Opinion

Daniel Greene v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL GREENE, DOCKET NUMBER

Appellant, AT-0752-22-0418-I-2

DEPARTMENT OF DEFENSE, DATE: May 9, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Aaron H. Szot , Esquire, Washington, D.C., for the appellant.

Daniel Mitchell , Esquire, Key West, Florida, for the agency.

Bobbie Garrison , Esquire, Doral, Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

reversed the agency’s removal action after finding that the agency violated the

appellant’s due process rights. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of 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. Except as expressly MODIFIED to

supplement the administrative judge’s finding as to Board jurisdiction, we

AFFIRM the initial decision. We also DENY the agency’s renewed motion to

dismiss for mootness.

BACKGROUND

¶2 The appellant was a GG-0132-15 Supervisory Intelligence Specialist for the

Department of Defense, Joint Interagency Task Force South, at the Naval Air

Station in Key West, Florida. Greene v. Department of Defense, MSPB Docket

No. AT-0752-22-0418-I-1, Initial Appeal File (IAF), Tab 1 at 20. On March 17,

2022, the agency proposed the appellant’s removal based on the charges of

conduct unbecoming (15 specifications), insubordination (1 specification), and

lack of candor (1 specification). Id. at 20-29. By letter dated May 10, 2022, the

deciding official, Rear Admiral (RADM) D. Fears, sustained the action and

removed the appellant effective May 11, 2022. Id. at 30-35.

¶3 The appellant subsequently appealed to the Board. IAF, Tabs 1, 28;

Greene v. Department of Defense, MSPB Docket No. AT-0752-22-0418-I-2,

Appeal File (I-2 AF), Tab 1. 2 During the prehearing process, the appellant raised

During case processing, the appellant requested a dismissal without prejudice for more

time to prepare his case. I-2 AF, Tab 1. The administrative judge granted his request,

and the case was automatically refiled by the Board on January 3, 2023. Id.

the affirmative defense of retaliation for protected whistleblowing activity and

alleged that the agency had violated his due process rights because RADM Fears

relied on two separate new and material ex parte communications in rendering his

decision. I-2 AF, Tab 7. The administrative judge thereafter allowed the parties

to further develop evidence on the due process issue and held a limited hearing on

that matter. I-2 AF, Tab 21.

¶4 Shortly after the limited hearing, the agency filed a motion to dismiss the

appeal for lack of jurisdiction, and submitted its letter to the appellant dated

April 5, 2023, rescinding the removal action effective May 11, 2022, placing the

appellant on administrative leave, and noting, “[t]hrough reinstatement, you will

receive full back pay and benefits. Such payments regarding your payroll and

benefits are made by [the Defense Finance and Accounting Service (DFAS)] and

are not under [a]gency control.” 3, 4 I-2 AF, Tab 23 at 7. In its motion, the agency

asserted that it had reinstated the appellant to the status quo ante and notified him

of his reinstatement, and that the agency’s recission of the removal action thus

rendered the appeal moot. Id. at 4-6. The appellant responded in opposition,

arguing that he had not been afforded any relief regarding the recission of the

removal and further that, notwithstanding the agency’s cancellation of the

removal action, he could still proceed with his outstanding whistleblower

retaliation claim and thus that his appeal should continue to be adjudicated on the

merits. I-2 AF, Tab 27 at 4-6. With his response, the appellant submitted an

affidavit swearing that, although he had received a Standard Form 50 (SF-50)

cancelling his removal on April 11, 2023, he had not received any back pay or

benefits, including premium pay, a step increase, an annual raise, or confirmation

that all references to the removal had been removed from his personnel file.

Id. at 7. The administrative judge subsequently issued an order denying the

DFAS processes payroll, leave, and other accounting actions on behalf of the agency.

The agency notes on review that simultaneously on April 5, 2023, it issued the

appellant a new notice of removal and placed him on administrative leave. Petition for

Review File, Tab 1 at 6, 20-30, Tab 5 at 27.

agency’s motion to dismiss the case as moot “for the reasons stated in the

appellant’s April 17, 2023 opposition to that motion.” I-2 AF, Tab 28. Shortly

afterward, the appellant withdrew his whistleblower retaliation affirmative

defense and requested an initial decision on his due process claim. I -2 AF,

Tab 29.

