Opinion

James Talton v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 10, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

observing that Congress expressly provided for the Board’s retroactive jurisdiction over claims brought under USERRA, but did not do so for veterans’ preference claims under the Veterans Employment Opportunities Act of 1998 of the change of the law”; (2

How later courts described this case

observing that Congress expressly provided for the Board’s retroactive jurisdiction over claims brought under USERRA, but did not do so for veterans’ preference claims under the Veterans Employment Opportunities Act of 1998 of the change of the law”; (2
holding that section 502 of the Trade Preferences Extension Act of 2015, Pub. L. No. 114-27, 129 Stat. 362, 383-84, did not apply retroactively when Congress expressly provided that other provisions of the Act had retroactive effect
holding that, if legislation includes a provision that expressly applies to cases pending on the date of enactment and another provision that does not, the statute “indicat[es] implicitly” that the latter applies only to cases filed after the date of enactment

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES R. TALTON, DOCKET NUMBER

Appellant, AT-0707-15-0094-J-1

DEPARTMENT OF VETERANS DATE: February 10, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James R. Talton, Montgomery, Alabama, pro se.

Gia M. Chemsian, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the administrative judge’s

decision, which sustained his removal from the Senior Executive Service (SES) in

the Department of Veterans Affairs (DVA or agency). Generally, we grant

petitions such as this one only in the following circumstances: the decision 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

administrative judge contains erroneous findings of material fact; the decision of

the administrative judge is based on an erroneous interpretation of statute 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 his or her

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 DEEM the appellant’s petition to be timely filed, DENY the

petition, and AFFIRM the decision of the administrative judge.

BACKGROUND

¶2 Section 707 of the Veterans Access, Choice, and Accountability Act of

2014 (2014 Act), Pub. L. No. 113-146, 128 Stat. 1754, set forth new procedures

for the removal or transfer of DVA SES employees. Section 707, 128 Stat.

at 1798-1801. Under these new procedures, an SES employee could be removed

or, in some cases, transferred to the General Service, without regard to the

procedural rights provided to SES employees in 5 U.S.C. § 7543(b). 2014 Act

§ 707. The 2014 Act also provided that, if the SES employee challenged the

action before the Board, the administrative judge’s decision would be final and

not subject to any further right of appeal. Id.

¶3 On October 3, 2014, Deputy Secretary Sloan Gibson proposed the

appellant’s removal from his position as the Director of the Central Alabama

Veterans Healthcare System (CAVHCS), an SES position, pursuant to the

procedures set forth in section 707 of the 2014 Act. Initial Appeal File (IAF),

Tab 1 at 6-8. The proposal charged the appellant with two specifications of

neglect of duty and two specifications of failing to provide appropriate

information to his supervisor. Id. at 6-7. Specifically, in the first charge, neglect

of duty, the agency asserted that the appellant failed to exercise proper oversight

to ensure timely and appropriate action was taken against the following two

employees: (1) an employee who transported a veteran to a place known for

illegal use and distribution of drugs and who engaged in inappropriate financial

transactions with patients; and (2) another employee who was involved in an

accident while misusing a Government vehicle and misled police about the

circumstances of his accident. Id. at 6. In the second charge, the agency asserted

that the appellant failed to provide appropriate information to his supervisor

because (1) he did not notify his supervisor about the employee that had

transported the veteran to the place known for illegal drug use, and (2) on

August 20, 2014, he issued a brief stating that the allegation against the employee

was unsubstantiated, while previously reporting to agency investigators that he

believed that the case against the employee was “ironclad.” Id. at 6-7. After

considering the appellant’s written reply, the Deputy Secretary sustained the

charges and their underlying specifications and imposed the removal, effective

October 24, 2014. Id. at 9-11.

¶4 The appellant filed the instant appeal challenging his removal and did not

request a hearing. IAF, Tab 1. On November 19, 2014, the administrative judge

issued a decision sustaining the agency’s action. IAF, Tab 31, Administrative

Judge Decision (AJD). He sustained all of the charges and underlying

specifications and found that the appellant did not prove his affirmative defenses.

AJD at 10-26. The administrative judge also found, based upon the Board’s

limited ability to review the penalty determination, that the penalty was not

unreasonable. AJD at 26-32.

