Benjamin McKenzie v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN MCKENZIE, DOCKET NUMBER
Appellant, DC-1221-16-0837-W-2
v.
DEPARTMENT OF HOMELAND DATE: March 22, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Benjamin McKenzie , Washington, D.C., pro se.
Lorna Jacqueline Jerome , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action on his reprisal claims in this individual
right of action (IRA) appeal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We AFFIRM the administrative
judge’s determination that the appellant failed to prove a prima facie case of
reprisal for whistleblowing or other protected activity. We VACATE the
administrative judge’s alternative finding that the agency established by clear and
convincing evidence that it would have taken the same action against the
appellant absent any protected activity.
BACKGROUND
The appellant timely filed an IRA appeal, which the administrative judge
dismissed without prejudice subject to refiling by a date certain in order to allow
him to address a health condition and obtain legal representation. 2 McKenzie v.
2
In September 2014, the appellant filed an appeal challenging his removal pursuant to
5 U.S.C. chapter 75, which the administrative judge dismissed as untimely filed, and
raising a Veterans Employment Opportunities Act of 1998 claim, which the
administrative judge dismissed for lack of jurisdiction. McKenzie v. Department of
Homeland Security, MSPB Docket No. DC-0752-14-1121-I-1, Initial Decision (Feb. 24,
2015). That decision became the final decision of the Board when neither party filed a
timely petition for review. The administrative judge dismissed for lack of jurisdiction a
separately docketed Uniformed Services Employment and Reemployment Rights Act of
1994 appeal, and the Board denied the appellant’s petition for review. McKenzie v.
Department of Homeland Security, MSPB Docket No. DC-4324-15-0451-I-1, Final
Order (Mar. 25, 2016). Because his 2014 removal appeal was dismissed as untimely
filed, we find that it did not constitute a binding election of remedies pursuant to
5 U.S.C. § 7121(g) that would bar this subsequent IRA appeal regarding his reprisal
claims. See 5 U.S.C. § 7121(g)(4)(A) (specifying that the election to proceed with a
Board appeal must be “timely filed”); Brundin v. Smithsonian Institution, 75 M.S.P.R.
332, 336 (1997).
3
Department of Homeland Security, MSPB Docket No. DC-1221-16-0837-W-1,
Appeal File, Tab 1, Tab 12, Initial Decision (Sept. 30, 2016). The appellant
subsequently timely refiled his IRA appeal. McKenzie v. Department of
Homeland Security, MSPB Docket No. DC-1221-16-0837-W-2, Appeal File
(W-2 AF), Tab 1. After holding the requested hearing, the administrative judge
issued an initial decision denying the appellant’s request for corrective action.
W-2 AF, Tab 30, Initial Decision (ID) at 1, 9. The administrative judge found
that the appellant failed to prove (1) that he had made a protected disclosure or
engaged in protected activity and (2) that his allegedly protected disclosures or
activity were a contributing factor in his removal. ID at 6-7. Finally, the
administrative judge found that, even if the appellant had met his burden of proof
regarding his alleged disclosures or activity, the agency had shown by clear and
convincing evidence that it would have removed him absent any such disclosures
or activity. ID at 8.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant states his belief that the administrative judge’s
rulings during the proceedings below and findings in the initial decision were not
consistent with unspecified required procedures or involved abuse of discretion.
PFR File, Tab 3 at 4-5. For instance, he asserts that “it appears” that the
administrative judge engaged in ex parte verbal conversations with the agency
representative despite purportedly advising the parties that she would only engage
in written conversations. Id. An ex parte communication is an oral or written
communication between a decision-making official of the Board and an interested
party to a proceeding, when that communication is made without providing the
other parties to the appeal with a chance to participate. 5 C.F.R. § 1201.101.
Administrative judges are prohibited from engaging in ex parte conversations
regarding the merits of an appeal. 5 C.F.R. § 1201.102. Here, the appellant
4
provided no evidence or argument to support his claim that the agency
representative may have had ex parte conversations with the administrative judge.
