Joint Appendix — Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 811 (2017) (No. 16-399)

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FILED

FEB 27 2017

OFFICE OF THE GER.

Supreme Court of the United States

ANTHONY W. PERRY,

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the D.C. Circuit

JOINT APPENDIX

NOEL J. FRANCISCO CHRISTOPHER LANDAU, P.C.

Counsel of Record Counsel of Record

DEPARTMENT OF JUSTICE KIRKLAND & ELLIS LLP

950 Pennsylvania Ave. N.W. 655 Fifteenth St., N.W.

Washington, DC 20530 Washington, DC 20005

(202) 514-2217 (202) 879-5000

SupremeCtBriefs@usdoj.gov clandau@kirkland.com

Counsel for Respondent Counsel for Petitioner

Seoruary 27, 2017

PETITION FOR WRIT OF CERTIORARI FILED

SEPTEMBER 27, 2016

CERTIORARI GRANTED JANUARY 13, 2017

TABLE OF CONTENTS

Docket,

U.S. Court of Appeals for the D.C. Circuit ....... 1

Docket,

Merit Systems Protection Board,

Perry v. Department of Commerce,

BE LS 5 re 15

Docket,

Merit Systems Protection Board,

Perry v. Department of Commerce,

No. DC-0752-12-0487-[-1 ............ccccceeceeeeeee eens 17

Docket,

Merit Systems Protection Board,

Perry v. Department of Commerce,

No. DC-0752-12-0486-B- 1.................0.scseeeeeenes 19

Docket,

Merit Systems Protection Board,

Perry v. Department of Commerce,

BS EE Eee 23

Settlement Agreement,

August 11-22, 2011 ..............:cceceeeeeeeressesenseenens 26

Proposed Removal Decision,

August 2G, 2011 ...........cccccccrerrrorereoressensreseseenees 35

Application for Voluntary Early Retirement,

April 2, 2012...............0...cseserseee:ssssesonessesossererenes 37

MSPB Appeal Form 185,

P|. < _. Sn eiinaeunbininnaianeten 38

General Docket

United States Court of Appeals for

District of Columbia Circuit

Court of Appeals Docket #: Docketed: 08/20/2014

14-1155 Termed: 07/22/2016

Anthony Perry v. MSPB

Appeal From: Merits Systems

Protection Board

Fee Status: Fee Paid

Case Type Information:

1) Petition for Review

2) Review

Originating Court Information:

District: MSPB-1 : MSPB-DC-0752-12-0486-B-1

District: MSPB-1 : MSPB-DC-0752-12-0487-B-1

Prior Cases:

None

Current Cases:

None

Panel Assignment:

Panel: TBG SS PAM

Date of Hearing: 11/18/2015 Date of |

Decision: 07/22/2016 Date Completed: 07/22/2016 |

Anthony W. Perry Anthony W. Perry

Petitioner [NTC Pro Se]

Firm: 301-928-2305

5907 Croom Station Road

Upper Marlboro, MD

20772

Merit Systems Protection Board

Respondent

Rebecca Liane Taibleson

Appointed Amicus Curiae

for Petitioner

Stephen William Fung

Direct: 202-254-4483

Email:

stephen.fung@mspb.gov

[COR NTC Gvt US

Agency]

Merits Systems

Protection Board

Firm: 202-653-6772

1615 M Street, NW

Washington, DC 20419-

0002

Devin Scott Anderson

Direct: 202-879-5198

Email:

devin.anderson@kirkland.com

[NTC Appointed Amicus]

Kirkland & Ellis LLP

Firm: 202-879-5000

655 15th Street, NW

Suite 1200

Washington, DC 20005

Christopher Landau

Direct: 202-879-5087

Email:

clandau@kirkland.com

[COR NTC Appointed

Amicus]

Kirkland & Ellis LLP

Firm: 202-879-5000

655 15th Street, NW

Suite 1200

Washington, DC 20005

| Anthony W. Perry,

Petitioner

Merit Systems Protection Board,

Respondent

Rebecca Liane Taibleson,

Appointed Amicus Curiae for

Petitioner

08/20/2014 |x PETITION FOR REVIEW

CASE docketed. [14-1155]

08/21/2014 |x| » PETITION FOR REVIEW

87 pg, 5.44 MB filed [1508610] by

Anthony W. Perry of a

decision by federal agency

[Service Date: 08/21/2014]

Disclosure Statement: Not

Applicable to this Party;

Certificate of Parties: Not

Applicable to this Filing.

[14-1155]

08/21/2014 |X|» CERTIFIED COPY

tpg.a9.13KR [1508679] of Petition for

Review sent to respondent

[1508610-2] [14-1155]

08/21/2014 |x| CLERK’S ORDER filed

8 pg, 62603KR [1508682] directing party

08/21/2014

to file payment of

docketing fee

PETITIONER payment of

docketing fee due

09/22/2014; directing

party to file motiou to

proceed on appeal in

forma pauperis.

PETITIONER motion to

proceed [FP in this court

due 09/22/2014; to show

cause regarding petition

for review [1508610-2].

Response to Order due

09/22/2014. Response may

not exceed 20 pages,

Failure to respond shall

result in dismissal of the

case for lack of

prosecution; The Clerk is

directed to mail this order

to petitioner by certified

mail, return receipt

requested and by Ist class

mail. [14-1155]

FIRST CLASS MAIL

SENT [1508686] of order

[1508682-2] to petitioner

[14-1155]

CERTIFIED MAIL SENT

[1508688] with return

receipt requested [Receipt

No.700707 1000047191853

0] of order [1508682-2].

