Filed: Nov. 02, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 39 Docket No. PH-0752-15-0475-I-1 Scott Holton, Appellant, v. Department of the Navy, Agency. November 2, 2016 James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the appellant. Penny C. Colomb, Esquire, and Scott W. Flood, Esquire, Portsmouth, New Hampshire, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial deci
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 39 Docket No. PH-0752-15-0475-I-1 Scott Holton, Appellant, v. Department of the Navy, Agency. November 2, 2016 James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the appellant. Penny C. Colomb, Esquire, and Scott W. Flood, Esquire, Portsmouth, New Hampshire, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decis..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 39
Docket No. PH-0752-15-0475-I-1
Scott Holton,
Appellant,
v.
Department of the Navy,
Agency.
November 2, 2016
James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the
appellant.
Penny C. Colomb, Esquire, and Scott W. Flood, Esquire, Portsmouth, New
Hampshire, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the following reasons, we DENY the appellant’s
petition for review and AFFIRM the initial decision as MODIFIED to address his
claims that the agency violated his constitutional rights.
BACKGROUND
¶2 The agency removed the appellant, a WS-10 Rigger Supervisor in its
Portsmouth Naval Shipyard, for use of an illegal drug, marijuana. Initial Appeal
File (IAF), Tab 5 at 88-90, 169-72.
2
¶3 On March 11, 2014, the appellant was overseeing a crane team of
approximately 11 people. Hearing Transcript (HT) at 10 (testimony of T.T.). A
crane team uses a crane to hoist machinery and other equipment. IAF, Tab 5
at 36. As Rigger Supervisor, the appellant was responsible for making work
assignments and ensuring compliance with safe work practices. Id. at 36-37. He
assigned a rigger in charge of the crane team. Id. at 92. He then proceeded to the
endpoint of the lift. HT at 18, 266-68 (testimony of T.T. and the appellant).
While in transit, the boom of the crane struck a building, causing approximately
$30,000 in damage. IAF, Tab 5 at 42, 88. According to the appellant, he was
approximately 150 yards from where the accident occurred. HT at 268 (testimony
of the appellant).
¶4 That evening, agency police began a “Desk Journal,” or police log, of the
accident. HT at 55 (testimony of T.T.); IAF, Tab 5 at 40-41. The agency
concluded that the accident was caused by improper crane operation and poor
crane team execution chargeable to the crane walker, rigger, operator, and those
managing or supervising the team. IAF, Tab 5 at 76. Based on the fact that a
police log was being generated and the damage exceeded $10,000, the Acting
Director of Lifting and Handling obtained permission from the Executive Director
of the Shipyard to drug test the entire crane team. HT at 8, 53-54 (testimony of
T.T.); IAF, Tab 5 at 40-41. In deciding to test the entire team, the Acting
Director of Lifting and Handling applied the agency’s “Crane Team Concept” to
conclude that the accident was a failure by the team. HT at 53-54 (testimony of
T.T.). Under the Crane Team Concept, the crane team members are responsible
for “watching out for each other . . . [a]nd . . . bringing attention to what’s going
on” to prevent problems. HT at 45-46 (testimony of T.T.).
3
¶5 Citing its established post-accident testing procedures, 1 the agency required
that all members of the crane team, including the appellant, provide a urine
sample that evening to an agency contractor. IAF, Tab 5 at 44, 60-62, 88, 167.
The appellant signed the seals for his specimen and also signed a checklist
certifying that the contractor’s employee, C.P., took the proper steps in the
collection process. Id. at 77-78. Two days after the appellant provided his
sample, the agency issued him written notice explaining that the reason for the
drug test was the March 11, 2014 accident. Id. at 79.
¶6 The appellant’s sample was tested twice and found positive for marijuana
both times. Id. at 81, 167. On March 31, 2015, following the first positive test
result, the agency placed him in a paid, nonduty status. Id. at 81, 85. On May 15,
2015, the agency proposed his removal. Id. at 88-90. After the appellant
responded both orally and in writing, the Executive Director issued a decision
letter, removing the appellant effective July 8, 2015. Id. at 91-97, 169-72.
