Leonard Cooperman v. Leonard Cooperman

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOCIAL SECURITY DOCKET NUMBER
ADMINISTRATION, CB-7521-16-0001-T-1
Petitioner,
v.
DATE: May 27, 2022
LEONARD COOPERMAN,
Respondent.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leonard Cooperman, Feeding Hills, Massachusetts, pro se.
Sharese M. Reyes, Esquire, Atlanta, Georgia, for the petitioner.
Kathryn A. Miller, Esquire, and Meeka S. Drayton, Esquire, Seattle,
Washington, for the petitioner.
Patrick W. Carlson, Chicago, Illinois, for the petitioner.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The respondent has filed a petition for review, and the Social Security
Administration (SSA) has filed a cross petition for review of the initial decision,
which sustained charges of neglect of duties and conduct unbecoming, concluded
that the respondent did not make whistleblowing disclosures, found good cause
under 5 U.S.C. § 7521 to suspend the respondent for 180 days, and denied SSA’s
request to suspend the respondent from the date of the compla int through the
Board’s final decision in this matter. This case was assigned to an administrative
law judge (ALJ) for adjudication. 5 C.F.R. § 1201.140(a)(1). We DENY the
respondent’s petition for review and GRANT SSA’s cross petition for review.
We MODIFY the initial decision to additionally sustain specification 15 of the
conduct unbecoming charge, but we agree with the ALJ that SSA proved the
neglect of duties and conduct unbecoming charges as set forth herein. We
FURTHER MODIFY the initial decision to find that the respondent’s
November 15, 2012 correspondence to the Office of Inspector General (OIG)
constituted activity protected by 5 U.S.C. § 2302(b)(9)(C) but that he did not
prove the correspondence was a contributing factor in SSA’s decision to file the
complaint against him. We FIND that SSA has shown good cause to remove the
respondent. We DENY SSA’s request to suspend the respondent from the date
the complaint was filed through the issuance date of this Order.
BACKGROUND
¶2 The following facts, as recited in the initial decision, are generally
undisputed. Initial Appeal File (IAF), Tab 149, Initial Decision (ID). The
respondent has held the position of an SSA ALJ since June 2005. ID at 7; IAF,
Tab 96 at 20. On October 2, 2015, SSA filed a complaint that sought to remove
the respondent based on charges of neglect of duties (8 specifications) and
conduct unbecoming (16 specifications) and to suspend the respondent from the
date of the complaint through the date of the Board’s final decision in this matter.
3
ID at 1, 54-55; IAF, Tab 1. The respondent raised a claim of reprisal for
whistleblowing disclosures. ID at 2; IAF, Tab 84 at 5, 14-18. A multiple-day
hearing was held. ID at 3; Hearing Transcripts (HTs) 1-7. The ALJ issued a
150-page initial decision, which included 338 findings of fact. ID at 7-57. The
ALJ sustained both charges, including 6 of 8 specifications of the neglect of
duties charge and 12 of 16 specifications of the conduct unbecoming charge.
ID at 58-115. The ALJ found that the respondent did not make any
whistleblowing disclosures. ID at 120-29. The ALJ also determined that there
was good cause to suspend the respondent for 180 days, but he denied SSA’s
request to suspend the respondent from the date of the complaint through the date
of the Board’s final decision in this matter. ID at 130-44.
¶3 The respondent has filed a petition for review, SSA has filed a response,
and the respondent has filed a reply. Petition for Review (PFR) File, Tabs 1,
20-21. On petition for review, the respondent challenges the ALJ’s decision to
sustain specifications 1-6 of the neglect of duties charge and to sustain
specifications 1, 3-12, and 14 of the conduct unbecoming charge. PFR File,
Tab 1.
¶4 SSA has filed a cross petition for review, and the respondent has filed a
response. PFR File, Tabs 5, 15. In its cross petition for review, SSA argues it
proved specifications 7 and 8 of the neglect of duties charge; it proved
specifications 2, 13, and 15 of the conduct unbecoming charge ; and removal is the
appropriate penalty. PFR File, Tab 5. SSA also reiterates its request to suspend
the respondent from the date the complaint was filed through the Board’s final
decision in this matter. Id. at 29-32.
¶5 The respondent also has filed a motion for oral argument , and SSA has filed
a response. PFR File, Tabs 2, 9. The regulation at 5 C.F.R. § 1201.117(a)(2)
states that the Board “may” hear oral arguments in any case. We find that oral
argument will not assist the Board significantly in deciding the petition for
4
review and cross petition for review, and we deny the respondent’s request.
Special Counsel v. Environmental Protection Agency, 70 M.S.P.R. 41, 49 (1996).
¶6 Additionally, the respondent has filed several motions for leave to file an
additional pleading. PFR File, Tabs 11, 18, 22, 24, 26, 29, 31. The Board’s
regulations do not provide for pleadings other than a petition for review, a cross
petition for review, a response to a petition for review, a response to a cross
petition for review, and a reply to a response to a petition for review. 5 C.F.R.
§ 1201.114(a)(5). Once the record closes on review, the Board will not accept
any additional evidence or argument unless it is new and material. 5 C.F.R.
§ 1201.114(k). The respondent has made no such showing in his submissions.
We therefore deny his motions.
¶7 The Association of Administrative Law Judges also has filed two separate
requests to file an amicus curiae brief. PFR File, Tabs 34, 37. We deny these
requests because an amicus curiae brief will not contribute materially to the
disposition of this matter. 5 C.F.R. § 1201.34(e). Additionally, the respondent
has filed a motion to supplement the record. PFR File, Tab 43. He has not
persuaded us that the proffered evidence, even if new, is material. 5 C.F.R.
§ 1201.114(k). We therefore deny this request.
DISCUSSION OF ARGUMENTS ON REVIEW
Standard of Review
¶8 The Board has original jurisdiction to adjudicate actions against ALJs.
Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 12 (2010), aff’d,
635 F.3d 526 (Fed. Cir. 2011). An agency may take an action against an ALJ
only for “good cause,” as determined after a hearing by the Board. 5 U.S.C.
