UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN B. EDWARDS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-1221-16-0811-W-1

DATE: June 2, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.

Trenton Bowen, Keyport, Washington, 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 initial decision, which 

denied 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 material fact; the initial decision is 

based on an erroneous interpretation of statute or regulation or the erroneous 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

application of the law to the facts of the case; the administrative judge’s rulings 

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under section 

1201.115 for granting the petition for review. Therefore, we DENY the petition 

for review and AFFIRM the initial decision, which is now the Board’s final 

decision. 5 C.F.R. § 1201.113(b). 

¶2 On review, the appellant raises a number of procedural arguments that he 

claims “resulted in unfavorable conditions for a proper decision to be made in this 

case.” Petition for Review (PFR) File, Tab 1 at 6. First, he alleges that the 

hearing had to be postponed for a month because one of the witnesses was 

unavailable and that the time gap may “have made it difficult for the 

administrative judge to decipher between disputed testimony and fact.” Id. This

is inaccurate. The administrative judge afforded the parties a choice between 

going forward with the hearing as scheduled and reconvening at a later date to 

take the unavailable witness’s testimony or rescheduling the entire hearing and 

the parties chose the former. Initial Appeal File, Tab 29. Moreover,

administrative judges must frequently conduct hearings on nonconsecutive days 

or reconvene hearings to take the testimony of previously unavailable witnesses. 

The appellant’s mere speculation that the administrative judge’s adjudication of 

the case might have been compromised by the time gap between witnesses is not a 

sufficient reason to disturb the initial decision.

¶3 Second, the appellant asserts that it took more than 180 days from the 

conclusion of the hearing to the issuance of the initial decision, and he implies 

that the case was too complicated for the administrative judge to grasp because of 
3

all the jargon and idiosyncratic regulations involved. PFR File, Tab 1 at 6-7. A

delay between the date of the hearing and the issuance of the initial decision, 

without some evidence of prejudice, is not a basis for disturbing the initial 

decision. As to the complexity of the case, we disagree with the appellant’s 

assumption that the unfamiliar jargon and rules in this case were materially more 

difficult than in the Board’s other cases, and we do not find the legal issues in 

this appeal to be unusually complex. 

¶4 Third, it appears that the appellant argues that the testimony of key 

witnesses for the agency went unrebutted because the appellant’s counsel decided 

not to interpose objections “for fear of appearing confrontational or 

disrespectful.” PFR File, Tab 1 at 7. We see no prejudice to the appellant’s 

substantive rights because he had an opportunity to cross-examine the agency’s 

witnesses if he preferred not to interpose objections. Counsel’s tactical decisions 

concerning how to handle witnesses for the agency and the consequences flowing 

therefrom are his own responsibility and are not a reason to set aside the initial 

decision. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981) (stating

that the appellant is responsible for the errors of his chosen representative ). 

¶5 Fourth, the appellant submits what he contends is new and material 

evidence in the form of an Inspector General report, issued 2 months after the 

conclusion of the hearing and received 1 month later, concluding that three of the 

appellant’s four disclosures were substantiated. PFR File, Tab 1 at 7 & co py of 

report. The report was available to the appellant 3 months before the date of the 

initial decision, and the appellant has not explained why he did not send the 

report to the administrative judge. Under 5 C.F.R. § 1201.115(d), 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. Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980). The report is also not material because the issue in an IRA

appeal is not whether the agency committed waste, fraud, abuse, etc., but whether 
4

the agency retaliated against the appellant for reporting waste, fraud, and abuse. 

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. Russo v. Veterans Administration, 3 M.S.P.R. 

345, 349 (1980).2

¶6 The appellant also alleges that the administrative judge erred by finding that 

the agency proved by clear and convincing evidence that it would have terminated 

him absent any protected activity. We have reviewed the record and the 

appellant’s arguments, in particular his argument about changing electronic 

inventory entries. We find these arguments unpersuasive and conclude that the 

appellant has provided no basis to disturb the initial decision. 3

NOTICE OF APPEAL RIGHTS4

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 

 

2 After the record closed on review, the appellant filed a motion for leave to file an 

additional pleading in which he states that he has a 2018 “document and URL” that are 

pertinent to his case. PFR File, Tab 8. He does not describe the contents of the 

document he wishes to submit or explain how it might affect the outcome of his appeal. 

Russo, 3 M.S.P.R. at 349. Furthermore, although he states that the document was not 

available when his petition for review was due in 2017, he does not explain why he 

waited until April 28, 2022, to file a motion for leave to submit it. We therefore deny 

the appellant’s motion. 5 C.F.R. §§ 1201.114(k), .115(d).

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.

4

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

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully f ollow 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 
6

Board neither endorses the services provided by any attorney nor warran ts that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

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 
7

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

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.5The court of appeals must receive your petition for 

 

5

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

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

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