¶5 Five days later, on November 24, 2014, Ms. Sharon M. Helman also was

removed pursuant to the 2014 Act and, on December 22, 2014, an administrative

judge issued a decision sustaining her removal. Helman v. Department of

Veterans Affairs, MSPB Docket No. DE-0707-15-0091-J-1, Decision (Dec. 22,

2014). On January 22, 2015, Ms. Helman filed a motion for an extension of time

to file a petition for review, but the Clerk of the Board issued a letter on

January 26, 2015, informing her that she did not have the right to file her petition.

Helman v. Department of Veterans Affairs, MSPB Docket No. DE-0707-15-0091-

J-1, Initial Appeal File, Tabs 77-79.

¶6 Ms. Helman then filed a petition for review with the U.S. Court of Appeals

for the Federal Circuit, which was docketed on February 23, 2015. Helman v.

Department of Veterans Affairs, MSPB Docket No. DE-0707-15-0091-L-1,

Appeal File, Tab 1. On May 9, 2017, the Federal Circuit issued its decision in

Helman v. Department of Veterans Affairs, 856 F.3d 920 (Fed. Cir. 2017). The

court concluded that the provisions of the 2014 Act that prohibited further review

of the decisions of administrative judges violated the Appointments Clause by

improperly delegating the authority to issue a final decision to the administrative

judges, who, it was undisputed, were hired as employees rather than officers of

the United States. Id. at 929-30 (citing U.S. Const. art. 2, § 2, cl. 2). The court

stated that rendering such decisions was a significant duty that should only be

performed by a properly appointed officer of the United States. Id. Nevertheless,

the court found that the remaining provisions of the statute were severable from

the unconstitutional provisions, and thus, the court left these provisions

unchanged. Id. at 935-36. The court remanded the matter to the Board for review

of the administrative judge’s decision, consistent with the remaining provisions of

the 2014 Act. Id. at 938.

¶7 On June 8, 2017, 30 days after the Federal Circuit issued its decision in

Helman, the appellant filed a petition for review of the administrative judge’s

decision. Petition for Review (PFR) File, Tab 1. Subsequently, on June 23,

2017, the Department of Veterans Affairs Accountability and Whistleblower

Protection Act of 2017 (2017 Act), Pub. L. No. 115-41, 131 Stat. 862, was

enacted. Section 201 of the 2017 Act amended the 2014 Act and established a

new grievance procedure that removed the Board’s jurisdiction. Section 201,

131 Stat. at 868-69 (codified at 38 U.S.C. § 713). Under the new procedures, an

SES employee could instead obtain only limited judicial review of the agency’s

final decision. Id.

¶8 On June 26, 2017, the appellant filed a motion to waive the time limit for

filing his petition. PFR File, Tab 3. The agency responded on July 7, 2017. PFR

File, Tab 4. The appellant replied on July 25, 2017. PFR File, Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

We deem the appellant to have filed a timely petition for review.

¶9 Ordinarily, a petition for review may only be filed within 35 days after the

date of issuance of the administrative judge’s decision or, if the appellant shows

that the decision was received more than 5 days after the date of issuance, within

30 days after the date he received the decision. 5 C.F.R. § 1201.114(e).

However, considering the unique circumstances of this case, we grant the

appellant’s motion to waive the time limit and deem that he has filed a timely

petition for review.

¶10 According to the agency, we should not consider the appellant’s petition for

review because, unlike Ms. Helman, he failed to preserve his rights by filing an

additional pleading with the Board or appealing to the Federal Circuit. PFR File,

Tab 4 at 11-12. The agency also challenges the timeliness of the petition because

approximately 2 1/2 years passed between the administrative judge’s decision and

the filing date. Id. at 10-11. However, as the statute in effect when the decision

was issued did not provide for Board review or a court appeal, the appellant

would have had no reason to preserve his rights through either of these methods.

Therefore, we do not fault him in this respect. Further, although we agree that an

extended period has elapsed between the issuance of the decision and the

appellant’s petition, the appellant acted diligently by filing his petition within

30 days after the Federal Circuit issued Helman and indicated to him that he may

have the right to file a petition for review. Because the appellant would have had

no reason to know that he could file a petition and he acted diligently when he

was informed that he may have such a right, we deem his petition to have been

timely filed.

