The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALERIE SIMPSON, DOCKET NUMBER
Appellant, PH-0714-18-0410-I-1
v.
DEPARTMENT OF VETERANS DATE: March 13, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Faye R. Cohen , Esquire, Philadelphia, Pennsylvania, for the appellant.
Stacey R. Conroy , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal taken under the authority of the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73
(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the petition for review, VACATE the initial decision, and REMAND the
case to the Northeastern Regional Office for further adjudication in accordance
with this Remand Order. On remand, the administrative judge should (1) provide
the parties with an opportunity to present evidence and argument regarding
whether the agency’s error in reviewing the proposed removal for substantial
evidence was harmful; (2) provide further findings as to whether the appellant has
established that her protected disclosure was a contributing factor in the agency’s
decision to remove her; and (3) review the agency’s penalty selection by
considering the penalty factors.
BACKGROUND
The appellant filed the instant appeal, challenging her July 2018 removal
from her position as a GS-6 Advanced Medical Support Assistant at a Veterans
Affairs Medical Center (VAMC). Initial Appeal File (IAF), Tab 1 at 4, Tab 4
at 6-9. The agency based its removal action, taken pursuant to the authority of
38 U.S.C. § 714, on three specifications of conduct unbecoming a Federal
employee that took place in May 2018. IAF, Tab 4 at 6, 11-12. After holding the
requested hearing, the administrative judge issued an initial decision sustaining
two out of three specifications of the agency’s charge and finding that the
appellant failed to prove her affirmative defenses of harmful procedural error and
whistleblower reprisal. IAF, Tab 14-1, Hearing Recording (HR); IAF, Tab 15,
Initial Decision (ID). The administrative judge did not consider the
reasonableness of the agency’s imposed penalty, noting that such was immaterial
in appeals filed under § 714, and sustained the appellant’s removal. ID at 19-20.
The appellant has filed an untimely petition for review. PFR File, Tab 1.
She has also filed a motion for the Board to accept her filing as timely or, in the
alternative, to waive the time limit for filing based on good cause. Petition for
Review (PFR) File, Tabs 1, 5. The agency has submitted an untimely response in
3
opposition to the appellant’s petition for review but did not accompany its
response with any motion for waiver. PFR File, Tab 7.
ANALYSIS
The appellant’s petition for review was untimely filed, but she has established
good cause for her filing delay.
The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). Here, as the initial decision was issued on December 17, 2018,
the appellant’s petition for review would have been due January 21, 2019. 2 ID.
However, the deadline was automatically extended because of a partial shutdown
of the Federal Government, requiring the Board to cease operations from
December 22, 2018, through January 25, 2019, for a total of 35 days. See PFR
File, Tab 3 at 1. The Board issued a press release on the eve of the partial
shutdown notifying parties that the Board’s electronic filing system would not be
available and that all filing and processing deadlines would be extended by the
number of calendar days the Board is shut down. 3 Id. Thus, accounting for this
automatic extension, the deadline for filing the appellant’s petition for review
was February 25, 2019. The appellant filed her petition for review by fax and
U.S. mail on February 27, 2019. PFR File, Tab 1, Tab 5 at 6. Thus, her petition
for review was untimely by 2 days.
The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. Miller v. Department of the Army, 112 M.S.P.R. 689,
2
The initial decision erroneously set forth that the petition for review was due by an
earlier date. ID at 28.
3
Press Release, U.S. Merit Systems Protection Board, Status of the U.S. Merit Systems
Protection Board During a Partial Government Shutdown (Dec. 21, 2018),
https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During_a_Par
tial_Government_Shutdown_1580906.pdf.
4
¶ 13 (2009); 5 C.F.R. § 1201.114(g). To establish good cause for an untimely
filing, a party must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table); see Alonzo, 4 M.S.P.R. at 183 (good cause is an elastic concept, which
entitles the party to the application of the broad principles of justice and good
conscience).
The length of the delay is a factor that must be considered in every good
cause determination, and a minimal delay favors a finding of good cause. See
Walls v. Merit Systems Protection Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994).
The minimal nature of a 2–day delay is a factor in the appellant’s favor. Id.
