Opinion

Castillo Joseph v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH CASTILLO, DOCKET NUMBER

Appellant, NY-114M-22-0092-X-1

DEPARTMENT OF HOMELAND DATE: April 5, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph Castillo , Carolina, Puerto Rico, pro se.

Carla J. Chen , Esquire, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

In a December 12, 2022 compliance initial decision, the administrative

judge found the agency in noncompliance with the September 8, 2022 initial

decision mitigating the appellant’s removal to a 60-day suspension. Castillo v.

Department of Homeland Security, MSPB Docket No. NY-114M-22-0092-C-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

Compliance File, Tab 7, Compliance Initial Decision (CID); Castillo v.

Department of Homeland Security, MSPB Docket No. NY-114M-22-0092-Y-1,

Initial Appeal File, Tab 19, Initial Decision (ID). For the reasons discussed

below, we find the agency in compliance and DISMISS the petition for

enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On September 8, 2022, the administrative judge issued an initial decision

mitigating the appellant’s removal to a 60-day suspension and requiring the

agency to take appropriate action. ID at 1, 12. Following the appellant’s petition

for enforcement of this order, the administrative judge issued a compliance initial

decision on December 12, 2022, finding the agency noncompliant because it had

not taken any of the actions specified in the initial decision. CID at 2. The

administrative judge ordered the agency to submit evidence showing that it had

fully complied with the relief ordered in the initial decision. CID at 3.

In the compliance initial decision, the administrative judge informed the

agency that, if it decided to take the actions required by the decision, it must

submit to the Office of the Clerk of the Board, within the time limit for filing a

petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the

actions identified in the compliance initial decision, along with evidence

establishing that it has taken those actions. CID at 4; see 5 C.F.R. § 1201.183(a)

(6)(i). She also informed the parties of their option to request Board review of

the compliance initial decision by filing a petition for review by January 16,

2023, the date on which the findings of noncompliance would become final unless

a petition for review was filed. CID at 4; see 5 C.F.R. §§ 1201.114(e),

1201.183(a)(6)(ii), 1201.183(b). Neither party filed any submission with the

Office of the Clerk of the Board within the time limit set forth in 5 C.F.R.

§ 1201.114. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the

administrative judge’s findings of noncompliance became final, and the

appellant’s petition for enforcement was referred to the Board for a final decision

on issues of compliance. Castillo v. Department of Homeland Security, MSPB

Docket No. NY-114M-22-0092-X-1, Compliance Referral File (CRF), Tab 1.

When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation he would

have been in had the wrongful personnel action not occurred. House v.

Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the

burden to prove its compliance with a Board order. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance

must include a clear explanation of its compliance actions supported by

documentary evidence. Id. The appellant may rebut the agency’s evidence of

compliance by making “specific, nonconclusory, and supported assertions of

continued noncompliance.” Brown v. Office of Personnel Management,

113 M.S.P.R. 325, ¶ 5 (2010).

On February 2, 2023, the agency responded to the acknowledgement order

and submitted evidence that it had replaced the removal Standard Form 50

(SF-50) with an SF-50 showing a 60-day suspension; returned him to the agency’s

payroll following the 60-day suspension; and paid the appellant back pay and

benefits. CRF, Tab 2 at 5-6, 8-11. The appellant has not responded to this

submission, although the acknowledgement order informed him that if he did not

respond to the agency’s submission within 20 calendar days, the Board might

assume he was satisfied and dismiss his petition for enforcement. CRF, Tab 1

at 3-4. Accordingly, in view of the evidence submitted by the agency and the

appellant’s lack of response, we find the agency in compliance and dismiss the

petition for enforcement.

This is the final decision of the Merit Systems Protection Board in this

compliance proceeding. Title 5 of the Code of Federal Regulations, section

1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

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.

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. 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).

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