The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUSTIN THOMAS DARROW, DOCKET NUMBER
Appellant, DC-0752-17-0644-I-1
v.
DEPARTMENT OF COMMERCE, DATE: December 6, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin L. Owen , Esquire, Christopher Hugh Bonk , Esquire, and Renn
Fowler , Esquire, Silver Spring, Maryland, for the appellant.
Taron Murakami and William Horrigan , Alexandria, Virginia, 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
dismissed his termination appeal for lack of jurisdiction. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 In the initial decision, the administrative judge found that the statements
made in the appellant’s pleadings were not offered under penalty of perjury.
Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 11. Therefore, she gave
greater weight to the sworn statements provided by the appellant’s supervisor and
the Lead Administrative Patent Judge (APJ) regarding the training, work product,
duties, and responsibilities of Patent Examiners and Patent Attorneys. Id. As the
appellant correctly argues on review, however, this was error. Petition for
Review (PFR) File, Tab 5 at 12. The appellant was pro se below and personally
filed his pleadings through the Board’s e-Appeal system, affirming that his
pleadings asserted facts from his personal knowledge and that he declared under
penalty of perjury that the facts stated in the pleading were true and correct. IAF,
Tab 4 at 4, Tab 9 at 3, Tab 14 at 11. Nonetheless, having considered the factors
relevant to assessing the probative value of hearsay evidence and the credibility
of an out-of-court declarant, we agree with the administrative judge that the
statements by the appellant’s supervisor and the Lead APJ regarding the training,
work product, duties, and responsibilities of the Patent Attorney and Patent
Examiner positions are more probative than the appellant’s statements and are
entitled to greater weight. See Borninkhof v. Department of Justice, 5 M.S.P.R.
3
77, 83-87 (1981) (setting forth the factors relevant to assessing the probative
value of hearsay evidence); see also Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987) (setting forth the factors relevant to assessing a
witness’s credibility). Accordingly, the administrative judge’s error in finding
that the appellant’s statements were not submitted under penalty of perjury did
not prejudice his substantive rights and provides no basis for reversal of the
initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984).
¶3 The appellant also argues that the administrative judge considered a Patent
Examiner performance plan that was not in the record and that her reliance on the
document constituted a “fatal error” and deprived him of due process. PFR File,
Tab 5 at 17 (citing ID at 16-17). It appears that the Patent Examiner performance
plan is contained in the second part of the agency file that, due to an
administrative error, was not properly placed in the initial appeal file index or the
e-Appeal repository until after the appellant filed his petition for review. 2 PFR
File, Tab 7. However, the appellant submitted his reply to the agency’s response
to his petition for review after the Office of the Clerk of the Board notified the
parties of the issue and corrected the record. PFR File, Tabs 7, 9. Thus, he had
an opportunity to address the second part of the agency file in his reply and, in
fact, did so. PFR File, Tab 9 at 11-14. Thus, we find that the appellant has not
been prejudiced by the filing error. See Panter, 22 M.S.P.R. at 282.
¶4 We have considered the appellant’s other arguments in support of his
contention that the administrative judge erred in finding that the Patent Attorney
and Patent Examiner positions were not the “same or similar” within the meaning
of 5 U.S.C. § 7511(a)(1)(C)(ii), but we find no reason to reweigh the evidence or
2
The second part of the agency file also contains a GS-14 Patent Examiner position
description, information from the agency’s public website regarding the Patent
Examiner position and career opportunities, and a Patent Attorney position description.
IAF, Tab 6 at 23-60 of 61.
4
otherwise disturb the administrative judge’s explained findings. 3 See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (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).
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.
3
For the first time on review, the appellant has submitted April and May 2015 emails
confirming his selection for the Patent Attorney position and his start date. PFR File,
Tab 5 at 30-31. We have reviewed the documents but find that the appellant has not
shown that those documents were unavailable prior to the close of the record below,
despite his due diligence. Therefore, we do not consider them. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).
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
(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
6
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:
7
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. 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
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
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.
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.