The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LYNN R. RIOS, DOCKET NUMBER
Appellant, NY-1221-10-0261-B-1
v.
DEPARTMENT OF COMMERCE, DATE: December 8, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1*
Rosemary Dettling, Esquire, Washington, DC, for the appellant.
Lindsay Young, Esquire, and Monique Cioffalo, Silver Spring, Maryland,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
granted his request for corrective action in this individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review and AFFIRM the initial decision AS MODIFIED. Except for the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
modifications explicitly set forth in the “Order” section of this Final Order, the
initial decision is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant is a Criminal Investigator (Special Agent) in pay band III
with the National Marine Fisheries Service Office of Law Enforcement (OLE) in
Puerto Rico, which is part of the Southeast Division. He filed an IRA appeal in
which he contended that the agency gave him a lower performance rating for
rating year 2009 and did not support or forward his application for a
noncompetitive promotion to pay band IV in December 2009 in retaliation for
protected disclosures he made to the Department of Justice (DOJ) and others
concerning a coworker, Special Agent (SA) H. Rios v. Department of Commerce,
MSPB Docket No. NY-1221-10-0261-W-1 (W-1 File), Initial Appeal File (IAF),
Tab 1 at 5-6. The administrative judge found that the appellant failed to show that
his disclosures were protected. Rios v. Department of Commerce, MSPB Docket
No. NY-1221-10-0261-W-2 (W-2 File), Initial Decision (July 17, 2012). On
review, the Board issued a Remand Order in which it found that the appellant
showed by preponderant evidence that he made protected disclosures that were a
contributing factor in a personnel action. Rios v. Department of Commerce,
MSPB Docket No. NY-1221-10-0261-W-2, Remand Order at 6-7 (June 14, 2013).
The Board remanded the appeal for the administrative judge to determine whether
the agency had shown by clear and convincing evidence that it would have taken
the same actions in the absence of any protected disclosures. Remand Order at
7-8. The administrative judge thereafter issued a remand initial decision in which
she found that the agency failed to prove by clear and convincing evidence that it
would have taken the same actions absent the appellant’s protected activity. Rios
v. Department of Commerce, MSPB Docket No. NY-1221-10-0261-B-1 (B-1
File), Remand Initial Decision (RID) at 14-17. She ordered the agency to
reevaluate and recompute the appellant’s 2009 rating and award the appellant any
pay adjustments that would have occurred as a result of the adjustments. RID
at 17. She further ordered the agency to reevaluate his 2009 promotion
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application and determine whether he would have been promoted to pay band IV
at that time. RID at 17. The appellant has filed a petition for review in which he
contends that the remedy that the administrative judge ordered is inadequate and
that he is entitled to a higher rating and a retroactive promotion. B-1 File,
Petition for Review (PFR) File, Tab 1. The agency responds in opposition to the
petition for review. PFR File, Tab 3.
¶3 The Whistleblower Protection Act of 1989, as amended, requires that the
Board order corrective action where the Board finds that the personnel action
would not have been taken absent the protected whistleblowing activity. See
5 U.S.C. § 1221(e)(2); Morgan v. Department of Energy, 81 M.S.P.R. 48, ¶ 14
(1999). If the Board orders corrective action, such corrective action may include
that the individual be placed, as nearly as possible, in the position the individual
would have been in had the prohibited personnel action not occurred, see 5 U.S.C.
§ 1221(g)(1)(A)(i), i.e., in the status quo ante, see Armstrong v. Department of
Justice, 107 M.S.P.R. 375, ¶ 34 (2007).
¶4 In cases such as this where the underlying personnel action is a performance
appraisal, it can be difficult to determine what an appellant’s performance rating
would have been had the agency not considered impermissible factors. Here,
however, the difference between the appellant’s 2009 rating and his 2008 rating is
5 points in a single critical element, “Investigations.” W-1 File, IAF, Tab 12 at
30, Tab 18, Subtab 4V at 9. The agency attributed the difference to the
appellant’s poor communication with SA H, his conduct of the investigation
involving H, and his failure to give his supervisors an opportunity to review his
report before he sent it to DOJ. W-2 File, IAF, Tab 13 at 11 of 53. We find, as
did the administrative judge, that the decision to lower the appellant’s
performance rating relative to the prior year was based primarily on reasons that
should not have been considered. See RID at 14. The agency presented no
evidence of any other performance issues that were not improperly considered
that would account for the difference in the “Investigations” score between
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performance years 2008 and 2009. Under the circumstances, it is appropriate to
order the agency to raise the appellant’s performance rating to the same score he
received in the previous year, and award him a pay adjustment consistent with
what other Special Agents in pay band III with similar scores received. See
Ingram v. Department of the Army, 116 M.S.P.R. 525, ¶¶ 18-19 (2011) (where the
agency proffered no satisfactory nonretaliatory explanation to justify the
appellant’s performance rating, he was entitled to a revised rating consistent with
his rating from the prior year).
