Opinion

Alfonso Ramirez v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Dec 8, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.5%

finding that the court did not err by allowing testimony to authenticate documents during in-camera review

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finding that the court did not err by allowing testimony to authenticate documents during in-camera review

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The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALFONSO G. RAMIREZ, DOCKET NUMBER

Appellant, DE-0752-14-0482-I-1

DEPARTMENT OF VETERANS DATE: December 8, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alfonso G. Ramirez , Tucson, Arizona, pro se.

Zulema Hinojos-Fall , Albuquerque, New Mexico, 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. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED by

this Final Order to supplement the analysis of the charges and the appellant’s

affirmative defense of retaliation for equal employment opportunity (EEO)

activity, we AFFIRM the initial decision.

BACKGROUND

¶2 Effective July 18, 2014, the agency removed the appellant from his Program

Support Assistant position at the agency’s Southern Arizona Veterans

Administration Health Care System (SAVAHCS) based on two charges of

violating the Health Insurance Portability and Accountability Act (HIPAA) and

the Privacy Act. Initial Appeal File (IAF), Tab 11 at 9-13, 69-74. Each charge

was supported by three specifications, alleging that on February 13, 23, and 27,

2014, the appellant disclosed veterans’ protected health information (PHI) 2 and

personally identifiable information (PII) when, to support his discrimination

complaint, he sent documents to the Office of Resolution Management (ORM)

PHI means individually identifiable health information, which is defined as

information that is a subset of health information, including demographic information

collected from an individual, and (1) is created or received by a health care provider,

health plan, employer, or health care clearinghouse; and (2) relates to an individual’s

past, present, or future physical or mental health condition; providing health care to an

individual; or the past, present, or future payment for providing health care to an

individual; and (i) that identifies the individual; or (ii) with respect to which there is a

reasonable basis to believe the information can be used to identify the individual.

45 C.F.R. § 160.103.

that contained patients’ names, addresses, full or partial social security numbers,

and medical diagnoses associated with Agent Orange. Id. at 69-74.

¶3 The appellant filed a Board appeal challenging his removal and raising

affirmative defenses of harmful procedural error, denial of due process, and

whistleblower reprisal. IAF, Tabs 1, 26. The appellant did not request a hearing.

IAF, Tab 1 at 1. However, the administrative judge exercised her discretion and

held a hearing for the limited purpose of conducting an in-camera review of the

unredacted documents at issue in the appeal to confirm whether they contained

PHI or PII. IAF, Tabs 53, 89, 91. Following the hearing, the administrative

judge issued an initial decision sustaining the appellant’s removal. IAF, Tab 109,

Initial Decision (ID). The administrative judge sustained all three specifications

of each charge and found that the appellant failed to prove his affirmative

defenses. ID at 6-21. The administrative judge also found that there was a nexus

between the sustained charges and the efficiency of the service and that removal

was within the tolerable limits of reasonableness. ID at 23-25.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 2. 3 The agency has not responded to the appellant’s petition.

DISCUSSION OF ARGUMENTS ON REVIEW

Charge 1 is sustained.

¶5 Under HIPAA, a covered entity 4 may not use or disclose PHI, unless such

use or disclosure falls within certain categories of permitted uses and disclosures.

See 45 C.F.R. § 164.502(a). Based on her review of copies of the documents

submitted by the appellant to ORM on February 13, 23, and 27, 2014, the

administrative judge found that they contained PHI, including unredacted

The appellant also filed a motion for leave to file an amended petition for review,

which the Board granted. PFR File, Tabs 4-5.

As a Veterans Health Administration hospital, SAVAHCS is a covered entity under

HIPAA. See, e.g., Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 25

n.6 (2011).

veterans’ partial social security numbers, full names, addresses, medical

diagnoses, dates of examinations, and medical providers’ names. ID at 6. In so

finding, she credited testimony of the agency’s privacy officer that the documents

provided to her for an in-camera review were copies of the same documents the

appellant sent to ORM, which the privacy officer received after ORM returned

them to SAVAHCS. Id.; IAF, Tab 89, Hearing Compact Disc (testimony of the

privacy officer). Thus, the administrative judge found that the appellant’s

contention, that he only sent redacted documents to ORM, was not credible or

supported by the record evidence. ID at 5-6.

¶6 On review, the appellant contends that the administrative judge improperly

made credibility determinations based on the factors set forth in Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987), because the appellant did

not testify and the decision was based on the written record. PFR File, Tab 2 at 4.

