Filed: Sep. 22, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KELLY M. BATES, DOCKET NUMBER Appellant, DE-0752-13-0481-I-1 v. DEPARTMENT OF DEFENSE, DATE: September 22, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Kelly M. Bates, Littleton, Colorado, pro se. Dorothy Campbell, Fort Meade, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his furlough. Generall
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KELLY M. BATES, DOCKET NUMBER Appellant, DE-0752-13-0481-I-1 v. DEPARTMENT OF DEFENSE, DATE: September 22, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Kelly M. Bates, Littleton, Colorado, pro se. Dorothy Campbell, Fort Meade, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his furlough. Generally..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLY M. BATES, DOCKET NUMBER
Appellant, DE-0752-13-0481-I-1
v.
DEPARTMENT OF DEFENSE, DATE: September 22, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kelly M. Bates, Littleton, Colorado, pro se.
Dorothy Campbell, Fort Meade, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his furlough. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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, and based on the following points and authorities, 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 by this Final Order, infra ¶¶ 14-16, to address the
appellant’s argument regarding the alleged preferential treatment of similarly
situated employees, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is challenging his furlough for no more than 11 days between
July 8, and September 30, 2013. Initial Appeal File (IAF), Tab 1 at 19. At that
time, he was employed by the Department of Defense (DOD), Defense
Information Systems Agency (DISA), as a General Engineer, GS-0801-13, in
Denver, Colorado. Id. at 1, 84. After he withdrew his hearing request, IAF,
Tab 9 at 1, the administrative judge affirmed the furlough action based on the
written record, IAF, Tab 26, Initial Decision (ID). The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1.
ANALYSIS AND FINDINGS
The appellant’s arguments regarding the agency’s representation are not a basis
for disturbing the initial decision.
¶3 The appellant asserts that DISA “is not authorized to represent [DOD] in an
appeal case brought against [DOD]” and that he “most certainly never agreed to
allow a subordinate organization, without the authority to speak for [DOD] or its
decisions, to represent the Government’s interests.” Id. at 5. He argues that the
3
agency’s representative, who is a senior attorney advisor at DISA, IAF, Tab 8
at 4, 9, “does not have appropriate standing to represent the Government’s case,”
PFR File, Tab 1 at 5. He claims that the administrative judge failed to address
these arguments or the “deleterious effects” to his case “by not having required
the Government to defend itself as the case was initially brought.” Id.
¶4 The appellant’s clearest expression of these arguments is contained in his
close of the record submission below entitled “Final Arguments.” IAF, Tab 16
at 4-5. He emphasized that he was appealing the DOD decisions that essentially
“predetermined” his furlough as implemented by officials at DISA. Id. He
questioned whether DISA could respond adequately to his arguments, but he
concluded that DOD must nevertheless “accept the ramifications” of a decision in
this appeal based on what he considered to be an inadequate case made by the
DISA attorney. Id. at 5. Far from seeking to disqualify the agency’s designated
representative, he specifically stated, “I accept [DISA]’s full and unrestricted
representation of [DOD] in this appeal.” Id.
¶5 To the extent that the appellant is now challenging the agency’s designation
of its representative in this case, PFR File, Tab 1 at 5, his challenge is denied as
untimely and for failure to state a valid basis for disqualifying a representative
under the Board’s regulations, see 5 C.F.R. § 1201.31(b) (a party may challenge
the designation of a representative on the ground that it involves a conflict of
interest or a conflict of position, but he must file a motion to disqualify within
15 days after service of the notice of the designation or becoming aware of the
conflict). Further, the appellant has failed to show any prejudice to his
substantive rights based on the agency’s representation or the manner in which
the appeal was adjudicated. All of his evidence and arguments have been fully
considered, including those concerning “predetermination” and the decisions of
DOD officials outside of DISA.
4
The administrative judge applied the proper analytical framework in determining
whether the furlough promoted the efficiency of the service.
