Christopher S. Scoggins v. Department of the Army , 2016 MSPB 32 ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 32
Docket No. CH-1221-14-0228-W-2
Christopher S. Scoggins,
Appellant,
v.
Department of the Army,
Agency.
September 19, 2016
Rosemary Dettling, Esquire, and Sarah Bloom, Esquire, Washington, D.C.,
for the appellant.
W. Clay Caldwell, Aberdeen Proving Ground, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review, and the appellant has filed a
cross petition for review of the initial decision, which granted the appellant’s
request for corrective action in this individual right of action (IRA) appeal. As
explained below, the agency’s petition for review and the appellant’s cross
petition for review are DENIED, and the administrative judge’s initial decision is
AFFIRMED except as expressly MODIFIED by this Opinion and Order to FIND
that all of the whistleblowing disclosures at issue on review are protected, to
VACATE the administrative judge’s findings that the agency proved by clear and
convincing evidence that it would have changed the appellant’s work duties and
2
work location and denied him security training absent his protected disclosures,
and to FIND that the agency met its clear and convincing burden regarding those
personnel actions for the reasons set forth in this Opinion and Order. We
AFFIRM the administrative judge’s decision to order corrective action regarding
the appellant’s proposed removal and postponed performance evaluation.
BACKGROUND
¶2 On February 27, 2011, the agency hired the appellant as a GS-12 Security
Specialist with the agency’s Compliance and Surety Directorate of the Blue Grass
Chemical Activity (BGCA), in Richmond, Kentucky. Scoggins v. Department of
the Army, MSPB Docket No. CH-1221-14-0228-W-1, Initial Appeal File (IAF),
Tab 1 at 1, Tab 6 at 84, 92. The BGCA is a tenant at the Blue Grass Army Depot
(BGAD) and reports to the agency’s Chemical Materials Activity (CMA), which
is responsible for the storage of chemical weapons pending their destruction.
Scoggins v. Department of the Army, MSPB Docket No. CH-1221-14-0228-W-2,
Refiled Appeal File (RAF), Tab 8 at 17-18. The duties of the appellant’s position
include ensuring that the BGCA’s chemical operations are conducted securely and
meet all regulatory requirements, and that commanders are informed of potential
problem areas. IAF, Tab 6 at 84.
¶3 The appellant filed this IRA appeal, alleging that the agency had taken
several personnel actions against him in reprisal for his numerous protected
whistleblowing disclosures. IAF, Tab 1, 24. Specifically, the appellant alleged
that he made the following nine protected disclosures between March 2011 and
June 2012:
(1) On March 9, 2011, he reported to his supervisor, T.F., 1 that there were
drawings of intrusion detection systems (IDS) on a shared
computer drive.
1
Shortly before the appellant was hired, Director of Compliance and Surety S.J. was
named as the interim Civilian Executive Assistant and T.F. became acting Director of
3
(2) On March 10, 2011, he notified T.F. and Information Security Manager
B.P. that classified information and equipment were located in an
unauthorized area of the Emergency Operation Center (EOC).
(3) On March 16, 2011, he notified T.F. and S.J. that employees were
handling and transporting classified information without
proper documentation.
(4) In April 2011, he told T.F., S.J., and T.R. that possible classified
information from secret vulnerability assessments 2 was being placed on
an unauthorized medium and that the information was taped for
transcribing and discussed with members of the Surety Board and other
personnel without clearance or a need to know the information.
(5) From April to October 2011, he informed his supervisors (K.L., S.J.,
T.R., and BGAD Commander Lieutenant Colonel (LTC) S.B.) that there
was classified information on an unclassified medium.
(6) In April 2011, he notified T.F. and S.J. that several BGCA and BGAD
personnel had unauthorized access to classified information located in
the EOC.
(7) In October 2011, he notified T.F., T.R., and S.J. that there was a
possible compromise of confidential duress code 3 information.
(8) On December 29, 2011, he reported to Security Specialist O.G. the
unauthorized disclosure of possible classified information from previous
vulnerability assessments due to the violation of Army Regulation (AR)
380‑5, Section 2‑6.
(9) In June 2012, he notified Military Intelligence Chief Warrant Officer
J.H., per the Army Threat Awareness Reporting Program, of the
possible unauthorized disclosure of classified information and alleged
that agency managers were subjecting him to a “possible” hostile
work environment.
IAF, Tab 22 at 4‑5.
Compliance and Surety. IAF, Tab 21 at 20. T.F. served in that position until
June 2011, when T.R. was appointed Interim Director of Compliance and Surety. T.R.
became Director of Compliance and Surety on September 25, 2011. Id. at 20-21.
2
A vulnerability assessment is a classified document that identifies security
deficiencies. Hearing Transcript at 42-43 (testimony of the appellant).
3
A duress code is a spoken word or number used by an individual to signal to a security
guard or other appropriate personnel that he is being forced to do something under
duress. Hearing Transcript at 58-59 (testimony of the appellant).
4
¶4 The appellant alleged on appeal that the agency took the following actions
against him in reprisal for his disclosures:
(1) In July 2012, BGAD Commander LTC C.G. (S.B.’s successor) changed
the appellant’s duties and office location.
(2) Beginning in July 2012, C.G., T.R., and W.W. (the latter became the
appellant’s supervisor following his change in duties and office
location), Hearing Transcript (HT) at 586 (testimony of W.W.), denied
him security training.
(3) In July 2012, C.G. denied the appellant access to local classified
information and restricted areas, and in October 2012, he suspended the
appellant’s security clearance.
