Paul Daellenbach v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL DAELLENBACH, DOCKET NUMBER
Appellant, CH-0752-15-0318-I-2
v.
DEPARTMENT OF VETERANS DATE: October 19, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jordeana Daellenbach, Stoughton, Wisconsin, for the appellant.
Erin Buck Kaiser, Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error aff ected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective February 12, 2015, the agency removed the appellant from his
Pipefitter Leader position with the agency’s Veterans Affairs Medical Center in
Madison, Wisconsin, based on two charges: (1) theft (11 specifications); and
(2) lack of candor in an investigation (7 specifications). Daellenbach v.
Department of Veterans Affairs, MSPB Docket No. CH-0752-15-0318-I-1, Initial
Appeal File (IAF), Tab 7 at 20. The appellant filed a Board appeal challenging
his removal and requesting a hearing. IAF, Tab 1. Based on the appellant’s
unopposed motion, the administrative judge dismissed the appeal without
prejudice to refiling during the pendency of his criminal proceeding that was
based on the same conduct underlying the removal action. IAF, Tab 11 at 4,
Tab 12, Initial Decision at 1-2.
¶3 The appellant pleaded guilty in the U.S. District Court for the Western
District of Wisconsin to “Theft or Embezzlement of U.S. Property Valued at Less
than $1,000, a Class A Misdemeanor” in violation of 18 U.S.C. § 641.
Daellenbach v. Department of Veterans Affairs, MSPB Docket
No. CH-0752-15-0318-I-2, Appeal File (I-2 AF), Tab 15 at 4. The court entered a
3
judgment of guilty on August 25, 2015. Id. The appellant subsequently refiled
his removal appeal. I-2 AF, Tab 1. Based on the court’s judgment, the
administrative judge found that the appellant was both collaterally and judicially
estopped from contesting the theft charge in his removal appeal. I -2 AF, Tab 19.
The appellant disputed the lack of candor charge and the reasonableness of the
imposed penalty. I-2 AF, Tab 22 at 4-5. He also made claims of a violation of
due process, harmful procedural error, and disparate penalties. I-2 AF, Tab 30
at 3-5, Tabs 44-45, Hearing Transcript (HT) at 341-43, 345-46 (closing argument
of the appellant).
¶4 After holding a 2-day hearing, the administrative judge issued an initial
decision that affirmed the appellant’s removal. I-2 AF, Tab 47, Initial Decision
(ID) at 1, 20. Specifically, she sustained both charges, found a nexus between the
sustained misconduct and the efficiency of the service, and determined that the
penalty of removal was within the bounds of reasonableness. ID at 3-12, 18-20.
She further found that the appellant failed to prove the affirmative defenses of a
violation of due process or harmful procedural error. ID at 13-18.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, PFR File, Tab 5, to which the
appellant has replied, PFR File, Tab 8. 2
2
After filing the petition for review and reply, the appellant filed a motion for leave to
file an additional pleading. PFR File, Tab 10. The Board’s regulations provide for the
following four types of pleadings on review: a petition for review; a cross petition for
review; a response; and a reply to a response. 5 C.F.R. § 1201.114(a)(1)-(4). The
Board will not accept any other pleading unless a party files a motion with and obtains
leave from the Clerk of the Board to make such a filing. 5 C.F.R. § 1201.114(a)(5).
That motion must describe the nature of and need for the pleading. Id. Here, we find
that the appellant’s general explanation in his motion, that he needs to submit new
information relating to evidence already in the record or previously requested in this
case, fails to adequately describe the nature of and need for an additional pleading.
PFR File, Tab 10 at 4. Therefore, we deny the appellant’s motion for leave to file an
additional pleading. See 5 C.F.R. § 1201.114(a)(5); see also 5 C.F.R. § 1201.114(k)
(providing that, once the record on review closes, no additional evidence or argument
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the theft charge.
¶6 In his petition for review, the appellant does not dispute, and we find no
reason to disturb, the administrative judge’s finding that he is both collaterally
and judicially estopped from disputing the theft charge because of his guilty plea
and the district court’s judgment. ID at 3; I-2 AF, Tab 19; see, e.g., Raymond v.
Department of the Army, 34 M.S.P.R. 476, 478, 481 (1987) (finding that the
appellant’s guilty plea conviction in a prior criminal proceeding collaterally
estopped him from contesting the agency’s charge of falsification of his travel
voucher in his removal appeal); see also Doe v. Department of Justice,
123 M.S.P.R. 90, ¶ 11 (2015) (identifying the following three factors that are
generally relevant in determining whether judicial estoppel applies: (1) a party’s
later position must be clearly inconsistent with the same party’s prior position;
(2) in the earlier proceeding, the party was successful in persuading the
adjudicating body of its position, such that “judicial acceptance of an inconsistent
position in a later proceeding would create ‘the perception that either the first or
the second court was misled’”; and (3) “the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped”) (quoting New Hampshire v. Maine, 532 U.S.
