The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH R. KENT, DOCKET NUMBER
Appellant, DE-0752-16-0391-I-1
v.
SOCIAL SECURITY DATE: October 27, 2022
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth R. Kent, The Woodlands, Texas, pro se.
Chad M. Troop and Sara Pappas Bellamy, Denver, Colorado, 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
sustained the agency’s action suspending him for 30 days. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
contains erroneous findings of material fact; the initial de cision 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 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 and the
appellant’s motions to submit additional evidence. Except as expressly
MODIFIED to: (1) clarify the applicable standards to prove a charge of failure to
follow instructions; (2) address the appellant’s affirmative defense claim of
harmful procedural error; and (3) refine the analysis of the appellant’s claim of
reprisal for engaging in protected equal employment opportunity (EEO) activity,
we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, formerly a Social Insurance Specialist at the agency’s
Workload Support Unit in Golden, Colorado, timely appealed the agency’s
decision suspending him for 30 days for inappropriate conduct (three
specifications) and failure to follow instructions (one specification). 2 Initial
Appeal File (IAF), Tab 1, Tab 5 at 6. In support of the charge of inappropriate
conduct, the agency relied upon specifications describing the appellant’s behavior
during meetings with his supervisors on December 28, 2015, January 25, 2016,
2
The agency subsequently removed the appellant from his position, he appealed to the
Board, and an administrative judge affirmed the removal action. Kent v. Social Security
Administration, MSPB Docket No. DE-0752-17-0171-I-1, Initial Decision (Sept. 29,
2017). The appellant’s petition for review in that appeal is pending.
3
and January 26, 2016; and the charge of failure to follow instructions involved
the appellant’s failure to follow his first-level supervisor’s instruction to provide
the status of claims assigned to him. IAF, Tab 5 at 30-31. Following a hearing,
the administrative judge issued an initial decision sustaining the 30 -day
suspension. IAF, Tab 54, Initial Decision (ID). Specifically, he found that the
agency had proven its charges and that the appellant had not proven his
affirmative defenses of reprisal for protected EEO activity, due process
violations, and stale (or untimely) charges. ID at 3-20. The administrative judge
further found that the agency established a nexus between the charged conduct
and the efficiency of the service, and that the penalty fell within the tolerable
limits of reasonableness. ID at 20-24.
¶3 The appellant has timely filed a petition for review in which he challenges
the administrative judge’s rulings on appeal and findings in the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed an opposition to the
petition. PFR File, Tab 3. The appellant also has filed a motion to submit
additional evidence. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s motion to submit additional evidence is denied.
¶4 The appellant on review filed a motion to submit additional evidence. In
support of this motion, he alleges that the agency “manipula ted” audio recordings
admitted into evidence at the hearing and that his audio recordings are the
original, unedited versions of the recordings already entered into evidence. PFR
File, Tab 1 at 1-2, Tab 4. The record reflects that the appellant filed three audio
recordings of meetings with several of his supervisors as part of his prehearing
submissions, two of which recorded meetings on December 28, 2015, and one of
which recorded a meeting on January 25, 2016. IAF, Tab 23. The agency also
submitted three recordings as part of its prehearing submissions, labeled as
Agency Exhibits 1-3. IAF, Tab 35 at 10, Tab 42. During the hearing, the agency
4
played back in its entirety the recording identified as Agency Exhibit 2 and the
first 16 minutes of the recording identified as Agency Exhibit 3. IAF, Tab 42,
Hearing Recording (HR) (testimony of the proposing official and the first -level
supervisor). The proposing official identified Agency Exhibit 2 as an accurate
recording of one of her December 28, 2015 meetings with the appellant, which
formed the basis of the first specification of the first charge of inappropriate
conduct, and the appellant’s first-level supervisor identified Agency Exhibit 3 as
an accurate recording of his January 25, 2016 meeting with the appellant, which
formed the basis of the second specification of the first charge. HR (testimony of
the proposing official and the first-level supervisor); IAF, Tab 4 at 30. The
appellant objected to the agency playing excerpts from the recordings, ra ther than
playing the recordings in their entirety, and the administrative judge overruled his
objection but nevertheless admitted the recordings in their entirety into the
record. HR (statement of the appellant). The appellant did not object below to
the authenticity of the recordings, and his failure to lodge such an objection
below precludes him from doing so on review. See McCarthy v. International
Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 25 (2011) (holding that the
appellant’s failure to timely object to rulings during the hearing precluded him
from doing so on petition for review), aff’d, 497 F. App’x 4 (Fed. Cir. 2012).
