The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAMON D. WEAVER, DOCKET NUMBER
Appellant, NY-0714-17-0236-I-1
v.
DEPARTMENT OF VETERANS DATE: April 25, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Harvey P. Sanders, Esquire, Cheektowaga, New York, for the appellant.
Justina L. Lillis, Buffalo, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal under the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017, Pub. L. No. 115 -41, 131 Stat. 862
(VA Accountability Act) (codified in relevant part, as amended, at 38 U.S.C.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
§ 714). For the reasons discussed below, we GRANT the appellant’s petition for
review and REVERSE the initial decision. The appellant’s removal is
REVERSED.
BACKGROUND
¶2 Effective September 9, 2017, the agency removed the appellant from his
GS-5 Medical Supply Technician position in the Sterile Processing Services
Department (SPS) of the agency’s Western New York Healthcare System . Initial
Appeal File (IAF), Tab 7 at 18, 22. The agency removed the appellant pursuant
to 38 U.S.C. § 714, part of the VA Accountability Act, which was enacted on
June 23, 2017. IAF, Tab 7 at 22-24. The agency removed the appellant based on
the following two charges, (1) jeopardizing patient welfare; and (2) failure to
follow procedures, each of which was supported by the same four incidents. Id.
at 29-31. The appellant filed an appeal with the Board challenging his removal .
IAF, Tab 1. He did not raise any affirmative defenses.
¶3 The administrative judge merged the two charges into a single charge of
jeopardizing patient welfare/failure to follow procedures, with four specifications.
IAF, Tab 7 at 29-31, Tab 21, Initial Decision (ID) at 3-4. Specification 1 alleged
as follows: on June 22, 2017, the SPS Assistant Manager (AM) observed debris
and colored fluid flowing from an endoscope that the appellant had cleaned and
placed in the Medivator. 2 She removed the endoscope from the Medivator and
performed a channel check 3 on it; and the endoscope failed the channel check,
indicating that it was not properly cleaned. IAF, Tab 7 at 29.
2
A Medivator is a machine used to disinfect endoscopes after they are cleaned by hand.
IAF, Tab 19 at 8 n.2, Tab 20 at 6.
3
A channel check is a test that indicates whether an endoscope contains contaminants.
IAF, Tab 19 at 8 n.3, Tab 20 at 5-6.
3
¶4 Specification 2 alleged that the AM then asked the appellant to clean the
endoscope again, and she performed another channel check. Id. The endoscope
failed, indicating that it was not properly cleaned. Id.
¶5 Specification 3 alleged that about 2 hours later, the AM and the day shift
supervisor conducted a channel check on another endoscope that the appellant had
placed in the Medivator. Id. This endoscope also failed the channel check,
indicating that it was not properly cleaned, even though the appellant had
documented that the equipment had been cleaned. Id.
¶6 Specification 4 alleged that, based on the results of the June 22, 2017
channel checks, on June 23 and 24, 2017, the agency conducted channel checks
on 30 endoscopes that the appellant had cleaned. Id. Seven of them failed the
channel checks, indicating that these endoscopes were not properly cleaned, even
though the appellant had documented that the y had been cleaned and had passed
the required channel checks. Id.
¶7 After holding a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. ID at 2, 8. The administrative judge found
that the agency proved all of the specifications of the merged charge except
specification 2, and that it established the merged charge by substantial evidence.
ID at 7-8.
¶8 The appellant has filed a petition for review and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the
agency must support its charges by substantial evidence. 38 U.S.C.
§ 714(d)(2)(A). If the agency meets this burden, the Board may not mitigate the
agency’s chosen penalty, but it is nevertheless required to review the penalty as
part of the agency’s overall decision. 38 U.S.C. § 714(d)(2)(B), (3)(C); Sayers v.
Department of Veterans Affairs, 954 F.3d 1370, 1375-79 (Fed. Cir. 2020).
4
¶10 The administrative judge found that the agency met its burden to prove
Specifications 1, 3, and 4, and therefore the merged charges. ID at 6-7. In
support of this finding, she explicitly credited the AM’s testimony based on her
demeanor. ID at 6. Specifically, the administrative judge credited the AM’s
testimony that (1) on June 22, 2017, an endoscope the appellant had cleaned
failed a channel check, (2) later that day, the day shift supervisor performed a
channel check on a second endoscope that the appellant cleaned, which also
failed, and (3) because of these failures, on June 23 and 24, 2017, the AM tested
20 endoscopes the appellant cleaned, 7 of which failed the channel check. ID
at 5-6. We afford these explicit demeanor-based factual findings deference. 4
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating
that 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; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so) .
