Kemper Watkins v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEMPER STEVE WATKINS, DOCKET NUMBER

Appellant, DC-1221-13-0230-W-3

v.

DEPARTMENT OF DEFENSE, DATE: January 31, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kemper Steve Watkins, Westminster, Colorado, pro se.

Gordon R. Jimison, Esquire, and Michael Walby, Esquire, Battle Creek,

Michigan, 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 initial decision, which

dismissed in part for lack of jurisdiction and denied in part his request for

corrective action in this individual right of action (IRA) appeal of his termination

during his supervisory probationary period. Generally, we grant petitions such as

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

this one only when: the initial decision contains erroneous findings of material

fact; the initial decision is based on an erroneous interpretation of stat ute 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 by

this Final Order, we AFFIRM the initial decision. Specifically, we VACATE the

administrative judge’s finding that part of the appellant’s appeal was outside the

Board’s jurisdiction, FIND jurisdiction over the appeal in its entirety, and DENY

the appellant’s request for corrective action.

BACKGROUND

¶2 The appellant was appointed to a GS-14 Supervisory Property Disposal

Specialist position in the competitive service effective June 6, 2011, subject to

successfully completing a 1-year probationary period under 5 C.F.R. part 315

subparts H and I. Watkins v. Department of Defense, MSPB Docket No. DC-

1221-13-0230-W-1, Initial Appeal File (IAF), Tab 7 at 55. On November 19,

2011, the agency terminated him from his position based on alleged inappropriate

and unprofessional communications. Id. at 20-24. After exhausting his

administrative remedies before the Office of Special Counsel (OSC), the

appellant filed this appeal, contending that the termination constituted reprisa l for

whistleblowing. IAF, Tab 1, Tab 4 at 3-5, Tab 5 at 4-26. He requested a hearing.

IAF, Tab 4 at 6.

3

¶3 During the adjudication of the appeal, the parties disputed discovery

matters, which resulted in the administrative judge issuing an order permitting the

appellant to conduct a forensic search of the agency’s electronic mail system at

his own expense. The appellant subsequently filed multiple motions for the

administrative judge’s disqualification, which were denied. Eventually, the

appellant declared that he would not participate in the adjudication of his appeal

unless it was reassigned to a different administrative judge and until the agency

provided him with all discovery documents that he believed were wrongfully

withheld from him. After providing the appellant with ample notice and an

opportunity to participate in the adjudication of his appeal, the administrative

judge canceled the hearing, allowed the record to remain open for final

evidentiary submissions and argument, and decided the appeal on the written

record. Watkins v. Department of Defense, MSPB Docket No. DC-1221-13-0230-

W-3, Appeal File (W-3 AF), Tabs 6-7, 9-12.

¶4 In an initial decision, the administrative judge found that the appellant

failed to prove by preponderant evidence that two of his four alleged protected

disclosures were protected, and she dismissed for lack of jurisdiction that portion

of the appeal pertaining to a third disclosure. W-3 AF, Tab 27, Initial Decision

(ID) at 8-13. She found that the appellant proved that a fourth disclosure was

protected and was a contributing factor in the agency’s decision to terminate his

appointment during his probationary period. ID at 11-12. She further found,

however, that the agency proved by clear and convincing evidence that it would

have terminated the appellant during his probationary period even absent any

whistleblowing. ID at 3-18. She therefore denied the appellant’s request f or

corrective action. ID at 1, 19.

¶5 The appellant petitioned for review of the initial decision. Petition for

Review (PFR) File, Tab 1. The agency responded in opposition to the petition for

review, and the appellant replied to the agency’s response. PFR File, Tabs 3-5.

4

ANALYSIS 2

The administrative judge erred by dismissing part of the appeal for lack

of jurisdiction.

¶6 The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his or her administrative remedies before OSC and makes nonfrivolous

allegations that: (1) he engaged in whistleblowing activity by making a protected

disclosure; and (2) the disclosure was a contributing factor in the agency’s

decision to take or fail to take a personnel action. Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶ 14; see also Hessami v. Merit Systems

Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); Yunus v.

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). The

Board’s regulations define a nonfrivolous allegation as an assertion that, if

proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 3 As the U.S.

Court of Appeals for the Federal Circuit recently put it: “[T]he question of

whether the appellant has non-frivolously alleged protected disclosures [or

activities] that contributed to a personnel action must be determined based on

whether the employee alleged sufficient factual matter, accepted as true, to state a

claim that is plausible on its face.” Hessami, 979 F.3d at 1362, 1364, 1369.