¶6 The appellant argues that the agency failed to prove that the furlough was
necessary or promoted the efficiency of the service. PFR File, Tab 1 at 7-9,
12-15. He contends that the agency was obligated to show that the furlough was
“efficient” under the common meaning of the word as a reasonable management
solution to the budgetary shortfall. Id. at 7-9. He asks the Board to define
“efficiency of the service” without relying on case law he considers to be
irrelevant to the furlough action. Id. at 12-15.
¶7 In recent decisions, the Board has extensively addressed the application of
the efficiency of the service standard in the context of a furlough. The agency
satisfies the efficiency of the service standard in a furlough appeal by showing, in
general, that the furlough was a reasonable management solution to the financial
restrictions placed on it, and that the agency applied its determination as to which
employees to furlough in a “fair and even manner.” Chandler v. Department of
the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013) (citing Clark v. Office of Personnel
Management, 24 M.S.P.R. 224, 225 (1984)). Applying its determinations in a
“fair and even manner” means that the agency treated similar employees similarly
and justified any deviations with legitimate management reasons. Id.
¶8 Agencies, however, may exercise considerable discretion in taking actions
to avoid a deficit. See Waksman v. Department of Commerce, 37 M.S.P.R. 640,
645 (1988), aff’d sub nom. Harris v. Department of Commerce, 878 F.2d 1447
(Fed. Cir. 1989) (Table). Furloughs are one such tool for that purpose.
See 5 U.S.C. § 7511(a)(5) (defining furlough as “the placing of an employee in a
temporary status without duties and pay because of lack of work or funds or other
nondisciplinary reasons”); 5 C.F.R. § 752.402 (same). In determining whether
the agency structured a furlough in a fair and even manner, the Board will not
second guess the agency’s assessment of its mission requirements and priorities,
e.g., such as an agency’s determination as to the number of individuals needed to
5
protect property, safety, and health during a furlough. Lopez v. Department of the
Navy, 121 M.S.P.R. 647, ¶ 16 (2014). The efficiency of the service determination
does not encompass agency spending decisions per se, including spending on
personnel matters, Chandler, 120 M.S.P.R. 163, ¶ 9, nor does it encompass an
agency’s decision to allocate furlough days in a certain manner among employees
who are not similarly situated, id. (citing Waksman, 37 M.S.P.R. at 645-46). The
Board has held that such matters are within the judgment of agency managers,
who are in the best position to decide how to accomplish the agency’s mission.
Id. However, the efficiency of the service determination does encompass issues
relating to the uniform and consistent application of the furlough including
whether the agency used a furlough to target employees for personal reasons or
attempted to exempt certain employees from the furlough without legitimate
management reasons. Id.
¶9 We find that the administrative judge notified the parties of the standard as
set forth in Chandler, IAF, Tab 12 at 3-4, and he properly applied that standard in
the initial decision, ID at 3-5.
The agency proved its case by preponderant evidence.
¶10 The appellant challenges the form of the agency’s evidence showing that
the furlough promoted the efficiency of the service. PFR File, Tab 1 at 8-9. He
argues that the sworn statements of DOD’s Under Secretary of Defense
(Comptroller)/Chief Financial Officer and the deciding official are insufficient to
establish that the agency acted to support the efficiency of the service because the
agency also has not provided the detailed information upon which the officials
relied in making those statements. Id.; IAF, Tab 20 at 24-34, 36-37. Unrebutted
sworn statements, declarations, and affidavits, however, are competent evidence
of the matters asserted therein. See Truitt v. Department of the Navy, 45 M.S.P.R.
344, 347 (1990); Schaefer v. U.S. Postal Service, 42 M.S.P.R. 592, 595 (1989);
Woodall v. Federal Energy Regulatory Commission, 30 M.S.P.R. 271, 273
(1986). Though such documents are hearsay, the Board affords them the weight
6
to which they are entitled by considering several factors in its deliberations.
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981).