(4) On October 11, 2012, C.G. proposed the appellant’s removal.
(5) On December 18, 2012, W.W. notified the appellant that his 2012
performance evaluation would be held in abeyance pending a decision
on his proposed removal.
IAF, Tab 24 at 5.
¶5 Following a hearing, the administrative judge issued an initial decision,
granting the appellant’s request for corrective action regarding his proposed
removal and postponed performance evaluation but denying corrective action
regarding the other actions. RAF, Tab 37, Initial Decision (ID) at 31.
Specifically, the administrative judge found that disclosures (2), (5), (7), and (9)
were protected, but that the other disclosures were not protected, ID at 5‑16, that
all of the contested actions were covered personnel actions as defined at 5 U.S.C.
§ 2302(a)(2)(A) except action (3), ID at 16‑19, and that the appellant’s protected
disclosures were contributing factors in the personnel actions, ID at 19‑21. The
administrative judge also found that the agency showed by clear and convincing
evidence that it would have changed the appellant’s work duties and work
location and would have denied him security training absent his protected
disclosures. ID at 22‑26. The administrative judge further found, however, that
the agency failed to prove by clear and convincing evidence that it would have
proposed his removal and postponed his 2012 performance evaluation in the
5
absence of his protected disclosures. ID at 26‑31. Accordingly, the
administrative judge granted the appellant’s request for corrective action by
ordering the agency to rescind the proposed removal and to issue the appellant’s
2012 performance evaluation. ID at 31.
¶6 The agency has filed a petition for review, arguing that none of the
appellant’s disclosures were protected and that it demonstrated by clear and
convincing evidence that it would have taken the same actions in the absence of
his disclosures. Petition for Review (PFR) File, Tab 1. The appellant has filed a
response to the petition for review and a cross petition for review, arguing that
the administrative judge erred in finding that disclosures (1), (3), (4), and (6)
were not protected. 4 PFR File, Tab 3 at 16-19. The appellant also challenges the
administrative judge’s findings that the agency showed by clear and convincing
evidence that it would have changed his work duties and office location and
would have denied him security training absent his protected disclosures. Id.
at 19‑25. The agency has filed a reply to the appellant’s response. PFR File,
Tab 4. In addition, both parties have filed responses to the Board’s order to
submit evidence on the jurisdictional issue of whether the appellant properly
exhausted his administrative remedies with the Office of Special Counsel (OSC)
regarding all of the disclosures and actions raised in this appeal. PFR File,
Tabs 5‑10.
4
The appellant has not specifically contested the administrative judge’s finding that
disclosure (8) was not protected. Also, neither party has specifically challenged the
administrative judge’s findings regarding which contested actions were personnel
actions under 5 U.S.C. § 2302(a)(2)(A). Therefore, we have not further considered
these issues. See 5 C.F.R. § 1201.115 (stating that the Board normally will consider
only issues raised in a timely filed petition for review or in a timely filed cross petition
for review).
6
ANALYSIS
¶7 An IRA appeal is authorized by statute only in certain reprisal cases as
designated in 5 U.S.C. § 1221. Miller v. Federal Deposit Insurance Corporation,
122 M.S.P.R. 3, ¶ 2 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015), cert.
denied, 136 S. Ct. 1510 (2016). All of the material events in this matter occurred
before the expansion of IRA appeal rights in the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, took
effect on December 27, 2012. See WPEA § 202; Miller, 122 M.S.P.R. 3, ¶ 2.
Thus, in this case, we will apply the pre‑WPEA standards concerning the scope
of an IRA appeal. See Hooker v. Department of Veterans Affairs, 120 M.S.P.R.
629, ¶¶ 10‑15 (2014).
¶8 Prior to the WPEA, an eligible individual’s entitlement to seek corrective
action from the Board in an IRA appeal was limited to covered personnel actions
taken or proposed to be taken as a result of a prohibited personnel practice
described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for whistleblowing. Miller,
122 M.S.P.R. 3, ¶ 2. Under pre‑WPEA law, the Board has jurisdiction over an
IRA appeal if the appellant has exhausted his administrative remedies before OSC
and makes nonfrivolous allegations of the following: (1) he engaged in
whistleblowing activity by making a protected disclosure; and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001); Mason v. Department of Homeland Security, 116 M.S.P.R.
135, ¶ 7 (2011); Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12
(2002). After establishing the Board’s jurisdiction in a pre‑WPEA IRA appeal,
the appellant then must establish a prima facie case of whistleblower retaliation
by proving by preponderant evidence that he made a protected disclosure that was
a contributing factor in a personnel action taken against him. 5 U.S.C.
§ 1221(e)(1) (2011); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11
7
(2012). If the appellant meets that burden, then the Board shall order such
corrective action as it considers appropriate unless the agency shows by clear and
convincing evidence that it would have taken the same personnel action in the
absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2) (2011);
Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011);
see Mattil, 118 M.S.P.R. 662, ¶ 11. 5
The appellant exhausted his remedies with OSC regarding the disclosures and
personnel actions that he raises in his IRA appeal.
¶9 The Board may only consider those disclosures of information and those
personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.
135, ¶ 8. An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that the original complaint was amended (including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations), and the appellant’s written responses to OSC referencing
the amended allegations. Id. Moreover, unlike its Complaints Examining Unit
(CEU), OSC’s Disclosure Unit (DU) does not review allegations of prohibited
personnel practices, and the Board has held that making a disclosure to the DU
does not satisfy the exhaustion requirement under 5 U.S.C. § 1214(a)(3). Id.,
¶ 16 (citing Sabbagh v. Department of the Army, 110 M.S.P.R. 13, ¶¶ 10‑15
(2008); Clemente v. Department of Homeland Security, 101 M.S.P.R. 519,
¶¶ 7‑13 (2006)).
