Filed: Jan. 22, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENNETH M. PEDELEOSE, DOCKET NUMBER Appellant, AT-1221-14-0260-W-1 v. DEPARTMENT OF DEFENSE, DATE: January 22, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Kenneth M. Pedeleose, Acworth, Georgia, pro se. Cleora S. Anderson, Smyrna, Georgia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, whi
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENNETH M. PEDELEOSE, DOCKET NUMBER Appellant, AT-1221-14-0260-W-1 v. DEPARTMENT OF DEFENSE, DATE: January 22, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Kenneth M. Pedeleose, Acworth, Georgia, pro se. Cleora S. Anderson, Smyrna, Georgia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, whic..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH M. PEDELEOSE, DOCKET NUMBER
Appellant, AT-1221-14-0260-W-1
v.
DEPARTMENT OF DEFENSE, DATE: January 22, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth M. Pedeleose, Acworth, Georgia, pro se.
Cleora S. Anderson, Smyrna, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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, we AFFIRM the initial decision.
BACKGROUND
¶2 On February 16, 2010, the agency issued the appellant a notice proposing to
suspend him for 14 days from his GS-12 Industrial Engineer position with the
agency’s Defense Contract Management Agency, Lockheed Martin Marietta
(DCMA LMM), in Marietta, Georgia, based on a charge of Insolent and
Intimidating Behavior Toward Management Officials. Initial Appeal File (IAF),
Tab 1, Attachment 2 at 1 of 7, Tab 18 at 4-7 of 28. The charge was supported by
three specifications, each of which described a November 2009 incident between
the appellant and a management official. 2 IAF, Tab 18 at 5.
¶3 The first specification alleged that on the afternoon of November 17, 2009,
the appellant became very upset when J.T. inquired about a meeting that he had
asked the appellant to attend earlier that afternoon. See id. The specification
2
Two of the incidents involved the appellant’s second-level supervisor, J.T. See IAF,
Tab 18 at 5. The other incident involved the C-5 Contracts Operations Supervisor, L.G.
See id.
3
alleged that the appellant responded to J.T.’s question by pointing at his clipboard
and slamming his pen while insisting that he was not needed at the meeting. Id.
¶4 The second specification alleged that, during a meeting the following
morning, 3 the appellant became agitated when L.G. asked him which afternoon
sessions he would be attending, so they went into the hall. IAF, Tab 18 at 5. The
specification alleged that the appellant then raised his voice and pointed his
finger at L.G., even after L.G. asked him to calm down, and that the appellant
continued yelling and threatened to file a complaint against L.G., the appellant’s
supervisor, and the group chief. Id. The specification further alleged that L.G.
felt threatened by the appellant’s behavior, which L.G. described as “totally
unprofessional and out of control,” and that L.G. thought that the appellant was
going to hit him. Id.
¶5 The third specification alleged that, immediately after his confrontation
with L.G., the appellant went to J.T.’s office and loudly and repeatedly stated that
he wanted to go home. See id. The specification further alleged that, when J.T.
asked the appellant to come into his office and talk to him, the appellant
complained about covering another employee’s workload and loudly stated that
L.G. had disrespected and embarrassed him. Id. The specification stated that J.T.
described the appellant as red-faced and full of rage and that J.T. described the
appellant’s conduct as “explosive” and “beyond anything [J.T.] ha[d] ever seen
from [the appellant] before.” Id. J.T. also stated that, although he had seen the
appellant react angrily to other minor supervisory directives in the past, he felt
that the appellant’s behavior during this incident was especially flagrant and
troubling. Id.
¶6 The appellant submitted a written response to the proposed suspension, in
which he denied the alleged misconduct and asserted that the proposed suspension
3
Due to an apparent typographical error, specification two of the notice of proposed
suspension incorrectly states that the incident involving L.G occurred on the morning of
November 17, 2009, rather than November 18, 2009. IAF, Tab 18 at 5.
4
was “whistleblower retaliation.” IAF, Tab 17 at 27-36 of 39. On April 21, 2010,
DCMA LMM Deputy Commander H.S. issued a decision sustaining the proposed
suspension. Id. at 17-20. The suspension was effective April 25, 2010, through
May 8, 2010. IAF, Tab 1, Attachment 2 at 5-6.
