. 2018-1388 (Fed. Cir. Feb. 13,
2019) (MSPB Docket No. AT-0752-12-0803-C-1): The court affirmed, per
Rule 36, the administrative judge’s decision denying the petitioner’s
petition for enforcement of a final decision reversing the petitioner’s
removal because the petitioner failed to cooperate with the respondent
in calculating his back pay.
Ryan v. Department of Defense, No. 2018-1524 (Fed. Cir. Feb. 13, 2019)
(MSPB Docket No. DC-0752-17-0673-I-1): The court affirmed the
administrative judge’s decision sustaining the petitioner’s removal. The
court concluded that substantial evidence supports the administrative
judge’s findings that the respondent proved its charges of lack of
candor, conduct unbecoming a police officer, and unauthorized use of a
computer; and that a nexus existed between the charges and the
petitioner’s ability to perform his job. The court also concluded that
the petitioner’s arguments that his due process rights were violated
were waived or without merit. Finally, the court determined that the
administrative judge correctly held that the petitioner’s alleged
disclosures were either not protected under the Whistleblower
Protection Act or did not contribute to his removal.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Jeffrey A. Hansen
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2584
MSPB Docket Number: DE-0752-17-0076-I-1
Issuance Date: December 28, 2018
Adverse Action Charges
- Drug Related
The agency removed the petitioner based on the charge of “positive test
for illegal drug use—marijuana,” and he appealed his removal to the
Board. The petitioner primarily argued before the Board that he unknowingly
ingested marijuana that was contained in brownies. The administrative judge
considered his defense, but ultimately affirmed the agency’s decision. He
acknowledged that inadvertent ingestion of an illegal drug would be relevant
to his decision, if shown, but that the petitioner failed to meet his burden of
showing that the ingestion was inadvertent. As a result, he sustained the
charge and upheld the removal. Neither party petitioned for review of the
administrative judge’s decision, which became the final decision of the Board.
On appeal to the Federal Circuit, the petitioner primarily argued that the
Board erred by placing the burden of proof on him to show inadvertent
ingestion of the illegal drug.
Holding: The court affirmed the Board’s decision.
1. The court found that the agency did not need to prove intent to
establish the charge of “positive test for illegal drug use—marijuana”
and that the petitioner’s positive test result, which he did not dispute,
was sufficient to prove the charge.
2. The court also considered his claim of inadvertent ingestion in
examining whether nexus existed and whether the penalty was
reasonable under the circumstances. It concluded that the agency met
its burden as to both given that the evidence in support of the
petitioner’s claim was weak.
3. The court additionally held that substantial evidence supported the
Board’s finding that the petitioner occupied a position subject to
random drug testing.
Petitioner: Charles T. Jenkins, Jr.
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2193
MSPB Docket Number: DA-0752-16-0080-I-2
Issuance Date: January 2, 2019
Jurisdiction
-Resignation/Retirement/Separation
After receiving a notice of proposed removal, but before the agency
issued a decision on the proposed action, the petitioner informed his
supervisor that he would retire. Subsequently, the agency issued a decision
sustaining the removal action. On the same day, the agency informed the
petitioner that, if he retired as indicated, it would revoke and cancel the
scheduled removal. The appellant retired and the agency revoked and
canceled the removal action. The petitioner then appealed to the Board,
alleging that his retirement was involuntary. The administrative judge
dismissed the appeal for lack of jurisdiction, finding that the Board lacked
jurisdiction over the petitioner’s challenge to the proposed removal because
the agency rescinded the removal decision when he retired and because it did
not appear that the petitioner sought to withdraw his retirement prior to his
separation date. The administrative judge also found that the Board lacked
jurisdiction over his alleged involuntary retirement claim because he failed to
make a nonfrivolous allegation of involuntariness. Neither party petitioned for
review of the administrative judge’s decision, which became the final decision
of the Board.
On appeal to the Federal Circuit, the petitioner argued that the Board
erred in dismissing his appeal for lack of jurisdiction because the agency
issued its decision to remove him prior to the date that he retired. He
also claimed that his retirement was involuntary because it was based
on “misinformation” and “was obtained through coercion.”
Holding: The court affirmed the Board’s dismissal for lack of jurisdiction.
1. In finding that the Board lacked jurisdiction over the removal claim, the
court rejected the petitioner’s argument that the Board should have
jurisdiction because the agency issued its removal decision prior to his
retirement date. The court found that, when an agency cancels a
removal decision and all consequences of the removal have been
eliminated, the case no longer involves a removal. It also found that,
contrary to the petitioner’s argument, 5 U.S.C. § 7701(j) is not
implicated when a removal action has been rescinded. Accordingly, the
court found that the petitioner’s retirement status was not material in
determining whether it had jurisdiction over the removal action.
2. The court additionally found that the petitioner failed to prove that his
retirement was involuntary, finding, among other things, that his
retirement was not based on “misinformation” or “caused by coercion.”
Judge Reyna issued a dissenting opinion, contending, among other things, that,
pursuant to 5 U.S.C. § 7701(j), the agency should not be permitted to force the
petitioner to choose between retiring and appealing the removal decision.
Petitioner: Hanh Do
Respondent: Department of Housing and Urban Development
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2018-1147
MSPB Docket Number: DC-0752-17-0149-I-1
Issuance Date: January 14, 2019
Constitutional Issues
- Due Process
The agency demoted and suspended the petitioner based on the charge
of “negligence of duty” for hiring and promoting a certain employee
because that employee admitted to the petitioner that she did not
possess a college degree, which the agency claimed was required for the
positions at issue. On appeal to the Board, the administrative judge found
that a college degree was not required for the positions and that the employee
alternatively could qualify for the positions based on a combination of
education and experience. Nevertheless, the administrative judge found that
the petitioner was negligent because she failed to investigate whether the
employee met the alternative qualification requirements for the positions. As
a result, she sustained the charge and upheld the penalty. Neither party
petitioned for review of the administrative judge’s decision, which became the
final decision of the Board. The petitioner challenged the Board’s decision
before the Federal Circuit.
Holding: The court reversed the Board’s decision and remanded the case to
the Board.
1. The court found that the Board violated the petitioner’s right to due
process when it exceeded the scope of the agency’s charge and relied
on a new ground to sustain the penalty. As a result, the petitioner did
not have an opportunity to meaningfully address her alleged negligence
in failing to investigate whether the employee met the alternative
qualification requirements for the positions during the agency
proceedings.
2. The court additionally rejected the agency’s argument that the due
process violation here was harmless.
NONPRECEDENTIAL:
Koester v. United States Park Police, No. 2017-2613 (Fed. Cir. Jan. 3, 2019)
(Arbitrator Decision in No. 16-53707-A) (vacating and remanding the
arbitrator’s decision that upheld the agency’s decision to remove the
petitioner because the arbitrator erred when he ignored certain evidence of
alleged mitigating circumstances).
Flynn v. Merit Systems Protection Board and Department of the Army, No. 17
70617 (9th Cir. Jan. 8, 2019) (MSPB Docket No. SF-1221-14-0620-W-1)
(affirming the Board’s decision in this individual right of action (IRA) appeal
that found that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions in the absence of the
petitioner’s protected disclosures. The court also dismissed the Board as a
respondent, agreeing with the Board’s position that it lacked jurisdiction, in
the context of an IRA appeal, to consider the petitioner’s claims that the
agency took personnel actions against her in retaliation for filing an equal
employment opportunity complaint).
Lepore v. Office of Personnel Management, No. 2018-1474 (Fed. Cir. Jan. 9,
2019) (MSPB Docket No. DC-0831-17-0683-I-1) (affirming the Board’s decision
that affirmed the Office of Personnel Management’s decision concerning the
recalculation of the petitioner’s retirement annuity).
Grush v. Department of Justice, No. 2018-1575 (Fed. Cir. Jan. 16, 2019) (MSPB
Docket No. CH-0752-16-0401-I-2) (Rule 36 affirmance).
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Matthew R. Siler
Respondent: Environmental Protection Agency
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2446
Docket Number: CH-0752-16-0564-I-3
Issuance Date: November 13, 2018
BOARD PROCEDURES/AUTHORITY
- DISCOVERY
WHISTLEBLOWER PROTECTION ACT
- CLEAR AND CONVINCING EVIDENCE
The petitioner sought review of the administrative judge’s decision affirming
his removal. Before the Federal Circuit, he argued that the administrative
judge erred in finding certain documents subject to attorney-client privilege.
He further argued that the administrative judge misapplied the law concerning
his whistleblower reprisal affirmative defense and the reasonableness of the
penalty.
Holding: The court vacated the decision and remanded the appeal.
1. The court determined that the agency failed to show that draft proposal
documents were shielded from discovery under the attorney-client
privilege. Specifically, the court found no indication in the record that
attorneys prepared or reviewed those documents. Absent evidence of a
communication with an attorney, the agency’s privilege claim failed.
The court was unable to determine whether the administrative judge’s
refusal to consider the draft proposal documents would not have
impacted the outcome of the appeal, and it therefore remanded the
appeal to the Board.
2. Regarding the petitioner’s whistleblower reprisal claim, the
administrative judge found that the petitioner made protected
disclosures that were a contributing factor in his removal, but that the
agency had proven by clear and convincing evidence that it would have
taken the same action absent the whistleblowing.
Under Carr v. Social
Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), in determining
whether the agency has met its burden, the Board considers (1) “the
strength of the agency’s evidence in support of its personnel action,” (2)
“the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision,” and (3) “any
evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated.” The
petitioner argued that the administrative judge misapplied Carr factors 2
and 3.
3. The court determined that the administrative judge erred in assessing
Carr factor 3. First, the court found that the agency’s treatment of
other whistleblowers was not relevant to Carr factor 3, which is
specifically limited to the treatment of similarly situated non
whistleblowers. The court also found that the administrative judge
failed to sufficiently explain its conclusion that the petitioner and
another employee were not sufficiently similar to make a “meaningful
comparison.”
