Donald Shave v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD M. SHAVE, DOCKET NUMBER
Appellant, SF-531D-18-0469-I-1
v.
DEPARTMENT OF DEFENSE, DATE: May 9, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donald M. Shave, Firecrest, Washington, pro se.
John D. Norquist, Esquire, and Temple L. Wilson, Esquire, Fort Belvoir,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s reconsideration decision denying the appellant a
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
within-grade increase (WIGI). 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 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.
We therefore DENY the petition for review. Except as MODIFIED by this Final
Order, we AFFIRM the initial decision. Because we agree with the
administrative judge’s finding that the appellant did not make a protected
disclosure, we MODIFY the initial decision to VACATE the administrative
judge’s alternative finding that the agency proved by clear and convincing
evidence that it would have denied the appellant’s WIGI in the absence of his
disclosure. We also find that the appellant forfeited his claim regardi ng the
Appointments Clause of the U.S. Constitution.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 This is the second Board appeal addressing the agency’s decision to deny
the appellant a WIGI in 2017. After holding a hearing in the first appeal, the
administrative judge issued an initial decision reversing the agency’s July 3, 2017
denial of a WIGI for the period ending May 28, 2017. Shave v. Department of
Defense, MSPB Docket No. SF-531D-17-0577-I-1 (Shave I), Initial Decision
(Mar. 11, 2018). The administrative judge in that appeal found that the agency
had committed harmful procedural error in denying the appellant’s request for
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reconsideration of the WIGI denial because the reviewing official merely deferred
to the appellant’s supervisor regarding the appellant’s performance rating. Id.
at 16. The administrative judge identified a number of issues with the
performance rating that the reviewing official failed to address, and she remanded
the matter to the agency to conduct a proper reconsideration. Id. at 16-19. The
administrative judge in the first appeal considered the appellant’s claims of age
discrimination and whistleblower reprisal regarding the WIGI denial, but she
found that the appellant failed to prove either of those defenses. Id. at 20-26.
¶3 After remand, the reviewing official issued a new reconsideration decision
still affirming the WIGI denial. Shave v. Department of Defense, MSPB Docket
No. SF-531D-18-0469-I-1, Initial Appeal File (IAF), Tab 1 at 14-16. The
appellant did not believe that the agency’s new reconsideration decision was
consistent with the administrative judge’s initial decision, and he filed a motion
with the Board to compel the agency to comply with the administrative judge’s
remand instructions. Id. at 4, 9-12. The Board’s regional office docketed the
appellant’s motion as a new appeal challenging the WIGI denial. IAF, Tab 2.
The administrative judge incorporated the file from Shave I by reference into the
file in the second appeal. IAF, Tab 10 at 1.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the denial of the appellant’s WIGI. IAF,
Tab 17, Initial Decision (ID). She found that the Office of Personnel
Management (OPM) had approved the agency’s performance appraisal system and
that the agency had communicated to the appellant the critical elements and
performance standards of his position. ID at 12-14. She further found that the
appellant’s performance standards were valid. ID at 14 -17. The administrative
judge then found that the agency had supported its decision to deny the appellant
a WIGI by substantial evidence. ID at 14-21. She specifically found that the
reviewing official had adequately addressed the concerns she raised in her initial
decision in Shave I. ID at 20. The administrative judge found that the appellant
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failed to prove his affirmative defenses of harmful procedural error and
whistleblower reprisal. ID at 21-29.
¶5 The appellant has filed a timely petition for review of the initial decision.
Shave v. Department of Defense, MSPB Docket No. SF-531D-18-0469-I-1,
Petition for Review (PFR) File, Tab 1. He argues that his ability to present his
whistleblower reprisal claim was harmed by the administrative judge’s rejection
of an Inspector General’s report and one of his requested witnesses. Id. at 3. He
also argues that under the U.S. Supreme Court’s decision in Lucia v. Securities
and Exchange Commission, 585 U.S. ___, 138 S. Ct. 2044 (2018), the
administrative judge who decided his appeal was not properly appointed, and he
is therefore entitled to a new adjudication before a properly appointed official.