5
In the following analysis, we fully address the alleged disclosures and the contributing
factor elements prior to addressing whether the agency met its “clear and convincing”
burden. Thus, we find that the WPEA’s amendments to 5 U.S.C. §§ 1214(b)(4)(B)(ii),
1221(e)(2) are immaterial to the outcome of this appeal. See WPEA § 114 (amending
those sections to permit a finding on whether the agency met its burden only “after a
finding that a protected disclosure was a contributing factor”); Belykov v. Department
of Health & Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013).
8
¶10 Because it was unclear from the record whether the appellant had raised all
of the disclosures and personnel actions at issue in this appeal before the CEU,
the Board ordered him to submit evidence showing which disclosures and
personnel actions he raised with that unit. PFR File, Tab 5. In response, the
appellant asserted that he brought all of the disclosures and personnel actions at
issue in this appeal to the CEU’s attention via emails to the CEU investigator
assigned to his complaint. PFR File, Tab 7 at 11‑12, 22, 28. With his response,
the appellant submitted those emails along with the documents that he sent to the
investigator as email attachments. Id. at 34‑85. Based on these submissions, we
find that the appellant has established that he exhausted his remedies with OSC
regarding the disclosures and personnel actions that he raises in this appeal.
The administrative judge correctly found that disclosures (2), (5), (7), and (9) are
protected disclosures.
¶11 Pre‑WPEA law defined a protected disclosure as a disclosure of
information that an appellant reasonably believes evidences a violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. § 2302(b)(8)(A) (2011); see, e.g., Linder v. Department of Justice,
122 M.S.P.R. 14, ¶ 12 (2014). 6 A reasonable belief exists if a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude that the actions of the Government
evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A).
Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); Chavez v. Department
of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). To establish that he made a
6
The WPEA amended the definition at 5 U.S.C. § 2302(b)(8)(A)(i) by striking “a
violation” and inserting “any violation.” WPEA § 101(a)(1). We find that this
amendment does not change the result in this case. See Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 n.3 (2013).
9
protected disclosure, the appellant need not prove that the matter disclosed
actually established one of the types of wrongdoing listed under
section 2302(b)(8)(A); rather, he must show that the matter disclosed was one
that a reasonable person in his position would have believed evidenced any of the
situations specified in 5 U.S.C. § 2302(b)(8). Chavez, 120 M.S.P.R. 285, ¶ 18.
¶12 In the initial decision, the administrative judge found that disclosures (2),
(5), (7), and (9) were protected because the appellant reasonably believed that
they evidenced a violation of Army regulations and he made those disclosures to
individuals who were outside his chain of command. ID at 8, 12, 14, 16. The
administrative judge found that the remaining disclosures were not protected
because the appellant made those disclosures to individuals in his chain of
command and he was performing an “essential job duty” by reporting possible
security violations to his immediate and second-level supervisors. ID at 6‑7,
10‑15.
¶13 The agency argues on review that the appellant did not reasonably believe
that any of his disclosures evidenced a violation of Army regulations and that,
therefore, none of his disclosures were protected. PFR File, Tab 1 at 13‑18. In
finding that the appellant reasonably believed that he was reporting a violation of
Army regulations when he made disclosures (2), (5), (7), and (9), the
administrative judge considered the specific regulations implicated in each of
those disclosures and the relevant documentary evidence and hearing testimony
regarding those disclosures, including the appellant’s testimony as to why he
believed that the alleged wrongdoing he was disclosing violated Army
regulations. ID at 7‑8, 10‑16. The agency’s assertion on review that the
appellant did not reasonably believe that he was disclosing violations of Army
regulations constitutes mere disagreement with the administrative judge’s
findings, which we find no reason to disturb. Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105‑06 (1997) (finding no reason to disturb the administrative
10
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶14 We also find unpersuasive the agency’s argument that the appellant’s
disclosures were not protected because he made them as part of his normal duties.
PFR File, Tab 1 at 19‑21. The WPEA clarified that disclosures made in the
normal course of one’s job duties are not excluded from the definition of a
protected disclosure. See 5 U.S.C. § 2302(f)(2). The Board has found that this
clarification of existing law applies retroactively. Day v. Department of
Homeland Security, 119 M.S.P.R. 589, ¶¶ 9-26 (2013). Therefore, because the
appellant reasonably believed that he was disclosing a violation of agency
regulations by making disclosures (2), (5), (7) and (9), those disclosures are
protected regardless of whether he made them during his normal duties.
¶15 The agency also argues that the administrative judge improperly applied a
subjective, rather than an objective, standard in finding that the appellant
reasonably believed that he was disclosing violations of Army regulations.
PFR File, Tab 1 at 15. It asserts that the administrative judge applied “circular
reasoning” in finding that the appellant’s beliefs about security violations were
reasonable, id., and may have assumed that the appellant had a reasonable belief
simply because he said he had a reasonable belief, id. at 18. The initial decision
shows, however, that the administrative judge properly applied an objective
standard in determining whether the appellant reasonably believed that his
disclosures were protected. ID at 16. Therefore, the agency’s argument provides
no basis to disturb the initial decision.
The administrative judge erred in finding that disclosures (1), (3), (4), and (6)
are not protected.