The provisions of the 2017 Act that remove Board jurisdiction are not retroactive.

¶11 The agency asserts that the Board no longer has the authority to review the

administrative judge’s decision because the 2017 Act removed that authority.

PFR File, Tab 4 at 12. Specifically, the agency argues that the Board should give

retroactive effect to the provisions of the 2017 Act that removed the Board’s

jurisdiction over appeals of adverse actions against DVA SES employees and

transferred jurisdiction to a new internal grievance process with appeal rights

directly to Federal court. Id. (citing 38 U.S.C. § 713). We disagree.

¶12 As the U.S. Supreme Court has stated, “[r]etroactivity is not favored in the

law” and, therefore, “congressional enactments and administrative rules will not

be construed to have retroactive effect unless their language requires this result.”

Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988); see

Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994); see also Hicks v. Merit

Systems Protection Board, 819 F.3d 1318, 1321 (Fed. Cir. 2016). Accordingly, a

statute or administrative rule will not be construed as retroactive unless there is

clear evidence that Congress intended as such. Bowen, 488 U.S. at 208; see

Landgraf, 511 U.S. at 265; see also Hicks, 819 F.3d at 1321.

¶13 The Board will apply the analytical approach set forth in Landgraf in

determining whether a new statute or portion of a statute should be given

retroactive effect. King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 8

(2013) (citing Landgraf, 511 U.S. at 280). 2 Under Landgraf, when a case

The Federal Circuit adopted a three-part test to examine the issue of whether a change

in the law would have an impermissible effect if applied retroactively under Landgraf.

See Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1362-63 (Fed. Cir. 2005).

Under that test, the court will consider the following factors: (1) “the nature and extent

implicates a Federal statute enacted after the events at issue, we must first

determine whether Congress expressly prescribed in the statute that the provision

at issue should be applied retroactively. 511 U.S. at 280. If the statute expressly

states that the provision is retroactive, then our inquiry ends there. Id. If the

statute does not expressly state that the provision is retroactive, then we must

determine whether the statute’s retroactive application “would impair rights a

party possessed when he acted, increase a party’s liability for past conduct, or

impose new duties with respect to transactions already completed.” Id. If so, the

statute does not govern retroactively, absent clear congressional intent indicating

otherwise. Id.

¶14 We find that Congress did not expressly prescribe that the provisions at

issue in the 2017 Act would be retroactive. See Sayers v. Department of Veterans

Affairs, 954 F.3d 1370, 1380 (Fed. Cir. 2020) (finding that the VA Accountability

Act “lacks an unambiguous directive or express command that the statute is to be

applied retroactively” (quotation marks and citations omitted)). Congress has the

ability to clearly express its intent for a statute to apply retroactively and has

done so concerning other statutes. See, e.g., 38 U.S.C. § 4324(c) (providing that

the Board’s jurisdiction to hear appeals under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA) exists “without

regard to whether the complaint accrued before, on, or after October 13, 1994”);

Lapuh v. Merit Systems Protection Board, 284 F.3d 1277, 1281-82 (Fed. Cir.

2002) (observing that Congress expressly provided for the Board’s retroactive

jurisdiction over claims brought under USERRA, but did not do so for veterans’

preference claims under the Veterans Employment Opportunities Act of 1998

of the change of the law”; (2) “the degree of connection between the operation of the

new rule and a relevant past event”; and (3) “familiar considerations of fair notice,

reasonable reliance, and settled expectations.” Id. Because we find that the Landgraf

holding directly controls in this appeal, we do not apply the Princess Cruises test.

However, even if we did, we would still find that the relevant portion of the 2017 Act is

not retroactive. See King, 119 M.S.P.R. 663, ¶ 17 n.3.

(VEOA)). In this case, however, Congress has not specifically provided for an

effective date of the provisions at issue. Instead, only two provisions of the 2017

Act—those regarding recouping awards, bonuses, and relocation expenses—

specify an effective date, stating that they will apply to payments made on, or

after, the date of enactment. Sections 204(c), 205(c), 131 Stat. at 875-77; Sayers,

954 F.3d at 1380.

¶15 When Congress has provided for a specific effective date for some

provisions of a statute and not for others, it is assumed that it intended the statute

to apply only to actions that occurred after the date of enactment. See Lindh v.

