Opinion

Brian Kirkbride v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 11, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 41.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRIAN KIRKBRIDE, DOCKET NUMBER

Appellant, AT-0752-22-0475-B-1

DEPARTMENT OF VETERANS DATE: June 11, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shane Robertson , Esquire, Dallas, Texas, for the appellant.

Dana Heck , Esquire, St. Petersburg, Florida, for the agency.

Teri Walker , Decatur, Georgia, 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 dismissed his appeal challenging the agency’s cancellation of his

promotion for lack of jurisdiction. For the reasons discussed below, we GRANT

the appellant’s petition for review, VACATE the remand initial decision, FIND

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

that the Board has jurisdiction over this appeal, and REVERSE the agency’s

cancellation of the appellant’s promotion based on due process grounds.

BACKGROUND

The appellant, who is a GS-11 Biomedical Equipment Support Specialist

(BESS) in the agency’s Facilities Management Service (FMS), was selected for a

GS-12 Lead Biomedical Equipment Support Specialist (Lead BESS) position at

the Orlando Veterans Affairs Healthcare System (VAHS). Kirkbride v.

Department of Veterans Affairs, MSPB Docket No. AT-0752-22-0475-I-1, Initial

Appeal File (IAF), Tab 9 at 102, 127-28. After receiving notification that he had

been selected, the appellant confirmed to the agency’s Human Resources (HR)

Specialist that he accepted the promotion and he received an official job offer

from the agency with an effective date of November 7, 2021. Id. at 127-28; IAF,

Tab 21 at 7-8, Tab 28-1, Hearing Recording Pt. 1 (HR-1) (testimony of the

appellant). However, because several unsuccessful applicants for the Lead BESS

position complained of unfair hiring practices, the Associate Medical Center

Director directed the FMS Chief “to delay the effect[ive] date of the [appellant’s]

promotion action” pending the outcome of a fact-finding investigation. IAF,

Tab 9 at 113, 116-17. Nonetheless, no one within the agency instructed the HR

Specialist to delay the action, and he processed the promotion, and the appellant

reported for duty as the Lead BESS on November 8, 2021. Id. at 97, 102; IAF,

Tab 28-2, Hearing Recording Pt. 2 (testimony of the HR Specialist).

Subsequently, on January 13, 2022, the Associate Medical Center Director

learned that the appellant had “received his promotion both in title and in pay”

and directed the FMS Chief to “ensure that the promotion is set aside” and to

inform the appellant that “the promotion was in error.” IAF, Tab 9 at 95-96. The

FMS Chief then issued the appellant a letter explaining that his promotion was

processed in error and must be cancelled and advising him that he owed a debt to

the agency for the overpayment of salary. Id. at 94. The HR Specialist

subsequently processed the cancellation of the appellant’s promotion on or about

January 24, 2022. Id. at 45; IAF, Tab 21 at 17-18.

The appellant filed a Board appeal challenging the agency’s cancellation of

his promotion and, after holding a hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction, finding that the

appellant did not prove that his promotion actually occurred or that he performed

in the position prior to the cancellation. IAF, Tab 30, Initial Decision at 10-14.

The appellant filed a petition for review, and on April 10, 2024, the Board issued

a remand order, finding that the appellant made a prima facie case of jurisdiction

because he proved that the promotion did actually occur and that he had

performed in the position for over 2 months prior to the cancellation. Kirkbride

v. Department of Veterans Affairs, MSPB Docket No. AT-0752-22-0475-I-1,

Remand Order, ¶ 16 (Apr. 10, 2024). The Board directed the administrative

judge to determine whether the agency met its burden of production to show that

the appellant’s promotion was contrary to law or regulation, and if it made such a

showing, to allow the appellant an opportunity to rebut the same. Id. After the

parties briefed these issues, the administrative judge issued a remand initial

decision dismissing the appeal for lack of jurisdiction, finding that the agency

established that the appellant’s promotion was an error contrary to law and that

the appellant failed to rebut the same. Kirkbride v. Department of Veterans

Affairs, MSPB Docket No. AT-0752-22-0475-B-1, Remand File, Tab 8, Remand

Initial Decision (RID) at 3-5.

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

arguing, among other things, that, pursuant to cases such as Simmons v.