742, 750-51 (2001)).
The administrative judge properly sustained the lack of candor charge.
¶7 The administrative judge sustained specifications A, C, E, and F of the lack
of candor charge, and merged specification G into F. ID at 5-12; see Ludlum v.
Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002) (explaining that lack
of candor “may involve a failure to disclose something that, in the circumstances,
should have been disclosed in order to make the given statement accurate and
will be accepted unless it is new and material and not readily available before the
record closed).
5
complete”). Based on our review of the record, we agree with the administrative
judge’s finding that the agency proved the lack of candor charge. ID at 12; see
Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)
(finding that, when more than one event or factual specification supports a single
charge, proof of one or more, but not all, of the supporting specifications is
sufficient to sustain the charge).
¶8 On review, the appellant reasserts his challenge to the accuracy of the
investigative report. PFR File, Tab 1 at 5-6; ID at 6-7. First, he claims that the
date of his initial interview was June 24, 2014, not June 26, 2014, as described in
the investigative report and in specifications A, C, and E. PFR File, Tab 1 at 5-6;
IAF, Tab 7 at 23, 183. Next, he references a discrepancy between the date of a
follow-up interview as written in the investigative report and the entry of
investigator T.G. PFR File, Tab 1 at 5-6; I-2 AF, Tab 22 at 18; IAF, Tab 7
at 188. The administrative judge relied on the testimony of investigator M.C. in
finding that the initial interview occurred on June 26, 2014. ID at 5; HT at 9
(testimony of investigator M.C.). Further, investigator T.G. testified that the date
of the follow-up interview in his entry was an error and that the investigative
report contained the accurate date. HT at 110-11, 113, 119 (testimony of
investigator T.G.). Moreover, the administrative judge found that the
discrepancies raised by the appellant failed to cast doubt on the accuracy of the
agency’s investigation. ID at 6-7. We agree and find that the appellant’s
arguments on review provide no reason to disturb the administrative judge’s
finding that the agency proved the lack of candor charge.
The appellant has failed to prove that the agency violated his due process rights
by considering ex parte information.
¶9 The administrative judge addressed the appellant’s argument that the
agency violated his due process rights when it failed to provide him with all the
materials it relied on in proposing and deciding his removal. ID a t 13-15. The
appellant specifically alleged that the agency failed to provide him with
6
information from the criminal investigation. ID at 13. The administrative judge
relied on the deciding official’s testimony that the agency compiled both a
criminal file and a separate disciplinary file. Id.; HT at 149, 154 (testimony of
the deciding official). The administrative judge characterized the deciding
official’s testimony as stating that her knowledge of the criminal file was limited
to a three page summary of investigation that was forwarded to the
U.S. Attorney’s office. ID at 13; HT at 189, 226-27 (testimony of the deciding
official); I-2 AF, Tab 22 at 15-17. The administrative judge reviewed the
summary of investigation and determined that it contained no new or additional
information from that of the disciplinary file. ID at 15. In addition, she found
that the appellant failed to produce any evidence to contradict the deciding
official’s testimony that she only relied on information in the disciplinary file in
deciding to remove him. Id.; HT at 227 (testimony of the deciding official).
Thus, the administrative judge found that the appellant failed to prove a due
process violation. ID at 15; see Mathis v. Department of State, 122 M.S.P.R. 507,
¶ 6 (2015) (stating that a deciding official violates an employee’s due process
rights when he relies upon new and material ex parte information as a basis for
his decisions on the merits of a proposed charge or the penalty to be imposed) .
¶10 In his petition for review, the appellant argues that the administrative judge
mischaracterized the deciding official’s testimony as stating that her knowledge
of the criminal file was limited to the summary of investigation. PFR File, Tab 1
at 7-8, Tab 8 at 4; ID at 13. He claims that, in addition to reading the summary of
investigation, the deciding official read the initial investigative report that was
forwarded to the U.S. Attorney’s office on July 24, 2014, 3 and the “criminal
evidence file.” PFR File, Tab 1 at 7-8, Tab 8 at 4; IAF, Tab 7 at 167. We find
3
The agency clarified during a telephonic status conference that the investigative report
dated July 24, 2014, was an earlier draft of the report that the agency relied on in
proposing the appellant’s removal. I-2 AF, Tab 36 at 1. The final investigative report
that was included in the disciplinary file was printed on September 28, 2014. IAF,
Tab 7 at 159-227, Tab 8 at 5-13.