Murphy, 521 U.S. 320, 327-30 (1997) (holding that, if legislation includes a

provision that expressly applies to cases pending on the date of enactment and

another provision that does not, the statute “indicat[es] implicitly” that the latter

applies only to cases filed after the date of enactment); Ad Hoc Shrimp Trade

Action Committee v. United States, 802 F.3d 1339, 1349-51 (Fed. Cir. 2015)

(holding that section 502 of the Trade Preferences Extension Act of 2015, Pub. L.

No. 114-27, 129 Stat. 362, 383-84, did not apply retroactively when Congress

expressly provided that other provisions of the Act had retroactive effect). Thus,

because Congress has provided for a specific effective date for two provisions but

has not otherwise specified an effective date, the 2017 Act does not expressly

provide that the provisions at issue are retroactive.

¶16 Having determined that the 2017 Act does not expressly state that it is

retroactive, we must apply the second part of the Landgraf test to determine

retroactivity. See Sayers, 954 F.3d at 1380-82 (applying Landgraf to examine

whether section 202 of the VA Accountability Act had an impermissible

retroactive effect because Congress did not express any intent as to whether the

Act applied to pre-enactment conduct); Wilson v. Department of Veterans Affairs,

2022 MSPB 7, ¶ 27. 3 We find that applying the 2017 Act would impair the

review rights that the appellant was afforded after the Federal Circuit’s decision

in Helman and thus it cannot be applied retroactively. The court found that the

portions of the 2014 Act that provided for the finality of the administrative

judge’s decision were unconstitutional. Helman, 856 F.3d at 929-30. At that

time, the appellant’s right to Board review of that decision was restored. He then

filed a petition for review on June 8, 2017. PFR File, Tab 1. After the appellant

filed his petition, the 2017 Act revised 38 U.S.C. § 713 to provide that removal

decisions of SES employees are only reviewable through an internal grievance

process and then through a Federal court appeal, thus excluding Board

jurisdiction. 4 2017 Act § 201. Accordingly, if we were to apply that provision

retroactively, it would improperly revoke the appellant’s previously granted right

to seek Board review of the agency’s action. See Upshaw v. Consumer Product

Safety Commission, 111 M.S.P.R. 236, ¶ 10 (2009) (finding that new suitability

regulations issued by the Office of Personnel Management could not be applied

retroactively to exclude Board jurisdiction), modified on other grounds by Scott v.

In Sayers, the agency removed the appellant pursuant to section 202 of the VA

Accountability Act, codified as amended at 38 U.S.C. § 714. Sayers, 954 F.3d at 1372.

Section 202 authorizes the agency to “remove, demote, or suspend a covered

individual” for inadequate performance or misconduct using an expedited process.

131 Stat. at 869-72; Wilson, 2022 MSPB 7, ¶¶ 11, 28. Our reviewing court held that

section 202 had an impermissible retroactive effect because its lowered substantial

evidence standard of proof and elimination of the Board’s authority to mitigate the

penalty detrimentally affected the appellant’s property right to continued employment

and “substantive rights to relief from improper removal.” Sayers, 954 F.3d at 1372 n.1,

1374, 1380‑81; Wilson, 2022 MSPB 7, ¶¶ 27-28. In so finding, the court did not

address whether section 201 had an impermissible retroactive effect, and thus, we

consider it here.

It is also unclear what new duties the 2017 Act would require of the appellant or the

agency if he would have pursued his challenge to his removal. Under the new statute,

the appellant would have been entitled to file a grievance and then seek court review,

yet he has already filed a Board appeal. 38 U.S.C. § 713(a)(2)(C); IAF, Tab 1. The

agency has not explained how it would have adjudicated this appeal, considering the

grievance rights provided for in the 2017 Act. Considering this confusion, it is also

unclear whether applying the new statute would increase the agency’s liability.

Office of Personnel Management, 116 M.S.P.R. 356 (2011). Thus, we conclude

that the portion of the 2017 Act that provides for a new grievance process and

direct court review is not retroactive. 5 See Lapuh, 284 F.3d at 1280-82 (finding

that 5 U.S.C. § 3330a(d)(1) did not retroactively provide for the Board’s

jurisdiction over allegations of a denial of veterans’ preference that arose prior to

the VEOA’s enactment).

