Michael E Stevenson v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL E. STEVENSON JR., DOCKET NUMBER
Appellant, DA-0714-19-0524-C-1
v.
DEPARTMENT OF VETERANS DATE: October 9, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael E. Stevenson Jr. , Piedmont, Oklahoma, pro se.
Chau Phan , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement and found that the agency
complied with the Board’s February 16, 2023 Final Order by canceling the
appellant’s removal and issuing a new Standard Form (SF) 50 reflecting that the
appellant retired on disability under the Federal Employees’ Retirement System
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
(FERS), effective the day after the canceled removal action. On petition for
review, the appellant argues that the effective date of his FERS disability
retirement is incorrect; states that he unsuccessfully attempted to submit evidence
demonstrating that he was “ready, willing, and able” to perform the duties of the
position to which he was temporarily assigned at the time of his separation;
alleges that the administrative judge was biased against him and favored the
agency; reasserts that he should have been granted retirement credentials and a
badge set; and argues that the agency improperly included documents in the
record without his authorization. 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.
¶2 Regarding the appellant’s argument that he unsuccessfully attempted to file
a response to the administrative judge’s show cause order arguing that he was
“ready, willing, and able” to perform the duties of the temporary position to
which he was assigned, even if we were to consider this argument, we would not
reach a different result than that reached by the administrative judge. 2
2
The appellant has provided several documents with his petition for review, all of
which are either dated prior to the date the record closed in this appeal or were included
in the record below, and so none of the documents are new. Compliance Petition for
Review File, Tab 1 at 12-36, Tab 5 at 9-16; Stevenson v. Department of Veterans
3
Compliance Petition for Review (CPFR) File, Tab 1 at 7-10. As the
administrative judge correctly observed in the compliance initial decision, the
appellant applied for and was granted a FERS disability retirement annuity
commencing the day after his removal, and entitlement to a disability retirement
under FERS requires a finding by the Office of Personnel Management (OPM)
that the employee is “unable, because of disease or injury, to render useful and
efficient service” in his position. Stevenson v. Department of Veterans Affairs,
MSPB Docket No. DA-0714-19-0524-I-1, Initial Appeal File (IAF), Tab 17,
Initial Decision (ID) at 5; see 5 U.S.C. § 8451(a)(1)(B). The appellant failed to
provide any evidence demonstrating that, despite the fact that he was awarded a
FERS disability retirement as of the day after the canceled removal action, he was
ready, willing, and able to complete his job duties for any period after the date of
the reversed action, even though he was specifically afforded the opportunity to
offer such evidence. ID at 5; Stevenson v. Department of Veterans Affairs, MSPB
Docket No. DA-0714-19-0524-C-1, Compliance File (CF), Tab 9.
¶3 Regarding his specific argument that he could have performed the duties of
the position to which he was temporarily assigned, although the appellant was
assigned to temporary duties at the time of his removal, his position as a
Supervisory Police Officer remained his position of record and was the
position from which he was officially removed. CPFR File, Tab 1 at 13-14; IAF,
Tab 4 at 12-15, 55-57. The Board has held that an appellant is entitled to back
pay only if he is ready, willing, and able to work in the position he occupied prior
Affairs, MSPB Docket No. DA-0714-19-0524-C-1, Compliance File, Tab 3 at 20, 31-34,
Tab 7 at 4-5; see Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10
(2009) (noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time with a petition for review absent a showing that it is both
new and material); Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)
(explaining that evidence that is already a part of the record is not new). The appellant
also has not explained how the documents are relevant to his appeal, and so we need not
consider them. Nevertheless, to the extent these documents pertained to the appellant’s
argument that he was “ready, willing, and able” to serve in his position, we have
addressed them here.
4
to the wrongful agency action, and an appellant’s willingness to return to work
during the back pay period to a position other than the one he occupied prior to
his removal is not sufficient to establish his entitlement to back pay, absent a
finding of disability discrimination. Bullock v. Department of the Air Force,
80 M.S.P.R. 361, ¶ 13 (1998); Davis v. Department of the Navy, 50 M.S.P.R. 592,
598 (1991).
¶4 The appellant’s argument that he should be entitled to back pay for
the period between the effective date of his removal, September 11, 2019, and
the date of the Board’s final order canceling the removal decision,
February 16, 2023, is similarly unpersuasive. CPFR File, Tab 1 at 8-9, 11 . The
agency canceled the removal effective September 11, 2019, thereby retroactively
reinstating the appellant to his position. CF, Tab 3 at 12. Nevertheless, the
Board has held that the cancellation of an employee’s removal does not require
the agency to also reverse a separate intervening separation—in this case, the
appellant’s separation from the agency as a result of his approved FERS disability
retirement application. Washington v. Tennessee Valley Authority, 22 M.S.P.R.
377, 379-80 (finding that when an employee would have been properly subject to
separation by reduction in force (RIF) if he had not been previously removed for
cause, the agency had authority to retroactively separate the employee by RIF
after the Board ordered it to rescind the removal action), aff’d, 770 F.2d 180(Fed. Cir. 1985) (Table); see Abbott v. U.S. Postal Service, 2023 MSPB 14,
¶¶ 18-20 (concluding that the Board was without authority to grant the appellant
back pay for the period beyond her disability retirement date when she had not
challenged her retirement as a constructive removal and there was no finding of
discrimination in connection with the agency’s actions leading to her separation).
¶5 There is also no support for the appellant’s argument that the administrative
judge was biased against him, favored the agency, or had a conflict of interest.
CPFR File, Tab 1 at 4-6, Tab 5 at 4. The Board has consistently held that, in
making a claim of bias against an administrative judge, the appellant must
5
overcome the presumption of honesty and integrity that accompanies all
administrative adjudicators. Washington v. Department of the Interior ,
81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King, 1 M.S.P.R. 146, 151 (1979)). An
administrative judge’s conduct during the course of a Board proceeding warrants
a new adjudication only if the administrative judge’s comments or actions
indicate a deep-seated favoritism or antagonism that would render fair judgment
impossible. Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411, ¶ 5
(2010) (quoting Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002)). The appellant has not provided any evidence to support his bare
allegations of bias, and so his claims do not meet this rigorous standard. The
mere fact that an administrative judge ultimately ruled in favor of the agency does
not establish bias. Hayden v. U.S. Postal Service, 15 M.S.P.R. 296, 300 (1983),
aff’d, 758 F.2d 668 (Fed. Cir. 1984) (Table); Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980).
¶6 Similarly, regarding the appellant’s argument that the administrative judge’s
acceptance of a pleading the agency submitted after the deadline evidenced bias,
an administrative judge has wide discretion to control the proceedings before him
and the Board will not infer bias based on an administrative judge’s case-related
rulings. CPFR File, Tab 5 at 4; CF, Tab 5 at 2, Tab 7 at 4; see Vaughn v.
Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013) (stating that the
Board will not infer bias based on an administrative judge’s case-related rulings);
King v. Department of the Army, 84 M.S.P.R. 235, ¶ 6 (1999) (explaining that an
administrative judge’s case-related rulings, even if erroneous, are insufficient to
establish bias warranting recusal and that claims of perceived adjudicatory errors
do not provide a basis for recusal). Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision. 5
C.F.R. § 1201.113(b).
6
NOTICE OF APPEAL RIGHTS 3
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.
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:
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.
7
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,
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
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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
9
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.
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.
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.
10
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.