UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DARRYL M. LEWIS,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-1221-15-0676-B-1

DATE: June 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Darryl M. Lewis, APO/AE, pro se.

Alyssa S. Adams and Ryan L. Wischkaemper, Washington, D.C., for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision, 

which denied his request for corrective action in his individual right of action 

(IRA) appeal. Generally, we grant petitions such as this one only in the 

following circumstances: the initial decision contains erroneous findings of 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the remand 

initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b).

BACKGROUND

¶2 The detailed background for this appeal is set forth in Lewis v. Department 

of Defense, 123 M.S.P.R. 255, ¶¶ 2-6 (2016). Briefly stated, the appellant was a 

Foreign Affairs Specialist, GS-0130-13, at the Department of Defense, Defense 

Prisoner of War/Missing Personnel Office (DPMO) in Washington, D.C., prior to 

his January 2012 removal. Lewis, 123 M.S.P.R. 255, ¶¶ 2, 7 n.2. During 

September 2011, he asked to take 1 year of leave without pay (LWOP) to pursue a 

Master of Law degree in Germany while he accompanied his wife, also a Federal 

employee, to her new duty station there. Id., ¶ 2. He additionally requested 

permission to telecommute from Germany. Id. The agency denied his requests. 

Id. He thus informed the agency that he was moving to Germany, and he stopped 

reporting to work on October 24, 2011. Id. The agency ordered him to report for 

work and, after he failed to do so, removed him on charges of absence without 

leave (AWOL) (30 specifications) and failure to follow an order. Id.
3

¶3 The appellant did not file an adverse action appeal to the Board. Id., 

¶ 2 n.1. Instead, he filed a whistleblower complaint with the Office of Special 

Counsel (OSC). Id., ¶ 3. OSC closed its investigation, and the appellant filed 

this appeal. Id.; Initial Appeal File (IAF), Tab 1. The administrative judge 

issued an initial decision that dismissed the appeal for lack of Board jurisdiction. 

Lewis, 123 M.S.P.R. 255, ¶ 6. On review, the Board found that the appellant 

exhausted his administrative remedies and nonfrivolously alleged having made 

two protected disclosures. Id., ¶¶ 10-12. He allegedly disclosed that M.P., a 

Human Resources employee without an adequate security clearance, was in a 

Sensitive Compartmented Information Facility (SCIF) unescorted in violation of 

security regulations and that J.B., another employee, falsely represented himself 

as a security officer to obtain certain records. Id., ¶¶ 5, 11-12. The Board 

concluded that it had jurisdiction over the appeal and remanded the case to the 

Washington Regional Office, where the administrative judge set a hearing date. 

Id., ¶ 14; Remand File (RF), Tab 8.

¶4 At the prehearing conference, the administrative judge limited consideration 

to the following issues: 

(a) Whether the appellant could prove by preponderant evidence that 

he made protected disclosures when he informed the agency that 

M.P. was present in a SCIF without authorization and that J.B. 

falsely represented himself as a security officer; that he engaged 

in activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and (C)

when he initiated an Inspector General complaint and a prior

Board appeal;

2

and that his alleged protected activity was a 

 

2

In addition to his whistleblower claim, the appellant alleged that he was being 

retaliated against for engaging in protected activity when he initiated an Inspector 

General complaint and filed a prior Board appeal. IAF, Tabs 4-5. The administrative 

judge took official notice of Board records indicating that he had filed an IRA appeal in 

2010, Lewis v. Department of Defense, MSPB Docket No. DC-1221-10-0363-W-1. RF, 

Tab 25, Remand Initial Decision (RID) at 6 n.5. The administrative judge found that 

the appellant failed to meet his burden of proof on both of the claims. RID at 5-6. The 

appellant does not challenge these findings on review, and we discern no reason to 

disturb them.
4

motivating factor in the agency’s decisions to remove him, deny 

him telework, and deny his request for LWOP.

(b) Whether the agency could prove by clear and convincing 

evidence that it would have taken the same actions 

notwithstanding the appellant’s protected whistleblower activity.

RF, Tab 18 at 2. The appellant objected to this summary of the issues, but those 

objections simply added detail to the administrative judge’s articulation of the 

issues. RF, Tab 19 at 5-6.