¶5 It is not clear whether the appellant would have been promoted but for his
protected whistleblowing. See Morgan, 81 M.S.P.R. 48, ¶ 14. The promotion
was noncompetitive and his application never received fair consideration. Even
absent consideration of the appellant’s whistleblowing, the agency may or may
not have promoted the appellant after an honest assessment of his skills and
abilities, particularly his ability to manage the most complex criminal
investigations. See W-2 File, IAF, Tab 13 at 7 of 39. Therefore, we do not agree
that the appellant is entitled to a promotion at this point and agree with the
administrative judge that the proper remedy in this case is for the agency to give
the appellant’s application for promotion fair and objective review based on merit
factors and not on prohibited factors, and to award the appellant a retroactive
promotion with back pay if the record shows that the agency would have
promoted the appellant absent his whistleblowing. 2
¶6 The appellant naturally has concerns as to whether his application can
receive objective consideration at the agency, and he asserts that the
administrative judge’s order places his application for promotion in front of the
same agency managers who retaliated against him in the first place. PFR File,
2
In so concluding, we note that the appellant stated in his initial appeal form that he is
“seeking that [his] GS-13 package . . . be reevaluated by an objective panel to
determine if [he] qualif[ies] for the promotion, any interest and back pay [he] would be
entitled . . . from the time [he]should have been promoted until [the] present.” W-1
File, IAF, Tab 1 at 6.
5
Tab 1 at 8-10. We acknowledge the appellant’s concerns and note that the
first- and second-level supervisors who retaliated against the appellant are now
his second- and third-level supervisors. Indeed, the appellant’s former
second-level supervisor is now the Special Agent in Charge of the Southeast
Division and every employee of the Southeast Division ultimately is under his
supervision and managerial control. While it is not appropriate to interfere in the
agency’s substantive decision concerning the appellant’s qualifications, we find
that it is appropriate to afford the appellant as nearly as practicable the same
review process applicable to other candidates, see W-2 File, IAF, Tab 13 at 7-21,
but with limitations as to who may participate in the review process in order to
minimize the intentional or unintentional introduction of bias into the process.
ORDER
¶7 We ORDER the agency to modify the appellant’s 2009 performance rating
such that he receives the same rating as he did for performance year 2008. See
Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The
agency shall then award the appellant a retroactive pay increase consistent with
the pay increase that other Special Agents in pay band III with similar rating
scores received in 2009, along with any other pay increases after 2009 that would
have been affected by the 2009 pay increase.
¶8 We also ORDER the agency to convene a National Review Panel of seven
members, consistent with OLE National Directive No. 165, Special Agents
Promotions from ZA-III to ZA-IV, and review the appellant’s application for
promotion to pay band IV on its merits, without consideration of any improper
factors. The agency shall follow the process set forth in OLE National Directive
No. 165 subject to the following modifications. We ORDER that no one with any
direct knowledge of this case, no one in the appellant’s chain of command from
April 2009 through the date of this Order, and no current employee of the
Southeast Division shall participate in any way in the consideration of the
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appellant’s application, with the exception of the current OLE Director. If the
agency determines that the appellant meets the criteria for promotion, it shall
promote him retroactive to the date on which the other successful candidates for
promotion in December 2009 were promoted. In any event, the agency shall
make a written report of the panel’s findings as to whether the appellant meets the
criteria for promotion.
¶9 The agency must complete these actions no later than 20 days after the date
of this decision.
¶10 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, if 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.
¶11 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
took 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).
¶12 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).
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¶13 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 out 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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
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must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will then be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8).
5 U.S.C. § 1221(f)(3).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
9
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
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neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.