4. As to Carr factor 2, the court found that the administrative judge failed
to address the agency’s mild treatment of the petitioner’s second-line
supervisor (who was the subject of his disclosures). The court directed
the Board to consider on remand whether that mild treatment was
evidence that the supervisor was sufficiently well-liked to provide a
motive to retaliate against the petitioner.
5. The court directed the Board to reassess the penalty as appropriate in
light of its findings on remand regarding the privilege and reprisal issues.
Petitioner: Leonard Boss
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2231
Docket Number: 13-50967-6 (Arbitration)
Issuance Date: November 13, 2018
CONSTITUTIONAL ISSUES/DUE PROCESS
- DUE PROCESS
The agency suspended the petitioner for 15 days based on three charges.
During an arbitration hearing regarding the suspension, the deciding official
admitted that he had considered three documents that the agency had not
provided to the petitioner or his union. All three documents related to the
first charge against the petitioner (failure to follow policy related to overtime
sheets), but not to the other two charges (failure to follow supervisory
instructions and conduct unbecoming a U.S. Border Patrol Agent). The
arbitrator held that the deciding official’s consideration of those documents
constituted a due process violation. The arbitrator therefore vacated the first
charge. However, the arbitrator analyzed the remaining two charges on the
merits and determined that the agency proved those charges. The arbitrator
found that the two proven charges justified a 10-day suspension, rather than
the 15 days imposed by the agency. Before the Federal Circuit, the petitioner
argued that the arbitrator erred in failing to reverse the action in its entirety in
light of a due process violation that related to one of the three charges against
the petitioner.
Holding: The court affirmed the arbitration decision.
1. The court agreed with the arbitrator that the due process violation in
connection with the first charge did not require that the entire
suspension be reversed. The court held that the constitutional due
process analysis should be applied on a charge-by-charge basis.
The
court acknowledged its holdings in Stone v. Federal Deposit Insurance
Corporation, 179 F.2d 1368 (Fed. Cir. 1999), and its progeny that a
procedural due process violation because of ex parte communications
requires a new constitutionally correct procedure and is not subject to
the harmless error test. However, the court determined that such
precedent would only prevent it from analyzing whether the agency
would have disciplined the petitioner for the first charge even without
the procedural defect. The court held that the documents at issue here
were unlikely to cause the kind of prejudice the court in Stone was
concerned about.
2.
The court also noted that post-Stone, the Supreme Court in Shinseki v.
Sanders, 556 U.S. 396 (2009), had clarified how courts should apply
harmless error. The court held that adopting the petitioner’s approach
of vacating the entire personnel action without a charge-by-charge
analysis would “increase the likelihood of reversal in cases where, in
fact, the error is harmless,” contrary to the Supreme Court’s admonition
in Shinseki.
3. The court found further support for its holding in cases addressing
constitutional due process errors in the criminal context. In those cases,
multiple courts of appeals held that a constitutional violation as to one
criminal charge did not necessarily prevent a conviction based on other
unrelated charges.
4. The court rejected the petitioner’s argument that the Board has
consistently held that a due process violation requires reversal of the
entire action without any consideration of the merits of the charges.
After noting that it is not bound by the Board’s decisions, the court
nevertheless distinguished the Board decisions cited by the petitioner,
finding that they were either single-charge cases or cases in which the
due process error had infected all of the charges.
Petitioner: Dalwinder Sihota
Respondent: Internal Revenue Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2252
Issuance Date: November 13, 2018
ARBITRATION/COLLECTIVE BARGAINING-RELATED ISSUES
- MISCELLANEOUS
BACK PAY
PENALTY
- MISCELLANEOUS
In its notice of proposed removal, the agency charged the petitioner with
willful understatement of her tax liability, failure to accurately state tax
liability, and failure to timely pay tax liability. The agency removed the
petitioner based on “[a]ll reasons and specifications [stated in the notice of
proposed removal].” An arbitrator found that the petitioner did not willfully
understate her tax liability, but that she did negligently provide an inaccurate
tax return. The arbitrator determined that the petitioner’s negligence did not
justify her removal, and he therefore reinstated the petitioner and imposed a
10-day suspension. Although the arbitrator determined that the petitioner was
entitled to reinstatement, he found that she was not entitled to back pay for a
period of more than 3 years between her removal and her reinstatement.
Before the Federal Circuit, the petitioner argued that the only charge before
the arbitrator required willful understatement of her tax liability and that,
because the arbitrator found that she did not act willfully, he should have
reversed the action in its entirety. She also argued that the arbitrator violated
the Back Pay Act by reducing her back pay.
Holding: The court vacated the arbitration decision and remanded the case
to the arbitrator for further adjudication.
1. The court agreed with the petitioner that, if the only charge before the
arbitrator required willfulness, the arbitrator could not impose any
penalty if he found that the petitioner only acted negligently. However,
the court found that it was unclear from the record before it whether
the alternate charge was before the arbitrator. The court noted an
exchange during the hearing in which the arbitrator and the agency
appeared to agree that the only charge at issue was the charge requiring
willfulness. However, the court also noted other evidence in the record
suggesting that the alternate charges may have been properly before the
arbitrator. It therefore remanded the case to the arbitrator to
determine which charges were submitted for arbitration.
2. The court held that although an arbitrator may deny or reduce back pay
as a form of mitigated penalty, the period of withheld back pay cannot
be based only on the time served because such a penalty would be
arbitrary and capricious. The court determined that, even if the
arbitrator properly sustained an alternate charge, nothing in his decision
supported what was effectively a 3-year “time-served” suspension.
3. The court further determined that, in reducing the petitioner’s back
pay, the arbitrator misapplied the doctrine of laches. Laches bars an
action when there is both a lack of diligence by the party against whom
it is asserted as well as prejudice to the party asserting it. Here, the
arbitrator made no finding that the agency was prejudiced by any delay
in scheduling the hearing. Additionally, laches does not reduce
monetary damages that accrue while a dispute is pending. Thus, after
allowing the petitioner’s claim to proceed, the arbitrator could not rely
on laches to reduce her back pay.
4. The court held that the arbitrator could reduce the petitioner’s back pay
on remand as a mitigated penalty, but that any such reduction would
need to be within the tolerable limits of reasonableness.
Petitioner: Leslie A. Kerr
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2538
Docket Number: SF-0752-17-0362-I-1
Issuance Date: November 15, 2018
DISCRIMINATION
- ELECTION OF REMEDIES
- MIXED CASE PROCEDURES
TIMELINESS
- MIXED CASES
WHISTLEBLOWER PROTECTION ACT
- ELECTION OF REMEDIES
- TIMELINESS
In June 2006, the petitioner filed a Board appeal challenging her alleged
involuntary retirement and other personnel actions. She alleged that the
personnel actions were based on sex and religious discrimination as well as
whistleblower reprisal. The administrative judge informed the petitioner that
the Board lacked jurisdiction over the other personnel actions and that she had
the option to have her involuntary retirement claim heard in the first instance
by either the Board or the agency’s equal employment opportunity (EEO)
office. The petitioner chose the agency’s EEO office, and the administrative
judge therefore dismissed the appeal without prejudice to refiling. In
September 2008, the agency’s EEO office rejected the petitioner’s
discrimination claims and determined that it lacked jurisdiction over her
whistleblower reprisal claim. The EEO office informed the petitioner that
because she had a mixed case, she had the option of appealing the decision to
the Board or file a civil action in district court.
The petitioner elected to file in district court. The parties litigated the
discrimination and retaliation claims on the merits and, in 2011, the district
court granted summary judgment in favor of the Government. However, in
2013, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded
the case. On remand, the Government argued for the first time that the
district court lacked jurisdiction over the whistleblower reprisal claim because
the petitioner failed to exhaust her remedies by failing to seek review of that
claim before the Board. The district court agreed and dismissed the
whistleblower reprisal claim in July 2014; it held a jury trial on the
discrimination claims, which resulted in a verdict in favor of the Government.
The petitioner appealed the dismissal of her whistleblower reprisal claim. The
Ninth Circuit affirmed the dismissal in September 2016, reasoning that
permitting an employee to bring an “entirely unreviewed” whistleblower
reprisal claim to the district court in the first instance would undermine the
“comprehensive system of administrative review” for such claims. The Ninth
Circuit acknowledged that the petitioner had reasonably relied on contrary
authority from the U.S. Court of Appeals for the Tenth Circuit, which held in
2000 that a district court had jurisdiction over an unreviewed whistleblower
reprisal claim.
The petitioner filed a petition for a writ of certiorari with the Supreme Court.
The Supreme Court denied that petition in March 2017. A few weeks later, the
petitioner filed a request with the Board to reopen her 2006 appeal, which was
assigned to an administrative judge in the Board’s Western Regional Office.
The administrative judge rejected that request, finding neither good cause for
her delay in filing the request nor any basis to equitably toll the filing deadline.
The petitioner sought review of the administrative judge’s decision before the
Federal Circuit.
Holding: The court reversed the administrative judge’s decision and
remanded the appeal.
1. In finding no good cause for the petitioner’s filing delay, the
administrative judge considered the length of the delay and the fact that
the petitioner was represented by counsel throughout the litigation.
The crux of the administrative judge’s no good cause determination,
however, was that the petitioner did not have a reasonable excuse for
pursuing her unreviewed whistleblower reprisal claim in district court in
the Ninth Circuit. The court disagreed, finding that the petitioner did
have a reasonable basis for thinking that the district court was an
appropriate forum for resolving all of her mixed case claims, including
her whistleblower reprisal claim. In support of its finding, the court
cited the language of the relevant statutory provision, 5 U.S.C.
