Anthony Mottas v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. MOTTAS, DOCKET NUMBERS
Appellant, DE-1221-18-0118-W-1
DE-1221-18-0195-W-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: March 28, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony Joseph Mottas , Crestview, Florida, pro se.
Zane Perry Schmeeckle , Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his joined individual right of action
(IRA) appeals. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 these appeals, 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 initial decision
denying the appellant’s request for corrective action, as MODIFIED, by finding
that the appellant’s performance appraisal was a cognizable personnel action and
VACATING the administrative judge’s conclusion to the contrary.
BACKGROUND
¶2 The following facts, as further detailed in the record below, are undisputed.
The agency appointed the appellant to the position of Advanced Medical Support
Assistant for the Eastern Kansas Health Care System in Junction City, Kansas, in
February 2017. Mottas v. Department of Veterans Affairs , MSPB Docket No.
DE-1221-18-0118-W-1, Initial Appeal File (0118 IAF), Tab 17 at 43. Later that
same year, in August 2017, the agency temporarily detailed the appellant to the
same position at a facility in Topeka, Kansas, while it convened an
Administrative Investigation Board (AIB) to consider allegations that he had
engaged in misconduct. Id. at 30-32. Among other things, the agency indicated
that the AIB would investigate complaints of the appellant intimidating staff, not
following procedures, and acting outside his scope of duties by trying to
supervise others. Id. at 31.
¶3 Over the following months, the appellant filed two IRA appeals. 0118 IAF,
Tab 1; Mottas v. Department of Veterans Affairs, MSPB Docket No. DE-1221-18-
3
0195-W-1, Initial Appeal File (0195 IAF), Tab 1. In pertinent part, the first
alleged that the AIB and detail assignment were the products of whistleblower
retaliation, while the second alleged that his subsequent performance appraisal
was also retaliatory. 0118 IAF, Tab 1 at 5; 0195 IAF, Tab 1 at 5, 11-12. The
administrative judge joined these appeals for adjudication. 0118 IAF, Tab 21;
0195 IAF, Tab 18. 2
¶4 After providing the appellant with an opportunity to do so, the
administrative judge found that the appellant met his jurisdictional burden for
some of the alleged disclosures, activities, and personnel actions he had raised.
0118 IAF, Tab 22 at 3-6, 8, 10-11; 0195 IAF, Tab 20 at 3-6, 8-10. Consequently,
he developed the record and held a 4-day hearing before issuing a decision that
denied the appellant’s request for corrective action. 0118 IAF, Tab 43, Initial
Decision (ID); accord 0195 IAF, Tab 39.
¶5 Of the disclosures and activities that were within the Board’s jurisdiction,
the administrative judge found three protected. ID at 5-17. As described by the
appellant, they were as follows:
June 2, 2017 – Phone call to the Office of Compliance and Business
Integrity for an issue of untimely access to care standards at the
Junction City Community Based Outpatient Clinic by leadership
procedures.
June 6, 2017 – Sent email to [the] Compliance Officer asking about
block scheduling and cancellation of Veteran appointments within
the 45 day approval time standard.
July 26, 2017 – Email sent by me to . . . my Supervisor stating that
Physicians return to clinic orders were not being entered into the
computer system allowing medical support assistants to make follow
up appointments for Veterans after seeing their Physician prior to
leaving the clinic.
0118 IAF, Tab 5 at 5-6; ID at 7-9, 17. The administrative judge determined that
the first two constituted protected activity under section 2302(b)(9)(C), while the
2
For the most part, the records for the two separate IRA appeals mirror each other after
the date on which the administrative judge issued the joinder order. Accordingly, for
the sake of simplicity, this decision will oftentimes cite to just one of the records.
4
third constituted a protected disclosure under section 2302(b)(8). ID at 11-15.
He further found that the appellant proved that his protected activities were a
contributing factor to a single cognizable personnel action—the appellant’s detail
assignment. ID at 17-21. For the only other alleged personnel action over which
the appellant established jurisdiction—his performance appraisal—the
administrative judge found that, although the appellant proved that his protected
disclosure was a contributing factor, he did not prove that the performance
appraisal was a cognizable personnel action because it was not punitively low.
ID at 21-24.
¶6 Because the appellant met his burden concerning his protected activity and
his detail assignment, the administrative judge shifted the burden to the agency.
Upon doing so, he found that the agency proved by clear and convincing evidence
that it would have taken the same personnel action in the absence of the protected
activity. ID at 24-31. He also presented alternative findings concerning the
appellant’s performance appraisal. Specifically, the administrative judge found
that, even if the appellant had proven that his performance appraisal was a
cognizable personnel action, the agency proved that it would have also taken that
same action in the absence of the appellant’s protected disclosure. ID at 31-32.