¶5 Days later, the administrative judge issued an initial decision reversing the

agency’s removal action, finding that the agency had violated the appellant’s due

process rights in removing him. I-2 AF, Initial Decision (ID), Tab 30 at 1, 12.

The administrative judge first noted that the Board had jurisdiction over the

appeal under 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), and 7513(d). ID at 1. He then

specifically found that RADM Fears had improperly considered an unnoticed

deciding official guidance document that included a sentence stating, “[s]ince this

action is based on the employee’s inability to perform his duties, reducing the

penalty is not an option.” ID at 7-10. The administrative judge also found that

RADM Fears’ awareness of unnoticed portions of an Army Regulation (AR) 15-6

investigation into the allegations that formed the basis for the charges against the

appellant violated the appellant’s due process rights because Fears used the

negative credibility determinations in the investigation as a central basis for

sustaining the charged misconduct. ID at 10-11.

¶6 The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. On review, the agency argues that the administrative judge erroneously

failed to recognize that the Board no longer had jurisdiction over the appeal after

the appellant withdrew his whistleblower retaliation claim and that the

administrative judge failed to apply Board case law regarding mootness and

providing parties time to supplement the record on that issue. Id. at 9-11.

Similarly, the agency claims that the administrative judge abused his discretion

by issuing the initial decision after the appellant withdrew his whistleblower

retaliation claim and requested an initial decision because he did not afford the

agency the opportunity to respond or have a hearing on the issue of Board

jurisdiction and whether it had returned the appellant to the status quo ante.

Id. at 12-13. Additionally, the agency argues that the administrative judge

erroneously found that the agency violated the appellant’s due process rights on

both of the points mentioned above. Id. at 13-18. The appellant filed a response.

PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over the appeal.

¶7 The agency’s argument that the appeal was moot at the time the

administrative judge issued the initial decision and that the administrative judge

erroneously failed to apply case law related to mootness is unavailing.

¶8 The Board’s jurisdiction over an agency action such as a removal is

determined by the nature of an agency’s action against a particular appellant at

the time an appeal is filed with the Board, and an agency’s unilateral modification

of its adverse action after an appeal has been filed cannot divest the Board of

jurisdiction unless the appellant consents to such divestiture, or unless the agency

completely rescinds the action being appealed. Fernandez v. Department of

Justice, 105 M.S.P.R. 443, ¶ 5 (2007). Thus, the Board may dismiss an appeal as

moot if the appealed action is canceled or rescinded by the agency. Id. (citing

Harris v. Department of the Air Force, 96 M.S.P.R. 193, ¶ 5 (2004)). For an

appeal to be deemed moot, the agency’s rescission must be complete, i.e., the

appellant must be returned to the status quo ante and not left in a worse position

as a result of the cancellation than he would have been in if the matter had been

adjudicated and he had prevailed. Price v. U.S. Postal Service, 118 M.S.P.R.

222, ¶ 8 (2012). Status quo ante relief generally requires that the agency return

the appellant to the position he previously occupied, or one substantially

equivalent in scope and status, remove all references to the rescinded action, and

restore to the appellant any lost back pay or benefits. Hess v. U.S. Postal Service,

123 M.S.P.R. 183, ¶ 5 (2016). If an appeal is not truly moot despite cancellation

of the action under appeal, the proper remedy is for the Board to retain

jurisdiction and to adjudicate the appeal on the merits. Price, 118 M.S.P.R. 222,

¶ 8.