¶5 The appellant, though, failed to show that the recordings he seeks to submit
on review constitute new and material evidence that was unavailable before the
record closed. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (finding that the Board generally will not consider an argument raised for
the first time on review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence). In any
event, after reviewing Agency Exhibits 1-3, we have determined that they appear
to be identical to the recordings submitted below by the appellant; there is no
evidence that the agency changed the recordings he provided or that they are
otherwise inauthentic. Moreover, the appellant’s specific arguments about the
5
veracity of the recordings actually are an attack on the credibility of the
witnesses, an issue that we fully address below. Accordingly, the appellant’s
motion to submit additional evidence is denied. 3
The administrative judge properly sustained the charges of inappropriat e conduct
and failure to follow instructions.
¶6 On petition for review, the appellant argues that the agency did not produce
sufficient evidence to substantiate the charges and he disputes the administrative
judge’s credibility determinations. PFR File, Tab 1 at 2-4. We disagree.
¶7 The initial decision reflects that the administrative judge thoroughly
considered the evidence as a whole and made detailed credibility findings that
considered the pertinent factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987). 4 The Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing. Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The administrative
judge found that the appellant’s supervisors testified consistently with each other
when they stated that the appellant engaged in the charged misconduct, and that
their testimony was corroborated by the documentary evidence and the audio
recordings in the record. 5 ID at 3-15. The administrative judge also found that,
3
On May 4, 2022, the appellant filed a second motion for leave to submit new
evidence, asserting that he had new and material information that was relevant to this
case and his other pending case, Kent v. Social Security Administration, MSPB Docket
No. DE-0752-17-0171-I-1. Petition for Review (PFR) File, Tab 11. The appellant
asserts that his new evidence demonstrates “a nexus between [the age ncy’s] charges,
and Due Process, Prohibited Personnel Practice, Weingarten violations, Retaliatory
Animus, Arbitrary, Capricious, and abuse of Discretion violations.” Id. at 5. The
appellant does not, however, explain with any specificity the nature of t he evidence, its
need to be submitted, or its relevancy to the material issues in this appeal.
Accordingly, we deny the appellant’s motion. 5 C.F.R. § 1201.114(a)(5).
4
In Hillen, the Board set forth factors that an administrative judge must consider when
trying to resolve credibility issues. Hillen, 35 M.S.P.R. at 458.
5
As to the third specification of the first charge, the administrative judge erroneously
stated that the first-level supervisor’s and proposing official’s testimony “is consistent
6
while the appellant generally denied the charges, he did not dispute most of the
facts underlying the first charge, and he did not testify as credibly as his
first-level supervisor did regarding the facts underlying the sec ond charge. Id.
We discern no reason to disturb the administrative judge’s findings, as the record
reflects that he considered the evidence as a whole, drew appropriate inferences
from the evidence, and made reasoned conclusions on the issue of credibili ty.
Id.; see Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (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 the issue of credibility); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶8 However, we modify the initial decision to reflect the proper standard to
prove a charge of failure to follow instructions under the circumstances of this
case. In the order and summary of the prehearing conference and in the initial
decision, the administrative judge stated that the agency, as part of its burden of
proof on the second charge, was required to establish that the appellant’s failure
to follow instructions endangered the safety of persons or property. 6 ID at 12;
IAF, Tab 45 at 6. This was erroneous. To prove a charge of failure to follow
instructions in this case, the agency only needed to establish that the appellant:
(1) was given proper instructions; and (2) failed to follow the instructions,
without regard to whether the failure was intentional or unintentional. Powell v.
