# Travis Schooley v. Department of the Army

> Merit Systems Protection Board · August 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10563794

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 27, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10563794

## How later opinions describe it (automated extraction)

- finding that a deciding official violates an employee’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of an adverse action

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TRAVIS GARY SCHOOLEY, DOCKET NUMBER
Appellant, PH-1221-22-0045-W-2

v.

DEPARTMENT OF THE ARMY, DATE: August 27, 2024
Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Reginald L. Tolbert , Chambersburg, Pennsylvania, for the appellant.

Joleen Payeur Olsen , Esquire, Chambersburg, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication
of this appeal.

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, we GRANT the petition for review, VACATE the
initial decision, and REMAND this matter for further adjudication.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND
¶2 According to the appellant, he has a long history of involvement in political
affairs in Franklin County, Pennsylvania, and its various municipalities, including
running for elected office, serving on the Republican Committee, advocating for
and against candidates, and supporting taxpayer and citizen causes. Schooley v.
Department of the Army, MSPB Docket No. PH-1221-22-0045-W-1, Initial
Appeal File (W-1 IAF), Tab 7 at 11, 18-21. In 2019, while an employee of
Quincy Township, a municipality within Franklin County, the appellant disclosed
water quality issues to the Pennsylvania Department of Environmental Protection.
W-1 IAF, Tab 1 at 13, Tab 7 at 25-26. Thereafter, between February 2020 and
March 2021, investigators from the Pennsylvania Attorney General’s Office and
the Federal Bureau of Investigation met with the appellant multiple times
concerning their investigation into alleged wrongdoing by a township supervisor
while the appellant was employed by the township and ultimately subpoenaed the
appellant to appear before a grand jury. W-1 IAF, Tab 1 at 29-31, 40, 44.
¶3 Meanwhile, on January 21, 2021, the agency appointed the appellant to a
GS-11 Community Planner position in the competitive service at Letterkenny
Army Depot (LEAD), which is located in Franklin County, Pennsylvania. W-1
IAF, Tab 1 at 76. The appointment was subject to a 2-year probationary period. 2
Id.
¶4 On June 15, 2021, the appellant reported his involvement in the
investigation by the Pennsylvania Attorney General’s Office and the Federal
2
Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016
NDAA) on November 25, 2015. Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA
extended the probationary period for an individual appointed to a permanent
competitive service position at the Department of Defense to a 2-year probationary
period and provided that such individual only qualifies as an “employee” under
5 U.S.C. § 7511(a)(1)(A)(ii) if he has completed 2 years of current continuous service.
Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified, as relevant here, at
10 U.S.C. § 1599e and 5 U.S.C. § 7511(a)(1)(A)(ii)). The National Defense
Authorization Act for Fiscal Year 2022, enacted on December 27, 2021, repealed
10 U.S.C. § 1599e and the 2-year probationary period, effective December 31, 2022.
Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950.
3

Bureau of Investigation to the agency security office. W-1 IAF, Tab 1 at 26. As
a result of the investigation, on June 24, 2021, the appellant was arrested and
criminally charged. 3 Id. at 72. In September 2021, the agency proposed the
appellant’s termination, referencing the arrest and criminal charges and
explaining that, although the charges stemmed from conduct that occurred while
the appellant worked for his previous employer, they created questions about his
judgment and integrity. Id. at 15-16. The appellant responded to the proposed
removal, contending that the action was motivated by partisan politics based on
his prior political and civic activities. Id. at 49-59. Thereafter, the agency
terminated the appellant effective October 29, 2021. Id. at 19-23.
¶5 On appeal to the Board, the appellant again raised his claim that his
termination was motivated by partisan politics and also asserted that it was
motivated by his disclosures about wrongdoing by various state, county, and
municipal officials. Id. at 6-12. He included what appears to be a cover sheet or
contact information document referencing a November 26, 2021 filing with the
Office of Special Counsel (OSC). Id. at 5. The appellant requested a hearing. Id.
at 2.
¶6 The regional office docketed the appeal as an IRA appeal and informed the
appellant of the jurisdictional elements of an IRA appeal, including the
requirement that the appellant establish that he exhausted his remedies with OSC.
W-1 IAF, Tab 2. Subsequently, the administrative judge informed the appellant
of his burden to establish Board jurisdiction over an appeal of a probationary
termination and explained that he would only be afforded a hearing if he made a
nonfrivolous allegation of jurisdiction. Schooley v. Department of the Army,
MSPB Docket No. PH-1221-22-0045-W-2, Appeal File (W-2 AF), Tab 13 at 2.
¶7 After affording the parties an opportunity to develop the record, the
administrative judge issued an initial decision finding, among other things, that