§ 7202(a)(2), as well as the Tenth Circuit’s holding in Wells v. Shalala,
228 F.3d 1137 (10th Cir. 2000).
2. The administrative judge relied on the Ninth Circuit’s decision in Sloan
v. West, 140 F.3d 1255 (9th Cir. 1999), which it interpreted as
precluding district court review of an unreviewed whistleblower reprisal
claim in a mixed case. The Federal Circuit noted that, although the
Ninth Circuit in the petitioner’s case interpreted Sloan in the same
manner, it also suggested that the petitioner had nevertheless acted
reasonably in proceeding to district court. The Federal Circuit found
that cases arising under the doctrine of equitable estoppel demonstrate
the appropriateness of finding good cause based on a reasonable filing in
the wrong forum.
3. The Federal Circuit found further support for the reasonableness of the
petitioner’s filing delay in the lack of notice she received regarding the
jurisdictional defect of her whistleblower reprisal claim. Here, the
Government litigated the petitioner’s whistleblower reprisal claim for
more than 5 years before the district court and the Ninth Circuit before
raising the jurisdictional issue. Also, the agency’s EEO office informed
the petitioner in its final decision that she had the option to pursue
review of her mixed case in district court.
4. The Federal Circuit rejected the Government’s argument that the
petitioner was on notice that she was pursuing the wrong approach once
the district court dismissed her whistleblower reprisal claim in July
2014. The court found that it was reasonable for the petitioner to seek
review of the district court’s decision before the Ninth Circuit and the
Supreme Court, particularly in light of the Tenth Circuit’s contrary
holding in Wells. The court therefore determined that the petitioner
had established a reasonable excuse for the entirety of her filing delay.
5. The court further found that the agency failed to identify any prejudice
it would suffer from having the Board review the petitioner’s
whistleblower reprisal claim on the merits. The court therefore
concluded that it was an abuse of discretion not to excuse the
petitioner’s untimely request to reopen her earlier Board appeal.
Having found good cause for the delay, the court did not address
whether the doctrine of equitable tolling would apply in this case.
6. The court rejected the Government’s alternative argument that the
Board lost jurisdiction over the petitioner’s whistleblower reprisal claim
when she elected to pursue her mixed case in district court. The court
distinguished the instant case from those in which a petitioner “sought a
second bite at the apple” in a different forum after the initially selected
forum denied a claim on the merits. Here, the Ninth Circuit held that
the district court lacked jurisdiction over the petitioner’s whistleblower
reprisal claim. Accordingly, the Federal Circuit concluded that the
petitioner’s litigation of her mixed case in district court did not
constitute an effective election that stripped the Board of jurisdiction
over her whistleblower reprisal claim.
NONPRECEDENTIAL:
Carey v. Department of Agriculture, No. 2018-1479 (Fed. Cir.
Nov. 7,
2018) (MSPB Docket No. CH-0752-16-0423-I-3): The court affirmed, per
Rule 36, the administrative judge’s decision affirming the petitioner’s
removal.
Joy v. Department of the Treasury, No. 2017-2331 (Fed. Cir.
Nov. 8,
2018) (MSPB Docket No. DC-0752-16-0229-I-1): The court affirmed, per
Rule 36, the administrative judge’s decision affirming the petitioner’s
removal.
Jenks v. Office of Personnel Management, No. 2018-2176 (Fed. Cir.
Nov. 9, 2018) (MSPB Docket No. CH-0831-18-0209-I-1): The court
affirmed the Board’s final decision affirming the Office of Personnel
Management’s finding that the petitioner was ineligible to receive
annuity benefits because she had applied for and received a refund of
her retirement contributions. Although the petitioner stated that she
was willing to redeposit her refund, only current employees are eligible
to make a redeposit and the petitioner did not claim to be currently
employed in a covered position.
Somers v. Department of Veterans Affairs, No. 2018-1427 (Fed. Cir.
Nov. 9, 2018) (MSPB Docket No. CH-1221-16-0259-W-1): The court
affirmed, per Rule 36, the administrative judge’s decision denying the
petitioner’s request for corrective action in her individual right of action
appeal.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
PRECEDENTIAL:
Petitioner: Richard L. Miller
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1792
Issuance Date: September 10, 2018
Civil Service Retirement System (CSRS) basic annuity
Service credit
Military service
The petitioner retired under the CSRS in 2012 after a complicated history of
military and Federal civilian service dating back to 1970. In calculating his
annuity, the Office of Personnel Management (OPM) excluded three periods of
civilian service: (1) June 21, 1982 to June 30, 1982, (2) August 27, 1990 to
October 30, 1990, and (3) August 22, 1994 to December 22, 1995. During
period 1, the petitioner was employed as a civilian but was on terminal leave
from the U.S. Army and was receiving military retirement credit for that
period. During period 2, the petitioner was on military leave from his civilian
position because he had been called up on active duty with the Air Force
Reserve, and he received military retirement credit for that period too.
During period 3, the petitioner was working in a civilian position, but he had
the Air Force Board for Correction of Military Records (AFBCMR) retroactively
amend his record to reflect active military service for that period in
leave-without-pay status, void his civilian service for that period, and receive
military retirement credit. The Board affirmed OPM’s final decision.
Holding: The court affirmed in part, reversed in part, and remanded for
further proceedings.
1. As applicable here, 5 U.S.C. § 8332(c) provides that, if an employee
is awarded retired pay based on any period of military service, unless he
waives his military retired pay for that period and in some circumstances
pays a deposit, the service of the employee generally may not include
credit for such period of military service. See 5 C.F.R. § 831.301.
This means that a CSRS annuitant cannot increase his annuity by adding to
his creditable civilian service military service time for which he is receiving
military retirement pay. In other words, the bar only applies to credit for
military service – not to credit for concurrent periods of civilian service.
The Board’s interpretation of the statute as a general prohibition against
receiving both civilian and military service credit for the same period was
overly broad.
2. Period 1 Although an agency may not generally employ an active
duty service member in a civilian capacity, there is an exception for
individuals in terminal leave status. 5 U.S.C. § 5534a. Because the
petitioner was fully employed as a civilian during period 1, he was entitled
to credit for that civilian service notwithstanding his concurrent military
service in terminal leave status.
3. Period 2 Although the petitioner was on leave from his civilian
position during this period in order to fulfil his military obligation, the
record shows that it was payed leave for which he was otherwise entitled to
service credit under CSRS. The petitioner’s concurrent military service
does not prevent this civilian service from counting toward his retirement.
4. Period 3 Because AFMBCR retroactively returned the petitioner to
military service for this period, and he received military retired pay
without making a deposit into CSRS, he was not entitled to civilian service
credit for this military service. Furthermore, because the petitioner’s
civilian employing agency voided his civilian service for this period, there
was no civilian service to credit toward the petitioner’s retirement.
4. The court directed the Board to remand the case to OPM to
recalculate the petitioner’s CSRS annuity, accounting for the civilian
service credit that earned during periods 1 and 2.
NONPRECEDENTIAL:
Villaruel v. Office of Personnel Management, No. 2018-1199 (Sep. 7, 2018)
(MSPB No. SF-0831-17-0457-I-1) The court affirmed the Board’s final decision
upholding OPM’s denial of the petitioner’s application for a CSRS annuity.
Although the petitioner had approximately 20 years of creditable service at the
U.S. Naval Ship Repair Facility in Subic Bay, Philippines, all of this service was
in temporary, term, and indefinite excepted appointments. Therefore, none
of this service was “covered” under the CSRS, and the petitioner did not meet
the requirement of having covered service for at least one of the last two
years prior to his separation.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Leonardo Villareal
Respondent: Bureau of Prisons
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-2275
Docket Number: 16-56932-3 (Arbitration)
Issuance Date: August 24, 2018
The petitioner sought review of an arbitration decision affirming his removal
from the Bureau of Prisons. Before the Federal Circuit, he argued that his
removal was not justified, that he was subjected to double punishment, and
that the agency violated his due process rights.
Holding: The court affirmed the appellant’s removal
1. The court determined that the agency’s decision to remove the
petitioner and the arbitrator’s decision upholding it were supported by
substantial evidence.
2. The court rejected the petitioner’s argument that his removal
constituted double punishment because the agency had already
reassigned him based on the same allegations. The court held that the
petitioner’s reassignment without a reduction in basic pay did not
constitute punishment and therefore did not preclude his subsequent
removal.
3. The court determined that the agency did not violate the petitioner’s
due process rights by changing the deciding official or by improperly
considering an aggravating factor in its penalty determination without
providing notice to the petitioner. As to the change in deciding official,
the court found that substantial evidence supported the arbitrator’s
finding that the first deciding official never reached a final decision
regarding the appropriate penalty. As to the penalty determination, the
court found that substantial evidence supported the arbitrator’s finding
that the deciding official did not improperly consider any new and
material evidence.
4. Finally, the court determined that the petitioner’s due process claim
based on the delay between his conduct and the agency’s decision to
remove him did not provide a basis for disturbing the arbitrator’s
decision. The court expressed concern about the passage of 1,265 days
before the agency removed the appellant but it held that such a delay
could justify reversing the action only if it was shown to be prejudicial.
The court found that the appellant had not alleged prejudice before the
arbitrator and that he could not do so for the first time on appeal.
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Federal Education Association, Karen Graviss
Respondent: Department of Defense
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3173
Arbitration Case No.: 14-1024-00182-7
Issuance Date: August 6, 2018
In a prior decision, the panel reversed the arbitrator’s decision to
sustain Ms. Graviss’s removal. The full court granted en banc review
and vacated the panel decision but subsequently discovered that there
was a question as to the timeliness of the petition for review to the
court. Following oral argument and supplemental briefing on the
court’s jurisdiction under 5 U.S.C. § 7703(b)(1), the en banc court
dissolved en banc status and referred the case back to the panel to
consider the court’s jurisdiction in the first instance.
Holding: The panel dismissed the petition for review for lack of
subject matter jurisdiction.