We find that the administrative judge properly applied the principles of Hillen to

this case, in which an in-camera review was conducted and the agency’s privacy

officer testified concerning the chain of custody of the documents provided for

review. See, e.g., Pollard v. Federal Bureau of Investigations , 705 F.2d 1151,

1153-54 (9th Cir. 1983) (finding that the court did not err by allowing testimony

to authenticate documents during in-camera review).

¶7 The administrative judge further found that the agency established that the

appellant’s use and disclosure of PHI was unauthorized because it did not fall

within the permitted uses and disclosures set forth under 45 C.F.R. § 164.502(a).

ID at 7-10. Specifically, she found that “the appellant’s disclosure of PHI to

ORM was unauthorized since the appellant was only permitted to access PHI in

order to perform the official functions of his position.” ID at 10-11. We do not

agree with this portion of the administrative judge’s analysis, however, because

the appellant was not charged with improperly accessing PHI; he was charged

with improperly disclosing it. IAF, Tab 11 at 69.

¶8 Even assuming, without finding, that the appellant was permitted to disclose

the documents he submitted to ORM, a “minimum necessary” standard applies

even to disclosures of PHI that would otherwise be permitted under HIPAA. IAF,

Tab 11 at 69. That is to say, with certain exceptions not applicable here,

reasonable efforts must be made to limit the PHI disclosed to the minimum

necessary to accomplish the intended purpose of the disclosure. 45 C.F.R.

§ 164.502(b). In this case, the appellant’s February 13, 2014 disclosure contained

numerous unredacted medical records, six of which contained patient diagnoses.

IAF, Tab 11 at 105, 109-50. We find that the inclusion of these diagnoses was

clearly unnecessary to accomplish the intended purpose of the appellant’s

disclosure, i.e., to rebut the agency’s allegation that these documents were

missing from the patients’ files. Id. at 105-08. Therefore, we find that this

disclosure was in violation of HIPAA, as alleged. For the same reasons, we find

that the appellant’s nearly identical disclosures of February 23 and 27, 2014 also

violated HIPAA. IAF, Tab 11 at 69-70.

¶9 On review, the appellant contends that the agency failed to prove this

charge because the agency’s evidence file contained only redacted copies of the

documents he sent. PFR File, Tab 2 at 9-10. He further contends that the initial

decision was improperly decided based on the charges, proposal, ORM

correspondence, and various agency handbooks and memoranda. Id. at 10. We

disagree. The record reflects that the administrative judge’s findings were based

on her in-camera review of the unredacted documents, the privacy officer’s

testimony, and the written record. ID at 6.

¶10 The appellant also reiterates his argument that there was no HIPAA

violation because a risk assessment conducted by the Department of Veterans

Affairs Network Security Operations Center (VANSOC) concluded that the

disclosures did not meet the criteria for a data breach requiring notice to the

affected veterans under 45 C.F.R. part 164, subpart D. PFR File, Tab 2 at 6-7.

The administrative judge, however, considered this argument and found that,

although the appellant’s disclosures did not rise to the level of a breach requiring

notice under subpart D, they were still in violation of subpart E of the HIPAA

regulations. ID at 11-12. We agree.

Charge 2 is sustained.

¶11 The Privacy Act prohibits disclosing any record, 5 which is contained in a

system of records, to any person, or to another agency, except pursuant to a

written request, or with the prior approval of the subject of the record, unless the

disclosure meets one of several provisions or exceptions. 5 U.S.C. § 552a(b); see

5 C.F.R. § 297.401. Thus, to show that the appellant violated the Privacy Act, the

agency was required to prove that the appellant’s disclosure was unauthorized and

that the record was disclosed from a system of records. Gill v. Department of

Defense, 92 M.S.P.R. 23, ¶ 21 (2002).

¶12 The administrative judge found that the appellant disclosed patient medical

records that were a part of a Veterans Administration (VA) system of records. 6

ID at 13. The administrative judge further found that the appellant’s disclosure

did not fall within any of the 12 exceptions to the nondisclosure provisions of the

Privacy Act. Id. On review, the appellant contends that the administrative judge

failed to consider his argument below that his disclosure fell within the exception

contained in 5 U.S.C. § 552a(b)(1), which permits disclosure “to those officers

and employees of the agency which maintains the record who have a need for the

record in the performance of their duties.” PFR File, Tab 2 at 2, 7, 13.

