UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VALENTINE UKANDU,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0752-21-0261-I-1

DATE: December 8, 2022

THIS ORDER IS NONPRECEDENTIAL1

Matthew Fogg, Washington, D.C., for the appellant.

Sandra Fortson, Esquire, Joint Base Andrews, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

affirmed his removal. For the reasons discussed below, we GRANT the 

appellant’s petition for review, VACATE the initial decision, and REMAND the 

case to the Atlanta Regional Office for further adjudication in accordance with 

this Remand Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 The appellant was employed as a GS-13 Contract Specialist with the 

agency. Initial Appeal File (IAF), Tab 10 at 20. A Defense Acquisition 

Workforce Improvement Act (DAWIA) Level II certification is a requirement for 

a GS-13 Contract Specialist. IAF, Tab 20 at 2 (setting forth the parties’ 

stipulations). Effective March 2, 2021, the agency removed the appellant from 

the Federal service based on the charges of failure to maintain a condition of 

employment (1 specification) and lack of candor (2 specifications). IAF, Tab 7 

at 22-30. The agency alleged that the appellant did not maintain a condition of 

employment because he did not possess a DAWIA Level II certification and that

he lacked candor when he misstated his level of certification in the job 

application process. Id. at 22-23.

¶3 The appellant filed a Board appeal challenging his removal. IAF, Tab 1. 

He also raised affirmative defenses of harmful procedural error, prohibited 

personnel practices, unlawful discrimination, and retaliation for other protected 

activity. Id. at 3. The administrative judge issued an order informing the 

appellant how to prove his affirmative defenses, IAF, Tab 14 at 2-9, and an order 

setting forth the burden of proof and elements for the agency’s charges of failure 

to maintain a condition of employment and lack of candor. IAF, Tab 20 at 1-2.

¶4 After holding the appellant’s requested hearing, the administrative judge 

issued an initial decision that affirmed the appellant’s removal. IAF, Tab 25, 

Initial Decision (ID) at 1, 15. The administrative judge sustained the charge of 

failure to maintain a condition of employment because he found that a DAWIA 

Level II certification was required for contract specialists at or higher than 

GS-11, and the appellant’s Level II certification was revoked in 2012. 2

 ID at 3-6. 

 2 The agency’s Acquisition Professional Development Program (APDP) Certification 

Manager explained that the appellant was given a DAWIA Level II certification 

erroneously before the process for agency acquisition certifications became automated 

in 2012. IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the APDP 

Certification Manager). The appellant’s certification was deleted from the agency’s 
3

He noted that when, as here, there is no evidence of bad faith or patent unfairness, 

the Board defers to the agency’s determinations as to the requirements that must 

be fulfilled in order for an individual to qualify for appointment to a particular 

position and to retain that position. ID at 6. The administrative judge sustained 

the charge of lack of candor, reasoning that the appellant made a knowing 

misrepresentation concerning his DAWIA Level II certification in applying for a 

Supervisory Contract Specialist position in October 2020 and in providing 

documents to an agency human resources employee showing that he had a 

Level II certification in November 2020. ID at 7-8. He found that the appellant 

failed to prove his claims of race, national origin, and age discrimination, 

retaliation for equal employment opportunity (EEO) activity, and harmful 

procedural error. ID at 8-13. Finally, the administrative judge found that the 

agency proved nexus and that removal was a reasonable penalty. ID at 13-14.

¶5 The appellant has filed a petition for review of the initial decision. 3

 

Petition for Review (PFR) File, Tab 2. He sets forth his extensive training in 

procurement matters, and he claims that he met the requirements for a DAWIA 

 

system in 2012 due to the appellant’s incomplete training, i.e., he had not completed a 

contracting course. Id. The agency’s Training and Certification Help Desk Manager 

testified that he discovered that the appellant had not completed the requirements for 

DAWIA Level II certification in 2019 or 2020 when the appellant sought to attend 

training for DAWIA Level III certification. HR1 (testimony of the agency’s Training 

and Certification Help Desk Manager). 

3 The appellant asserts that, although the agency removed his DAWIA Level II 

certification in 2011, he believed that the agency reinstated his Level II certification, in 

accord with a settlement agreement executed with the agency in 2014, but the agency 

did not do so. Petition for Review (PFR) File, Tab 2 at 5. The administrative judge 

correctly noted, in a compliance initial decision, that there was no term in that 

agreement that required the reinstatement of the appellant’s DAWIA Level II 

certification. See Ukandu v. Department of the Air Force, MSPB Docket Nos. CH531D-13-0343-C-2, CH-0432-13-0372-C-2, Compliance Initial Decision at 4-5 

(June 22, 2021).
4

Level II certification. Id. at 4-5. The agency has filed a response.

4

 PFR File, 

Tab 4.

ANALYSIS

¶6 The charge of failure to fulfill a condition of employment contains two 

elements: (1) the requirement at issue is a condition of employment; and (2) the 

appellant failed to meet that condition. Gallegos v. Department of the Air 

Force, 121 M.S.P.R. 349, ¶ 6 (2014). Absent evidence of bad faith or patent 

unfairness, the Board defers to the agency’s requirements that must be fulfilled 

for an individual to qualify for appointment to, or retention in, a particular 

position. Id.

¶7 In this appeal, the condition of employment at issue is a DAWIA Level II 

certification. IAF, Tab 7 at 22. It is undisputed that the certification is a 

requirement for the appellant’s position, and thus, the first element of the charge 

is satisfied. IAF, Tab 20 at 2. The issue is whether the second element—that the 

appellant failed to meet a condition of employment—is satisfied. 