1
The pertinent section of the agency’s drug-testing program is NAVSHIPYD PTSMH
INSTRUCTION 12792.2B, Enclosure (1) 5.e, which states:
e. Post Accident Testing of employees, based on a police report, suspected
of having caused or contributed to an accident if there is a death or
personal injury resulting in hospitalization, or if there is property damage
in excess of $10,000.
(1) Criteria. Employees may be subject to testing when, based upon
circumstances of an on-the-job accident or unsafe, on-duty, related
activity, their actions are reasonably suspected of having caused or
contributed to an accident or unsafe practice that meets either of the
following criteria:
(a) The accident or unsafe practice results in a death or personal
injury requiring admission to a hospital, or
(b) The accident or unsafe practice results in damage to
government or private property estimated to be in excess of
$10,000.
IAF, Tab 5 at 60-61.
4
¶7 The appellant filed an appeal. IAF, Tab 1. After holding a hearing, the
administrative judge affirmed the appellant’s removal. IAF, Tab 38, Initial
Decision (ID). He found that the appellant’s drug test was valid and that C.P. did
not combine two urine samples, as the appellant claimed. ID at 2-3. The
administrative judge also found that the agency established its charge that the
appellant used an illegal drug. ID at 2-4. The administrative judge denied the
appellant’s affirmative defense of harmful error. ID at 4-7. First, he found that
the agency properly selected the appellant for testing based on his role as the
first-line supervisor of the employees operating the crane at the time of the
accident. ID at 6. Second, he found that the agency’s failure to provide the
appellant with advance written notice of why he was being tested, as required by
its drug-testing program, was harmless because it did not affect the outcome of
the test. ID at 6-7.
¶8 The administrative judge further found that the penalty of removal was
reasonable under the circumstances, given that the appellant’s work at the time
involved actively overseeing the lifting and moving of a 60,000-pound load
through a crowded shipyard. 2 ID at 7-9. He did not address the appellant’s
arguments that the agency’s application of its drug-testing program violated the
Constitution. IAF, Tab 24 at 5.
¶9 In his petition for review, the appellant reiterates his claim that his drug
test was invalid. Petition for Review (PFR) File, Tab 1 at 26-28. He also argues
that the agency violated both its drug-testing program and the Constitution
because it lacked reasonable suspicion that he either caused or contributed to the
2
The appellant does not challenge the administrative judge’s finding that removal was a
reasonable penalty. ID at 7-9. We decline to disturb this finding on review. See
Patterson v. Department of the Air Force, 77 M.S.P.R. 557, 563-64 (deferring to an
agency’s determination to remove an appellant for use of illegal drugs because, in
pertinent part, his position as an aircraft mechanic required operating a crane that lifted
heavy equipment), aff’d, 168 F.3d 1322 (Fed. Cir. 1998) (Table).
5
accident. Id. at 16-18, 20-24. He contends that the agency failed to afford him
due process and committed harmful error in the notification and administration of
the drug-testing program. Id. at 18-19, 24-26. He argues that the deciding
official’s role in deciding to test him indicated that he was predisposed to find
against him. Id. at 26-29. The agency has responded to the petition for review,
and the appellant has replied. PFR File, Tabs 4-5.
ANALYSIS
The administrative judge properly found that the agency proved the charge of
illegal drug use.
¶10 On review, the appellant argues, as he did below, that his drug test was
invalid because C.P. did not properly collect his sample. PFR File, Tab 1
at 26-28.
¶11 When an agency relies on a positive drug test to take an adverse action
against an employee, the agency must prove by preponderant evidence 3 that the
test was valid. E.g., Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 8
(2016). To meet its burden, the agency must establish that the urine sample that
tested positive was the appellant’s by showing that the chain of custody of the
sample was maintained and verifiable. Id. An alleged violation of the agency’s
drug-testing procedures is reviewed under the harmful error standard. Id., ¶ 9.
