UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW D. WILKERSON,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBERS

DA-0752-18-0216-I-1

DA-1221-18-0217-W-1

DATE: June 28, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Andrew D. Wilkerson, El Paso, Texas, pro se.

Alexandria P. Tramel and Karen Denise Haertl, Fort Worth, Texas, 

Ernest A. Burford, Esquire, Dallas, Texas, 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 

affirmed the appellant’s removal and denied his request for corrective action in 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

his individual right of action (IRA) appeal.

2 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was employed by the agency as a Civil Engineer. Initial

Appeal File (IAF),3Tab 11 at 116. In July 2017, the appellant filed a 

whistleblower reprisal complaint with the Office of Special Counsel (OSC). IAF,

Tab 34 at 53-54. In subsequent communications with OSC, he specifically 

alleged that the agency took a number of personnel actions, including 

 

2

Joinder of two or more appeals filed by the same appellant is appropriate when doing 

so would expedite case processing and will not adversely affect the parties’ interests. 

Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 1 n.1 (2015), overruled on 

other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31, 

¶¶ 23-25; 5 C.F.R. § 1201.36(a)-(b). We find that these criteria are satisfied here, and 

we therefore JOIN the two appeals.

3 Unless otherwise specified, references to the Initial Appeal File are to the file in 

MSPB Docket No. DA-0752-18-0216-I-1.
3

investigating him and placing him on absence without leave (AWOL), in 

retaliation for his protected disclosures. Id. at 55-56, 58. 

¶3 In November 2017, while the whistleblower complaint was pending before 

OSC, the agency proposed the appellant’s removal based on charges of Conduct 

Unbecoming a Federal Employee (3 specifications); Making Statements (or

Sending E-mails) that Cause Anxiety and Disruption in the Workplace

(4 specifications); Insubordination (2 specifications); Making False Statements 

(4 specifications); and Lack of Candor (2 specifications). IAF, Tab 11 at 96-114. 

The appellant raised the proposed removal before OSC. IAF, Tab 34 at 60-62. 

¶4 By letter dated January 4, 2018, OSC informed the appellant that it had 

closed its investigation into his complaint and that he had the right to file an IRA 

appeal within 65 days. IAF, Tab 34 at 114. By letter dated March 1, 2018, the 

agency issued a decision removing the appellant effective the following day. 

IAF, Tab 11 at 74-94. The appellant filed a Board appeal on March 1, 2018, IAF,

Tab 1, which the Board docketed separately as a chapter 75 removal appeal and 

an IRA appeal.4

¶5 After holding a hearing covering both appeals, the administrative judge

issued a single initial decision affirming the appellant’s removal and denying his 

request for corrective action in his IRA appeal. IAF, Tab 122, Initial Decision 

(ID). The administrative judge found that the agency proved all three 

specifications of the conduct unbecoming charge, ID at 4-13, one of the four 

specifications of the charge of making statements that cause anxiety and 

disruption in the workplace, ID at 14-17, and both specifications of 

insubordination, ID at 17-20, but that it failed to prove its charges of making false 

 

4

The appellant repeatedly requested that the Board stay his removal, but the 

administrative judge denied those requests, finding the appellant failed to show that 

there was a substantial likelihood he would prevail on the merits of his whistleblower 

retaliation claim. See 5 U.S.C. § 1221(c); Wilkerson v. Department of the Army, 

DA-0752-18-0216-S-3, Stay Decision (Apr. 26, 2018).
4

statements and lack of candor, ID at 20-27. He further found that the agency 

established a nexus between the appellant’s proven misconduct and the efficiency 

of the service, ID at 27-28, and that removal was a reasonable penalty for the 

proven misconduct, ID at 28-33. The administrative judge then addressed the 

appellant’s claims of reprisal for protected disclosures and activities in 

connection with both the removal and the personnel actions raised in his IRA 

appeal. The administrative judge found that the appellant proved that he engaged 

in protected whistleblowing activity when he filed a prior IRA appeal, shared 

information with a member of Congress, disclosed alleged contracting 

improprieties to agency investigators, and disclosed information to OSC. ID

at 35-42. The administrative judge further found that the appellant established 

that his protected whistleblowing was a contributing factor in a June 2017 letter 

of reprimand, the proposal and decision to remove him, his placement on AWOL 

for several days in June and July 2017, and his placement on full-time telework. 

