James Talton v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES R. TALTON, DOCKET NUMBER
Appellant, AT-0707-15-0094-J-1
v.
DEPARTMENT OF VETERANS DATE: February 10, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James R. Talton, Montgomery, Alabama, pro se.
Gia M. Chemsian, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the administrative judge’s
decision, which sustained his removal from the Senior Executive Service (SES) in
the Department of Veterans Affairs (DVA or agency). Generally, we grant
petitions such as this one only in the following circumstances: the decision 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge contains erroneous findings of material fact; the decision of
the administrative judge 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 his or her
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 DEEM the appellant’s petition to be timely filed, DENY the
petition, and AFFIRM the decision of the administrative judge.
BACKGROUND
¶2 Section 707 of the Veterans Access, Choice, and Accountability Act of
2014 (2014 Act), Pub. L. No. 113-146, 128 Stat. 1754, set forth new procedures
for the removal or transfer of DVA SES employees. Section 707, 128 Stat.
at 1798-1801. Under these new procedures, an SES employee could be removed
or, in some cases, transferred to the General Service, without regard to the
procedural rights provided to SES employees in 5 U.S.C. § 7543(b). 2014 Act
§ 707. The 2014 Act also provided that, if the SES employee challenged the
action before the Board, the administrative judge’s decision would be final and
not subject to any further right of appeal. Id.
¶3 On October 3, 2014, Deputy Secretary Sloan Gibson proposed the
appellant’s removal from his position as the Director of the Central Alabama
Veterans Healthcare System (CAVHCS), an SES position, pursuant to the
procedures set forth in section 707 of the 2014 Act. Initial Appeal File (IAF),
Tab 1 at 6-8. The proposal charged the appellant with two specifications of
3
neglect of duty and two specifications of failing to provide appropriate
information to his supervisor. Id. at 6-7. Specifically, in the first charge, neglect
of duty, the agency asserted that the appellant failed to exercise proper oversight
to ensure timely and appropriate action was taken against the following two
employees: (1) an employee who transported a veteran to a place known for
illegal use and distribution of drugs and who engaged in inappropriate financial
transactions with patients; and (2) another employee who was involved in an
accident while misusing a Government vehicle and misled police about the
circumstances of his accident. Id. at 6. In the second charge, the agency asserted
that the appellant failed to provide appropriate information to his supervisor
because (1) he did not notify his supervisor about the employee that had
transported the veteran to the place known for illegal drug use, and (2) on
August 20, 2014, he issued a brief stating that the allegation against the employee
was unsubstantiated, while previously reporting to agency investigators that he
believed that the case against the employee was “ironclad.” Id. at 6-7. After
considering the appellant’s written reply, the Deputy Secretary sustained the
charges and their underlying specifications and imposed the removal, effective
October 24, 2014. Id. at 9-11.
¶4 The appellant filed the instant appeal challenging his removal and did not
request a hearing. IAF, Tab 1. On November 19, 2014, the administrative judge
issued a decision sustaining the agency’s action. IAF, Tab 31, Administrative
Judge Decision (AJD). He sustained all of the charges and underlying
specifications and found that the appellant did not prove his affirmative defenses.
AJD at 10-26. The administrative judge also found, based upon the Board’s
limited ability to review the penalty determination, that the penalty was not
unreasonable. AJD at 26-32.
¶5 Five days later, on November 24, 2014, Ms. Sharon M. Helman also was
removed pursuant to the 2014 Act and, on December 22, 2014, an administrative
judge issued a decision sustaining her removal. Helman v. Department of
4
Veterans Affairs, MSPB Docket No. DE-0707-15-0091-J-1, Decision (Dec. 22,
2014). On January 22, 2015, Ms. Helman filed a motion for an extension of time
to file a petition for review, but the Clerk of the Board issued a letter on
January 26, 2015, informing her that she did not have the right to file her petition.
Helman v. Department of Veterans Affairs, MSPB Docket No. DE-0707-15-0091-
J-1, Initial Appeal File, Tabs 77-79.
¶6 Ms. Helman then filed a petition for review with the U.S. Court of Appeals
for the Federal Circuit, which was docketed on February 23, 2015. Helman v.