Under this standard, reversal is only warranted if the appellant proves that the
procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id.
¶12 Regarding the substantive charge, use of an illegal drug, and the validity of
the appellant’s positive test, the administrative judge found that C.P. properly
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
collected the appellant’s urine sample. ID at 3. Although C.P. did not
specifically recall collecting the appellant’s sample, he testified to the procedures
he regularly followed. HT at 137-44 (testimony of C.P.). The appellant
maintains on review that he was unable to provide a sufficient volume of urine to
be tested in his first attempt and that C.P. combined that urine with the urine from
his similarly insufficient second attempt, in violation of agency policy. PFR File,
Tab 1 at 26-28. The administrative judge considered the appellant’s testimony in
this regard but found no error in C.P.’s collection of the appellant’s specimen. ID
at 2-3. He considered C.P.’s demeanor while testifying at hearing, his lack of
interest in the outcome of the appeal, and the plausibility of his account. ID at 3.
He also found that C.P.’s testimony was consistent with the fact that the appellant
signed the seals for his specimen and a checklist certifying to its proper
collection. Id.; IAF, Tab 5 at 77-78.
¶13 The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant’s
arguments on review do not present such reasons. For example, he disagrees with
the administrative judge’s assessment of C.P. as lacking any interest in the
outcome of the appeal, and he points to the fact that C.P. did not specifically
recall collecting his sample. PFR File, Tab 1 at 27. The appellant also argues
that his own testimony was “clear and consistent,” he lacked sufficient time to
review the seals and certifications for his samples, and he “signed where he was
told to.” Id. We find that the administrative judge considered the proper factors
in finding the appellant provided a single, valid urine sample. See Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987) (listing the factors an
administrative judge must consider in resolving credibility issues, including a
witness’s bias or lack of bias, the consistency of his account with other evidence,
7
the inherent improbability of his version of events, and his demeanor); see also
Fed. R. Evid. 406 4 (permitting the use of “a person’s habit or an organization’s
routine practice” to prove compliance with that habit or practice “on a particular
occasion”).
¶14 Importantly, the appellant’s signature on the specimen checklist explicitly
attests to the fact that “all of the steps” listed on the form were completed. IAF,
Tab 5 at 77. Similarly, he signed the Federal Drug Testing Custody and Control
Form, certifying that each specimen bottle was sealed in his presence. Id. at 78.
Therefore, we agree with the administrative judge that the appellant’s challenges
to the collection procedures are unpersuasive. ID at 3.
¶15 We also agree with the administrative judge that the appellant’s other
procedural challenges do not provide a basis for reversing his removal. ID at 6-7.
¶16 First, the appellant alleges that the agency failed to obtain a police report
before deciding to test him. PFR File, Tab 1 at 24-25; IAF, Tab 24 at 4. He
asserts that the police Desk Journal of the accident was not such a report but
rather a chronology of the events. Id. The agency argues on review that a police
report is only required for accidents involving death or personal injury. PFR File,
Tab 4 at 25; IAF, Tab 5 at 60; HT at 170 (testimony of R.T.). We find it
unnecessary to resolve the issue of whether a police report was required because
we find that the Desk Journal, by providing an account of the events in question,
is sufficient to meet the report requirement. 5 IAF, Tab 5 at 40-41;
Merriam-Webster’s Collegiate Dictionary 990 (10th ed. 2002) (defining a report
as “a usu[ally] detailed account or statement”).
4
The Board may use the Federal Rules of Evidence as nonbinding guidance. Social
Security Administration v. Long, 113 M.S.P.R. 190, ¶ 10 (2010), aff’d, 635 F.3d 526
(Fed. Cir. 2011).
5
We modify the initial decision to the extent that it did not specifically address this
argument.
