UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVON J. ANDERSON,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DE-0752-22-0255-I-1

DATE: August 1, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kevin M. Davenport, Blair, Oklahoma, for the appellant.

Robert J. Harrison, Hot Springs, Arkansas, for the appellant.

Rebecca M. Randles, Esquire, Kansas City, Missouri, for the appellant.

Starla Larson-Pfeifer, Sioux Falls, South Dakota, for the agency.

Kathleen Hunter, Esquire, Kansas City, Missouri, 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.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

affirmed her removal under 5 U.S.C. chapter 75 based on inappropriate conduct.

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

improperly sustained the charge and did not consider all relevant facts in her

claims of harmful procedural error. Petition for Review (PFR) File, Tab 1

at 10-18. She states that she has a recording of a telephone conversation with her

supervisor that undercuts the supervisor’s position regarding her performance, but

she did not submit the recording into the record before the administrative judge

because she received internal agency advice indicating that such a recording

violates the law. Id. at 9. She now seeks admission of this recording into the

Board’s record. Id. at 9-10. 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 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 We have considered the appellant’s request to admit a recording into the

record.2 In its response to the petition for review, the agency states that the

2

 The appellant does not appear to include any such recording or a transcript of the

recording with her petition for review.

2
appellant—who was represented before the administrative judge—never presented

such a recording or turned it over in discovery despite a specific request for

“audio recordings.” PFR File, Tab 2 at 10-12. Under 5 C.F.R. § 1201.115, the

Board generally will not consider evidence submitted for the first time with a

petition for review absent a showing that it was unavailable before the record was

closed before the administrative judge despite the party’s due diligence.

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The appellant

has not made such a showing; to the contrary, she admits that she had this

recording in her possession during the pendency of the appeal, but she did not

disclose its existence to the agency during discovery or at any time to the

administrative judge. Moreover, the appellant has not explained how the

supervisor’s alleged comments about her performance are relevant in this removal

action based on misconduct. Therefore, we deny the request.

¶3 In her arguments regarding the administrative judge’s decision to sustain

the charge and her credibility determinations against her, the appellant asserts that

the administrative judge did not consider that she was an “exemplary” employee

and had “Superior” and “Outstanding” performance appraisals in her previous

agency positions. PFR File, Tab 1 at 11. The Board must defer to an

administrative judge’s credibility determinations when they are based, explicitly

or implicitly, on observing the demeanor of witnesses testifying at a hearing; the

Board may overturn such determinations only when it has “sufficiently sound”

reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). The appellant has not presented such sufficiently sound reasons.

¶4 Even if we alternatively consider this argument related to the penalty, a

different outcome is not warranted. The record reflects that the appellant

received “Outstanding” overall performance appraisals for fiscal years 2019 and

2020. Initial Appeal File, Tab 27 at 34-38, 44-48. We have considered this

evidence, but we agree with the administrative judge that removal is a reasonable

penalty for the serious, repeated, and intentional sustained misconduct. See, e.g.,

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Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996) (stating that, when all

of the agency’s charges are sustained, but some of the underlying specifications

are not sustained, the agency’s penalty determination is entitled to deference and

only should be reviewed to determine whether it is within the parameters of

reasonableness). 

¶5 We have considered the appellant’s remaining arguments on review, but for

the reasons described in the initial decision, none warrant a different outcome. 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

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.

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. 

3

 Because we are issuing a final decision on the merits of this appeal, we need not

resolve the issue of the timeliness of the appellant’s petition for review.

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.

4
(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

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

5
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: 

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: 

6
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.5 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). 

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 

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. 

7
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.

8