U.S. Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). The administrative judge’s
with the recording of the meeting,” as no audio recording of the meeting described in
the specification was admitted into evidence. ID at 11. However, this finding did not
prejudice the appellant, as the administrative judge properly found the supervisors’
testimony credible and consistent with each other and the documentary evidence. Id.
6
The administrative judge issued an Erratum following the order and summary, noting
that the agency objected to this labeling of the charge. The administrative judge
corrected the label of the charge, indicating that the extraneous language was “an
artifact from an unrelated appeal.” Nonetheless, this improper label re-emerged in the
initial decision.
7
inclusion of an additional requirement appears to have been an inadvertent error,
which did not materially alter his correct conclusion that this charge should be
sustained. IAF, Tab 47 at 1.
¶9 Accordingly, we affirm the administrative judge’s finding that the agency
proved its charges.
The appellant failed to show that the administrative judge erred by excluding his
witnesses or by sanctioning him for failing to comply with an order to produce
discovery.
¶10 On review, the appellant argues that the administrative judge erred by
excluding his requested witnesses and by sanctioning him for failing to comply
with an order to produce discovery. PFR File, Tab 1 at 2-3. We disagree. We
find that the administrative judge did not abuse his discretion in so ruling.
Despite being provided several opportunities to do so, the appellant did not
identify the substance and relevance of his proposed witnesses’ testimony. IAF,
Tab 21, Tab 45 at 11-12, Tab 48 at 3; see 5 C.F.R. § 1201.41(b)(10) (an
administrative judge is authorized to “[o]rder the production of evidence and the
appearance of witnesses whose testimony would be relevant, material, and
nonrepetitious”). Additionally, the record supports the administrative judge’s
finding that, despite several warnings, the appellant failed to c omply with the
administrative judge’s order to produce responses to specific agency discovery
requests. IAF, Tab 19, Tab 22 at 2, Tab 33 at 1-2. Consequently, we find that it
was within the administrative judge’s discretion to impose sanctions limiting t he
appellant’s introduction of evidence related to his affirmative defenses. See
Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011) (stating that
imposing sanctions is a matter within the administrative judge’s sound discretion
and, absent a showing that such discretion has been abused, the decision will not
be found to constitute reversible error), aff’d per curiam, 498 F. App’x 1 (Fed.
Cir. 2012).
8
¶11 The appellant also argues that the agency failed to call him to testify at the
hearing and that the administrative judge failed to ask him questions during the
hearing. PFR File, Tab 1 at 2. Our review of the record reflects that the
appellant did testify at the hearing. In fact, he was approved as a joint witness for
both parties. IAF, Tab 45 at 11 & n.5. Because the appellant testified on his own
behalf, there was no need for the agency to also call him as a witness; tha t would
have been duplicative. And, although the appellant asserts that the administrative
judge did not ask him questions at the hearing, an administrative judge has the
option of asking a witness questions, but he is not required to do so. The record
also reflects that the appellant was permitted to cross-examine agency witnesses
at length during the hearing, thereby allowing him to defend against the charges.