The appellant has provided no basis for granting his petition for review, and thus

we sustain the removal and affirm the administrative judge’s decision. 6

The administrative judge properly sustained the charges.

¶17 The appellant challenges the administrative judge’s decision to sustain

charge 1, specification 1, neglect of duty, stating that he lawfully decided there

was insufficient circumstantial evidence to prove the allegations against the

employee who drove the veteran to a place of illegal drug use. PFR File, Tab 1,

at 1-2. He states that the agency never provided him with training or specific

criteria for taking disciplinary decisions and that his decision was based upon a

judgment call. Id. at 2-3. He also argues that the determination by the agency’s

detective and hospital police—that the employee’s actions did not justify criminal

charges—supported his decision not to impose discipline. Id. at 2.

¶18 Applying the factors set forth in Borninkhof v. Department of Justice,

5 M.S.P.R. 77, 87 (1981), for assessing hearsay evidence, the administrative

Nothing in the 2017 Act or elsewhere suggests that it constituted a clarification of an

existing law. Cf. Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26

(2013).

The appellant has attached new information in the form of an article about a June 19,

2015 meeting about CAVHCS. PFR File, Tab 1 at 18-19. The Board generally will not

consider evidence submitted for the first time on review absent a showing that the

documents and the information contained in the documents were unavailable before the

record closed below despite due diligence and the evidence contained therein is of

sufficient weight to warrant an outcome different from the administrative judge’s

decision. See Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d,

839 F.3d 1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115(d). While this article is new, it is

not relevant to our determining whether to sustain the appellant’s removal. Thus, we

have not considered it.

judge found that the appellant either was aware of the full details of the

investigation and failed to take appropriate action or, under the circumstances,

should have known that these instances warranted his immediate and continued

attention. AJD at 15. He considered that the appellant was a high-level

employee, as he was a member of the SES and the Director of CAVHCS, and

determined that a person of ordinary prudence in the same situation and with

equal experience to that of the appellant would have timely and appropriately

taken administrative action against the employee. Id. (citing Thomas v.

Department of Transportation, 110 M.S.P.R. 176, ¶ 9 (2008)). He concluded that

the agency proved the appellant failed to exercise proper oversight to ensure that

the appropriate action was timely taken against the employee. AJD at 15-16.

¶19 The appellant’s reliance on the absence of criminal prosecution to justify

his decision is misplaced because, although the Office of Inspector General and

the police did not recommend criminal prosecution, they did recommend

administrative action. IAF, Tab 26 at 5-6. His assertions that he made a

judgment call, lacked training to make the proper decision, or otherwise found

that discipline was not warranted because the matter was not being criminally

investigated, do not provide a reason for disturbing the administrative judge’s

findings that the appellant did not exercise proper oversight in this case. 7 PFR

File, Tab 1 at 1-3; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)

(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 on issues of credibility).

¶20 The appellant claims that we should not sustain charge 2 because

specification 2 of the charge is unsupported. PFR File, Tab 1 at 3-4. He

challenges the administrative judge’s decision to sustain specification 2, which

The appellant challenges the administrative judge’s finding sustaining specification 2

of charge 1 but has not provided a basis for disturbing this finding. PFR File, Tab 1

at 4. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997).

alleges that he failed to provide appropriate information to his supervisor when he

initially stated that the charge against an employee was “ironclad,” and then later

stated that the charge against the employee was unsubstantiated. Id. at 3. He

argues that the report from the Administrative Investigation Board (AIB), which

was used to support his removal, misconstrued his testimony as he did not

actually include the “crack house” allegation in describing the employee’s

misconduct. Id. at 3, 12; IAF, Tab 6 at 10, 24, Tab 14 at 111-12, 138. He also

disputes the administrative judge’s finding as to when the employee was

reassigned to a position in which he was not responsible for patient care. PFR

File, Tab 1 at 4; AJD at 20 n. 13. We fail to see how these arguments provide any

basis for disturbing the charge. See 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 findings when he considered the evidence as a whole, drew

appropriate inferences, and made reasoned conclusions). Additionally, proof of

one or more, but not all, of the supporting specifications is sufficient to sustain

the charge. Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 17 (2012). Thus,

even if we only sustained specification 1, we would still sustain the charge.