¶7 In 2012, the appellant filed a complaint with the Office of Special Counsel
(OSC) in which he alleged that the agency had suspended him in retaliation for
disclosing violations of the Truth in Negotiation Act (TINA) and “other issues of
fraud and abuse of authority.” IAF, Tab 1, Enclosure 2 at 1 of 77. After OSC
closed its inquiry into his allegations, IAF, Tab 17 at 14-15, the appellant filed an
IRA appeal with the Board, alleging that the agency had suspended him for
14 days in retaliation for his whistleblowing activity, IAF, Tab 1.
¶8 In support of his appeal, the appellant asserted that, from October 7, 2009,
to March 10, 2010, he made the following seven disclosures to the U.S. Air Force
Office of Special Investigation (OSI): (1) an October 7, 2009 email expressing
his concerns about Lockheed Martin Aeronautics’ (LM Aero) management of the
Low Rate Initial Production (LRIP) program, price gouging, and DCMA
management rewriting his reports to conceal negative information about
LM Aero; (2) an October 8, 2009 email outlining the appellant’s talking points
for a meeting with OSI the following day; (3) the appellant’s October 9, 2009
meeting with OSI; (4) an October 13, 2009 email referencing “the fraud situation
where Warner Robins said they had to do work that LM Aero billed for”;
(5) a January 19, 2010 email in which the appellant stated that the LRIP Lot Four
proposal was defective because its information was outdated and inflated costs;
(6) two February 4, 2010 emails in which the appellant provided information he
gathered regarding systemic contract overestimation by LM Aero and asked
whether the information constituted a TINA violation; and (7) a March 10, 2010
email containing the appellant’s complaint against J.T. and J.T.’s edits to the
appellant’s LRIP Lot Four evaluation, which included the removal of comments
about LM Aero having “serious problems with their estimating system.” IAF,
5
Tab 1, Enclosure 1 at 6, 29-48. The appellant initially requested a hearing, but
subsequently withdrew that request. Id., Attachment 2 at 1, Tab 3.
¶9 Based on the parties’ submissions, the administrative judge issued an initial
decision in which he found that the Board has jurisdiction over the appeal but
denied the appellant’s request for corrective action. IAF, Tab 26, Initial Decision
(ID). The administrative judge found that the appellant proved by preponderant
evidence that all of his disclosures were protected but that the appellant could not
prove that those disclosures were contributing factors in his suspension. ID
at 5-8. The administrative judge further found that, even if the appellant could
establish that the disclosures were contributing factors in his suspension, the
agency proved by clear and convincing evidence that it would have suspended the
appellant in the absence of the protected disclosures. ID at 8-11.
¶10 The appellant has filed a petition for review, which is supplemented with a
written declaration and five attachments totaling approximately 300 pages. 4
Petition for Review (PFR) File, Tab 1. The agency has filed a response to the
petition for review. PFR File, Tab 4. The appellant has filed a reply to the
agency’s response. PFR File, Tab 5.
ANALYSIS
¶11 In an IRA appeal, after establishing the Board’s jurisdiction, 5 the appellant
must then establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure that was a contributing
factor in a personnel action taken against him. 5 U.S.C. § 1221(e)(1); Mattil v.
Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant meets that
4
The appellant asserts on review that he has resubmitted his original case “in its
entirety.” PFR File, Tab 1 at 1; see IAF, Tab 25. Because the documents the appellant
submits on review are in the record below, they do not constitute new evidence, and we
have not considered them. See Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980).
5
We discern no reason to disturb the administrative judge’s finding that the appellant
established Board jurisdiction over this appeal. See ID at 1.
6
burden, the Board shall order such corrective action as it considers appropriate
unless the agency shows by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected disclosure.
5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R.
17, ¶ 12 (2011). Clear and convincing evidence is “that measure or degree of
proof that produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established.” 5 C.F.R. § 1209.4(d).
¶12 As noted above, the administrative judge found that the appellant proved by
preponderant evidence that all of his asserted disclosures were protected. ID at 5.
The agency has not filed a cross petition for review contesting this determination,
and we see no reason to reexamine it. Accordingly, we will proceed to the issue
of whether the appellant proved that his protected disclosures were a contributing
factor in his suspension.
The appellant proved by preponderant evidence that his protected disclosures
were a contributing factor in his suspension.
¶13 The term “contributing factor” means any disclosure that affects an
agency’s decision to threaten, propose, take, or not take a personnel action with
respect to the individual making the disclosure. Usharauli v. Department of
Health & Human Services, 116 M.S.P.R. 383, ¶ 31 (2011); 5 C.F.R. § 1209.4(c).
