James Kissiar v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES KISSIAR, DOCKET NUMBER
Appellant, DC-1221-20-0453-W-1
v.
DEPARTMENT OF DEFENSE, DATE: October 22, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laura Nagel , Esquire, and Brian Tuttle , Esquire, Washington, D.C., for the
appellant.
Nicole E. Rapone , Esquire, Fort Gregg-Adams, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in connection with his individual right of
action appeal. Generally, we grant petitions such as this one only in 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s finding that the agency proved by clear and
convincing evidence that it would have taken the appellant’s agency-issued
computer in November 2018 even absent his protected disclosures, we AFFIRM
the initial decision.
The administrative judge found that, of the three personnel actions the
appellant alleged the agency took against him in retaliation for his protected
disclosures, only his performance evaluation and his 5-day suspension were
covered personnel actions under 5 U.S.C. § 2302(a)(2)(A), and that the taking of
his computer was not. Initial Decision at 44-47. The administrative judge found,
as to the latter action, that it did not, as the appellant alleged, constitute a
significant change in his working conditions. 2 5 U.S.C. § 2302(a)(2)(A)(xii).
2
The record reflects that the agency confiscated the appellant’s agency-issued computer
for approximately 3 ½ months as part of an investigation into the appellant’s accessing
of personally identifiable information on the computer. The administrative judge
considered the evidence regarding the appellant’s ability to perform his duties during
the period in question, including hearing testimony, and concluded that the appellant
had failed to prove by preponderant evidence that his working conditions significantly
changed during the period he was without a computer. Initial Decision at 44-46. The
administrative judge explained that, although the record showed that the appellant had
to make certain adjustments to complete his work while he did not have his computer,
3
Notwithstanding, the administrative judge analyzed all three personnel actions in
considering whether the agency proved by clear and convincing evidence that it
would have taken those personnel actions even absent the appellant’s protected
disclosures, concluding, as to all three, that the agency did so prove, Initial
Decision at 48-59, and, on that basis, the administrative judge denied the
appellant’s request for corrective action. Initial Decision at 2, 59.
On review, inter alia, the appellant argues that the administrative judge
erred in finding that the agency would have confiscated his computer in the
absence of his protected disclosures. Petition for Review File, Tab 1 at 21-28.
In the Whistleblower Protection Enhancement Act of 2012, Pub. L.
No. 112-199, § 114(b), 126 Stat. 1465, 1472, Congress amended 5 U.S.C.
§ 1221(e)(2) to provide that corrective action cannot be ordered if, “ after a
finding that a protected disclosure was a contributing factor” in the personnel
action which was taken or is to be taken, the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel action in the
absence of such disclosure. Under this amendment, the Board may not proceed to
the clear and convincing evidence test unless it has first made a finding that the
appellant established his prima facie case. 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); see also S. Rep. No. 112-743 at 24 (2012).
Here, after finding that the agency’s action in confiscating the appellant’s
computer in November 2018 was not a covered personnel action under 5 U.S.C.
the adjustments were not significant, and the appellant continued to perform at a Fully
Successful level with only minor alterations to his working conditions. Id. at 46. In his
petition for review, the appellant challenges the administrative judge’s finding that the
removal of his computer was not a covered personnel action. Petition for Review File,
Tab 1 at 19-21. We have considered the appellant’s argument, and the cases cited
therein, but we find that has not provided a basis to disturb the administrative judge’s
well-reasoned finding on this issue. See, e.g., Clay v. Department of the Army, 123
M.S.P.R. 245, ¶ 9 (2016) (finding no reason to disturb the administrative judge’s
findings when the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions).
4
§ 2302(a)(2)(A)(xii), Initial Decision at 45-47, the administrative judge’s analysis
of that claim should have ended. We therefore VACATE his further finding that
the agency proved by clear and convincing evidence that it would have
confiscated the appellant’s computer even absent his protected disclosures, Initial
Decision at 49-53. As such, we do not address the appellant’s claims on review
regarding that finding.
NOTICE OF APPEAL RIGHTS 3
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 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.
3
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.
5
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 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,
6
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
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
7
(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. 4 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.
4
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.
8
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.