¶5 The appellant also objected to appearing at a video teleconference (VTC)

hearing from a U.S. military installation in Germany, and he declined the 

agency’s offer to cover his travel expenses for attending a hearing in Arlington, 

Virginia. RF, Tab 18 at 1, Tab 19 at 7. When he failed to appear for his 

scheduled hearing on June 15, 2016, the administrative judge cancelled the 

hearing and issued the decision based on the written record, which closed on 

June 23, 2016, after the parties filed final briefs. RF, Tab 20.

¶6 The administrative judge found that the appellant met his burden of proof 

on protected disclosures and contributing factor. RF, Tab 25, Remand Initial 

Decision (RID) at 5. The administrative judge based her conclusion regarding the 

protected disclosures on the agency’s concession that the appellant made the 

disclosures he claimed, that each disclosure asserted a violation of a regulation or 

regulations pertaining to the security of classified or sensitive information, and 

that the record did not reflect that the appellant had any specialized experience 

that would inform him of the precise manner in which such regulations are to be 

applied. Id.; RF, Tab 22 at 5. She based her conclusion regarding contributing 

factor on the fact that the disclosures were made less than 2 years before the 

agency decisions the appellant contested. RID at 5. The administrative judge 

then found that the agency showed by clear and convincing evidence that it would 

have denied his requests for LWOP and to telework from Germany and removed 

him in the absence of any disclosure. RID at 7-12. The administrative judge thus 
5

denied the appellant’s request for corrective action. RID at 12. The appellant has 

filed a petition for review. Remand Petition for Review (RPFR) File, Tab 1. 

ANALYSIS

The appellant has not established that the remand initial decision contains any 

material factual errors or omissions.

¶7 On review, the appellant objects to the administrative judge’s somewhat 

abbreviated characterization of his two protected disclosures as lacking 

significant details. RPFR File, Tab 1 at 7-8. We find that, even if the 

administrative judge erred, such an error would not change the outcome of the 

appeal. The agency stipulated that the appellant made the disclosures he claims 

to have made, and the administrative judge found that they were protected. RID

at 5; RF, Tab 17 at 4-5, Tab 22 at 4-5. Having considered the additional facts 

cited in the appellant’s petition for review, we find that they are not of sufficient 

weight to warrant disturbing the administrative judge’s explained findings 

regarding the strength of any retaliatory motive. RID at 11.

¶8 The appellant also asserts that the administrative judge erred when she 

stated in the Background and Procedural History section of the remand initial 

decision that he had experienced issues with his security clearance early in 20 06. 

RPFR File, Tab 1 at 13-14; RID at 2. He argues that such information was 

fabricated and intended to discredit a witness whose testimony he had proffered. 

RPFR File, Tab 1 at 8-9, 13. The record shows that, in 2006, the agency required 

the appellant to provide additional information about foreign nationals in his 

extended family before he could receive access to the SCIF. RF, Tab 17 at 4-5, 

26-29, Tab 23 at 118-19. J.B. assisted the appellant with that process in 

performing his security-related duties. Id. The administrative judge appears to 

have included this information in the remand initial decision solely as background 

to discuss the appellant’s interactions with J.B. Even if we were to modify the 

findings of fact to comport with the appellant’s preferences, the outcome of the 
6

appeal would not change. Therefore, we find that the appellant’s arguments are 

unavailing.

The administrative judge correctly concluded that the agency established by clear 

and convincing evidence that it would have taken the same personnel actions in 

the absence of the appellant’s disclosures.

¶9 Neither party has contested the administrative judge’s finding that the 

appellant made protected disclosures that were a contributing factor in the 

contested agency actions, nor do we find any reason to disturb those findings. 

RID at 5. When the administrative judge found that the appellant had met his 

burden of proof, the burden shifted to the agency to show by clear and convincing 

evidence that it would have taken the same personnel actions in the absence of the 

appellant’s whistleblowing. Id.; see Aquino v. Department of Homeland Security, 

121 M.S.P.R. 35, ¶ 10 (2014). In determining whether the agency met its burden, 

the Board considers all of the relevant factors, including the following: (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 employees who are not whistleblowers but who are otherwise 

similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 

(Fed. Cir. 1999); Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11. 

Rather than view the factors as discrete elements, the Board weighs the factors 

together to determine whether the evidence is clear and convincing as a whole. 

Karnes v. Department of Justice, 2023 MSPB 12, ¶ 24. In doing so, the Board

must consider all the pertinent evidence in the record, and must not exclude or 

ignore countervailing evidence by only looking at the evidence that supports the 

agency’s position. Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. 