(1) Under 5 U.S.C. § 7703(b)(1), “any petition for review shall be filed
within 60 days after the Board issues notice of the final order or
decision of the Board.” An employee who is a member of a collective
bargaining unit may choose to challenge the action through
arbitration, rather than filing an appeal with the Board. When an
employee pursues arbitration, the statute specifies that “judicial
review shall apply to the award of an arbitrator in the same manner
and under the same conditions as if the matter had been decided by
the Board.” The court held that “the statutory requirement that any
petition for review must be filed within 60 days after the Board
‘issues notice’ of a final decision applies with equal force to
arbitration decisions.”
(2) The date the decisionmaker “issues notice” is the date on which it
sends the parties the final decision. Here, the arbitrator “issued
notice” on April 21, 2015, the date of the postmark. Because 60 days
from that date was a Saturday, the petition for review was due on
Monday, June 22, 2015, and was untimely filed under § 7703(b)(1)
when it was received on June 23, 2015.
(3) The filing deadline under § 7703(b)(1) is jurisdictional and is
therefore not subject to equitable tolling.
The dissent would find that the filing deadline under § 7703(b)(1) is not
jurisdictional.
NONPRECEDENTIAL:
Ashe v. Department of Health and Human Services, Nos. 2018-1390,
2018-1465 (Fed. Cir. Aug. 9, 2018) (MSPB Docket Nos. DC-1221-16-0619
W-1, DC-0752-17-0352-I-1): The court affirmed the administrative
judge’s decisions denying the appellant’s request for corrective action
under the Whistleblower Protection Act and sustaining his removal.
Cristobal v. Office of Personnel Management, No. 2018-1429 (Fed. Cir.
Aug. 9, 2018) (MSPB Docket No. SF-0831-17-0618-I-1): The court
affirmed the administrative judge’s decision affirming the Office of
Personnel Management’s final decision denying the appellant’s request
for annuity benefits for his prior Federal service under the Civil Service
Retirement System.
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Derek Williams, Harris Winns
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2017-1535, 2017-1663
MSPB Docket Numbers: DA-0752-15-0530-M-1, SF-0752-15-0165-M-1
Issuance Date: June 11, 2018
Jurisdiction
- “Employee”
The petitioners filed separate Board appeals challenging their removals
from the U.S. Postal Service. In both cases, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction,
finding that the petitioner was not an “employee” with appeal rights to
the Board under 5 U.S.C. § 7511(a)(1)(B)(ii) because the petitioner did
not complete 1 year of current continuous service. The petitioners filed
petitions for review and the Board affirmed the initial decisions.
On appeal to the Federal Circuit, petitioner Winns argued that he was
an “employee” with Board appeal rights under Roden v. Tennessee
Valley Authority, 25 M.S.P.R. 363 (1984). He claimed that, under
Roden, he could qualify as an “employee” based on a “continuing
employment contract” theory because he had worked in a series of
temporary appointments. The Board consequently requested remand to
consider whether Roden was still good law. On remand, the Board held
that regulations promulgated by the Office of Personnel Management
(OPM) superseded Roden and abrogated the “continuing employment
contract” theory. As a result, the Board held, based on 5 C.F.R.
§ 752.402, that the series of temporary appointments held by petitioner
Winns did not qualify as “continuous employment,” and it dismissed the
appeal for lack of jurisdiction.
Petitioner Williams argued on appeal to the Federal Circuit that he was
an “employee” with Board appeal rights under Roden because he held an
appointment immediately prior to his final appointment that should
count toward the 1 year of “current continuous service.” The Board
asked for a remand to consider his argument. On remand, the Board
concluded that it lacked jurisdiction over the appeal given it had
overruled Roden in its decision in petitioner Winns’s appeal. Petitioner
Williams also argued, in the alternative, that he retained his appeal
rights from his prior appointment pursuant to the Board’s opinion in
Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344 (1991). In
Exum, the Board held that an employee could retain appeal rights from
a prior position if the agency failed to inform the employee that the
change in position might result in a loss of appeal rights. The Board
found that petitioner Williams did not satisfy the Exum requirements,
however, because he failed to show that he would not have accepted his
new position if he had known of his loss of appeal rights.
Holding: The court affirmed the Board’s dismissals for lack of jurisdiction.
1. The court determined that the Board correctly found that petitioners
Williams and Winns did not meet the requirement of “current
continuous service,” as defined by OPM. The court agreed with the
Board that the “continuing employment contract” theory in Roden was
contrary to OPM’s regulations and that those regulations are entitled to
Chevron deference.
2. The court agreed with the Board that petitioner Williams did have
appeal rights under Exum, and it overruled Exum.
The court affirmed its
previous holding in Carrow v. Merit Systems Protection Board, 626 F.3d
1348, 1353 (Fed. Cir. 2010), that an agency’s failure to advise Federal
employees on the terms of their appointment does not create appeal
rights for positions that were not given appeal rights by Congress. It
noted that the Board previously had limited the Exum rule to transfers
within the same agency, but it concluded that its reasoning in Carrow
applied to both transfers within the same agency and to a different
agency. The court further noted that its decision is distinguishable from
situations in which an employee with appeal rights is coerced or
deceived into resigning or retiring, and it specifically did not consider
situations in which an employee is coerced or deceived into accepting a
new position, because it was not alleged by petitioner Williams.
3. The court rejected petitioner Williams’s argument that the Board’s
decision to overrule Roden while his appeal was ongoing violated his due
process rights.
NONPRECEDENTIAL:
Watkins v. Merit Systems Protection Board, No. 2018-1420 (Fed. Cir. June 8,
2018) (MSPB Docket No. DC-0831-18-0148-I-1) (affirming the Board’s dismissal
of the petitioner’s appeal concerning his request for an immediate retirement
annuity under the Civil Service Retirement System on two grounds: that the
Board lacked jurisdiction and that the appeal was duplicative of a still-pending
appeal on the same claim).
Garvin v. Merit Systems Protection Board, No. 2018-1083 (Fed. Cir. June 11,
2018) (MSPB Docket No. DC-1221-17-0550-W-1) (affirming the Board’s decision
that dismissed the petitioner’s individual right of action appeal for failure to
nonfrivolously allege jurisdiction and/or failure to exhaust her administrative
remedies).
Watson v. Federal Bureau of Prisons, No. 2017-1979 (Fed. Cir. June 12, 2018)
(Arbitrator’s decision in No. 14-57399-A) (finding, sua sponte, that the court
lacked jurisdiction over the mixed case and transferring the case to district
court even where the employee asserted that he had abandoned his
discrimination claims because the court determined that the case still
presented at least claims of violations of the Rehabilitation Act).
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Federal Education Association – Stateside Region and
Karen Graviss
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3173
Docket Number: 14-1024-00182-7 (Arbitration)
Issuance Date: May 14, 2018
On October 13, 2017, the court granted the respondent’s petition for
rehearing en banc and vacated the panel decision reversing the agency’s
removal action on due process grounds. On May 14, 2018, by per curiam
order, the court dissolved the en banc court and referred the case to the
original panel for further proceedings.
NONPRECEDENTIAL:
Saxiones v. Merit Systems Protection Board, No. 2017-2308 (Fed. Cir. May
15, 2018) (MSPB Docket No. DA-0831-17-0169-I-1) (dismissing as moot
the petitioner’s appeal regarding his entitlement to make a deposit in order
to receive retirement credit for his post-1956 military service).
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COURT DECISION
PRECEDENTIAL:
Petitioner: Tito C. Lledo
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1717
MSPB Docket No. SF-0831-16-0799-I-1
Issuance Date: March 28, 2018
From 1968 to 1991, the appellant held a number of not-to-exceed (NTE)
and indefinite appointments in the excepted service at the U.S. Navy
Public Works Center in Subic Bay, Philippines. On March 31, 2014, he
filed an application for deferred retirement benefits under the Civil
Service Retirement System (CSRS) and requested to make a
post-employment deposit into the Civil Service Retirement and Disability
Fund. In a reconsideration decision, the Office of Personnel
Management (OPM) denied his application and deposit request. The
appellant filed a Board appeal challenging OPM’s reconsideration
decision, which the administrative judge affirmed.
Holding: The Court affirmed the Board’s decision affirming OPM’s
reconsideration decision.
(1) The Court agreed with the administrative judge’s findings that the
appellant failed to show that he completed at least 1 year, out of
the last 2 years preceding his separation, in a covered position—
i.e., a position subject to the Civil Service Retirement Act—and
that, therefore, he was not entitled to a CSRS annuity benefit. In
so finding, the Court observed that temporary, intermittent,
term, and excepted indefinite appointments are not covered
positions.
(2) The Court rejected the appellant’s argument that, pursuant to
5 C.F.R. § 831.303(a), he should be permitted to make a deposit
to convert is his creditable service prior to October 1, 1982, into
covered service. The Court explained that section 831.303(a)
allows an employee who qualifies for an annuity to include certain
periods of creditable service in the calculation of covered service
but does not alter the definition of covered service or convert
creditable service into covered service.
(3) The Court further noted that the relevant time period for the
calculation of covered service is the last 2 years of the appellant’s
employment, not the appellant’s creditable service between 1968
and September 30, 1982. The Court found that section 831.303(a)
does not change the relevant time period during which the
appellant needed to have served in a covered position or the fact
that he never served in a covered position during the critical time
period.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Scott Holton
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1430
Docket Number: PH-0752-15-0475-I-1
Issuance Date: March 9, 2018
Adverse Action Charge
-Illegal Drug Use
Harmful Error
The appellant was a Rigger Supervisor for the Department of the Navy (Navy).
On March 11, 2015, he oversaw a crane team when an accident occurred in
which a crane struck a building, causing approximately $30,000 in damage. On
the evening of the accident, the agency orally informed all of the members of
the crane team, including the appellant, that they would be drug tested due to
the severity of the accident. The appellant took the drug test, which tested
positive for marijuana. Two days after the appellant provided his urine sample
for the drug test, the Navy issued a written notice informing him that the
reason for the drug test was the accident. On May 15, 2015, the Navy
proposed his removal. After affording him an opportunity to respond to the
proposal, the Navy removed him, effective July 8, 2015.