¶7 In this case, the appellant established jurisdiction over his IRA appeal when

the administrative judge found that he made a nonfrivolous allegation that all four

of his disclosures were protected and were a contributing factor in a personnel

action. Watkins v. Department of Defense, MSPB Docket No. DC-1221-13-0230-

2

We have reviewed the relevant legislation enacted since the filing of this appeal and

find that it does not impact the outcome.

3

The regulation further provides that an allegation generally wi ll be considered

nonfrivolous when, under oath or penalty of perjury, an indiv idual makes an allegation

that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the

legal issues in the appeal. Id. Pro forma allegations are insufficient to meet the

nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6 (2016),

aff’d, 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other grounds by Cronin v.

U.S. Postal Service, 2022 MSPB 13, ¶ 20 n.11.

5

W-2, Appeal File (W-2 AF), Tab 4. The correct disposition of this appeal,

therefore, is a denial of the request for corrective action on the merits in its

entirety. See Piccolo v. Merit Systems Protection Board, 869 F.3d 1369, 1371

(Fed. Cir. 2017) (outlining how, in IRA appeals, the Board must separate the

issue of jurisdiction from that of the merits). Because the administrative judge

afforded the appellant proper notice of the correct jurisdictional standard on more

than one occasion, IAF, Tab 3; W-2 AF, Tab 4, and because her mistaken

jurisdictional ruling does not affect the result of the case, there is no prejudice to

the appellant’s substantive rights and no basis for reversal of the initial decision.

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). However,

we modify the initial decision to clarify that the appeal is within the Board’s

jurisdiction and that we, and the administrative judge, considered the appellant’s

request for corrective action in its entirety and on its merits.

The appellant made a protected disclosure that was a contributing factor in a

personnel action.

¶8 The appellant asserted in his OSC complaint that he made four protected

disclosures. The administrative judge found that the appellant failed to prove that

he actually made two of the claimed disclosures because there was no evidence of

record showing that he made them. The record does not contain a copy of either

disclosure, or any document from which the alleged disclosures can be inferred,

or any sworn statement indicating that the appellant made the disclosures. The

only evidence of the disclosures is the appellant’s unsworn claim on appeal that

he made them. The administrative judge correctly found that the appellant

did not submit preponderant evidence establishing that he made the se two

disclosures. The appellant does not challenge this finding on review and we

discern no reason to disturb it.

¶9 The administrative judge also found that the appellant failed to prove that a

third disclosure was protected. The appellant asserted to OSC that on or about

October 27, 2011, he informed his superiors that if a certain military officer

6

decided to file a discrimination complaint with “the IG,” then he would support

her. IAF, Tab 5 at 10. The administrative judge determined that this disclosure

amounted to the appellant announcing his intent to engage in protected activity

under 5 U.S.C. § 2302(b)(9). ID at 13. Announcement of intent to engage in

protected activity under 5 U.S.C. § 2302(b)(9) may be protected in some cases.

Cf. Mausser v. Department of the Army, 63 M.S.P.R. 41, 44 (1994); ID at 13.

However, the Board did not have IRA jurisdiction over allegations such as this

one under 5 U.S.C. § 2302(b)(9) until December 2012, when the Whistleblower

Protection Enhancement Act of 2012 (WPEA) took effect. 4 Pub. L. No. 112-199,

§ 202, 126 Stat. 1465, 1476. Therefore, the administrative judge correctly found

that the appellant failed to prove that his third disclosure was protected. ID at 13.

Again, the appellant does not challenge the administrative judge’s finding on this

and we see no reason to revisit it.

¶10 The administrative judge found that a fourth disclosure, concerning the

disposition of a large number of halon cylinders without being demilitarized, was

protected. ID at 11-12; IAF, Tab 5 at 16; W-2 AF, Tab 57 at 18-22. The

administrative judge noted that the appellant, as with his first two disclosures,

did not submit evidence showing he actually made the disclosure, but she found

sufficient evidence in the agency’s submissions to establish that the appellant

made the disclosure and that it was protected. ID at 11-12. We agree. Moreover,

because the appellant was employed by the agency for only 5 months and made

his protected disclosure to the people in his chain of command who eventually

decided to terminate him, we find, as did the administrative judge, that the

disclosure was a contributing factor in a personnel action. Carey v. Department

4

Section 101 of the WPEA amended 5 U.S.C. § 1221(a), (e), to extend the Board’s

jurisdiction over IRA appeals to claims of retaliation under 5 U.S.C. § 2302(b)(9)(A)(i),