3
The appellant avers on review that the prosecutor has dismissed the criminal charges
and the matter is in the process of being expunged. Petition for Review File, Tab 1 at 5.
4

the appellant filed a complaint with OSC, but that the filing was not in the record.
W-2 AF, Tab 22, Initial Decision (ID) at 2. The administrative judge dismissed
the appeal for lack of jurisdiction, reasoning that the appellant did not allege
sufficient factual matters, accepted as true, to state a claim that was plausible on
its face as required by the applicable case law. ID at 4.
¶8 The appellant has filed a petition for review arguing that the administrative
judge erred in adjudicating the appeal as one involving reprisal for
whistleblowing and not partisan political discrimination, as his whistleblowing
did not relate to the agency but to state and local Governments. Petition for
Review (PFR) File, Tab 1 at 8-10. The appellant also argues that he filed a
complaint with OSC raising his claims of partisan political discrimination, that
the administrative judge mistakenly stated that “no such filing is on the record,”
and that the OSC complaint is now exhausted. Id. at 16-18. The appellant further
argues that the deciding official in his termination obtained information about the
criminal case from his political rivals outside of the agency or from the base
commander, who had close contacts with the appellant’s political rivals. Id.
at 12-16. Finally, the appellant asserts that the administrative judge made various
procedural errors and was biased in favor of the agency. Id. at 18-25. The
agency has responded to the petition for review and the appellant has replied to
that response. 4 PFR File, Tabs 4-5.

4
The agency’s response to the petition for review was due on May 13, 2023. PFR File,
Tab 2. The agency did not file its response until May 15, 2023. Id., Tab 4. Because
May 13, 2023, was a Saturday, we find the response was due on Monday, May 15, 2023,
and was thus timely filed. 5 C.F.R. § 1201.23. The appellant’s reply to the agency’s
response was due within 10 days of the date of service of the agency’s response, which
was May 15, 2023, and thus the appellant’s reply was due on May 25, 2023. PFR File,
Tabs 2, 4; 5 C.F.R. § 1201.114(e). The appellant did not file his reply to the response
until June 2, 2023, and thus it was untimely filed. 5 C.F.R. § 1201.114(e).
Accordingly, we have not considered the reply. 5 C.F.R. § 1201.114(g).
5

ANALYSIS

The appellant has made a nonfrivolous allegation of jurisdiction over his claim
that his probationary termination was based on partisan political reasons entitling
him to a hearing.
¶9 An individual in the competitive service who, like the appellant, has not
completed his probationary period has no statutory right of appeal to the Board.
Starkey v. Department of Housing and Urban Development , 2024 MSPB 6, ¶ 16;
Marynowski v. Department of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); W-1 IAF,
Tab 1 at 1, 76, Tab 3 at 14; see 5 U.S.C. § 7511(a)(1)(A). However, under certain
limited circumstances, there may be a regulatory right of appeal. As relevant
here, an individual serving in his probationary period “may appeal . . . a
termination not required by statute which he or she alleges was based on partisan
political reasons or marital status.” 5 5 C.F.R. § 315.806. To be entitled to a
hearing in such an appeal, an appellant must make a nonfrivolous allegation of
jurisdiction, that is, an allegation of fact that, if proven, would establish that his
termination was based on partisan political reasons. Starkey, 2024 MSPB 6, ¶ 16
n.4; Green-Brown v. Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). The
appellant’s allegations must be more than mere conjecture and the appellant must
provide supporting facts to show that the allegation is not merely a pro forma
pleading. Smirne v. Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010). In
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction the Board may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of

5
The administrative judge provided the appellant with notice regarding the elements
and burdens of proof associated with appealing a probationary termination, including
those related to a claim that the agency took the action, in whole or in part, based on
preappointment reasons and did not follow the procedures set forth in 5 C.F.R.
§ 315.805. W-2 AF, Tab 13 at 2. Although the appellant has alleged that the
termination was based on preappointment reasons, namely his political and civic
activities, he has not alleged that the agency failed to follow the procedures set forth in
5 C.F.R. § 315.805(a)-(c).
6