On appeal to the Board, the administrative judge affirmed the appellant’s
removal. The administrative judge found that the Navy had properly selected
the appellant for drug testing, given that he was the first-line supervisor of the
employees operating the crane at the time of the accident. The administrative
judge further found that the drug test was valid and the Navy had established
its charge of illegal drug use. Finally, the administrative judge rejected the
appellant’s affirmative defense of harmful procedural error, finding that the
Navy’s failure to provide the appellant with advance written notice of the
reason for the test was a harmless error that did not change the outcome of
the test. On review, the Board affirmed the initial decision.
Holding: The Court affirmed the Board’s decision to uphold the appellant’s
removal. The Navy was justified in requiring the appellant to submit to
drug testing because it had a reasonable suspicion that the appellant,
through his actions or inactions, contributed to the accident where he
instructed the team immediately before the accident and was still actively
involved in the operation when the accident occurred. The Court rejected
the appellant’s argument that he did not receive adequate written notice of
the drug test. The Fourth Amendment imposes no such requirement. The
Navy’s failure to provide advance written notice in accordance with its
regulation was not harmful error because the purpose of the notice
requirement is not to provide an opportunity to challenge the propriety of
the test, but rather to ensure that the employee will be present at the drug
test and be able to request deferral under appropriate circumstances.
Petitioners: Federal Education Association-Stateside Region and Karen
Graviss
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3173
Docket Number: 14-1024-00182-7
Issuance Date: March 13, 2018
On October 13, 2017, the Court granted a rehearing en banc in this case
concerning a petition for review of an arbitrator’s decision. On March 8, 2018,
the parties presented oral argument on the issue of timeliness and, in
particular, when the decision of an arbitrator “issues” within the
meaning of 5 U.S.C. § 7703(b)(1). On March 13, 2018, the Court ordered
the parties to file supplemental briefs to address the Court’s
jurisdiction under 5 U.S.C. § 7703(b)(1) and also invited amici curiae to
submit amicus briefs on this issue.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Michael J. Johnen
Respondents: U.S. Merit Systems Protection Board
U.S. Department of the Army
Tribunal: U.S. Court of Appeals for the Ninth Circuit
Case Number: 16-73427
Docket Number: SF-1221-14-0338-W-2
Issuance Date: February 26, 2018
Whistleblower Protection Act
-Contributing Factor
Due Process
The petitioner was a Supervisory Engineering Technician at a Department of
the Army (agency) military base in California. In October 2012, he filed a
complaint with the Department of Defense Inspector General (IG) alleging that
he was the subject of an investigation during which agency employees made
false statements about him and that agency managers failed to address his
concerns about nepotism within the agency. In a July 2013 meeting, the
petitioner again raised his concerns regarding nepotism to an agency official.
In August 2013, the agency terminated the petitioner and subsequently barred
him from the military base for 180 days. The petitioner filed a complaint with
the Office of Special Counsel (OSC) in September 2013, alleging that the
agency terminated him and barred him from the base as a result of his
protected disclosures. Thereafter, he filed an individual right of action appeal
with the Board.
Following a hearing, the administrative judge issued an initial decision denying
the petitioner’s request for corrective action. She found that the petitioner
exhausted his administrative remedies with OSC regarding his termination, the
decision to bar him from base, and his IG complaint. She found, however, that
the petitioner failed to exhaust his July 2013 disclosure regarding nepotism.
She further found that the Board lacked jurisdiction over the decision to bar
him from the base as a personnel action. As to the merits, she found that the
petitioner failed to establish that his IG complaint was a contributing factor to
his termination. The petitioner filed a petition for review and the Board, in a
decision by its two Members at the time, affirmed the initial decision.
Holding: The court dismissed the petition for review as to the case against
the Board and it denied the petition in part, granted the petition in part,
and remanded the appeal to the Board as to the case against the
Department of the Army.
1. This is a “mixed” case, in that the petitioner challenged both
jurisdictional or procedural matters and the merits of an adverse
personnel action. In such a case, the agency that took the adverse
personnel action is the proper respondent. Here, the court found that
the Department of the Army is the only proper respondent because it
took the adverse personnel actions against the petitioner. It therefore
dismissed the case against the Board.
2. The court rejected the petitioner’s argument that the Board violated his
due process rights by deciding his appeal when there was a vacancy on
the three-Member Board. The court found that the relevant statute and
the applicable regulations suggest that the Board can take action
without all three Board Members.
3. As to the merits of the appeal, the court found that the IG complaint
constituted a protected disclosure and that both the termination and the
decision to bar the petitioner from the base were personnel actions. It
then concluded that substantial evidence supported the Board’s finding
that the petitioner failed to establish that his IG complaint was a
contributing factor to the two personnel actions.
4. In an unpublished Memorandum issued the same day as this published
Opinion, the court determined that a fair reading of the petitioner’s OSC
complaint encompassed his disclosure in July 2013 concerning nepotism
within the agency. Accordingly, the court found that the petitioner
exhausted this claim, vacated the Board’s contrary finding, and
remanded the appeal to the Board for adjudication.
Petitioner: George Duggan
Respondent: U.S. Department of Defense
Tribunal: U.S. Court of Appeals for the Ninth Circuit
Case Number: 16-73640
Docket Number: SF-1221-14-0544-W-2
Issuance Date: February 26, 2018
Whistleblower Protection Act
-Clear and Convincing Evidence
Evidence
-Admission
The petitioner, a Senior Auditor at the Defense Contract Audit Agency, filed a
Board appeal alleging that the agency’s decisions to suspend him for 10 days,
rate his performance as only minimally successful, revoke his telework
agreement, and fail to grant him a cash award were taken in retaliation for his
7 protected disclosures.
Following a hearing, the administrative judge issued an initial decision denying
the petitioner’s request for corrective action. He found that the petitioner
exhausted his administrative remedies with OSC and that the petitioner had
made four protected disclosures that were a contributing factor to the
challenged personnel actions. The administrative judge concluded, however,
that the agency had shown by clear and convincing evidence that it would have
taken the same personnel actions in the absence of the protected disclosures.
The petitioner filed a petition for review and the Board affirmed the initial
decision. In its decision, the Board found that the administrative judge did not
abuse his discretion when he denied the petitioner’s motion to compel
discovery and request for additional witnesses at the hearing.
Holding: The court denied the petition of review and affirmed the Board’s
decision.
1. The court assumed without finding that all seven of the petitioner’s
disclosures were protected and found that substantial evidence
supported the Board’s conclusion that the agency proved by clear and
convincing evidence that it would have taken the challenged personnel
actions in the absence of those protected disclosures. In analyzing the
agency’s burden, it adopted the U.S. Court of Appeals for the Federal
Circuit’s test as set forth in Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
2. The court found that the administrative judge did not abuse his
discretion when he excluded the disputed evidence.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Michael J. O’Farrell, Jr.
Respondent: Department of Defense
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1223
Issuance Date: February 9, 2018
MSPB Docket No. DE-4324-14-0013-I-1
Miscellaneous Topics
--USERRA
---- Entitlement to military leave pursuant to 5 U.S.C. § 6323
The petitioner was a General Attorney in the Office of Counsel for the
aviation subordinate command of the Defense Logistics Agency (DLA) within
the Department of Defense (DOD). He was also a member of the U.S. Army
Reserve at all times relevant to this matter. On September 11, 2012,
during the petitioner’s service, President Barack Obama published a notice
in the Federal Register “continuing for [one] year the national emergency
... with respect to the terrorist attacks of September 11, 2001, and the
continuing and immediate threat of further attacks on the United States.”
On April 17, 2013, the petitioner received an order from the U.S. Army that
directed him to replace a civilian attorney employed at the Naval Surface
Warfare Center (NSWC). The NSWC attorney, who was also a member of
the U.S. Army Reserve, was replaced because he had been deployed to
Afghanistan. The order specifically stated that the petitioner was “ordered
to active duty for operational support under provision of [10 U.S.C. §]
12301(d).” The order further stated that his “operational support” would
consist of his “serv[ic]e as[] legal counsel.”
The petitioner reported for duty on April 22, 2013, and he served a total of
162 days, until September 30, 2013. It was undisputed that, by August 26,
2013, the petition had used his 15 days of military leave and most of his
accrued annual leave and advance annual leave. To avoid being placed on
military leave without pay for the remainder of his active duty service, the
petitioner requested via email an additional 22 days of leave pursuant to 5
U.S.C. § 6323(b). DLA denied this request because the order did not state
that he was “under contingency orders.” The petitioner filed an Office of
Personnel Management Form 71, Request for Leave or Approved Absence,
but DLA again denied this request because his “active duty is not in support
of a contingency operation.”
The petitioner filed a Board appeal, alleging that DOD failed to grant him
military leave for active military service in violation of the Uniformed
Services Employment and Reemployment Rights Act of 1994
(USERRA). The administrative judge denied the claim and dismissed
the appeal, and the Board issued a decision stating that the two
Board Members could not agree on the disposition of the petition for
review. Thus, the initial decision constituted the final decision of
the Board in this appeal. The petitioner appealed that decision to
the U.S. Court of Appeals for the Federal Circuit.
The question before the court was whether, under the proper construction
of 5 U.S.C. § 6323(b), the Board erred in denying the petitioner’s request
for 22 days of additional military leave. The court noted that the Board
found that the petitioner was not entitled to this additional leave because
there was no specific contingency operation identified in the military
order, but the Board failed to analyze what qualified as “support” or as a
“contingency operation” under the relevant statutory provisions. The
court first determined that the Board misinterpreted 5 U.S.C. § 6323(b),
which states that an employee who “performs full-time military service as a
result of a call or order to active duty in support of a contingency operation
as defined in [10 U.S.C. §] 101(a)(13) [(2012)]... is entitled... to leave
without loss of, or reduction in, pay, leave to which he otherwise is
entitled, credit for time or service, or performance or efficiency rating”
that shall not exceed 22 workdays in a calendar year. The court evaluated
the relevant statutory provisions, regulations, and legislative history, and it
came to the following conclusions: (1) “in support of” includes indirect
assistance to a contingency operation; (2) “contingency operation” includes
a military operation that results in service members being called to active
duty under any provision of law during a national emergency; (3) upon
request, a service member is entitled to additional leave as long as leave is
“appropriate” under the requirements set forth in section 6323; and (4)
the service member’s request for additional leave need not take any
particular form or use any particular language.
