Opinion

Kory Karingten v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: May 13, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KORY KARINGTEN, DOCKET NUMBER

Appellant, AT-0752-24-0107-I-1

DEPARTMENT OF VETERANS DATE: May 13, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Amanda L. E. Smith , Esquire, Buffalo, New York, for the appellant.

Luis Ortiz Cruz , Esquire, Orlando, Florida, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed the appellant’s chapter 75 removal after finding that the agency violated

her due process rights. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

find that the appeal is timely, we AFFIRM the initial decision.

BACKGROUND

Effective August 11, 2017, the agency removed the appellant from her

position as a GS-1712-09 Training Specialist. Croft v. Department of Veterans

Affairs, 2 MSPB Docket No. AT-0752-17-0703-I-2, Appeal File (0703 AF), Tab 12

at 1. The appellant filed an appeal with the Board, and on July 27, 2018, the

administrative judge issued an initial decision reversing the removal action. Id.

The administrative judge’s interim relief order reinstated the appellant to her

previous position pending the outcome of the agency’s petition for review to the

Board. Id. at 12-14.

In January 2021, while the agency’s petition for review was pending before

the Board, the agency competitively selected the appellant for promotion to the

position of GS-0301-11 Program Specialist. Karingten v. Department of Veterans

Affairs, MSPB Docket No. AT-0752-24-0107-I-1, Initial Appeal File (0107 IAF),

Tab 1 at 16.

The appellant has legally changed her name from Sarafina Croft to Kory Karingten.

Karingten v. Department of Veterans Affairs, MSPB Docket No. AT-0752-24-0107-I-1,

Initial Appeal File (0107 IAF), Tab 4 at 68.

On August 24, 2023, while the appellant was serving in the Program

Specialist position, the Board issued a Final Order reversing the administrative

judge’s July 2018 initial decision and upholding the agency’s 2017 removal

action. Croft v. Department of Veterans Affairs, MSPB Docket No. AT-0752-17-

0703-I-2, Final Order (Aug. 24, 2023).

On August 30, 2023, the agency issued a letter to the appellant entitled

“Decision on Removal Proposed Under the Authority of 5 U.S.C. Ch. 75,” which

noted the appellant’s 2017 removal and the Board’s August 2023 decision

affirming that removal and stated that, pursuant to that decision, the agency was

“hereby providing [her] notice of [her] immediate termination from federal

service.” 0107 IAF, Tab 1 at 17. The appellant filed the instant Board appeal on

November 10, 2023, challenging this second removal action. Id. at 1.

In an initial decision dated January 30, 2024, the administrative judge

reversed the agency’s 2023 removal action. 0107 IAF, Tab 11, Initial Decision

(ID) at 1. The administrative judge concluded that the Board had jurisdiction

over the appeal, ID at 3; that, although the appellant filed her appeal beyond the

regulatory filing period, good cause existed to waive the time limit for filing the

appeal, ID at 3-4; and that the agency had violated the appellant’s right to due

process—including prior notice and an opportunity to respond—in effecting the

2023 removal, ID at 4-6. Specifically, the administrative judge found that the

agency’s August 30, 2023 letter “summarily” announced the appellant’s removal

from Federal service “without citing any misconduct or unacceptable performance

in the position from which she was being removed [the GS-0301-11 Program

Specialist position and not the GS-1712-09 Training Specialist position], and

without affording her an opportunity to respond.” ID at 5. In response to the

agency’s argument that the appellant’s promotion occurred during the interim

relief period and that the interim relief period ended the day the Board issued its

August 2023 decision sustaining the agency’s 2017 removal action, the

administrative judge explained that he found that the agency “effectively ended”

the interim relief ordered in the 2018 initial decision when it promoted the

appellant “to a position different from the one for which interim relief was

ordered.” ID at 6-7. The administrative judge ordered the agency to cancel the

removal and retroactively restore the appellant to the Program Specialist position

effective September 1, 2023. ID at 6.