ID at 43-49. However, the administrative judge found that the appellant failed to

establish that the agency subjected him to a hostile work environment. ID

at 47-48.5 For those protected activities that the appellant proved were a 

contributing factor in personnel actions, the administrative judge found that the 

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

same actions absent the appellant’s protected whistleblowing. ID at 50-62.

¶6 The appellant has filed identical petitions for review in both appeals. 

Petition for Review (PFR) File, Tab 2. He accuses agency officials of a variety of 

criminal acts and other misconduct. Id. at 4-5. He also makes a number of 

 

5

The administrative judge considered the appellant’s claim that the agency retaliated 

against him by investigating him, but he found that an investigation per se is not a 

personnel action. ID at 49-50. However, the administrative judge considered the 

appellant’s claims regarding the investigation in evaluating whether the agency proved 

by clear and convincing evidence that it would have taken the actions resulting from 

that investigation (i.e., the proposed removal and removal decision) in the absence of 

his protected whistleblowing. ID at 49-50, 56-58.
5

factual assertions without reference to the record. Id. at 16-26. The appellant 

alleges that the agency improperly withheld information during discovery and that 

the administrative judge committed harmful procedural error. Id. at 29. The

agency has filed a response, PFR File, Tab 4, and the appellant has filed a reply, 

PFR File, Tab 5.

¶7 A petition for review states a party’s objections to the initial decision, 

including all of the party’s legal and factual arguments, and must be supported by 

references to applicable laws or regulations and by specific references to the 

record. See 5 C.F.R. § 1201.114(b). A petition for review must contain sufficient 

specificity to enable the Board to ascertain whether there is a serious evidentiary 

challenge justifying a complete review of the record. Tines v. Department of the 

Air Force, 56 M.S.P.R. 90, 92 (1992). Before the Board will undertake a 

complete review of the record, the petitioning party must explain why the 

challenged factual determination is incorrect and identify the specific evidence in 

the record that demonstrates the error. Weaver v. Department of the Navy, 

2 M.S.P.R. 129, 133 (1980). The Board will not disturb an administrative judge’s 

findings when he considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions on issues of credibility. Crosby v. 

U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of 

Health and Human Services, 33 M.S.P.R. 357, 359 (1987).

¶8 The appellant’s arguments on petition for review do not meet the Board’s 

standard for review. His allegations of criminal conduct lack evidentiary support 

and he fails to explain how those matters relate to the issues before the Board in 

these appeals. Likewise, although he appears to challenge some of the 

administrative judge’s factual findings and credibility determinations, he fails to 

identify the specific evidence that supports his position. We find no reason to 

disturb the administrative judge’s well-reasoned findings and credibility 

determinations.
6

¶9 The appellant’s arguments regarding alleged procedural error also do not 

warrant reversing the initial decision. Even if we were to accept as true the 

appellant’s bare assertion that the administrative judge told the appellant he could 

not award corrective action, PFR File, Tab 2 at 29, the appellant has not shown 

how that statement affected his rights. See Karapinka v. Department of Energy, 

6 M.S.P.R. 124, 127 (1981) (the administrative judge’s procedural error is of no 

legal consequence unless it is shown to have adversely affected a party’s 

substantive rights).

¶10 Finally, we find that the appellant’s arguments regarding discovery do not 

provide a basis for reversing the initial decision. The administrative judge denied 

the appellant’s motion to compel discovery as untimely filed. IAF, Tab 92. The

appellant has not explained how the administrative judge erred in that ruling, and 

we see no reason to disturb it. See McCarthy v. International Boundary and 

Water Commission: U.S. and Mexico, 116 M.S.P.R. 594, ¶ 15 (2011) (an 

administrative judge has broad discretion in ruling on discovery matters and, 

absent a showing of abuse of discretion, the Board will not find reversible error in 

such rulings), aff’d, 497 F. App’x 4 (Fed.Cir.2012).

¶11 We have considered the appellant’s remaining arguments on review, and we 

find that they do not warrant reversal of the initial decision.

NOTICE OF APPEAL RIGHTS6

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 

 

6

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.
7

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. 

(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 
8

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 obt ain 

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 
9

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.7 The court of appeals must receive your petition for 

 

7

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. 
10

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. 

 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
11

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