¶16 In his cross petition for review, the appellant challenges the administrative
judge’s findings that disclosures (1), (3), (4), and (6) were not protected because
reporting possible security violations to his immediate and second‑level
11
supervisors was one of his essential job duties. PFR File, Tab 3 at 18‑19;
ID at 6‑14. The appellant argues that these disclosures are protected even though
he made them to his supervisors during the course of his normal duties. PFR File,
Tab 3 at 18‑19.
¶17 As previously noted, in Day, the Board determined that the WPEA clarified
that a disclosure made in the course of an appellant’s normal duties is not
excluded from whistleblower protection. Given the Board’s decision in Day, we
agree with the appellant that the administrative judge erred in finding that
disclosures (1), (3), (4), and (6) were not protected because the appellant made
these disclosures in performing his “essential job duty” of reporting suspected
security violations to his first‑ and second‑level supervisors. Accordingly, we
vacate the administrative judge’s finding that these disclosures were not protected
because the appellant made them to his supervisors in the course of his
normal duties.
¶18 Even though disclosures (1), (3), (4), and (6) are not excluded from
protection because the appellant made them in the course of his normal duties, he
still must show that these disclosures are otherwise protected to meet his burden
that he engaged in whistleblowing activity under 5 U.S.C. § 2302(b)(8).
Therefore, we have examined these disclosures, the regulations they implicate,
and the other record evidence, including, for example, the appellant’s testimony
that he informed T.F. and S.J. in April 2011 that some BGCA and BGAD
employees in the EOC had access to classified information without proper
authorization in violation of AR 380-5. 7 HT at 50‑56 (testimony of the
appellant). Based on our review of the record, we find that the appellant
7
Section 6-1 of AR 380-5 prohibits unauthorized personnel from obtaining access to
sensitive or classified information. RAF, Tab 24 at 13‑14.
12
reasonably believed that he was reporting violations of various Army regulations
governing classified information when he made these disclosures.
The agency’s claims of bias and denial of the opportunity to cross‑examine the
appellant are not persuasive.
¶19 The agency raises an apparent claim of bias on review, arguing that the
administrative judge’s “tone and substance” throughout much of the proceeding
was “unnecessarily and inappropriately demeaning” toward agency counsel. PFR
File, Tab 1 at 17 n.14. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if her
comments or actions evidence “a deep‑seated favoritism or antagonism that
would make fair judgment impossible.” Bieber v. Department of the Army,
287 F.3d 1358, 1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510
U.S. 540, 555 (1994)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15
(2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012). The agency’s allegations on
review, which do not relate to any extrajudicial conduct by the administrative
judge, neither overcome the presumption of honesty and integrity that
accompanies an administrative judge nor establish that she showed a deep‑seated
favoritism or antagonism that would make fair judgment impossible.
¶20 The agency also argues on review that the administrative judge thwarted its
efforts to cross‑examine the appellant regarding whether he reasonably believed
that he was reporting violations of Army regulations. PFR File, Tab 1 at 15‑18.
An administrative judge has broad discretion to control the proceedings before
her. See Key v. General Services Administration, 60 M.S.P.R. 66, 68 (1993). A
review of the hearing record does not show that the agency’s cross‑examination
of the appellant was improperly limited, and the agency has not shown that the
13
administrative judge committed reversible error in this regard. See Nero v.
Department of the Treasury, 23 M.S.P.R. 325, 327 (1984).
The administrative judge correctly found that the appellant proved that his
protected disclosures were a contributing factor in the personnel actions.
¶21 To prevail in an IRA appeal before the Board, an appellant must prove by
preponderant evidence that his disclosure was a contributing factor in a personnel
action. Chavez, 120 M.S.P.R. 285, ¶ 27. The term “contributing factor” means
any disclosure that affects an agency’s decision to threaten, propose, take, or not
take a personnel action regarding the individual making the disclosure.
Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 31
(2011); 5 C.F.R. § 1209.4(d). The most common way of proving the contributing
factor element is the “knowledge/timing test.” Chavez, 120 M.S.P.R. 285, ¶ 27.
Under that test, an appellant can prove that his disclosure was a contributing
factor in a personnel action through evidence that the official taking the personnel
action knew of the whistleblowing disclosure and took the personnel action
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action. Id. Once an
appellant has satisfied the knowledge/timing test, he has demonstrated that a
protected disclosure was a contributing factor in a personnel action. Gonzalez v.
Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶22 Regarding the contributing factor element of the appellant’s IRA appeal,
the administrative judge found that C.G. was responsible for the personnel actions
at issue and that he was “well aware” of the appellant’s protected disclosure
regarding the “spillage” 8 of classified information. ID at 20 (citing HT at 423‑58
(testimony of C.G.)); ID at 29 (stating that, although C.G. was not the BGAD
commander at the time of the appellant’s disclosures, he was well aware of them).
8
Generally, “spillage” is the transfer of classified or other sensitive information into an
information system that is not approved or authorized for the use of such information.
14
In that regard, the administrative judge noted that C.G. stated in an affidavit that
he had asked O.G. to investigate the appellant’s security concerns regarding the
spillage of classified information. ID at 20 (citing IAF, Tab 6 at 11‑15). The
administrative judge also noted that, at the conclusion of his July 2012 security
inspection at the BGCA, O.G. issued a report addressing the appellant’s concerns
and discussed the report with C.G., who read it. Id.