Certified Mail Receipt due

09/22/2014 from Anthony

W. Perry. [14-1155]

08/29/2014 |X)» CERTIFIED MAIL

ros. tscecxp RECEIPT [1510238]

RECEIVED from Anthony

Perry [signed for on

08/28/2014] for order,

[1508688-2] sent to

Petitioner Anthony W.

Perry [14-1155]

NOTICE FILED

[1513578] by Anthony W.

Perry for payment of

docketing fee. [Case

Number 14-1155: Fee

Paid] [Service Date:

09/18/2014] [14-1155]

09/18/2014 x

-—

09/18/2014 | XK! RESPONSE FILED

13 pg, 409.63 [1513632] by Anthony W.

KB Perry to order to show

cause [1508682-2]

combined with a MOTION

FILED by Anthony W.

Perry to vacate (Response

to Motion served by mail

due on 10/06/2014)

[Service Date: 09/23/2014

by Clerk] Pages: 11-15.

[14-1155]--[Edited

09/23/2014 by LMF]

10/02/2014

10/08/2014

>< |

1 pg, 390.59 KB

31 pg, 1.78 MB

53 pg, 7.86 MB

ENTRY OF

APPEARANCE filed

[1515059] by Jeffrey

Gauger and_ co-counsel

Stephen Fung’ Bryan

Polisuk on behalf of

Respondent MSPB. [14-

1155] (Gauger, Jeffrey)

REPLY FILED [1515146]

by MSPB to Response and

RESPONSE FILED to

Cross Motion [1513632-3]

(Reply to Response by

Mail to Cross Motion due

on 10/14/2014) [Service

Date: 10/02/2014 by US

Mail, CM/ECF NDA|

Pages: 1-10. [14-1155]

(Gauger, Jeffrey)

REPLY FILED [1516315]

by Anthony W. Perry to

response [1515146-2]

styled as “Reply to

Response to Petitioners

Response to Order to

Show Cause and Response

to Petitioners Motions to

Void Orders and

Judgments”. [Service

Date: 10/09/2014 by

CM/ECF NDA] Pages: 1-

10. [14-1155]

12/05/2014 |X! wy

43 pg, 2.05 MB

12/18/2014 |X) mx

2 pg, 43.4 KB

12/23/2014 X| m

3 pe, 87.17 KB

SUPPLEMENT [1526466]

to response [1513632-2]

filed by Anthony W. Perry

[Service Date: 12/05/2014 }

[14-1155]

PER CURIAM ORDER

filed [1528135]

discharging Clerk order of

docketing fee payment

[1508682-2], directing the

parties, while not

otherwise limited, address

in their briefs (1) whether

this court has jurisdiction

to hear this case under 5

U.S.C. 7703(b)(1)(B); and

(2) if not, whether this

case should be transferred

to the Federal Circuit or a

district court pursuant to

5 U.S.C. § 7703(b)(1)(A) or

(2); appointing amicus

curiae Rebecca Liane

Taibleson; referring

motion to vacate

[1513632-3] to the merits’

panel to which this case is

assigned. Before Judges:

Henderson, Srinivasan

and Millett. [14-1155]

CLERK’S ORDER filed

[1528905] setting briefing

schedule: PETITIONER

12/23/2014 Eq

12/30/2014

—

xX #

1 pg, 95.68 KB

Brief due 02/13/2015.

APPENDIX due

02/13/2015. AMICUS FOR

PETITIONER Brief due

02/13/2015.

RESPONDENT Brief due

on 03/16/2015.

PETITIONER Reply Brief

due 03/30/2015. AMICUS

FOR PETITIONER Reply

Brief due 03/30/2015 [14-

1155]

CERTIFIED MAIL SENT

{1528914] with return

receipt requested [Receipt

No.7007 0710 0004 7195

9991] of briefing order

{1528905-3]. Certified

Mail Receipt due

01/22/2015 from Anthony

W. Perry. [14-1155]

FIRST CLASS MAIL

SENT ~~ [1528915] of

briefing order [1528905-3]

to petitioner [14-1155]

CERTIFIED MAIL

RECEIPT [1531396]

RECEIVED from Anthony

Perry [signed for on

12/29/2014] for order

{1528914-2] sent to

Petitioner Anthony W.

Perry [14-1155]

01/05/2015

02/13/2015

02/19/2015

03/16/2015

1 pg. 36.43 KB

61 pg, 317.06

rar}

596 pg, 33.6 MB

x =

12 pg, 414.65

NOTICE FILED

[1531387] by Anthony W.

Perry to join in brief of

amicus curiae [Service

Date: 01/02/2015 ] [14-

1155}

AMICUS FOR

PETITIONER BRIEF

[1537552] filed by Ms.

Rebecca Liane Taibleson

[Service Date: 02/13/2015]

Length of Brief: 9,998

words. [14-1155]

(Taibleson, Rebecca)

JOINT APPENDIX

[1537564] filed by Ms.

Rebecca Liane Taibleson

and Anthony W. Perry.