(B), (C), and (D). Pub. L. No. 112-199, 126 Stat. 1465-66. The Board has explicitly

found that section 101(b) is not retroactive. Colbert v. Department of Veterans Affairs,

121 M.S.P.R. 677, ¶ 7 (2014); see also Hicks v. Merit Systems Protection Board,

819 F.3d 1318, 1320-21, 1323 (Fed. Cir. 2016).

7

of Veterans Affairs, 93 M.S.P.R. 676, ¶ 11 (2003) (stating that an employee may

show that a disclosure was a contributing factor in a personnel action through

circumstantial evidence, such as evidence that the official taking the action knew

of the disclosure and that the action occurred within a period of time such that a

reasonable person could conclude that the disclosure was a contributing factor in

the personnel action).

The agency showed by clear and convincing evidence that it would have

terminated the appellant absent his disclosure.

¶11 Because the appellant made a prima facie case of whistleblower reprisal, the

burden shifts to the agency to show by clear and convincing evidence that it

would have terminated the appellant absent his disclosure about t he halon fire

cylinders. In determining whether an agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of the

protected activity, the Board will consider all of the relevant factors, including

the following (“Carr factors”): (1) The strength of the agency’s evidence in

support of its action; (2) the existence and strength of any motive to retaliate on

the part of the agency officials who were involved in the decision; and (3) any

evidence that the agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated. Soto v. Department of

Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 5 The Board considers all

the evidence, including evidence that detracts from the conclusion that the agency

met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

5

Historically, the Board has been bound by the precedent of the U.S. Court of Appeals

for the Federal Circuit on these types of whistleblower issues. However, pursuant to

the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file

petitions for judicial review of Board decisions in whistleblower reprisal cases with any

circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).

Therefore, we must consider these issues with the view that the appellant may seek

review of this decision before any appropriate court of appeals.

8

¶12 The agency terminated the appellant from his position based on a charge of

“inappropriate and unprofessional communications with agency personnel.” IAF,

Tab 7 at 21. The agency cited 13 instances in which he disparaged other

employees in emails or during a meeting in Battle Creek, Michigan, an email to

the Contracting Director containing aggressive criticism of the Contracting

Division, and 3 instances in which he failed to communicate information to staff.

Id. at 21-22. The agency also cited his practice of screening his telephone calls.

Id. at 22. The record contains copies of memoranda documenting the appellant’s

telephone habits and communications issues 6 as well as one participant’s

memorandum from the Battle Creek meeting. 7 Id. at 43-56. The administrative

judge discussed the evidence in support of the agency’s charge, and her

discussion is well-reasoned and thoroughly supported by the record. ID at 14-18.

We agree with her conclusion that it was reasonable for the agency to expect a

higher standard of decorum and diplomacy from a supervisor, especially at the

appellant’s level, and that it was entirely appropriate for the agency to use the

probationary period 8 to assess the appellant’s ability to perform the functions of

6

Some examples of his communications issues include making very broad assignments

and then failing to set parameters so the assignments could be completed; failing to

issue guidance or provide clarification after saying he would do so; avoiding or

forgetting to inform his staff of impending changes with the result that his subordinate

supervisors had to take the initiative to communicate the information themselves; not

attempting to solve problems at the lowest level but instead elevating every dispute into

a complaint submitted to his superiors; delegating difficult conversations to his

subordinate supervisors; and making himself difficult to reach (most of his staff was not

co-located) by screening his telephone calls and by not responding to emails without

being prompted to do so via telephone. IAF, Tab 7 at 25-32.

7

Towards the end of the meeting memorandum, the author wrote, “As a group, we

agreed that the meeting was a shining example of why things have been so difficult

unnecessarily for the last 4 months.” IAF, Tab 7 at 54.

8

The appellant contended below that the agency had an illegal double standard for

probationary and permanent employees. IAF, Tab 9 at 4-5, Tab 13; W-2 AF, Tab 3 at 4.

The purpose of the probationary period is to allow a Federal agency t o assess an

employee’s conduct and performance and to be able to terminate an unsatisfactory

employee’s employment quickly before the due process rights of a tenured civil servant

9

his position, including his ability to form productive professional relationships.