¶7 The appellant has filed a petition for review for each of his appeals.
Mottas v. Department of Veterans Affairs, MSPB Docket No. DE-1221-18-0118-
W-1, Petition for Review (0118 PFR) File, Tab 1; Mottas v. Department of
Veterans Affairs, MSPB Docket No. DE-1221-18-0195-W-1, Petition for Review
(0195 PFR) File, Tab 1. 3 The agency has filed an untimely response to the
appellant’s petitions, along with argument and evidence to explain its
untimeliness. 0118 PFR File, Tabs 3-4. The appellant filed a motion, arguing
that we should reject the agency’s response. 0118 PFR File, Tab 5. We find it
3
The appellant’s separate petitions largely mirror one another, but the latter contains a
couple of minor points that are not included in the former, so we will exclusively cite to
that petition. Compare 0118 PFR File, Tab 1 at 4-7, with 0195 PFR File, Tab 1 at 4-8.
5
unnecessary to consider the agency’s response or rule on whether the agency
presented good cause for its untimeliness.
ANALYSIS
¶8 The appellant’s arguments on review are limited to ones concerning whether
the AIB constituted a personnel action, whether the agency proved that it would
have taken the same actions in the absence of his protected activity and
disclosure, whether the administrative judge timely issued the initial decision, and
whether the agency committed harmful error. 0195 PFR File, Tab 1 at 4-8.
Therefore, our analysis will be similarly focused.
¶9 Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before the Office of Special Counsel and makes
nonfrivolous allegations that (1) 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 (2) 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). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes jurisdiction
over his IRA appeal, he is entitled to a hearing on the merits of his claim, which
he must prove by preponderant evidence. 4 Id.¶10 If the appellant proves that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, 5 that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
4
Preponderant evidence is the 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).
5
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; it is
a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).
6
Id. In determining whether the 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 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). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence, but rather, the Board will weigh the factors together to determine
whether the evidence is clear and convincing as a whole. Phillips v. Department
of Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). We are also mindful that
“[e]vidence 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 fairly detracts from that conclusion.” Whitmore v. Department
of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
The appellant failed to establish jurisdiction over the AIB as an additional
personnel action.
¶11 The appellant suggests that the administrative judge erred by finding that he
failed to meet his jurisdictional burden concerning the agency’s AIB. 0195 PFR
File, Tab 1 at 5; 0118 IAF, Tab 22 at 10-11. We disagree.
¶12 A “personnel action” is defined as follows: (i) appointments;
(ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or
corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements;
(vi) restorations; (vii) reemployments; (viii) performance evaluations under
5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or
awards, or involving education or training if it reasonably may be expected to
lead to an appointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing
or examination; (xi) implementations or enforcements of any nondisclosure
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policy, form, or agreement; and (xii) any other significant changes in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); see Sistek v.
Department of Veterans Affairs, 955 F.3d 948, 954 (Fed. Cir. 2020) (recognizing
that “investigation” is “[n]otably absent” from the list of personnel actions).
¶13 An investigation into an allegation of misconduct is not a personnel action
per se. Sistek, 955 F.3d at 955. Instead, the investigation must otherwise fit
within one of the items listed under section 2302(a)(2)(A) to constitute a covered
personnel action. Id. (noting that “a retaliatory investigation, either on its own or
as part of a broader set of circumstances, may qualify as a personnel action if it
rises to the level of a ‘significant change . . . in working conditions’”). However,
even if the investigation does not constitute a significant change in working
conditions or other personnel action enumerated in section 2302(a)(2)(A), the
Board will consider evidence of the conduct of an agency investigation when it is
so closely related to a personnel action that it could have been pretext for
gathering evidence to retaliate. Id. at 956-57 (discussing Russell v. Department of
Justice, 76 M.S.P.R. 317, 323-24 (1997)). In considering such evidence, the
Board looks at where the investigation had its beginnings. Russell, 76 M.S.P.R.
at 324.