§ 7521(a). SSA must prove good cause by preponderant evidence. Long,
113 M.S.P.R. 190, ¶ 12. Congress has not defined the term “good cause” for
purposes of section 7521. Id. The Board, however, has adopted a flexible
approach in which good cause is defined according to the individual
5
circumstances of each case. Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 5
(2013), aff’d sub nom., Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir.
2014).
SSA proved the neglect of duties charge.
¶9 In specifications 1 and 2 of the neglect of duties charge, SSA alleged that
the respondent had a duty to comply with agency regulations and policy when
issuing decisions for a closed period of disability 2 (CPOD) and he breached that
duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. In the initial decision, the
ALJ found that SSA proved these specifications because the respondent did not
explain his findings of medical improvement or support his findings with medical
evidence. ID at 60-78.
¶10 On review, the respondent asserts that, contrary to the initial decision, he
was authorized to decide a CPOD based only on a claimant’s statement regarding
his/her symptoms. PFR File, Tab 1 at 8-17. He asserts that this contention was
supported by the regulation that defines “medical improvement” as “‘any
decrease in the medical severity of [a] claimant’s impairments[]’” and provides
that “‘[a] determination that there has been a [medical improvement] must be
based on changes (improvement) in the symptoms, signs and/or laboratory
findings associated with [the] impairment(s).’” Id. at 9; 20 C.F.R.
§ 404.1594(b)(1) (emphasis in original). He further asserts that the ALJ’s
decision contradicted the relevant regulation and case law from the appellate
courts and ignored SSA’s Program Operations Manual System. PFR File, Tab 1
at 9-17.
¶11 Although the regulation uses the disjunctive “and/or,” the ALJ concluded—
and the record reflects—that SSA’s policy required more evidence than a
2
A closed period of disability occurs when a claimant, who was found to be disabled and entitled
to disability benefits, subsequently experiences medical improvement related to the ability to
work such that the claimant can engage in substantial gainful activity, the claimant is deemed to
be no longer disabled, and disability benefits cease. ID at 60; see 42 U.S.C. § 423(f)(1).
6
claimant’s subjective statements to find medical improvement for a CPOD.
ID at 13, 63; HT 1 at 219-22, 243 (testimony of the Hearing Office Chief ALJ
(CALJ), who was also the respondent’s first-line supervisor); HT 2 at 220-22,
227-28 (testimony of the Regional CALJ, who was also the respondent’s
second-line supervisor); HT 5 at 95-96 (testimony of the Associate CALJ),
287-88 (testimony of the CALJ); IAF, Tab 94 at 14-15 (explaining in HALLEX
I-2-8-25 3 that any “decision will provide the rationale for the ALJ’s findings of
fact and conclusions of law by including . . . [a]n explanation of the finding(s) on
each issue that leads to the ultimate conclusion, including citing and discussing
supporting evidence” and a “discussion of the weight assigned to various pieces
of evidence . . .”).
¶12 Moreover, the record reflects that the respondent was advised by multiple
agency officials of SSA’s policy regarding the analysis required for CPOD
decisions. For instance, in a September 7, 2010 email, the respondent’s first-line
supervisor advised him “to fully rationalize any cessation, no matter what the
claimant agrees to do.” IAF, Tab 102 at 74 (emphasis in original). In a
June 2011 retraining with a senior ALJ, he was provided the following guidance:
“[A]ny [residual functional capacity (RFC) assessment], regardless of the
[claimant’s] agreement as to medical improvement[,] must be married to
corresponding medical evidence.” 4 IAF, Tab 93 at 5-6 (emphasis in original).
The senior ALJ explained that a decision “should include a discussion of medical
improvement showing how the signs, symptoms and objective testing show
[i]mprovement under the medical improvement standard at the time the period
3
The ALJ found in the initial decision that HALLEX, the Hearing Appeals and Litigation Law
Manual, was designed to amplify and provide more specificity regarding regulations and rulings,
it constituted written agency policy, and it was binding on ALJs. ID at 10.
4
An individual’s RFC is “the most [s/he] can still do despite [his/her] limitations” and
will be assessed “based on all the relevant evidence in [the individual’s] case record.”
20 C.F.R. § 416.945(a)(1).
7
closes.” Id. (emphasis in original). In an August 3, 2011 meeting, the respondent
stated to an Associate CALJ that he did not “see a need to corroborate” a “lucid”
claimant’s statement that s/he wants a CPOD, and he was advised that there still
needed to be a second RFC assessment. IAF, Tab 105 at 48.
¶13 Most significantly, in a December 5, 2011 directive, the respondent’s
first-line supervisor noted that the respondent’s decisions “contain analytical
deficiencies including a lack of analysis to support a non-disability RFC and a
lack of analysis to support a finding of medical improvement beyond the
claimant’s agreement to a closed period. . . .” IAF, Tab 93 at 21-22. The
respondent was explicitly directed to determine whether there had been medical
improvement by comparing prior and current medical evidence and by illustrating
any improvement in the signs, symptoms, or laboratory findings. Id. at 22. The
respondent’s first-line supervisor subsequently advised him that he should “pick
and cho[o]se some items from the record, aside from the claimant’s statement” to
document medical improvement. IAF, Tab 108 at 5; see HT 1 at 241‑42, HT 2
at 60 (testimony of the first-line supervisor). Because the respondent was on
notice that, during the relevant time period, SSA policy required more than a
claimant’s statement alone to support a finding of medical improvement, and the
respondent did not comply with SSA policy, we agree with the ALJ that SSA
proved these specifications.
¶14 We have considered the respondent’s reliance on the U.S. Court of Appeals
for the Tenth Circuit’s decision in Newbold v. Colvin, 718 F.3d 1257, 1263-64
(10th Cir. 2013), which stated that a finding of medical improvement may be
based on symptoms alone. PFR File, Tab 15 at 10-13. The respondent’s citation
to Newbold does not warrant a different outcome because the court’s decision
is not binding on the Board or SSA. Importantly, as pertaining to the merits of
the charge, decisions of the U.S. Court of Appeals for the Federal Circuit are
controlling authority for the Board, whereas other circuit courts ’ decisions are
8
persuasive, but not controlling, authority. Fairall v. Veterans Administration,
33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Additionally, the ALJ
made findings of fact that SSA ALJs have a duty to comply with the Social
Security Act, regulations, rulings, agency policies, HALLEX, and Acquiescence
Rulings. 5 ID at 10-11. There is no evidence that SSA issued an Acquiescence
Ruling after Newbold, and thus, SSA and its ALJs did not have to follow the
court’s decision.
