The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE MILLER, DOCKET NUMBER
Appellant, SF-0432-20-0165-I-2
v.
DEPARTMENT OF COMMERCE, DATE: July 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michelle Miller, Seattle, Washington, pro se.
Molly Dennison, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review, and the agency has filed a
cross petition for review of the initial decision, which affirmed the removal based
on unsatisfactory performance and concluded that the appellant did not prove any
of her affirmative defenses. Generally, we grant petitions such as these only in
the following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 o f 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 neither party has
established any basis under section 1201.115 for granting the petition or cros s
petition for review. Therefore, we DENY the petition for review and the cross
petition for review. We MODIFY the initial decision to supplement the
administrative judge’s analysis regarding (1) whether the Office of Personnel
Management (OPM) approved the agency’s performance appraisal system and
(2) the third factor under Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999), related to the appellant’s claim of reprisal for
whistleblowing disclosures and/or protected activity. Except as expressly
MODIFIED herein, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 We discern no error with the administrative judge’s conclusion that the
agency met its burden of proof regarding OPM’s approval of its performance
appraisal system based on the evidence that she described in the initial decision .
Miller v. Department of Commerce, MSPB Docket No. SF-0432-20-0165-I-2,
Appeal File (I-2 AF), Tab 45, Initial Decision (ID) at 10. However, we
supplement her analysis to note that OPM approved the Department of Commerce
Alternative Personnel System on August 14, 1996. I-2 AF, Tab 27 at 20. Such
evidence contradicts the appellant’s assertion on review that the agency “offered
3
no written evidence supporting OPM approval.” 2 Petition for Review File, Tab 1
at 12 n.9.
¶3 Although not raised by either party on review, we modify the initial
decision to supplement the administrative judge’s analysis of Carr factor 3—any
evidence that the agency takes similar actions against employees who are not
whistleblowers or who did not engage in protected activity but who are otherwise
similarly situated. Carr, 185 F.3d at 1323; ID at 133. The administrative judge
considered this factor neutral because neither party presented any comparator
evidence. ID at 133.
¶4 The U.S. Court of Appeals for the Federal Circuit 3 has held that, in the
absence of relevant comparator evidence, Carr factor 3 cannot favor the
Government. Smith v. General Services Administration, 930 F.3d 1359, 1367
(Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299
(Fed. Cir. 2018). However, “the agency need not prove every factor weighs in its
favor, [and] the absence of evidence related to Carr factor three is not fatal to the
agency.” Rickel v. Department of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022).
Even if we weighed this Carr factor in the appellant’s favor, it does not outweigh
the administrative judge’s thorough assessment of the other two Carr factors. We
are ultimately left with a firm belief that the agency would have removed the
2
Because we affirm the administrative judge’s decision to sustain the removal based on
unsatisfactory performance in critical element (1), we need not address the parties’
arguments on review regarding critical element (3).
3
Historically, the Board has been bound by the precedent of the Federal Circuit on
issues of whistleblower reprisal. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat
1465, extended for 3 years in the All Circuits Review Extension Act, Pub. L. No.
113-170, 128 Stat. 1894, and eventually made permanent in the All Circuits Review
Act, Pub. L. No. 115-195, 132 Stat. 1510, we must consider this issue with the view
that the appellant may seek review of this decision before any appropriate court of
appeal. See 5 U.S.C. § 7703(b)(1)(B). We are not aware that any circuit court of
appeals, other than the Federal Circuit, has issued case law regarding Carr factor 3 that
is different from the cases that we have cited herein.
4
appellant for unsatisfactory performance in the absence of any whistleblowing
disclosures and/or protected activity. We therefore agree with the administrative
judge that the appellant did not prove that the removal action was taken in
retaliation for her whistleblowing disclosures and/or protected activity.
NOTICE OF APPEAL RIGHTS 4
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 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
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
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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
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 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
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.