Paul Barnes v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL N. BARNES, DOCKET NUMBER
Appellant, DC-3443-17-0570-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Paul N. Barnes , Dayton, Ohio, pro se.
Stephen W Artymowicz , Esquire, Aberdeen Proving Ground, Maryland, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s denial of his application for early retirement under the
Voluntary Early Retirement Authority (VERA). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the appellant’s claim that the agency made inconsistent
VERA determinations, we AFFIRM the initial decision.
¶2 For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet his burden of
proving that he is entitled to early retirement under VERA. Initial Appeal File
(IAF), Tab 31, Initial Decision (ID) at 6-9; see Cheeseman v. Office of Personnel
Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); Davis v. Office of Personnel
Management, 104 M.S.P.R. 70, ¶ 7 (2006) (observing that the burden of proving
entitlement to retirement benefits is on the applicant for benefits).
¶3 In his petition for review, the appellant reasserts his claim that the agency’s
reason for denying his VERA application is inconsistent with the fact that the
agency approved the applications of other employees without an approved
restructuring plan in place. Petition for Review (PFR) File, Tab 1 at 4-5; IAF,
Tab 30 at 44-45. He further claims that this inconsistency demonstrates the
agency’s improper discretion. PFR File, Tab 1 at 5. Because the administrative
judge did not consider those claims, we modify the initial decision to address
them as follows.
¶4 In a memorandum dated March 11, 2017, the Director of the U.S. Army
Research Laboratory (ARL) explained that the “ability to restructure the position
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being vacated (e.g. Grade Level, Occupation Series)” was a relevant consideration
in determining whether to approve a VERA application during “ARL FY17 Round
Two Buyout Authority” and that a restructured position had to be filled no later
than 1 year after an application was approved. IAF, Tab 14 at 51, 53. Thus, we
find that the relevant inquiry here is whether the appellant’s position could have
been restructured and filled within 1 year. The ARL Director declared that he
thought he could not approve the restructure of the appellant’s branch chief
position without an approved reorganization plan in place for the directorate.
IAF, Tab 25 at 17. The ARL Director further declared that he was not
comfortable approving the appellant’s VERA application because the agency
would have had to restructure and fill his position within 1 year. Id. at 17-18.
¶5 In support of his claims on review, the appellant references his exhibits in
the record. PFR File, Tab 1 at 4; IAF, Tab 30 at 70-71, 79-81, 86-90. In relevant
part, the appellant refers to an email in which he claims that two individuals
within his division who were part of the administrative staff were granted VERA
benefits in fiscal year 2016. PFR File, Tab 1 at 4; IAF, Tab 30 at 70. In addition,
the appellant refers to agency counsel’s discovery response in which he admits
that there were approved VERA offers in fiscal year 2017 for other directorates
within ARL that had not undergone reorganization that year. PFR File, Tab 1
at 4; IAF, Tab 30 at 87. We find that the appellant’s evidence fails to show that
the agency was inconsistent to determine that certain positions (like his branch
chief position) could not be restructured without a reorganization plan in place
and filled within 1 year and that other positions (like administrative staff
positions) could be. The ARL Director’s memorandum contemplates making
VERA determinations based on, among other things, the grade level and
occupation series of an applicant’s position. IAF, Tab 14 at 53. Moreover, the
agency’s regulations state that “VERA may be based on occupation; grade or pay
band; skills, knowledge, or other factors related to a position.” Id. at 32.
Therefore, we discern no abuse of discretion.
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¶6 In addition, the appellant challenges on review the administrative judge’s
finding that the agency’s failure to identify which positions would be eligible for
VERA benefits prior to accepting applications does not render the agency’s
decision erroneous or suggest an abuse of discretion. PFR File, Tab 1 at 5-6; ID
at 9. Based on our review of the record, we discern no reason to disturb that
finding.
¶7 Further, the appellant alleges on review that he was unable to present
evidence of alleged poor performers who were granted VERA benefits because
the agency is prohibited from providing such personal information. PFR File,
Tab 1 at 6. The Board’s regulations reflect an expectation that the parties will
start and complete discovery with minimum Board intervention. 5 C.F.R.
§ 1201.71; see King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 10 (2005)
(recognizing that a party does not need the Board’s approval to engage in
discovery, and the Board generally only becomes involved in discovery matters if
a party files a motion to compel), aff’d, 167 F. App’x 191 (Fed. Cir. 2006). Here,
the appellant does not allege, and the record does not reflect, that he requested
evidence of alleged poor performers through discovery. Thus, we are not
persuaded by the appellant’s claim that he could not provide evidence of alleged
poor performers.
¶8 Accordingly, we affirm the agency’s denial of the appellant’s VERA
application.
NOTICE OF APPEAL RIGHTS 2
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
2
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.
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forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
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EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
3
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
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.