[Volumes: 1] [Service

Date: 02/13/2015] [14-

1155] (Taibleson, Rebecca)

CERTIFIED INDEX TO

RECORD [1538388] filed

by MSPB [Service Date:

02/19/2015] [14-1155]

(Fung, Stephen)

UNOPPOSED MOTION

filed [1542463] by MSPB

for leave to file appendix

[Service Date: 03/16/2015]

Pages: 1-10. [14-1155]

(Fung, Stephen)

03/16/2015

03/19/2015

03/30/2015

x | #

71 pg, 1.49 MB

LX<|

58 pg, 669.96

|X|

1 pg, 38. 15 KB

—

‘x|

|X|

37 pg, 217.08

MODIFIED EVENT

FROM FILED TO

LODGED--

SUPPLEMENTAL

APPENDIX [1542466]

filed by MSPB. [Volumes:

1] [Service Date:

03/16/2015] [14-1155]--

[Edited 03/18/2015 by

LMF] (Fung, Stephen)

RESPONDENT BRIEF

[1542614] filed by MSPB

[Service Date: 03/16/2015]

Length of Brief: 8700

words. [14-1155] (Fung,

Stephen)

CLERKS ORDER filed

[1543230] granting motion

for leave to file [1542463-

2]; the Clerk is directed to

file supplemental

appendix [1542466-2] [14-

1155}

PER ABOVE ORDER

lodged appendix [1542466-

2] is filed [14-1155]

AMICUS FOR

PETITIONER REPLY

BRIEF [1544921] filed by

Ms. Rebecca Liane

Taibleson [Service Date:

03/30/2015] Length of

09/04/2015

10/08/2015

10/26/2015

10/27/2015

11/04/2015

LX)

1 pg. 41.17 KB

xX!

27 pg, 1.27 MB

LX)

1 pg, 41.79 KB

Brief: 5,852 words. [14-

1155] (Taibleson, Rebecca)

CLERK’S ORDER

[1571543] filed scheduling

oral argument on

Wednesday, 11/18/2015.

[14-1155]

PETITIONER BRIEF

[1578991] filed by

Anthony W. Perry [Service

Date: 10/07/2015 ] [14-

1155]

FORM 72 ~~ [1579934]

submitted by amicus for

appellant [Service Date:

10/26/2015] [14-1155}--

[Edited 10/26/2015 by

LMF] (Taibleson, Rebecca)

FORM 72 submitted by

arguing attorney, Stephen

W. Fung, on behalf of

Respondent MSPB (For

Internal Use Only: Form is

restricted to _ protect

counsel’s personal contact

information). [14-1155]

(Fung, Stephen)

PER CURIAM ORDER

[1581893] filed allocating

oral argument time as

follows: Appointed Amicus

Curiae Petitioner - 10 |

11/05/2015 |x.

}

11/05/2015 |x

11/18/2015 |X|

1 pg, 39.78 KB

12/11/2015 |x|

Minutes, Respondent - 10

Minutes. One counsel per

side to argue; directing

party to file Form 72

notice of arguing attorney

by 11/12/2015 [14-1155]

FORM 72 submitted by

arguing attorney, Stephen

Fung, on behalf of

Respondent MSPB (For

Internal Use Only: Form is

restricted to _ protect

counsel’s personal contact

information). [14-1155]

(Fung, Stephen)

FORM 72 submitted by

arguing attorney, Rebecca

Tiableson, on behalf of

Appointed Amicus Curiae

for Petitioner Ms. Rebecca

Liane Taibleson (For

Internal Use Only: Form is

restricted to protect

counsel’s personal contact

information). [14-1155]

(Taibleson, Rebecca)

ORAL ARGUMENT

HELD before Judges

Griffith, Srinivasan and

Millett. [14-1155]

TRANSCRIPT [1588205]

of oral argument [14-1155]

03/30/2016 Rar

2 pe, 79.19 KB

07/22/2016 |x|»

1 pg, 53.65 KB

NOTICE [1606371] filed

by Ms. Rebecca Liane

Taibleson to withdraw

attorney Rebecca Liane

Taibleson who represented

Rebecca Liane Taibleson

in 14-1155 [Service Date:

03/30/2016] [14-1155]

(Taibleson, Rebecca)

PER CURIAM

JUDGMENT [1626350]

filed that the petition for

review be transferred to

the Federal Circuit, for

the reasons in the

accompanying opinion.

The Clerk is directed to

electronically transmit the

_ original file and a certified

07/22/2016 |X|

14 pg, 64.67 KB

07/22/2016 |x|»

1140 pg, 67.57

copy of this judgment to

the U.S. Court of Appeals

for the Federal Circuit.

Before Judges: Griffith,

Srinivasan and Millett.

[14-1155]

OPINION [1626356] filed

(Pages: 14) for the Court

by Judge Srinivasan. [14-

1155}

LETTER [1626364] sent to

transfer case to the USCA

Federal Circuit.

Documents Sent: Clerk’s

07/25/2016 x'|

09/27/2016 |X|»

1 pg, 53.33 KR

01/13/2017 |x|

1 pg, 62.8 KB

File and copy of judgment

transferring case. [14-

1155}

NOTICE [1627505] filed

by case received and given

CAFC case No. 16-2377.

[Service Date: 07/22/2016]

{14-1155}

LETTER [1638483]

received from the Clerk of

the Supreme Court of the

United States notifying

this court of the following

activity in the case before

it: A petition for writ of

certiorari was filed and

placed on the docket on

09/27/2016 as No. 1 °-399.