Harmful Procedural Error

¶21 The appellant argues that the agency committed harmful procedural error

because the AIB was of poor quality. PFR File, Tab 1 at 4-6. He also claims

harmful error in that lack of agency resources, such as proper budget, staffing of

leadership positions, and proper coaching, prevented him from accomplishing his

duties. Id. at 8-10. Additionally, he asserts that the agency violated the fifth

Merit Principle regarding using the workforce efficiently and effectively by not

providing him the proper training and resources to accomplish his job while

providing additional staffing and funding after he left. Id. at 6-8. Further, he

challenges the short time period between the proposal and the decision to remove

him because he was unable to obtain records related to the lack of recruitment and

hiring of senior leaders, which would demonstrate that the actions at issue were

not his fault, and because he could not retain an attorney in such a short amount

of time. Id. at 9-10.

¶22 The Board will not sustain an agency’s action if the appellant shows

harmful error in the agency’s application of its procedures in arriving at its

decision. 5 U.S.C. § 7701(c)(2)(a); Lentz v. Merit Systems Protection Board,

876 F.3d 1380, 1385 (Fed. Cir. 2017); Forte v. Department of the Navy,

123 M.S.P.R. 124, ¶ 9 (2016); 5 C.F.R. § 1201.56(c)(1). The appellant may

establish harmful error by proving, by preponderant evidence, that the agency

committed an error in applying its procedures “that is likely to have caused the

agency to reach a conclusion different from the one it would have reached in the

absence or cure of the error.” 5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C), (c)(1);

see Lentz, 876 F.3d at 1385; Forte, 123 M.S.P.R. 124, ¶ 9. Even assuming that

the appellant has pointed to an error by the agency, he has not described how any

such error could have altered the agency’s decision to remove him.

¶23 The appellant further asserts that the agency cannot charge him with neglect

of duty because it was not determined that his decision regarding whether to

impose discipline was inappropriate and, if this matter had been considered as a

performance-based action, the agency did not demonstrate properly that his

performance was deficient. PFR File, Tab 1 at 14-15. The 2014 Act provides

that the Secretary may remove or demote an employee for both performance and

misconduct. Section 707(a) (codified at 38 U.S.C. § 713(a)(2014)). Thus, to the

extent that the appellant is asserting that he was entitled to the procedures set

forth in chapter 43 of title 5, we disagree. 8 Further, although the appellant argues

that the agency never determined that his decision was inappropriate, as

previously discussed, we find that the agency proved that he should have known

that the events warranted immediate and continued attention and, therefore, his

Even if the agency had removed the appellant pursuant to title 5, an agency may rely

on either chapter 75 or chapter 43 or both to take a performance-based action.

Lovshin v. Department of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985).

failure to impose discipline was indeed inappropriate. Accordingly, we find that

the appellant has not proven harmful procedural error.

Due Process

¶24 The appellant next argues that the agency violated his right to due process

when the deciding official made a decision regarding his case before considering

his response. PFR File, Tab 1 at 12-13. Prior notice and an opportunity to

respond to an appealable agency action are fundamental due process requirements

for a tenured public employee. See Cleveland Board of Education v. Loudermill,

470 U.S. 532, 546 (1985). It is not a violation of the appellant’s due process

rights when the role of the proposing and deciding official is performed by the

same person because “[the] law does not presume that a supervisor who proposes

to remove an employee is incapable of changing his or her mind upon hearing the

employee’s side of the case.” DeSarno v. Department of Commerce,

761 F.2d 657, 660 (Fed. Cir. 1985); see Martinez v. Department of Veterans

Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). Additionally, a deciding official’s

familiarity with the facts of a case and even an expressed predisposition contrary

to the appellant’s interests do not constitute a due process violation or harmful

error. Martinez, 119 M.S.P.R. 37, ¶ 11.

¶25 Here, the Deputy Secretary proposed the appellant’s removal and provided

him the opportunity to respond to the proposal. IAF, Tab 1 at 6-8. The appellant

provided a written response, which the Deputy Secretary considered prior to

imposing the removal. Id. at 9-11. The appellant’s bare assertions challenging

the Deputy Secretary’s impartiality do not support a finding that the agency

violated his right to due process. See Holton v. Department of the Navy,

123 M.S.P.R. 688, ¶ 31 (2016) (finding that the appellant’s argument that it was

unfair to use the individual who had granted permission to drug test him as the

deciding official did not support a finding of a due process violation as the

appellant did not substantiate his claim that the official was unwilling to change

his mind or fully consider the evidence).