¶11 Here, the appellant has offered no contradictory evidence to counter the
statements given by the agency officials. See id. at 87. Both statements were
signed under penalty of perjury. IAF, Tab 20 at 33-34, 37; see Borninkhof,
5 M.S.P.R. at 87. The statements also are consistent with each other and with
other evidence in the record. E.g., IAF, Tab 1 at 41-52, Tab 20 at 42-43; see
Borninkhof, 5 M.S.P.R. at 87. Additionally, the appellant could have called as
witnesses and examined the officials whose statements the agency submitted, but
he withdrew his hearing request. IAF, Tab 9 at 1. Whether or not to hold a
hearing was entirely his decision in this case. See 5 C.F.R. § 1201.24(d).
Accordingly, we find that his arguments are unavailing.
The administrative judge properly addressed the appellant’s claims that the
agency’s furlough process was predetermined and violated his due process rights.
¶12 The appellant argues that the administrative judge ignored or rejected his
evidence and arguments establishing that furlough decisions were predetermined
when they were proposed. PFR File, Tab 1 at 6, 20-21. He asserts that DISA did
not conduct its decision-making processes based on earlier departmental
authorizations, such as the Secretary of Defense’s May 14, 2013 memorandum to
the entire department, see IAF, Tab 1 at 41-52, with the full and objective
consideration of individuals’ circumstances, and thus it denied those individuals
their due process rights, PFR File, Tab 1 at 6. He asserts that the deciding
official misled agency employees when he stated that he made the furlough
decision for each individual. Id.; see IAF, Tab 20 at 36-37. The fact that
employees received form decision letters, he asserts, disproves the deciding
official’s statement that he considered each employee’s case individually. PFR
File, Tab 1 at 6; see IAF, Tab 20 at 37.
¶13 The Board, however, has held that the DOD furlough process, which flowed
from the Secretary’s May 14, 2013 memorandum, generally afforded due process
7
to agency employees. Gajdos v. Department of the Army, 121 M.S.P.R. 361,
¶¶ 18-25 (2014); see Rodgers v. Department of the Navy, 122 M.S.P.R. 559,
¶¶ 5-9 (2015) (finding that, under the departmental memorandum, the deciding
official possessed sufficient decision-making authority to satisfy the appellant’s
right to due process); see also Kelly v. Department of the Army, 121 M.S.P.R.
408, ¶ 15 (2014) (finding that the agency could rely upon the departmental
memorandum and other supporting documents issued by the Secretary and other
senior DOD officials, rather than analyses specific to each furloughed individual,
to support a finding that the agency had met the efficiency of the service
standard). We find no reason to reach a different result in this case. The
appellant does not dispute that he received a furlough proposal notice affording
him an opportunity to file a reply, filed such a reply, and received a notice of the
agency’s decision to furlough him. IAF, Tab 1 at 19-22, 31-37. Although the
deciding official’s authority was limited in the sense that the furlough parameters
were established by the Secretary of Defense, he possessed sufficient
decision-making authority in the context of this agency-wide furlough to satisfy
the appellant’s right to due process. IAF, Tab 20 at 36-37; see
Rodgers, 122 M.S.P.R. 559, ¶ 7.
The appellant is not similarly situated to employees who were not furloughed.
¶14 The appellant argues that the agency’s broad furlough powers open the door
to circumstantial discrimination if the agency treats similarly situated employees
differently. PFR File, Tab 1 at 9-10. Although the appellant uses the term
“discrimination,” he has not alleged prohibited discrimination on any basis set
forth in 5 U.S.C. § 2302(b)(1), i.e., race, color, religion, sex, national origin, age,
disability, marital status, or political affiliation. Instead, he asserts that “[w]hen
workers are furloughed in one situation and not furloughed in another,
discrimination has occurred.” PFR File, Tab 1 at 9. His pleadings below were
more specific in arguing that DOD selectively did not furlough certain personnel
affected by tornadoes in Oklahoma and thus created “protected classes” of
8
civilian employees who were treated more favorably. E.g., IAF, Tab 16 at 17-18;
PFR File, Tab 1 at 16-17, 22. The appellant is correct that the initial decision did
not explicitly address this argument. PFR File, Tab 1 at 16. We supplement the
initial decision to explain that his argument is unavailing for the following
reasons.