¶23 On review, the agency challenges the administrative judge’s finding that
C.G. knew of the appellant’s disclosures when he took the personnel actions at
issue. The agency argues that C.G. only had a “vague knowledge” that the
appellant had expressed concerns about classified information, but he was not
aware of any particular disclosures. PFR File, Tab 1 at 5; id. at 22 (stating that
C.G. only had a vague knowledge about information relating to the email
pertaining to disclosure (1)).
¶24 Assuming arguendo that C.G. was unaware of the specifics of the
appellant’s disclosures, the record shows that, at the time of the personnel actions
in question, C.G. had a general knowledge of the appellant’s allegations of
wrongdoing. In that regard, we note that in a written statement accompanying the
appellant’s notice of proposed removal, C.G. stated that, during an “inbrief”
meeting that preceded O.G.’s July 2012 inspection, he directed O.G. to
investigate the appellant’s allegations regarding the storage and “spillage” of
classified material. IAF, Tab 6 at 18. Thus, we find that the administrative judge
properly found that the appellant established the knowledge prong of the
knowledge/timing test.
¶25 Regarding the timing prong of the knowledge/timing test, the
administrative judge found that, because the personnel actions took place
“virtually immediately” after O.G. left the BGAD, they occurred within a period
of time such that a reasonable person could conclude that the disclosure or
protected activity was a contributing factor in the personnel actions. ID at 20‑21.
15
We agree. The disclosures at issue in this appeal occurred between March 2011
and June 2012, and the personnel actions took place between July and
December 2012. The Board has held that a personnel action that occurs within
2 years of the appellant’s disclosure satisfies the timing prong of the
knowledge/timing test. See Agoranos v. Department of Justice, 119 M.S.P.R.
498, ¶ 23 (2013). Thus, we discern no reason to disturb the administrative
judge’s finding that the appellant proved the contributing factor element of
his appeal.
Because the administrative judge correctly found that the agency’s denial of the
appellant’s access to restricted areas and classified documents was not a covered
personnel action, she improperly conducted a clear and convincing analysis
regarding that action.
¶26 When an appellant meets his burden to establish a prima facie case of
reprisal for whistleblowing, the burden shifts to the agency to prove by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s whistleblowing. Mattil, 118 M.S.P.R. 662, ¶ 11;
Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 16 (2012).
Clear and convincing evidence is “that measure or degree of proof that produces
in the mind of the trier of fact a firm belief as to the allegations sought to be
established.” 5 C.F.R. § 1209.4(e). In determining whether an agency has met
this burden, the Board will consider the following factors: (1) the strength of the
agency’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999);
Jenkins, 118 M.S.P.R. 161, ¶ 16. Our reviewing court has held that evidence only
clearly and convincingly supports a conclusion when it does so in the aggregate
considering all the pertinent evidence in the record and despite the evidence that
16
fairly detracts from that conclusion. Whitmore v. Department of Labor, 680 F.3d
1353, 1368 (Fed. Cir. 2012).
¶27 As the administrative judge explained in the initial decision, on July 17‑18,
2012, O.G. conducted an inspection of the BGCA. ID at 22. O.G. issued a report
summarizing the results of the inspection, which identified various security
deficiencies, IAF, Tab 6 at 72‑81, and he notified C.G. that the appellant had
made the following statement when O.G. notified him of the inspection results:
“This is what the Command gets for not listening to me,” id. at 67. C.G. testified
that O.G. informed him that the appellant had made this comment and had failed
the inspection intentionally. HT at 426 (testimony of C.G.). The administrative
judge found that the agency suspended the appellant’s access to classified
information and secured areas effective July 23, 2012, based on O.G.’s statements
regarding the appellant. ID at 25; IAF, Tab 6 at 71.
¶28 Notwithstanding her determination that the denial of the appellant’s access
to classified information and restricted areas was not a personnel action under the
Whistleblower Protection Act (WPA), ID at 17‑18; see 5 U.S.C. § 2302(a)(2)(A),
the administrative judge found that, because C.G. took this action based on his
belief that the appellant intentionally wanted to hurt the Command, the agency
showed by clear and convincing evidence that the agency would have taken the
same action absent the appellant’s whistleblowing activities, ID at 25. Given her
correct finding that the denial of the appellant’s access to restricted areas and
classified documents was not a personnel action under the WPA, 9 it was
9
In making this finding, the administrative judge noted that the Board has held that
security clearance determinations are not personnel actions under the WPA, as
amended. ID at 18 (citing Roach v. Department of the Army, 82 M.S.P.R. 464, ¶¶ 44-54
(1999)). The administrative judge reasoned that, because the suspension of the
appellant’s access to classified documents and restricted areas effectively suspended his
security clearance, those actions are not personnel actions either. Id. (citing Hesse v.
Department of State, 217 F.3d 1372, 1377 (Fed. Cir. 2000)).
17
inappropriate for the administrative judge to determine whether the agency
proved by clear and convincing evidence that it would have taken the same action
in the absence of the appellant’s whistleblowing. See Clarke v. Department of
Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board
may not proceed to the clear and convincing evidence test unless it has first
determined that the appellant established his prima facie case), aff’d, 623 F.
App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s
findings that the agency proved by clear and convincing evidence that it would
have denied the appellant access to restricted areas and classified documents
absent his whistleblowing.
The agency proved by clear and convincing evidence that it would have changed
the appellant’s work duties and work location and would have denied him
security training absent his whistleblowing activities.
¶29 The administrative judge also found that the agency proved by clear and
convincing evidence that it would have changed the appellant’s work duties and
work location and denied him security training in the absence of his disclosures.
