Opinion

Jason Nicholson v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Nov 27, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JASON J. NICHOLSON, DOCKET NUMBER

Appellant, DE-0752-21-0031-I-1

DEPARTMENT OF THE TREASURY, DATE: November 27, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jason J. Nicholson , Ogden, Utah, pro se.

Ian J. Watson , Esquire, San Francisco, California, 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 based on the charge of falsification. 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 of

the law to the facts of the case; the administrative judge’s rulings during either

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 petition for review, the appellant submits new evidence that he claims

will “prove that [he] did not make false statements.” Petition for Review (PFR)

File, Tab 1 at 4. The purported new evidence consists of a series of March 2021

email communications between the appellant and an attorney who represented him

in his prior criminal proceedings, sent approximately 1 month after the issuance

of the initial decision. PFR File, Tab 3 at 4-5. The appellant claims that the

“[e]mails show attorney stating [that he] made copies of discs with [the M.P.]

letters in 2013 proving they were received by the [Internal Revenue Service

(IRS)] or IRS union in 2013” and that the attorney sent the “IRS [an] email

stating [the appellant] did not create the [M.P.] letters.” Id. at 1.

¶3 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the close of the record below despite the party’s due diligence.

See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board

generally will not consider a new argument raised for the first time on review

absent a showing that it is based on new and material evidence). The appellant

claims that he “[d]id not have the information at the time of previous MSPB case”

and believes it would “make [his] case stronger if not provide a win for [his]

case.” PFR File, Tab 1 at 4. The appellant provides no explanation why he did

not contact his prior attorney to obtain a statement supporting his claim that the

attorney provided him the letters on a CD-ROM in 2013 at any point during the

agency’s investigation or when he raised the claim on multiple occasions during

the pendency of the appeal. Id. at 1-3; Initial Appeal File (IAF), Tab 10 at 45-46,

Tab 21 at 1. The fact that the appellant chose not to contact the attorney until

after the issuance of the initial decision does not make the information in the

email communication regarding purported events several years prior new

evidence.

¶4 Even if we were to consider the email communications, they provide no

basis for disturbing the initial decision. The appellant contacted the attorney,

asking him to confirm that the federal public defender had provided the appellant

with a CD-ROM containing the “[M.P.] letters” and that the attorney had “sent an

email to IRS management about [the] appellant not writing” the letters. PFR File,

Tab 3 at 4. The attorney told the appellant in two different responses that he had

“no idea about the source of the [M.P.] letters” and knew “nothing about the

origin of the [M.P.] letters.” Id. The appellant then responded that he “thought

[he] gave [the attorney] a copy of the disc with the [M.P.] letters in March 2019.”

Id. at 5. He suggested that the attorney had sent the IRS an email about the

appellant “not creating the [M.P.] letters,” but also that the attorney “stated that

[he] did not know the origin of the letters and that [he] remember[ed] seeing them

several years ago and discussing them with the appellant.” Id. Only after this

prompting did the attorney purportedly respond, “That sounds correct” and that he

“can say those things.” Id. As argued by the agency in its response to the

petition for review, the appellant did not include a sworn declaration from the

attorney or otherwise prove the authenticity of the email correspondence. PFR

File, Tab 5 at 6.

¶5 In any event, even assuming that the appellant’s submission was a complete

and genuine record of the email communications, the appellant claims to have

provided a copy of the M.P. letters to the attorney in March 2019, the same month

in which he presented the purported letters to agency special agents investigating

his misconduct. PFR File, Tab 3 at 5; IAF, Tab 7 at 23-24. Contrary to the

appellant’s assertion on review, the emails do not prove that the letters were

“real” or that the agency received them in 2013. PFR File, Tab 3 at 1-2. The

order granting the agency’s motion to compel advised the appellant that his

failure to produce the CD-ROM, which was responsive to the agency’s discovery

requests and not privileged, may result in sanctions and a negative inference.

IAF, Tab 13 at 3-4; see 5 C.F.R. § 1201.43(a)(1) (when a party fails to comply

with an order, an administrative judge may draw an inference in favor of the

requesting party with regard to the information sought). The administrative judge

found that the appellant’s failure to produce his copy of the CD-ROM to agency

counsel as ordered constituted evidence that his claim about receiving the

CD-ROM from his prior criminal counsel was false, and we see no reason to

determine that she abused her discretion in imposing such a sanction. IAF,

Tab 24, Initial Decision (ID) at 15-16.

¶6 The appellant’s remaining arguments on review constitute mere

disagreement with the administrative judge’s findings and are unavailing. He

maintains that his request for back pay from 2011 to 2015 was “only a request

meaning the IRS could approve or deny it if they wanted.” PFR File, Tab 3

at 2-3. Regarding specification 1 of the falsification charge, the administrative

judge found that the agency established that the appellant’s time and attendance

entries requesting more than 3 years of back pay were knowingly false and made

with the intention of misleading the agency into providing back pay, to which he

was not entitled, for his private material gain. ID at 20; see Boo v. Department of

Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014) (stating that, to establish

a charge of misrepresentation, falsification, or lying, an agency must prove that

the appellant: (1) supplied wrong information; and (2) knowingly did so with the

intention of defrauding, deceiving, or misleading the agency for his own private

material gain). The appellant’s statement in the time and attendance request was

the essence of the specification, not whether it was a request or a demand.

Regarding the five specifications concerning his work product, the appellant

largely repeats his claims that he correctly completed the taxpayer forms. PFR

File, Tab 3 at 2-3; IAF, Tab 21 at 2, Tab 23 at 2. The administrative judge

thoroughly reviewed the record evidence and made reasoned credibility findings

in sustaining all 10 specifications of the falsification charge, and we find that the

appellant has presented no basis for disturbing the initial decision. ID at 9-26;

see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no

reason to disturb the administrative judge’s findings when she considered the

evidence as a whole, drew appropriate inferences, and made reasoned conclusions

on issues of credibility); Broughton v. Department of Health and Human Services ,

33 M.S.P.R. 357, 359 (1987).

¶7 Accordingly, we deny the petition for review and affirm the initial decision.

NOTICE OF APPEAL RIGHTS 2

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.

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.

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 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

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

(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. 3 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).

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.

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