The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT DONNELL DONALDSON, DOCKET NUMBERS
Appellant, DC-0752-13-1200-B-2
DC-3330-17-0679-I-1
v.
DEPARTMENT OF THE NAVY,
Agency. DATE: June 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Donnell Donaldson, Landover, Maryland, pro se.
Donald J. Thornley, Esquire, and Patricia Reddy-Parkinson, Norfolk,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of two initial decisions. The
initial decision issued in MSPB Docket No. DC-0752-13-1200-B-2 found that the
appellant did not prove his discrimination claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), as he failed to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
proffer any evidence demonstrating that the agency furloughed him in 2013 or
failed to provide retention rights due to his military status. The initial decision
issued in MSPB Docket No. DC-3330-17-0679-I-1 denied the appellant’s request
for corrective action under the Veterans’ Employment Opportunity Act of 1998
(VEOA), as he did not identify any right under a statute or regulation relating to
veterans’ preference that the agency violated when furloughing him for 6 days in
2013. Generally, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretati on 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 abus e 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 these appeals, we JOIN them. 2 We conclude that the
petitioner has not established any basis under section 1201.115 for granting either
petition for review. Therefore, we DENY the petitions for review and AFFIRM
the initial decisions, which are now the Board’s final decisions. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant filed the same petition for review in these appeals.
Donaldson v. Department of the Navy, MSPB Docket No. DC-0752-13-1200-B-2,
Petition for Review (1200 PFR) File, Tab 1 at 4-5; Donaldson v. Department of
the Navy, MSPB Docket No. DC-3330-17-0679-I-1, Petition for Review
2
Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite processing of the cases and not adversely impact the interests of the
parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.
§ 1201.36(a)(2). The appellant’s two appeals here, with the same set of operative facts,
meet this criterion and are joined as a result.
3
(0679 PFR) File, Tab 1 at 4-5. He challenges both initial decisions by claiming
that the administrative judge did not cite to proper authority to support the
conclusions, failed to address each of his allegations, and did not rule on all
material matters. 1200 PFR File, Tab 1 at 4; 0679 PFR File, Tab 1 at 4. There is
no requirement that an administrative judge respond to every theory and
speculation set forth by an appellant. Marques v. Department of Health and
Human Services, 22 M.S.P.R. 129, 132 (1984) (stating that an administrative
judge’s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). Initial decisions must contain findings of fact and conclusions of law for
the material issues presented in the record, along with the corresponding reasons
or bases. 5 C.F.R. § 1201.111(b)(1)-(2); see Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Our review concludes that the initial
decisions issued in both cases meet this standard.
¶3 In his petition for review and throughout the adjudication of his VEOA
appeal, the appellant continuously claimed that an agency officer advised
employees prior to the 2013 furlough that “retention rights” would be afforded.
0679 PFR File, Tab 1 at 4-5. However, any mention of “retention rights” by the
agency in this setting would not create any additional rights for employees
outside of those already contained in laws and regulations. 3 Misinformation is
not a valid source of rights. See Martin v. U.S. Postal Service, 101 M.S.P.R. 634,
¶ 5 (2006) (holding that an agency misinforming the appellant of her appeal rights
did not confer Board jurisdiction where it does not otherwise exist); see also
Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434 (1990)
3
Retention rights are applicable during a reduction in force (RIF). See 5 C.F.R.
§§ 351.501-351.506. Agencies must conduct furloughs of more than 30 days according
to the RIF procedures of 5 C.F.R. part 351, and the Board will review such actions to
determine whether the agency properly invoked and applied the RIF regulations. Salo
v. Department of Defense, 122 M.S.P.R. 417, ¶ 6 (2015). As in this case, agencies may
conduct a furlough of 30 days or less without following RIF procedures. Id.
4
(holding that that the Government cannot be estopped from denying benefits not
otherwise permitted by law even if the claimant was denied benefits because of
her reliance on the mistaken advice of a Government official). Here, the
appellant did not identify any right under a statute or regulation relating to
veterans’ preference that the agency violated when furloughing him for 6 days in
2013.
¶4 Accordingly, we affirm the initial decision.
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
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 choice s 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.
4
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.
5
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 particu lar
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. 420 (2017). If you have a representative in this case,
6
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
7
(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 2 302(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
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.
5
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.
8
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.