Cir. 2012); Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015).

¶10 As to the first Carr factor, the administrative judge found that the evidence 

supporting the agency’s decisions to deny the appellant’s requests for LWOP or 
7

to telework from Germany was compelling. RID at 8-10. The administrative 

judge further found that the agency proffered clear, convincing, and unrefuted

evidence that it removed the appellant because his relocation to Germany 

precluded his ability to report to work, he failed to report to work after being 

ordered to do so, and he remained AWOL for 30 days. RID at 11. The appellant 

argues that the agency’s standard procedures require the granting of a preference 

in hiring, or LWOP for up to 1 year, when the spouse of an agency employee is 

transferred overseas. RPFR File, Tab 1 at 12-13. However, he produced no proof 

of such a policy regarding hiring preferences. The agency, in contrast, showed 

that the granting of LWOP in such circumstances was discretionary and, in the 

appellant’s case, it had determined that the cost and inconvenience of granting 

such leave exceeded any benefit to be gained by doing so. RF, Tab 17 at 24-25, 

Tab 22 at 16-18, 38-40; IAF, Tab 7 at 39. There is no evidence, therefore, that 

the agency contravened any of its policies pertaining to hiring preferences or the 

granting of LWOP for an employee whose spouse has been transferred overseas.

¶11 The appellant also raises on review an email message from E.F., who was 

Principal Director of the DPMO and the deciding official in the removal action. 

RPFR File, Tab 1 at 12; RF, Tab 22 at 15-23. The appellant argues that E.F. 

stated in the email that the agency denied the requested LWOP “because of [his] 

‘record.’” RPFR File, Tab 1 at 12. He asserts that E.F. was referring to his 

record as a whistleblower. Id. The appellant, however, did not provide any 

citation to assist us in locating the specific email message to which he refers. See

5 C.F.R. § 1201.114(b) (“A petition . . . for review . . . must be supported by . . . 

specific references to the record.”). Our review of the email correspondence 

pertaining to the appellant’s request, moreover, shows that the agency held in 

high regard the appellant’s work on matters pertaining to missing personnel on 

the Korean peninsula but concluded that its interests would not be served by 

granting his request to pursue legal studies in Germany. For example, E.F. stated 

in one email message that the appellant “works in the Korean War element and 
8

that will be getting busy if things go as we expect. He is doing good work and 

we need him to do his job.” RF, Tab 23 at 7. In a message to the appellant 

officially denying his request, the Chief of Staff to the Undersecretary of Defense 

(Policy) explained:

I have weighed carefully your request for leave without pay to 

pursue advanced studies in Germany. In light of the limited 

personnel available at DPMO and the fact that you are performing 

important and useful work I do not/not approve your request for 

leave without pay. 

Id., Tab 23 at 44. The email correspondence pertaining to the appellant’s request 

clearly shows that the agency considered his LWOP request but denied it for 

staffing reasons and not because of any disclosure that he had made . We agree 

with the agency that Carr factor 1 weighs in the agency’s favor.

¶12 Turning to the second Carr factor, we agree with the administrative judge 

that any motive to retaliate on the part of the agency officials who were involved 

in the decision was relatively weak. RID at 10. Our reviewing court has 

cautioned us against taking too narrow a view of the second Carr factor, stating, 

“[t]hose responsible for the agency’s performance overall may well be motivated 

to retaliate even if they are not directly implicated by the disclosures, and even if 

they do not know the whistleblower personally, as the criticism reflects on them 

in their capacities as managers and employees.” Whitmore, 680 F.3d at 1370. 

The court in Whitmore determined that, when a whistleblower makes highly 

critical accusations of an agency’s conduct that draws the attention of high-level

agency managers, the fact that an agency official is “outside that whistleblower’s 

chain of command, not directly involved in alleged retaliatory actions, and not 

personally named in the whistleblower’s disclosure is insufficient to remove the 

possibility of a retaliatory motive or retaliatory influence.” Id. at 1371. 