¶11 On review, the appellant disputes the administrative judge’s findings of fact
and credibility determinations, and he argues the merits of the charges. PFR File,
Tab 1. We do not reach these arguments because developments in the case law
after the issuance of the initial decision require that the removal be reversed.
Specifically, after the initial decision in this appeal was issued, the Board and the
U.S. Court of Appeals for the Federal Circuit issued precedential opinions
addressing the application of the VA Accountability Act to events that occurred
before the date of its enactment.
¶12 In Sayers, 954 F.3d at 1380-82, the Federal Circuit found that applying
38 U.S.C. § 714 to conduct occurring prior to its enactment has an impermissible
4
Also, although the agency alleged in specification 4 that the AM performed channel
checks on 30 endoscopes, IAF, Tab 7 at 30, whether the AM tested 20 or 30 endoscopes
does not affect our finding that the agency’s action must be reversed.
5
retroactive effect, which Congress had not authorized. Therefore, the agency may
not use the VA Accountability Act to discipline an employee for matters that
occurred before its effective date, June 23, 2017. Sayers, 954 F.3d at 1374,
1380-82. Subsequently, the court issued an opinion in Brenner v. Department of
Veterans Affairs, 990 F.3d 1313, 1327-30 (Fed. Cir. 2021), addressing the
section 714 removal of an employee for performance issues both predating and
postdating June 23, 2017. The court in Brenner vacated the petitioner’s removal
and remanded the appeal to the Board to determine whether the agency’s removal
action was “supported by substantial evidence on the evidence of record that
postdates the Act.” Id. at 1330.
¶13 Finally, in Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 29,
the Board addressed the section 714 demotion of an employee based on alleged
neglect of duty both predating and postdating the effective date of the VA
Accountability Act. The Board considered whether it would be possible to
sustain the agency’s action based solely on any alleged post-June 23, 2017
neglect of duty, but it concluded that the action must be reversed because the
underlying alleged instances of misconduct by the appellant’s subordinates were
“so factually interrelated that they cannot be fairly separated.” Id., ¶¶ 29-33
(quoting Boss v. Department of Homeland Security, 908 F.3d 1278, 1282-83 (Fed.
Cir. 2018)).
¶14 In this case, as in Brenner and Wilson, the charge encompasses events that
occurred both before and after the effective date of the VA Accountability Act.
We have considered whether the charge might be sustained based solely on
appellant’s conduct after June 23, 2017. See Brenner, 990 F.3d at 1330.
However, after a careful review of the record, we have determined that this case
is similar to Wilson. As in Wilson, 2022 MSPB 7, ¶ 33, the notice of proposed
removal in this case does not distinguish between misconduct that occurred
before and after the effective date of the Act. IAF, Tab 7 at 29 -30. Although
most of the channel checks were performed on June 23 and 24, 2017, the
6
appellant cleaned most or all of those endoscopes on or before June 22. Id. at 33,
51-52. Our conclusion is supported by the fact that the appellant cleaned
endoscopes on June 23, 2017, for only 35 minutes before the agency removed him
from this work. Id. at 33, 39, 51-52. The agency then conducted the channel
checks on the following 2 days “from the week,” and concluded that seven
endoscopes “were not clean[ed] correctly on [June 22, 2017].” Id. at 33, 52.
Thus, all of the misconduct underlying the appellant’s removal occurred on
June 22, 2017, one day prior to the enactment of the VA Accountability Act , or
earlier. The charges and the record suggest that the June 23 and 24, 2017, test
results merely revealed misconduct that occurred before June 23, 2017. Id. at 29.
¶15 For these reasons, we find that the appellant’s removal must be reversed.
See Wilson, 2022 MSPB 7, ¶ 33. To the extent the agency wishes to take a new
adverse action based on events occurring after June 23, 2017, it may do so under
the procedures of 38 U.S.C. § 714 or 5 U.S.C. chapter 75. To the extent the
agency wishes to rely on evidence of misconduct that predates the Act, it must
proceed in accordance with 5 U.S.C. chapter 75. See Brenner, 990 F.3d at 1330.
ORDER
¶16 We ORDER the agency to cancel the removal action and restore the
appellant effective September 9, 2017. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶17 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
7
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶18 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶19 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶20 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
8
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 5
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 se eking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5
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.
9
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
10
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
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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. 6 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
6
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.
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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.
13
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
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NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to
be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required
data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment,
Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Su9999m amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel
Operations at 504-255-4630.