¶15 In Tinker AFSC/DP v. Department of the Air Force, 121 M.S.P.R. 385, ¶¶ 1,
4, 18-22 (2014), the Board addressed the Department of the Air Force’s decision
not to furlough so-called “safe haven” employees who were receiving
“continuation of salary” payments under 5 U.S.C. §§ 5522-5523 following
evacuation from the area around Tinker Air Force Base, Oklahoma, due to
tornadoes in May 2013. In that appeal, the Department of the Air Force argued
that it believed that it was prohibited by statute from furloughing employees
while they were receiving such payments. Tinker, 121 M.S.P.R. 385, ¶¶ 4, 7.
The Board found that the agency was required to prove that the relevant officials
reasonably and genuinely believed they were precluded from furloughing the
“safe haven” employees. Id., ¶ 22. The Board ordered further adjudication of
that issue as part of the agency’s burden establishing that it treated similar
employees similarly and justified any deviation with legitimate management
reasons. Id., ¶¶ 17, 23.
¶16 Nothing in the record suggests that the appellant was similarly situated to
DOD civilian employees in Oklahoma who were not furloughed because they
were receiving “safe haven” payments. He has not alleged that he was similarly
receiving “safe haven” payments. Further, his DISA position in Colorado is in a
different organizational unit and geographical location, and thus he is not
similarly situated to the Oklahoma employees for purposes of this furlough. IAF,
Tab 1 at 84; see Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶¶ 8-9
(2014). We find no evidence in the record showing that the agency treated the
appellant differently from any similarly situated employee concerning this
furlough. See, e.g., IAF, Tab 20 at 24-37. Thus, the appellant’s assertion of
9
“potentially discriminatory relief to some employees ([under] “Safe Havens”
authority),” PFR File, Tab 1 at 22, does not provide a sufficient basis for
disturbing the administrative judge’s finding that the agency applied its
determination as to which employees to furlough in a fair and even manner, ID
at 9; see Chandler, 120 M.S.P.R. 163, ¶ 8.
10 U.S.C. § 129 does not preclude the furlough of employees paid through a
working capital fund (WCF).
¶17 Next, the appellant argues that the agency violated 10 U.S.C. § 129(b)(2) 2
by furloughing employees who are paid through a WCF. PFR File, Tab 1
at 15-16. He asserts that the administrative judge relied on DOD’s “unsupported
written statements” interpreting the relevant law and that the agency failed to
produce any supporting evidence showing that WCF employees could be
furloughed. Id. at 15. He further asserts that submitting WCF employees to a
furlough was harmful error. Id. at 16.
¶18 In the initial decision, the administrative judge explained that the appellant
had argued that the agency interpreted 10 U.S.C. § 129 as allowing it to exempt
WCF employees from the furlough during the October 2013 government
shutdown, whereas it did not exempt WCF employees from having to take
furlough days between July and September 2013. ID at 7. The appellant asserted
that the agency could not fairly change its interpretation of the statute during the
3-month period between the two furloughs. Id.; see IAF, Tab 16 at 4, 10-11. The
2
The statute states:
The number of, and the amount of funds available to be paid to, indirectly
funded Government employees of the Department of Defense may not
be . . . managed on the basis of any constraint or limitation in terms of
man years, end strength, full-time equivalent positions, or maximum
number of employees.
10 U.S.C. § 129(b)(2). The term “indirectly funded Government employees” means
civilian employees “who are employed by industrial-type activities, the Major Range
and Test Facility Base, or commercial-type activities described in section 2208 of this
title; and . . . whose salaries and benefits are funded from sources other than
appropriated funds.” 10 U.S.C. § 129(c).