¶9 Here, contrary to the agency’s assertions, the appeal was not moot after the

appellant withdrew his whistleblower retaliation affirmative defense. The

recission of removal action letter that the agency submitted with its motion to

dismiss stated that through reinstatement, the appellant would receive full back

pay and benefits. I-2 AF, Tab 23 at 7. However, he had not actually received any

relief at that time. Indeed, the appellant’s affidavit in response to the agency’s

motion swears that he had not received any back pay or benefits, including

premium pay, a step increase or annual raise, or confirmation that all references

to the removal had been removed from his personnel file, as is required for status

quo ante relief. I-2 AF, Tab 27 at 7; see Hess, 123 M.S.P.R. 183, ¶ 5; Harris,

96 M.S.P.R. 193, ¶ 6 (explaining in more detail what restoration to the status quo

ante requires); Jasper v. U.S. Postal Service, 88 M.S.P.R. 27, ¶ 9 (2001) (holding

that the appellant’s sworn statement that the agency had not paid him all

appropriate back pay constituted a nonfrivolous allegation that his appeal was not

moot). Thus, the agency’s recission of the removal action was not complete.

Price, 118 M.S.P.R. 222, ¶ 8.

¶10 Although the agency argues on review that the administrative judge should

have allowed the agency an opportunity to respond to the appellant’s withdrawal

of his affirmative defense, or to supplement the record and/or conduct a hearing

on whether the appellant had been returned to the status quo ante, its arguments

are unpersuasive. PFR File, Tab 1 at 8, 10-13. The agency does not point to any

authority indicating that it has a right to respond to the appellant’s withdrawal of

his own affirmative defense. Id. at 12-13. Furthermore, when the appellant

withdrew his affirmative defense, the record on the due process issue had closed

and the administrative judge had already issued his order denying the agency’s

motion to dismiss as moot, and thus, there were no outstanding issues left to

address before ruling on the due process issue. PFR File, Tab 1 at 6, Tab 16; I-2

AF, Tabs 28, 29.

¶11 The Board cases that the agency cites in support of its argument do not

establish that, in situations such as the one presented here, the administrative

judge must afford the agency a hearing or an opportunity to supplement the

record on the issue of jurisdiction or whether the appellant has been provided

with status quo ante relief. PFR File, Tab 1 at 10-13 (discussing Stempihar v.

U.S. Postal Service, 106 M.S.P.R. 115, ¶¶ 13-14 (2007) (finding that the

administrative judge erred in dismissing the appeal as moot “upon the agency’s

assurances that the appellant would be restored to the status quo ante instead of

upon evidence that the appellant had been restored to the status quo ante” and

remanding the case for the administrative judge to determine whether the agency

had completely rescinded the appellant’s removal and afforded him all relief after

affording the parties to submit evidence and argument on the issue) (emphasis in

original); Calarco v. U.S. Postal Service, 56 M.S.P.R. 598, 601-02 (1993)

(remanding the case where that the Board was unable to determine whether the

agency had corrected the appellant’s placement on enforced leave status for the

disputed period and for the administrative judge to determine whether the

appellant had been returned to the status quo ante); and McCulley v. U.S. Postal

Service, 54 M.S.P.R. 207, 209-10 (1992) (finding that the Board was unable on

petition for review to determine whether the agency completely rescinded a

demotion action and ordering the administrative judge on remand to determine

whether the appellant had been returned to the status quo ante after affording the

parties an opportunity to supplement the record and conduct a hearing if

necessary)). These cases all involve Board orders to consider additional evidence

and argument on remand and after petition for review, and they are therefore

distinguishable. Moreover, if anything, the cases that the agency cites support the

administrative judge’s determination that the appeal here was not moot and his

issuance of an initial decision adjudicating the due process issue.

¶12 Even if the administrative judge did somehow err in issuing the initial

decision without allowing the agency to supplement the record on whether the

appellant had been returned to the status quo ante or by, for example, dismissing

the appeal without prejudice to allow time for the cancellation efforts to play out,

any such error is harmless here because the new evidence on review clearly shows

that the agency still has not returned the appellant to the status quo ante, and thus

that the issues still are not moot. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (providing that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision). To this end, with its petition for review, the agency submitted a

May 18, 2023 affidavit from an agency employee and labor relations official

affirming that the agency canceled the appellant’s May 11, 2022 removal, purged

that action from the appellant’s personnel file, processed the appellant’s step

increase, and sent to DFAS the appellant’s timecard worksheets processing his

back pay, retirement contributions, and annual leave balance restoration

information, and that these three issues “will be processed with DFAS Remedy

Ticket 3837369.” PFR File, Tab 1 at 31 (emphasis added); see also id. at 11, 18.