[14-1155]

LETTER [1656225]

received from the Clerk of

the Supreme Court of the

United States notifying

this court of the following

activity in case No. 16-

399: The petition for writ

of certiorari was granted

on 01/13/2017. [14-1155]

Tab

~ oO

MSPB Dockets

ANTHONY W. PERRY v. DEPARTMENT OF

COMMERCE

DC-0752-12-0487-B-1

Doc Info. Submitted Date Issued/

by Received

Petition for Review

Final Order MSPB 8/6/2014

Certificate of Service MSPB 8/6/2015

Letter Acknowledging MSPB 7/23/2014

Motion

Motion For Leave To File Appellant 7/23/2014

New Material and

Relevant

Agency Representative Agency 5/9/2014

Addition

Response to Agency Agency 3/1/2014

Opposition to PFR

Opposition to Appellant's Agency 2/21/2014

Petition for Review

Petition For Review MSPB 1/28/2014

Acknowledgment Letter

Petition For Review With Appellant 1/27/2014

Redactions

Request Leave to Exceed Appellant 1/23/2014

Page Limit

Order Denying Request to MSPB 1/23/2014

Exceed PFR Page Limit

Response to Appellant’s Agency 1/22/2014

Request to Supplement

the Record

Request to Supplement Appellant 1/16/2014

the Record

Letter Rescinding MSPB 1/8/2014

Petition for Review

Intent Letter Appellant 1/8/2014

Continuation of Response Appellant 1/8/2014

to PFR

Response to Petition for Appellant

Review Dated December

26, 2013 dated 1/2/2014

Petition For Review MSPB

Acknowledgment Letter

Petition for Review Appellant

Initial Appeal

Order and Summary of MSPB

Prehearing Conference

Hearing Order MSPB

Board Ordered Remand MSPB

Acknowledgment Order MSPB

1/8/2014

1/7/2014

1/2/2014

8/6/2013

6/19/2013

6/12/2013

6/19/2013

Date Issued/

Received

6/12/2013

3/5/2013

10/15/2012

10/10/2012

9/26/2012

9/20/2012

9/10/2012

9/6/2012

7/30/2012

7/3/2012

6/26/2012

6/19/2012

6/15/2012

MSPB Dockets

ANTHONY W. PERRY v. DEPARTMENT OF

COMMERCE

DC-0752-12-0487-I-1

Tab Doc Info. Submitted

Petition for Review

8 Remand Order MSPB

7 Letter Rejecting Pleading MSPB

6 Ojection To Agency Appellant

Motion To Strike

Response

5 Motion to Strike Agency

Appellant’s Reply to

Agency’s Response to

Petition for Review

4 Response to Agency Appellant

Response to Petition for

Review

% Response to Petition for Agency

Review

2 Petition For Review MSPB

Acknowledgment Letter

1 Petition For Review Appellant

Initial Appeal

28 = Initial Decision MSPB

27 Motionto Supplement the Appellant

Close of Record

Conference Summary

26 Summary of Status/Close MSPB

of Record Conference

25 Response to Agency's 6/15 Appellant

Opposition to Motions

24 Response to Motion Agency

23 Second Response to Appellant

Agency Response File

6/7/2012

mm BO CO

Request to Compel May

Discovery Request

Opposition to Removing

Documents from File

Response to Hearing

Clarification

Agency’s Witness List

Response to Agency File

Response to Close of

Record Conference

Agency Response to

Jurisdictiona) Order

Agency Respnose File

Response to Order on

Jurisdication

Motion to Stay Filing of

Agency Response and

Discovery

Removal Decision

Letter of Proposed

Removal

Agency Representative

Addition

Correspondence RE:

EEOC

Response to

Specifications

Jurisdiction Order

Close of Record

Conference

EEOC Document Re:

