UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER E. NAYLOR, DOCKET NUMBER Appellant, DE-0752-20-0305-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 18, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher E. Naylor , Sahuarita, Arizona, pro se.
Thomas J. Burhenn , Esquire, Davis-Monthan Air Force Base, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action for failure to maintain a condition of employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
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 administrative 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. 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, 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge affirmed the agency’s removal of this Fork Lift Operator for failure to maintain a condition of employment after an offense of driving under the influence led to a 1-year suspension of his driving privileges at military installations. Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 2-12. The administrative judge found that the agency proved by preponderant evidence that driving privileges were a condition of employment and the appellant failed to maintain that condition. ID at 5-8. The appellant argued before the administrative judge that he could request reinstatement or partial reinstatement of his driving privileges at any time during the 1-year suspension notwithstanding his removal and that he would be submitting such a request to the agency. IAF, Tab 15 at 3. The administrative judge found that the appellant did not request partial or restricted installation driving privileges during his employment with the agency, and he provided no further update or subsequent determination following his alleged submission to the agency. ID at 8. The administrative judge therefore found that the appellant had a reasonable 3
opportunity to refute any facts or circumstances upon which the suspension was based, request restoration of driving privileges or restricted privileges, and request a hearing. Id. On review, the appellant argues that he learned via the initial decision that his original request for reinstated driving privileges, submitted after the agency removed him, was not received by the agency. Petition for Review (PFR) File, Tab 1 at 3-4. He asserts that there is no time limit to request reinstatement of his privileges, which was the basis for his removal. Id. at 4. He therefore requests that a final decision on his appeal be delayed until after he receives an agency decision on his request to reinstate his driving privileges. Id. at 5. We are unpersuaded. The Board has held that, when an agency initiates a removal process long before an appellant is scheduled to have his driving privileges reinstated, the Board need not consider, at the time of adjudication, the time remaining before reinstatement in affirming an agency’s removal action. Benally v. Department of the Interior, 71 M.S.P.R. 537, 540 (1996). The agency here proposed the appellant’s removal nearly a year before his driving privileges were due to be restored. IAF, Tab 4 at 8, 33. Thus, we find immaterial the time remaining until the appellant’s driving privileges are restored or whether his request for reinstated driving privileges, submitted after the agency effected his removal, could be successful. See Daigle v. Department of the Air Force , 142 F. App’x 446, 449 (Fed. Cir. 2005) (holding that the fact that the Board’s final decision was issued long after the due date for restoration of the appellant’s driving privileges did not require reversal of the Board’s decision affirming his removal for failure to have a required driver’s license); 2 Benally, 71 M.S.P.R. at 540. We therefore decline to delay our decision before the agency rules on his request to
2 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. See Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 4
reinstate his driving privileges, and we find no basis to disturb the initial decision.
NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER E. NAYLOR, DOCKET NUMBER Appellant, DE-0752-20-0305-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 18, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher E. Naylor , Sahuarita, Arizona, pro se.
Thomas J. Burhenn , Esquire, Davis-Monthan Air Force Base, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action for failure to maintain a condition of employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact;
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
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 administrative 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. 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, 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge affirmed the agency’s removal of this Fork Lift Operator for failure to maintain a condition of employment after an offense of driving under the influence led to a 1-year suspension of his driving privileges at military installations. Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 2-12. The administrative judge found that the agency proved by preponderant evidence that driving privileges were a condition of employment and the appellant failed to maintain that condition. ID at 5-8. The appellant argued before the administrative judge that he could request reinstatement or partial reinstatement of his driving privileges at any time during the 1-year suspension notwithstanding his removal and that he would be submitting such a request to the agency. IAF, Tab 15 at 3. The administrative judge found that the appellant did not request partial or restricted installation driving privileges during his employment with the agency, and he provided no further update or subsequent determination following his alleged submission to the agency. ID at 8. The administrative judge therefore found that the appellant had a reasonable 3
opportunity to refute any facts or circumstances upon which the suspension was based, request restoration of driving privileges or restricted privileges, and request a hearing. Id. On review, the appellant argues that he learned via the initial decision that his original request for reinstated driving privileges, submitted after the agency removed him, was not received by the agency. Petition for Review (PFR) File, Tab 1 at 3-4. He asserts that there is no time limit to request reinstatement of his privileges, which was the basis for his removal. Id. at 4. He therefore requests that a final decision on his appeal be delayed until after he receives an agency decision on his request to reinstate his driving privileges. Id. at 5. We are unpersuaded. The Board has held that, when an agency initiates a removal process long before an appellant is scheduled to have his driving privileges reinstated, the Board need not consider, at the time of adjudication, the time remaining before reinstatement in affirming an agency’s removal action. Benally v. Department of the Interior, 71 M.S.P.R. 537, 540 (1996). The agency here proposed the appellant’s removal nearly a year before his driving privileges were due to be restored. IAF, Tab 4 at 8, 33. Thus, we find immaterial the time remaining until the appellant’s driving privileges are restored or whether his request for reinstated driving privileges, submitted after the agency effected his removal, could be successful. See Daigle v. Department of the Air Force , 142 F. App’x 446, 449 (Fed. Cir. 2005) (holding that the fact that the Board’s final decision was issued long after the due date for restoration of the appellant’s driving privileges did not require reversal of the Board’s decision affirming his removal for failure to have a required driver’s license); 2 Benally, 71 M.S.P.R. at 540. We therefore decline to delay our decision before the agency rules on his request to
2 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. See Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 4
reinstate his driving privileges, and we find no basis to disturb the initial decision.
NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. 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, 10, 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. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any 6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7
disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. 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, 10, 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. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.