Penalty Determination

¶26 The appellant requests that we not sustain the removal. 9 PFR File, Tab 1

at 15-16. He points to his accomplishments, including achieving the hospital’s

first official passing performance rating in many years, reducing the time to

complete Compensation and Pension examinations from 73 days to 26 days when

the requirement is 30 days, achieving performance in the top 10% of agency

hospitals, and establishing a collaboration with the Department of Defense. Id.

Further, he identifies a previously life-threatening illness that affected his

performance. Id. at 10.

¶27 The Board generally analyzes the agency’s penalty selection under the

statutory “efficiency of the service” standard with the agency bearing the burden

to prove the reasonableness of its penalty selection. 5 U.S.C. §§ 7513(a),

7701(b)(3), (c)(1)(B); Douglas v. Veterans Administration, 5 M.S.P.R. 280,

307-08 (1981); 5 C.F.R. § 1201.56(b)(1)(ii). However, in this matter, we apply

the standard for penalty analysis set forth in the 2014 Act as this standard was left

undisturbed by Helman, 856 F.3d at 936. Our regulations provide that, under the

2014 Act, proof of misconduct or poor performance creates a presumption that the

Secretary’s decision to remove or transfer the employee was warranted. 5 C.F.R.

§ 1210.18(a), (d). The appellant may rebut this presumption only by establishing

that the penalty was unreasonable under the circumstances of the case, in which

case the action will be reversed. 5 C.F.R. § 1210.18(d).

¶28 The administrative judge found that the appellant’s failure to monitor the

cases of the two employees and ensure that appropriate action was taken

constituted a dereliction of duty and damaged the very core of the agency’s

mission to take care of our nation’s veterans, which included ensuring their

The appellant asserts that, at most, charge 1, specification 2, should be sustained and

that this specification alone does not warrant removal. PFR File, Tab 1 at 4. However,

because we have sustained all of the charges and specifications, his argument is not

persuasive.

safety. AJD at 30. He considered that there may have been failures throughout

the process after the investigations, highlighting the difficulty of the appellant’s

position, but he found that, as an SES employee, the appellant should have taken

a leadership role in ensuring that the situation was handled properly. Id. The

administrative judge also stated that the appellant failed to exercise the

responsibility and trust placed in him as a Medical Director and as a member of

the SES and that his position as an SES employee rendered his misconduct even

more serious. AJD at 30-31. Further, the administrative judge noted that the

appellant’s failure to notify his leadership about the situations only worsened the

problem. AJD at 31. He also found that the appellant’s proffered comparator was

not similarly situated and that, if he were, the agency’s failure to discipline that

employee would not render the penalty unreasonable. AJD at 31-32.

¶29 On the basis of the above, the administrative judge concluded that the

Deputy Secretary convincingly explained why he determined that removal was the

most appropriate penalty. AJD at 32. The appellant’s arguments regarding the

lack of severity of the proven charges, his accomplishments, and his illness do not

provide a reason for disturbing the administrative judge’s conclusion that he

failed to establish that the penalty was unreasonable. 10

The appellant otherwise challenges the administrative judge’s decision on the basis of

the following: the administrative judge misjudged his testimony and should not have

relied on the AIB’s decision; the administrative judge cited untrue and unsworn

statements by quoting him as mentioning that the employee took the veteran to a “crack

house” when he did not mention either this or that the employee never took the veteran

back to the facility; the administrative judge should not have credited the testimony of

the Network Director and the Deputy Secretary that he had the ability to change

conditions within the facility; and he disagrees with the Network Director’s statement

that he failed to properly prepare facility budgets. PFR File, Tab 1 at 10-14. These

arguments constitute mere disagreement with the administrative judge’s decision and do

not provide a reason for disturbing it. See Broughton, 33 M.S.P.R. at 359.

NOTICE OF APPEAL RIGHTS 11

The decision of the administrative judge, as supplemented by this Final

Order, constitutes the Board’s final decision in this matter. 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 administrative judge’s 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. ____ , 137 S. Ct. 1975 (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. 12 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