¶14 The Board’s decision in Mangano v. Department of Veterans Affairs,
109 M.S.P.R. 658 (2008), is illustrative. The appellant in Mangano argued that
the administrative judge erred by finding that two investigations were not
personnel actions. Id., ¶ 36. The Board did not adopt the appellant’s position—
the Board did not find that the agency’s investigations were covered personnel
actions. Id., ¶¶ 36-44. Instead, the Board recognized that the investigations were
so closely related to the misconduct charge underlying the appellant’s removal
that they could have been pretext for gathering evidence to use to retaliate for his
whistleblowing. Id., ¶ 44. In doing so, the Board discussed how the one
investigation was convened by the subject of the employee’s whistleblowing and
was conducted in an unusual manner, and the agency included the results from the
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other investigation in its misconduct charge against the employee in a way that
was inconsistent with the investigatory results. Id. Under those circumstances,
the Board concluded that the appellant’s allegation of retaliation by investigation
should be considered in determining the strength of the agency’s evidence
supporting the appellant’s removal. Id. In other words, the alleged retaliation by
investigation was not a separate personnel action subject to its own
burden-shifting analysis. Instead, the Board would consider the alleged
retaliation by investigation as part of the burden-shifting analysis of a personnel
action that is enumerated in section 2302(a)(2)(A).
¶15 Turning back to the instant appeal, the appellant acknowledged that the
agency informed him of the AIB and detail assignment simultaneously, explaining
that he would remain in the detail assignment until the AIB was complete. 0118
IAF, Tab 1 at 5, Tab 17 at 30-32. The administrative judge correctly determined
that the detail assignment did qualify as a personnel action, as defined in section
2302(a)(2)(A). 0118 IAF, Tab 22 at 10-11. Setting that personnel action aside,
the appellant did not present any allegations or evidence concerning any practical
or significant effects that the AIB had on the overall nature and quality of his
working conditions, duties, or responsibilities. Instead, he simply described the
AIB as retaliatory and asserted that the agency failed to comply with associated
requirements, including one concerning the speed with which the investigation
should be completed. E.g., 0118 IAF, Tab 1 at 5, Tab 5 at 4, 7, Tab 19 at 4-5.
Accordingly, we agree with the administrative judge. The appellant failed to
nonfrivolously allege that the AIB was a separate personnel action. He therefore
failed to establish jurisdiction over that claim.
The appellant is not entitled to corrective action regarding his detail assignment.
¶16 Because the administrative judge found that the appellant met his burden of
proving that he engaged in protected activity that was a contributing factor in a
personnel action taken against him—the detail assignment—the agency had the
burden of proving, by clear and convincing evidence, that it would have taken the
9
same personnel action in the absence of that protected activity. See supra ¶ 10.
The administrative judge relied upon the proper legal standard to conduct that
analysis. ID at 24-25. Among other things, he noted 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
fairly detracts from that conclusion. ID at 25; see supra ¶ 10.
¶17 On review, the appellant argues that the administrative judge repeatedly
ignored evidence that detracted from his conclusion regarding each of the Carr
factors. 0195 PFR File, Tab 1 at 5-8. But the appellant’s arguments do not meet
the Board’s standards because he has not identified any specific and supportive
evidence from the record. See 5 C.F.R. § 1201.114(b) (providing that a petition
for review must state a party’s objections to the initial decision and must be
supported by references to specific references to the record); see also Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (observing that, before the
Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect, and identify the
specific evidence in the record which demonstrates the error). Nevertheless, we
will briefly discuss the administrative judge’s findings and the appellant’s
arguments about the same.
¶18 Concerning the first Carr factor, the strength of the agency’s evidence in
support of its action, the administrative judge recognized various documents and
testimony that gave credence to the agency’s decision to convene the AIB and
detail the appellant away from his duty station. ID at 25-29. Generally speaking,
that evidence showed that the agency received various complaints regarding the
appellant’s conduct—complaints that matched the reasons the agency cited when
informing the appellant of the AIB and detail assignment—and the agency
responded in accordance with its policies. Id.; see, e.g., 0118 IAF, Tab 17
at 31, 34-35, Tab 35, Hearing Compact Disc, Day 2 (HCD2) (testimony of the
10
Nurse Case Manager), Tab 36, Hearing Compact Disc, Day 3 (testimony of the
Director) (testimony of the Group Practice Manager).
¶19 The appellant argues that several of the complaints against him were not
justified or were eventually dropped, and the final outcome of the agency’s
investigation could have detracted from the strength of the agency’s evidence had
the administrative judge not prevented him from eliciting associated testimony.
0195 PFR File, Tab 1 at 5. However, even if the appellant had identified
evidence establishing the same, we discern no basis for concluding that the
administrative judge’s apparent limitation on testimony amounted to an abuse of
discretion. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013)
(explaining that an administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony he believes would be
irrelevant, immaterial, or unduly repetitious). The question at hand was not
whether the complaints were proven correct or whether they warranted discipline;
the question was whether the complaints warranted the agency’s decision to place
the appellant on a detail assignment as it investigated. To the extent that the
appellant presents other arguments about the first Carr factor and his detail
assignment, they are similarly unsupported by references to the record and
address matters that are of no apparent relevance to the legal question at hand.
