Gregory Shaffer v. Department of Justice ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY W. SHAFFER, DOCKET NUMBER
Appellant, DA-0752-15-0466-I-2
v.
DEPARTMENT OF JUSTICE, DATE: April 25, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Amy Armstrong, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 affected 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).
¶2 In an initial decision dated March 8, 2017, the administrative judge
affirmed the appellant’s removal from his Special Agent position with the Federal
Bureau of Investigation based on five charges of misconduct. Shaffer v.
Department of Justice, MSPB Docket No. DA-0752-15-0466-I-2, Appeal File (I-2
AF), Tab 17, Initial Decision (ID) at 4-13. The administrative judge also found
that the appellant failed to prove that the agency committed harmful error, ID
at 14-17, and that the action promoted the efficiency of the service and the
penalty was within the bounds of reasonableness, ID at 17-23. The appellant has
filed a petition for review in which argues that the administrative judge erred by
finding that he did not prove his claim of harmful error. Shaffer v. Department of
Justice, MSPB Docket No. DA-0752-15-0466-I-2, Petition for Review (PFR) File,
Tab 1. The agency responds in opposition to the petition for review. PFR File,
Tab 3.
¶3 In the notice of removal, the agency informed the appellant that he had a
right to raise an internal appeal with the agency’s Disciplinary Review Board
(DRB). Shaffer v. Department of Justice, MSPB Docket No. DA-0752-15-0466-
I-1, Initial Appeal File, Tab 10, Subtab 4b at 25. He invoked his right to DRB
review, but, while his appeal was pending, the agency issued a final decision
revoking his security clearance. I-2 AF, Tab 15 at 20. Based on the revocation of
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the appellant’s security clearance, the DRB “administratively closed” his appeal
without reaching a decision. Id. at 9.
¶4 On review, the appellant reiterates his argument that closing his DRB
appeal without reaching a decision constituted harmful error. PFR File, Tab 1
at 6-10; I-2 AF, Tab 14 at 6-10. To prove an affirmative defense of harmful
error, the appellant must show that an error occurred and that the error was
harmful. Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶ 7 (2015);
Parker v. Defense Logistics Agency, 1 M.S.P.R. 505, 513 (1980). Harmful error
occurs when “[e]rror by the agency in the application of its procedures . . . likely
. . . caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error.” 5 C.F.R. § 1201.4(r). We cannot
determine on this record whether the agency committed a procedural error.
Neither party has submitted a copy of the rules or regulations governing the
agency’s DRB, and so it is impossible to know whether the agency’s decision to
close the appellant’s DRB appeal violated the rules of the DRB program or was,
in fact, consistent with those rules. Because there is no evidence establishing
what procedure the agency allegedly violated, we find that the appellant failed to
show that the agency committed procedural error. Therefore, the administrative
judge correctly found that the appellant failed to prove his affirmative defense of
harmful error.
¶5 The appellant also makes a bare allegation on review that the removal was
“not in accordance with law.” PFR File, Tab 1 at 6; I-2 AF, Tab 14 at 6. An
agency action is unlawful in its entirety and therefore “not in accordance with
law” under 5 U.S.C. § 7701(c)(2)(C) if there is no legal authority for the action.
Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 683-84 (1991). The
administrative judge correctly found that the appellant failed to establish that the
dismissal of his DRB appeal violated a law, rule, or regulation and, therefore,
failed to prove that the action was not in accordance with law. ID at 17 n.9. The
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appellant’s bare allegation on review is insufficient to disturb the administrative
judge’s finding.
¶6 The initial decision is affirmed.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully f ollow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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.