A record is defined as any item, collection, or grouping of information about an

individual that is maintained by an agency, including, but not limited to, his education,

financial transactions, medical history, and criminal or employment history and that

contains his name, or the identifying number, symbol, or other identifying particular

assigned to the individual, such as a finger or voice print or a photograph. 5 U.S.C.

§ 522a(a)(4).

The administrative judge found that the records at issue were a part of the agency’s

National Patient Database—VA system of records. ID at 13. However, the evidence

reflects that these documents were a part of the Agent Orange Registry—VA system of

records. IAF, Tab 11 at 108, 191-298, Tab 12 at 143-148; 66 Fed. Reg. 3653-01

(Jan. 16, 2001).

¶13 In support of his argument, the appellant relies on Howard v. Marsh,

785 F.2d 645 (8th Cir. 1986), in which the court held that disclosing an

employee’s personnel records to an agency attorney and personnel specialist to

gather information concerning a discrimination complaint that had been filed

against the agency by that employee fell within the (b)(1) exception. PFR File,

Tab 2 at 7, 13; IAF, Tab 37. Other than decisions of the U.S. Court of Appeals

for the Federal Circuit, the decisions of the circuit courts are not binding on the

Board, but the Board may follow such decisions if it is persuaded by their

reasoning. See Bowman v. Small Business Administration, 122 M.S.P.R. 217,

¶ 13 n.8 (2015). We find the facts of Howard distinguishable and decline to

follow it.

¶14 Under the facts of this appeal, we find that ORM employees did not have a

need for the records to perform their job duties for two reasons. First, despite the

appellant’s arguments, IAF, Tab 37, the record does not reflect that he provided

the documents at the request of ORM. In its letter rejecting the appellant’s

request to amend his EEO complaint because it contained PII and PHI, ORM

stated, “[t]here is no requirement that you submit documentation related to your

claim of discrimination” and that, “[i]f documentation is needed by ORM to

process your amendment it will be requested through official channels or you will

be asked.” IAF, Tab 11 at 88.

¶15 Second, the PHI and PII contained in the documents was not relevant to the

appellant’s discrimination complaint in which he alleged that his supervisor

discriminated against him by issuing him a 2-day suspension for, among other

things, failing to document environmental appointments in the registry and scan

letters into patients’ records. IAF, Tab 12 at 52, Tab 36 at 7-9. The appellant

appears to have been providing the documents to ORM merely as evidence that he

had properly performed these job duties and should not have been suspended.

IAF, Tab 11 at 104-298. Thus, unredacted copies of these documents were not

necessary to process the appellant’s EEO complaint. Accordingly, we find that

ORM did not have a need for these records to process the appellant’s EEO

complaint and the (b)(1) exception does not apply. 7 Cf. Gill, 92 M.S.P.R. 23,

¶¶ 16, 22 (finding that the appellant’s disclosing confidential medical documents

at an EEO counselor’s request to support the appellant’s claim that she was

disparately treated concerning her medical accommodation request fell within the

exception contained in 5 U.S.C. § 552a(b)(1) because the EEO counselor was

acting within the scope of her duties and needed the records to perform such

duties).

¶16 We have also considered whether the appellant’s disclosures fell under the

“routine use” exception of 5 U.S.C. § 552a(b)(3). Under this exception, the

agency “may disclose information to the Equal Employment Opportunity

Commission when requested in connection with investigations of alleged or

possible discriminatory practices, examination of Federal affirmative employment

programs, or for other functions of the Commission as authorized by law or

regulation.” Privacy Act of 1974: Notice of Amendment of System of Records,

79 Fed. Reg. 8245, 8247 (Feb. 11, 2014). Although ORM was performing EEO

functions, ORM is not the Equal Employment Opportunity Commission, and

ORM did not request these documents. Nor were these documents exchanged

through discovery in proceedings before the Equal Employment Opportunity

Commission. We therefore find that this exception does not apply. Although not

raised by either party, we have also considered whether Charge 2 must fail on the

basis that the appellant did not disclose the records at issue to anyone outside the

agency. Several courts have held that the Privacy Act only applies when an

agency is disclosing records externally. E.g., Mauldin v. Napolitano,

It may very well have been that these documents would have been relevant at a later

investigative stage in the complaint process; i.e., during the agency’s investigation or in

the discovery process if the appellant had proceeded to adjudication of his complaint

before the Equal Employment Opportunity Commission. Nonetheless, even if the

appellant believed the documents were necessary to process the amendment of his EEO

complaint, the agency was not out of bounds in informing the appellant that the

documents needed to be redacted.