ID at 26. In making this finding, the administrative judge reasoned that, because
the appellant’s position required access to classified documents and secured
areas, the lack of such access necessitated a change in his duties and work
location. ID at 25; IAF, Tab 6 at 91. Similarly, the administrative judge
reasoned that, because the appellant was no longer performing a security function
for the agency, he did not need to receive security training. ID at 25. In other
words, the administrative judge found that the agency met its clear and
convincing burden regarding the appellant’s change in duties and work location
and the denial of security training because those personnel actions were a
consequence of the denial of access to classified documents and restricted areas,
and the agency had met its clear and convincing evidence burden regarding
that action.
18
¶30 Given our finding that it was inappropriate for the administrative judge to
conduct a clear and convincing analysis concerning the denial of access to
classified documents and restricted areas, and that such analysis was the basis for
her finding that the agency met its clear and convincing burden regarding the
change in the appellant’s work duties and work location and the denial of security
training, we find the administrative judge’s clear and convincing analysis of those
personnel actions problematic as well. Accordingly, we vacate the administrative
judge’s clear and convincing analysis regarding those actions.
¶31 Nonetheless, based on our analysis of the Carr factors, we agree with the
administrative judge that the agency met its clear and convincing evidence burden
regarding the change in the appellant’s work duties and work location and the
denial of security training. The third Carr factor is not significant, as there
appears to be no evidence of similarly situated nonwhistleblowers. As for the
remaining Carr factors, although there was some motive to retaliate against the
appellant on the part of the agency officials involved in these actions (i.e., C.G.,
T.R., and W.W.) for his disclosures of alleged security violations, see Whitmore,
680 F.3d at 1371 (stating that highly critical accusations regarding an agency’s
conduct can be evidence of retaliatory motive), we find that the evidence in
support of these actions was very strong and outweighed any motive to retaliate.
As the administrative judge explained, because the appellant’s position required
access to classified documents and secured areas, the lack of such access
necessitated a change in the appellant’s work duties and location, and there was
no reason for him to receive security training because he was no longer
performing a security function. ID at 25; IAF, Tab 6 at 91. In addition, there is
no evidence that the appellant requested training, and, in any event, the hearing
testimony indicated that funds were not available for training. HT at 615‑16
(testimony of T.R.).
19
The administrative judge correctly found that the agency has failed to prove by
clear and convincing evidence that it would have proposed the appellant’s
removal and postponed his 2012 performance evaluation in the absence of his
protected disclosures.
¶32 In assessing whether the agency met its burden of showing by clear and
convincing evidence that it would have proposed the appellant’s removal and
postponed his performance evaluation in the absence of his protected disclosures,
the administrative judge considered the following four charges set forth in the
notice of proposed removal: (1) making false statements; (2) making statements
with the intent to disparage the BGCA command; (3) failure to follow established
rules and procedures; and (4) conduct unbecoming a Federal employee.
ID at 26‑31; IAF, Tab 6 at 17‑20.
¶33 The administrative judge noted that the first charge was supported by two
specifications, which alleged as follows: (1) the appellant stated to O.G. that he
was unaware of the requirement for courier cards; 10 and (2) the appellant denied
to T.R. that he had made the comment, “This is what the Command gets for not
listening to me.” ID at 26; IAF, Tab 6 at 17. The administrative judge credited
the appellant’s testimony denying that he had made the statement described in the
first specification, finding that it was “totally improbable” that the appellant
would have made that statement, as he had brought the requirement for courier
cards to management’s attention as early as March 2011. ID at 26‑27; IAF, Tab 6
at 42. As for the second specification, the administrative judge found it
reasonable that the appellant did not remember making the comments about the
Command when he was interviewed by T.R. ID at 27.
¶34 Turning to the second charge—making statements with intent to disparage
the BGCA—the administrative judge noted that this charge involved an
10
A courier card is an identification card that allows an individual to transport
classified information. HT at 40 (testimony of the appellant).
20
August 21, 2012 email from the appellant to W.W. stating that BGCA leadership
had “no reason or training to make decisions.” ID at 27; IAF, Tab 6 at 38. The
administrative judge found that the record does not indicate that management ever
discussed the tone of the appellant’s emails to his superiors with him, nor is there
any evidence that the appellant created the email with the intent to disparage the
BGCA Command. ID at 27 (citing HT at 625 (testimony of T.R.)).
¶35 As for the charge of failure to follow established regulations and
procedures, the administrative judge noted that the charge was supported by four
specifications, which alleged that the appellant had committed the following
security violations: (1) failure to conduct security compliance checks as required;
(2) failure to mark classified material as required; (3) failure to ensure that
courier cards are used in the transportation of classified materials; and
(4) deletion of an IDS drawing containing classified information without
requesting a preliminary inquiry. ID at 27‑28; IAF, Tab 6 at 17. The
administrative judge noted that these specifications were essentially a list of the
security violations O.G. had found during his inspection, ID at 27; IAF, Tab 6
at 72‑81, and she found that each specification was related directly to the issues
the appellant had raised with his superiors as potential security violations,
ID at 28. The administrative judge also noted that the appellant was never
counseled and received excellent performance ratings, with the exception of the
period in which his performance evaluation was held in abeyance. Id.; IAF,
Tab 22 at 22‑23, Tab 23 at 37‑41.
¶36 Regarding the charge of conduct unbecoming a Federal employee, the
administrative judge noted that, in support of this charge, the agency alleged that
the appellant tried to shift the blame for his failures as BGCA Security Manager
by telling O.G., “This is what the Command gets for not listening to me.”