¶13 Here, the administrative judge found that neither person named in the 

appellant’s disclosures was involved in his removal. RID at 11-12. The 

administrative judge also found, and we agree, that the appellant’s disclosures 
9

were not the sort of highly critical accusations of agency misconduct that might 

draw the attention of high-level agency managers about which the court warned 

in Whitmore. RID at 10-12; see Robinson v. Department of Veterans Affairs, 

923 F.3d 1004, 1019 (Fed. Cir. 2019) (finding that the administrative judge erred 

by failing to consider whether the deciding official had a “professional retaliatory 

motive” against the appellant because his disclosures “implicated the capabilities, 

performance, and veracity of [agency] managers and employees, and implied that 

the [agency] deceived [a] Senate Committee”). As noted above, the appellant 

argues on review that the agency denied his request for LWOP “because of [his] 

‘record’” as a whistleblower. RPFR File, Tab 1 at 12. Although we have been 

unable to identify the email in which the agency is alleged to have made this 

remark, assuming that it exists and assuming that it constitutes evidence of 

retaliatory motive, it is offset to some degree by evidence that the agency held the 

appellant’s work in high regard. We find, therefore, that the administrative judge 

correctly concluded that the evidence of retaliatory motive was weak, RID at 10, 

and that Carr factor 2 slightly favors the appellant. 

¶14 Regarding Carr factor 3, the administrative judge found nothing in the 

record to indicate that employees similarly situated to the appellant had been 

treated differently when they requested LWOP or telework, or that there were 

similarly situated employees who were AWOL for an extended period of time and 

avoided removal. RID at 11-12. The appellant argues on review that the agency 

did not meet its burden of proof because it failed during discovery to provide 

comparator evidence regarding other employees who were in an AWOL status. 

RPFR File, Tab 1 at 6, 12. Nevertheless, the agency responded to the appellant’s 

discovery request, explaining that it had been unable to identify any comparators. 

RF, Tab 23 at 147-48. According to the agency, no employee who was 

transferred to an overseas billet was similarly situated to the appellant, i.e., 

accompanying a spouse after a permanent change of station, and no employee 

transferring overseas was removed for AWOL or failure to obey an order. Id. As 
10

we explain infra, ¶ 17, however, the appellant failed to file a timely motion to 

compel regarding the deficiencies he believes plague the agency’s discovery 

response. In any event, the agency’s failure to introduce comparator evidence 

cannot weigh in its favor. Smith v. General Services Administration, 930 F.3d 

1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 

1291, 1299 (Fed. Cir. 2018).

¶15 We agree with the administrative judge, however, that the strength of the 

agency’s evidence in support of its actions outweighs the slight evidence of 

retaliatory motive and the absence of comparator evidence. Accordingly, we 

find that the administrative judge properly concluded that the agency met its 

burden to prove by clear and convincing evidence that it would have taken the 

same actions in the absence of the appellant’s disclosures. 3

The administrative judge did not abuse her discretion when she declined to extend 

the discovery period.

¶16 The appellant argues that the administrative judge abused her discretion by 

failing to extend the deadline for discovery. RPFR File, Tab 1 at 5-6. The 

deadline for discovery was May 16, 2016. RF, Tab 8 at 2. On that day, the 

appellant filed a unilateral motion asking the administrative judge to suspend 

case processing for 2 weeks to allow him time to evaluate the agency’s discovery

responses. The appellant explained that he had received a partial response by 

email on May 6, 2016, but the agency stated it had mailed additional materials, 

which he had not yet received. RF, Tab 12. He further asserted that he was 

requesting the additional time “[i]n lieu of filing a Motion to Compel or for 

Sanctions.” Id.

¶17 On review, the appellant asserts that, after he filed the motion, the 

administrative judge’s clerk called and told him that he had to confer with the 

 

3 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal.
11

agency before filing such a motion. RPFR File, Tab 1 at 5-6. The appellant 

refiled the motion on May 17, 2016, explaining that he had twice contacted the 

agency before filing the initial motion but had not received any response. RF, 

Tab 13. The appellant repeated that he was filing the motion to extend discovery 

instead of filing a motion to compel or for sanctions. Id. The agency replied, 

stating that the appellant had received its discovery response by email on May 6, 

2016, and that two compact discs containing the documents he sought had been 

mailed on May 13, 2016, and were due to be delivered on May 18, 2016.

4

 RF, 

Tab 14. The administrative judge denied the appellant’s motion. RF, Tab 15. 

The appellant asserts that he received the compact discs on May 18, 2016, which 

included hundreds of emails and other documents that were largely unresponsive

or significantly redacted. RPFR File, Tab 1 at 6. He asserts that the volume and 

immateriality of the agency’s response, as well as the administrative judge’s 

decision not to extend discovery, prejudiced his appeal. Id. In particular, the 

appellant states that the agency failed to provide “relevant comparator evidence,” 

specifically regarding whether other purportedly similarly situated employees 

were fired instead of given LWOP. Id.