Department of Housing and Urban Development, 120 M.S.P.R. 489 (2014), the

agency’s action is an appealable reduction in grade and pay because the alleged

error that caused the cancellation of the appellant’s promotion was not simply a

correction of a pay-setting error. Remand Petition for Review (RPFR) File, Tab 3

at 13-16. The agency has filed a response to the petition for review, and the

appellant has replied to the agency’s response. RPFR File, Tabs 5, 8.

DISCUSSION OF ARGUMENTS ON REVIEW

To establish Board jurisdiction over the cancellation of a promotion or

appointment, the appellant must show that (1) the promotion was approved by an

authorized official aware that he or she was making the promotion or

appointment; (2) the appellant took some action denoting acceptance of the

promotion or appointment; and (3) the promotion or appointment was not revoked

before the appellant performed in the position. Simmons, 120 M.S.P.R. 489, ¶ 4.

As established, the appellant demonstrated that the promotion actually occurred

and that he performed in the position for over 2 months prior to the agency’s

cancellation. Remand Order, ¶ 16. Further, it is undisputed that, by cancelling

the promotion, the appellant suffered a reduction in grade and pay. IAF, Tab 9

at 45.

The Board generally has jurisdiction to review an appeal of a reduction of

grade or pay. Simmons, 120 M.S.P.R. 489, ¶ 5. A reduction in grade or pay that

is to correct a classification error or pay setting error that is contrary to law or

regulation, however, is not appealable to the Board. Id.; 5 C.F.R.

§ 752.401(b)(15) (excluding from the list of appealable adverse actions under

chapter 75 “[r]eduction of an employee’s rate of basic pay from a rate that is

contrary to law or regulation”). Here, the administrative judge found that the

appellant’s promotion was in error because the appellant’s supervisor provided

him with resume assistance in violation of 5 U.S.C. § 2302(b)(6). RID at 3-4.

However, any error in this regard 2 does not divest the Board of jurisdiction over

The appellant also argues that the agency did not prove that his supervisor’s actions

violated 5 U.S.C. § 2302(b)(6) because his supervisor was not involved in the hiring

process, he provided only de minimis assistance to the appellant, and he did not intend

to provide the appellant with an advantage over any other candidate. RPFR File, Tab 3

at 17-24. Because we otherwise find that the Board has jurisdiction over this appeal,

we make no findings on the merits of the appellant’s argument.

this appeal. The agency selected the appellant for a position that was properly

graded as a GS-12 position, and the appellant performed GS-12 level work. IAF,

Tab 9 at 102, 131-43; HR-1 (testimony of the appellant); IAF, Tab 28-4, Hearing

Recording Pt. 4 (testimony of the appellant’s first-line supervisor). Any error in

promoting the appellant was in the hiring process, and the agency’s action to

correct such error by retroactively cancelling the appellant’s promotion and

placing him in a GS-11 position is an appealable reduction in grade and pay. This

conclusion is consistent with the Board’s holding in Simmons, finding that an

employee suffered an appealable adverse action when the agency determined that

it improperly used a noncompetitive hiring process to promote the employee and

demoted her to her previous grade after she had been performing in the higher-

graded position for months. Simmons, 120 M.S.P.R. 489, ¶¶ 2, 5. The Board

found that the agency’s action in Simmons was not simply the correction of an

employee’s rate of pay within the meaning of 5 C.F.R. § 752.401(b)(15) but

involved an error in the hiring process. Simmons, 120 M.S.P.R. 489, ¶ 5.

Accordingly, we find that the Board has jurisdiction over this appeal.

Before taking an appealable action that deprives a tenured Federal

employee of his property right in his employment, an agency must provide him

with minimum due process of law. Cleveland Board of Education v. Loudermill,

470 U.S. 532, 543-46 (1985). The essential requirements of due process are

notice and an opportunity to respond. Id. at 546; see 5 U.S.C. § 7513(b). It is

undisputed that the agency did not afford the appellant notice of the proposed

action or an opportunity to respond. IAF, Tab 9 at 45, 94. A due process

violation entitles an employee to a new and constitutionally correct proceeding,

and the agency may not demote the appellant unless and until he is afforded such

a proceeding. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011);

Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 13 (2011). Accordingly,

we reverse the agency’s action.

ORDER

We ORDER the agency to restore the appellant to the Lead Biomedical

Equipment Support Specialist position, GS-1601-12, effective November 7, 2021.

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, as appropriate, 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 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

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.

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:

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. 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).

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