7
that the deciding official’s testimony establishes that she received the initial
investigative report and summary of investigation, and a “final” police report
from which she created the disciplinary file with Human Resources (HR). HT
at 150-51, 153-54, 186-87, 189-90, 226-27 (testimony of the deciding official).
Although the disciplinary file included parts of the final investigative report, IAF,
Tab 7 at 159-227, Tab 8 at 5-13, the then-Assistant Chief of HR testified that the
disciplinary file only included evidence that was relevant to the charges in the
appellant’s proposed removal and omitted portions of the police report concerning
criminal matters, HT at 311, 318-21 (testimony of the Assistant Chief of HR).
Thus, we agree with the appellant that, in addition to the summary of
investigation, the deciding official was aware of other information that was not
included in the disciplinary file. 4
¶11 However, a deciding official’s knowledge of information only raises due
process concerns when that knowledge is a basis for the deciding official’s
determinations on either the merits of the underlying charges or the penalty to be
imposed. Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 10 (2013).
Here, as the administrative judge properly found, the appellant has failed to
produce any evidence to contradict the deciding official’s testimony that she
relied only on information in the disciplinary file in deciding his removal. ID
at 15; HT at 227 (testimony of the deciding official). Therefore, we find that he
has failed to prove that the deciding official violated his due process rights by
considering ex parte information. See Villareal v. Bureau of Prisons, 901 F.3d
1361, 1365-66 (Fed. Cir. 2018) (finding no due process violation, in part, because
the deciding official did not rely on the ex parte information when making his
4
Although we agree with the appellant that the administrative judge mischaracterized
the deciding official’s testimony, for the reasons discussed below, we find that such
error does not provide a reason to disturb the initial decision. See Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
8
decision on the removal). Although we find no due process violation, we still
must determine whether the agency committed harmful procedural error. See
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir.
1999) (recognizing that public employees are “entitled to whatever other
procedural protections are afforded them by statute, regulation, or agency
procedure which is in addition to the protections afforded by the Constitution”).
The appellant has failed to prove that the agency committed harmful procedural
error by considering ex parte information.
¶12 The administrative judge found that, even if the deciding off icial erred in
considering the summary of investigation, such error did not likely cause her to
reach a different conclusion regarding the appellant’s removal because the
summary contained no new or different information than that in the disciplinary
file. ID at 15; see Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681
(1991) (explaining that a procedural error is harmful if it likely had a harmful
effect upon the outcome of the case); see also 5 C.F.R. § 1201.4(r). The
appellant does not dispute this finding on review. Moreover, as discussed above,
we find that the appellant has failed to prove that the deciding official erred by
considering information outside of the disciplinary file in deciding his removal .
The appellant has failed to establish that the agency committed harmful
procedural error by denying him an opportunity to respond to a report of contact.
¶13 The appellant reasserts that the agency denied him the opportunity to
respond to a report of contact between the deciding official and a coworker. PFR
File, Tab 1 at 8-9, Tab 8 at 6-7. The agency notified the appellant in a
memorandum that the deciding official had been contacted by a coworker
concerning his proposed removal, and that he had 7 days “from the day after [his]
receipt” of the memorandum to reply. IAF, Tab 7 at 27-28. The appellant
received the agency’s memorandum on February 4, 2015, and he believed that he
had until February 12, 2015, to reply. Id. at 27; HT at 304 (testimony of the
appellant). However, he was removed on February 12, 2015. IAF, Tab 7 at 20.
9
To the extent the agency’s memorandum is unclear as to when the reply was due,
we find that any ambiguity was resolved during the appellant’s conversation with
HR officials.
¶14 The appellant testified that HR officials told him during a meeting that the
earliest he could be removed was on February 13, 2015. HT at 297-98, 303-04
(testimony of the appellant). In contrast, the Assistant Chief of HR testified that
the reply was due on February 11, 2015, and that HR officials did not tell the
appellant during the meeting that the earliest he could be removed was on
February 13, 2015; rather, according to the Assistant Chief of HR, the HR
officials told the appellant that a decision would most likely be made by Friday,
February 13. HT at 315-16, 326 (testimony of the Assistant Chief of HR). The
administrative judge found the testimony of the Assistant Chief of HR more
credible than the appellant’s testimony. ID at 17. In making her credibility
determination, she properly considered the relevant Hillen factors. 5 ID at 16-17.
The appellant presents no evidence or argument on review to undermine the
testimony of the Assistant Chief of HR. Thus, we agree with the administrative
judge’s finding that the due date for the appellant’s response was February 11,
2015. 6 ID at 17.