Id. at 4. The appellant also challenges the administrative judge’s findings
relating to his whistleblower reprisal claim. Id. He has submitted several
documents with his petition for review, including discovery from both this appeal
and his first WIGI appeal as well as a June 2018 grievance he filed regarding his
performance appraisal for the period ending March 31, 2018. Id. at 7-84. The
agency has responded in opposition to the petition for review. PFR File, Tab 4.
The appellant’s arguments on review do not provide a basis for reversing the
initial decision.
¶6 An employee under the General Schedule earns periodic increases in pay, or
WIGIs, as long as his performance is at an acceptable level of competence.
5 U.S.C. § 5335(a). When an agency determines that an employee is not
performing at an acceptable level of competence (ALOC) and that a WIGI should
be withheld, the employee is entitled to “prompt written notice of that
determination” and an opportunity for reconsideration under regulations
prescribed by OPM. 5 U.S.C. § 5335(c). The employee may appeal to the Board
if the agency affirms its decision to withhold a WIGI on reconsideration. Id. In a
Board appeal under 5 U.S.C. § 5335, the agency bears the burden of proof, and its
WIGI denial must be sustained only if it is supported by substantial evidence.
5
5 C.F.R. § 1201.56(b)(1)(i). Substantial evidence is defined as “[t]he degree o f
relevant evidence that a reasonable person, considering the record as a whole,
might accept as adequate to support a conclusion, even though other reasonable
persons might disagree.” 5 C.F.R. § 1201.4(p). It is a lower standard of proof
than preponderant evidence. Id. On petition for review, the appellant does not
specifically challenge the administrative judge’s findings regarding the agency’s
ALOC determination. We have reviewed those findings, and we agree with the
administrative judge that the agency met its substantial evidence burden to
support its determination.
¶7 The appellant’s primary argument on the merits of the initial decision
concerns the administrative judge’s rejection of documentary evidence and one of
his requested witnesses, both of which related to his whistleblower reprisal claim.
PFR File, Tab 1 at 3. However, it appears that the appellant is challenging
evidentiary rulings from his prior appeal. IAF, Tab 11 at 11-13 (the appellant’s
proposed witness list in the present appeal that does not include KM, the subject
of his argument on petition for review). The administrative judge’s rulings in
that separate appeal are not before us here. The appellant could have filed a
petition for review to challenge the administrative judge’s disposition of his
whistleblower reprisal claim in his first appeal, including her rulings on evidence
and witnesses. Alternatively, the appellant was free to propose the same witness
and seek to introduce the same documents in this appeal. If the appellant had
done so and the administrative judge had ruled the same way again, those matters
would have been properly before us here. As it stands, howev er, we find that the
appellant failed to preserve those issues for our review in this case. See
Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (the appellant’s
failure to timely object to rulings on witnesses precludes his doing so on petition
for review).
¶8 On the merits of the appellant’s whistleblower reprisal claim, the
administrative judge found, as she had in Shave I, that the appellant’s disclosure
6
was not protected because it was merely a policy disagreement about whether the
agency should cancel an audit. ID at 26-29. The appellant does not challenge
that finding on petition for review, and we see no reason to disturb it. We
therefore agree with the administrative judge that the appellant failed to prove his
whistleblower reprisal claim. 3
¶9 Because we have found that the appellant failed to prove that his disclosure
was protected, it is unnecessary to decide whether the agency proved by clear and
convincing evidence that it would have denied his WIGI in the absence of the
disclosure. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate
the administrative judge’s finding that the agency met its clear and convincing
burden.
The Board will not consider the appellant’s untimely Appointments Clause claim.
