The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER
Appellant, DC-1221-14-1070-W-2
DC-0432-14-0064-I-4
v.
SECURITIES AND EXCHANGE
COMMISSION, DATE: March 9, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.
Daniel L. Garry, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER
¶1 These appeals are before the Board based on the administrative judge’s
October 16, 2015 order certifying an interlocutory appeal of her ruling that the
appellant had not demonstrated a due process violation. MSPB Docket
No. DC-1221-14-1070-W-2, Appeal File (W-2 AF), Tab 38. For the reasons
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
discussed below, we DISMISS the interlocutory appeal and RETURN the appeals
to the administrative judge for further adjudication.
¶2 The appellant filed an appeal of the agency’s action separating her from
Federal employment based on two charges of misconduct brought under
chapter 75 and unacceptable performance brought under chapter 43. MSPB
Docket No. DC-0432-14-0064-I-1, Initial Appeal File (I-1 IAF), Tab 1. The
appellant also filed an individual right of action (IRA) appeal asserting reprisal
for whistleblowing. MSPB Docket No. DC-1221-14-1070-W-1, Initial Appeal
File (W-1 IAF), Tab 1. The administrative judge joined the appeals for
adjudication in a September 19, 2014 order. W-1 IAF, Tab 3.
¶3 The appellant argued below that the agency violated her due process rights
when the agency deciding official considered matters not set forth in the proposal
notice and that, therefore, the removal action should be summarily reversed.
W-2 AF, Tab 15. The agency contested the appellant’s arguments. W-2 AF,
Tabs 16, 20. In an August 20, 2015 procedural order, the administrative judge
found that additional proceedings were necessary to determine whether a due
process violation occurred regarding the chapter 75 action and that the due
process arguments were not applicable to the chapter 43 action. W-2 AF, Tab 31
at 6-9.
¶4 The appellant moved that the administrative judge certify her two rulings as
an interlocutory appeal, and the agency opposed that motion. W-2 AF, Tabs
34-36. The administrative judge granted the appellant’s request in an October 16,
2015 order. W-2 AF, Tab 38. We agree with the administrative judge’s
description of the issues presented by her certification as follows: (1) Did a due
process violation justifying summary reversal result when the agency referenced a
potentially aggravating factor in the Douglas Factors Review Form that was not
contained in the proposal notice or is additional evidence required to determine
what, if any, weight the deciding official placed on the issues raised in the
worksheet?; (2) If a due process violation is ultimately found in regard to the
3
Douglas factors in the chapter 75 action, is it applicable to the chapter 43 action
because of the reference to both actions on the Douglas Factors Review Form?
Id. at 6.
¶5 The Board’s regulation provides that an administrative judge will certify a
ruling for interlocutory review if “[t]he ruling involves an important question of
law or policy about which there is substantial ground for difference of opinion,”
and “[a]n immediate ruling will materially advance the completion of the
proceeding, or the denial of an immediate ruling will cause undue harm to a party
or the public.” 5 C.F.R. § 1201.92.
¶6 After careful consideration, we find that an immediate ruling will not
materially advance the adjudication of these appeals, and thus we dismiss the
interlocutory appeal and return this matter to the administrative judge for further
adjudication. 2
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
2
The administrative judge’s order certifying the interlocutory appeal did not stay the
processing of the appeal; thus there is no need for the Board to vacate the stay order.
See 5 C.F.R. § 1201.93(c) (stating that the administrative judge has the discretion to
stay the processing of an appeal while an interlocutory appeal is pending). The parties
are reminded that, because the Board has not ruled on the substance of the issues
presented by the administrative judge’s certified ruling, they may raise the issues in a
petition for review of the administrative judge’s initial decision.