The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL RAY NEICE, DOCKET NUMBER
Appellant, CH-0432-18-0020-I-1
v.
SOCIAL SECURITY DATE: June 10, 2024
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Daniel Ray Neice , Overland Park, Kansas, pro se.
Julia C. Walker , Esquire, and Laurie Faber Stitzer , Esquire, Kansas City,
Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his contribution-based removal. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was a Claims Specialist whom the agency removed under the
provisions of 5 U.S.C. chapter 43, effective September 11, 2017. Initial Appeal
File (IAF), Tab 6 at 93-100, Tab 24 at 11. The appellant filed a Board appeal,
and the administrative judge issued an initial decision sustaining the removal.
IAF, Tab, 31, Initial Decision (ID). The appellant has filed a petition for review,
and the agency has filed a response. 2 Petition for Review File, Tabs 1, 4.
¶3 Having carefully considered the appellant’s petition for review, we find that
he has identified no basis to disturb the initial decision. Nevertheless, during the
pendency of the petition for review, the U.S. Court of Appeals for the Federal
Circuit issued Santos v. National Aeronautics and Space Administration , 990 F.3d
1355 (Fed. Cir. 2021), in which it clarified the agency’s burden of proof in a
chapter 43 appeal. Specifically, the court held that, in addition to the five
elements of proof that the administrative judge identified in her initial decision,
ID at 16, the agency must also prove by substantial evidence that the appellant’s
performance was unsatisfactory leading up to the formal opportunity to
demonstrate acceptable performance (in this case, the Opportunity to Perform
Successfully (OPS)). Santos, 990 F.3d at 1360-61. In other words, the agency
must justify its initiation of the opportunity to demonstrate acceptable
performance.
¶4 Pursuant to Santos, the Board now identifies six elements that the agency in
a chapter 43 appeal must prove by substantial evidence: (1) the Office of
Personnel Management approved its performance appraisal system and any
2
The appellant’s petition was untimely by 1 day. Considering the circumstances of the
appellant’s untimely filing, we find good cause to waive the filing deadline. See
generally 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).
3
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s
performance during the appraisal period was unacceptable in one or more critical
elements; (5) the agency warned the appellant of the inadequacies in his
performance during the appraisal period and gave him an adequate opportunity to
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element.
¶5 The administrative judge in this case correctly applied Board precedent as it
existed at the time she issued her initial decision. However, neither she nor the
parties had the benefit of the court’s decision in Santos, and that decision applies
to all appeals pending before the Board regardless of when the events at issue
took place. Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16.
Although the record already contains a significant amount of evidence regarding
the appellant’s performance leading up to the OPS (element 4), the appellant was
not specifically informed that this would be an issue, and he has not had a full
and fair opportunity to address it. Therefore, this appeal must be remanded to
give the parties an opportunity to file evidence and argument concerning the
appellant’s pre-OPS performance.
¶6 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre-OPS
performance was unacceptable. The administrative judge shall then issue a new
initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on other elements of the agency’s case in the
remand initial decision.
4
ORDER
¶7 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.