jurisdiction, the administrative judge may not weigh the evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Smirne, 115 M.S.P.R. 51, ¶ 8; Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994).
¶10 Discrimination based on “partisan political reasons” under 5 C.F.R.
§ 315.806(b) means discrimination based on affiliation with any political party or
candidate. Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155-
56 (Fed. Cir. 1983); Marynowski, 118 M.S.P.R. 321, ¶ 7. Here, the appellant
detailed his past affiliation with a political party, political activity in support of
various candidates, and his own candidacy for political office and alleges that he
was terminated because of those activities. The question presented at this stage
of the proceeding is whether the appellant made a nonfrivolous allegation
regarding that claim.
¶11 In his initial appeal, the appellant noted that the deciding official wrote in
the termination decision that the criminal investigation of the appellant started
before he was hired at LEAD. W-1 IAF, Tab 1 at 7, 20, 22. The appellant argued
that neither he nor his attorney were aware that the investigation of the appellant
began before he commenced work at LEAD and that only the investigators and
some witnesses would have known such details about the investigation. Id. at 7;
W-1 IAF, Tab 7 at 10. He further argued that specific political rivals provided
information about the investigation to the agency, that the agency terminated him
“at the request, behest, suggestion, advisement, or the encouragement” of those
rivals, and that the collusion of agency officials in that outside request constituted
partisan political discrimination. 6 W-1 IAF, Tab 7 at 10-12. The appellant
6
The appellant argued below and on review that these communications constituted
improper ex parte communications violative of his constitutional rights. W-1 IAF,
Tab 1 at 7, Tab 7 at 10-13; PFR File, Tab 1 at 12-16; see Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (finding that a deciding
official violates an employee’s due process rights when he relies upon new and material
ex parte information as a basis for his decisions on the merits of an adverse action);
Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011) (finding that a
deciding official violates an employee’s due process rights when he relies upon new and
7

supported his claim that the aforementioned political rivals were in contact with
senior agency officials by providing photographs and social media posts about
meetings and events involving political rivals and agency officials. W-2 AF,
Tab 15 at 4-8, Tab 16 at 4-9. Regarding the appellant’s allegations, which were
also raised in his response to the proposed termination, the deciding official
specifically stated that he “had no contact with any person from Franklin County
regarding [the appellant’s] employment at LEAD.” W-1 IAF, Tab 1 at 19
(emphasis in original). As discussed above, however, in determining whether the
appellant has made a nonfrivolous allegation of jurisdiction, the Board may not
weigh evidence. 7 Smirne, 115 M.S.P.R. 51, ¶ 8; Ferdon, 60 M.S.P.R. at 320.
¶12 In sum, the appellant has made allegations that partisan political
discrimination played a role in his termination and those allegations, if proven,
would establish Board jurisdiction. Accordingly, we remand this matter to the
administrative judge. The administrative judge shall develop the record, conduct
a hearing, and issue a new initial decision that identifies all material issues of fact
and law, summarizes the evidence, resolves issues of credibility, and includes the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. 8 See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980).

material ex parte information as a basis for his decisions on the penalty to be imposed
for misconduct). The Board may only address affirmative defenses, such as those raised
by the appellant, if it has jurisdiction over the underlying action. White v. Department
of the Army, 2023 MSPB 17, ¶ 13. Accordingly, we need not address the appellant’s
claim.
7
We are aware that it is not unusual for local political leaders to meet with senior
leaders from military bases located in the community, but, as stated, at this stage of the
proceeding the Board cannot weigh the probative value of the evidence.
8
The administrative judge shall afford the parties the opportunity to engage in
discovery regarding the issues relevant to this appeal. 5 C.F.R. §§ 1201.71-1201.85.
8

Because the appellant has provided evidence of OSC exhaustion, we remand the
appeal for further adjudication, including specific notice of the jurisdictional
elements when a disclosure involves purported wrongdoing by a non-Federal
entity.
¶13 As mentioned above, the administrative judge adjudicated the appellant’s
appeal as an IRA appeal and dismissed it for lack of jurisdiction. On review, the
appellant argues that he did not intend his appeal to be considered as an IRA
appeal because his whistleblowing did not relate to the agency, but instead related
to state and local Governments. PFR File, Tab 1 at 8-10. Although we
acknowledge the appellant’s statement, we are concerned about the adequacy of
the administrative judge’s notice to the appellant.
¶14 With his petition for review, the appellant provides a November 14, 2022
letter from OSC setting forth its initial findings regarding his allegations of
prohibited personnel practices, including under 5 U.S.C. § 2302(b)(8), which
prohibits reprisal for whistleblowing. 9 PFR File, Tab 1 at 51-53. In that letter,
OSC described the appellant’s complaint as including allegations that someone
revealed the investigation of the appellant in reprisal for his 2019 disclosure
about water quality issues to the Pennsylvania Department of Environmental
protection. Id. at 52-53.
¶15 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that (1) he made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)

9
According to OSC’s letter, the appellant also raised alleged violations of 5 U.S.C.
§ 2302(b)(4), regarding willfully obstructing an individual’s right to compete for a
Federal position. PFR File, Tab 1 at 52. Such a claim is not a basis for Board
jurisdiction. Stroud v. Department of Veterans Affairs, 2022 MSPB 43, ¶ 24 (stating
that prohibited personnel practices are not an independent source of Board jurisdiction);
Gaugh v. Social Security Administration, 87 M.S.P.R. 245, ¶ 7 (2000) (stating that
allegations of prohibited personnel practices, including 5 U.S.C. § 2302(b)(4), are not
within the Board’s jurisdiction in an IRA appeal). After considering the appellant’s
response, OSC closed its investigation in a December 1, 2022 letter. PFR File, Tab 3
at 9-10.
9