¶15 Finally, we have considered the respondent’s contention that Program
Operations Manual System provision 28010.015(A)(2) controls this issue because
it advises adjudicators that improvement in symptoms alone, without associated
changes in signs or laboratory findings, “may support” a medical improvement
determination. PFR File, Tab 1 at 15-17. This argument is unavailing. Notably,
the ALJ relied on the testimony of various SSA officials and found that the
Operations Manual is not a prime source of policy at the Office of Disability
Adjudication Review (ODAR) because it sets forth internal policies for
proceedings at the district office level, not for hearing operations. ID at 10-11.
The respondent’s reference to Draper v. Colvin, 779 F.3d 556 (8th Cir. 2015)—
which affirmed a district court decision that deferred to an Operations Manual
provision regarding liens, adjustments and recoveries, and transfers of assets—
does not warrant a different outcome because SSA did not issue an Acquiescence
Ruling as to that matter. PFR File, Tab 1 at 16-17.
¶16 In his reply brief, the respondent contends that he complied with the
position description that was in place until December 2013, which authorized him
to “take[] into account all applicable Federal, State, and foreign law [s], statutes,
5
An Acquiescence Ruling is issued when a circuit court has issued a decision contrary
to SSA policy but SSA agrees to acquiesce to the circuit law. HT 1 at 202 (testimony
of the first-line supervisor); HT 3 at 78 (testimony of the second-line supervisor); HT 4
at 225-29 (testimony of the CALJ); HT 5 at 65-66 (testimony of the Associate CALJ);
IAF, Tab 93 at 12-13; 20 C.F.R. § 404.985.
9
regulations, rulings, and decisions of the Federal court.” 6 PFR File, Tab 21
at 14-15 (emphasis in original); IAF, Tab 93 at 62-67. The respondent argues
that, until this date, he could “expressly . . . take Federal court decisions from
whatever jurisdiction into account, and after that date[,] [he] was not prohibited
from doing so as long as the Federal Court decision did not conflict with [SSA]
policy.” PFR File, Tab 21 at 15. This argument is unavailing. Indeed, in the
absence of any evidence that SSA issued an Acquiescence Ruling regarding
Newbold, Draper, or any circuit court decision that was inconsistent with SSA
policy, such decisions could not constitute “applicable” decisions, as described in
the earlier position description.
¶17 In specifications 3 and 4, SSA alleged that the respondent had a duty to
“make a complete record of hearings proceedings,” and he breached this duty in
fiscal years 2013 and 2014. IAF, Tab 1 at 11. In the initial decision, the ALJ
relied on the relevant regulations, HALLEX I-2-6-40, a June 2011 retraining, an
August 3, 2011 meeting with the respondent, a September 1, 2011 memorandum
to all ALJs from the CALJ, a December 5, 2011 directive, and testimony
regarding hearing records from five of the respondent’s cases; the ALJ concluded
that SSA proved that the respondent had a duty to make a complete record, which
included a summary of the content and conclusion of any off-the-record
discussions, and the respondent failed to do so. ID at 14-15, 78-83; IAF, Tab 93
at 7, 21-23, Tab 94 at 10-11. On review, the respondent challenges, among other
things, the ALJ’s reliance on testimony regarding a “focused review” of only five
of his hundreds of cases and the December 5, 2011 directive. PFR File, Tab 1
at 18-19. He further asserts that neither the ALJ nor SSA adequately defined the
requirement that he “adequately summarize” any off-the-record discussions, and
thus, SSA’s action violates his due process rights. Id. We disagree. Rather,
6
The revised position description did not include such language. IAF, Tab 1 at 15-21;
HT 4 at 213 (testimony of the CALJ); ID at 9 n.6.
10
consistent with HALLEX I-2-6-40, 7 the December 5, 2011 directive instructed the
respondent to “summarize on the record, all off-the-record discussions concerning
amending claims involving CPODs, as well as any other discussions relevant to
the issues in a claimant’s case.” IAF, Tab 93 at 23. The respondent, who has
advanced degrees and was an ALJ for nearly 10 years, ID at 7; HT 6 at 202
(testimony of the respondent), should have no difficulty understanding SSA’s
requirement that he summarize such off-the-record discussions. Moreover, we
are not persuaded that SSA’s review of a small portion of the respondent’s cases
warrants a different outcome. We therefore discern no error with the ALJ’s
conclusion that SSA proved specifications 3-4.
¶18 In specifications 5 and 6 of the neglect of duties charge, SSA alleged that
the respondent had a duty to safeguard personally identifiable information (PII),
and he breached this duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. On
review, the respondent contends that, either in late 2014 or early 2015, his
first-line supervisor directed him to stop sending PII to unsecured partners, and
he complied with that request. PFR File, Tab 1 at 20; HT 6 at 261-62 (testimony
of the respondent). As support for his contention that he should not be
disciplined for this misconduct, the respondent discusses Adamek v. U.S. Postal
Service, 13 M.S.P.R. 224, 226 (1982), in which the Board barred an agency from
taking an adverse action against an employee when it already had imposed a
disciplinary action because of the employee’s misconduct. PFR File, Tab 1 at 21.
The respondent recognizes that his first-line supervisor’s counseling regarding PII
did not constitute a disciplinary or an adverse action, but he argues that the
Board’s reasoning in Adamek should be extended to cases in which the underlying
behavior “has been previously and amicably addressed, discussed, and resolved”
7
HALLEX I-2-6-40 states, “If a question arises during the course of a hearing that
is not relevant to the issues in the claimant’s case, the ALJ may decide to discuss and
resolve it off-the-record. However, the ALJ must summarize on the record the content
and conclusion of any off-the-record discussion.” IAF, Tab 94 at 10-11.