The court concluded that the Board abused its discretion when it
determined that the petitioner was not entitled to additional leave under 5
U.S.C. § 6323(b). In reaching this conclusion, the court noted that the
petitioner replaced an NSWC attorney who directly supported the
contingency operation through the NSWC attorney’s deployment to
Afghanistan, the petitioner provided assistance to the U.S. Navy’s
warfighting capabilities while serving on active duty at NSWC, the order
calling him to active duty was made pursuant to 10 U.S.C. § 12301(d),
which qualifies as a “provision of law,” and the order states that he would
provide “operational support” for this mission.
The court rejected the Government’s counterarguments, and it reversed
the Board’s final decision. The court noted that its holding did not mean
that all reservists called to active duty during a national emergency will be
entitled to additional leave because they must demonstrate that their call
to active duty was “in support of a contingency operation” as construed
therein.
NONPRECEDENTIAL:
Hirschfield v. Office of Personnel Management, No. 2017-2607 (Feb. 12, 2018)
(MSPB Docket No. PH-0845-17-0035-I-1) (finding that 5 U.S.C. § 8418, which
governs the calculation of the deposit required when a federal employee
enters into a post-retirement marriage and elects a survivor annuity, does not
impose an unequal burden on same sex couples and does not violate Ms.
Hirschfield’s right to equal protection, and upholding the administrative
judge’s decision to affirm OPM’s annuity overpayment calculation).
Klippel v. Department of Homeland Security, No. 2017-1636 (Feb. 13, 2018)
(MSPB Docket No. DC-0752-13-0616-I-2) (Rule 36 affirmance).
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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: Adam Delgado
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Seventh Circuit
Case Number: 16-1313
Issuance Date: January 29, 2018
Individual right of action (IRA) appeals
Exhaustion of Remedies
Protected Disclosure
The petitioner is a Special Agent at the Department of Justice’s Bureau of
Alcohol, Tobacco, Firearms, and Explosives. He filed an IRA appeal with the
Board, alleging that his supervisors retaliated against him after he reported his
suspicions that another agent had improperly shot at a fleeing suspect,
provided an inaccurate report of the incident, and testified falsely about it in a
Federal criminal trial.
The administrative judge dismissed the appeal for lack of jurisdiction, finding
that the appellant failed to prove that he exhausted his administrative
remedies with the Office of Special Counsel (OSC). Specifically, although he
established that he filed an OSC complaint, he did not prove that he gave OSC
a sufficient basis to pursue and investigation that might lead to corrective
action. The Board affirmed, and the appellant petitioned for review to the
Seventh Circuit.
Holding: The court granted the petition for review and remanded to the
Board for adjudication of the merits.
1. The Board erred by disregarding the appellant’s sworn and unsworn
statements regarding the information he provided to OSC. By doing so, the
Board effectively required the appellant to submit a copy of his OSC
complaint in order to prove exhaustion. There is no statutory or regulatory
requirement for him to do so, and a complainant who uses OSC’s e-filing
system will likely not even have a copy of his complaint to submit. In this
case, the petitioner submitted OSC’s close-out letter and a declaration
detailing the allegations that he raised to OSC. This was sufficient to satisfy
the exhaustion requirement.
2. The Board applied an overly-stringent approach to the exhaustion
requirement, effectively requiring the petitioner to allege before OSC all of
the facts that he would be required to prove in his IRA appeal. All that is
required is that the complainant present OSC with sufficient information to
permit a legally sophisticated reader to understand his claim and
investigate it further.
3. Although the petitioner did not report to his supervisors that the
other agent had definitely perjured himself, he reported a reasonable
suspicion of perjury. This was sufficient for his disclosure to be protected
under 5 U.S.C. § 2302(b)(8).
NONPRECEDENTIAL:
Mott v. Merit Systems Protection Board, No. 2017-1222 (Jan. 26, 2018) (AT
0752-14-0451-I-1) (reversing and remanding the Board’s decision to mitigate
the petitioner’s removal to a reduction in grade and pay; the Board erred in
sustaining one of the charges and so a new penalty determination was
necessary).
LEGISLATION
The National Defense Authorization Act for Fiscal Year 2018, Pub. L.
No. 115-91, 131 Stat 1283:
Section 1097 of this Act adds and amends several sections of title 5 of
the United States Code. The Act became law on December 12, 2017.
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Rob Bryant, Brian Ferguson, Andreas Hau
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2017-1241, 2017-1243, 2017-1245
MSPB Docket Numbers: SF-4324-16-0265-I-1, SF-4324-16-0267-I-1,
SF-4324-16-0268-I-1
Issuance Date: December 29, 2017
Uniformed Services Employment and Reemployment Rights Act
(USERRA)
Collateral Estoppel (Issue Preclusion)
While employed by the agency’s Customs and Border Protection, each
petitioner filed a Board appeal alleging that the agency’s actions created a
hostile work environment and violated USERRA. The administrative judge
consolidated the appeals and held a hearing. At different times prior to
the issuance of the initial decision, the petitioners resigned from the
agency, claiming that they were forced to do so as a result of the
hostile work environment. The administrative judge issued an initial
decision denying the petitioners’ request for corrective action, finding,
among other things, that they failed to establish that the agency
subjected them to a hostile work environment in violation of USERRA.
The administrative judge declined to adjudicate the petitioners’
constructive discharge claims and advised them that they could pursue
those claims by filing separate appeals under 5 U.S.C. chapter 75. The
initial decision became the final decision of the Board when none of the
parties petitioned for review.
The petitioners thereafter filed a second set of Board appeals alleging
that the agency violated USERRA when it created a hostile work
environment that forced them to resign. In petitioner Hau’s appeal, the
administrative judge issued an initial decision dismissing his appeal on
the ground that it was barred by res judicata. Among other things, the
administrative judge found that, because the petitioner resigned prior
to the hearing date in the prior appeal, he could have asserted his
constructive discharge claim in his prior appeal but failed to do so. In
petitioner Bryant’s and petitioner Ferguson’s appeals, the
administrative judge issued initial decisions dismissing the appeals on
the ground that their claims were barred by collateral estoppel. The
administrative judge reasoned that, because they did not allege any
actions by the agency that contributed to the hostile work environment
between the date of the hearing in the prior appeal and their respective
dates of resignation, their constructive discharge claims were barred.
The petitioners petitioned for review of the initial decisions by the full
Board.
In petitioner Hau’s appeal, the Board issued a precedential decision that
vacated the initial decision dismissing the appeal as barred by res
judicata and dismissed the appeal as barred by collateral estoppel
instead. The Board found that the petitioner was collaterally estopped
because, in the prior appeal, the administrative judge found jurisdiction
to hear his USERRA claim, the hostile work environment claim was
actually litigated, and the determination on the claim was necessary to
the administrative judge’s conclusion that there was not a hostile work
environment in violation of USERRA. Because the Board found that the
hostile work environment claim in his prior appeal was the sole basis for
his current constructive discharge claim, it concluded that his
constructive discharge claim was collaterally estopped. In reaching this
decision, the Board overruled three previous Board decisions in which it
held that, although an individual raised identical issues in two separate
appeals, an earlier decision that the individual did not prevail on the
merits should not preclude a finding that he made a nonfrivolous
allegation establishing jurisdiction in a subsequent appeal. The Board
reasoned that, to find jurisdiction and allow the matter to proceed to
the merits phase of the case when the individual would be barred by
collateral estoppel from presenting any of his merits arguments during
such proceedings would defy logic. The Board therefore concluded that
dismissal for lack of jurisdiction was appropriate.
In petitioner Bryant’s and petitioner Ferguson’s appeals, the Board
issued nonprecedential final orders affirming the initial decisions. The
Board found that, because the petitioners specifically denied that there
was any relevant action by the agency after the hearing date in the
prior appeal and that there was no additional factual basis beyond what
was decided in the prior appeal, they cannot make a nonfrivolous
allegation of a USERRA violation. The Board therefore affirmed the
dismissals for lack of jurisdiction.
Holding: The court affirmed the Board’s decisions, finding that the
petitioners’ current USERRA appeals concerning their constructive
discharge claims are barred by collateral estoppel. The court agreed with
the Board that an individual cannot make a nonfrivolous allegation of a
USERRA violation if its contentions are wholly precluded. The court also
agreed with the Board’s reasoning in overruling its precedent on this
matter, as it found that these appeals illustrate the flaw in the Board’s
previous decisions; that is, even if the petitioners had been granted a
hearing in their second USERRA appeals concerning their constructive
discharge claims, they would not have been able to present any content at
the hearing because they did not make any additional allegations beyond
those presented in their prior appeals. The court therefore concluded that
the Board properly dismissed the appeals for lack of jurisdiction.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Cathedral M. Henderson
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1071
Docket Number: AT-0752-15-0860-I-1
Issuance Date: December 26, 2017
Indefinite Suspension
The appellant is a GS-13 Program Analyst at the Department of Veterans Affairs
(VA) Health Eligibility Center. On July 8, 2015, he was indicted by a Federal
grand jury on 50 counts of making false statements related to health care
matters in violation of 18 U.S.C. § 1035, an offense punishable by fines,
imprisonment, or both. The indictment alleged that the appellant had ordered
VA employees under his direction to close over 2700 unresolved authorized
consults for veterans to obtain medical care by an outside provider by falsely
declaring the consults had been completed or refused by the patients, when he
knew the consults were still pending and unresolved.
