Opinion

Michael Chen v. Department of the Army

Court: Merit Systems Protection Board
Filed: Aug 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DR. MICHAEL M. CHEN, DOCKET NUMBER

Appellant, PH-0752-20-0271-I-1

DEPARTMENT OF THE ARMY, DATE: August 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael M. Chen , Lancaster, California, pro se.

Stephen W. Artymowicz , Esquire, Aberdeen Proving Ground, Maryland,

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

sustained his removal. On petition for review, the appellant disagrees with

virtually all of the administrative judge’s findings of fact and challenges her

credibility determinations. Generally, we grant petitions such as this one only in

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

the following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

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 review, the appellant makes numerous claims that the initial decision

contains erroneous findings and conclusions of material fact. Petition for Review

(PFR) File, Tab 1 at 6-19. The appellant’s mere disagreement with the

administrative judge’s well-reasoned findings does not explain why those

findings are incorrect or otherwise establish error. Yang v. U.S. Postal Service,

115 M.S.P.R. 112, ¶ 12 (2010) (finding that arguments that constitute mere

disagreement with the initial decision do not provide a basis to grant the petition

for review); Broughton v. Department of Health and Human Services ,

33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the

administrative judge’s conclusions when the initial decision considered the

evidence as a whole, drew appropriate inferences, and made reasoned

conclusions).

The appellant also asserts on review that the administrative judge did not

fairly consider his denials that any of the three incidents on which the agency

based his removal occurred, but instead simply believed the complaining

witness’s version of the events. PFR File, Tab 1 at 6-19. Because no one

witnessed any of the incidents, the administrative judge carefully examined the

credibility of the complaining witness and that of the appellant, and reached the

conclusion that the complaining witness was more credible. In resolving the

issues of credibility, the administrative judge applied the pertinent factors set

forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Initial

Appeal File (IAF), Tab 21, Initial Decision at 7-15. It is well established that the

Board must defer to an administrative judge’s credibility determinations when

they are based, either explicitly or implicitly, on observing the demeanor of

witnesses testifying at a hearing and that the Board may overturn such

determinations only when it has “sufficiently sound” reasons to do so. Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We have

considered the appellant’s allegations but find that they do not provide

sufficiently sound reasons to overturn the administrative judge’s well-supported

credibility determinations.

Regarding the appellant’s claim that the administrative judge was biased,

PFR File, Tab 1 at 6, the appellant’s claims of bias do not overcome the

presumption of honesty and integrity that accompanies administrative

adjudicators, and the appellant has failed to show that the administrative judge’s

comments or actions evidence “a deep-seated favoritism or antagonism that would

make fair judgment impossible,” Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994); Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980).

The appellant also claims on review that he was the victim of “manifest racial

discrimination.” PFR File, Tab 1 at 28. The appellant did not raise unlawful

discrimination below, the administrative judge did not include such a claim in the

list of issues presented by the appeal, and, despite being afforded the opportunity

to do so, the appellant did not object to that exclusion. Thus, he is precluded

from raising the matter on review. Miles v. Department of the Navy,

102 M.S.P.R. 316, ¶ 18 (2006); IAF, Tab 16.

NOTICE OF APPEAL RIGHTS 2

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:

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.

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

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

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

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