PFR File, Tab 3 at 4-5. We find that the record is devoid of any evidence to
support the appellant’s bare assertion of improper ex parte communications by the
administrative judge.
The appellant contends that, although he “asked for [d]iscovery,” the
administrative judge ignored his written request and issued subsequent case
processing orders without answering his questions regarding the discovery
process. Id. He asserts that the administrative judge’s prejudicial errors “allowed
no witness to rebut the overwhelming documentary and testimonial evidence
provided.” Id. Prior to the deadline for initiating discovery, the appellant filed a
request for an “extension of time for the parties to exhaust [settlement]
discussions, and for [him] to obtain further guidance on the [d]iscovery process.”
W-2 AF, Tab 3 at 2, Tab 9 at 4. The administrative judge issued no ruling on this
motion, and the record contains no evidence that the appellant served any timely
requests for discovery on the agency. Approximately 3 months after the deadline
to initiate discovery, and 4 days prior to the deadline set forth in the hearing order
for submitting prehearing submissions including all proposed exhibits and a
summary of expected witness testimony, the appellant filed a request to initiate
discovery within 30 days of the filing of his request. W -2 AF, Tab 10 at 1-2,
Tab 15 at 4. He attached to his motion email correspondence with the agency
representative stating that the agency would not respond to his untimely
discovery requests. W-2 AF, Tab 15 at 5-6. The administrative judge denied the
appellant’s motion to initiate discovery, finding that the appellant’s failure to
timely initiate discovery did not constitute good cause for postponing the
proceedings. W-2 AF, Tab 18.
During the prehearing conference, the administrative judge approved 3 of
the appellant’s proposed witnesses, including the proposing and deciding officials
in the removal action, but denied over 25 other witnesses, for which the appellant
5
proffered no testimony or relevance. W-2 AF, Tab 21 at 4-5, Tab 19 at 5-9. The
administrative judge instructed the appellant that he could provide additional
information regarding the relevance of his remaining proposed witnesses. W-2
AF, Tab 21 at 4-5. The appellant resubmitted the names of four individuals
without providing meaningful information as to their testimony or its relevance,
and the administrative judge issued a subsequent ruling denying the appellant’s
additional proposed witnesses. W-2 AF, Tab 26 at 1-2.
The appellant’s challenges to the administrative judge’s discovery and
evidentiary rulings are unpersuasive. An administrative judge has broad
discretion in ruling on discovery matters, and, absent an abuse of discretion, the
Board will not find reversible error in such rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 15 (2013); 5 C.F.R. § 1201.41(b)(4). To the extent
that the administrative judge erred in not ruling on the appellant’s initial request
for a general extension of time, the appellant has provided no explanation why he
did not serve the agency with any discovery requests prior to the deadline set
forth in the acknowledgment order, or why he waited until 3 months after the
deadline to serve his initial requests. W-2 AF, Tab 3 at 2, Tab 15 at 4-6; see
5 C.F.R. § 1201.73(d)(1).
The general discovery requests that the appellant untimely served on the
agency included access to his agency hard drive, the physical items that were left
in his cubicle following his departure, and all of his supervisor’s “written
personnel actions against” him. W-2 AF, Tab 15 at 6. He fails to identify any
specific items or information that he was unable to obtain in discovery, or how
those items would have enabled him to meet his burden of proof of establishing a
prima facie case of whistleblower retaliation. See 5 U.S.C. § 1221(e)(1); Webb v.
Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015) (stating that the
appellant must establish a prima facie case of whistleblower retaliation by
6
proving by preponderant evidence 3 that he made a protected disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A)). 4 Thus, the appellant
has failed to show how any error constituted an abuse of discretion because he
has not shown how the information requested was material. See Vores v.