Cf. De Cleene v. Department of Education, 71 M.S.P.R. 651, 655 (1996) (finding

that an employee who engages in misconduct may be held to a higher standard if

he encumbers a supervisory position). This factor weighs heavily in the

agency’s favor.

¶13 As to Carr factor two, we have found that those responsible for the

agency’s performance overall may well be motivated to retaliate even if they are

not directly implicated by the disclosures, as the criticism reflects on them in

their capacities as managers and employees. Wilson v. Department of Veterans

Affairs, 2022 MSPB 7, ¶ 65; Smith v. Department of the Army, 2022 MSPB 4,

¶¶ 28-29. Here, however, we agree with the administrative judge’s finding that

the agency had little motive to retaliate against the appellant for his disclosure

about the halon cylinders. ID at 15. As the administrative judge correctly stated,

the relevant agency managers agreed with the appellant’s assessment of the

problem with the cylinders and found his recommendation for resolving the issue

to be sound. W-2 AF, Tab 58 at 4-6. This factor also weighs in favor of

the agency.

¶14 As to the third Carr factor, the agency asserted that, in January 2012, it

proposed to terminate a GS-15 supervisory employee during his probationary

period for his unprofessional remarks, but that employee was not a whistleblower.

W-2 AF, Tab 53 at 78. The appellant also asserted that permanent employees

committed much more serious acts of misconduct, including one who used racial

slurs, but were not terminated. W-2 AF, Tab 12 at 7-8, Tab 26 at 8-9.

vest. Cf. Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶ 14 (2014) (explaining

the purposes of the probationary period for nonsupervisory employees under 5 C.F.R.

§ 315.803(a)). This will inevitably mean that, sometimes, a probationer will lose his

job when a permanent employee who commits the same or a more serious offense might

not. This is not “illegal,” but by design. Cf. 5 U.S.C. § 7511(a) (excluding

probationers from the statutory definition of “employee” for purposes of the Board’s

adverse action jurisdiction).

10

¶15 The third Carr factor involves comparing employees who are similarly and

not identically situated. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore, 680 F.3d

at 1373. Nevertheless, there is a vast difference between probationary employees

and permanent employees, not least of which is that they are subject to different

standards governing discipline. Permanent employees can only be disc iplined for

reasons that promote the efficiency of the service. 5 U.S.C. §§ 7503(a), 7513(a).

If a permanent employee is disciplined, he has the right to appeal adverse actions

to the Board, provided he meets the statutory definition of “employee” set forth at

5 U.S.C. § 7511(a). There is no statute containing standards governing the

discipline of probationers and, therefore, no limits on an agency’s discretion in

this area so long as the agency’s action does not violate some other statute, such

as one of the anti-discrimination statutes or the Whistleblower Protection Act. In

other words, an agency can terminate a probationary employee for any reason or

no reason, so long as that reason is not an illegal reason. A prudent agency,

therefore, ensures that it has amassed sufficient evidence to support its case, is

careful to provide due process rights guaranteed by the United States

Constitution, and affords a tenured employee the procedural rights set forth in

5 U.S.C. § 7513 and any other law, rule, regulation, or union contract that might

be applicable in a particular case. A probationer is entitled to none of these

things. Because an agency does not need a reason to terminate a probationer, it

need not collect any evidence or prepare itself to prove anything, although it

would be prudent to do so in most cases. The fact that the law permits the agency

to terminate the appellant’s employment during his probationary period for any

reason that is not illegal means that he is not similarly situated to permanent

employees, who can only be removed for reasons that promote the efficie ncy of

the service.

¶16 Neither party submitted evidence concerning the GS-15 probationer’s

termination. Because it is the agency’s burden of proof, when the agency fails to

introduce relevant comparator evidence, the third Carr factor is effectively

11

removed from consideration, although it cannot weigh in favor of the agency.

Soto, 2022 MSPB 6, ¶ 18; see also Rickel v. Department of the Navy, 31 F.4th

1358, 1365-66 (Fed. Cir. 2022) (“The lack of evidence on the third Carr factor

appears neutral[.]”) (internal citation omitted). We find that this factor is neutral.

See Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir.

2018) (holding that in the absence of relevant comparator evidence, the third Carr

factor cannot favor the agency).

¶17 If the first two Carr factors are only supported by weak evidence, the

failure to present evidence of the third Carr factor may prevent the agency from

carrying its overall burden. Smith, 2022 MSPB 4, ¶ 30-31; see also Miller v.

