The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEON MORGAN, DOCKET NUMBER
Appellant, DE-0752-19-0427-I-1
v.
DEPARTMENT OF VETERANS DATE: June 18, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Mandeev Singh Brar , Esquire, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction without
holding the requested hearing. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant alleges that he raised a nonfrivolous
allegation of Board jurisdiction and that the administrative judge erred by
weighing the evidence to find otherwise. Petition for Review (PFR) File, Tab 1.
The Board has found that, in determining whether an appellant has made a
nonfrivolous allegation of Board jurisdiction, an administrative judge may
consider an agency’s documentary submissions; however, to the extent the
agency’s evidence constitutes mere factual contradiction of the appellant’s
otherwise adequate prima facie showing of jurisdiction, the administrative judge
may not weigh evidence and resolve conflicting assertions of the parties and the
agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994). Here, the administrative judge assumed the
appellant’s allegations were true, notwithstanding the agency’s arguments and
evidence, and found that they failed to amount to a nonfrivolous allegation of
Board jurisdiction. Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 5-7.
Thus, the administrative judge did not improperly weigh the evidence.
The appellant additionally challenges the administrative judge’s finding
that he did not nonfrivolously allege that the agency knew that it would not
3
prevail on its removal action. 1 PFR File, Tab 1. Furthermore, the appellant
challenges the administrative judge’s finding that the agency’s delay in approving
his prior Family and Medical Leave Act request and the agency’s decision to
suspend him and propose his removal were insufficient to rise to the level of a
nonfrivolous allegation of forced retirement. PFR File, Tab 1. For the reasons
stated in the initial decision, we agree that the appellant failed to raise a
nonfrivolous allegation of Board jurisdiction over this appeal, and we find that
the appellant’s mere disagreement on review with the administrative judge’s
findings does not provide a basis for disturbing the initial decision. 2 See Crosby
v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department
of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).
1
In making this finding, the administrative judge analyzed whether the agency could
prove its charge by substantial evidence. ID at 6-7. However, the U.S. Court of
Appeals for the Federal Circuit recently clarified in Rodriguez v. Department of
Veterans Affairs, 8 F.4th 1290, 1296-1301 (2021) that the Department of Veterans
Affairs may only take the action in the first instance when it is supported by
preponderant evidence. Thus, as is relevant here, in order for the appellant to show that
his retirement was involuntary, he needed to show that the agency knew that it could
not prove the charges against him by preponderant evidence. See Rodriguez, 8 F.4th at
1296-1301. For the reasons set forth in the initial decision, we find that the appellant
has not raised a nonfrivolous allegation that the agency knew that its action was not
supported by a preponderance of the evidence.
2
The appellant further alleges on review that part of the reason he retired was that, had
he been removed, he would have lost his retirement benefits. PFR File, Tab 1 at 13.
The appellant, however, does not allege that the agency was responsible for this belief
or had reason to know that he was relying on it in deciding to retire. Thus, even if the
appellant was mistaken in believing that he would lose his retirement benefits if he was
removed, his bare assertion alone does not constitute a nonfrivolous allegation that his
retirement was involuntary due to agency misinformation. See Aldridge v. Department
of Agriculture, 111 M.S.P.R. 670, ¶ 8 (2009) (stating that, when there is a claim that an
involuntary action resulted from misinformation, an appellant must show, among other
things, that the agency made misleading statements).
4
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.