The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GILBERT AGUIRRE, DOCKET NUMBER
Appellant, SF-4324-22-0026-I-1
v.
DEPARTMENT OF DEFENSE, DATE: November 6, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gilbert Aguirre , Sacramento, California, pro se.
Christine Yen , Esquire, Stockton, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant, a veteran, has filed a petition for review of the initial
decision, which denied him corrective action in his appeal under the Uniformed
Services Employment and Reemployment Rights Act (USERRA). 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency terminated the appellant during his probationary period based
on his arrest for driving under the influence of alcohol (DUI) and surrounding
circumstances, including the appellant’s attempt to use his Police Officer position
to obtain leniency from the arresting officer, and the need to cancel an upcoming
12-week training course for the appellant due to issues stemming from his arrest.
Initial Appeal File (IAF), Tab 4 at 17, 21-33; Hearing Transcript, Day 2 (HT 2)
at 140-41 (testimony of the deciding official). In addition to issues related to the
DUI incident, the termination notice referenced a written counseling the appellant
received for inappropriate conduct toward a female contractor and his placement
on leave restriction. IAF, Tab 4 at 17, 34-36. The appellant appealed his
termination to the Board, alleging that the agency treated him more harshly than
veterans who did not have combat experience, a claim the administrative judge
recognized as a USERRA appeal. 2 IAF, Tab 1, Tab 10 at 4-6, Tab 11 at 1,
Tab 50 at 4. After holding a hearing, the administrative judge found that the
2
The Board has recognized that USERRA prohibits discrimination based not only on
the fact of military service, but also on the particulars of that service. Beck v.
Department of the Navy, 120 M.S.P.R. 504, ¶ 10 (2014).
3
appellant’s written counseling, leave restriction, and termination were covered
actions under USERRA’s antidiscrimination provisions. IAF, Tab 61, Initial
Decision (ID) at 3, 15, 18, 21. However, the administrative judge applied the
factors set forth in Sheehan v. Department of the Navy, 240 F.3d 1009, 1014 (Fed.
Cir. 2001), to find that the appellant failed to show that his military service—as a
combat veteran or otherwise—was a substantial or motivating factor in those
actions. ID at 15-23. We discern no reason to disturb the initial decision. 3
¶3 We acknowledge that in the discussion of the leave restriction letter the
administrative judge erred in finding that the appellant’s managers were unaware
of the appellant’s status as a veteran. Petition for Review (PFR) File, Tab 3
at 16-17; ID at 16, 20. Based on his approved use of disabled veteran leave and
testimony from his managers about his use of such leave, the appellant
established that his managers likely knew he had served in the military. IAF,
Tab 34 at 14, 16-19; HT 2 at 43, 187 (testimony of the Captain, testimony of the
Deputy Chief of Police); see 5 U.S.C. § 6329. However, even if the appellant’s
management knew of his military service, the administrative judge correctly
found that there was no indication that they knew of the fact of his combat
service, which was the basis for the appellant’s USERRA claim. ID at 16; IAF,
Tab 50 at 4.
3
The appellant argues on review that he has new and material evidence and argument
regarding the DUI arrest of a Lieutenant, who, unlike him, was not removed from his
position following the arrest. Petition for Review File, Tab 3 at 29-31. Contrary to the
appellant’s assertions, evidence regarding the Lieutenant’s DUI was presented at length
during the appeal. IAF, Tab 39 at 13-14; Hearing Transcript, Day 1 at 77-83, 99-105,
134-35 (testimony of the Lieutenant, testimony of the former Deputy Chief of Police,
testimony of the combat veteran former Police Officer); HT 2 at 24-28, 87-88, 95-98,
148-51, 172-76 (testimony of the Captain, testimony of the concurring official,
testimony of the deciding official, testimony of the Deputy Chief of Police). The initial
decision reflects that the administrative judge considered the evidence and concluded
that it failed to show that the appellant’s military service, including his combat
experience, was a substantial or motivating factor in his termination. ID at 21-23.
Among other things, the administrative judge found that, unlike the appellant, the
Lieutenant was a tenured employee at the time of the incident. ID at 23. The appellant
has not presented sufficient reasons to disturb the administrative judge’s findings.
4
¶4 We also acknowledge that the administrative judge erred in noting that the
appellant had a prior DUI which he did not disclose on his Declaration for
Federal Employment. PFR File, Tab 3 at 32-33; ID at 2 n.1; IAF, Tab 4 at 43-44.
However, contrary to the appellant’s claim that the administrative judge’s
erroneous finding “materially impacted” the results of his appeal, PFR File,
Tab 3 at 33, there is no indication that the administrative judge relied on the
finding to conclude that the appellant failed to meet his burden of showing that
his military service was a substantial or motivating factor in his termination or
any other agency action.
¶5 Finally, the appellant argues that the administrative judge erred in denying
his motion to certify an interlocutory appeal of a ruling denying ten witnesses on
relevance grounds, a ruling denying a second motion to compel discovery,
a finding that his rights under National Labor Relations Board v. J. Weingarten,
Inc., 420 U.S. 251 (1975), were not at issue, and notice that she may draw an
adverse inference from his invocation of his privilege against self-incrimination
regarding his DUI arrest. PFR File, Tab 3 at 28-29; IAF, Tabs 53-54.
An administrative judge will certify a ruling for review on interlocutory appeal
only if the record shows that: (a) the ruling involves an important question of law
or policy about which there is substantial ground for difference of opinion;
and (b) an immediate ruling will materially advance the completion of the
proceeding, or the denial of an immediate ruling will cause undue harm to a party
or the public. 5 C.F.R. § 1201.92.
¶6 The Board will not reverse an administrative judge’s denial of a request for
certification absent an abuse of discretion. Ryan v. Department of the Air Force,
117 M.S.P.R. 362, ¶ 5 n.1 (2012); Robinson v. Department of the Army,
50 M.S.P.R. 412, 418 (1991). Here there is no abuse of discretion as the
appellant’s requests did not meet the Board’s criteria for certifying
an interlocutory appeal. 5 C.F.R. § 1201.92; see Cooper v. Department of the
Navy, 98 M.S.P.R. 683, ¶ 6 (2005) (finding that a discovery dispute is not
5
a sufficient basis to certify an interlocutory appeal); Keefer v. Department of
Agriculture, 92 M.S.P.R. 476, ¶ 7 (2002) (finding that an administrative judge
properly declined to certify an interlocutory appeal because the issue, on its face,
did not involve an important question of policy or law). Moreover, any alleged
error regarding the ruling is cured by our consideration of the appellant’s
arguments on petition for review. Strauss v. Office of Personnel Management,
39 M.S.P.R. 132, 135 n.1 (1988); see Ryan, 117 M.S.P.R. 362, ¶ 5 n.1.
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 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.
6
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
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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
8
(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.
9
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.