No. 10-12826, 2011 WL 3113104, at * 3 (E.D. Mich. 2011); Williams v.

Reilly, 743 F. Supp. 168, 175 (S.D.N.Y. 1990). We cannot agree with this

interpretation of the law because it is inconsistent with the plain language of the

statute, which concerns disclosure of records to “any person” without regard to

whether such person is employed by the agency maintaining the system of records

at issue. 5 U.S.C. § 552a(b). Furthermore, this interpretation of the Privacy Act

violates the rule against surplussage; if internal agency disclosures were

categorically not governed by the Act, then there would be no need for the

exception at 5 U.S.C. § 552a(b)(1), which permits disclosures to agency

employees with “a need for the record in the performance of their duties.” For

these reasons, we agree with the administrative judge that the agency proved

Charge 2.

The appellant failed to prove his affirmative defense of reprisal for equal

employment opportunity activity. 8

¶17 To prove an affirmative defense of retaliation for Title VII equal

employment opportunity activity, an appellant must prove that his protected

activity was at least a motivating factor in the action under appeal, and he may

use various methods of proof and any type of admissible evidence to do so.

Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-23, 30. In

this case, the administrative judge cited to various precedential cases advancing

different analytical frameworks, and it is not clear to us which framework he

actually applied to the appellant’s claim. ID at 20-21. Nevertheless, the

gravamen of the administrative judge’s factual findings was that the appellant

advanced essentially no credible evidence in support of his affirmative defense.

The appellant alleged that his removal constituted whistleblower reprisal for protected

disclosures he made to ORM in his amendment to his EEO complaint. IAF, Tab 26

at 13. The administrative judge found that the appellant did not make a protected

disclosure because any alleged disclosures to ORM violated the Privacy Act and HIPAA

and disclosures prohibited by law are not protected under 5 U.S.C. § 2302(b)(8). ID

at 19. On review, the appellant does not challenge this finding, and we discern no error

with the administrative judge’s analysis of this claim as possible whistleblowing

retaliation.

ID at 21. This is tantamount to a finding that the appellant failed to prove that

retaliation was a motivating factor in his removal, and we find no basis to disturb

that conclusion on review.

¶18 We have also considered whether the removal action was per se retaliation

for participating in EEO activity, but we find that it was not. Participating in

EEO activity enjoys very broad protection, to the point that an employee may not

be disciplined even for bringing false or malicious claims of discrimination. See

LaBate v. U.S. Postal Service, EEOC Appeal No. 01851097, 1987 WL 774785,

at *3 (Feb. 11, 1987). However, activity protected under Title VII does not

include activity that is unlawful. Netter v. Barnes, 908 F.3d 932, 939 (4th Cir.

2018). This includes the unlawful access and disclosure of protected information.

Id. An agency may discipline an employee for engaging in unlawful conduct.

The appellant failed to prove his affirmative defenses of due process violations or

harmful procedural error.

¶19 Below, the appellant alleged that the agency’s failure to provide him with a

copy of the VANSOC risk assessment and use of redacted documents in the

evidence file amounted to due process violations or harmful procedural error. ID

at 16-17. The administrative judge found that the agency’s use of redacted

documents in the evidence file was immaterial and did not prejudice the appellant

because he was aware of the redacted information contained in the documents as

he was the one who sent them to ORM. Id. She further found that the agency’s

failure to provide a copy of the VANSOC risk analysis—which found that the

appellant’s disclosures did not meet the criteria for a data breach requiring notice

to the affected veterans—was immaterial, being irrelevant to a potential violation

of HIPAA Subpart E or the Privacy Act. ID at 17. Thus, she found that the

appellant failed to prove harmful procedural error or that the agency committed

due process violations.

¶20 On review, the appellant reiterates his arguments that he was denied the

opportunity to respond to the VANSOC determination, which was not included in

the proposal. PFR File, Tab 2 at 16-20. The record reflects that the deciding

official considered the appellant’s argument in his response to the proposed

removal that he did not violate HIPAA because there was no significant harm to

the veterans and the data breach did not require notice. IAF, Tab 11 at 9-10.