Department of Veterans Affairs, MSPB Docket No. DE-0707-15-0091-L-1,
Appeal File, Tab 1. On May 9, 2017, the Federal Circuit issued its decision in
Helman v. Department of Veterans Affairs, 856 F.3d 920 (Fed. Cir. 2017). The
court concluded that the provisions of the 2014 Act that prohibited further review
of the decisions of administrative judges violated the Appointments Clause by
improperly delegating the authority to issue a final decision to the administrative
judges, who, it was undisputed, were hired as employees rather than officers of
the United States. Id. at 929-30 (citing U.S. Const. art. 2, § 2, cl. 2). The court
stated that rendering such decisions was a significant duty that should only be
performed by a properly appointed officer of the United States. Id. Nevertheless,
the court found that the remaining provisions of the statute were severable from
the unconstitutional provisions, and thus, the court left these provisions
unchanged. Id. at 935-36. The court remanded the matter to the Board for review
of the administrative judge’s decision, consistent with the remaining provisions of
the 2014 Act. Id. at 938.
¶7 On June 8, 2017, 30 days after the Federal Circuit issued its decision in
Helman, the appellant filed a petition for review of the administrative judge’s
decision. Petition for Review (PFR) File, Tab 1. Subsequently, on June 23,
2017, the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (2017 Act), Pub. L. No. 115-41, 131 Stat. 862, was
enacted. Section 201 of the 2017 Act amended the 2014 Act and established a
5
new grievance procedure that removed the Board’s jurisdiction. Section 201,
131 Stat. at 868-69 (codified at 38 U.S.C. § 713). Under the new procedures, an
SES employee could instead obtain only limited judicial review of the agency’s
final decision. Id.¶8 On June 26, 2017, the appellant filed a motion to waive the time limit for
filing his petition. PFR File, Tab 3. The agency responded on July 7, 2017. PFR
File, Tab 4. The appellant replied on July 25, 2017. PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
We deem the appellant to have filed a timely petition for review.
¶9 Ordinarily, a petition for review may only be filed within 35 days after the
date of issuance of the administrative judge’s decision or, if the appellant shows
that the decision was received more than 5 days after the date of issuance, within
30 days after the date he received the decision. 5 C.F.R. § 1201.114(e).
However, considering the unique circumstances of this case, we grant the
appellant’s motion to waive the time limit and deem that he has filed a timely
petition for review.
¶10 According to the agency, we should not consider the appellant’s petition for
review because, unlike Ms. Helman, he failed to preserve his rights by filing an
additional pleading with the Board or appealing to the Federal Circuit. PFR File,
Tab 4 at 11-12. The agency also challenges the timeliness of the petition because
approximately 2 1/2 years passed between the administrative judge’s decision and
the filing date. Id. at 10-11. However, as the statute in effect when the decision
was issued did not provide for Board review or a court appeal, the appellant
would have had no reason to preserve his rights through either of these methods.
Therefore, we do not fault him in this respect. Further, although we agree that an
extended period has elapsed between the issuance of the decision and the
appellant’s petition, the appellant acted diligently by filing his petition within
30 days after the Federal Circuit issued Helman and indicated to him that he may
6
have the right to file a petition for review. Because the appellant would have had
no reason to know that he could file a petition and he acted diligently when he
was informed that he may have such a right, we deem his petition to have been
timely filed.
The provisions of the 2017 Act that remove Board jurisdiction are not retroactive.
¶11 The agency asserts that the Board no longer has the authority to review the
administrative judge’s decision because the 2017 Act removed that authority.
PFR File, Tab 4 at 12. Specifically, the agency argues that the Board should give
retroactive effect to the provisions of the 2017 Act that removed the Board’s
jurisdiction over appeals of adverse actions against DVA SES employees and
transferred jurisdiction to a new internal grievance process with appeal rights
directly to Federal court. Id. (citing 38 U.S.C. § 713). We disagree.
¶12 As the U.S. Supreme Court has stated, “[r]etroactivity is not favored in the
law” and, therefore, “congressional enactments and administrative rules will not
be construed to have retroactive effect unless their language requires this result.”
Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988); see
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994); see also Hicks v. Merit
Systems Protection Board, 819 F.3d 1318, 1321 (Fed. Cir. 2016). Accordingly, a
statute or administrative rule will not be construed as retroactive unless there is
clear evidence that Congress intended as such. Bowen, 488 U.S. at 208; see
Landgraf, 511 U.S. at 265; see also Hicks, 819 F.3d at 1321.
¶13 The Board will apply the analytical approach set forth in Landgraf in
determining whether a new statute or portion of a statute should be given
retroactive effect. King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 8
(2013) (citing Landgraf, 511 U.S. at 280). 2 Under Landgraf, when a case
2
The Federal Circuit adopted a three-part test to examine the issue of whether a change
in the law would have an impermissible effect if applied retroactively under Landgraf.
See Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1362-63 (Fed. Cir. 2005).
Under that test, the court will consider the following factors: (1) “the nature and extent
7
implicates a Federal statute enacted after the events at issue, we must first
determine whether Congress expressly prescribed in the statute that the provision
at issue should be applied retroactively. 511 U.S. at 280. If the statute expressly
states that the provision is retroactive, then our inquiry ends there. Id. If the
statute does not expressly state that the provision is retroactive, then we must
determine whether the statute’s retroactive application “would impair rights a
party possessed when he acted, increase a party’s liability for past conduct, or
impose new duties with respect to transactions already completed.” Id. If so, the
statute does not govern retroactively, absent clear congressional intent indicating
otherwise. Id.¶14 We find that Congress did not expressly prescribe that the provisions at
issue in the 2017 Act would be retroactive. See Sayers v. Department of Veterans
Affairs, 954 F.3d 1370, 1380 (Fed. Cir. 2020) (finding that the VA Accountability
Act “lacks an unambiguous directive or express command that the statute is to be
applied retroactively” (quotation marks and citations omitted)). Congress has the
ability to clearly express its intent for a statute to apply retroactively and has
done so concerning other statutes. See, e.g., 38 U.S.C. § 4324(c) (providing that
the Board’s jurisdiction to hear appeals under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) exists “without
regard to whether the complaint accrued before, on, or after October 13, 1994”);
Lapuh v. Merit Systems Protection Board, 284 F.3d 1277, 1281-82 (Fed. Cir.
2002) (observing that Congress expressly provided for the Board’s retroactive
jurisdiction over claims brought under USERRA, but did not do so for veterans’
preference claims under the Veterans Employment Opportunities Act of 1998
of the change of the law”; (2) “the degree of connection between the operation of the
new rule and a relevant past event”; and (3) “familiar considerations of fair notice,
reasonable reliance, and settled expectations.” Id. Because we find that the Landgraf
holding directly controls in this appeal, we do not apply the Princess Cruises test.
However, even if we did, we would still find that the relevant portion of the 2017 Act is
not retroactive. See King, 119 M.S.P.R. 663, ¶ 17 n.3.
8
(VEOA)). In this case, however, Congress has not specifically provided for an
effective date of the provisions at issue. Instead, only two provisions of the 2017
Act—those regarding recouping awards, bonuses, and relocation expenses—
specify an effective date, stating that they will apply to payments made on, or
after, the date of enactment. Sections 204(c), 205(c), 131 Stat. at 875-77; Sayers,
954 F.3d at 1380.
¶15 When Congress has provided for a specific effective date for some
provisions of a statute and not for others, it is assumed that it intended the statute
to apply only to actions that occurred after the date of enactment. See Lindh v.
Murphy, 521 U.S. 320, 327-30 (1997) (holding that, if legislation includes a
provision that expressly applies to cases pending on the date of enactment and
another provision that does not, the statute “indicat[es] implicitly” that the latter
applies only to cases filed after the date of enactment); Ad Hoc Shrimp Trade
Action Committee v. United States, 802 F.3d 1339, 1349-51 (Fed. Cir. 2015)
(holding that section 502 of the Trade Preferences Extension Act of 2015, Pub. L.