Settlement Discussion

Waiver Rights to a

Hearing

Acknowledgment Order

Supporting Documents

initial Appeal

Appellant

Agency

Appellant

Agency

Appellant

Agency

Appellant

MSPB

Appellant

MSPB

Appellant

6/5/2012

6/4/2012

6/1/2012

5/29/2012

5/21/2012

5/17/2012

5/11/2012

5/10/20 12

5/9/2012

5/7/2012

5/3/2012

4/30/2012

4/27/2012

4/25/2012

MSPB Dockets

ANTHONY W. PERRY v. DEPARTMENT OF

COMMERCE

DC-0752- 12-0486-B-1

Tab Doc Info. Submitted Date Issued/

. by Received

Petition for Review

20 Certificate of Service MSPB 8/6/2014

19 Final Order MSPB 8/6/2014

18 Letter Acknowledging MSPB 7/23/2014

Motion

17 Motion For Leave To File Appellant 7/23/2014

New Material and

Relevant

16 Agency Representative Agency 5/9/2014

Addition

15 Response to Agency Appellant 3/1/2014

Opposition to PFR

14 Opposition to Appellant's Agency 2/21/2014

Petition for Review

13 Petition For Review MSPB 1/28/2014

Acknowledgment Letter

12 Petition For Review With Appellant 1/27/2014

Redactions

11 Agency Representative Agency 1/27/2014

Addition

10 Order Denying Request to MSPB 1/23/2014

Exceed PFR Page Limit

9 Request Leave to Exceed Appellant 1/23/2014

Page Limit

8 Response to Appellant’s Agency 1/22/2014

Request to Supplement

the Record

7 Request to Supplement Appellant 1/16/2014

the Record

6 Letter Rescinding MSPB 1/8/2014

Petition for Review

5 Intent Letter Appellant 1/8/2014

Continuation of Response Appellant

to PFR

Response to Petition for Appellant

Review Dated December

26, 2013 dated 1/2/2014

Petition For Review MSPB

Acknowledgment Letter

Petition For Review Appellant

Initial Appeal

Petition for Review (Pacer Petitioner

Copy) filed on 8/20/2014

Request Appellant

Certificate of Service MSPB

Initial Decision MSPB

Request For An Appellant

Immediate Decision on

the Merits

Hearing CD 8/07/13 Other

Order and Summary of MSPB

Prehearing Conference

Untimely Objection to Appellant

Appellant Exhibits

Agency’s Objections to Agency

Appellant's Proposed

Exhibits

Witness List Attachment Appellant

Resubmission Due To

Failure to Attach

Agency’s Prehearing Agency

Submission

List of Facts and Issues Appellant

Appellant Witness List Appellant

Response to Agency Appellant

Opposition to Motion For

SF-50 and SF-52

Opposition to Motion for Agency

Discovery of SF-50 and

SF-52

1/8/2014

1/7/2016

1/2/2014

9/2/2014

12/30/2013

12/23/2013

11/26/2013

8/23/2013

8/6/2013

8/5/2013

8/3/2013

8/1/2013

7/29/2013

7/23/2013

7/22/2013

Motion To Compel the

Agency to Respond To

Pending Motions for

Discovery

Motion To AJ For

Document Titles and

Reason Returned

Motion For Discovery of

SF-50 and SF-52

Exhibits E and F

Objection To Agency

Motion To Strike

Motion to Strike

Clarification of Agency’s

Request

Supervisor Code, Work

Performance and

Responsibilities

Discovery of Deciding

Official’s Notes,

Communications,

Correspondence and

Objection To Agency’s

Motion to Conduct

Discovery and to Extend

Hearing Date

Motion to Conduct

Discovery and Extend

Hearing Date

Motion to Conduct

Discovery and to Extend

Hearing Date by 7 Days

John Does v. Dept. of

Commerce/EEOC

Guidance and Relevant

Docs

Hearing Order

Acknowledgment Order

Appellant

Agency

Appellant

Agency

Appellant

MSPB

7/15/2013

7/11/2013

7/8/2013

7/5/2013

7/3/2013

7/1/2013

6/27/2013

6/28/2013

6/19/2013

1 Board Ordered Remand MSPB 6/12/2013

Tab

MSPB Dockets

ANTHONY W. PERRY v. DEPARTMENT OF

COMMERCE

DC-0752-12-0486-I-1

Doc Info. Submitted

Petition for Review

Remand Order MSPB

Certificate of Service MSPB

Letter Rejecting Pleading MSPB

Objection To Agency Appellant

Motion To Strike

Response

Motion to Strike Agency

Appellant's Reply to

Agency's Response to

Petition for Review

Response To Agency Appellant

Response to Petition

For Review

Response to Petition for Agency

Review

Response to Petition for Appellant

Review

Acknowledgment Order

dated 9/7/2012

Petition For Review MSPB

Acknowledgment

Letter

Petition for Review Appellant

Initial Appeal

Motion to Stay Filing of Appellant

Agency Response and

Discovery

Date I[ssued/

Received

6/12/2013

3/5/2013

10/15/2012

10/10/2012

9/26/2012

9/20/2012

9/9/2012

9/7/2012

9/6/2012

5/11/2012

28 Initial Decision MSPB 7/30/2012

Certificate of Service MSPB 7/30/2012

27 Motion toSupplement Appellant 7/3/2012

the close of Record

Conference Summary

26 Summary of Status MSPB 6/26/2012

Conference

25 Response to Agency's Appellant 6/19/2012

6/15 Opposition to

Motions

24 Response to Motions Agency 6/15/2012

23 Second Response to Appellant 6/7/2012

Agency Response File

22 Request to Compe! May Appellant 6/5/2012

Discovery Request

21 Opposition to the Appellant 6/5/2012

Removal of Documents

from File

20 Response to Hearing Appellant 6/4/2012

Clarification

19 Agency’s Witness List Agency 6/4/2012

18 Response to Agency’s Appellant 6/1/2012

File

17 Response to Close of Appellant 6/1/2012

Record Conference

16 Agency Response to Agency 5/29/2012

Jurisdictional Order

15 Agency Response File Agency 5/21/2012

14 Response to Order on Appellant 5/17/2012

Jurisdiction

13 Motion to Stay Filing of Agency 5/11/2012

Agency Response and

Discovery

12. Removal Decision Agency 5/10/2012

Letter of Proposed

Removal

Agency Representative

Addition

Correspondence RE:

EEOC

Response to

Specifications

Jurisdiction Order

Close of Record

Conference

EEOC Document Re:

Settlement Discussion

Waiver Rights to a

Hearing

Acknowledgment Order

Supporting Documents

Initial Appeal

Agency

Appellant

MSPB

Appellant

MSPB

Appellant

5/9/2012

5/7/2012

5/3/2012

4/30/2012

4/27/2012

4/25/2012

UNITED STATES OF AMERICA

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Anthony W. Perry,

Complainant,

Vv.

Gary Locke, Secretary,

U.S. Department of Commerce

Agency.

EEOC Case No. 531-2010-00351X

Agency Complaint Nos. 09-63-01027, 10-63-00197

& 11-63-00080

EEOC Docket No. 0120111784

Agency Complaint Nos. 07-63-00080 &

07-63-00145

EEOC Docket No. 0120111034

Agency Complaint No. 10-63-02671

SETTLEMENT AGREEMENT

1. PARTIES. The parties, Anthony W. Perry

(Complainant) and the U.S. Department of Commerce

(Agency), through the undersigned, voluntarily enter

into this Settlement Agreement (Agreement), to resolve

all existing matters concerning Complainant’s

employment with the Agency, including the issues

raised in EEOC Case No. 531-2010-0035I1X / Agency

Complaint Nos. 09-63-01027, 10-63-00197 & 11-63-

00080 and any outstanding appeal rights stemming

from EEOC Docket No. 0120111784 / Agency

Complaint Nos. 07-63-00080 & 07-63-00145 and EEOC

Docket No. 0120111034 / Agency Complaint No. 10-63-

02671. By this Agreement, the parties resolve all

disputes between them concerning Complainant’s

employment with the Agency, regardless of the forum,

in existence on the effective date of this Agreement.