8
¶17 Second, the appellant argues that the agency failed to provide advance
written notice of the test. PFR File, Tab 1 at 26. The agency’s drug-testing
program provides that “management officials will notify the employee of the test
and issue . . . specific written notice that the employee is being tested because of
the accident or unsafe practice.” IAF, Tab 5 at 62. The agency provided this
notice 2 days after the test. Id. at 79-80. We agree with the administrative judge
that the appellant did not prove that this notice deficiency changed the results of
his drug test. ID at 6-7; see Forte, 123 M.S.P.R. 124, ¶¶ 17-19 (finding that the
appellant failed to prove that the agency likely would have reached a different
conclusion in the absence of a urine specimen collector’s alleged error of not
having him initial his vial seals).
¶18 Finally, the appellant argues for the first time on review that the agency did
not compile the written documents that are required under the agency’s
drug-testing program. PFR File, Tab 1 at 25; IAF, Tab 24 at 4-5. The appellant
does not allege that this argument is based on new and material evidence, and
thus we need not address it. See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980) (finding that the Board will generally 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). Regardless, we find that any failure by the agency to “gather and
document all information, facts, [and] circumstances” prior to testing, as required
by its drug-testing program, was harmless. IAF, Tab 5 at 42-43, 57. Before
ordering testing, the Acting Director of Lifting and Handling examined the scene
of the accident, spoke with the crane team, and conducted a preliminary
assessment of the cost of the damage. Id. at 42-43. The appellant has not proven
that collecting documents would have caused the agency to forgo his testing, and
thus he has not shown harmful error.
9
¶19 Therefore, we agree with the administrative judge that the agency proved
its charge of illegal drug use, and the appellant did not meet his burden to prove
harmful error.
The administrative judge properly found that the agency had a reasonable
suspicion that the appellant caused or contributed to the accident.
¶20 The appellant reiterates on review that the agency did not have reasonable
suspicion of drug use as required by the Fourth Amendment and its drug-testing
program. PFR File, Tab 1 at 15-20. We disagree.
¶21 Mandatory drug testing, when conducted by the Federal Government, is a
search and seizure within the meaning of the Fourth Amendment and must be
reasonable to pass constitutional muster. National Treasury Employees Union v.
Von Raab, 489 U.S. 656, 665 (1989); Skinner v. Railway Labor Executives’
Association, 489 U.S. 602, 616-19 (1989). While a search generally must be
supported by a warrant issued upon probable cause to comply with the dictates of
the Fourth Amendment, such a requirement is not absolute, and neither a warrant,
probable cause, nor individualized suspicion is essential in every case to prove
reasonableness. Shelledy v. Department of Transportation, 49 M.S.P.R. 257, 261
(1991) (citing Skinner, 489 U.S. at 618-33), aff’d,
956 F.2d 1173 (Fed.
Cir. 1992). Employing the analysis identified by the Supreme Court in Skinner,
the Board has observed that post-accident drug testing, performed without a
warrant or a showing of individualized suspicion, is a reasonable intrusion into an
employee’s privacy rights, if the regulations afford the employer limited
discretion, the test serves compelling safety interests, and the employee has a
diminished expectation of privacy because of his employment in an industry that
is heavily regulated for safety. Id. at 262 (citing
Skinner, 489 U.S. at 627-28,
633-34); see Hatley v. Department of the Navy, 164 F.3d 602, 604 (Fed. Cir.
1998) (recognizing that the Government may generally subject “employees
responsible for the safety of others” to suspicionless drug testing). When these
requirements are met, an agency can test an employee even if he does not occupy
10
a testing-designated position. See National Treasury Employees Union, 489 U.S.
at 667-77 (upholding a drug-testing requirement for employees who applied for
promotion to drug-interdiction positions or to positions that required carrying a
firearm).