Department of Justice, 842 F.3d 1252, 1262-63 (Fed. Cir. 2016) (where an agency

presented little or weak evidence for the first two Carr factors, the lack of Carr

factor three evidence “if anything[] tends to cut slightly against the government”).

In this case, we find that the absence of comparator evidence does not warrant a

finding that the agency did not meet its overall burden.

¶18 In summary, we find that the appellant has not shown error in the

administrative judge’s well-reasoned conclusion, which is fully supported by the

record, that the agency proved by clear and convincing evidence that it would

have terminated the appellant during his probationary period even absent his

disclosure about the halon cylinders.

The administrative judge did not abuse her discretion in ruling on the appellant’s

discovery motions and other procedural motions.

¶19 As soon as the agency responded to the appellant’s appeal, IAF, Tabs 7-8,

the appellant began filing repetitive motions for an immediate decision in his

favor, IAF, Tabs 10-13. The administrative judge correctly informed the

appellant that the Board lacks summary judgment authority regardless of the

strength or weakness of a party’s evidence. IAF, Tab 14. Despite the

administrative judge’s ruling, the appellant continued to file what amounted to

motions for summary judgment. W-2 AF, Tab 3; Tab 12 at 4; Tab 13 at 4-5;

12

Tab 18; Tab 20 at 4; Tab 25 at 7; Tabs 26-27; Tabs 40-42, 44; Tab 50 at 8; Tab 52

at 4; W-3 AF, Tabs 1-2, 6, 9, 13, 17-18. Because all of the motions requested a

summary ruling in the appellant’s favor, the administrative judge correctly

construed them as motions for summary judgment and she properly denied them .

W-2 AF, Tab 45, Tab 61 at 3; see Hessami, 979 F.3d at 1368-69 (holding that the

Board lacks summary judgment authority); Crispin v. Department of Commerce,

732 F.2d 919, 922 (Fed. Cir. 1984) (same).

¶20 As to discovery, the appellant requested a variety of emails related to his

employment with the agency. When he deemed the agency’s response

inadequate, he filed a number of motions to compel, W-2 AF, Tabs 25, 34-35,

which the administrative judge granted in part, W-2 AF, Tab 38. The agency then

asserted that most of the relevant emails no longer existed and it provided what it

still had. W-2 AF, Tab 43. The appellant disputed the agency’s assertion and

moved for sanctions. W-2 AF, Tab 44. After requesting and receiving more

information from the agency, W-2 AF, Tabs 46, 61, the administrative judge

denied the motion for sanctions, W-2 AF, Tab 61. However, she granted the

appellant’s request for a forensic examination of the agency’s email system,

provided that any such examination would take place at the appellant’s expense,

and would be a recoverable cost should he prevail in his appeal. W-2 AF, Tab 61

at 2, Tab 63 at 2-3, Tab 66 at 3-4.

¶21 In response to one of the appellant’s motions to compel, the agency asserted

that the appellant signed for receipt of three boxes of discovery documents, and it

submits copies of U.S. Postal Service tracking sheets bearing the appellant’s

signature. 9 W-2 AF, Tab 49 at 4, 6-8. The agency further made a limited waiver

of attorney-client privilege to make its discovery efforts more transparent and to

reflect that agency managers performed a search and provided documents to

counsel. Id. at 4-5, 9. The appellant, however, continued to insist, inter alia, that

9

The package weights indicated on the tracking sheets are consistent with what a box

of documents might weigh. W-2 AF, Tab 49 at 6-8.

13

the agency’s search was inadequate and improper and that the documents he was

seeking existed. The administrative judge afforded the appellant the opportunity

to prove that the documents existed and obtain them. Requiring the appellant to

pay the costs of the extraordinary measures required to achieve that, costs that

would be recoverable if the appellant prevails in his appeal, was a reasonable

exercise of the administrative judge’s discretion to rule on discovery matters

under 5 C.F.R. § 1201.41(b). In any event, the appellant has not shown that the

administrative judge’s ruling was an abuse of discretion. Schoenrogge v.

Department of Justice, 76 M.S.P.R. 216, 221 (1997) (finding that the

administrative judge has broad discretion in ruling on discovery matters and,

absent a showing of abuse of discretion, the Board will not find reversible error in

such rulings).

The appellant’s allegations of administrative judge bias and misconduct

are baseless.

