Opinion

John Edwards v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jun 2, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN B. EDWARDS, DOCKET NUMBER

Appellant, SF-1221-16-0811-W-1

DEPARTMENT OF THE NAVY, DATE: June 2, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.

Trenton Bowen, Keyport, Washington, 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

denied corrective action in his individual right of action (IRA) appeal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 On review, the appellant raises a number of procedural arguments that he

claims “resulted in unfavorable conditions for a proper decision to be made in this

case.” Petition for Review (PFR) File, Tab 1 at 6. First, he alleges that the

hearing had to be postponed for a month because one of the witnesses was

unavailable and that the time gap may “have made it difficult for the

administrative judge to decipher between disputed testimony and fact.” Id. This

is inaccurate. The administrative judge afforded the parties a choice between

going forward with the hearing as scheduled and reconvening at a later date to

take the unavailable witness’s testimony or rescheduling the entire hearing and

the parties chose the former. Initial Appeal File, Tab 29. Moreover,

administrative judges must frequently conduct hearings on nonconsecutive days

or reconvene hearings to take the testimony of previously unavailable witnesses.

The appellant’s mere speculation that the administrative judge’s adjudication of

the case might have been compromised by the time gap between witnesses is not a

sufficient reason to disturb the initial decision.

¶3 Second, the appellant asserts that it took more than 180 days from the

conclusion of the hearing to the issuance of the initial decision, and he implies

that the case was too complicated for the administrative judge to grasp because of

all the jargon and idiosyncratic regulations involved. PFR File, Tab 1 at 6-7. A

delay between the date of the hearing and the issuance of the initial decision,

without some evidence of prejudice, is not a basis for disturbing the initial

decision. As to the complexity of the case, we disagree with the appellant’s

assumption that the unfamiliar jargon and rules in this case were materially more

difficult than in the Board’s other cases, and we do not find the legal issues in

this appeal to be unusually complex.

¶4 Third, it appears that the appellant argues that the testimony of key

witnesses for the agency went unrebutted because the appellant’s counsel decided

not to interpose objections “for fear of appearing confrontational or

disrespectful.” PFR File, Tab 1 at 7. We see no prejudice to the appellant’s

substantive rights because he had an opportunity to cross -examine the agency’s

witnesses if he preferred not to interpose objections. Counsel’s tactical decisions

concerning how to handle witnesses for the agency and the consequences flowing

therefrom are his own responsibility and are not a reason to set aside the initial

decision. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981) (stating

that the appellant is responsible for the errors of his chosen representative ).

¶5 Fourth, the appellant submits what he contends is new and material

evidence in the form of an Inspector General report, issued 2 months after the

conclusion of the hearing and received 1 month later, concluding that three of the

appellant’s four disclosures were substantiated. PFR File, Tab 1 at 7 & co py of

report. The report was available to the appellant 3 months before the date of the

initial decision, and the appellant has not explained why he did not send the

report to the administrative judge. Under 5 C.F.R. § 1201.115(d), the Board

generally will not consider evidence submitted for the first time with the petition

for review absent a showing that it was unavailable before the record was closed

despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980). The report is also not material because the issue in an IRA

appeal is not whether the agency committed waste, fraud, abuse, etc., but whether

the agency retaliated against the appellant for reporting waste, fraud, and abuse.

The Board generally will not grant a petition for review based on new evidence

absent a showing that it is of sufficient weight to warrant an outcome different

from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980). 2

¶6 The appellant also alleges that the administrative judge erred by finding that

the agency proved by clear and convincing evidence that it would have terminated

him absent any protected activity. We have reviewed the record and the

appellant’s arguments, in particular his argument about changing electronic

inventory entries. We find these arguments unpersuasive and conclude that the

appellant has provided no basis to disturb the initial decision. 3

NOTICE OF APPEAL RIGHTS 4

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

After the record closed on review, the appellant filed a motion for leave to file an

additional pleading in which he states that he has a 2018 “document and URL” that are

pertinent to his case. PFR File, Tab 8. He does not describe the contents of the

document he wishes to submit or explain how it might affect the outcome of his appeal.

Russo, 3 M.S.P.R. at 349. Furthermore, although he states that the document was not

available when his petition for review was due in 2017, he does not explain why he

waited until April 28, 2022, to file a motion for leave to submit it. We therefore deny

the appellant’s motion. 5 C.F.R. §§ 1201.114(k), .115(d).

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

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.

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully f ollow 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).

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 warran ts 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. 420 (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 discrimi nation 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 descri bed 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. 5 The court of appeals must receive your petition for

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.

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