Under these circumstances, we agree with the administrative judge that the

deciding official’s consideration of the VANSOC determination did not amount to

a due process violation because the appellant was aware of the information

contained in the VANSOC determination and he had a chance to address it in his

response. We further find that any procedural error that the agency made in this

regard did not affect the outcome of its decision and therefore did not rise to the

level of harmful error. See Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 8

(2008) (“Harmful error cannot be presumed; an agency error is harmful only

where the record shows that it was likely to have caused the agency to reach a

conclusion different from the one it would have reached in the absence or cure of

the error.”).

The agency established nexus, and the penalty of removal was within the

tolerable limits of reasonableness.

¶21 The appellant disputes the administrative judge’s finding that the agency

proved nexus. PFR File, Tab 2 at 22-24. His arguments, however, amount to

mere disagreement with the administrative judge’s findings that the agency

proved its charges and do not provide a basis for reversal. We also find

unpersuasive the appellant’s argument that the agency failed to show that his

disclosures affected his job performance or management’s trust and confidence in

his job performance. Id. at 22. It is well settled that there is sufficient nexus

between an employee’s conduct and the efficiency of the service when, as here,

the conduct occurred at work. See, e.g., Parker v. U.S. Postal Service, 819 F.2d

1113, 1116 (Fed. Cir. 1987).

¶22 Regarding the appropriateness of the penalty, the appellant argues that the

administrative judge erred in finding that the deciding official properly

considered the Douglas factors. PFR File, Tab 2 at 24-26. In determining an

appropriate penalty, an agency must review relevant mitigating factors, also

known as the Douglas factors pursuant to Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981). The Board in turn defers to the agency’s

discretion in exercising its managerial function of maintaining employee

discipline and efficiency. See Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6

(2013). Thus, the Board will modify an agency’s penalty only when it finds that

the agency failed to weigh the relevant factors or that the imposed penalty clearly

exceeded the bounds of reasonableness. Id.

¶23 The administrative judge deferred to the agency’s decision to remove the

appellant after finding that the deciding official considered the relevant Douglas

factors. 9 ID at 23-25. On review, the appellant contends that the agency

improperly considered his duties as an aggravating factor. PFR File, Tab 2 at 24.

We disagree. To the contrary, the agency’s Douglas factor analysis properly

included consideration of the nature and seriousness of the offense and its relation

to the appellant’s duties, position, and responsibilities. See Douglas, 5 M.S.P.R.

at 305.

¶24 Finally, we find unpersuasive the appellant’s argument that the agency

failed to consider the VANSOC report. PFR File, Tab 4 at 4-6. In his decision

letter, the deciding official noted that VANSOC’s determination—that notifying

the affected veterans of the data disclosure was not necessary—did not alter the

fact that the appellant unlawfully released PHI/PII to ORM. IAF, Tab 11 at 9-10.

To the extent the appellant’s remaining arguments amount to disagreement with

the administrative judge’s findings that the agency proved its charges, PFR File,

Tab 2 at 25-26, Tab 4 at 5, we find that such arguments do not provide a basis for

The administrative judge also found that the deciding official properly considered the

appellant’s prior discipline, after finding that such discipline met the criteria set forth in

Bolling v. Department of the Air Force, 9 M.S.P.R. 335 (1981). ID at 22, 24. The

appellant does not challenge this finding on review, and we discern no error in the

administrative judge’s analysis.

reversal, see, e.g., 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); Broughton v. Department of Health and Human Services,

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

The appellant’s remaining arguments do not provide a basis for reversal.

¶25 The appellant argues that he was prejudiced because the administrative

judge conducted an in-camera review of the unredacted documents, which he did

not attend, and he was not able to view the documents until over 1 year and

10 months after he was removed. PFR File, Tab 2 at 26. The record reflects that

on the evening before the hearing, the appellant requested to continue the hearing

citing health reasons. IAF, Tab 86. The administrative judge denied the

appellant’s motion, finding that he failed to establish good cause. IAF, Tab 87.

¶26 Whether good cause exists to postpone a hearing is determined by the

unique circumstances of each case and rests within the administrative judge’s

sound discretion. Keay v. U.S. Postal Service, 57 M.S.P.R. 331, 335 (1993). The

record reflects that, although the appellant had been approved as a witness, he had

indicated in his pleadings his desire not to testify. IAF, Tabs 80-81. Moreover,

the brief hearing was conducted for the limited purpose of allowing the

administrative judge to review the unredacted documents. IAF, Tab 91. Under

these circumstances, we find that the administrative judge did not abuse her

discretion in denying the appellant’s request to postpone the hearing.

