Opinion

Joseph Williams v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 8, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH H. WILLIAMS, DOCKET NUMBER

Appellant, AT-0752-21-0567-B-1

DEPARTMENT OF VETERANS DATE: April 8, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jerry Girley , Esquire, Orlando, Florida, for the appellant.

Andrew J. Patch , Esquire, Tampa, Florida, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the remand initial decision,

which sustained his removal. 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 interpretation of

statute or regulation or the erroneous application of the law to the facts of the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

clarify the standard for analyzing the penalty, we AFFIRM the initial decision.

The agency removed the appellant for 3 charges—inappropriate conduct,

failure to follow instructions, and absence without leave (AWOL). Williams v.

Department of Veterans Affairs, MSPB Docket No. AT-0752-21-0567-I-1, Initial

Appeal File (IAF), Tab 4 at 27-29. The administrative judge first assigned to the

appeal found that the agency violated the appellant’s due process rights and

reversed the removal. IAF, Tab 30, Initial Decision. On review, the Board

disagreed, finding that the agency afforded the appellant the necessary due

process and remanding for further adjudication. Williams v. Department of

Veterans Affairs, MSPB Docket No. AT-0752-21-0567-I-1, Remand Order (RO)

at 4-5 (Jan. 4, 2024).

During the remand proceedings, the agency abandoned its AWOL charge.

Williams v. Department of Veterans Affairs, MSPB Docket No. AT-0752-21-

0567-B-1, Remand File (RF), Tab 10 at 12 n.2, Tab 14 at 3. The newly assigned

administrative judge developed the record and sustained the appellant’s removal.

RF, Tab 24, Remand Initial Decision (RID). She found that the agency met its

burden regarding the remaining charges, nexus, and penalty, while the appellant

did not prove his claim of reprisal for engaging in protected equal employment

opportunity (EEO) activity. Id.

The appellant has filed a petition for review. Williams v. Department of

Veterans Affairs, MSPB Docket No. AT-0752-21-0567-B-1, Remand Petition for

Review (RPFR) File, Tab 1. The agency has filed a response. RPFR File, Tab 3.

In his petition, the appellant first argues that the administrative judge erred

in concluding that the agency proved its charges of inappropriate conduct and

failure to follow instructions. RPFR File, Tab 1 at 7-8. He also disagrees with

the administrative judge’s determination that the EEO reprisal claim was

unproven. Id. at 11-13. However, the appellant does not persuasively explain

why those findings are incorrect or otherwise establish error about these matters.

Id. The Board has held that when, as here, the administrative judge thoroughly

addressed the issues, the appellant’s mere disagreement with the initial decision

does not provide a basis for granting the petition for review. Yang v. U.S. Postal

Service, 115 M.S.P.R. 112, ¶ 12 (2010); see also Broughton v. Department of

Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to

disturb the administrative judge’s conclusions when the initial decision reflects

that the administrative judge considered the evidence as a whole, drew

appropriate inferences, and made reasoned conclusions on issues of credibility).

Next, the appellant has reasserted his allegation of a due process violation.

RPFR File, Tab 1 at 10-11. However, this is a matter that has already been

considered and decided. We previously found that the agency provided the

appellant with the necessary due process, and we discern no basis for revisiting

and revising that determination. RO at 4-5.

Unlike those already mentioned, the appellant presents a few other

arguments that require closer examination. Specifically, the appellant argues that

the agency did not prove its AWOL charge because his leave was authorized or

the denials of his leave requests were improper. RPFR File, Tab 1 at 8. He also

disputes the penalty determination, asserting that the deciding official knew very

little about the case. Id. at 8-10. Although we are not persuaded by the

particulars of the appellant’s arguments regarding these matters, they do highlight

our need to modify the remand initial decision.

Once again, the agency abandoned its AWOL charge during the

adjudication of this appeal. The administrative judge acknowledged as much and

did not consider the charge any further. RID at 2 n.1. However, within the

penalty analysis, the administrative stated that all of the agency’s charges were

sustained. RID at 16. She also provided and seemingly applied the analytical

framework for cases in which all, rather than some, of an agency’s charges are

sustained. Id. (citing Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 12

(2014)). We disagree with that characterization and standard, given the agency’s

abandonment of the AWOL charge.

When, as here, the Board does not sustain all the charges, it will carefully

consider whether the sustained charges merit the penalty imposed by the agency.

Moncada v. Executive Office of the President, 2022 MSPB 25, ¶ 39. The Board

may mitigate the penalty imposed by the agency to the maximum penalty that is

reasonable in light of the sustained charges as long as the agency has not

indicated in either its final decision or in proceedings before the Board that it

desires that a lesser penalty be imposed for fewer charges. Id. In assessing the

reasonableness of the penalty, the Board will consider such factors as the nature

and seriousness of the offense, the employee’s past disciplinary record, the

consistency of the penalty with the agency’s table of penalties, and the

consistency of the penalty with those imposed on others for similar offenses.

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).

We modify the remand initial decision to apply the aforementioned

standards and still find the penalty of removal reasonable, even when considering

just the inappropriate conduct and failure to follow instructions charges but not

the abandoned AWOL charge. As recognized by the administrative judge, the

deciding official testified that he would have removed the appellant for any of the

charges individually. RID at 16. The deciding official deemed the proven

misconduct quite serious. E.g., id. at 17; IAF, Tab 4 at 32. We agree. Most

notably among it, the proven misconduct included the appellant taking out his

work-related frustrations by repeatedly suggesting that he might hurt someone.

Plus, this was not his first instance of misconduct and discipline. Just months

earlier, the appellant engaged in misconduct that does not stray far from the

misconduct underlying his removal. E.g., IAF, Tab 4 at 32, 142-43. There were

just a few weeks between his suspension for that and the misconduct currently

before us. Id. at 39-40, 140. While the appellant may have performed

successfully since joining the agency in 2016, id. at 32, this and any other

mitigating factors are outweighed by those supporting his removal. We,

therefore, agree with the administrative judge’s decision to sustain the removal,

as modified.

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

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.

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.

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

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).

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.

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