No. 114-27, 129 Stat. 362, 383-84, did not apply retroactively when Congress
expressly provided that other provisions of the Act had retroactive effect). Thus,
because Congress has provided for a specific effective date for two provisions but
has not otherwise specified an effective date, the 2017 Act does not expressly
provide that the provisions at issue are retroactive.
¶16 Having determined that the 2017 Act does not expressly state that it is
retroactive, we must apply the second part of the Landgraf test to determine
retroactivity. See Sayers, 954 F.3d at 1380-82 (applying Landgraf to examine
whether section 202 of the VA Accountability Act had an impermissible
retroactive effect because Congress did not express any intent as to whether the
Act applied to pre-enactment conduct); Wilson v. Department of Veterans Affairs,
9
2022 MSPB 7, ¶ 27. 3 We find that applying the 2017 Act would impair the
review rights that the appellant was afforded after the Federal Circuit’s decision
in Helman and thus it cannot be applied retroactively. The court found that the
portions of the 2014 Act that provided for the finality of the administrative
judge’s decision were unconstitutional. Helman, 856 F.3d at 929-30. At that
time, the appellant’s right to Board review of that decision was restored. He then
filed a petition for review on June 8, 2017. PFR File, Tab 1. After the appellant
filed his petition, the 2017 Act revised 38 U.S.C. § 713 to provide that removal
decisions of SES employees are only reviewable through an internal grievance
process and then through a Federal court appeal, thus excluding Board
jurisdiction. 4 2017 Act § 201. Accordingly, if we were to apply that provision
retroactively, it would improperly revoke the appellant’s previously granted right
to seek Board review of the agency’s action. See Upshaw v. Consumer Product
Safety Commission, 111 M.S.P.R. 236, ¶ 10 (2009) (finding that new suitability
regulations issued by the Office of Personnel Management could not be applied
retroactively to exclude Board jurisdiction), modified on other grounds by Scott v.
3
In Sayers, the agency removed the appellant pursuant to section 202 of the VA
Accountability Act, codified as amended at 38 U.S.C. § 714. Sayers, 954 F.3d at 1372.
Section 202 authorizes the agency to “remove, demote, or suspend a covered
individual” for inadequate performance or misconduct using an expedited process.
131 Stat. at 869-72; Wilson, 2022 MSPB 7, ¶¶ 11, 28. Our reviewing court held that
section 202 had an impermissible retroactive effect because its lowered substantial
evidence standard of proof and elimination of the Board’s authority to mitigate the
penalty detrimentally affected the appellant’s property right to continued employment
and “substantive rights to relief from improper removal.” Sayers, 954 F.3d at 1372 n.1,
1374, 1380‑81; Wilson, 2022 MSPB 7, ¶¶ 27-28. In so finding, the court did not
address whether section 201 had an impermissible retroactive effect, and thus, we
consider it here.
4
It is also unclear what new duties the 2017 Act would require of the appellant or the
agency if he would have pursued his challenge to his removal. Under the new statute,
the appellant would have been entitled to file a grievance and then seek court review,
yet he has already filed a Board appeal. 38 U.S.C. § 713(a)(2)(C); IAF, Tab 1. The
agency has not explained how it would have adjudicated this appeal, considering the
grievance rights provided for in the 2017 Act. Considering this confusion, it is also
unclear whether applying the new statute would increase the agency’s liability.
10
Office of Personnel Management, 116 M.S.P.R. 356 (2011). Thus, we conclude
that the portion of the 2017 Act that provides for a new grievance process and
direct court review is not retroactive. 5 See Lapuh, 284 F.3d at 1280-82 (finding
that 5 U.S.C. § 3330a(d)(1) did not retroactively provide for the Board’s
jurisdiction over allegations of a denial of veterans’ preference that arose prior to
the VEOA’s enactment).
The appellant has provided no basis for granting his petition for review, and thus
we sustain the removal and affirm the administrative judge’s decision. 6
The administrative judge properly sustained the charges.