The agency also attached two of the appellant’s SF-50s confirming the

cancelation of the removal and his step increase, in addition to the appellant’s

corrected timecard worksheets showing that the agency placed the appellant on

administrative leave from May 11, 2022, through April 2023. Id. at 33-60. In

response, the appellant submitted a supplemental affidavit swearing that he still

had “not received any back pay, including interest and the premium pay that [he]

would have received had [he] not been removed from [his] position;

Thrift Savings Plan [TSP] contributions; or had [his] leave restored.” PFR File,

Tab 5 at 27.

¶13 This evidence plainly demonstrates that even at the time the agency filed its

petition for review, it still had not taken all the steps necessary to completely

rescind the removal. See Jasper, 88 M.S.P.R. 27, ¶ 9; see also Gillespie v.

Department of Defense, 90 M.S.P.R. 327, ¶ 10 (2001) (stating that an appellant is

not restored to the status quo ante where he does not receive all the back pay to

which he is entitled). Although the agency asserted that it had “been responsive

in its good faith efforts to put [the a]ppellant as nearly as possible back into the

position he was in before he was removed” and that it had submitted to DFAS all

of the documentation necessary for payment, the Board has previously held in

various compliance cases that the agency is responsible for ensuring that its

agent, DFAS, satisfies the agency’s obligations in a timely fashion. PFR File,

Tab 1 at 13; see Tichenor v. Department of the Army, 84 M.S.P.R. 386, ¶ 8 (1999)

(rejecting the agency’s argument that severance pay withheld by DFAS was not

the result of the agency’s action, on the ground that the agency used DFAS as its

paying agent). When the petition for review was filed, DFAS had still not

actually paid the appellant.

¶14 We note that after the agency filed its petition for review and while the case

was pending before the Board, the agency filed a status update and renewed

motion to dismiss the appeal as moot. PFR File, Tab 6. In its motion, the agency

claims that the appellant has “been afforded the relief owed to him” because it

restored him to the same job position that he held when he was removed, that the

appellant “received all of the back pay he was entitled to,” and that the agency

restored all of the appellant’s benefits. Id. at 7-8. It attaches, without

explanation, two of the appellant’s leave and earnings statements from February

2024 and asserts that it has returned the appellant to the status quo ante.

Id. at 8-10. In response, the appellant submitted another detailed affidavit

swearing, among other things, that the agency has still not paid him all the

backpay to which he is entitled because it did not calculate or pay him the

premium pay he would have earned had he not been improperly removed, which

he estimates should have resulted in roughly $20,000 of additional pay; that while

the agency restored his TSP contributions, it did not make up for the positive

growth of his funds; and that due to the agency’s significant delays in providing

him backpay, he has suffered a significantly increased tax burden. PFR File,

Tab 9 at 10-11. He also submitted a spreadsheet showing his premium hours for

2021 and the calculation if earned in 2022 and 2023. Id. at 12.

¶15 Again, this new evidence still plainly demonstrates that even now, over a

year after the initial decision was issued, the agency still has not taken all the

steps necessary to completely rescind the removal and return the appellant to the

status quo ante. See Jasper, 88 M.S.P.R. 27, ¶ 9; Gillespie, 90 M.S.P.R. 327,

¶ 10; see also Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5

(2011) (explaining that the appellant may rebut the agency’s evidence of

compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance). As indicated above, back pay generally includes

overtime and premium pay that the appellant would have earned had the wrongful

personnel action not occurred. Owens v. Department of Transportation,

99 M.S.P.R. 377, ¶ 6 (2005). Here, the agency has not explained or even

addressed the issue of premium pay in any of its filings. IAF, Tab 23; PFR File,

Tabs 1, 6; see Norvell v. U.S. Postal Service, 38 M.S.P.R. 563, 567-68 (1988) (an

appellant’s entitlement to overtime pay is a factor to be considered when

determining whether an action has been completely rescinded). In addition, as

the appellant correctly points out, pursuant to the Federal Retirement Thrift

Investment Board (FRTIB) regulation 5 C.F.R. § 1605.13, a TSP participant who

receives back pay is entitled to “breakage,” or the loss or gain that he would have

incurred or realized on his shares had his separation not occurred. 5 C.F.R.