The most common way of proving the contributing factor element is the
“knowledge/timing test.” Wadhwa v. Department of Veterans Affairs,
110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed Cir. 2009). Under that test,
an appellant can prove that his disclosure was a contributing factor in a personnel
action through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id. Once the knowledge/timing test
has been met, the administrative judge must find that the appellant has shown that
his whistleblowing was a contributing factor in the personnel action at issue even
7
if, after a complete analysis of all of the evidence, a reasonable fact finder could
not conclude that the appellant’s whistleblowing was a contributing factor in the
personnel action. Rubendall v. Department of Health & Human Services,
101 M.S.P.R. 599, ¶ 12 (2006), superseded on other grounds by statute,
Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
No. 112-199, 126 Stat. 1465. Any contrary evidence regarding a contributing
factor may be considered in the context of the agency’s burden to show clear and
convincing evidence that it would have taken the adverse action notwithstanding
the appellant’s protected disclosures. Wadhwa, 110 M.S.P.R. 615, ¶ 13.
¶14 It is undisputed that the appellant informed his immediate supervisor, N.N.,
of his disclosures during a meeting on February 3, 2010, and that N.N. issued the
appellant the notice of proposed suspension on February 16, 2010. See IAF,
Tab 18 at 4, Tab 23 at 8 of 47. Addressing the contributing factor element, the
administrative judge found that, because the issuance of the notice of proposed
suspension preceded the appellant’s March 10, 2010 disclosure, that disclosure
was not “relevant to this case.” ID at 6.
¶15 We agree. Because the March 10, 2010 email to OSI postdates the proposed
suspension, it could not have been a contributing factor in that action. See
Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007). While the
March 10, 2010 email predates the issuance of the suspension decision, there is
no evidence that the deciding official was aware of this email at the time she
rendered her decision. Therefore, there is no basis for the Board to conclude that
this disclosure was a contributing factor in the appellant’s suspension. See Reed
v. Department of Veterans Affairs, 122 M.S.P.R. 24, ¶ 24 (2014).
¶16 As for the appellant’s other protected disclosures, the administrative judge
stated, “At first blush it would seem that the appellant can establish the
knowledge/timing test, as he received notice of the proposed suspension from
[N.N.] only thirteen days after revealing to her that he made protected disclosures
to OSI.” ID at 7. The administrative judge then considered contrary evidence
8
regarding the contributing factor element, specifically the following statements
made by N.N. or DCMA’s Director of Labor and Employee Relations, D.M., in
their written declarations: 6 (1) N.N.’s statement that she decided before
Thanksgiving to initiate disciplinary action against the appellant for his behavior
in November 2009; (2) D.M.’s statement that N.N. first consulted a DCMA
employee relations specialist regarding her decision to discipline the appellant in
November 2009; and (3) D.M.’s statement that a suspension proposal often takes
at least 2 weeks from the initial discussion of the incident with the employee
relations specialist to the time the proposal is issued to the employee. ID at 7-8;
see IAF, Tab 23 at 27, 35, 36.
¶17 Based on these statements, the administrative judge found that the appellant
had failed to meet his burden of proving that his disclosures were a contributing
factor in the suspension. ID at 7-8. More specifically, based on the first two
statements described above, the administrative judge found that the appellant
could not prove that N.N. knew about his protected disclosures in
November 2009, when she decided to discipline him for his misconduct and
consulted with an employee relations specialist regarding that discipline. Id.
Based on D.M.’s statement regarding the amount of time required to issue a
proposed suspension, the administrative judge found that, even if N.N. contacted
the employee relations specialist immediately after learning of the appellant’s
disclosures on February 3, 2010, it is unlikely that the suspension proposal would
have been finished in time to be issued to the appellant 8 business days later. ID
at 7. Therefore, the administrative judge found, due to the timing of the proposed
suspension, a reasonable person could not conclude that the disclosure was a
contributing factor in the action. ID at 8.
6
Although the administrative judge states that N.N. and D.M. made these statements in
their depositions, see ID at 7, the administrative judge seems to be referring to the
written declarations of N.N. and D.M, see IAF, Tab 23 at 24-29 and 33-36 of 47.