11
between the agency and employee, and the behavior was not repeated. Id.(emphasis in original). We are not persuaded that it is appropriate to extend
Adamek’s reasoning to a case such as this when there was no prior adverse action.
See, e.g., Tawadrous v. Department of the Treasury, 477 F. App’x 735, 738 (Fed.
Cir. 2012) (declining to extend Adamek to a situation when the agency rescinded
the June 2010 removal before there was a judgment on the merits and provided
the appellant with back pay and finding that the prior rescinded action “presents
no obstacle to Treasury’s November 2010 effort to remove [him] on the same
charges”). 8 Because the respondent does not dispute that he failed to safeguard
PII as described during the timeframe identified in the complaint, we affirm the
ALJ’s decision to sustain specifications 5-6 of the neglect of duties charge. ID
at 100-02.
¶19 In specifications 7 and 8 of the neglect of duties charge, SSA alleged that
the respondent had a “duty to act in a fair and impartial manner” and that he
breached this duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. SSA relied
on several emails between the respondent and various claimants’ representatives
to support these specifications. IAF, Tab 111 at 29, 68-69. In the initial
decision, the ALJ found that the respondent had a duty to act in a fair and
impartial manner and that the respondent knew of this duty, but SSA did not
prove that he failed to act in a fair and impartial manner because, among other
things, the CALJ could not point to any cases in which a claimant received a more
favorable outcome based on the identity of the claimant’s representative. ID
at 16, 94. In its cross petition for review, SSA argues, among other things, that
the ALJ took “an unreasonably circumscribed view” of the respondent’s duty of
impartiality, arguing that this duty extended beyond his interaction with claimants
and beyond his conduct during hearings. PFR File, Tab 5 at 23-26. We need not
8
The Board may follow a nonprecedential decision of the Federal Circuit when, as h ere,
it finds its reasoning persuasive. LeMaster v. Department of Veterans Affairs,
123 M.S.P.R. 453, ¶ 11 n.5 (2016).
12
resolve this issue on review because, even if we affirmed the ALJ’s decision not
to sustain these specifications, we would still sustain the neglect of duties charge
based on our decision to affirm the ALJ’s finding that SSA has proven
specifications 1-6 by preponderant evidence. See Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that when more than one event
or factual specification supports a single charge proof of one or more, b ut not all,
of the supporting specifications is sufficient to sustain the charge).
SSA proved the conduct unbecoming charge. 9
¶20 In the complaint, SSA alleged that the respondent engaged in various
“improper communication[s]” with several claimants’ representatives, which
constituted conduct unbecoming. IAF, Tab 1 at 11-12. The ALJ sustained
specifications 1, 3-12, and 14 of the conduct unbecoming charge and the charge
itself. ID at 95-115. Both the respondent and SSA challenge the ALJ’s findings
regarding the specifications.
¶21 Regarding specifications 1, 3-12, and 14, the respondent contends that the
ALJ erred by imposing discipline for his “collegial” and “flattering” language in
correspondence with counsel. PFR File, Tab 1 at 22. He asserts that SSA is not
represented at hearings and, because the only parties appearing before him are the
claimant and his/her representative, collegial ALJ-counsel relations are an
“essential lubricant” that allows the judicial gears to turn efficiently. Id. at 23.
He also asserts that the ALJ applied a “broad and standardless” rule ; the ALJ
overlooked the “cardinal principle” that one who alleges bias must overcome a
presumption of honesty and integrity; and a reasonable person with knowledge of
the relevant facts would not find that the communications create an appearance
that the law or these standards have been violated . Id. at 22-26. These arguments
are unavailing.
9
SSA does not challenge the ALJ’s conclusion that it did not prove specification 16 of
the conduct unbecoming charge. ID at 110-11; PFR File, Tab 5 at 22 n.11. We
therefore affirm the ALJ’s finding in this regard.
13
¶22 The Board has described conduct unbecoming an ALJ as “conduct which
was improper, unsuitable, or detracting from one’s character or reputation.”
Long, 113 M.S.P.R. 190, ¶ 42. The Board also has held that an agency has proven
a charge of conduct unbecoming if it proves that the employee violated one of the
14 general principles contained in 5 C.F.R. § 2635.101(b). Schifano v.
Department of Veterans Affairs, 70 M.S.P.R. 275, 281 (1996). The ALJ relied on
the regulation at 5 C.F.R. § 2635.101(b)(8), (b)(14) in his analysis of these
specifications. 10 ID at 95-97. We discern no error with the analytical framework
used by the ALJ.
¶23 We also affirm the ALJ’s finding that SSA proved that the communications
described in specifications 1, 3-12, and 14 constituted conduct unbecoming
because they give the appearance of a lack of impartiality. For example, in
specification 1, the respondent, in agreeing to a CPOD, told the claimant’s
representative that “the fact that it’s you as [the claimant’s] attorney doesn’t hurt
matters,” and that the claimant’s representative was “one of the best attorneys it
has been [his] privilege to know.” IAF, Tab 1 at 11, 40. He also said that she
“practice[d] law the way [he] used to, realistically, energetically, and efficiently,”
commenting “What’s not to like about you?” Id. at 40. In specification 3, the
respondent told the claimant’s representative, “I just wanted to make sure
your ___ was covered[.] I protect my lawyers (at least those, like you, whom I
like).” Id. at 42. In specification 4, the respondent told the claimant’s
representative that the respondent’s “discretion has a floor and a ceiling, and [the
representative] always get[s] the ceiling, but to resolve this case without a
10
The regulation at 5 C.F.R. § 2635.101(b)(8) states that employees “shall act
impartially and not give preferential treatment to any private organization or
individual.” Subsection 2635.101(b)(14) states that employees “shall endeavor to avoid
any actions creating the appearance that they are violating the law or the ethical
standards set forth in this part.” Subsection 2635.101(b)(14) further advises that
“[w]hether particular circumstances create an appearance that the law o r these standards
have been violated shall be determined from the perspective of a reasonable person with
knowledge of the relevant facts.”