¶18 An administrative judge has wide discretion under the Board’s rules on 

discovery matters, and the Board will not reverse her rulings absent an abuse of 

discretion. Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 

(1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). Under the particular 

circumstances of this case, in which the appellant provided notice to the 

administrative judge on the date discovery was to close that he was still waiting 

to receive part of the agency’s discovery response and was requesting an 

extension of the discovery deadline in lieu of filing a motion to compel, it is 

 

4

The agency also said that it had not received a full response from the appellant for its 

own discovery requests and that it might file a motion to compel. RF, Tab 14 at 4. 

When she denied the appellant’s motion, the administrative judge thus reminded the 

parties that the time for filing motions to compel had passed. RF, Tab 15.
12

arguable that the administrative judge should have granted the appellant at least 

a limited extension of time to determine whether a motion to compel would be 

necessary. This would have allowed the appellant an opportunity to review the 

discovery responses in their entirety and to confer with the agency, if necessary, 

before determining whether he wished to file a motion to compel. Further, it 

would have provided the parties a chance to complete discovery with a minimum 

of Board intervention, as proscribed in Board regulations. 5 C.F.R. § 1201.71. 

Moreover, we note that while the administrative judge informed the parties that 

discovery was to close on May 16, 2016, her order did not state that the deadline 

applied to motions to compel; despite this, she stated in her May 17, 2016 order 

denying the appellant’s motion for an extension that the time for filing motions 

to compel had passed. RF, Tab 8. In this regard, it is apparent from the 

agency’s response to the appellant’s motion for an extension that the agency 

believed the discovery deadline did not apply to motions to compel, RF, Tab 14, 

and we find this interpretation of the order to have been a reasonable one.

¶19 Nonetheless, even assuming that the administrative judge abused her 

discretion by denying the appellant’s motion for an extension of the discovery 

deadline and ruling that the discovery deadline applied to motions to compel, we 

find that the appellant has not shown that he was harmed by her rulings. The 

only specific effect the appellant points to of the failure to extend discovery was

on his ability to identify comparator employees. RPFR File, Tab 1 at 5-6. In 

fact, however, the agency’s answers to the appellant’s interrogatories were 

responsive on that issue, and indicated clearly that no similarly situated 

employees existed. RF, Tab 23 at 147-48. The appellant does not even argue 

that the portion of the discovery response he received after the deadline 

contained any information to the contrary, nor does he provide any evidence or 

argument indicating that the agency’s interrogatory response on this issue was 

inaccurate or untruthful. Accordingly, we find that the appellant has failed to 

show that he was prejudiced by the administrative judge’s decision not to extend 
13

the discovery deadline or her determination that the deadline applied to motions 

to compel. See Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 14 (2008)

(finding that even if the administrative judge abused his discretion with respect 

to his discovery rulings below, the appellant must show how that error affected 

the result reached in his appeal), aff’d per curiam, 324 F. App’x 883 (Fed. Cir. 

2009).

The administrative judge did not abuse her discretion when she denied two of the 

appellant’s witnesses.

¶20 The appellant further asserts that the administrative judge abused her 

discretion when she denied some of his witnesses. RPFR File, Tab 1 at 6-9. The 

appellant requested the Chief of Security at DPMO Arlington, Virginia, to testify 

that he had been informed of M.P.’s unescorted presence in the SCIF and that he

had received orders from DPMO management to suspend the appellant’s security 

clearance. RF, Tab 16 at 5. The appellant also requested a DPMO Security 

Specialist to testify that she had seen M.P. unescorted and unobserved in the 

SCIF before she had been given the proper clearance. Id. at 6. The 

administrative judge ruled against admitting these witnesses, explaining that their 

testimony was duplicative and would not add evidence that is probative of any 

issue in the appeal. RF, Tab 18 at 3-4.

¶21 The appellant argues on review that these witnesses could have accurately 

explained the nature of the problem caused by M.P.’s presence in the SCIF, thus

preventing the administrative judge from making erroneous findings of fact. 

RPFR File, Tab 1 at 7-9. He also claims that they could have testified regarding 

the nature of J.B.’s security-related duties. Id. The appellant additionally asserts

that the Chief of Security could have testified regarding agency officials’ efforts 

to suspend his security clearance based on the conduct underlying his removal. 