¶22 As the parties’ discovery dispute escalated, the appellant set conditions on

his willingness to communicate with the agency, stating that he would only accept

emails from the agency’s representative after the agency complied with the

administrative judge’s discovery orders to his satisfaction and behaved in

accordance with the appellant’s notion of professionalism. 10 W-2 AF, Tab 62

at 8. After the administrative judge admonished the appellant for the second

time, W-2 AF, Tabs 61, 63, to engage in respectful and cooperative interactions

with the agency, the appellant moved that the administrative judge disqualify

herself, and he conditioned his future participation in discovery on having a

different administrative judge assigned to his case. W-2 AF, Tab 64. When the

administrative judge denied the motion, W-2 AF, Tab 65, the appellant protested

10

The agency submitted a copy of an email it received from the appellant that stated,

inter alia, “REFER TO MY JULY 8, JULY 21, JULY 24, JULY 28 AND JULY 31

PLEADINGS AND DO NOT, REPEAT, DO NOT ATTEMPT TO CONTACT ME VIA

ANY METHOD OTHER TH[AN] THROUGH THE COURT.” W-2 AF, Tab 47 at 11

(capitalization in the original).

14

that it was improper for the administrative judge to rule on the motion herself and

renewed his motion, specifying that it was to be decided by a “higher authority”

than the administrative judge, 11 W-2 AF, Tab 67. The administrative judge

construed this motion as a motion to certify her ruling for interlocutory appeal,

which she correctly denied because it did not meet the criteria for certification

under 5 C.F.R. § 1201.91. W-2 AF, Tab 68. The appellant, however, continued

to file motions for the administrative judge to disqualify herself. W-2 AF,

Tabs 69, 71; W-3 AF, Tabs 1-2, 6, 13.

¶23 The appellant’s allegations of administrative judge misconduct reflect an

intense disappointment with her rulings on his various motions. However, an

administrative judge’s case-related rulings, even if erroneous, are insufficient to

establish bias warranting her recusal or disqualification from further involvement

in the appeal. King v. Department of the Army, 84 M.S.P.R. 235, ¶ 6 (1999).

Here, the appellant has not shown that the administrative judge abused her

discretion in any of her discovery rulings or rulings on his numerous motions, but

even if he had, his disagreement with those rulings, however vociferous, is

insufficient to overcome the presumption of honesty and integrity that

accompanies administrative adjudicators. Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980).

The administrative judge’s decision to cancel the hearing was an appropriate

exercise of her discretion.

¶24 The administrative judge dismissed this appeal without prejudice to its

refiling twice for reasons that are beyond the scope of this order. When the

appellant refiled his appeal after the second dismissal without prejudice, he

renewed his demands for summary judgment and for the administrative judge’s

11

In another example of the appellant’s attempt to prescribe his own set of procedures,

he stated, “THIS JUDGE IS NOT, REPEAT NOT ALLOWED TO CERTIFY HER

OWN DISMISSAL REFUSAL, PERIOD.” W-2 AF, Tab 67 at 5 (capitalization in the

original). The Board’s regulations, however, permit the administrative judge to do

precisely that. 5 C.F.R. § 1201.42.

15

disqualification. W-3 AF, Tabs 1-2. He further demanded an investigation into

the administrative judge’s alleged misconduct and an award of interim

compensation. W-3 AF, Tab 1 at 4. The administrative judge then issued a

routine Acknowledgment Order, a routine Hearing Order, and a routine Notice of

Rescheduling in quick succession. W-3 AF, Tabs 3-5. The appellant responded

to these with a pleading entitled “Correction to Recent Orders” that began:

NOW COMES THE APPELLANT TO INFORM THE COURT,

[the administrative judge] AND THE MSPB INSPECTOR

GENERAL (AND TO MOTION, ALTHOUGH NOT

NECESSARY DUE TO THE ORDERS’ STANDING

ILLEGALISTIES) AND DEEM THE 20 AND 24 FEB, 2015

COURT ORDERS NULL AND VOID. THEY HAVE NO LEGAL

BEARING AND IF ATTEMPTED TO BE CARRIED OUT AS

WRITTEN AND WITHOUT [the administrative judge’s]

IMMEDIATE REMOVAL AND A FULL, INTERNAL

INVESTIGATION . . . THESE ORDERS WILL NOT BE

CONSIDERED LEGAL AND/OR VALID IN ANY COURT OR

JURISDICTION AT ANY LEVEL, AT ANY TIME.