§§ 1605.1, 1605.13(a)(3). As to the appellant’s breakage, the agency must show

that it requested the FRTIB to compute interest and lost earnings. Price,

118 M.S.P.R. 222, ¶ 16. Here, there is no evidence indicating that the agency

made the required request to the FRTIB.

¶16 Furthermore, as the appellant notes in both of his filings in response to the

agency’s submissions on review, the agency states that it put the appellant on

administrative leave when it rescinded the May 11, 2022 removal action on

April 5, 2023. I-2 AF, Tab 23 at 6-7; PFR File, Tab 5 at 12 n.6, Tab 9 at 7 n.2.

Indeed, the corrected timecard worksheets that the agency submitted with its

petition show that the agency retroactively placed the appellant in administrative

leave status from May 11, 2022, through April 2023. PFR File, Tab 1 at 35-59,

Tab 5 at 12 n.6. Additionally, on April 5, 2023, at the same time that the agency

rescinded the May 11, 2022 removal action, it issued the appellant a new notice

of proposed removal and placed him in administrative leave status. PFR File,

Tab 1 at 20. Notably, however, the Board has held that an appellant’s placement

on administrative leave pending another removal action is not placement which is

substantially similar to his situation in his former position. Rauccio v. U.S.

Postal Service, 44 M.S.P.R. 243, 245 (1990); see Fairley v. U.S. Postal Service,

63 M.S.P.R. 10, 12-13 (1994) (finding that the fact that the agency took another

removal action against the appellant shortly after cancelling the first action raised

the issue of whether the appellant was ever returned to duty after the cancellation

of the first action and that an appellant has not been returned to the status quo

ante unless he has been returned to duty status in his position); Dalton v. U.S.

Postal Service, 62 M.S.P.R. 95, 97 (1994) (stating that retroactive placement of a

suspended employee in administrative leave status is not the same as return to the

status quo ante and thus does not constitute complete rescission); Hudson v.

Department of Housing and Urban Development, 54 M.S.P.R. 139, 142 (1992)

(stating that an agency does not return an employee to the status quo ante when it

rescinds the appealed action and then, instead of returning the appellant to duty,

places her on administrative leave pending a second proposed removal action).

¶17 Accordingly, the administrative judge did not err in concluding that the

Board had jurisdiction over the appeal or in applying the Board’s case law related

to mootness issues. Nevertheless, we modify the initial decision to supplement

the administrative judge’s finding as to jurisdiction as discussed herein. Further,

we conclude that the agency’s recission is still not complete and that it has not

returned the appellant to the status quo ante, and therefore, we deny the agency’s

renewed motion to dismiss for mootness. The Board retains jurisdiction over the

appeal. See Price, 118 M.S.P.R. 222, ¶ 8.

The agency has not established that the administrative judge erred in finding that

the agency violated the appellant’s due process rights.

¶18 On review, the agency also argues that the administrative judge erred in

finding that the agency violated the appellant’s due process rights. PFR File,

Tab 1 at 13-18. Our reviewing court has held that a deciding official violates an

employee’s due process rights when he or she relies upon new and material ex

parte information as a basis for a decision on the merits of a proposed charge or

the penalty to be imposed. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80

(Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d

1368, 1376-77 (Fed. Cir. 1999). Further, the Board has held that an employee’s

due process right to notice extends to both ex parte information provided to a

deciding official and information known personally to the deciding official if the

information was considered in reaching the decision and not previously disclosed

to the appellant. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). In

Stone, the U.S. Court of Appeals for the Federal Circuit identified the following

factors to be used to determine if ex parte information is new and material:

(1) whether the ex parte information introduced cumulative, as opposed to new,

information; (2) whether the employee knew of the information and had

an opportunity to respond; and (3) whether the communication was of the type

likely to result in undue pressure on the deciding official to rule in a particular

manner. Stone, 179 F.3d at 1377.