2. COMPLAINANT. In consideration of the

Agency taking the actions described in Paragraph 3

below, Complainant agrees to:

a. Retire voluntarily effective no later than

September 4, 2012. Complainant acknowledges

that by entering into this Agreement his

decision to retire is both voluntary and

irrevocable.

b. Voluntarily resign from his employment with

the Agency, effective September 4, 2012, in the

event Complainant has not retired by the close

of business, September 4, 2012. Complainant

will do this by completing Part E of the

Standard Form 52 attached to this Agreement

and submitting this completed form to the

Agency at the same time that he submits this

Agreement with his signature. Complainant

agrees that the reason given for his resignation

will not be adverse or hostile to the Agency.

c. Except as set forth in this Agreement, not apply

for or accept any positions with the Agency at

any time in the future from the effective date of

this Agreement. If Complainant applies for

employment in violation of the Agreement and

the Agency hires him, the Agency, at its

discretion, may remove him immediately.

Complainant further agrees to voluntarily waive

all appeal rights he has and not to litigate in

any forum, judicial or administrative, any

claims arising from a removal pursuant to this

paragraph.

d. Refrain from engaging in any acts of misconduct

from the effective date of this Agreement until

his retirement or resignation, which will be no

later than September 4, 2012. If the Agency

determines in its sole discretion that

Complainant has engaged in any acts of

misconduct during the time period established

in this paragraph, Complainant will be subject

to immediate removal without any right to

reply. The waiver of rights contained in

Paragraph 2.h. below applies to any removal

implemented pursuant to this paragraph.

e. Serve a suspension for thirty (30) calendar days

in lieu of the removal proposed on June 7, 2011,

for receipt of pay for time not worked and failure

to follow supervisory directive. The suspension

will be served nine (9) consecutive calendar days

per pay period between Saturday of the

preceding week and Sunday of the following

week, beginning Saturday, August 27, 2011.

f. Accept, at the Agency’s sole discretion, a

reassignment from the effective date of this

Agreement until his retirement or resignation,

which will be no later than September 4, 2012.

Complainant agrees and understands that he

will be reassigned to the position of Information

Technology Specialist, GS-14, with no

supervisory title, status or duties. There will be

no change to Complainant's salary and/or

benefits as a result of this reassignment. The

Agency retains the right to change

Complainant's supervisor or work unit at its

sole discretion.

g. WITHDRAWAL. Withdraw EEOC Case No.

531-2010-00351X / Agency Complaint Nos. 09-

63-01027, 10-63-00197 & 11-63-00080, EEOC

Docket No. 0120111784 / Agency Complaint

Nos. 07-63-00080 & 07-63-00145, and EEOC.

Docket No. 0120111034 / Agency Case No. 10-

63-02671 with no right to raise these issues

again, except as provided in Paragraph 7, below.

These withdrawals will take effect on the

effective date of this Agreement.

h. WAIVER. Waive, release, and forever discharge

the Agency, its officers, agents, employees, and

representatives (in their official and/or personal

capacities) from any claims, demands, or causes

of action, which Complainant has or may have,

arising from his employment, including issues

raised in EEOC Case No. 531-2010-00351X /

Agency Complaint Nos. 09-63-01027, 10-63-

00197 & 11-63-00080, EEOC Docket No.

0120111784/ Agency Nos. 07-63-00080 & 07-63-

00145, and EEOC Docket No. 0120111034 /

Agency Case No. 10-63-02671. Complainant

specifically waives any and all rights and claims

arising out of the issues raised in the above-

cited formal complaints of discriminstion and/or

related to any action taken pursuant to any

provision of Paragraph 2, above, and Paragraph

3, below. Complainant waives any and all

rights and claims arising from Complainant’s

employment under the Age Discrimination in

Employment Act, 29 U.S.C. § 633a et seg., as

amended by the Older Workers’ Benefit

Protection Act, the Rehabilitation Act, 29 U.S.C.

§ 791 et seg., as amended, and/or Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e et seq., as

amended, as applicable. This release includes

but is not Limited to a release of any right to

administrative, judicial, or congressional relief,

or any other type of relief, or of any claim to

back pay, attorneys’ fees and costs, or other type

of compensation, except what is specifically set

forth in paragraph 3, below. However, by

entering into this Agreement, Complainant does

not waive rights or claims that may arise after

the effective date of the Agreement.

AGENCY. In consideration of Complainant

taking the actions described in Paragraph 2, above, the

Agency agrees to:

Not remove Complainant from his position or

from the Federal service based upon the charges

outlined in the June 7, 2011, proposal to remove

letter.

Issue a decision on the proposal to remove letter

issued on June ~7,2011, suspending

Complainant for thirty (30) days. The

suspension will be served nine (9) consecutive

calendar days per pay period between Saturday

of the preceding week and Sunday of the

following week, beginning Saturday, August 27,

2011. Complainant understands that the

wording of the letter suspending him is within

the sole and exclusive discretion of the Agency.