ID at 28; IAF, Tab 6 at 17. The administrative judge noted that T.R. investigated
these comments at C.G.’s request and T.R. concluded that the appellant did not
21
fail the inspection deliberately. ID at 28; IAF, Tab 23, Exhibit (Ex.) X at 7. As
for whether the appellant was responsible for the security failures identified by
O.G., the administrative judge noted that T.R.’s investigation concluded that the
order appointing the appellant BGCA Security Manager should have been
rescinded upon the appointment of B.F. as “Command Information Security
Manager” in March 2012. ID at 29; IAF, Tab 23, Ex. X at 7.
¶37 Applying the factors set forth in Carr, the administrative judge found that
the evidence in support of the agency’s proposed removal was “extremely weak.”
ID at 29. In support of this finding, the administrative judge determined that the
appellant tried to perform the duties of his position by making security
compliance checks and bringing security issues to his supervisors’ attention. Id.
In that regard, the administrative judge noted that the appellant testified without
contradiction that he tried to mark classified material as required, raised the issue
of the courier cards, and performed the duties required of him for the issuance of
those cards. Id. The administrative judge also noted that C.G. and T.R. disagreed
about whether the appellant was responsible for resolving the security issues that
were the subject of the failure to follow procedures charge. Id. (citing
HT at 497‑507 (testimony of T.R.); HT at 601‑22 (testimony of C.G.); IAF,
Tabs 23‑24, Exs. N‑O, Q, R, X). 11 The administrative judge noted that the
11
The agency argues on review that the documents the administrative judge cited, to
support her finding that T.R. disagreed with C.G. about whether the appellant was
responsible for the duties in question, do not support such a finding. PFR File, Tab 1
at 23‑24. Based on our review of these documents, we agree with the agency that the
portions of the hearing transcript the administrative judge cited do not support her
conclusion that C.G. and T.R. disagreed about whether the appellant was responsible
for the inspection failures. ID at 29 (citing HT at 497‑507 (testimony of C.G.),
HT at 601‑22 (testimony of T.R.)). We find evidence of such disagreement elsewhere
in the record, however. Compare HT at 443 (testimony of C.G. stating that the
appellant was responsible for the problems identified in the inspection), with IAF,
Tab 23, Ex. X at 54 (T.R.’s statement that the appellant’s appointment as BGCA
22
Interservice Support Agreement between BGCA and BGAD provides that BGAD
is responsible for implementing security services and BGCA will appoint a
liaison. ID at 29‑30; IAF, Tab 23, Ex. Q at 15. The administrative judge found
that B.F., as BGAD Security Officer, was responsible for, inter alia, Intrusion
Detection Systems, Security and Identification Badge Control, and personnel and
information security; however, there is no evidence that the agency ever proposed
discipline against B.F. ID at 30; IAF, Tab 23, Ex. Q at 15‑16.
¶38 Turning to the second Carr factor, the administrative judge found that the
appellant’s disclosures and the reasons for his proposed removal were
“inextricably intertwined” inasmuch as discipline was proposed against the
appellant for the same security concerns that were the subject of his disclosures.
ID at 31. The administrative judge found that C.G. had a motive to retaliate
because the appellant was charged with violating agency security procedures
regarding the same concerns that he was bringing to management’s attention.
ID at 29; see Whitmore, 680 F.3d at 1371.
¶39 As for the third Carr factor, the administrative judge found that the agency
did not show that it took similar actions against nonwhistleblowers. ID at 29.
The administrative judge therefore found that the agency failed to show by clear
and convincing evidence that it would have proposed the appellant’s removal and
would have postponed his 2012 performance evaluation absent his whistleblowing
activities. ID at 31.
¶40 The agency challenges this finding on review, arguing that it proved all of
the charges and specifications by preponderant evidence, and that the strength of
its case shows that it would have proposed the appellant’s removal regardless of
Security Manager should have been rescinded upon B.F.’s appointment as BGAD
Security Officer in March 2012).
23
his disclosures. 12 PFR File, Tab 1 at 22‑25. Other than the agency’s general
assertion that it proved all four charges, the agency on review does not address
charges one and two. Thus, the agency does not challenge the administrative
judge’s findings regarding those charges. Based on our review of the evidence,
we discern no reason to disturb the administrative judge’s analysis of the first two
charges or her implicit finding that the evidence in support of those charges
is weak.
¶41 Regarding charge three, the agency asserts that the administrative judge
refused to hold the appellant accountable for the inspection failures by ruling that
he had no responsibilities beyond inspecting and reporting security violations.
Id. at 22. The agency asserts that this ruling is an abuse of discretion given the
“overwhelming evidence” that the appellant was responsible for the inspection
failures. Id. In support of this claim, the agency asserts as follows: (1) the
appellant’s position description specifically states that his duties include assuring
that appropriate corrective actions are taken to rectify security deficiencies, id.
at 23; IAF, Tab 6 at 92; (2) the appellant’s evaluation support form states that his
duties include ensuring compliance with mandated and approved security
procedures, and ensuring that the organization is fully prepared for all internal
and external security audits/inspections, PFR File, Tab 1 at 23‑24 (citing IAF,
Tab 6 at 86, 88); (3) several witnesses, including O.G. and C.G., testified that the
appellant was responsible for the failures, id. at 23 (citing RAF, Tab 11 at 14);
(4) during his hearing testimony, the appellant acknowledged that his duties
included ensuring compliance with security procedures, id. at 23 (citing HT at 16
12
The agency’s arguments on review regarding the clear and convincing element as it
pertains to the proposed removal and postponed performance evaluation are limited to
the second Carr factor, i.e., the strength of its evidence in support of the appellant’s
proposed removal. Based on our review of the record, we find no reason to disturb the
administrative judge’s findings regarding the remaining two Carr factors.