¶15 According to the report of contact setting forth the additional material that
the deciding official received from the appellant’s coworker, the coworker
expressed concern that, if the agency removed the appellant, it would “create a
big problem for the hospital,” as the appellant knew the pipe systems and a major
project was scheduled for the next year. IAF, Tab 7 at 28. The administrative
judge found that, even if the appellant was denied an opportunity to respond to
5
In Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), the Board set forth
factors that an administrative judge must consider when making a credibility
determination.
6
The administrative judge made a typographical error in finding that the appellant’s
response to the report of contact was due by February 11, 2014.
10
the new material, it was “difficult to comprehend how not responding to favorable
information was in any way detrimental to the appellant.” ID at 17. We agree
with the administrative judge’s assessment that the appellant failed to prove that
the agency’s failure to consider the response to the report of contact was
harmful. 7 ID at 17-18; see Stephen, 47 M.S.P.R. at 681 (explaining that a
procedural error is harmful if it likely had a harmful effect upon the outcome of
the case).
The administrative judge properly found that the agency established nexus and
the reasonableness of the penalty.
¶16 When, as here, the Board has sustained all of the agency’s charges, the
Board will review an agency-imposed penalty only to determine if the agency
considered the relevant Douglas factors and exercised management discretion
within tolerable limits of reasonableness. Holland v. Department of Defense,
83 M.S.P.R. 317, ¶ 9 (1999); see Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305-06 (1981) (articulating a nonexhaustive list of 12 factors that are
relevant in assessing the penalty to be imposed for an act of misconduct) . The
Board will modify the agency’s chosen penalty only if it finds that the agency
failed to weigh the relevant factors or that the agency’s judgment clearly
exceeded the limits of reasonableness. Douglas, 5 M.S.P.R. at 306.
¶17 Here, the decision letter and the Douglas factors memorandum show that
the deciding official considered the relevant factors, including the nature and
seriousness of the appellant’s misconduct. IAF, Tab 7 at 24, 82-86. The deciding
7
For the first time on review, the appellant alleges that the agency violated his due
process rights by denying him an opportunity to reply to the report of contact. PFR
File, Tab 1 at 8-9. The Board generally will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Therefore, the Board need
not consider this argument further. However, we note that favorable information about
an employee is not the type of communication likely to result in undue pressure upon
the deciding official to rule against the employee. See Ward v. U.S. Postal Service,
634 F.3d 1274, 1280 (Fed. Cir. 2011); Stone, 179 F.3d at 1377.
11
official also considered the appellant’s years of service, lack of any prior
disciplinary action, and exemplary work performance, but concluded that his
misconduct was of such gravity that the penalty of removal was appropriate and
within the range of reasonableness. Id. at 24, 83-85.
¶18 In assessing the reasonableness of the penalty, the administrative judge
found that the agency properly considered the relevant factors in deciding that a
removal was appropriate. ID at 20. In making this finding, the administrative
judge relied on the deciding official’s testimony that she considered the nature of
the appellant’s misconduct to be very serious because it involved criminal activity
and that she would have removed him based on the theft charge alone. ID at 19;
HT at 161, 171 (testimony of the deciding official). The administrative judge
noted that the deciding official testified that two other employees who were
involved in the same incidents of theft were also removed. ID at 19; HT at 163
(testimony of the deciding official). The administrative judge further found that
the agency proved that the appellant was on notice that taking scrap metal for his
personal benefit was not authorized under agency policies. ID at 20.
¶19 On review, the appellant challenges the administrative judge’s finding that
he was on notice that his conduct violated agency policies, and he reasserts his
disparate penalties claim. PFR File, Tab 1 at 9-12, Tab 8 at 7-8. In a written
statement, the appellant acknowledged that, around summer 2007, the agency’s
policy was to place scrap metal in bins for pickup by vendors. IAF, Tab 8 at 48,
50. Thus, we agree with the administrative judge’s finding that the appellant was
on notice that his misconduct was unauthorized under agency policies. ID at 20.
Next, we find that the appellant has failed to establish disparate penalties . The
record and hearing testimony establish that the two other employees who were
involved in the same underlying misconduct as the appellant were also removed,
12
but none of the other proffered comparators were charged with theft. 8 I-2 AF,
Tab 23 at 25; HT at 163 (testimony of the deciding official), 317 (testimony of
the Assistant Chief of HR). For these reasons, we agree with the administrative
judge’s finding that the agency proved that it considered the relevant factors and
that removal was within tolerable limits of reasonableness. ID at 20.