Furthermore, the appellant’s excuse for her late filing is reasonable. According
to the appellant’s affidavit, she contacted the Office of the Clerk of the Board on
or about January 12, 2019, prior to the original deadline for her petition for
review and during the partial government shutdown, because she was unable to
access the Board’s electronic filing system. PFR File, Tab 5 at 12. She was
unrepresented at this time. Id. at 5, 7. She avers that she was told that she should
add the length of the shutdown to the date on which the Federal Government
reopened and, thus, upon reopening, understood her deadline to be March 1, 2019.
Id. at 12. Regardless of whether the appellant was, in fact, provided
misinformation, or was merely confused by the press release or other information,
her explanation attributing her minimal delay to the partial government shutdown
5
is persuasive. We note that at some later point, the appellant obtained the
assistance of an attorney who, with greater prudence, could have determined the
correct filing deadline. Id. at 8. Nonetheless, we find that the appellant’s
representation by an attorney at the time of filing is outweighed by the other
relevant factors. Moreover, the agency has presented no evidence or argument
suggesting that it would be prejudiced by a waiver of the filing time limit. PFR
File, Tab 7; see Moorman, 68 M.S.P.R. at 63 (explaining that, once good cause
has been demonstrated, the Board must determine whether the agency has shown
that it would be prejudiced by a waiver of the time limit). Accordingly, we waive
the filing time limit for good cause shown.
We find no reason to disturb the administrative judge’s findings that the agency
proved its charge and that the appellant did not prove her affirmative defense of
harmful procedural error.
The agency charged the appellant with three specifications of conduct
unbecoming a Federal employee for conduct that postdated the June 23, 2017
enactment of the VA Accountability Act. 4 IAF, Tab 4 at 6, 11-12. The
administrative judge found that two out of three specifications of the agency’s
charge were supported by substantial evidence and sustained the charge. ID
at 14-19. He also found that the appellant did not prove her affirmative defense
of harmful procedural error concerning the agency’s labeling of its charge or its
failure to make a written summary of her oral reply. ID at 23-27. On review, the
appellant challenges some, but not all, of these findings but has provided no basis
for us to disturb them. PFR File, Tab 1 at 5-7. Thus, the administrative judge
may incorporate these findings in his new initial remand decision. However, if
any argument or evidence presented by the parties concerning the issues on
remand, as set forth herein, affects the administrative judge’s analysis of these
4
Preenactment misconduct is not an issue in this case. Cf. Sayers v. Department of
Veterans Affairs, 954 F.3d 1370, 1380-82 (Fed. Cir. 2020) (holding that 38 U.S.C.
§ 714 cannot apply retroactively to conduct that took place before its enactment and
vacating the petitioner’s removal for that reason).
6
issues, he should address such argument or evidence in the remand initial
decision.
On remand, the administrative judge should provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in reviewing the proposed removal for substantial evidence was harmful.
In sustaining the appellant’s proposed removal, the deciding official found
that “[the] charge as stated in the notice of proposed removal was supported by
substantial evidence.” IAF, Tab 4 at 6. In Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), the U.S. Court of Appeals for
the Federal Circuit determined that the agency erred by applying a substantial
evidence burden of proof to its internal review of a disciplinary action under
38 U.S.C. § 714. The court found that substantial evidence is the standard of
review to be applied by the Board, whereas the agency’s deciding official must
use a preponderance of the evidence burden of proof. Id. at 1298-1301. In
implementing the Federal Circuit’s decision in Rodriguez, we determined that an
agency’s application of the substantial evidence standard of proof should be
analyzed as a harmful error affirmative defense. Semenov v. Department of
Veterans Affairs, 2023 MSPB 16, ¶¶ 22-25.
Because Rodriquez and Semenov were issued after the issuance of the
initial decision and the appellant’s petition for review in the instant appeal, the
administrative judge should entertain any new harmful error affirmative defense
that the appellant might raise based on the same. If the appellant raises such an
affirmative defense, the administrative judge should provide the parties with an
opportunity to present evidence and argument, including a supplemental hearing
if requested, addressing this issue. See 5 U.S.C. § 7701(a)(1), (b)(1). The
administrative judge should then address this affirmative defense in his remand
initial decision.
Regardless of whether the appellant proves harmful error, if any argument
or evidence on remand affects the administrative judge’s analysis of the other
7
issues, the administrative judge should address such argument or evidence in the
remand initial decision.