14
hearing would require [the respondent] to ascend to the stratosphere!” Id. at 43.
In a follow-up email, the respondent also stated that he was “flatt ered” to
consider himself one of the claimant’s representative’s “friends.” Id. On their
face, the emails described in specifications 1, 3-4 give the appearance of a lack of
impartiality. We affirm the ALJ’s decision to sustain these specifications.
¶24 The respondent further asserts that specifications 5-10, involving email
correspondence with the same claimant’s representative, do not warrant the
conclusion that these communications created an appearance of impropriety. PFR
File, Tab 1 at 24. We are not persuaded by these arguments. Rather, we find that
a reasonable person would conclude that each of these communications was
improper and/or created an appearance of preferential treatment. For example, in
the email described in specification 5, the respondent made improper comments
about claimants’ cases. IAF, Tab 1 at 12, 46-47. In the email described in
specification 6, the respondent states, “Just to show you the amount of good will
you’ve banked, I set aside a decision I was writing to attend to your email.” Id.
at 12, 47. In the email described in specification 7, the respondent states, “It’s
always a treat to have a lawyer of your ability and dedication to work with.” Id.
at 12, 49. In the email described in specification 8, the respondent discussed an
arbitration hearing that he (the respondent) was involved in, referred to an
Associate CALJ as the “Chicago hit man,” and called him an “anti-judge
bureaucrat.” Id. at 12, 52. The respondent also stated in this email that he would
treat attorneys like the recipient differently than other attorneys. Id. at 53(“When I have attorneys like you to deal with, I will be the same open, inquiring
person I have always been, and encourage free-wheeling debate and discussion
like we’ve always had. Where I have attorneys I don’t know before me, I’ll ask
no questions other than that of the [vocational expert] . . . .”). In specification 9,
the respondent made an inappropriate remark about a juvenile claimant to the
claimant’s representative and invited the representative to contact him over the
weekend on his personal email account. Id. at 12, 54, 56. In specification 10, the
15
respondent explicitly acknowledged that his disposition would result in the
claimant’s representative receiving a fee for his work in that matter, and he noted
the “effort” that the representative put into the case. Id. at 12, 63. We discern no
error with the ALJ’s analysis of specifications 5-10 or his conclusion that each of
these emails gave the appearance of a lack of impartiality and constituted conduct
unbecoming. ID at 100-05.
¶25 In the email described in specification 11, the respondent told the
claimant’s representative, “if you are telling me as an officer of the court and my
friend that the claimant did indeed undergo a fusion in October 2013,” then he
would decide the case based on her representation. IAF, Tab 1 at 12, 65. In the
email described in specification 12, the respondent told the claimant’s
representative that she was “one of a group (fairly small group) of attorneys who
may always contact [him], bidden or unbidden” and that he “respect[ed] [her]
immensely, and value[d] [her] input consistently.” Id. at 12, 68. We agree that
both of these emails are evidence of conduct unbecoming, and we affirm the
ALJ’s analysis of these specifications. ID at 105-07.
¶26 In the email described in specification 14, the respondent used his personal
email address and told the claimant’s representative, among other things, that the
representative reminded him of himself and that he (the respondent) was “never
fortunate enough to have the opportunity to appear before a Judge with whom
[he] could have these types of ‘out of court’ dialogues” regarding a particular
matter. IAF, Tab 1 at 12, 74-79. We agree with the ALJ that this communication
constituted conduct unbecoming. ID at 108-09.
¶27 On review, the respondent contends that the ALJ erred because one who
alleges bias must overcome a presumption of honesty and integrity. PFR File,
Tab 1 at 24-25. Although this is an accurate proposition of law, see, e.g.,
Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980), SSA did not
allege in the conduct unbecoming specifications—and the ALJ did not find—that
the respondent was biased in favor of or against the claimants whose
16
representatives were communicating with the respondent. Moreover, the
respondent even acknowledged that the communications described in the conduct
unbecoming specifications are “capable of being interpreted nefariously.”
PFR File, Tab 1 at 26 (emphasis in original). For these reasons, we agree with
the ALJ’s decision to sustain specifications 1, 3-12, and 14.
¶28 Turning to SSA’s cross petition for review, we agree with SSA that the ALJ
should have sustained specification 15 of the conduct unbecoming charge.
PFR File, Tab 5 at 28-29. In this specification, SSA alleged that the respondent
forwarded an email to a claimant’s representative with the subject line “[the
CALJ] just violated federal law and thumbed nose at U[.]S[.] Supreme Court .”
IAF, Tab 1 at 12, 80-82. The forwarded email, from a colleague of the
respondent, called the CALJ a “complete idiot” and included a bulletin which
allegedly “orders SSA ALJs to violate federal law.” Id. at 80-82. In the initial
decision, the ALJ found unpersuasive SSA’s argument that the respondent’s
decision to forward the email to a claimant’s representative would undermine
public confidence in SSA; however, he did not provide any explanation for his
decision or cite to any legal authority or the CALJ’s testimony regarding the
effect of the respondent’s distribution of this email. ID at 109-10; PFR File,
Tab 5 at 28-29. We disagree with the ALJ’s assessment of this email. Rather, the
respondent’s decision to forward to a claimant’s representative an internal SSA
email with commentary that was critical of the CALJ and discussed “inside
baseball” topics creates an appearance of a lack of impartiality and constitutes
conduct unbecoming. HT 5 at 279-80 (testimony of the CALJ). We modify the
initial decision in this regard.
¶29 We have considered SSA’s arguments regarding specification 13 of the
conduct unbecoming charge wherein SSA charged that the respondent expressed
concern for a favored attorney’s receiving a fee in a case she was handling before
him and suggested how she might go about securing that fee. PFR File, Tab 5
at 27-28; IAF, Tab 1 at 12, 70-73. We have also considered SSA’s argument
17
regarding specification 2 wherein the agency charged that the respondent’s
decision to use a claimant’s full name and another claimant’s last name in an
August 31, 2012 email to a claimant’s representative constituted improper
transmission of PII and, therefore, conduct unbecoming. PFR File, Tab 5
at 26-27. However, we need not resolve either of these issues because we find
that SSA proved the conduct unbecoming charge based on our decision to affirm
the ALJ’s decision to sustain specifications 1, 3-12, and 14, and our separate
decision to sustain specification 15. See Burroughs, 918 F.2d at 172.