The agency has filed a petition for review, Karingten v. Department of

Veterans Affairs, MSPB Docket No. AT-0752-24-0107-I-1, Petition for Review

(PFR) File, Tab 1, and the appellant has filed a response, PFR File, Tab 3.

ANALYSIS

We modify the initial decision to find that the appeal is timely.

On review, the agency briefly challenges the administrative judge’s

timeliness determination. PFR File, Tab 1 at 12. As noted above, the appellant

filed her appeal of the agency’s 2023 removal action on November 10, 2023.

0107 IAF, Tab 1. In the initial decision, the administrative judge found that the

appellant “clearly filed her appeal well beyond the regulatory filing period.” ID

at 3 (citing 5 C.F.R. § 1201.22 (stating that an appeal must be filed no later than

30 days after the effective date, if any, of the action being appealed, or 30 days

after the date of the appellant’s receipt of the agency’s decision, whichever is

later)). Nevertheless, the administrative judge found that the appellant showed

good cause to waive the time limit for filing the appeal because the agency failed

to advise her of any review rights she might have. ID at 4.

We modify the initial decision to find that, contrary to the administrative

judge’s conclusion, the appeal is timely. The appellant indicated below that she

received the agency’s removal decision on its effective date, September 1, 2023. 3

The record is somewhat unclear as to the effective date of the agency’s action and the

date of the appellant’s receipt of the agency’s decision. The removal decision, dated

August 30, 2023, indicates that the removal was effective immediately, while the

appellant’s Standard Form (SF) 50 notes the effective date as September 2, 2023.

0107 IAF, Tab 1 at 17, Tab 4 at 47. Additionally, the appellant notes on her initial

appeal form that she received the agency’s decision letter on September 1, 2023, but

0107 IAF, Tab 1 at 8. Therefore, her appeal was ostensibly due Monday,

October 2, 2023. See 5 C.F.R. §§ 1201.22-.23. However, as the appellant

correctly points out in her petition for review response, the Board issued a

number of blanket filing extensions during this period due to the launch of the

Board’s new e-Appeal system. See PFR File, Tab 3 at 7-8, 16-17. Specifically,

any filing deadline that fell during the transition period between September 9,

2023, and October 6, 2023, was automatically extended by 42 days. See PFR

File, Tab 3 at 16. Taking this into consideration, the appellant had until

November 13, 2023 to file her appeal. 4 Thus, her appeal is timely.

We agree with the administrative judge that the agency violated the appellant’s

due process rights in effecting her removal from the Program Specialist position.

On review, the agency contends that the administrative judge legally erred

in finding that its decision to promote the appellant to a new position in early

2021 ended the interim relief ordered in the administrative judge’s 2018 initial

decision. PFR File, Tab 1 at 10-11. The agency asserts that the administrative

judge’s conclusion is contrary to the administrative judge’s 2018 interim relief

order, that it was required to enforce the Board’s Final Order sustaining the

appellant’s removal regardless of her current position, and that, because the

appellant’s 2021 promotion occurred during the interim relief period, her

promotion would not have happened “but for” the interim relief and so, “when the

Board found the [a]ppellant’s removal appropriate, it negated any basis to

continue with that interim relief.” Id. at 11. Similarly, the agency also argues

that the administrative judge erred in finding that the agency violated the

also states she received it on September 2, 2023. 0107 IAF, Tab 1 at 8, 18. Regardless,

our determination as to the timeliness of the appeal is not affected by either

discrepancy.

While the appellant argues on review that the Board extended this deadline by an

additional 10 calendar days, PFR File, Tab 3 at 8, the Board’s additional 10-day

extension applied only to deadlines falling from October 21 to October 30, 2023, and

thus did not apply to her filing deadline, id. at 17. In any event, her appeal was timely

filed.

appellant’s due process rights because it was enforcing the Board’s final order,

and because the agency had informed the appellant of her due process rights when

she was originally removed in 2017. Id. at 11-12.

