UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES D. BLACKWELL,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DA-0752-19-0054-I-1

DATE: June 12, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kristin Richards, Esquire, Oklahoma City, Oklahoma, for the appellant.

Richard R. Rice, Esquire, and Orion A. Strand, Esquire, Midwest City, 

Oklahoma, for the appellant.

Michele S. McNaughton, Esquire, and William Vernon, Esquire, Tinker Air

Force Base, Oklahoma, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed his removal. Generally, we grant petitions such as this one only in the

1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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 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 to

merge the agency’s charges of unauthorized absence and failure to request leave

according to established procedures, we AFFIRM the initial decision.

On petition for review, the appellant argues that the administrative judge

erred in sustaining the charge of refusal to submit to a urinalysis for the following

reasons: (1) the “shy bladder” collection procedures applied to him regardless of

whether he told personnel at the drug-testing facility that he had a shy bladder;

(2) he was unable to provide a urine specimen due to the medical conditions of

himself and his mother; and (3) he was not required to stay at the facility for

3 hours. Petition for Review (PFR) File, Tab 1 at 9-16.

For the reasons provided in the initial decision, we agree with the

administrative judge’s finding that the appellant’s action of leaving the

drug-testing facility without providing a urine specimen and without staying the

requisite 3 hours constituted a refusal to submit to a urinalysis. Initial Appeal

File (IAF), Tab 23, Initial Decision (ID) at 4-13. We further agree with the

administrative judge’s finding that the appellant did not stay at the facility for the

3-hour period that would have qualified him to claim shy-bladder status. ID

at 20. Thus, we discern no prejudice to the appellant’s substantive rights as a

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result of any error in the administrative judge’s interpretation of the agency’s

drug-testing policy as requiring an employee to specifically invoke the shy

bladder collection procedures. ID at 12-13, 20; 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 for reversal of an

initial decision). Although the agency’s drug-testing policy contemplates that

there may be a medical reason for an employee’s inability to provide a urine

specimen, we interpret the policy as referring to an employee’s own medical

condition. PFR File, Tab 1 at 12-14; IAF, Tab 15 at 57.

In addition, the appellant argues on review that his absences on the dates

specified in the remaining leave-related charges were covered under the Family

and Medical Leave Act of 1993 (FMLA). 2 PFR File, Tab 1 at 17-20.

Specifically, he claims that the agency approved his August 13, 2018 requests for

leave from August 2 to 31, 2018, and retroactively designated such leave as

FMLA leave under 29 C.F.R. § 825.301(d). PFR File, Tab 1 at 19; IAF, Tab 15

at 12-13. We discern no reason to disturb the initial decision based on such

arguments. The appellant has failed to point to any record evidence suggesting

that the agency approved his leave requests. Further, the appellant’s reliance on

29 C.F.R. § 825.301(d) is unavailing. See Burge v. Department of the Air Force,

82 M.S.P.R. 75, ¶ 27 (1999) (distinguishing 29 C.F.R. § 825.301 as applying to

2 The appellant has resubmitted FMLA documentation and leave requests that already

are a part of the record before the administrative judge. Compare PFR File, Tab 1

at 23-28, with IAF, Tab 15 at 9-13. For the first time on review, the appellant has

provided a copy of his mother’s death certificate. PFR File, Tab 1 at 30. The appellant

has failed to explain why, despite his due diligence, he was unable to submit such

evidence prior to the close of the record before the administrative judge. See Avansino

v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that the Board generally

will not consider evidence submitted for the first time with the petition for review

absent a showing that it was unavailable before the record was closed despite the

party’s due diligence). In any event, we find that it is immaterial to the outcome of this

appeal. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)

(observing that the Board generally will not grant a petition for review based on new

evidence absent a showing that it is of sufficient weight to warrant an outcome different

from that of the initial decision).

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the Postal Service). Instead, under 5 C.F.R. § 630.1203(b), “An employee may

not retroactively invoke his or her entitlement to family and medical leave.”

See Burge, 82 M.S.P.R. 75, ¶ 27 (applying 5 C.F.R. § 630.1203 to the Air Force).

However, we modify the initial decision to merge the charges of

unauthorized absence and failure to request leave according to established

procedures because they concern the same misconduct and elements of proof.

IAF, Tab 4 at 40; see, e.g., McNab v. Department of the Army, 121 M.S.P.R. 661,

¶ 4 n.3 (2014). Merging these charges does not affect our decision to affirm the

penalty. See, e.g., Shiflett v. Department of Justice, 98 M.S.P.R. 289, ¶ 12,

review dismissed, 139 F. App’x 261 (Fed. Cir. 2005).

Accordingly, we affirm the agency’s removal action.

NOTICE OF APPEAL RIGHTS3

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.

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.

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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

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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: 

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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. 

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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.

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