24
(testimony of the appellant)); and (5) a report issued by the Pentagon concluded
that the security responsibilities were the appellant’s primary duties and
responsibilities, id. at 24 (citing RAF, Tab 11 at 16). Thus, the agency essentially
argues that the evidence in support of removing the appellant was strong because
he was responsible not only for alerting management to security violations but
also for correcting them, and he failed to do so.
¶42 Even if the appellant were responsible for the security violations cited in
charge three, we find that the evidence in support of proposing the appellant’s
removal for these violations was not strong, given his efforts to address the
security failures at issue in this charge by attempting to mark classified material
and ensure that personnel who transported classified information were using
courier cards, as well as his performance record. We also find disingenuous the
agency’s assertion that those violations warranted the appellant’s removal, given
management’s failure to address the security problems that the appellant raised.
As the administrative judge noted in the initial decision, if the violations
identified in this charge were serious enough to warrant the appellant’s removal,
it “begs the question” as to what actions his supervisors took to ensure that the
security issues the appellant brought to management’s attention were rectified.
ID at 28.
¶43 Regarding charge four, which the agency characterizes as “the most
important charge,” the agency alleges that the administrative judge erred by
refusing to “support the charge” based on her conclusion that the appellant
did not intend to injure the Command or fail O.G.’s inspection. PFR File, Tab 1
at 22. The agency asserts that it did not charge the appellant with attempting to
injure the Command or fail the inspection but, rather, with trying to shift the
blame for his failures as BGCA Security Manager by telling O.G., “This is what
the Command gets for not listening to me.” Id.
¶44 Although we agree with the agency that this charge did not require proof
that the appellant made the comment at issue with the intention of injuring the
25
Command, we disagree with the agency’s apparent assertion on review that the
evidence in support of charge four was strong. Significantly, the agency did not
merely allege that the appellant made the comment set forth in this charge.
Rather, it alleged that he made the comment in an effort to shift responsibility for
his alleged failures to the agency. IAF, Tab 6 at 17. Thus, to prove this charge,
the agency was required to show that the appellant made the comment with the
intention of shifting responsibility for the security failures cited by O.G. to the
agency. Based on her review of the relevant evidence and testimony, the
administrative judge found that the comment in question was an “off‑the‑cuff”
remark that the appellant easily could have forgotten. ID at 24. We discern no
reason to disturb this finding. Given these circumstances, we find that the
evidence does not support a finding that the appellant made this comment with
the intention of shifting blame for his alleged failures to the agency.
Accordingly, we agree with the administrative judge’s implicit finding that the
evidence in support of this charge was weak. ID at 28‑29; see Crosby,
74 M.S.P.R. at 105‑06; Broughton, 33 M.S.P.R. at 359.
¶45 The agency also argues on review that it showed by clear and convincing
evidence that it would have proposed the appellant’s removal absent his protected
disclosures because his removal from the Unescorted Access Program (UAP) 13
alone warranted his removal. PFR File, Tab 1 at 24. The agency contends that
the requirements for removing the appellant based on a charge of failure to
maintain a condition of employment were clearly met in this case because his
position description states that a UAP is required to maintain his position, and he
admitted that he lost his UAP. Id.
13
The UAP allows approved individuals unescorted access inside the fence line of
BGCA’s Chemical Limited Area. IAF, Tab 6 at 12.
26
¶46 The agency, however, did not charge the appellant with failure to maintain
a condition of employment. IAF, Tab 6 at 17‑21. It is well established that the
Board will not sustain an agency action on the basis of a charge that could have
been brought but was not. Rodriguez v. Department of Homeland Security,
117 M.S.P.R. 188, ¶ 8 (2011). Consequently, the appellant’s alleged failure to
maintain a condition of employment does not provide a basis for disturbing the
administrative judge’s findings concerning the strength of the evidence in support
of the agency’s action.
¶47 In sum, we agree with the administrative judge that the evidence presented
by the agency in support of the appellant’s proposed removal was weak, the
agency had a motive to retaliate against the appellant, and there is no evidence
that the agency took similar actions against similarly situated employees who
were not whistleblowers. Accordingly, we find no reason to disturb the
administrative judge’s finding that the agency failed to prove by clear and
convincing evidence that it would have proposed the appellant’s removal and
postponed his 2012 performance evaluation in the absence of his
protected whistleblowing.
ORDER
¶48 We ORDER the agency to rescind the proposed removal and issue the
appellant’s 2012 performance evaluation, along with any awards, bonuses, or
similar items that result from the performance evaluation. See Kerr v. National
Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶49 We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service Regulations, as appropriate, no later than 60 calendar days after
the date of this decision. We ORDER the appellant to cooperate in good faith in
the agency’s efforts to calculate the amount of back pay, interest, and benefits
27
due, and to provide all necessary information the agency requests to help it carry
out the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶50 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. The appellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶51 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶52 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶53 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
28
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1202.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet the
requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may be
found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs. 5 U.S.C. § 1214(g)(2).
If you believe you meet these requirements, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
29
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D). 5 U.S.C. § 1221(f)(3).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
30
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
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, and 11. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through http://www.uscourts.gov/Court_Locator/
CourtWebsites.aspx.
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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
Jennifer Everling
Acting Clerk of the Board
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.