¶8 On review, the appellant reiterates that he met the requirements for a 

DAWIA Level II certification. PFR File, Tab 2 at 4. The administrative judge 

considered the appellant’s testimony on the matter, but he found that the agency’s 

Training and Certification Help Desk Manager credibly testified that the 

academic documentation submitted by the appellant was not adequate equivalent 

coursework to support substitution for the agency’s coursework requirements. 

ID at 5; IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the agency’s 

Training and Certification Help Desk Manager). Thus, the administrative judge 

 4 Nearly a year after the close of the record on petition for review, the appellant filed a 

reply to the agency’s response to the petition for review. PFR File, Tab 5. Because the 

appellant has not shown that the arguments in the pleading are new and material and 

that they could not have been raised prior to the close of the record, we have not 

accepted them for consideration. See 5 C.F.R. § 1201.114(k). As we are remanding 

this matter, the appellant may make his arguments in the remand proceeding consistent 

with the administrative judge’s instructions and the Board’s regulations.
5

found that the appellant failed to meet the agency’s requirement and that the 

agency proved its charge of failure to maintain a condition of employment. ID 

at 6.

¶9 However, in appeals such as this, when the agency controls the withdrawal 

or revocation of a certification necessary to perform in a position, the Board’s 

authority generally extends to a review of the merits of that withdrawal or 

revocation. Adams v. Department of the Army, 105 M.S.P.R. 50, ¶¶ 10, 19 

(2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). Specifically, in Adams, the 

agency suspended the appellant’s computer access and then removed him for 

failure to maintain access to the agency’s computer system. Id., ¶ 6. Although 

the agency in that appeal argued that the Board lacked the authority to review the 

merits of the decision to suspend computer access because it was not an 

appealable adverse action, the Board found that, when a removal is based on the 

failure to possess a certification or similar qualification, it had the authority to 

review the merits of the agency’s revocation of the certification or similar 

qualification necessary for the employee to hold his position. 5

 Id., ¶¶ 9-10. 

¶10 Similarly, in Siegert v. Department of the Army, 38 M.S.P.R. 684, 685-86 

(1988), the agency revoked the appellant’s clinical privileges and then removed 

him from his Clinical Psychologist position for failure to maintain those 

privileges. The Board found that it had the authority to review the actions of the 

agency credentialing committee and remanded the appeal to the administrative 

judge to address that issue. Id. at 691. Finally, in a case very similar to the 

instant appeal, McGillivray v. Federal Emergency Management Agency, 

58 M.S.P.R. 398, 402 (1993), the agency removed the appellant based on the loss 

of his procurement authority, and the Board found that it had the authority to 

 5 The certification at issue in this appeal and in the appeals discussed in this decision do 

not involve national security determinations, over which the Board lacks jurisdiction. 

Adams, 105 M.S.P.R. 50, ¶ 11; see Department of the Navy v. Egan, 484 U.S. 518, 

530-31 (1988).
6

consider the reasons underlying the agency’s decision to revoke the employee’s 

procurement authority. 6

 

¶11 Because the administrative judge failed to fully identify the issues in this 

appeal, and the parties did not have the opportunity to fully develop the record on 

those issues, remand is required. On remand, the administrative judge shall 

afford the parties the opportunity to conduct discovery and submit additional 

evidence and argument. The administrative judge shall hold a supplemental 

hearing, if requested by the appellant, and shall issue a new initial decision 

addressing the agency’s charges,

7 nexus, penalty, and the appellant’s affirmative 

defenses. 8

 See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 

(1980) (stating that an initial decision must identify all material issues of fact and 

law, summarize the evidence, resolve issues of credibility, and include the 

 6 The Board has followed the principle applied in Adams, Siegert, and McGillivray in 

other cases. See, e.g., Jacobs v. Department of the Army, 62 M.S.P.R. 688, 694-95 

(1994) (reviewing a security guard’s disqualification from the agency’s Chemical 

Personnel Reliability Program based on his alleged misconduct); Cosby v. Federal 

Aviation Administration, 30 M.S.P.R. 16, 17-19 (1986) (reviewing an Air Traffic 

Control Specialist’s decertification under the agency’s medical standards). 

7 On petition for review, the appellant does not specifically challenge the administrative 

judge’s determination that the agency proved the lack of candor charge. Because we 

are remanding the case for further proceedings regarding the charge of failure to 

maintain a condition of employment, the administrative judge should determine on 

remand whether any additional evidence developed on remand affects his analysis of 

the lack of candor charge. If he determines that new findings regarding the lack of 

candor charge are not needed, the administrative judge may adopt his prior findings 

regarding that charge in his new initial decision.

8 Regarding the appellant’s affirmative defenses of race, national origin, and age 

discrimination and retaliation for prior EEO activity, the administrative judge should

apply the standards of proof set forth in Pridgen v. Office of Management & Budget, 

2022 MSPB 31, ¶¶ 21-22. The administrative judge shall apprise the appellant that, 

although he may prevail on these claims by showing that the prohibited consideration 

was a motivating factor in the contested personnel action, but-for causation is required 

in order for him to obtain full status quo ante relief, including reinstatement, back pay,

and damages. See id., ¶¶ 21-22, 24 n.5. Furthermore, the appellant should be aware 

that there are multiple methods of proof for a discrimination or reprisal claim. See id., 

¶ 24.
7

administrative judge’s conclusions of law and legal reasoning, as well as the 

authorities on which that reasoning rests).

ORDER

¶12 For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board