Opinion

Tony King v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Oct 18, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TONY KING, DOCKET NUMBER

Appellant, AT-0752-19-0350-I-1

DEPARTMENT OF AGRICULTURE, DATE: October 18, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tony King, Anniston, Alabama, pro se.

Jose Calvo, 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 initial decision, which

sustained his removal. On petition for review, the appellant argues that he could

not be removed while he was reinstated pursuant to an interim relief order issued

in a prior Board appeal in King v. Department of Agriculture, MSPB Docket

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

No. AT-0752-18-0079-I-1. Generally, we grant petitions such as this one only in

the following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision 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 AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 In 2017, the agency removed the appellant from his GS-12 Enforcement

Investigative and Analysis Officer position with the Food Safety and Inspection

Service based on the charges of (1) unprofessional conduct and (2) failure to

follow instructions. King v. Department of Agriculture, MSPB Docket

No. AT-0752-18-0079-I-1, Initial Appeal File (0079 IAF), Tab 5 at 15-19,

153-59. The administrative judge in that appeal issued an initial decision finding

that the agency failed to prove the charges and that the appellant proved that the

agency retaliated against him for having exercised his equal employment

opportunity rights. 0079 IAF, Tab 25, Initial Decision at 20. She ordered interim

relief if either party filed a petition for review, id. at 21-22, and the agency

reinstated the appellant on that basis, King v. Department of Agriculture, MSPB

Docket No. AT-0752-19-0350-I-1, Initial Appeal File (IAF), Tab 9 at 66. The

agency has filed a petition for review of the initial decision , which is pending

with the Board.

¶3 While the appellant was employed on the basis of the interim relief order,

the agency initiated the removal action that is the basis of this appeal. IAF, Tab 6

at 27-32, Tab 9 at 10-15. He appealed that removal to the Board, and, after the

appellant’s requested hearing, the administrative judge sustained the agency’s

second removal action. IAF, Tab 29, Initial Decision. The essence of the

appellant’s claim on review is that the second removal action was per se improper

as contrary to the interim relief order in his first appeal. Petition for Review File,

Tab 1.

¶4 It is well settled that an interim relief order does not insulate an appellant

from a subsequent adverse action so long as that action is not inconsistent with

the initial decision. Rothwell v. U.S. Postal Service, 68 M.S.P.R. 466, 468

(1995); Barcliff v. Department of the Navy, 62 M.S.P.R. 428, 433 (1994); see also

Wilson v. Department of Justice, 66 M.S.P.R. 287, 291, 296–97 (1995) (finding

that a removal action is not per se improper because it was effected during the

interim relief period, although it was improper on its merits). When an agency

effects a second removal action during a period of interim relief ordered in an

initial decision in a prior removal action, and the appellant files an appeal of the

second action, the Board considers the second removal action on its merits. See

generally Wilson, 66 M.S.P.R. at 291, 296-97. That the appellant was reinstated

pursuant to an interim relief order is irrelevant to the merits of the second

removal action. Thus, the administrative judge properly adjudicated the second

removal action on the merits and without reference to the fact t hat, at the time of

his removal, the appellant was reinstated pursuant to an interim relief order.

¶5 The appellant’s arguments on review do not show error in the

administrative judge’s findings that the agency proved the charged misconduct,

established a nexus between the misconduct and the efficiency of the service, and

showed that the penalty of removal was within the tolerable limits of

reasonableness. We discern no reason to disturb the initial decision. 2 See Crosby

v. U.S. Postal Service, 74 M.S.P.R. 98, 105–06 (1997) (finding no reason to

disturb the administrative judge’s findings where she considered the evidence as a

whole, drew appropriate references, and made reasoned conclusions); see also

Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359

(1987) (same).

NOTICE OF APPEAL RIGHTS 3

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 decis ion, 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.

The appellant does not challenge on review the administrative judge’s findings

regarding the affirmative defenses he raised below.

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.

(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).

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. 4 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

The original statutory provision that provided for judicial review of ce rtain

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. 11 5-195,

132 Stat. 1510.