Department of the Army, 109 M.S.P.R. 191, ¶¶ 14-15 (2008) (finding that the
appellant failed to show that the administrative judge abused his discretion by not
extending the discovery period when the appellant failed to show how
information could have been obtained would have affected the administrative
judge’s finding that the Board lacked jurisdiction over the appeal), aff’d,
324 F. App’x 883 (Fed. Cir. 2009). Accordingly, we find no abuse of discretion
regarding the administrative judge’s failure to rule on the appellant’s initial
request or denying the appellant’s request to initiate discovery 4 days prior to the
deadline for prehearing submissions.
An administrative judge has wide discretion to control the proceedings,
including the authority to exclude testimony and evidence she believes would be
irrelevant or immaterial. Sanders v. Social Security Administration, 114 M.S.P.R.
487, ¶ 10 (2010). The Board has found that, to obtain reversal of an initial
decision because the administrative judge abused her discretion in excluding
evidence, the petitioning party must show on review that the administrative judge
disallowed a relevant witness or evidence that could have affected the outcome.
3
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
of the U.S. Code. Our decision to affirm the initial decision denying the appellant’s
request for corrective action would be the same under both pre- and post-NDAA law.
7
Id. In contrast to the appellant’s statement on review that the administrative
judge “allowed no witness to rebut” the agency’s testimony and evidence, the
administrative judge approved three witnesses for the appellant. PFR File, Tab 1
at 5; W-2 AF, Tab 21 at 4. The appellant fails to articulate any reason why the
testimony of any of the proposed witnesses the administrative judge denied could
have affected the outcome of the appeal. PFR File, Tab 1 at 4-5. Moreover, the
administrative judge provided the appellant with the opportunity to file additional
information regarding any relevant testimony his denied witnesses would present
at the hearing, and the appellant failed to provide sufficient meaningful
information in his subsequent filing. W-2 AF, Tab 21 at 4-5, Tab 22 at 4-5.
Finally, the appellant’s petition for review contains an unexplained
reference to a “5 C.F.R. part 1207 allegation of discrimination in the adjudication
of a Board case.” PFR File, Tab 3 at 4-5. 5 C.F.R. § 1207.170(b) sets forth
procedures for a party who believes that he has been subjected to discrimination
on the basis of disability in the adjudication of his Board appeal. If the
administrative judge to whom the case was assigned has issued an initial decision
by the time the party learns of the alleged discrimination, the party may raise the
allegation of discrimination in a petition for review. See 5 C.F.R. § 1201.170(b)
(4). The petition for review must be clearly marked “5 CFR part 1207 allegation
of discrimination in the adjudication of a Board case.” To the extent that the
appellant raises an allegation that the administrative judge discriminated against
him on the basis of disability in the proceedings below, he has provided no
information explaining or supporting such a claim. PFR File, Tab 3 at 4-5.
Therefore, we find that the appellant has provided no basis for disturbing the
initial decision. See 5 C.F.R. § 1201.114(b) (stating that a petition for review
must include all of the filing party’s legal and factual arguments objecting to the
initial decision, and must be supported by references to applicable laws or
regulations and by specific references to the record).
8
In analyzing the appellant’s whistleblower claim, the administrative judge
found that the appellant failed to prove that his alleged disclosures or activity
were protected or were a contributing factor in his removal. ID at 6-8. The
appellant has not challenged these findings, and we discern no reason upon which
to disturb them. However, the administrative judge found further that, in any
event, the agency established by clear and convincing evidence that it would have
taken the same actions absent the appellant’s alleged protected disclosures and
activity. Id. at 8. Because we have found that the appellant failed to prove that
he made a protected disclosure or engaged in protected activity and the disclosure
or activity was a contributing factor in the action taken, it is unnecessary to
determine whether the agency proved by clear and convincing evidence that it
would have taken the action at issue in the absence of the disclosure or activity.
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 findings concerning whether the agency met its “clear and
convincing” burden.
Accordingly, we deny the petition for review and affirm as modified the
initial decision.
NOTICE OF APPEAL RIGHTS 5
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
5
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
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.
(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
10
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. 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 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
11
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
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. 6 The court of appeals must receive your petition for
6
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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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.