UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
MATTHEW A. MCCONNELL, DOCKET NUMBER Appellant, PH-0752-18-0113-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 23, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Poulos, Jr. , Hamilton, New Jersey, for the appellant.
Christopher Hawthorne , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which sustained his removal. On petition for review, the appellant asserts that the administrative judge erroneously interpreted the evidence, statutes, and regulations in sustaining the agency’s leave-related charges. Petition for Review (PFR) File, Tab 1 at 5-8. He also claims that the administrative judge did not 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
properly address his claim of harmful error and failed to consider certain mitigating factors relating to the penalty. Id. at 8-10. Generally, we grant petitions such as this one only in the following circumstances: 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 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 appellant 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 to address the administrative judge’s analysis of the appellant’s allegations of harmful error and retaliation for equal employment opportunity (EEO) activity, we AFFIRM the initial decision. The appellant asserts that the administrative judge failed to “analyze the mandate of [Air Force Instruction (AFI)] 31-115 . . . when she determined that a [Command-Directed Inquiry (CDI)] was not mandated.” PFR File, Tab 1 at 8. The appellant contends that the administrative judge erroneously concluded that the agency was not required to conduct a CDI to properly investigate his alleged misconduct and that she misinterpreted the CDI Guide as “the regulation rather than addressing AFI 31-115 which mandates that misconduct issues will be (emphasis added) handled via a CDI investigation.” Id. Although the appellant raised this argument below, Initial Appeal File (IAF), Tab 16 at 22, the administrative judge did not address it in the initial decision, IAF, Tab 18 at 13-14. Therefore, we address it here. See Spithaler v. 3
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). The Board will not sustain an agency’s decision if the appellant “shows harmful error in the application of the agency’s procedures in arriving at such decision.” 5 U.S.C. § 7701(c)(2)(A). The Board may not assume that an employee has been harmed by a procedural error; rather, the appellant must prove harm. Defense Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶ 13 (2015). A procedural error is harmful when it 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.; see 5 C.F.R. § 1201.4(r). AFI 31-115, entitled “Security Forces Investigations Program,” generally appears to address the conduct of criminal investigations, which are not at issue in this appeal. IAF, Tab 16 at 117, 121-23. Nevertheless, AFI 31-115 ¶ 2.1.5, which covers internal Security Forces investigations, provides that “[d]iscipline and general misconduct issues will be handled via a Commander-Directed Inquiry (CDI) assigned by the DFC [Defense Force Commander] to a unit Senior Noncommissioned Officer (SNCO) or Officer.” Id. at 123. It is unclear whether this provision applied to all discipline and general misconduct issues involving internal Security Forces investigations, or only to those involving potential criminal conduct. Nevertheless, even assuming that AFI 31-115 ¶ 2.1.5 applied in this case, the appellant has not shown by preponderant evidence that any failure to conduct a CDI likely caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of such error. See 5 C.F.R. § 1201.56(b)(2) (requiring appellants to prove affirmative defenses by preponderant evidence). Although the appellant asserted that a fair, thorough, and objective CDI before initiating the removal action would likely have caused a reasonable deciding official to reach a different conclusion, IAF, Tab 16 at 22, he 4
provided no evidence in support of this statement. Mere speculation as to what might have happened if certain procedures had been followed does not establish harm. Defense Intelligence Agency, 122 M.S.P.R. 444, ¶ 15. Thus, we find that the appellant has not shown harmful error in this case. 2
NOTICE OF APPEAL RIGHTS 3 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 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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
MATTHEW A. MCCONNELL, DOCKET NUMBER Appellant, PH-0752-18-0113-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 23, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Poulos, Jr. , Hamilton, New Jersey, for the appellant.
Christopher Hawthorne , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which sustained his removal. On petition for review, the appellant asserts that the administrative judge erroneously interpreted the evidence, statutes, and regulations in sustaining the agency’s leave-related charges. Petition for Review (PFR) File, Tab 1 at 5-8. He also claims that the administrative judge did not 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
properly address his claim of harmful error and failed to consider certain mitigating factors relating to the penalty. Id. at 8-10. Generally, we grant petitions such as this one only in the following circumstances: 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 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 appellant 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 to address the administrative judge’s analysis of the appellant’s allegations of harmful error and retaliation for equal employment opportunity (EEO) activity, we AFFIRM the initial decision. The appellant asserts that the administrative judge failed to “analyze the mandate of [Air Force Instruction (AFI)] 31-115 . . . when she determined that a [Command-Directed Inquiry (CDI)] was not mandated.” PFR File, Tab 1 at 8. The appellant contends that the administrative judge erroneously concluded that the agency was not required to conduct a CDI to properly investigate his alleged misconduct and that she misinterpreted the CDI Guide as “the regulation rather than addressing AFI 31-115 which mandates that misconduct issues will be (emphasis added) handled via a CDI investigation.” Id. Although the appellant raised this argument below, Initial Appeal File (IAF), Tab 16 at 22, the administrative judge did not address it in the initial decision, IAF, Tab 18 at 13-14. Therefore, we address it here. See Spithaler v. 3
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). The Board will not sustain an agency’s decision if the appellant “shows harmful error in the application of the agency’s procedures in arriving at such decision.” 5 U.S.C. § 7701(c)(2)(A). The Board may not assume that an employee has been harmed by a procedural error; rather, the appellant must prove harm. Defense Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶ 13 (2015). A procedural error is harmful when it 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.; see 5 C.F.R. § 1201.4(r). AFI 31-115, entitled “Security Forces Investigations Program,” generally appears to address the conduct of criminal investigations, which are not at issue in this appeal. IAF, Tab 16 at 117, 121-23. Nevertheless, AFI 31-115 ¶ 2.1.5, which covers internal Security Forces investigations, provides that “[d]iscipline and general misconduct issues will be handled via a Commander-Directed Inquiry (CDI) assigned by the DFC [Defense Force Commander] to a unit Senior Noncommissioned Officer (SNCO) or Officer.” Id. at 123. It is unclear whether this provision applied to all discipline and general misconduct issues involving internal Security Forces investigations, or only to those involving potential criminal conduct. Nevertheless, even assuming that AFI 31-115 ¶ 2.1.5 applied in this case, the appellant has not shown by preponderant evidence that any failure to conduct a CDI likely caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of such error. See 5 C.F.R. § 1201.56(b)(2) (requiring appellants to prove affirmative defenses by preponderant evidence). Although the appellant asserted that a fair, thorough, and objective CDI before initiating the removal action would likely have caused a reasonable deciding official to reach a different conclusion, IAF, Tab 16 at 22, he 4
provided no evidence in support of this statement. Mere speculation as to what might have happened if certain procedures had been followed does not establish harm. Defense Intelligence Agency, 122 M.S.P.R. 444, ¶ 15. Thus, we find that the appellant has not shown harmful error in this case. 2
NOTICE OF APPEAL RIGHTS 3 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 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. 2 In analyzing the appellant’s claim of retaliation for Title VII EEO activity, the administrative judge applied the standard set forth in Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). ID at 14-16. However, claims of retaliation for engaging in Title VII EEO activity are analyzed under the same framework used for Title VII discrimination claims. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 30. Nevertheless, because the appellant does not challenge the administrative judge’s analysis of this affirmative defense and because it is not obvious that application of the correct analytical framework would yield a different result, we decline to readjudicate this issue. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis to reverse an initial decision); 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed petition or cross petition for review.”). 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
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: 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 6
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 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: 7
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 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).
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
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. 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.