On remand, the administrative judge should provide further findings as to
whether the appellant’s protected disclosure was a contributing factor in her
removal.
Before the administrative judge, the appellant raised an affirmative defense
of whistleblower reprisal concerning her complaints to the VAMC Compliance
and Ethics Officer and several managers in January 2018 about a backlog of
ultrasound orders in need of scheduling. IAF, Tab 1 at 6, Tab 12 at 7, 11, 23-24;
ID at 11-12. The administrative judge found that the appellant proved that she
made disclosures protected under 5 U.S.C. § 2302(b)(8) because, according to her
testimony, the matter reported evidenced a violation of an agency policy requiring
that all ultrasound requests be scheduled within 30 days. ID at 21. Neither party
challenges this finding on review, and we decline to disturb it.
Having found that the appellant proved that she made protected disclosures,
the administrative judge considered whether she proved that they were a
contributing factor in the agency’s removal action. ID at 21-22; see Ayers v.
Department of the Army, 123 M.S.P.R. 11, ¶ 12 (2015) (explaining that, in
removal appeals in which the appellant raises an affirmative defense of
whistleblower reprisal, the appellant must show that the protected disclosure was
a contributing factor in the agency’s removal action). To prove that a disclosure
was a contributing factor in a personnel action, the appellant need only
demonstrate that the protected disclosure was one of the factors that tended to
affect the personnel action in any way. Ayers, 123 M.S.P.R. 11, ¶ 25; Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish
contributing factor is the knowledge/timing test. Wadhwa v. Department of
Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d per curiam, 353 F. App’x 435
(Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
8
knew of the disclosure and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id. An appellant also may satisfy the
knowledge prong of the knowledge/timing test by proving that the official taking
the action had constructive knowledge of the protected disclosure, even if the
official lacked actual knowledge. Nasuti v. Department of State, 120 M.S.P.R.
588, ¶ 7 (2014). An appellant may establish constructive knowledge by showing
that an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Id.
Here, the administrative judge found that the appellant did not establish her
prima facie case because she did not prove that the deciding official had
knowledge of her reported violations of the 30-day scheduling policy, nor did she
establish that any manager who did know about the appellant’s disclosures was
the source of the misconduct accusation against her. ID at 21-22. However, the
administrative judge did not address that the individual who proposed the
appellant’s removal based on a third-party’s accusation was copied by the
appellant on emails in which she made protected disclosures. 5 IAF, Tab 4 at 13,
Tab 12 at 23-24; ID at 11; see Visconti v. Environmental Protection Agency ,
78 M.S.P.R. 17, 23–24 (1998) (a proposing official’s knowledge of protected
disclosures may be imputed to the deciding official). On remand, the
administrative judge should consider whether the appellant has established that
the proposing official had actual knowledge of these disclosures and, as the
proposing official, influenced the agency’s removal action, thus satisfying the
knowledge prong of the knowledge/timing test.
Moreover, the knowledge/timing test is not the only way an appellant can
establish that her protected disclosures were a contributing factor in the agency’s
personnel action. If an appellant fails to satisfy the knowledge/timing test, the
Board must consider other evidence, such as that pertaining to the strength or
5
Neither party requested to call the proposing official as a witness at the hearing.
9
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding official, and
whether those individuals had a desire or motive to retaliate against the appellant.
Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013); Dorney,
117 M.S.P.R. 480, ¶ 15. These factors are a nonexhaustive list of the evidence
that may be relevant to a contributing factor determination. See Dorney,
117 M.S.P.R. 480, ¶ 15 (reflecting that the listed factors are the types of factors
to be considered). Here, the administrative judge discussed some evidence
relevant to the contributing factor determination, such as the appellant’s
testimony that her managers became upset with her because her disclosures risked
causing them to receive poor evaluations, but only as factual background. ID
at 11. He did not address this evidence in the context of the appellant’s prima
facie case. ID at 22. Thus, we find that the administrative judge erred by not
addressing the alternative to the knowledge/timing test set forth in Dorney after
concluding that the protected disclosures did not satisfy the knowledge/timing
test. ID at 22.
On remand, the administrative judge must reconsider whether the appellant
has established that her protected disclosures were a contributing factor in the
agency’s personnel action. See Dorney, 117 M.S.P.R. 480, ¶ 14. If the
administrative judge determines that the appellant’s disclosures did not satisfy the
knowledge/timing test, then he must consider other relevant evidence. Id., ¶ 15.