10
administrative judge explained that he was unable to address the agency’s
apparent decision not to furlough the appellant during the government shutdown,
but he found nothing in the statutory language that prohibited DOD from
furloughing WCF employees, although somewhat to the contrary, the statute
requires DOD to manage its personnel consistent with workload requirements and
funding made available to the department. ID at 7-8; see 10 U.S.C. § 129(a).
The administrative judge also relied on evidence that funds saved by the furlough
of WCF employees could be used for other priorities. ID at 8; IAF, Tab 20
at 31-32, 42-43.
¶19 We have considered the appellant’s arguments concerning the meaning
of 10 U.S.C. § 129, but we find no reason to disturb the administrative judge’s
finding that the plain language of that statute does not prohibit furloughing
employees paid through a WCF. ID at 8. The statute does not refer to furloughs,
but rather specifies management constraints or limitations in terms of “man years,
end strength, full-time equivalent positions, or maximum number of
employees.” 10 U.S.C. § 129(b)(2). Even assuming WCF funds were exempt
from sequestration under 10 U.S.C. § 129 or some other basis, the issue is
whether the furlough was a reasonable management solution to the financial
restrictions placed on the agency. Einboden v. Department of the Navy, 122
M.S.P.R. 302, ¶ 13 (2015). 3 As explained in Einboden, DOD reasonably could
consider its budget holistically rather than isolate the funding situation for each
of its subordinate organizations or components. Id., ¶ 15. Here, as in Einboden,
we find no indication in the record that the Secretary of Defense was prohibited
from using savings resulting from the furloughs of WCF employees to address
other budgetary needs, and we find no reason to disturb the administrative judge’s
crediting of evidence to the contrary. ID at 8; see Einboden, 122 M.S.P.R. 302,
¶ 16. Thus, we agree with the administrative judge that the agency has
3
The Board issued Einboden 3 days after the administrative judge issued the initial
decision in this appeal.
11
established that the furlough was a reasonable management solution to its
financial restrictions notwithstanding the appellant’s arguments regarding WCFs
and 10 U.S.C. § 129. See Einboden, 122 M.S.P.R. 302, ¶¶ 16, 18.
During the proceedings below, the appellant did not object to the contents of the
amended agency file or allege that the agency failed to comply with the discovery
order.
¶20 The appellant asserts, moreover, that the agency failed to provide “process
documentation” that would show the agency’s matrix or decision-making process
used in furloughing individual employees. PFR File, Tab 1 at 17. The appellant
requested such documentation during discovery, but the agency objected to his
request as being overbroad and in excess of the agency’s burden of proof. IAF,
Tab 11 at 6. The administrative judge, however, ordered the agency to provide
“guidance and/or policies that governed how DISA granted or denied furlough
exemptions,” and in the absence of such guidance or policies, to submit “other
evidence it has about its process for granting or denying exemptions, or explain
the absence of such evidence or policy.” IAF, Tab 12 at 2. Documents in the
amended agency file submitted late in the proceedings include broad statements
regarding the exemption of individual employees. IAF, Tab 20 at 36-37, 68-71.
The agency also noted in its overview that individuals affected by the tornadoes
in Oklahoma had been exempt from furlough. Id. at 6.
¶21 The agency submitted the amended agency file only after the administrative
judge deemed the first version of the file inadequate and ordered the agency to
resubmit it. IAF, Tab 18. The agency submitted the amended file 25 days after it
was due. Compare id., with IAF, Tab 20. The appellant sought to strike the
amended file as untimely, and he persisted in asserting that it should not have
been added to the record, even after the administrative judge denied his motion to
strike. IAF, Tabs 22-23, 25. The appellant did not, however, address any content
deficiencies that he might have noticed in the file, nor did he allege any
noncompliance with the administrative judge’s discovery order. He has not
12
submitted any previously unavailable evidence supporting his arguments. The
appellant’s efforts to raise these issues on review are thus unavailing. See Banks
v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence).
The appellant failed to show that the administrative judge was biased or abused
his discretion in managing the appeal.