Here, the appellant specifically argues that the agency failed to produce a letter to 

the Chief of Security regarding suspending his clearance, and he asserts that the 
14

Chief of Security would have testified to the existence and content of that letter. 5

Id. at 8, 11. The Chief’s testimony, he explains, would have shown the agency’s 

retaliatory animus. Id.

¶22 An administrative judge has wide discretion under 5 C.F.R. 

§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their 

testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal 

Service, 27 M.S.P.R. 322, 325 (1985). The administrative judge explained that 

she was excluding these witnesses because the appellant’s offer of proof did not 

indicate that their testimony would add nonduplicative evidence that was 

probative of any issue before her. RF, Tab 18 at 3-4. She then extended to the 

appellant an additional 2-day period during which he could provide an additional 

offer of proof regarding the testimony of the witnesses. Id. The appellant 

declined to do so, stating that it would have been burdensome for him to obtain 

sworn statements from the witnesses on such short notice. RPFR File, Tab 1 at 8.

Although the appellant’s location in Germany would have complicated the matter 

of obtaining witness statements on short notice, he also had the option to submit a 

more substantial offer of proof when he initially requested the witnesses. 

Accordingly, we find no abuse of discretion in the administrative judge’s ruling 

excluding some of the appellant’s proposed witnesses.

The administrative judge did not abuse her discretion when she declined to 

postpone the hearing. 

¶23 The appellant asserts that the administrative judge abused her discretion 

when she declined to postpone the hearing in light of his concerns about holding 

it at a military installation in Germany, where he believed a terrorist attack was 

possible and where he felt he would receive hostile treatment. RPFR File, Tab 1 

 

5

The agency denied such a letter existed. RF, Tab 23 at 154. Additionally, the agency 

stated that it interviewed the Chief of Security, who said he had not received any such 

letter. RPFR File, Tab 3 at 13.
15

at 9-11; RF, Tab 19 at 7. The appellant asserts that he asked for the hearing to be 

moved to a more neutral environment owing to his security concerns and fear of 

bias and that the administrative judge denied his request. RPFR File, Tab 1 

at 10-11. The agency, however, offered to pay his travel expenses for attending 

the hearing in person at the Board’s Washington Regional Office. RF, Tab 18 

at 1. The appellant declined the offer. Id. The administrative judge has broad 

discretion to convene a hearing as appropriate and to regulate the course of the 

hearing. 5 C.F.R. § 1201.41(b)(6). We find no abuse of discretion in the 

administrative judge’s ruling denying the appellant’s request to postpone the 

hearing.

The administrative judge did not abuse her discretion when she cancelled the 

hearing.

¶24 The appellant also asserts that the administrative judge abused her 

discretion when she cancelled the hearing. RPFR File, Tab 1 at 11. The 

appellant explains that the prehearing conference instructions state that, if he 

failed to attend the hearing, the administrative judge would carry on without him. 

Id. Instead, he asserts, she cancelled the hearing when he did not attend. Id. The 

record shows that the administrative judge did precisely what she said she would 

do in her order scheduling the hearing: “If the appellant fails to appear without 

good cause, his appeal will be decided without a hearing.” RF, Tab 8 at 3. The 

appellant attended the prehearing conference on June 7, 2016, where in he agreed 

to attend a VTC hearing on June 15, 2016. RF, Tab 18 at 1. At the conference, 

the administrative judge informed the parties that the prehearing summary and 

order would become final on June 13, 2016. Id. at 4. The appellant filed no 

objection to the order. On June 15, 2016, two hours prior to the scheduled start 

of the hearing, he filed a motion to suspend processing of the appeal and 

requested that the administrative judge recuse herself. RF, Tab 19. He did not 

appear at the designated VTC location, and the administrative judge cancelled the 

hearing 30 minutes after it was scheduled to begin. RF, Tab 20. As stated above, 
16

an administrative judge has broad discretion to convene a hearing as appropriate

and to regulate the course of the hearing. 5 C.F.R. § 1201.41(b)(6); see 5 C.F.R. 

§ 1201.43(e) (“A judge may cancel a scheduled hearing, or suspend or terminate a 

hearing in progress, for contumacious conduct or conduct prejudicial to the 

administration of justice on the part of the appellant or the appellant’s 

representative.”). We find no abuse of discretion in the administrative judge’s 

decision to cancel the hearing under the circumstances.

