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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0710%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 2017

## Text

ee us.
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
3)

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

2

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
v.
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

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

5

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

-—
EE

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

10/02/2014

10/08/2014

>< |
&

1 pg, 390.59 KB

x
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]

7

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

12/23/2014 Eq

12/30/2014

—
xX #
EE

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]

9

01/05/2015

02/13/2015

02/13/2015

02/19/2015

03/16/2015

1 pg. 36.43 KB

x)

61 pg, 317.06
KB

rar}

596 pg, 33.6 MB

|

x =

12 pg, 414.65
KB

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)

10

03/16/2015

03/16/2015

03/19/2015

03/19/2015

03/30/2015

x | #

71 pg, 1.49 MB

LX<|
58 pg, 669.96
KB

|X|

1 pg, 38. 15 KB

—
|

‘x|

|X|
37 pg, 217.08
KB

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

11

|

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

x

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 |

12

Ty

11/05/2015 |x.

}
sb

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]

13

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
MB

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

14

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

15

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

3

16

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

17

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
by
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

18

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
Appellant
Appellant
Agency

Appellant
Appellant
Agency

Agency
Appellant

Agency
Agency
Agency
Agency
Appellant
Appellant

MSPB
MSPB

Appellant
Appellant

MSPB
Appellant
Appellant

6/5/2012
6/5/2012
6/4/2012
6/4/2012
6/1/2012
6/1/2012
5/29/2012

5/21/2012
5/17/2012

5/11/2012

5/10/20 12

5/9/2012

5/9/2012

5/7/2012

5/7/2012

5/7/2012
5/7/2012

5/3/2012
5/3/2012
4/30/2012

4/27/2012
4/25/2012

19

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

22

21
20

19
18

17

20

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

1/8/2014

1/7/2016
1/2/2014
9/2/2014
12/30/2013
12/23/2013

12/23/2013
11/26/2013

8/23/2013
8/6/2013
8/5/2013

8/5/2013

8/3/2013

8/1/2013

7/29/2013

7/23/2013
7/23/2013

7/22/2013

16

15

5

hm

21

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

Appellant

Appellant

Appellant
Appellant

Agency
Appellant

Appellant

Appellant

Appellant

Agency

Agency

Appellant

MSPB
MSPB

7/15/2013

7/15/2013

7/11/2013

7/8/2013
7/8/2013

7/5/2013
7/3/2013
7/3/2013

7/3/2013

7/1/2013

6/27/2013

6/27/2013

6/28/2013

6/19/2013
6/19/2013

22

1 Board Ordered Remand MSPB 6/12/2013

Tab

29

23

MSPB Dockets

ANTHONY W. PERRY v. DEPARTMENT OF
COMMERCE
DC-0752-12-0486-I-1

Doc Info. Submitted
by

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
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

24

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

Ll

10

25

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
Agency
Appellant
Appellant

MSPB
MSPB

Appellant
Appellant
MSPB

Appellant
Appellant

5/9/2012

5/9/2012

5/7/2012

5/7/2012

5/7/2012
5/7/2012

5/3/2012
5/3/2012
4/30/2012

4/27/2012
4/25/2012

26

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

27

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.

28

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.

29

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

3.

30

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:

a.

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

31

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

32

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,

33

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;
or

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

34

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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URIS STAME Cee SrWiERTS OY COnifameci

7a i “a - ta 2 - the ae a Becaamics cad Mativdies Adiziciseretien
Jaets ica » er? U.3. Cerses Gurecu
Wast . DC 20222 900
‘é ington 1
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.

oi Pi

Se

i

Pippes” NYUwivey £67 fl."

Av bony . 2.0 “ey

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.

ax Mle-K Ole PR

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.

1, (Lost, First, Middle initio!)
eCrr) Athena. W.

3. ORGANIZATION

4. OFFICE TELEPHONE NUMBER

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

. Ly A motion "| @e hne hey Spel 22 I0 C5-/4/ :

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

' Ve Sond Gi den
avr

AUK (03/2012

date : 2012 Ped), 195438 Confirmation Number. 1121470628 page 12 of 13

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Please type or print legibly MB Ne 124-0

Name 3° =f mecdie
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Continuation Sheet

Continuation Sheet

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Continuation Sheet

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 |

[7 |Agency Decision Letter Upload with e-Appeal coercedsign0001 pat

OS

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

i

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

be $$ EO —————— ——

Appeai Number 201201588 Attachment Transmittal Sheet
Submission Date: 4/25/2012 2:53:16 PM Pp ,
Confirmation Number 34193 age

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0710%3A05. Public record. Not legal advice.