We modify the initial decision to find that the respondent’s November 15, 2012
letter to OIG constituted protected activity, but he did not prove that the protected
activity was a contributing factor in SSA’s decision to file a complaint
against him.
¶30 As noted above, in the initial decision, the ALJ determined that the
respondent did not prove that he made any whistleblowing disclosures. 11
ID at 115-29. In particular, the ALJ found that the respondent’s November 15,
2012 letter to OIG 12 did not constitute a protected disclosure because, among
other things, his allegations of “mismanagement” did not rise to the level of
“gross mismanagement” under 5 U.S.C. § 2302(b)(8). 13 ID at 121-23; IAF,
11
Neither party challenges the ALJ’s analysis of the respondent’s claim of reprisal for
whistleblowing as an affirmative defense or his finding that the respondent did not
make any whistleblowing disclosures. ID at 115-29. Except as modified to discuss the
respondent’s November 15, 2012 correspondence to OIG, we affirm the initial decision
in this regard.
12
In this letter, the respondent reported two instances of “serious mismanagement.”
IAF, Tab 95 at 39-40. He described how counsel for a disability claimant in one case
filed a motion to recuse and how counsel for a disability claimant in another case
complained about him to ODAR management. Id. at 40. He further described how SSA
sought to take disciplinary action against him during an October 25, 2012 interview, but
his first-line supervisor, who was present during the meeting, failed to listen to the
complete version of the hearings in those matters. Id.13
During the pendency of this appeal, the National Defense Authorization Act for
Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
18
Tab 95 at 39-40. Although not explicitly raised by the respondent on review, we
modify the initial decision to address this finding.
¶31 Under the law in effect at the time SSA filed this complaint in
October 2015, 14 an employee may establish a prima facie case of retaliation for
whistleblowing disclosures and/or protected activity by proving by preponderant
evidence 15 that: (1) he made a 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 whistleblowing disclosure or protected activity was a
contributing factor in the agency’s decision to take a personnel action against
him. 5 U.S.C. § 1221(e)(1); Alarid v. Department of the Army, 122 M.S.P.R. 600,
¶ 12 (2015); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015).
If the employee makes both of these showings by preponderant evidence, the
burden of persuasion shifts to the agency to prove by clear and convincing
evidence that it would have taken the same action in the absence of the protected
activity. Alarid, 122 M.S.P.R. 600, ¶ 14.
¶32 It appears that the ALJ analyzed this claim under 5 U.S.C.
§ 2302(b)(8)(B)(ii), which states that it is a prohibited personnel practice (PPP) to
take a personnel action against an employee because of “any disclosure . . . to the
Inspector General . . . of information which the employee . . . reasonably believes
evidences . . . gross mismanagement.” The ALJ’s reliance on this statutory
provision was in error. We need not remand the appeal, though, because the
of the U.S. Code. Our disposition of this matter would be the same under both pre ‑ and
post-NDAA law.
14
Although the respondent’s correspondence to OIG predated the December 27, 2012
effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub.
L. No. 112-199, § 202, 126 Stat. 1465, the Board may consider the provisions of the
WPEA because SSA’s complaint was filed after that date, Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶ 2 n.1 (2014).
15
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).
19
record is fully developed on this issue. Instead, we conclude that the
respondent’s claim is more appropriately analyzed under 5 U.S.C.
§ 2302(b)(9)(C), which states that it is a PPP to take an action against an
employee because that employee “disclos[ed] information to the Inspector
General . . . of an agency . . . in accordance with applicable provisions of law.”
The respondent’s November 15, 2012 letter satisfies the criteria under section
2302(b)(9)(C) and constitutes protected activity. See, e.g., Special Counsel v.
Hathaway, 49 M.S.P.R. 595, 612 (1991) (finding that section 2302(b)(9)(C)
covers employee disclosures to OIG that do not meet the precise terms of the
actions described in section 2302(b)(8)), recons. denied, 52 M.S.P.R. 375, aff’d,
981 F.2d 1237 (Fed. Cir. 1992).
¶33 We must next determine whether the respondent’s November 15, 2012 letter
to OIG was a contributing factor in SSA’s decision to file the complaint against
him. One way of proving that the respondent’s protected activity was a
contributing factor in the personnel action is the “knowledge/timing test.” Alarid,
122 M.S.P.R. 600, ¶ 13 (citing Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 22 (2013)). The knowledge/timing test allows an employee
to demonstrate that the protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking
the personnel action knew of the protected activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the protected activity was a contributing factor in the personnel action.
Alarid, 122 M.S.P.R. 600, ¶ 13; see 5 U.S.C. § 1221(e)(1). The ALJ found—and
the respondent does not contest—that the CALJ who signed the complaint was not
aware of the respondent’s November 15, 2012 letter to OIG when she authorized
the filing of the complaint in this matter. ID at 53. Thus, the knowledge
component of the knowledge/timing test is not satisfied.
¶34 There are, however, other ways to satisfy contributing factor, such as
evidence pertaining to the strength or weakness of the agency’s reasons for taking
20
the action, whether the protected activity was personally directed at the proposing
or deciding officials, and whether these individuals had a desire or motive to
retaliate against the respondent. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 15 (2012); Powers v. Department of the Navy, 69 M.S.P.R.
150, 156 (1995). As noted above, there is strong evidence to support SSA’s
charges. The November 15, 2012 letter identified the respondent’s first-line
supervisor by name and criticized ODAR’s region one management, IAF, Tab 95
at 39-40, but there is no evidence that the respondent’s first-line supervisor, or
anyone in ODAR region one management, had any knowledge of the respondent’s
November 15, 2012 letter to OIG prior to the complaint being filed or that any of
these individuals had a desire or motive to retaliate against the respondent. E.g.,
HT 1 at 281 (testimony of the respondent’s first-line supervisor); HT 2 at 277
(testimony of the respondent’s second-line supervisor). Finally, we have
considered whether the CALJ had constructive knowledge of the respondent’s
OIG letter, Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 15
(2016), but we are not aware of any evidence in this regard.