¶10 The appellant argues for the first time on petition for review that the
administrative judge was not properly appointed under the Appointments Clause
and that he is therefore entitled to a new adjudication of his appeal before a
properly appointed official. PFR File, Tab 1 at 4. In Lucia, the Court held that
administrative law judges (ALJs) of the Securities and Exchange Commission
(SEC) qualify as Officers of the United States subject to the Appointments
Clause, rather than mere employees. 138 S. Ct. at 2049. Because SEC ALJs were
appointed by SEC staff members rather than the Commission itself, the Court
3
Although the appellant’s failure to establish that he made a protected disclosure is
fatal to his whistleblower reprisal claim, the administrative judge also found that he
failed to prove his disclosure was a contributing factor in the WIGI denial decision. ID
at 29. On petition for review, the appellant argues that the administrative judge erred in
crediting the deciding official’s testimony that he was unaware of the appellant’s
disclosure. PFR File, Tab 1 at 4. He submits a June 2018 grievance as evidence that
the deciding official knew of his disclosures. Id. at 4, 57-58. However, the deciding
official’s second reconsideration decision denying the appellant’s WIGI for 2017 was
made in April 2018. IAF, Tab 14. Therefore, the appellant’s June 2018 grievance does
not establish that his disclosure, even if protected, was a contributing factor in the
WIGI denial that was finalized more than 2 months earlier.
7
held that the appointment of those ALJs violated the Appointments Clause. Id.
at 2050, 2053-55. The Court held that because Lucia had made a timely
challenge to the constitutional validity of the appointment of the ALJ who
adjudicated his case, he was entitled to relief in the form of a new hearing before
a different, properly appointed official. Id. at 2055.
¶11 The Court in Lucia did not specifically define what constitutes a timely
challenge to an appointment. In McClenning v. Department of the Army,
2022 MSPB 3, ¶¶ 5-15, we held that an Appointments Clause challenge regarding
a Board administrative judge must be raised to the administrative judge before the
close of the record in order to be timely. In McClenning, the appellant raised her
Appointments Clause claim in a timely petition for review a few weeks after the
Supreme Court issued its decision in Lucia. Id., ¶ 4. Here, the appellant first
raised his Appointments Clause claim in a timely petition for review a few
months after the Court decided Lucia. PFR File, Tab 1. In doing so, he asserted
that he was previously unaware of the Lucia decision. Id. at 4. We held in
McClenning that the discovery of a new legal argument is not itself sufficient to
justify the appellant’s failure to raise the Appointments Clause argument before
the administrative judge. McClenning, 2022 MSPB 3, ¶¶ 11-12. Thus, even if we
accept as true the appellant’s assertion that he raised his Appointments Clause
claim soon after learning of the Lucia decision, we find that the claim was
untimely because he failed to raise it before the administrative judge.
¶12 As we recognized in McClenning, the Board’s regulations reserve to it the
authority to consider any issue in an appeal before it. Id., ¶ 15; 5 C.F.R.
§ 1201.115(e). Here, as in McClenning, we find no basis to exercise that
discretion on the facts of this case. We note that the appellant could have raised
his Appointments Clause claim in his first WIGI appeal, and he would have had
reason to believe that claim might succeed. By the time the record closed in that
appeal, one court of appeals had already held that SEC ALJs are inferior officers
subject to the Appointments Clause, Bandimere v. Securities and Exchange
8
Commission, 844 F.3d 1168 (10th Cir. 2016), and the Supreme Court had granted
certiorari to address the issue in a separate matter, Lucia v. Securities and
Exchange Commission, 138 S. Ct. 736 (Jan. 12, 2018). By the time the record
closed in this second appeal, the Supreme Court had issued its decision on the
merits in Lucia. Accordingly, we will not consider the appellant’s Appointments
Clause challenge raised for the first time on petition for review.
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d
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 follow 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.
4
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.
9
(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 warra nts 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
10
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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 condit ion, 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:
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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. 5 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
5
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.
12
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.
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.