¶17 The appellant challenges the administrative judge’s decision to sustain
charge 1, specification 1, neglect of duty, stating that he lawfully decided there
was insufficient circumstantial evidence to prove the allegations against the
employee who drove the veteran to a place of illegal drug use. PFR File, Tab 1,
at 1-2. He states that the agency never provided him with training or specific
criteria for taking disciplinary decisions and that his decision was based upon a
judgment call. Id. at 2-3. He also argues that the determination by the agency’s
detective and hospital police—that the employee’s actions did not justify criminal
charges—supported his decision not to impose discipline. Id. at 2.
¶18 Applying the factors set forth in Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 87 (1981), for assessing hearsay evidence, the administrative
5
Nothing in the 2017 Act or elsewhere suggests that it constituted a clarification of an
existing law. Cf. Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26
(2013).
6
The appellant has attached new information in the form of an article about a June 19,
2015 meeting about CAVHCS. PFR File, Tab 1 at 18-19. The Board generally will not
consider evidence submitted for the first time on review absent a showing that the
documents and the information contained in the documents were unavailable before the
record closed below despite due diligence and the evidence contained therein is of
sufficient weight to warrant an outcome different from the administrative judge’s
decision. See Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d,
839 F.3d 1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115(d). While this article is new, it is
not relevant to our determining whether to sustain the appellant’s removal. Thus, we
have not considered it.
11
judge found that the appellant either was aware of the full details of the
investigation and failed to take appropriate action or, under the circumstances,
should have known that these instances warranted his immediate and continued
attention. AJD at 15. He considered that the appellant was a high-level
employee, as he was a member of the SES and the Director of CAVHCS, and
determined that a person of ordinary prudence in the same situation and with
equal experience to that of the appellant would have timely and appropriately
taken administrative action against the employee. Id. (citing Thomas v.
Department of Transportation, 110 M.S.P.R. 176, ¶ 9 (2008)). He concluded that
the agency proved the appellant failed to exercise proper oversight to ensure that
the appropriate action was timely taken against the employee. AJD at 15-16.
¶19 The appellant’s reliance on the absence of criminal prosecution to justify
his decision is misplaced because, although the Office of Inspector General and
the police did not recommend criminal prosecution, they did recommend
administrative action. IAF, Tab 26 at 5-6. His assertions that he made a
judgment call, lacked training to make the proper decision, or otherwise found
that discipline was not warranted because the matter was not being criminally
investigated, do not provide a reason for disturbing the administrative judge’s
findings that the appellant did not exercise proper oversight in this case. 7 PFR
File, Tab 1 at 1-3; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility).
¶20 The appellant claims that we should not sustain charge 2 because
specification 2 of the charge is unsupported. PFR File, Tab 1 at 3-4. He
challenges the administrative judge’s decision to sustain specification 2, which
7
The appellant challenges the administrative judge’s finding sustaining specification 2
of charge 1 but has not provided a basis for disturbing this finding. PFR File, Tab 1
at 4. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997).
12
alleges that he failed to provide appropriate information to his supervisor when he
initially stated that the charge against an employee was “ironclad,” and then later
stated that the charge against the employee was unsubstantiated. Id. at 3. He
argues that the report from the Administrative Investigation Board (AIB), which
was used to support his removal, misconstrued his testimony as he did not
actually include the “crack house” allegation in describing the employee’s
misconduct. Id. at 3, 12; IAF, Tab 6 at 10, 24, Tab 14 at 111-12, 138. He also
disputes the administrative judge’s finding as to when the employee was
reassigned to a position in which he was not responsible for patient care. PFR
File, Tab 1 at 4; AJD at 20 n. 13. We fail to see how these arguments provide any
basis for disturbing the charge. See Broughton v. Department of Health and
Human Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the
administrative judge’s findings when he considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions). Additionally, proof of
one or more, but not all, of the supporting specifications is sufficient to sustain
the charge. Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 17 (2012). Thus,
even if we only sustained specification 1, we would still sustain the charge.