¶12 The appellant argues, moreover, that — in finding that the appellant did not
deny the charges—the administrative judge erred by failing to consider the
appellant’s deposition testimony in which he denied the charges. The
administrative judge, when declaring in the initial decision tha t the appellant did
not deny the charges, was referring to the appellant’s testimony at the Board’s
hearing, and not at the deposition. ID at 6, 9, 11 (“[t]he appellant testified at the
hearing, but did not specifically address the factual allegations supporting” the
charges). The administrative judge most likely did not refer to the appellant’s
deposition testimony because neither party introduced this deposition testimony
into the record. HR (testimony of the appellant). However, the administrative
judge, as to the first charge, pointed out that the appellant ge nerally denied the
charged misconduct in his written reply to the notice of proposed suspension, yet
he found that the appellant did not otherwise contest the agency’s version of facts
or assert a different course of action. ID at 6, 9, 11. Likewise, the administrative
judge, as to the second charge, highlighted that the appellant testified at the
hearing that he provided an email response to the supervisory instruction, thereby
challenging the agency’s claim that he did not follow a supervisory instruction,
but the administrative judge indicated that the appellant “did not state on which
9
date he provided” this response. ID at 14. The administrative judge also quoted
an unsworn statement the appellant provided to contest the second charge, but the
administrative judge found the agency’s contrary evidence on this charg e to be
more credible. Id. We see no reason to disturb these findings. As a result, we
find that the administrative judge did not abuse his discretion and acted
appropriately by fully developing the record, conducting a fair hearing, and
ensuring an impartial and just adjudication of this matter. See 5 C.F.R.
§ 1201.41.
The appellant has not demonstrated that the administrative judge abused his
discretion in making rulings on the appellant’s affirmative defenses.
¶13 On review, the appellant challenges the administrative judge’s prehearing
rulings that identified the issues to be adjudicated. PFR File, Tab 1 at 1-4. An
administrative judge has wide discretion to control the proceedings, including
holding prehearing conferences for the simplification of issues and ruling on
exhibits and witnesses. Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 38
(2012); 5 C.F.R. § 1201.41. The Board will not overturn an administrative
judge’s rulings absent a showing of an abuse of discretion. Doe, 118 M.S.P.R.
434, ¶ 38.
¶14 The appellant has not shown that the administrative judge abused his
discretion by identifying race discrimination and reprisal for prior EEO activity
as affirmative defense issues to be adjudicated. PFR File, Tab 1 at 1. The
administrative judge’s order summarizing the prehearing conference stated that
the appellant raised race discrimination as an affirmative defense, but, as the
administrative judge noted in the initial decision, the appellant withdrew this
affirmative defense at the start of the hearing, and so the administrative judge
correctly did not adjudicate this issue. IAF, Tab 45 at 5, 7-9, Tab 48 at 1-2,
Tab 52, HR (statement of the appellant); ID at 15. On the other hand, the
appellant raised EEO reprisal as an affirmative defense throughout the
proceedings, including during the hearing, and thus the administrative judge
10
properly identified and adjudicated this defense. IAF, Tab 1 at 2, Tab 45 at 5, HR
(statement of the appellant); ID at 15-18.
¶15 Next, the appellant again raises a claim of harmful procedural error. PFR
File, Tab 1. On appeal, he alleged in his prehearing statement and during the
hearing that the agency failed to investigate the incidents underlying the charges
and did not timely propose his discipline in violation of the applicable collective
bargaining agreement (CBA). IAF, Tab 21 at 2, HR (testimony of the appellant).
The administrative judge addressed the issue of the timeliness of the discipline in
considering whether the charges were stale, but he did not consider the issue the
appellant raised as a potential violation of the CBA. ID at 19-20.
¶16 We find that the administrative judge should have identified and
adjudicated this argument raised by the appellant. However, this error does not
warrant reversal of the initial decision because it did not adversely affect the
appellant’s substantive rights. 7 See Karapinka v. Department of Energy,
6 M.S.P.R. 124, 127 (1981) (stating that an administrative judge’s procedural
error is of no legal consequence unless it is shown to have adversely affected a
party’s substantive rights).
¶17 To prove harmful procedural error, the appellant must show both that the
agency committed procedural error and that the error was harmful. Rogers v.
Department of Defense, 122 M.S.P.R. 671, ¶ 7 (2015). The appellant alleged that
the agency violated Article 3-6(G) of the CBA, which provides that, “[i]n
conducting investigations regarding a non-criminal matter that may result in an
adverse determination . . . the parties are reminded that the Privacy Act requires
that, to the extent practicable, information should be initially collected directly
from the subject employee.” IAF, Tab 4 at 21, Tab 21 at 2. It is unclear whether
the agency conducted an “investigation” as contemplated by Article 3-6(G) prior
7
The administrative judge notified the appellant of the elements and his burden to
prove harmful procedural error in his order summarizing the prehearing conference.