W-3 AF, Tab 6 at 4 (bold and capitalization in the original). He also stated, “IN

THIS CASE, MY CASE, AND ONLY AFTER [the administrative judge’s]

IMMEDIATE REMOVAL AND THE SUBSEQUENT INVESTIGATION

(THAT I MOTIONED FOR ON NUMEROUS OCCASIONS), WILL THERE

BE ANY COURT ORDERS WRITTEN AND EXECUTED. . . .” Id. at 5 (bold

and capitalization in the original; yellow highlighting omitted). Clearly, the

appellant has neither the authority to correct an administrative judge’s order nor

the authority to declare whether an order will be considered legal and valid.

¶25 The administrative judge informed the appellant that it appeared that he was

refusing to participate in the further adjudication of his appeal, she warned him

that any refusal to comply with her orders could result in sancti ons, and she

scheduled a telephonic status conference. W-3 AF, Tab 7. The appellant

responded by accusing the administrative judge of having the “gall” to threaten

sanctions, and stated “THIS CASE WILL NOT GO FORWARD WITHOUT

16

HER IMMEDIATE REMOVAL. . . .” W-3 AF, Tab 9 at 5 (bold and

capitalization in the original; yellow highlighting omitted).

¶26 The appellant did not appear for the scheduled status conference, and the

administrative judge issued an Order to Show Cause why the appeal should not be

dismissed for failure to prosecute based on the appellant’s refusal to participate in

the adjudication of his appeal. W-3 AF, Tab 10. In response, the appellant

denied that he was refusing to participate and asserted that he would participate in

a fair and unbiased proceeding after the administrative judge was disqualified and

the agency provided all of the discovery materials he had requested. W-3 AF,

Tab 11. The administrative judge decided not to dismiss the appeal for failure to

prosecute. Instead, she noted that the appellant stated he would not participate

unless a different administrative judge were assigned to the appeal and, because

the appeal was not going to be reassigned to another administrative judge, she

canceled the hearing, set a deadline for final submissions, and decided the appeal

based on the written record. W-3 AF, Tab 12.

¶27 The Board does not deny appellants’ requested hearings as a sanction

except in extraordinary cases. Sims v. U.S. Postal Service, 88 M.S.P.R. 101,

¶¶ 7-8 (2001). We have carefully reviewed the record and we agree with the

administrative judge that the appellant’s refusal to cooperate in the prosecution of

his appeal created a situation in which there was no realistic chance that a hearing

could actually take place. The appellant attempted to control the proceedings by

dictating which procedures he would and would not follow, he filed numerous

duplicative motions seeking reconsideration of rulings the administrative judge

stated she would not reconsider, he refused to acknowledge that the

administrative judge had any authority once he decided she was biased, and his

pleadings were replete with disrespectful and even insulting language aimed at

the agency, the agency’s representative, and the administrative judge. Under the

circumstances of this case, we agree with the administrative judge that cancelling

the hearing and deciding the appeal on the written record was the best option

17

available for moving the appeal forward. See Bilger v. Department of Justice,

33 M.S.P.R. 602, 607 (1987) (finding that, once an administrative judge imposes

a sanction, the Board ordinarily will not disturb such a determination unless it is

shown that the administrative judge abused her discretion or that her ruling

adversely affected a party’s substantive rights), aff’d, 847 F.2d 842 (Fed. Cir.

1988) (Table).

The appellant’s arguments on review are without merit.

¶28 The appellant asserts on review that the Board must reverse the initial

decision because the agency’s representative, and not the administrative judge,

drafted the initial decision. PFR File, Tab 1 at 4-5. He contends that the initial

decision shows that the administrative judge never read any of his pleadings, and

he alleges that she could not possibly have included so much detail in the

decision without help from the agency because the details were not available to

her in the record. Id. at 5-6. The appellant offers no evidence to support these

accusations. Based on our review, we find that the administrative judge has

thoroughly supported her conclusions with precise citations to the record and

accurate applications of pertinent case law. The appellant identifies no statement

in the decision that cannot be supported by something in the evidentiary record,

and we discern none.

¶29 The appellant also renews on review his claim that the administrative judge

was biased, but these assertions are without merit for the reasons set forth ab ove.

Accordingly, we find that the administrative judge properly denied the appellant’s

request for corrective action.

18

NOTICE OF APPEAL RIGHTS 12

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 an d

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).

12

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.

19

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 ou r 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

20

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

21

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. 13 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 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

13

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.

22

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.