¶22 The appellant asserts that the administrative judge made certain erroneous
procedural decisions and that he was biased in the agency’s favor during the
proceeding below. PFR File, Tab 1 at 17-20. He argues that the administrative
judge erred when he declined to review the tape of an April 18, 2014
teleconference wherein the agency representative allegedly stated that the agency
used the Douglas factors in making individual furlough decisions. 4 Id. at 17-18;
see IAF, Tabs 14-15. The appellant also asserts that the administrative judge
repeatedly allowed the agency to file untimely pleadings. PFR File, Tab 1
at 18-19. He additionally asserts that, in the aggregate, the administrative judge’s
procedural decisions show bias in the agency’s favor. Id. at 19-20. He argues
that the administrative judge allowed the agency to file minimally probative
pleadings that did not address his specific allegations, and that the administrative
judge cited newly decided Board cases that “solidify . . . the Government’s
defenses against future appeals.” Id.
¶23 The appellant’s allegations of error are properly analyzed as abuse of
discretion claims because they describe particular decisions regarding case
management, development of the record, and the admissibility of the evidence.
The Board’s regulations give the administrative judge wide discretion in these
4
Because a furlough action is not disciplinary in nature, the penalty factors set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), do not apply.
Chandler, 120 M.S.P.R. 163, ¶ 31.
13
areas. See 5 C.F.R. § 1201.41(b)(3)-(5), (8), (10), (15). The appellant accurately
asserts that the agency was slow to submit the updated agency file and that its
initial response to the administrative judge’s acknowledgement order was
minimal. IAF, Tabs 6-7, 17-18, 20. When the appellant moved to strike the
agency’s submission as untimely filed, however, IAF, Tab 22, the administrative
judge declined, explaining that it was within his discretion to admit the
submission into the record, IAF, Tab 23. The administrative judge explained that
refusal to admit relevant evidence would not further the expeditious resolution of
the appeal, even if such evidence was untimely filed. Id. We find that the
administrative judge acted within his sound discretion.
¶24 We likewise find the administrative judge acted within his sound discretion
when he declined to review the tape of the April 18, 2014 teleconference. IAF,
Tab 15; see IAF, Tab 12. The appellant submitted his recollection of the
teleconference for the record. IAF, Tab 14. On review, he argues that the
administrative judge “elect[ed] to not consider the submitted argument and
evidence in support of the case because it [was] a ‘poor use’ of the Board’s time.”
PFR File, Tab 1 at 18. The record shows that the administrative judge responded
to the appellant’s pleading regarding his recollection of the teleconference,
explaining that such recollections were not admissible evidence. IAF, Tab 15
at 2. The administrative judge also explained that he would not review the tape
because he had not taken any evidence under oath during the call and he had
likewise made no findings of fact. Id. Under the circumstances, the
administrative judge acted within his discretion. We further note that, except for
the parties’ stipulations of fact, statements made during a status conference are
not evidence. Spradlin v. Office of Personnel Management, 84 M.S.P.R. 279, ¶ 8
(1999).
¶25 As for the appellant’s allegations of bias, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
14
(1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States,
510 U.S. 540, 555 (1994)). The
appellant has not met his burden to show such favoritism or antagonism.
Although he asserted that an unfavorable ruling on his motion to strike “would
show a clear and present bias on the behalf of the Government,” we do not agree.
IAF, Tab 22 at 5. One of the administrative judge’s primary responsibilities is
development of the record. 5 C.F.R. § 1201.41(b)(5)(ii), (10). Rejecting the
agency’s pleadings would not have allowed the administrative judge to meet that
responsibility. The appellant has not shown that his substantive rights were
prejudiced by the agency’s delays. In any event, we note that the appellant failed
to support his allegations of bias with an affidavit. See Lee v. U.S. Postal
Service, 48 M.S.P.R. 274, 280-82 (1991). For all of the foregoing reasons, we
affirm the initial decision as modified.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request review of this final decision by the United States Court of Appeals for the
Federal Circuit. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
15
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