The administrative judge did not abuse her discretion in her treatment of the 

appellant’s motion for summary judgment.

¶25 The appellant filed a motion for summary judgment after the hearing was 

cancelled because he believed that he could prove that the agency retaliated 

against him. RPFR File, Tab 1 at 11; RF, Tab 23. The administrative judge did 

not rule on the motion, and instead, she issued the remand initial decision slightly 

more than 3 months later. RF, Tab 25. On review, the appellant asserts that the 

administrative judge erred by not ruling on the motion. RPFR File, Tab 1 

at 11-13. The Board, however, lacks the authority to grant summary judgment. 

Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007) (citing Denney 

v. U.S. Postal Service, 66 M.S.P.R. 191, 193 n.1 (1995)). The administrative 

judge also did not ignore the appellant’s motion, and instead, treated it as a close 

of record submission made pursuant to the order closing the record. RID at 4; 

RF, Tab 20 at 2-3. We find no abuse of discretion in the administrative judge’s 

handling of the appellant’s motion for summary judgment.

The appellant did not establish administrative judge bias.

¶26 Throughout his petition for review, the appellant asserts that the 

administrative judge was biased against him and that she improperly denied his 

motion that she recuse herself for bias.6 RPFR File, Tab 1 at 4-6, 8, 10, 13-14; 

 

6

The motion contained no affidavit supporting the appellant’s contentions. See Lee v. 

U.S. Postal Service, 48 M.S.P.R. 274, 280-82 (1991) (holding that an allegation of bias 
17

RF, Tab 19, Tab 20 at 2. 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). An administrative judge’s conduct 

during the course of a Board proceeding warrants a new adjudication only if her 

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 fact that an administrative judge ultimately ruled in favor of the 

agency, however, is insufficient evidence of bias on her part. Hayden v. U.S. 

Postal Service, 15 M.S.P.R. 296, 300 (1983), aff’d, 758 F.2d 668 (Fed. Cir. 1984) 

(Table); Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980), review 

denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).

¶27 We have reviewed the appellant’s allegations and the record, but we find no

evidence of any ruling, comment, or action by the administrative judge that would 

show a deep-seated antagonism that would make fair judgment impossible. For 

instance, the appellant asserts that, during his first post-remand conference, the 

administrative judge deliberately misstated the law to telegraph her intention to 

rule in the agency’s favor by telling the agency that its burden of proof, clear and 

convincing evidence, was “a much, much lower standard” than preponderant 

evidence. RPFR File, Tab 1 at 4-5. The agency avers that, when the 

administrative judge made this comment, she was referencing the preponderant 

evidence standard instead. RPFR File, Tab 3 at 11. In any event, the 

administrative judge accurately cited the case law setting forth the burdens of 

 

by an administrative judge must be raised as soon as practicable after a party has 

reasonable cause to believe that grounds for disqualification exist, and must be 

supported by an affidavit). It was arguably deficient for this reason as well as on the 

merits, though we note that the motion itself was signed under penalty of perjury. RF,

Tab 19 at 9.
18

proof in her written orders and decision. RID at 7; IAF, Tab 3 at 6; RF, Tab 18 

at 2-3.

¶28 The appellant also asserts that, when he expressed his concerns about the 

hearing venue, the administrative judge was condescending and that she was 

disrespectful, unprepared, and unhelpful on other occasions, which a ffected his 

ability to prosecute his case. RPFR File, Tab 1 at 5, 9-10. We have examined the 

administrative judge’s rulings and find them to be supported by the record. Even 

if the appellant has accurately described the administrative judge’s tone and 

manner, we find that his allegations are not enough to overcome the presumption 

of honesty and integrity that accompanies administrative adjudicators. See, e.g., 

Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 19 (2016) (holding that 

the allegation that an administrative judge used a demeaning tone toward agency 

counsel during the appeal was insufficient to overcome the presumption of 

honesty and integrity that accompanies administrative adjudicators, even if 

proven). For all of these reasons, we thus affirm the findings in the remand

initial decision.

NOTICE OF APPEAL RIGHTS7

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 

 

7

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 noti ce, the 

Board cannot advise which option is most appropriate in any matter.
19

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: 

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. 
20

(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 

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: 
21

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.8The 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). 

 

8

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. 
22

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board