¶19 As discussed above, the administrative judge first concluded that RADM

Fears improperly considered an unnoticed deciding official guidance document

that included a sentence stating, “[s]ince this action is based on the employee’s

inability to perform his duties, reducing the penalty is not an option.” ID at 8-10;

I-2 AF, Tab 10 at 17. In this regard, the administrative judge found, among other

things, that it was undisputed this information was not provided to the appellant

and that he was not provided with an opportunity to respond to it; that there was

nothing in the notice of proposed removal that would have led even a

sophisticated reader to conclude that RADM Fears was considering this

instruction; that there was nothing in the nature of the charges rendering the

appellant unable to perform his duties and that this instruction inferred that the

agency considered unnoticed misconduct; and that given RADM Fears’ admitted

inexperience in civilian personnel matters, this instruction would have placed

undue pressure on him, especially as Fears testified at his deposition that his

decision was “constrained” by this instruction. ID at 9-10; I-2 AF, Tab 25 at 9.

¶20 In its petition, the agency argues that RADM Fears stated in an affidavit

submitted after his deposition testimony and during the due process hearing that

he did in fact consider a lesser penalty but found removal the most appropriate

penalty, and that Fears actually disregarded the disputed language. PFR File,

Tab 1 at 14; I-2 AF, Tab 14 at 83, Tab 21. However, the administrative judge

explicitly acknowledged that although there was evidence in RADM Fears’

Douglas factors checklist and his hearing testimony that he disregarded this

instruction and considered a lesser penalty, that evidence “was exceedingly

difficult to credit given the agency’s plain instruction to RADM Fears that

he could not mitigate the penalty and his conflicting deposition testimony that

he was, in fact, constrained by that instruction.” ID at 9. Although the

administrative judge did not specifically mention Fears’ affidavit,

an administrative judge’s failure to mention all of the evidence and testimony of

record does not mean that he did not consider it in reaching his decision, and

here, the administrative judge still clearly considered the agency’s argument.

Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132

(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table); ID at 9. Furthermore, the

Board must give deference to an administrative judge’s credibility determinations

when they are based, explicitly or implicitly, on the observation of the demeanor

of witnesses testifying at a hearing, and the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so.

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the

administrative judge thoroughly reviewed the evidence and specifically cited

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), in setting forth

his credibility determinations. ID at 9. We discern no reason to disturb his

well-reasoned findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106

(1997) (stating that there is no reason to disturb the initial decision where the

administrative judge considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions).

¶21 As noted above, the administrative judge also concluded that RADM Fears’

awareness of unnoticed portions of an AR 15-6 investigation into the appellant’s

charged conduct violated the appellant’s due process rights because, among other

things, Fears used the investigating officer’s negative credibility determinations

—in that he essentially called the appellant a liar—as a central reason for

sustaining the charged misconduct and because the agency did not provide the

appellant notice of Fears’ considerations in this regard. ID at 10-11. On review,

the agency maintains that RADM Fears did not review the entire AR 15-6

investigation file and that Fears’ past involvement with investigations provided

him with knowledge on what the appellant’s AR 15-6 investigation contained.

PFR File, Tab 1 at 17. However, the administrative judge specifically discussed

this argument and found, contrary to the agency’s assertions, that Fears was privy

to the entire AR 15-6 investigation for multiple reasons. ID at 11 n.1. The

agency’s argument simply disagrees with the administrative judge and is thus

unavailing. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010)

(arguments that constitute mere disagreement with the initial decision do not

provide a basis to grant the petition for review).

¶22 Finally, the agency claims that the appellant had a meaningful opportunity

to present his side of the story here because he submitted a written reply to the

notice of proposed removal that substantively addressed all of the charges against

him. PFR File, Tab 1 at 16-17. It asserts that the appellant received all due

process that he was entitled to. Id. at 16. However, the agency’s mere

disagreement with the administrative judge’s evaluation of the evidence does not

establish a basis for review. Broughton v. Department of Health and Human

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

ORDER

¶23 We ORDER the agency to cancel the removal and retroactively restore the

appellant effective May 11, 2022. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

¶24 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶25 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶26 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶27 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

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

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.

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:

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. 6 The court of appeals must receive your petition for

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

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