0195 PFR File, Tab 1 at 5.
¶20 For the second Carr factor, the existence and strength of any motive to
retaliate, the administrative judge made several findings. ID at 29-31. Most
notably, he found that the official responsible for placing the appellant on the
detail assignment—the Director—credibly testified that the appellant’s protected
activity did not upset him or cause him any sort of problem. ID at 29. But he
also found that this official had warned the appellant not to raise concerns outside
his chain of command, which suggested a slight motive to retaliate. ID at 29-30.
The administrative judge further noted that, although one other official—the
Chief of Staff—had a significant motive to retaliate, because the appellant’s
11
protected activity implicated her, she had no involvement in the appellant’s detail
assignment. ID at 31.
¶21 The appellant argues that the administrative judge failed to mention a
July 3, 2017 email from the Director, which asked the Chief of Staff to find
evidence of the appellant engaging in wrongdoing. 0195 PFR File, Tab 1 at 6.
But again, the appellant has failed to provide a citation or anything else to direct
us to this purported email. Supra ¶ 17. In another argument about the second
Carr factor, the appellant summarily asserts that the Director violated his privacy.
0195 PFR File, Tab 1 at 6. He also asserts that his direct supervisor was aware of
his disclosures and did nothing about them. Id. Although we have considered
these and each of the appellant’s other arguments regarding the second Carr
factor, none warrant disturbing the administrative judge’s conclusion about the
strength of officials’ motive to retaliate.
¶22 For the third Carr factor, any evidence that the agency takes similar actions
against employees who are not whistleblowers, but who are otherwise similarly
situated, the administrative judge found that the Director testified that he had
similarly detailed one or two others who were subject to an AIB. ID at 31. The
administrative judge found this testimony credible but cursory. Id. He therefore
concluded that the third Carr factor weighed only slightly in the agency’s favor.
Id.
¶23 On review, the appellant reiterates that it was the agency’s burden, yet the
agency provided no specific information about similarly situated individuals.
0195 PFR File, Tab 1 at 7. However, as we just mentioned, the administrative
judge recognized the same. The appellant also asserts that he did not receive
advanced notice of the agency’s witnesses, to prepare for and rebut the agency’s
testimony about the third Carr factor. Id. But the record reflects otherwise. The
agency specifically identified its requested witnesses and their expected testimony
in a prehearing submission, after which the administrative judge issued an order
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specifically identifying them again, months before the hearing. 0118 IAF, Tab 20
at 21-24, Tab 24 at 9.
¶24 In sum, the appellant has presented a number of cursory arguments
regarding the agency’s burden of proof and his detail assignment. He has not,
however, identified any evidence to support his arguments or otherwise provided
any basis for us to disturb the administrative judge’s well-reasoned findings of
fact.
The appellant is not entitled to corrective action regarding his performance
appraisal.
¶25 As we previously mentioned, the administrative judge made alternative
findings regarding the appellant’s performance appraisal. He first found that the
rating official had knowledge of the appellant’s protected disclosure in the
months leading up to the performance appraisal, satisfying the knowledge/timing
test for the contributing factor element. ID at 21. However, the administrative
judge found that the “fully successful” performance appraisal did not qualify as a
personnel action within the meaning of the whistleblower statute because the
appellant failed to establish that it was punitive. ID at 21-24. The administrative
judge then found that, even if the performance appraisal did constitute a personnel
action, the agency proved that it would have also taken that same action in the
absence of the appellant’s protected disclosure. ID at 31-32.
The administrative judge erred in finding that the appellant’s
performance appraisal was not a cognizable personnel action.
¶26 On review, the appellant does not present any argument about the one
matter the administrative judge found lacking from his prima facie case of
reprisal, i.e., whether his performance appraisal constituted a cognizable
personnel action. Nevertheless, we vacate the administrative judge’s findings
about the same.
¶27 In Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 16 (2013), the
Board considered whether an employee’s performance appraisal was a “personnel
13
action,” within the meaning of the whistleblower statute when that
appraisal was similar to ones from the years before. The Board found that section
2302(a)(2)(A)(viii) specifically identifies a performance appraisal as a cognizable
personnel action, without any qualifying language that would require the
contested performance appraisal to be either less than satisfactory or tangibly
lower than a prior appraisal. Id. The same rationale can be extended to the
circumstances at hand. Although the administrative judge determined that the
appellant’s performance appraisal was not a personnel action because it was not
punitively lowered, the statute contains no such requirement. Therefore, the
appellant’s performance appraisal is a cognizable personnel action,
notwithstanding the fact that the agency rated him as “fully successful.”