¶35 Because we have found that the respondent failed to prove that his protected
activity was a contributing factor in SSA’s decision to file the complaint seeking
to remove him, it is unnecessary to determine whether SSA proved by clear and
convincing evidence that it would have filed the complaint in the absence of the
respondent’s protected activity. See Clarke v. Department of Veterans Affairs,
121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
We find that there is good cause to remove the respondent.
¶36 The ALJ correctly noted that, in evaluating the penalty in an original
jurisdiction case under 5 U.S.C. § 7521, the Board looks to the factors articulated
in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). ID
at 130; Long, 113 M.S.P.R. 190, ¶ 47. In the initial decision, the ALJ evaluated
the Douglas factors, finding, among other things, that the sustained misconduct
was “serious, and . . . repeated notwithstanding clear notice and guidance” from
21
SSA, and the misconduct merited a “substantial” penalty. ID at 130-43.
However, the ALJ concluded that a 180-day suspension was a reasonable penalty.
ID at 143-44. On cross petition for review, SSA asserts that the ALJ improperly
considered the following penalty factors as mitigating factors: (1) the
respondent’s past work record; (2) the consistency of the penalty; (3) the
notoriety of the offense; (4) the respondent’s potential for rehabilitation; and
(5) the availability of alternative sanctions. PFR File, Tab 5 at 11-22; ID
at 143-44.
¶37 We disagree with SSA’s arguments regarding the ALJ’s evaluation of the
respondent’s past work record. SSA challenges the ALJ’s finding that the
respondent’s productivity and intelligence were mitigating factors, and it asserts
that the ALJ ignored the fact that SSA referred the respondent to the OIG for
investigation in 2013. PFR File, Tab 5 at 12-15; ID at 133-39, 141. In the initial
decision, the ALJ cited the testimony of others regarding the respondent’s
productivity and intelligence and found that the respondent had a positive work
ethic and was viewed as intelligent and fair by representatives who appeared
before him. ID at 141-43. SSA argues that the respondent’s high productivity is
illusory given his failure to abide by agency policy, PFR File, Tab 5 at 12-13, but
this fact, even if true, does not warrant a different outcome. The ALJ also noted,
among other things, that SSA received numerous complaints against the
respondent, and his supervisor estimated that 80% of his workload in dealing with
complaints against ALJs involved complaints submitted against the respondent.
ID at 141. It therefore appears that the ALJ identified the relevant evidence
regarding this factor. Even if the ALJ did not discuss the OIG referral in his
analysis of the particular penalty factor, he discussed it in his findings of fact. ID
at 26-27. Additionally, the ALJ’s failure to mention all of the evidence of record
does not mean that he did not consider it in reaching his decision. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985).
22
¶38 However, we agree with SSA’s argument that the ALJ did not properly
evaluate the notoriety of the respondent’s offense. PFR File, Tab 5 at 12-15. The
ALJ acknowledged that a district court decision in Betancourt v. Astrue,
824 F.Supp.2d 211 (D. Mass. 2011), discussed the respondent’s failure to
memorialize off-the-record conversations, ID at 142, but the ALJ was not
persuaded by SSA’s speculation that claimants and their representatives were
aware of the respondent’s misconduct, and he concluded that the evidence did not
show that the misconduct was notorious or adversely impacted SSA’s reputation.
Id. Yet, as the ALJ noted just paragraphs earlier in his decision, that very same
handling of off-the-record conversations admonished in Betancourt had been the
subject of numerous complaints since at least 2010, resulting in the
aforementioned testimony from the first-line supervisor that 80% of his workload
in dealing with complaints against ALJs involved complaints submitted against
the respondent. ID at 140-41. We therefore agree with SSA that, as an ALJ, the
respondent held a prominent, visible, and public position that is subject to
scrutiny, perhaps more so than many other types of agency officials who do not
routinely interact with the public, and that his misconduct, even if not technically
notorious, did reflect negatively on SSA’s reputation.
¶39 We also are persuaded that the ALJ erred in his analysis of the consistency
of the penalty, the respondent’s potential for rehabilitation, and the availability of
alternative sanctions. For instance, regarding the consistency of the penalty with
those imposed upon other employees for the same or similar off enses, we agree
with SSA that the ALJ took a narrow view of this factor by failing to mention any
of the misconduct relating to the conduct unbecoming charge. PFR File, Tab 5
at 16; ID at 142. Importantly, the CALJ testified that she sought removal of
another ALJ for only “neglect of duty for failure to follow Agency policy,” the
appeal of which was then pending, and she stated that the respondent’s
misconduct was “very, very rare.” HT 5 at 291-92 (testimony of the CALJ).
23
Given the unusual nature of the sustained misconduct, we find that the absence of
comparator evidence is not a mitigating factor.
¶40 Regarding the respondent’s potential for rehabilitation, the ALJ considered
the fact that the respondent improved his practices regarding PII and also began
memorializing “more” of the content of his off-the-record conversations and
communications. ID at 139, 143. Although the degree to which the respondent
may have improved his efforts to memorialize his off -the-record conversations is
unclear, PFR File, Tab 5 at 19, the ALJ properly considered such evidence in his
assessment of the respondent’s potential for rehabilitation. However, the ALJ
also cited to the respondent’s brief that he was “‘able and willing’ to adjust his
behavior” to support the conclusion that he had a potential for rehabilitation.