Following the indictment, on July 22, 2015, the VA proposed to indefinitely
suspend the appellant. The proposal notice informed the appellant that the
VA had reasonable cause to believe that he had committed a crime for which a
sentence of imprisonment could be imposed because he had been indicted on
50 counts of making false statements related to health care matters. The
proposal notice further informed him that it was not in the agency’s best
interest to allow him to remain in a duty status during the law enforcement
investigation and related judicial proceedings. After receiving the appellant’s
response, on August 7, 2015, the VA issued a decision sustaining the indefinite
suspension until the completion of the judicial proceedings against the
appellant.
On appeal to the Board, the administrative judge affirmed the indefinite
suspension, finding that the grand jury indictment provided the VA with
reasonable cause to believe that the appellant had committed a crime for
which a punishment of imprisonment could be imposed. On review, the Board
affirmed the initial decision.
Holding: The Court affirmed the Board’s decision, stating that it has
repeatedly made clear that an indictment for a crime for which a sentence
of imprisonment may be imposed will, as a general rule, provide reasonable
cause for an agency to believe that the employee has committed such a
crime. The Court rejected the appellant’s argument that the grand jury did
not act as an independent arbiter of facts because employees of the VA
allegedly supplied the testimony and evidence that it considered. The
Court found that the record was devoid of any evidence suggesting that the
Federal grand jury failed to independently and impartially weigh the
evidence presented to it. The Court also rejected what it characterized as
the appellant’s unsupported assertion that the agency violated his due
process rights by not providing him with adequate notice of the specific
charges against him.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Chase M. Lentz
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1285
Issuance Date: December 12, 2017
MSPB Docket No. SF-4324-15-0364-I-1
Defenses and Miscellaneous Claims
--Collateral estoppel
The appellant, a botanist, had no disciplinary history until he received a
letter of reprimand on May 15, 2014, followed by a November 13, 2014
letter proposing a 14-day suspension. Soon after receiving this letter, the
appellant went on medical leave, and the 14-day suspension was sustained
and effected while he was on leave. The appellant resigned on February
13, 2015, citing harassment and a hostile work environment that
aggravated his illness and his veterans’ disability and made his work
circumstances intolerable.
On February 25, 2015, the appellant filed a Board appeal in which he
asserted that he was constructively discharged. The administrative judge
bifurcated the appeal—Lentz I was designated as a claim of involuntary
resignation pursuant to 5 U.S.C. chapter 75, and Lentz II was designated as
a USERRA appeal. The administrative judge dismissed Lentz I for lack of
jurisdiction, without holding the appellant’s requested hearing, because he
failed to nonfrivolously allege that he was subjected to a
discriminatory/retaliatory hostile work environment so coercive in nature
that he had no choice but to resign. The Board affirmed the administrative
judge’s decision, and the appellant did not appeal the Board’s decision to
the court.
In Lentz II, the administrative judge noted that the matter was limited to
claims that an employer discriminated in employment or took an adverse
employment action because of protected USERRA activity. The
administrative judge found that the appellant failed to make a nonfrivolous
allegation that a reasonable person in his position would have felt
compelled to resign due to USERRA-based discrimination or reprisal. The
administrative judge further found that the appellant was collaterally
estopped from raising in Lentz II issues relating to the “overall issue of
whether his resignation was involuntary” and “the issue of whether the
agency violated USERRA by denying his request for accommodation,” which
were litigated in Lentz I. After the appellant filed a petition for review, the
Board upheld the administrative judge’s application of collateral estoppel
and affirmed the administrative judge’s decision to dismiss the appeal for
lack of jurisdiction. The appellant appealed to the court.
Before the court, the Board recognized that the administrative judge’s
decision to bifurcate the appeal was confusing and unclear, and it conceded
that it erred in the application of collateral estoppel. However, the Board
urged the court to affirm its decision dismissing the appeal for lack of
jurisdiction because the appellant failed to make a nonfrivolous allegation
of an involuntary resignation caused by USERRA violations.
Holding: The court found that the issue in Lentz I—that the appellant failed
to make a nonfrivolous allegation of involuntary resignation based on
alleged coercive action actions other than USERRA violations—was not the
same issue that was in Lentz II, and therefore, the decision in Lentz I had
no preclusive effect on Lentz II. The court further found that the Board
erred by improperly bifurcating the proceeding and by failing to consider
the totality of the evidence in determining the question of voluntariness in
Lentz II. The court clarified that the cause of action in Lentz II was a
constructive discharge, not the USERRA violation alone; therefore, all of
the evidence relevant to the constructive discharge—including evidence
related to the allegations of USERRA-violating retaliation—must be
considered. The court vacated the Board’s decision and remanded the
appeal to address this issue. The court did not decide the question of
whether the appellant’s allegations were nonfrivolous based on the totality
of the evidence.
NONPRECEDENTIAL:
Greer v. Department of the Air Force, No. 2017-1939 (Dec. 12, 2017) (MSPB
Docket No. DA-0752-17-0149-I-1) (affirming the administrative judge’s finding
that the appellant’s appeal challenging his removal was barred by collateral
estoppel (or issue preclusion) because, among other things, the same
jurisdictional issue was litigated in an earlier appeal and the Board concluded
therein that he had waived his right to appeal the removal pursuant to a last
chance agreement).
Jones v. Department of Health & Human Services, No. 2017-2310 (Dec. 11,
2017) (MSPB Docket Nos. DE-3330-17-0119-I-1, DE-4324-17-0121-I-1) (affirming
the administrative judge’s conclusion that the appellant did not prove that the
agency violated his rights under VEOA or USERRA when it did not select him for
the Public Health Advisor position).
Wells v. Merit Systems Protection Board, No. 2017-1298 (Dec. 8, 2017) (MSPB
Docket No. AT-0752-16-0206-I-1) (Rule 36 affirmance).
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: Rory C. Flynn
Respondent: U.S. Securities & Exchange Commission
Tribunal: U.S. Court of Appeals for the Fourth Circuit
Case Number: 16-2122
MSPB Docket Number: DC-1221-14-1124-W-1
Issuance Date: December 7, 2017
Whistleblower Protection Act
- Protected “Disclosure”
The agency terminated the petitioner from Federal service. Because the
petitioner believed that the agency terminated him in retaliation for making
protected whistleblowing disclosures, he sought corrective action from the
Office of Special Counsel. Thereafter, he filed an individual right of action
appeal with the Board. The administrative judge issued an initial decision that
denied his request for corrective action, finding that he failed to prove that he
made a protected disclosure. The petitioner filed a petition for review of the
initial decision with the Board and, because the two Members could not agree
on an outcome, the initial decision became the Board’s final decision.
Holding: The court denied in part and granted in part the petitioner’s
petition for review and remanded the appeal to the administrative judge
for further proceedings.
1. The administrative judge properly concluded that the petitioner failed
to prove that his disclosures concerning agency Rule 900(a) were
protected. Although Rule 900(a) falls within the scope of 5 U.S.C.
§ 2302(b)(8), a disinterested observer could not reasonably conclude
that the agency violated the rule considering its discretionary and
aspirational language.
2. Because the administrative judge did not specifically analyze the
petitioner’s claim that he made protected disclosures concerning agency
Rule 900(b), remand is necessary so that the administrative judge can
evaluate the evidence in the first instance and perhaps allow for further
development of the record.
3. If the petitioner establishes a prima facie case of whistleblower reprisal
on remand, then the administrative judge may revisit the petitioner’s
arguments concerning evidence and discovery related to the agency’s
burden.
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COURT DECISIONS
PRECEDENTIAL:
Petitioner: John W. Morrison
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2542
MSPB Docket No. PH-0752-14-0669-B-1
Issuance Date: November 29, 2017
The agency proposed to remove the appellant, and the deciding official
drafted and signed a decision letter imposing his removal effective
July 13, 2012. After becoming aware that he would be removed and
believing that his removal would jeopardize his retirement benefits, the
appellant retired effective July 13, 2012.
The appellant filed an involuntary retirement appeal with the Board.
The administrative judge dismissed the appeal for lack of jurisdiction
and, upon the appellant’s petition for review, the Board remanded the
appeal for a jurisdictional hearing to determine if his retirement was
involuntary because he materially relied on agency misinformation
regarding the effect of a removal action on his retirement benefits.
Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶¶ 8–13 (2015).
After holding a hearing, the administrative judge found that the
appellant’s retirement was involuntary because he had not made an
informed choice to retire in light of the fact that the agency failed to
correct his misunderstanding that he would lose his retirement benefits
if he was removed. The administrative judge ordered the agency to
restore the appellant to the status quo ante by cancelling his retirement
and retroactively returning him to his position effective July 13, 2012,
and paying the appropriate amount of back pay.
The agency petitioned the Board for review of the initial decision. The
Board affirmed the initial decision, except as modified to clarify how
the facts of the case may affect the status quo ante relief. Specifically,
the Board found that status quo ante relief required the agency to first
determine if and when the appellant would have been removed had he
not retired, and then to take the necessary unexecuted steps to issue its
decision.
The appellant appealed the Board’s decision to the Federal Circuit.
Holding: The Federal Circuit lacks jurisdiction to review the Board’s
opinion because it was not a “final order” or “final decision” of the
Board.
(1) The Federal Circuit has jurisdiction to review “a final order or
final decision” of the Board. 28 U.S.C. § 1295(a)(9); see 5 U.S.C.
§ 7703(b)(1)(A)(stating that “a petition to review a final order or
final decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit”). As a general rule, an
order is final only when it “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.”
Therefore, an order remanding a matter to an administrative
agency for further findings and proceedings is not final.
(2) Although the Board concluded that the appellant’s retirement was
involuntary and that he should be returned to the status quo ante,
the Board did not dispose of the entire action. Rather, the Board
stated that, to ascertain the appropriate relief, “the agency
[must] first determine if and when the appellant would have been
removed had he not retired.” The Board then outlined various
potential outcomes, depending on how the agency decided that
question.