¶22 In Skinner, the Supreme Court upheld regulations requiring railroads to test
employees “directly involved” in certain accidents, including accidents resulting
in death or property damage exceeding $50,000. 489 U.S. at 609, 618-33. It
further upheld regulations permitting railroads to conduct testing based on “a
‘reasonable suspicion’ that an employee’s acts or omissions contributed to the
occurrence or severity of [an] accident or incident . . . or . . . in the event of
certain specific rule violations.” Id. at 611, 618-33.
¶23 The agency’s post-accident testing procedures under its drug-testing
program are similar to the permissive drug-testing regulations upheld by the
Court in Skinner. Like those regulations, the agency’s procedures allow for
testing employees “reasonably suspected of having caused or contributed” to
certain accidents. IAF, Tab 5 at 60-61. We do not agree with the appellant that
“contributed to,” as used in the procedures, is “overbroad and vague,” given that
this same term was used in the regulations upheld by the Court in Skinner. 6
PFR File, Tab 1 at 23.
¶24 Similarly, the activity involved here, the lifting and moving of a
60,000-pound load by crane, is “fraught with such risks of injury to others that
6
In support of his argument, the appellant relies on Plane v. United States, 750 F. Supp.
1358, 1373-74 (W.D. Mich. 1990), in which a U.S. district court judge found that a
drug-free workplace plan that called for testing all employees “involved” in accidents
was overly broad. PFR File, Tab 1 at 15-17. However, we find the agency’s program is
appropriately tailored to employees that are reasonably suspected of having caused or
contributed to accidents. Therefore, we are not persuaded by the analogy to the plan at
issue in Plane.
11
even a momentary lapse of attention can have disastrous consequences.”
Shelledy, 49 M.S.P.R. at 262 (quoting Skinner, 489 U.S. at 628). Therefore, the
agency’s use of its drug-testing program to test the appellant posed only a limited
threat to his privacy rights but, by contrast, directly served a compelling
Government safety interest.
¶25 The appellant alleges that he had delegated the responsibility for the crane
lift to a rigger in charge, and therefore he could not be tested because he did not
engage in a “triggering event” that “caused” the accident. PFR File, Tab 1
at 20-24. He argues that the agency improperly employed its Crane Team
Concept to test him, despite the lack of any causal link between him and the
accident, essentially holding him strictly responsible for the accident. Id.
at 21-22.
¶26 However, in his petition for review, the appellant concedes the
circumstances that both bring him within the purview of the agency’s
post-accident testing procedures and also show that the agency reasonably
suspected that he contributed to the accident. The triggering event under the
agency’s drug-testing program was the boom of the crane striking a building,
causing more than $10,000 in property damage. IAF, Tab 5 at 42-43, 60; see
Skinner, 489 U.S. at 630 (using the phrase “triggering event” to refer to an
incident that requires or permits regulatory drug and alcohol testing). The
appellant not only supervised the crane team but he also briefed the team before
appointing a rigger in charge and moving on to the endpoint of the lift. PFR File,
Tab 1 at 21. The appellant argues that there is no evidence that he violated any
rule, regulation, or instruction. Id. However, the agency’s drug-testing program
does not require such a showing. The proper standard to be subject to
post-accident testing under the agency’s rules is whether the agency had a
reasonable suspicion that the appellant could have caused or contributed to the
accident. IAF, Tab 4 at 60-61.
12
¶27 Because the record reflects that the appellant instructed the crane team
immediately before the accident and was still actively involved in the operation
when the accident occurred, we find that it was reasonable for the agency to
suspect that he could have caused or contributed to the accident and to drug test
him.
The agency did not deny the appellant due process in selecting him for testing or
appointing its deciding official.
¶28 The appellant argues on review that the agency denied him due process
because it did not provide advance notice that it would use the Crane Team
Concept to select him for post-accident drug testing. PFR File, Tab 1 at 21-23.