IAF, Tab 45 at 7.
11
to proposing the appellant’s 30-day suspension, but the question of whether the
agency complied with the Privacy Act is not one over which the Board has
jurisdiction. Social Security Administration v. Carr, 78 M.S.P.R. 313, 333 n.3
(1998), aff’d, 185 F.3d 1318 (Fed. Cir. 1999); see also Martin v. Department of
the Army, 251 F.3d 170 (Fed. Cir. 2000) (Table) (holding that alleged violations
of the Privacy Act properly lie in district court). 8 To the extent that,
notwithstanding the Privacy Act, the CBA required the agency, as practicable, to
collect information directly from the appellant, we find that the appellant’ s
meetings with his supervisors that form the basis of the first charge, and his
discussion with his first-level supervisor as narrated in the second charge, meet
this standard. IAF, Tab 5 at 30-31. Additionally, contrary to the appellant’s
assertions, the agency was not required under the CBA to conduct an
investigation prior to proposing an adverse action. IAF, Tab 4 at 36. The
appellant also did not show that the agency failed to timely propose discipline
under the CBA, as the applicable CBA provision, Article 23-2, does not define a
“timely” initiation of an action, nor did the appellant put forth evidence to define
the term. 9 Id. Even if the appellant could show that the agency violated the
CBA, he did not explain why the violations were harmful. Thus, the appellant did
not show that the agency committed harmful procedural error.
The administrative judge properly found that the appellan t did not prove his
affirmative defenses.
¶18 On review, the appellant has not disputed the administrative judge’s
findings that the appellant did not prove either that a due process error occurred
8
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
9
The administrative judge excluded witnesses that the appellant claimed would testify
about procedural error; however, we find no error in this ruling because the appellant
did not articulate the relevance of each witness’s testimony to the procedural errors at
issue and has not alleged that the witnesses were able to address the issue of timeliness
under the CBA. IAF, Tab 48 at 3.
12
or that the agency unreasonably delayed in bringing stale charges to support its
disciplinary action or that he was materially prejudiced by any such delay,
ID at 18-20, and we see no reason to disturb those findings.
¶19 The appellant, however, asserts that the administrative judge erred in
finding that reprisal for his participation in protected EEO activity was not a
motivating factor in the agency’s decision to suspend hi m. ID at 15-20. In so
finding, the administrative judge applied the evidentiary standards set forth in
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015),
overruled in part by Pridgen v. Office of Management & Budget , 2022 MSPB 31,
¶¶ 23-25; ID at 15-18. In Savage, the Board stated that, when an appellant asserts
an affirmative defense of discrimination or reprisal, the Board first will inquire
whether the appellant has shown by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action. Savage,
122 M.S.P.R. 612, ¶ 51. The Board further stated that, in making his initial
showing, an appellant may rely on direct evidence or any of the three types of
circumstantial evidence described in Troupe v. May Department Stores Co.,
20 F.3d 734 (7th Cir. 1994), i.e., pretext, comparator or “convincing mosaic,”
either alone or in combination. Savage, 122 M.S.P.R. 612, ¶ 51.
¶20 The Board has since clarified that Savage does not require administrative
judges to separate “direct” from “indirect” evidence and to proceed as if such
evidence were subject to different legal standards, or to require appellants to
demonstrate a “convincing mosaic” of discrimination or reprisal. Gardner v.
Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 29 (2016), 123 M.S.P.R.
647, ¶ 29 (quoting Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764 (7th Cir.