At the Agency's sole discretion, reassign

Complainant from the effective date of this

Agreement until his retirement or resignation,

which will be no later than September 4, 2012.

Complainani agrees and understands that he

will be reassigned to the position of Information

Technology Specialist, GS-14, with no

supervisory title, status or duties. There will be

no change to Complainant’s salary and/or

benefits as a result of this reassignment. The

Agency retains the right to change

Complainant's supervisor or work unit at its

sole discretion.

d. Process Complainant’s voluntary resignation

effective September 4, 2012, in the event

Complainant has not retired by the close of

business, September 4, 2012.

e. Expunge Complainant’s Official Personnel

Folder of all records of disciplinary action taken

pursuant to Paragraph 3.b. above if as of the

date of his retirement or resignation, which will

be no later than September 4, 2012,

Complainant has not engaged in any further

acts of misconduct, in accordance with

Paragraph 2.d. above. Pursuant to this

subparagraph, the Agency agrees to provide any

prospective employer with a reference consisting

of the dates of Complainant’s employment with

the Agency; the title, grade, series, and salary of

the position held by Complainant at the time of

his retirement or resignation; and _ that

Complainant retired or resigned voluntarily

from his position with the Agency. However,

failure to comply with this subparagraph due to

ignorance of the Agreement and its terms by

any Agency employee does not give rise to a

claim of breach of contract by Complainant.

4. NON-ADMISSION. This Agreement does not

constitute an admission by the Agency of any

wrongdoing on its part, and the Agency expressly

denies that it, its officers, agents, employees, or

representatives, violated any law, regulation, contract,

or employment practice with regard to the treatment of

Complainant, or that it discriminated, harassed and/or

retaliated against Complainant in any way. Similarly,

this Agreement does not mean that Complainant's

allegations are without merit. Rather, the Agreement

reflects the parties’ interest in reaching an agreement

to the satisfaction of both pa: Lies.

5. NOT PRECEDENTIAL. The parties agree that

this Agreement has no precedential effect. Neither the

Agreement, nor any term(s) herein may be used as a

basis, by any person(s), to justify similar terms in any

subsequent matter. This Agreement shall not be used,

cited, or relied upon by any party in connection with

any other judicial or administrative procedure.

6. NU N-DISCLOSURE. The parties agree to keep

the nature and terms of this Agreement confidential.

The terms of the Agreement may not be disclosed to

any person or entity beyond the persons signing below,

except to Complainant's spouse as applicable, as

required by law, as necessary to implement the terms

of the Agreement, or as ordered by a court or

administrative body of competent jurisdiction.

7. BREACH OF AGREEMENT. If either party

believes that the other party has failed to comply with

the terms of the Agreement, the party shall notify Roy

Castro, EEO Officer, U.S. Department of Commerce, or

Suzan J. Aramaki, Director, Office of Civil Rights, U.S.

Department of Commerce, in writing, of the alleged

noncompliance within thirty (30) days of when the

party knew or should have known of the alleged

noncompliance. Pursuant to 29 C.F.R. § 1614.504(c),

allegations that subsequent acts of harassment,

discrimination and/or retaliation violate’ this

Agreement shall be processed as separate complaints.

In accordance with 29 C.F.R. § 1614.504(a), in the

event of failure by the Agency to carry out the terms of

this Agreement for any reason other than for

noncompliance or waiver of this Agreement by

Complainant, Complainant may request:

a. Implementation of the terms of the Agreement;

b. Reinstatement of the formal complaint(s) for

further processing.

8. EFFECT OF SIGNATURE. By signing this

Agreement, Complainant agrees that Complainant has

read and understands the entire Agreement, the

effect(s) of each provision, especially the provisions

relating to the withdrawal of the formal complaint(s),

thereby foreclosing further litigation on the matters

raised in the formal complaint(s), and the waiver set

forth in Paragraph 2, above, and that Complainant has

signed this Agreement voluntarily and was in no way

coerced. Complainant shall have twenty-one (21) days

from the date of receipt of this Agreement to consider

its terms. Should Complainant sign this Agreement

before the twenty-one (21) day time period has expired,

Complainant attests that Complainant's decision to

accept such a shortening of this period is knowing and

voluntary, and was not induced by the Agency through

fraud, misrepresentation, and/or threat to withdraw or

alter the terms of the Agreement.

9. TOTALITY OF AGREEMENT. This

Agreement constitutes a fair, full, and final resolution

of all aspects of Complainant’s allegations, and

contains all terms and conditions of the Agreement

between the parties. No other conditions or

assurances, expressed or implied, are included.

10. JOINT PRODUCT. This Agreement is a joint

product and will not be construed against any party on

the grounds of sole authorship.

11. EFFECTIVE DATE. This Agreement becomes

effective when fully executed by the signatories

designated below to include all concurrences.

/s/ Anthony W. Perry 08/16/2011

ANTHONY W. PERRY Date

Complainant

/s/ Brian E. McGrath 08/16/201!?

BRLAN E. MCGRATH Date

Management Official

/s/ Johnny T. Zuagar 08/16/2011

JOHNNY T. ZUAGAR Date

Complainant’s Representative

/ J. Brown 08/22/2011

RONDA J. BROWN Date

Management's Representative

CONCURRENCES:

/s/ Roy Castro 08/22/2011

ROY CASTRO Date

Equal Employment Opportunity Officer

/s/ Ted A, Johnson _O8/ 11/2011

TED A. JOHNSON Date

Acting Chief, Human Resources Division

/s/ Brian D. DiGiacomo 08/22/2011

BRIAN D. DiGIACOMO Date

Chief, Employment and Labor Law Division

Mod MEN OTL OES |

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August 26, 2313

MEMORANDUM FOR Anthony W. Perry

Information Technology Specialist

Business Planning Staff

Lan Technology Support Office “)

From: Terryne F.