ID at 139 (citing IAF, Tab 112 at 73). Statements of a party’s representative in a
pleading do not constitute evidence, Hendricks v. Department of the Navy,
69 M.S.P.R. 163, 168 (1995), and it was error for the ALJ to rely on the
representative’s statements in this regard. 16 We find that there is not a strong
potential for rehabilitation here, particularly given the respondent’s failure to
comply with SSA policy regarding CPOD decisions and his numerous improper
communications with claimants’ representatives that gave the appearance of a
lack of impartiality. Indeed, as the ALJ found, the respondent “persistently
challenged and resisted [SSA] direction, maintaining that [SSA’s] policies were
incorrect and that [his] practices were justified.” ID at 133. Moreover, regarding
his communications with claimants’ representatives, there is no evidence
whatsoever that he improved his communications or judgment in this regard; thus,
we find that there is little potential for rehabilitation.
¶41 Finally, regarding the adequacy and effectiveness of alternative sanctions,
the ALJ noted that the respondent previously had not been sanctioned in
connection with the sustained misconduct, and he concluded that the record
16
Although the respondent is pro se on review, PFR File, Tab 7, he was represented
during the proceedings below, IAF, Tabs 5, 112.
24
did not show that removal, rather than a lesser sanction, would be more effective
to deter the respondent or others from engaging in similar conduct. ID at 143. In
its cross petition for review, SSA argues, in pertinent part, that the lack of prior
discipline does not make removal inappropriate in this case. PFR File, Tab 5
at 20 (noting that, in cases such as Long, 113 M.S.P.R. 190, and Social Security
Administration v. Steverson, 111 M.S.P.R. 649 (2009), the Board has found good
cause to remove an ALJ even in the absence of prior discipline ). Here, the
respondent received the December 5, 2011 directive, which advised him that
failure to follow the directive may lead to disciplinary action. IAF, Tab 93 at 23.
Moreover, the ALJ made the following findings: (1) SSA referred the respondent
to OIG in October 2013; (2) OIG conducted an investigation; (3) it was ODAR’s
practice to hold in abeyance any administrative actions against an employee once
an OIG referral has been made; and (4) prior to the OIG referral SSA had been
working on potential discipline for the respondent. ID at 26-27. Thus, the fact
that SSA took no action against the respondent from the time of its October 2013
referral to OIG until after it received the OIG reports in December 2014 and
February 2015, ID at 27, does not, under these circumstances, make this
factor mitigating.
¶42 We agree with the ALJ’s analysis of the nature and seriousness of the
misconduct, which is the most significant Douglas factor, and his conclusion that
the respondent’s misconduct was “serious,” “repeated,” “directly pertain[ed] to
[his] responsibilities as an ALJ,” “negatively impact[ed] the legal sufficiency and
defensibility of his [CPOD] decisions,” “directly affect[ed] [the respondent’s]
obligation to provide claimants with a full, due process hearing,” and “reflected
poorly on the ALJ position.” ID at 131-32, 143; Murry v. General Services
Administration, 93 M.S.P.R. 554, ¶ 8 (2003), aff’d, 97 F. App’x 319 (Fed. Cir.
2004). We also agree with the ALJ that the sustained misconduct warrants a
“substantial” penalty. ID at 143. Although a 180-day suspension is a significant
penalty, Colon v. Department of the Navy, 58 M.S.P.R. 190, 204 (1993), we find
25
that, given the serious and repeated nature of the misconduct, the Douglas factors
discussed herein, and the ALJ’s assessment of the remaining factors, SSA has
proven good cause to remove the respondent. See, e.g., Steverson, 111 M.S.P.R.
649, ¶¶ 2-3, 6-12, 19-21 (finding good cause to remove the respondent ALJ based
on charges of conduct unbecoming, lack of candor, misuse of Government
equipment, and failure to follow agency policy).
We deny SSA’s request to suspend the respondent from the date the complaint
was filed through the Board’s final decision.
¶43 SSA argued in its complaint that the respondent’s neglect of duties and
conduct unbecoming “fundamentally undermines public confidence” in t he
agency’s adjudicatory process, and, therefore, good cause exists to suspend him
from the date of the October 2, 2015 complaint through the Board’s final decision
in this matter. IAF, Tab 1 at 5, 12-13. In the initial decision, the ALJ noted that
SSA cited no authority to support its request for a retroactive suspension , and he
rejected SSA’s request in this regard. ID at 144. In its cross petition for review,
SSA challenges the ALJ’s conclusion, emphasizing that, because Congress
has not defined the term “suspension” in 5 U.S.C. § 7521, the Board can give it
meaning. PFR File, Tab 5 at 29-32.
¶44 Other than citing to section 7521, SSA provides no legal basis for its
request; rather, SSA only appears to focus on policy arguments. Id. We are not
persuaded by SSA’s arguments. Importantly, section 7521(a) advises that an
agency may not take an action against an ALJ until the Board “establish[es] and
determine[s]” that the agency has made a showing of good cause. 5 U.S.C.
§ 7521(a); see, e.g., Social Security Administration v. Boham, 38 M.S.P.R. 540,
546-47 (1988) (finding that SSA proved good cause to discipline the respondent
ALJ based on his refusal to comply with reasonable orders concerning case
scheduling and authorizing SSA to suspend him for a period up to 75 days), aff’d,
883 F.2d 1026 (Fed. Cir. 1989) (Table). SSA is essentially asking the Board to
approve a time-served suspension. However, the Board has held that the
26
imposition of a time-served suspension is arbitrary. Milligan v. U.S. Postal
Service, 106 M.S.P.R. 414, ¶ 13 (2007); see Greenstreet v. Social Security
Administration, 543 F.3d 705, 709 (Fed. Cir. 2008) (“[T]he length of a suspension
is arbitrary when it is based solely on the suspended employee’s ‘time served’
awaiting decision.”). We are not persuaded that it is appropriate to interpret the
statute at 5 U.S.C. § 7521 as authorizing a time-served or retroactive suspension,
and we deny SSA’s request.
ORDER
¶45 We have considered the parties’ remaining arguments, but we find them
unpersuasive. The Board authorizes the petitioner to remove the respondent for
good cause shown, pursuant to 5 U.S.C. § 7521.
NOTICE OF APPEAL RIGHTS 17
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 Sys tems 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 wis h 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 dismis sal of your case by your
chosen forum.
17
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.
27
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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
28
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
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:
29
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 describe d 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. 18 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).
18
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compet ent 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.
30
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.
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.