2016)), clarified by Pridgen v. Office of Management & Budget, 2022 MSPB 31,
¶¶ 23-24. Instead, as the Board stated in Savage, the dispositive inquiry is
whether the appellant has shown by preponderant evidence that the prohibited
consideration was a motivating factor in the contested p ersonnel action. Gardner,
123 M.S.P.R. 647, ¶ 30; see Savage, 122 M.S.P.R. at 613, ¶ 51. Here, the
13
administrative judge discussed the distinction between direct and circumstantial
evidence, but there is no indication that he disregarded any evidence because it
was not direct or circumstantial, and we conclude that he properly considered the
evidence as a whole in finding that the appellant failed to prove by preponderant
evidence that reprisal was a motivating factor in the removal action . ID at 15-18.
As such, we discern no basis upon which to disturb the administrative judge’s
findings denying the appellant’s affirmative defenses. 10 See Clay, 123 M.S.P.R.
245, ¶ 6.
The appellant failed to show that the administrative judge was biased or that the
administrative judge should have recused himself.
¶21 In addition, the appellant argues that the administrative judge was biased
and erred by not recusing himself from the case after the appellant requested
recusal and that the administrative judge made adverse rulings against the
appellant following the recusal request. PFR File, Tab 1 at 1. In making a claim
of bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 19
(2016); Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980).
An administrative judge’s conduct during the course of a Board proceeding
warrants a new adjudication only if the administrative judge’s comments or
actions evidence “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358,
1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). Here, the appellant’s disagreement with the ad ministrative judge’s
rulings is not sufficient to show bias. Diggs v. Department of Housing & Urban
10
Because we discern no error with the administrative judge’s motivating factor
analysis or conclusion regarding this claim, we need not resolve the issue of whether
the appellant proved that retaliation was a “but-for” cause of the agency’s decision. See
Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
14
Development, 114 M.S.P.R. 464, ¶ 9 (2010). We also have reviewed the
administrative judge’s ruling denying the appellant’s motion to recuse and the
administrative judge’s conduct in this matter, and we find no evidence of
favoritism or antagonism warranting reversal of the initial decision. IAF , Tab 45
at 2-4; see Washington v. Department of the Interior, 81 M.S.P.R. 101, ¶ 15
(1999) (holding that litigants are entitled to an unbiased administrative judge,
albeit not necessarily one of their choosing, and that an administrative judge “is
as much obligated not to recuse himself when it is not called for as he is obliged
to when it is”) (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312
(2d Cir. 1988)).
The administrative judge properly found that a nexus existed between the charged
conduct and the efficiency of the service and that the penalty was within the
tolerable limits of reasonableness.
¶22 Finally, the appellant challenges the administrative judge’s findings that the
agency proved a nexus between his conduct and the efficiency of the service .
PFR File, Tab 1 at 3-4. However, his arguments regarding nexus address the
administrative judge’s rulings and findings regarding the charges , which we have
addressed above, and are not relevant to the issue of nexus. The appellant’s
arguments challenging the penalty are similarly not relevant. It is not exactly
clear what he is asserting when he argues that the “Table of Penalties relate to my
statement that (I am not a child)” and that this and other factors weighed too
heavily in the assessment of the penalty. PFR File, Tab 1 at 3. According to the
agency, though, it does not have a table of penalties to consider in assessing the
appellant’s misconduct. In any event, there is no evidence that the statement that
the appellant is referencing in this argument was ever considered by the deciding
official or the administrative judge in assessing the penalty. Id. at 3; IAF, Tab 5
at 8-17. The record reflects that the administrative judge properly found that the
agency proved a nexus between the appellant’s conduct and the efficiency of the
service, and that the penalty was within the tolerable limits of reasonableness.
15
We see no reason to disturb the administrative judge’s well -reasoned findings on
these matters. ID at 20-24; see Clay, 123 M.S.P.R. 245, ¶ 6.
¶23 Accordingly, we affirm the initial decision, as modified by this Final Order.
NOTICE OF APPEAL RIGHTS 11
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
11
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.
16
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
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
17
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
18
(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
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.
12
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.
19
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.
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.