We are not persuaded by the agency’s assertions. The U.S. Supreme Court

held in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), that

the government’s failure to provide a tenured public employee with an

opportunity to present a response, either in person or in writing, to an action that

deprives her of her property right in her employment constitutes an abridgement

of her constitutional right to due process of law. The right to minimum due

process is “absolute” and does not depend on the merits of the claim. Carey v.

Piphus, 435 U.S. 247, 266 (1978). Here, the administrative judge reasonably

found that the agency “effectively ended” the interim relief ordered in the

2018 initial decision when it competitively promoted the appellant to an entirely

new job series and position as a GS-0301-11 Program Specialist, and we agree

that the agency violated the appellant’s due process rights by immediately

removing her from that position without any claim of unacceptable performance

or misconduct, much less notice and an opportunity to respond. ID at 4-6.

Although the agency contends that the administrative judge’s finding that

the agency effectively ended the interim relief period when it promoted the

appellant to the Program Specialist position is contradictory to the 2018 interim

relief order and “violates” 5 U.S.C. § 7701(b)(2)(A), which generally provides for

interim relief, it provides no further explanation or support for its assertions.

PFR File, Tab 1 at 11; see also Clay v. Department of the Army, 123 M.S.P.R.

245, ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings

when she considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions); Riggsbee v. Office of Personnel Management,

111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an appellant’s mere disagreement

with the administrative judge’s explained factual findings and legal conclusions

therefrom does not provide a basis to disturb the initial decision). And we

disagree. The 2018 interim relief order simply directed the agency to “effect the

appellant’s appointment to the position of Training Specialist, GS-1712-0[9]” and

for the appellant to “receive the pay and benefits of this position while any

petition for review [wa]s pending.” 0703 AF, Tab 12 at 13. Nothing in the

administrative judge’s initial decision is inherently contradictory to the earlier

interim relief order or the regulations regarding interim relief.

What is inconsistent is the agency competitively selecting the appellant for

an entirely new position while her removal appeal was still pending before the

Board, instead of just continuing to have the appellant work in the GS-1712-09

Training Specialist position per the interim relief order. Although the agency

contends that “without the interim relief there is no job and no promotion,” it

provides no evidence or argument that the Program Specialist position was only

open to current members of the Federal service. PFR File, Tab 1 at 11. The

agency did not have to select the appellant. It is also true that without the agency

promoting the appellant to a new position there is likely no issue over whether the

agency properly removed her. The confusion here is entirely of the agency’s own

making.

Additionally, the agency’s claim that it did not need to provide the

appellant with due process when it terminated her in 2023 because it had

informed her of her due process rights when she was originally terminated in

2017 is not convincing. PFR File, Tab 1 at 11-12. The agency provides no

support for such a claim that providing notice of a proposed removal from one

position is effective due process for a subsequent, instantaneous removal from an

entirely different position. See Wickramasekera v. Veterans Administration,

21 M.S.P.R. 707, 714 (1984) (declining to disturb a finding on the basis of an

undeveloped and unsupported argument). In 2017, the appellant was a

GS-1712-09 Training Specialist and the agency removed her based on a charge of

disruptive behavior. 0703 AF, Tab 12 at 1. In 2023, the appellant was a

GS-0301-11 Program Specialist and, as the administrative judge pointed out, had

been performing in this position for almost 3 years and faced no charge of any

misconduct or unacceptable performance in this position. ID at 5. In its petition

for review, the agency acknowledges that the instant appeal concerns the

appellant’s removal from the Program Specialist position, not the Training

Specialist position. PFR File, Tab 1 at 9. Based on the record, the administrative

judge reasonably concluded that the agency promoting the appellant to a new

position ended the interim relief period and that the agency failed to provide her

minimum due process in removing her from the Program Specialist position in

2023. See Clay, 123 M.S.P.R. 245, ¶ 6.

ORDER

We ORDER the agency to cancel the removal and restore the appellant

effective September 1, 2023. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

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.

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).

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.

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. 6 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