¶20 Finally, the appellant does not dispute, and we find no reason to disturb, the
administrative judge’s finding that the agency established nexus between the
appellant’s misconduct and the efficiency of the service. ID at 18; see Parker v.
U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that there was
a sufficient nexus between an employee’s conduct and the efficiency of the
service when the conduct occurred, in part, at work); see also Ludlum v.
Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000) (finding that the employee’s
lack of candor directly impacted the efficiency of the service), aff’d, 278 F.3d
1280 (Fed. Cir. 2002).
The appellant’s remaining arguments and submissions on review do not provide a
reason to disturb the initial decision.
¶21 On review, the appellant has submitted emails sent in March 2016 regarding
his request for audio recordings of interviews conducted during the investigation,
portions of a 2011 collective bargaining agreement, and evidence from the record
below. PFR File, Tab 1 at 14-36; I-2 AF, Tab 23 at 14-29. We need not consider
8
The appellant’s submission on comparators represents that, of the two other
employees who were charged with theft, one entered into a last chance agreement and
one did not appeal his removal. I-2 AF, Tab 31 at 5; see Dick v. U.S. Postal Service,
52 M.S.P.R. 322, 325 (stating that when “another employee receives a lesser penalty,
despite apparent similarities in circumstances, as the r esult of a settlement agreement,
the agency will not be required to explain the different treatment”), aff’d, 975 F.2d 869(Fed. Cir. 1992) (Table). Our decision in Singh v. U.S. Postal Service, 2022 MSPB 15,
¶ 14, issued after the initial decision in this appeal, clarifies that the relevant inquiry for
assessing a claim of disparate penalties when weighing the reasonableness of a penalt y
is whether the agency knowingly and unjustifiably treated employees who engaged in
the same or similar offenses differently. There is no evidence in the record to indicate
that the agency did so in this case. Thus, any subsequent change in the case law does
not provide a reason to disturb the conclusions of the initial decision.
13
these submissions because they do not constitute new evidence. See Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (stating that evidence that
is already a part of the record is not new); Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980) (stating that the Board generally will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence); see
also Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 6 (2001)
(explaining that, when a hearing is held in a Board appeal, the record in the case
ordinarily closes at the conclusion of the hearing) .
¶22 For the following reasons, we find that the appellant’s submission on
review of his June and July 2016 requests for further informat ion concerning the
agency’s investigation does not warrant a different outcome from that of the
initial decision. PFR File, Tab 1 at 37-41; see Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980) (stating that the Board generally will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision).
¶23 The appellant claims on review that the agency’s failure to provide him
with evidence concerning its investigation that he requested through the discovery
process and the Freedom of Information Act (FOIA) hindered his ability to meet
his burden in this appeal. PFR File, Tab 1 at 4-8, 12, Tab 8 at 4, 7-8.
Specifically, he alleges that the agency failed to provide him with audio
recordings of the investigatory interviews, additional information on comparators,
and the initial investigative report dated July 24, 2014. Id.¶24 First, the appellant’s failure to file a motion to compel discovery of audio
recordings of the investigatory interviews below precludes him from raising this
discovery issue for the first time on review. See Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
2006). For the same reason, he is precluded from raising a discovery issue
regarding further information on comparators. Next, although the appellant
14
claims that he never received the investigative report dated July 24, 2014, after he
requested its production, PFR File, Tab 1 at 7, Tab 8 at 4; I-2 AF, Tab 34 at 4, he
has failed to show that the administrative judge abused her discretion in denying
his motion to compel, I-2 AF, Tab 36 at 1; see Fox v. Department of the Army,
120 M.S.P.R. 529, ¶ 42 (2014) (explaining that the Board will not reverse an
administrative judge’s rulings on discovery matters, inclu ding a motion to
compel, absent an abuse of discretion). Finally, the Board lacks jurisdiction to
adjudicate the agency’s alleged failure to comply with his FOIA requests. See
Cortright v. Department of Transportation, 37 M.S.P.R. 565, 570 (1988); see also
5 U.S.C. § 552(a)(4)(B) (granting U.S. district courts jurisdiction to decide
disputes over an agency’s compliance with FOIA).
¶25 Accordingly, we find that the administrative judge properly affirmed the
appellant’s removal. 9
NOTICE OF APPEAL RIGHTS 10
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
9
To the extent the appellant is asserting the agency’s violation of the collective
bargaining agreement, we decline to consider such argument further because he has
raised it for the first time on review and has failed to show that it is based on new and
material evidence. PFR File, Tab 1 at 7-8; see Banks, 4 M.S.P.R. at 271.
10
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
16
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
11
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of parti cular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.