Chief, Information Systems $ ottigg

Subject: Proposed Removal] Decision

By letter dated June 7, 2011, Daren J. Gutschow, Assistant Division Chief,

Telecommunications Office, U.S. Census Bureau, informed you that he proposed to

remove you from your position as an Information Technology (IT) Specialist, GS-2210-

14/08, with the Business Planning Staff, Lan lechnology Support Office, and frum the

Federal service, no carlier than 30 calendar days after your receipt of the proposal notice,

for inappropriate conduct.

In the proposal notice dated June 7, 2011, you were informed of your right to reply to the

proposal! notice orally, in writing, or both. You requested an extension to the reply period,

which was granted unti! close of business July 1, 2011. On June 15, 2011, you stopped by

my Office for an impromptu meeting. On June 16, 2011, a formal meeting was held with

you and your former designated representative, Franklin D. Silberstein, during which you

provided an oral response. On June 30, 2011, I received a written reply from you and your

newly designated representative, Johnny T. Zuagar.

After full consideration of the information available to me, including your ora! and

wnitten responses, | find that the reason for the proposed removal is fully supported by

the evidence. However, I have determined that a lesser penalty will deter such

misconduct in the future and should be imposed. Accordingly, T have decided to suspend

you for a period of thirty (30) calendar days from your position and the Federal service.

Specifically, you will serve your suspension intermittently to lessen the burden that

this suspension would have on you financially. Your suspension will be served.

e effective Saturday, August 27, 2011, not to exceed Sunday, September 4,

2011, and you will return to you regular duty status on Monday, September

5, 2011.

* effective Saturday, September 10, 2011, not to exceed Sunday, September

18, 2011, and you will return to you regular duty status on Monday,

September 19, 2011.

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e effective Saturday, Scptember 24, 2011, not to exceed Wednesday, October

5, 2011, and you will return to you regular duty siatus on Thursday,

October 6, 2011.

This action is being taken pursuant to Title 5, Code of Federal Regulations, Part 752, to

promote the efficiency of the service.

If you have any questions about the contents of this decision notice, or your rights in

connection with it, you may contact S_ ~y J. Chalmers, Chief, Employee Relations Branch

on (301) 763-1463.

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USCA Case #14-1155 Document #1542466 Filed: 03/16/2015 Page 3 of 71

APPLICATION FOR VOLUNTARY EARLY RETIREMENT AND/OR VOLUNTARY SEPARATION INCENTIVE PF UGRAM

PRINCIPAL PURPOSE: This form serves as a Census Bureau employee application for Voluntary Early Retirement Authority (VERA) and

Voluntary Separation incentive Pay (VSIP). This application specifies how the employees would separate and expiains the procedures

for approving VERA and VSIP.

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3. ORGANIZATION

4. OFFICE TELEPHONE NUMBER

Ta forwction System Sefnort ancl Review ie ‘|Be4) h3-S05¢

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8. As part of the Census Bureau Voluntary Early Retirement Authority (VERA) and/or Voluntary Separation incentive Payment (VSIP)

he programs, | am applying for separation under the following condition(s) (mark applicable conditions):

VOLUNTARY EARLY RETIREMENT OR [__] orroma: nerinemenr AND X) vse

9. When/if ry VSIP application is approved, | shall be committed to a voluntary earty or options! retirement and shal! be entitied to

receive a cash incentive equal to the lesser of (1)$25,000, or (2} the amount that | would receive under the formute for

computing severance pay. | understand that once approved, | may not withdraw my application on or after the effective date of

my retirement.

) understand that by accepting the VSIP, | may not be reempioyed anywhere within the Federa! Government, including

employment in non-appropriated fund instrumentalities or with an agency of the United States through a personal services

contract or other direct contract for S years after my separation uness | repay the full amount of my separation incentive pay

(before taxes and deductions).

| understand that by accepting early or optional retirement | arr not subject to any restrictions regarding my annuity and i can

accept nonfederal employment; except If ['m an employee covered uawer FERS that qualifies for the annuity suppement, | could

have the supplement reduced or discontinued due to an earnings timitation. If an annuitant (le. a retired Federal emoloyee} Is

hired under a Federal appointment, the annulty will continue and the new Federal salary will be offset by the annulty amount,

unless the employing agency seeks and Is granted 3 waiver of the salary offset by the U.S. Office of Personne! Management.

Statement of Understanding

By signing this cocument you are acknowledging you have read and understand the terms and conditions of this application.

a. EMPLOYEE SIGNATURE | & DATE

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e-Appeal Attachment Transmittal

Appeai Number: 201201588

Appeliant Name: Mr. Anthony W. Perry

Agency Name: Departrnent of Commerce

\Piease check the box for each document included with this transmittal!

ID \Name of Attachment Attachment Processing Status File Name/Delivery Method |

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( SF-50, Notification of Personne! Action Document not available or not applicable NWA

2 copies must be submitted of all documents submitted in hardcopy

Send documents to be submitted in paper form to.

Phone: (703) 756-6250

Fax: (703) 756-7112

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Appeai Number 201201588 Attachment Transmittal Sheet

Submission Date: 4/25/2012 2:53:16 PM Pp ,

Confirmation Number 34193 age

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.