9
¶18 We find, however, that the appellant satisfied the knowledge/timing test by
showing that the proposing official became aware of his protected disclosures on
February 3, 2010, and issued the notice of proposed suspension on February 16,
2010. Once the appellant satisfied the knowledge/timing test, he proved the
contributing factor element of his claim, and it was therefore improper for the
administrative judge to consider contrary evidence regarding that element. See
Wadhwa, 110 M.S.P.R. 615, ¶ 13 (finding that, because the appellant satisfied the
knowledge/timing test, the administrative judge should not have considered any
further evidence on the contributing factor issue).
The agency proved by clear and convincing evidence that it would have
suspended the appellant in the absence of his whistleblowing.
¶19 Because the appellant met his burden to establish a prima facie case of
whistleblowing, the burden shifted to the agency to prove by clear and convincing
evidence that it would have taken the suspension action in the absence of the
appellant’s whistleblowing. 7 See Jenkins v. Environmental Protection Agency,
118 M.S.P.R. 161, ¶ 16 (2012). In determining whether an agency has met this
burden, the Board will consider the following factors: (1) the strength of the
agency’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
7
The WPEA, Pub. L. No. 112-199, § 114(b), 126 Stat. 1465, 1472, amended 5 U.S.C.
§ 1221(e)(2) to provide that the Board may not proceed to the clear and convincing
evidence test unless it has first made a finding that the appellant established his prima
facie case of reprisal for whistleblowing. The WPEA was effective as of December 27,
2012, Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476, and thus is applicable to this
appeal, which was filed on December 18, 2013. See IAF, Tab 1. The administrative
judge acted inconsistently with the WPEA by reaching the clear and convincing
evidence stage even after finding that the appellant failed to establish a prima facie
case, but this error is of no consequence because of our finding that the appellant
established a prima facie case. Thus, it was, in fact, proper and necessary for the
administrative judge to determine whether the agency established by clear and
convincing evidence that it would have suspended the appellant despite his protected
activity.
10
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence. Rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. See, e.g., Yunus v. Department of Veterans Affairs,
84 M.S.P.R. 78, ¶ 27 (1999), aff’d, 242 F.3d 1367 (Fed. Cir. 2001).
The strength of the agency’s evidence in support of its action
¶20 The appellant argues on review that he “did nothing wrong or improper,”
PFR File, Tab 1 at 1 (emphasis in original), and he asserts that the agency’s case
against him is “ridiculous and without merit,” id. at 2. In particular, he asserts
that if he had engaged in the alleged misconduct, the agency would have taken
some action to determine whether he was a hazard to himself or others instead of
issuing him a suspension notice, and he would not have received a 2009 year-end
performance appraisal with three Outstanding ratings and two Fully Successful
ratings. Id. at 4-7. He also contends that, because the alleged misconduct took
place in a “heavily populated” building, individuals other than J.T. and L.G.
would have witnessed his behavior. Id. at 6.
¶21 We find unavailing the appellant’s apparent assertion on review that the
agency’s evidence in support of his 14-day suspension was weak. In support of
the charge, the agency submitted memoranda which were written by J.T. and L.G.
on November 18, 2009, while the incidents of November 17 and 18, 2009,
involving the appellant were still fresh in their minds. See IAF, Tab 18 at 12-14.
The memoranda contained detailed descriptions of the incidents, including the
appellant’s behavior and demeanor. Id.
¶22 Moreover, the record shows that the appellant’s 14-day suspension was not
based on an isolated occurrence. The charge against the appellant was supported
by three specifications, each describing an incident between the appellant and a
11
supervisor during a period of less than 24 hours. Id. at 5. Further, as the
administrative judge noted in the initial decision, during the year preceding the
action at issue in this appeal, the appellant served a 1-day suspension for rude and
disrespectful statements in June 2009, and he received two Letters of Warning
and Instruction, one on September 29, 2009, directing him to carry out his job
duties without threats and defiance, and the other on January 20, 2010, based on a
complaint by another employee who alleged that the appellant had repeatedly
made disparaging and unprofessional statements directed at management. 8 ID
at 9; see IAF, Tab 18 at 8, 16-19. As the administrative judge also noted,
according to the Table of Penalties in the DCMA Guidebook on Maintaining
Discipline, the recommended penalty for a second offense of disrespectful
conduct ranges from a 10-day suspension to removal. ID at 9-10; see IAF, Tab 23
at 38. In light of these circumstances, we agree with the administrative judge’s
finding that, given the appellant’s history of behavioral issues and his previous
suspension for similar disrespectful conduct, a 14-day suspension was well within
the agency’s purview to issue. ID at 10.
The existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision
¶23 The second factor to consider in determining whether the agency met its
burden of proving by clear and convincing evidence that it would have taken the
action in the absence of the appellant’s whistleblowing is the existence and
strength of any retaliatory motive on the part of the officials who were involved
in the decision in question. See Carr, 185 F.3d at 1323-24. In this case, the
agency officials involved in the decision to suspend the appellant are N.N. and
8
The appellant argues on review that the allegations underlying the January 20, 2010
Letter of Warning and Instruction are also “ridiculous,” and he asserts that the agency
had no evidence to support the “harassment charge.” PFR File, Tab 1 at 7-10. The
sufficiency of the agency evidence to support the appellant’s prior discipline is
immaterial to this appeal.
12
H.S.; H.S. was selected to be the deciding official because of J.T.’s involvement
in the November 2009 incidents. ID at 10; see IAF, Tab 23 at 9.
¶24 Addressing this factor, administrative judge found that N.N. did not know
about the disclosures when she initiated the disciplinary action in
November 2009, and that, “even if she had delayed discipline for the
November 2009 behavior until the appellant revealed his whistleblowing activity,
it is unlikely that the administrative process would have allowed for issuance of a
proposal letter only eight business days after an alleged infraction.” 9 ID at 10.
¶25 We find, however, that one of the appellant’s protected disclosures arguably
implicated N.N., and thus, she may have had a motive to retaliate against the
appellant because of this disclosure. 10 As previously noted, in the appellant’s
October 7, 2009 email to OSI, he raised concerns about management rewriting his
reports to conceal negative information about LM Aero. IAF, Tab 1, Enclosure 1
at 29. As the appellant’s supervisor, N.N. may well have been involved in the
alleged wrongdoing, particularly in view of the following statement in the last
paragraph of that email: “I expect that my supervisor will rewrite another one of
my reports.” Id. Nevertheless, even if this disclosure implicated N.N. in the
alleged wrongdoing and thereby provided her with a motive to retaliate against
the appellant, considering the strength of the agency’s evidence, it appears, on
balance, that N.N.’s primary motive for proposing the appellant’s 14-day
suspension was her concern over his disrespectful and rude conduct rather than
any animus or ill will. Accordingly, we find that any evidence of motive to
9
The administrative judge apparently intended to say “eight business days after N.N.
learned of the appellant’s disclosures to OSI” rather than “eight business days after an
alleged infraction.” ID at 10.
10
For purposes of our analysis, we are assuming that N.N. initiated the proposed
suspension immediately after she learned of the appellant’s disclosure on February 3,
2010, and that the administrative process allowed for issuance of the notice of proposed
suspension by February 16, 2010.
13
retaliate on the part of the relevant agency officials does not outweigh the
strength of the evidence in support of the agency’s suspension decision.
Evidence that the agency takes similar actions against similarly-situated,
nonwhistleblower employees
¶26 Addressing the third Carr factor, the administrative judge noted that both
the appellant and the agency state that there are no similarly-situated employees.
ID at 10. Because there is no evidence that a similarly-situated employee
received a lesser penalty for the same misconduct, the third Carr factor is not a
significant factor for the Board’s analysis in the instant appeal.
¶27 Weighing the three Carr factors against one another, and considering the
record evidence as a whole, we agree with the administrative judge that the
agency established by clear and convincing evidence that it would have
suspended the appellant for 14 days even in the absence of his protected
disclosures. ID at 11. Although N.N. arguably had a motive to retaliate, the
agency had a strong basis to suspend the appellant for 14 days because of his rude
and disrespectful conduct.
The appellant’s adjudicatory bias claim is unavailing.
¶28 The appellant also raises a claim of adjudicatory bias on review, alleging
that the administrative judge was biased and “abdicated his responsibility as a
[j]udge.” PFR File, Tab 1 at 1. In making a claim of bias or prejudice against an
administrative judge, 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 (1980). Further, an administrative judge’s
conduct during the course of a Board proceeding will warrant a new adjudication
only if the administrative judge’s 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’s bias claim does not
involve extrajudicial conduct and the appellant has failed to identify on review
14
any comment or action that reveals a deep-seated favoritism or antagonism
against him. His conclusory statement on review that the administrative judge is
biased is insufficient to overcome the presumption of honesty and integrity
afforded the administrative judge.
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 the United States Court of Appeals for the Federal Circuit to review this
final decision.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
15
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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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 a list of attorneys who have expressed
interest in providing 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.