Additionally, we find unavailing the appellant’s argument that he was not

afforded an opportunity to review the documents in a timely manner. The record

reflects that he was repeatedly afforded the opportunity to review the documents,

but he declined to do so. IAF, Tab 11 at 73, Tab 12 at 152-53, Tabs 49, 75, 79.

We deny the appellant’s motions for leave to submit additional pleadings.

¶27 The appellant has filed numerous motions to submit additional pleadings on

review. PFR File, Tabs 8, 10, 12-13, 15, 17, 19, 21, 23-24, 26, 28, 32. The

Board’s regulations do not provide for pleadings other than a petition for review,

a cross petition for review, a response to the petition for review or cross petition

for review, and a reply to a response. 5 C.F.R. § 1201.114(a). For the Board to

consider a party’s pleading, other than those set forth above, the party must

describe the nature of and need for the pleading. Id. If a party wishes to submit a

pleading after the record has closed, i.e., following the expiration of the period

for filing the reply to the response to the petition for review, 5 C.F.R.

§ 1201.114(k), the party also must show that, despite the petitioner’s due

diligence, the evidence therein was not readily available before the record closed,

see 5 C.F.R. § 1201.115(d). Here, the record closed on October 3, 2016, ten days

after the agency’s September 23, 2016 deadline for filing its response to the

appellant’s petition. PFR File, Tab 3.

¶28 The appellant has filed motions for leave to demonstrate that the

administrative judge was biased as well as a motion for leave to submit an

affidavit in support of such claims. PFR File, Tabs 8, 13, 17. We deny these

motions because they were filed after the close of the record and the appellant has

not shown that they are based on new and material evidence that was unavailable

prior to the close of the record, despite his due diligence. We similarly deny the

appellant’s motion to show that the administrative judge erred in interpreting

Federal regulations. PFR File, Tab 12. In this motion, the appellant asserts that

four pieces of evidence on which the administrative judge relied are not supported

by Federal regulation or case law and impel reversing the initial decision. Id.

at 5. The appellant has not shown that such arguments are based on new and

material evidence. Regardless, having reviewed the record, we discern no error in

the administrative judge’s analysis that would warrant reversing the initial

decision.

¶29 The appellant also filed a motion for leave to file a copy of the VANSOC

risk analysis, which he contends he filed below but does not appear in the

repository as part of the record. PFR File, Tab 10. We deny this motion because

the record reflects that this document and references to it already are part of the

record below. 10 IAF, Tab 96 at 6; PFR File, Tab 24. The appellant also has filed

a motion for leave to show that he provided the documents at issue at ORM’s

request. PFR File, Tab 15. In his pleading, he asserts that his disclosures to

ORM were not unauthorized because ORM requested them. Id. at 4. However,

such an argument was made below, IAF, Tab 37, and the appellant has not shown

that his motion is based on any new and material evidence. Accordingly, we deny

the appellant’s motion.

¶30 Based on the foregoing, we affirm the initial decision, as modified,

sustaining the appellant’s removal.

The appellant has also filed additional motions seeking to introduce evidence and

argument showing that the agency determined that his disclosures did not rise to the

level of a breach. PFR File, Tabs 19, 21, 23, 26. Such evidence appears to already be

part of the record, and, in any event, would not affect the outcome of the appeal

because, as the administrative judge concluded, the fact that the appellant’s

impermissible disclosures did not rise to the level of a breach requiring notice under

HIPAA subpart D does not mean that his disclosures did not violate subpart E. For the

same reason, we deny the appellant’s motion for leave to submit Pro-Publica records

showing that the agency did not report any HIPAA violations in 2014 as such

information is not material and would not affect the outcome of the appeal. PFR File,

Tab 32. Finally, the appellant has filed a motion for leave to file an additional pleading

concerning his argument that he did not violate HIPAA based on the VANSOC

determination, which found that his disclosures did not meet the criteria for a data

breach requiring notice to the affected veterans. PFR File, Tab 28. Such an argument,

however, was considered and rejected by the administrative judge, ID at 11-12, and the

appellant has not shown that his motion is based on any new and material evidence or

argument that was unavailable despite his due diligence when the record closed.

Accordingly, we deny his motion. See 5 C.F.R. § 1201.114(a), (k).

NOTICE OF APPEAL RIGHTS 11

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

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:

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.

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. 12 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