Harmful Procedural Error
¶21 The appellant argues that the agency committed harmful procedural error
because the AIB was of poor quality. PFR File, Tab 1 at 4-6. He also claims
harmful error in that lack of agency resources, such as proper budget, staffing of
leadership positions, and proper coaching, prevented him from accomplishing his
duties. Id. at 8-10. Additionally, he asserts that the agency violated the fifth
Merit Principle regarding using the workforce efficiently and effectively by not
providing him the proper training and resources to accomplish his job while
providing additional staffing and funding after he left. Id. at 6-8. Further, he
challenges the short time period between the proposal and the decision to remove
him because he was unable to obtain records related to the lack of recruitment and
hiring of senior leaders, which would demonstrate that the actions at issue were
13
not his fault, and because he could not retain an attorney in such a short amount
of time. Id. at 9-10.
¶22 The Board will not sustain an agency’s action if the appellant shows
harmful error in the agency’s application of its procedures in arriving at its
decision. 5 U.S.C. § 7701(c)(2)(a); Lentz v. Merit Systems Protection Board,
876 F.3d 1380, 1385 (Fed. Cir. 2017); Forte v. Department of the Navy,
123 M.S.P.R. 124, ¶ 9 (2016); 5 C.F.R. § 1201.56(c)(1). The appellant may
establish harmful error by proving, by preponderant evidence, that the agency
committed an error in applying its procedures “that is likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error.” 5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C), (c)(1);
see Lentz, 876 F.3d at 1385; Forte, 123 M.S.P.R. 124, ¶ 9. Even assuming that
the appellant has pointed to an error by the agency, he has not described how any
such error could have altered the agency’s decision to remove him.
¶23 The appellant further asserts that the agency cannot charge him with neglect
of duty because it was not determined that his decision regarding whether to
impose discipline was inappropriate and, if this matter had been considered as a
performance-based action, the agency did not demonstrate properly that his
performance was deficient. PFR File, Tab 1 at 14-15. The 2014 Act provides
that the Secretary may remove or demote an employee for both performance and
misconduct. Section 707(a) (codified at 38 U.S.C. § 713(a)(2014)). Thus, to the
extent that the appellant is asserting that he was entitled to the procedures set
forth in chapter 43 of title 5, we disagree. 8 Further, although the appellant argues
that the agency never determined that his decision was inappropriate, as
previously discussed, we find that the agency proved that he should have known
that the events warranted immediate and continued attention and, therefore, his
8
Even if the agency had removed the appellant pursuant to title 5, an agency may rely
on either chapter 75 or chapter 43 or both to take a performance-based action.
Lovshin v. Department of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985).
14
failure to impose discipline was indeed inappropriate. Accordingly, we find that
the appellant has not proven harmful procedural error.
Due Process
¶24 The appellant next argues that the agency violated his right to due process
when the deciding official made a decision regarding his case before considering
his response. PFR File, Tab 1 at 12-13. Prior notice and an opportunity to
respond to an appealable agency action are fundamental due process requirements
for a tenured public employee. See Cleveland Board of Education v. Loudermill,
470 U.S. 532, 546 (1985). It is not a violation of the appellant’s due process
rights when the role of the proposing and deciding official is performed by the
same person because “[the] law does not presume that a supervisor who proposes
to remove an employee is incapable of changing his or her mind upon hearing the
employee’s side of the case.” DeSarno v. Department of Commerce,
761 F.2d 657, 660 (Fed. Cir. 1985); see Martinez v. Department of Veterans
Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). Additionally, a deciding official’s
familiarity with the facts of a case and even an expressed predisposition contrary
to the appellant’s interests do not constitute a due process violation or harmful
error. Martinez, 119 M.S.P.R. 37, ¶ 11.
¶25 Here, the Deputy Secretary proposed the appellant’s removal and provided
him the opportunity to respond to the proposal. IAF, Tab 1 at 6-8. The appellant
provided a written response, which the Deputy Secretary considered prior to
imposing the removal. Id. at 9-11. The appellant’s bare assertions challenging
the Deputy Secretary’s impartiality do not support a finding that the agency
violated his right to due process. See Holton v. Department of the Navy,
123 M.S.P.R. 688, ¶ 31 (2016) (finding that the appellant’s argument that it was
unfair to use the individual who had granted permission to drug test him as the
deciding official did not support a finding of a due process violation as the
appellant did not substantiate his claim that the official was unwilling to change
his mind or fully consider the evidence).