The administrative judge correctly found that the agency met its
burden.
¶28 Although the administrative judge erred in finding that the appellant’s
performance appraisal was not a personnel action, the appellant has not presented
any basis for us to disturb the administrative judge’s alternative findings about
the agency meeting its burden, and we found none. The appellant’s performance
appraisal included rating the appellant as “exceptional” in two critical elements
and “fully successful” in the third. 0118 IAF, Tab 17 at 24-28. Consistent with
the guidelines delineated in the performance appraisal, those individual ratings
resulted in an overall rating of fully successful. Id. at 28. Had the appellant
received an exceptional rating in the third critical element, customer service, he
would have received an overall rating of exceptional. Id.¶29 The customer service critical element required courteous and cooperative
interaction with staff, along with tactful and positive responses to requests,
among other things. Id. at 25. According to the administrative judge, the
Supervisory Medical Support Assistant credibly testified that the appellant did not
achieve an exceptional rating in this element because of the way he handled
certain interpersonal situations, including some that were both described in detail
14
and unrebutted. ID at 23-24 (citing HCD2 (testimony of the Supervisory Medical
Support Assistant)). This is consistent with testimony from others who described
the appellant’s conduct, particularly his conduct towards coworkers. See supra
¶ 18. Therefore, the agency’s evidence in support of the agency rating the
appellant as fully successful, rather than exceptional, was quite strong.
¶30 The only thing in the appellant’s petition for review that could be construed
as an argument to the contrary is an assertion that the agency failed to give the
appellant a mid-year review or any “written negative counseling” before the
performance appraisal. 0195 PFR File, Tab 1 at 5-6. But neither is
consequential. The absence of a mid-year review has no apparent relevance to the
veracity of the appellant’s end-of-year review, and we would not necessarily
expect prior written negative counseling to justify a fully successful, rather than
exceptional, performance rating.
¶31 Turning to the second and third Carr factors, the administrative judge
recognized that the Supervisory Medical Support Assistant was both aware of the
appellant’s protected disclosure and responsible for rating the appellant’s
performance just months later. ID at 21. Yet he found that the Supervisory
Medical Support Assistant was not personally or professionally implicated in the
appellant’s disclosure. ID at 32. The administrative judge also noted that the
Supervisory Medical Support Assistant—whom he found credible—provided
testimony about other individuals in the appellant’s position receiving similar
ratings. Id. Ultimately, he concluded that the agency met its burden of proving,
by clear and convincing evidence, that it would have given the appellant the same
performance appraisal in the absence of his protected disclosure. Id.
¶32 The appellant’s petition for review contains no other substantive argument
about his claim that the performance appraisal was retaliatory, except to generally
and correctly reiterate that it was the agency’s burden of proving otherwise. 0195
PFR File, Tab 1 at 6-7. In the absence of more, we find no basis for concluding
that the administrative judge erred in determining that the agency met its burden.
15
The appellant’s remaining arguments are unavailing.
¶33 On review, the appellant argues that the administrative judge erred by
suspending case processing several times and otherwise causing or allowing
delays in resolving his appeals. 0195 PFR File, Tab 1 at 4. However, he has
failed to identify any basis for us to determine that the delays were harmful, and
we found none. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981) (considering an appellant’s allegations of improper delays and explaining
that, if an administrative judge commits a procedural error, it is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights). The appellant also argues that the agency violated its own procedures
regarding AIB proceedings and therefore committed a harmful procedural error.
0195 PFR File, Tab 1 at 4-5 (citing 5 U.S.C. § 7701(c)(2)). According to the
appellant, the Director failed to meet a notice requirement, failed to meet a
deadline for completing the AIB, and then reopened the otherwise stalled AIB
shortly after he received a letter from the Equal Employment Opportunity
Commission regarding complaints of harassment. Id. However, the Board does
not have jurisdiction to hear a harmful procedural error claim in the context of the
IRA appeals before us. Salerno, 123 M.S.P.R. 230, ¶ 15. To the extent that the
argument could be construed as implicating issues that are properly before us, it
remains unavailing. The appellant has failed to identify any evidentiary support
for the AIB irregularities he alleges.
NOTICE OF APPEAL RIGHTS 6
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
6
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.
16
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 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.
17
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. 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
18
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
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. 7 The court of appeals must receive your petition for
7
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
19
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.
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.
20
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.