(3) Because the Board’s ruling requires the agency to do more than
just “execute the judgment,” it was not a final order or decision
for purposes of 28 U.S.C. § 1295(a)(9), and the court lacks
jurisdiction to review the appellant’s petition.
NONPRECEDENTIAL:
Coulibaly v. Merit Systems Protection Board, No. 14-1255 (consolidated
with 14-1256) (D.C. Cir.
Nov. 21, 2017) (MSPB Docket Nos. DC-1221-13
0440-W-1; DC-1221-14-0721-W-1) (affirming the Board’s final decisions
dismissing the appellant’s individual right of action appeals for lack of
jurisdiction).
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COURT DECISION
PRECEDENTIAL:
Petitioner: John C. Parkinson
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3066 (en banc)
MSPB Docket No. SF-0752-13-0032-I-2
Issuance Date: October 26, 2017
In 2012, the Federal Bureau of Investigation (FBI) removed the
appellant, a preference-eligible veteran, from his position as a Special
Agent based on charges of theft, obstruction of the Office of
Professional Responsibility process, unprofessional conduct, and lack of
candor. He appealed his removal to the Board and raised affirmative
defenses of whistleblower reprisal and discrimination based on military
service under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA). The administrative judge dismissed the
appellant’s whistleblower reprisal affirmative defense, finding that,
pursuant to Board precedent, FBI agents are not entitled to raise a
whistleblower reprisal affirmative defense under 5 U.S.C.
§ 7701(c)(2)(B)—which requires reversal of an agency’s decision that was
based on any prohibited personnel practice described in section
2302(b)—because the FBI is excluded from the definition of “agency” in
5 U.S.C. § 2302. The administrative judge also found that the appellant
was ineligible to raise an affirmative defense under USERRA, sustained
the charges of lack of candor and obstruction and affirmed the removal.
On the appellant’s petition for review, the Board affirmed the initial
decision.
The appellant appealed the Board’s decision to the Federal Circuit,
which sustained only the obstruction charge and found that the
appellant was entitled to bring an affirmative defense of whistleblower
reprisal under 5 U.S.C. § 7701(c)(2)(C)—which requires reversal of an
agency decision shown to be “not in accordance with law.” Parkinson v.
Department of Justice, 815 F.3d 757 (Fed. Cir. 2016). The court
vacated the Board’s affirmance of the appellant’s removal and
remanded the matter for the Board to consider the obstruction charge,
the appellant’s whistleblower reprisal affirmative defense, and the
appropriate penalty, if any. Subsequently, however, the court granted
the agency’s petition for rehearing en banc, vacated its prior decision,
and requested additional briefing from the parties regarding whether a
preference-eligible FBI employee challenging an adverse action before
the Board under 5 U.S.C. § 7513(d) may raise an affirmative defense of
whistleblower reprisal under 5 U.S.C. § 7701(c)(2)(C).
Parkinson v.
Department of Justice, 691 F. App’x 909 (Fed. Cir. 2016).
Holding: In the majority opinion, the en banc court found that
preference-eligible FBI employees challenging an adverse action
before the Board may not raise an affirmative defense of
whistleblower reprisal. Accordingly, the court vacated the portion of
the panel opinion finding that FBI employees may raise whistleblower
reprisal as an affirmative defense before the Board; reinstated the
panel opinion as to all other issues; and remanded the case to the
Board for consideration of the appropriate penalty.
(1) The court found that it was undisputed that, as a
preference-eligible FBI employee, the appellant may appeal
adverse employment actions to the Board, 5 U.S.C. §§ 7513(d),
7511(a)(1)(B)(i), but that he may not bring whistleblower claims
to the Board through an individual right of action (IRA) appeal
under § 1221 or as an affirmative defense under 5 U.S.C.
§ 7701(c)(2)(B) because those statutory provisions depend on the
whistleblower reprisal provision in § 2302(b)(8), which does not
apply to any FBI employees.
(2) The court further found that, considering the language of 5 U.S.C.
§§ 2302(b), 2303, 7701(c)(2), a preference-eligible FBI employee
may not raise an affirmative defense of whistleblower reprisal
under section 7701(c)(2)(C), which requires reversal of any agency
action that is “not in accordance with law.”
(3) Specifically, the court found that, while Congress exempted FBI
employees from whistleblower protections provided in
sections 1214, 1221, and 2302(b)(8), it provided them “a separate
but parallel” review process for claims of whistleblower reprisal
in 5 U.S.C. § 2303. This section prohibits FBI employees from
taking or failing to take a personnel action “with respect to” an
FBI employee as a reprisal for certain disclosures of information to
certain people and offices within the Department of Justice. In
addition, it requires the President to “provide for the
enforcement of this section in a manner consistent with
applicable provisions of sections 1214 and 1221,” and gives the
Attorney General the authority to prescribe regulations to ensure
that personnel actions are not taken against FBI employees as
reprisal for making a protected disclosure.
(4) The court found that “[t]he broad and encompassing language of
§ 2303, and the corresponding broad exclusion of the FBI from
§ 2302, indicates Congress’s intent to establish a separate regime
for whistleblower protection within the FBI.” Therefore, the
court concluded that allowing preference-eligible FBI employees
to raise whistleblower reprisal claims at the Board “would
contradict the unambiguous statutory language of § 2303 and
inappropriately expand the protections provided to FBI employees
by Congress.”
(5) The court further found that allowing the Board to review FBI
whistleblower reprisal claims under the broad language of
§ 7701(c)(2)(C) would render the specific provisions of
§ 7701(c)(2)(B) superfluous, which “violates the general/specific
canon of statutory construction.”
(6) The court found that the legislative history further supported this
conclusion, as well as the fact that Congress has recently
reconsidered and amended section 2303 and chose not to alter the
remedies available to FBI employees.
(7) The court concluded that the Board did not err in concluding that
it lacked jurisdiction to hear the appellant’s claim of
whistleblower reprisal under section 7701(c)(2)(C).
Judges Linn and Plager each issued a dissenting opinion and joined in
each other’s dissent. They would have found that a preference-eligible
FBI employee may raise an affirmative defense of whistleblower reprisal
in connection with their appeal of an adverse action before the Board.
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COURT DECISIONS
PRECEDENTIAL:
Petitioners: Federal Education Association – Stateside Region, Karen
Graviss
Respondent: Department of Defense, Domestic Dependents Elementary and
Secondary School
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3173
Issuance Date: October 13, 2017
Rehearing En Banc
Due Process
- Ex parte communications
In a previous precedential decision, 841 F.3d 1362, issued on November 18,
2016, the court reversed an arbitrator’s decision and held that a teacher’s
due process rights were violated by improper ex parte communications in
the form of emails between a supervisor and a subordinate who later
served as the deciding official in the teacher’s removal proceedings.
Holding: The court granted the agency’s motion for rehearing en banc, and
it vacated its November 18, 2016 decision. The court directed the parties
to file supplemental briefs and to specifically address the court’s decisions
in Sullivan v. Department of the Navy, 720 F.2d 1266 (Fed. Cir. 1983), and
Ryder v. United States, 585 F.2d 482 (Ct. Cl. 1978). The court further
invited the views of amici curiae.
NONPRECEDENTIAL:
Anderson v. Office of Personnel Management, No. 2017-1597 (Oct. 16, 2017)
(affirming the Board’s decision to sustain the denial of the appellant’s request
to waive recovery of an alleged annuity overpayment).
O’Lague v. Department of Veterans Affairs, No. 2016-2300 (Oct. 17, 2017)
(Rule 36 affirmance).
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Case Report - September 8, 2017 | 09-08-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_8_2017_1443967.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_8_2017_1443967.pdf | Case Report for September 8, 2017
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: Jason John Piccolo
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2016-2374
Issuance Date: September 7, 2017
Individual right of action (IRA) appeals
Nonfrivolous allegations
Contributing factor
The petitioner was a Detention and Deportation Officer at the Department of
Homeland Security. He filed an IRA appeal with the Board, claiming that the
agency took personnel actions against him in retaliation for a disclosure that
he made concerning the agency’s practice of releasing unaccompanied alien
children to non-family sponsors with criminal records.
The administrative judge dismissed the appeal for lack of jurisdiction, finding
that the petitioner failed to make a nonfrivolous allegation that his disclosure
was a contributing factor in the contested personnel actions. On appeal to the
Federal Circuit, the Board conceded that the administrative judge’s ruling was
the product of legal error.
Holding: The court reversed the Board’s decision and remanded the
appeal for an adjudication of the merits, including the appellant’s
requested hearing.
1. The Board has jurisdiction over an IRA appeal if the petitioner has
exhausted all administrative remedies and makes nonfrivolous allegations
that he made a protected disclosure that was a contributing factor in a
personnel action.
2. The Board must separate the issue of jurisdiction from that of the
merits. At the jurisdictional stage, the petitioner need only make
nonfrivolous allegations of a protected disclosure that was a contributing
factor in reprisal.
3. In this case, the administrative judge arrived at his jurisdictional
determination by considering evidence that pertained to the merits of the
case, i.e., an affidavit in which the alleged retaliating official disclaimed
any knowledge of or motive to retaliate for the petitioner’s disclosure.
4. The court has also required that petitioners in IRA appeals be
provided “notice of deficiencies before a claim is finally dismissed” and “an
opportunity to cure” their pleadings where specific details are “readily
available.”
NONPRECEDENTIAL:
Dullas v. Office of Personnel Management, No. 2017-1683 (Sep. 7, 2017) (SF
0831-16-0165-I-1) (affirming Board’s decision that upheld the Office of
Personnel Management’s final decision denying the petitioner’s application for
Civil Service Retirement System benefits on the basis that the petitioner, a
Philippine shipyard worker, lacked the requisite covered service).
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