15
Penalty Determination
¶26 The appellant requests that we not sustain the removal. 9 PFR File, Tab 1
at 15-16. He points to his accomplishments, including achieving the hospital’s
first official passing performance rating in many years, reducing the time to
complete Compensation and Pension examinations from 73 days to 26 days when
the requirement is 30 days, achieving performance in the top 10% of agency
hospitals, and establishing a collaboration with the Department of Defense. Id.Further, he identifies a previously life-threatening illness that affected his
performance. Id. at 10.
¶27 The Board generally analyzes the agency’s penalty selection under the
statutory “efficiency of the service” standard with the agency bearing the burden
to prove the reasonableness of its penalty selection. 5 U.S.C. §§ 7513(a),
7701(b)(3), (c)(1)(B); Douglas v. Veterans Administration, 5 M.S.P.R. 280,
307-08 (1981); 5 C.F.R. § 1201.56(b)(1)(ii). However, in this matter, we apply
the standard for penalty analysis set forth in the 2014 Act as this standard was left
undisturbed by Helman, 856 F.3d at 936. Our regulations provide that, under the
2014 Act, proof of misconduct or poor performance creates a presumption that the
Secretary’s decision to remove or transfer the employee was warranted. 5 C.F.R.
§ 1210.18(a), (d). The appellant may rebut this presumption only by establishing
that the penalty was unreasonable under the circumstances of the case, in which
case the action will be reversed. 5 C.F.R. § 1210.18(d).
¶28 The administrative judge found that the appellant’s failure to monitor the
cases of the two employees and ensure that appropriate action was taken
constituted a dereliction of duty and damaged the very core of the agency’s
mission to take care of our nation’s veterans, which included ensuring their
9
The appellant asserts that, at most, charge 1, specification 2, should be sustained and
that this specification alone does not warrant removal. PFR File, Tab 1 at 4. However,
because we have sustained all of the charges and specifications, his argument is not
persuasive.
16
safety. AJD at 30. He considered that there may have been failures throughout
the process after the investigations, highlighting the difficulty of the appellant’s
position, but he found that, as an SES employee, the appellant should have taken
a leadership role in ensuring that the situation was handled properly. Id. The
administrative judge also stated that the appellant failed to exercise the
responsibility and trust placed in him as a Medical Director and as a member of
the SES and that his position as an SES employee rendered his misconduct even
more serious. AJD at 30-31. Further, the administrative judge noted that the
appellant’s failure to notify his leadership about the situations only worsened the
problem. AJD at 31. He also found that the appellant’s proffered comparator was
not similarly situated and that, if he were, the agency’s failure to discipline that
employee would not render the penalty unreasonable. AJD at 31-32.
¶29 On the basis of the above, the administrative judge concluded that the
Deputy Secretary convincingly explained why he determined that removal was the
most appropriate penalty. AJD at 32. The appellant’s arguments regarding the
lack of severity of the proven charges, his accomplishments, and his illness do not
provide a reason for disturbing the administrative judge’s conclusion that he
failed to establish that the penalty was unreasonable. 10
10
The appellant otherwise challenges the administrative judge’s decision on the basis of
the following: the administrative judge misjudged his testimony and should not have
relied on the AIB’s decision; the administrative judge cited untrue and unsworn
statements by quoting him as mentioning that the employee took the veteran to a “crack
house” when he did not mention either this or that the employee never took the veteran
back to the facility; the administrative judge should not have credited the testimony of
the Network Director and the Deputy Secretary that he had the ability to change
conditions within the facility; and he disagrees with the Network Director’s statement
that he failed to properly prepare facility budgets. PFR File, Tab 1 at 10-14. These
arguments constitute mere disagreement with the administrative judge’s decision and do
not provide a reason for disturbing it. See Broughton, 33 M.S.P.R. at 359.
17
NOTICE OF APPEAL RIGHTS 11
The decision of the administrative judge, as supplemented by this Final
Order, constitutes the Board’s final decision in this matter. 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).
11
Since the issuance of the administrative judge’s 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.
18
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. ____ , 137 S. Ct. 1975 (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
19
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
(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
20
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. 12 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
12
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.
21
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.