If, after this analysis, the administrative judge finds that the appellant has proven
contributing factor, then the administrative judge must determine whether the
agency has proven by clear and convincing evidence that it would have taken the
same personnel action in the absence of the protected disclosures. See Ayers,
123 M.S.P.R. 11, ¶¶ 12, 27. As the parties were provided a full opportunity to
submit argument and evidence on these issues below, the administrative judge
need not provide the parties with a new opportunity to submit argument and
evidence concerning the appellant’s whistleblower reprisal claim. However, if
10
any argument or evidence presented by the parties concerning the issues on
remand affects the analysis of this claim, he must address it.
On remand, the administrative judge should review the agency’s penalty selection
by considering the Douglas factors.
The administrative judge, in interpreting 38 U.S.C. § 714(d)(2)(B), stated
that the reasonableness of the agency’s imposed penalty, along with a
consideration of mitigating and aggravating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), was immaterial. ID at 19-20; see
38 U.S.C. § 714(d)(2)(B) (providing that, “if the decision of the Secretary is
supported by substantial evidence, the administrative judge shall not mitigate the
penalty prescribed by the Secretary.”). Notwithstanding his conclusion that the
Douglas factors were immaterial, he provided some discussion of the merits of
the appellant’s arguments concerning Douglas factor 6, i.e., the consistency of the
penalty with those imposed upon other employees for the same or similar
offenses. ID at 20 n.3; see Douglas, 5 M.S.P.R. at 305. On review, the appellant
reraises her allegation of disparate penalties and argues that the administrative
judge, having found that the agency failed to prove one of its specifications, was
obliged to fully consider the Douglas factors. PFR File, Tab 1 at 9-10.
The administrative judge did not have the benefit of the Federal Circuit’s
recent decisions on the applicability of the Douglas factors in § 714 appeals. See
Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1379 (Fed. Cir. 2020);
see also Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1323-27 (Fed.
Cir. 2021); Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1322-27
(Fed. Cir. 2021). In Sayers, the Federal Circuit clarified that, while the Board
may not “mitigate the penalty,” § 714 nevertheless requires the Board to review
for substantial evidence the entirety of the agency’s removal decision—including
the penalty. 954 F.3d at 1379. In Connor, the Federal Circuit addressed the
continued relevance of the Douglas factors and concluded that § 714 “did not
alter preexisting law, which required the VA and the Board to apply the Douglas
11
factors to the selection and review of penalties in VA disciplinary actions.”
8 F.4th at 1326. It stated, “if the Board determines that the VA failed to consider
the Douglas factors or that the chosen penalty is unreasonable, the Board must
remand to the VA for a redetermination of the penalty.” Id. at 1326-1327; see
Semenov, 2023 MSPB 16, ¶¶ 44-49 (remanding to the administrative judge to
review the agency’s penalty selection by considering the Douglas factors).
Here, the deciding official did not reference the Douglas factors in his
removal decision. IAF, Tab 4 at 6-9. He testified at the hearing concerning his
consideration of some of the factors set forth in Douglas, including the
seriousness of the misconduct, the appellant’s years of service, and whether there
were options other than removal. HR (testimony of the deciding official); see
Douglas, 5 M.S.P.R. at 305-06. However, he also testified, when asked about
whether he conducted a penalty analysis in the appellant’s case, that he was “not
required” to conduct a Douglas analysis. HR (testimony of the deciding official).
He explained that he “looked at the penalties, but, under [§] 714, you look at the
severity of the act and then you’re encouraged to move quickly on the severity of
the act.” Id. Without the benefit of the Federal Circuit’s decisions regarding the
Board’s obligation to review the penalty in § 714 appeals, the administrative
judge did not fully develop the issue of whether the agency considered the
Douglas factors and whether the penalty of removal was reasonable. On remand,
the administrative judge should permit the parties to submit additional evidence
and argument on the penalty issue, determine whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors and
whether the agency’s penalty was reasonable, and, if not, remand the appellant’s
removal to the agency for a new removal decision. See Semenov, 2023 MSPB 16,
¶ 50.
12
ORDER
We vacate the initial decision and remand the appeal to the regional office
for further adjudication consistent with this order. 6
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.