(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). Williams v. Department of Defense,
2023 MSPB 23, ¶ 8; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). Although the appellant failed to provide evidence of OSC exhaustion
below, 10 the issue of jurisdiction is always before the Board and evidence of
exhaustion may be considered for the first time on review. See, e.g., Schoenig v.
Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013); Atkinson v. Department of
State, 107 M.S.P.R. 136, ¶ 12 (2007). Thus, we will consider the evidence of
OSC exhaustion submitted for the first time on review.
¶16 The Board’s IRA jurisdiction is limited to those issues that have been
previously raised with OSC. Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 7. However, an appellant may give a more detailed account of
his whistleblowing activities before the Board than he did to OSC. Id. Here, the
appellant raised essentially the same allegations that he was terminated from his
position with LEAD because of his disclosures about water quality to OSC and
the Board. Thus, we find that he exhausted that matter with OSC.
¶17 As mentioned previously, the administrative judge provided the appellant
with general notice regarding the burdens of proof in his IRA appeal, but that
notice was inadequate under the facts of this case. W-2 AF, Tab 13. Specifically,
as discussed above, the appellant’s claims of whistleblowing involved disclosures
of purported wrongdoing by a non-Federal Government entity. The Board has
held that a disclosure of wrongdoing committed by a non-Federal Government
entity may be protected when the Government’s interests and good name are

10
In his petition for review, the appellant asserts that the administrative judge erred by
stating that a copy of the appellant’s OSC complaint was not in the record. PFR File,
Tab 1 at 17; ID at 2. To the extent that the appellant filed a copy of his OSC complaint
with the administrative judge, he did not clearly identify it as such and we discern no
error in the administrative judge’s statement.
10

implicated in the alleged wrongdoing, and the employee shows that he reasonably
believed that the information he disclosed evidenced that wrongdoing. Covington
v. Department of the Interior, 2023 MSPB 5, ¶ 16; Miller v. Department of
Homeland Security, 99 M.S.P.R. 175, ¶ 12 (2005). Because it was never
explained to him, the appellant may not have understood the possible validity of a
claim of whistleblower reprisal involving non-Federal Government wrongdoing.
Accordingly, on remand, the administrative judge shall provide the appellant with
specific notice regarding Board jurisdiction over a claim of reprisal for
whistleblowing when the disclosure involved alleged wrongdoing by a non-
Federal Government entity. If, after receiving such notice, the appellant does not
wish to pursue a whistleblower reprisal claim, he should inform the
administrative judge of his decision.

The appellant’s claim that the administrative judge was biased does not establish
a basis to disturb the initial decision.
¶18 In his petition for review, the appellant asserts, among other things, that the
administrative judge was biased against him as evidenced by the administrative
judge’s rulings and conduct during the proceedings below, his not treating the
appellant and his union representative with special consideration because they are
not attorneys, and his failure to sanction the agency for missing a status
conference. PFR File, Tab 1 at 18-22. A party claiming that an administrative
judge was biased must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Maloney v. Executive Office of the
President, 2022 MSPB 26, ¶ 38; Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course
of a Board proceeding warrants a new adjudication only if his 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)).
The Board will not infer bias based on an administrative judge’s case-related
11

rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013);
see Maloney, 2022 MSPB 26, ¶ 38. While the Board, in some circumstances, may
be more lenient toward pro se appellants, here, the appellant was represented
throughout the proceedings by a union representative and thus, contrary to the
appellant’s arguments, the administrative judge was not required to show leniency
in applying the Board’s procedures. 11 Thurman v. U.S. Postal Service, 2022
MSPB 21, ¶ 24. Finally, an administrative judge has broad discretion to control
the proceedings before him, including ruling on sanctions, and the Board will not
disturb an administrative judge’s determinations absent an abuse of discretion.
Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 9; El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 16 (2015) (finding no abuse of discretion when an
administrative judge denied an appellant’s motion of sanctions). We discern no
abuse of discretion here. 12 Thus, we are not persuaded by the appellant’s claims
that the administrative judge acted improperly.

11
To the extent the appellant asserts that he experienced difficulty in submitting large
attachments electronically during the proceedings below, PFR File, Tab 1 at 22-24, he
may submit the relevant evidence on remand consistent with the administrative judge’s
instructions and the Board’s regulations.
12
Regarding the appellant’s contentions that the administrative judge failed to address
certain motions, PFR File, Tab 1 at 21-22, the appellant has not shown how he was
harmed by any procedural error by the administrative judge, particularly because the
appeal is being remanded. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981) (stating that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive rights).
12

ORDER
¶19 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10563794. Public record. Not legal advice.