He again raises the agency’s failure to provide him with advance written notice of
his drug test, this time arguing that the failure was a denial of due process. Id.
at 26; ID at 6-7; IAF, Tab 5 at 62. Although it is unclear whether the appellant
raised any due process arguments below, we exercise our discretion to address
them here. IAF, Tabs 24, 29; see Powers v. Department of the Treasury,
86 M.S.P.R. 256, ¶ 10 n.3 (2000) (finding that an administrative judge had the
right to raise a due process issue sua sponte to address whether the alleged error
caused a manifest injustice). However, we find that the appellant had no right to
due process regarding the agency’s drug-testing decision.
¶29 Tenured public employees have a property right in continued employment.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39 (1985).
Therefore, they cannot be deprived of this right without minimum due process of
law, i.e., prior notice and an opportunity to respond. Id. at 546. This right does
not extend, however, to an agency’s discretionary decision to revoke a previously
granted privilege. See Department of the Navy v. Egan, 484 U.S. 518, 528-29
(1988) (observing that an employee does not have a right to a security clearance
because the granting of such a clearance is a discretionary act); Gargiulo v.
Department of Homeland Security, 727 F.3d 1181, 1184-85 (Fed. Cir. 2013)
(finding that, because an employee does not have a property interest in a security
13
clearance, its revocation does not implicate due process). Here, as a consequence
of his positive drug test, the appellant was placed in paid, nonduty status,
effectively revoking his privilege to report to work. IAF, Tab 5 at 85. We find,
in light of the fact that he continued to receive pay, that the appellant had no
property interest in reporting to work, and the agency was entitled to revoke this
privilege without affording him due process.
¶30 Further, the appellant was not deprived of his right to notice and an
opportunity to respond to the removal that resulted from his positive drug test.
Cf. Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 15 (2014)
(finding that the Board is authorized to consider a claim that an agency denied
due process in taking an adverse action based on a security clearance
determination). Here, the appellant was provided with the requisite notice of the
proposed removal and an opportunity to respond to the deciding official. IAF,
Tab 5 at 88-97, 169-72; see Loudermill, 470 U.S. at 546. The appellant argues
that the deciding official was biased to such an extent that his selection violated
due process. PFR File, Tab 1 at 29. An employee has a due process right to have
an unbiased decision maker adjudicate his case. Lange v. Department of Justice,
119 M.S.P.R. 625, ¶ 9 (2013). To establish a due process violation based on the
identity of a deciding official, an appellant must assert specific allegations
indicating that the agency’s choice of deciding official made the risk of
unfairness to the appellant intolerably high. Id.
¶31 To support his claim of bias, the appellant argues that it was patently unfair
to use as the deciding official the same individual who granted permission to the
Acting Director of Lifting and Handling to test the appellant. PFR File, Tab 1
at 28-29. However, we disagree that this involvement presents an intolerably
high risk of unfairness to the appellant sufficient to support a finding of a due
14
process violation. 7 See Lange, 119 M.S.P.R. 625, ¶ 10 (finding that a deciding
official’s knowledge of and involvement in the investigation that led to the
appellant’s removal did not violate due process). Other than rearguing that he
should not have been selected for testing, which we already have addressed
above, the appellant does not substantiate his claim that the deciding official “was
unwilling to change his mind and fully consider all evidence of record.”
PFR File, Tab 1 at 29. Therefore, we decline to find any due process violation.
¶32 Accordingly, we affirm the initial decision as modified by this Opinion and
Order.
ORDER
¶33 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. 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
7
The appellant does not argue that the agency’s selection of a deciding official was
harmful error. PFR File, Tab 1 at 28-29. Nonetheless, we have considered whether
such an error occurred. See Stone v. Federal Deposit Insurance Corporation, 179 F.3d
1368, 1377-78 (Fed. Cir. 1999) (observing that an employee is entitled not only to
minimum due process but also to the protections afforded by statute, regulation, and
agency procedures). We find no evidence that the agency violated any statute,
regulation, or agency policy.
15
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. 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 U.S. 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 U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
16
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:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
