UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC CRUSE,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-20-0346-I-1

DATE: June 21, 2024 

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lenard Johnson, Twentynine Palms, California, for the appellant.

Douglas T. Frydenlund, Portsmouth, Virginia, for the agency.

Leslie Rosson, Twentynine Palms, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

sustained his 90-day suspension. 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

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant is a GS-05 Medical Support Assistant (MSA) at the agency’s

Twentynine Palms Naval Hospital. Initial Appeal File (IAF), Tab 4 at 5. The

major duties of this position involve acting as a liaison between patients and

medical staff. These duties include, among other things, booking medical

appointments, receiving and directing patients to the appropriate point of care,

and using “critical thinking skills to refer urgent patient callers to the Nurse

assigned as directed by the Clinic [Medical Support Assistant Standard Operation

Procedures (MSA SOP)] manual.” IAF, Tab 12 at 28-29.

On November 22, 2019, the agency proposed to suspend the appellant for

90 days based on a charge of “Failure to Follow Proper Work Procedures,” with

five specifications. IAF, Tab 10 at 16. Each specification referred to a telephone

call that the appellant received, alleging that the actions that the appellant took

pursuant to the call were not in accordance with agency procedures. Id. at 12-13.

After the appellant responded to the proposal, the agency amended the proposal to

notify the appellant of some additional penalty considerations. Id. at 5-10. The

appellant did not offer any further reply, and the deciding official issued a

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decision sustaining the charge and all specifications and imposing the 90-day

suspension. Id. at 7-10.

The appellant filed a Board appeal, contesting the merits of the action and

raising affirmative defenses of violation of due process and harmful procedural

error. IAF, Tab 1 at 4, Tab 14 at 2-5, Tab 15 at 4-23. He waived his right to a

hearing. IAF, Tab 1 at 2, Tab 13 at 1. After the close of the record, the

administrative judge issued an initial decision sustaining the suspension. IAF,

Tab 17, Initial Decision (ID). He did not sustain specification 1, but he sustained

the other four specifications, and therefore, the charge as a whole. ID at 4-15.

The administrative judge found that the appellant failed to prove his affirmative

defenses, and that the agency met its burden of proof on the issues of nexus and

penalty. ID at 15-23. 

The appellant has filed a petition for review, arguing that the administrative

judge failed to consider his arguments, particularly with regard to ambiguities in

the MSA SOP manual and the agency’s use of lack of remorse as an aggravating

factor.2 Petition for Review (PFR) File, Tab 1 at 3-5. The agency has not filed a

response.

ANALYSIS

In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency

bears the burden of proving by preponderant evidence that its action was taken

for such cause as would promote the efficiency of the service. MacDonald v.

Department of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)

(ii). To meet this burden, the agency must prove its charge, establish a nexus

between the charge and the efficiency of the service, and demonstrate that the

penalty imposed was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144,

1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the

2

 The appellant has attached to his petition copies of the initial decision and his close of

the record submission. Petition for Review File, Tab 1 at 6-59. We cite to these

documents based on their location in the initial appeal file. IAF, Tabs 15, 17.

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action may not be sustained if the appellant shows that it was the product of a due

process violation or harmful procedural error. 5 U.S.C. § 7701(c)(2)(A); Stephen

v. Department of the Air Force, 47 M.S.P.R. 672, 681 (1991); see 5 C.F.R.

§ 1201.56(b)(2)(i)(C).

In this case, neither party disputes the administrative judge’s finding that

the agency failed to prove specification 1. ID at 4-5. We will therefore not

revisit this issue on review. See 5 C.F.R. § 1201.115 (“The Board normally will

consider only issues raised in a timely filed petition or cross petition for

review.”). However, the appellant argues that the administrative judge

misinterpreted the MSA SOP in applying it to specification 2. PFR File, Tab 1

at 4. He contends that the language of the MSA SOP is ambiguous and that it

could be interpreted so that his actions were in compliance. Id.

Under specification 2, the agency alleged as follows:

On 2 July 2019, patient W called with shortness of breath and

chest pain symptoms. Per [the MSA SOP], these types of symptoms

require an Urgent (Red) T-CON and to provide a warm handoff to an

RN.[3] You did not create an Urgent (Red) T-CON for the patient.

You attempted to do a warm hand-off to an RN, however the call was

dropped prior to the hand off. As a result, since you did not create a

T-CON, the RN was unable to call the patient back. When the RN

spoke to you about the lost call, you hit the recall number on your

phone. You failed to follow the proper procedure as outlined in [the

MSA SOP].

IAF, Tab 10 at 12.

In his initial decision, the administrative judge found that, when a patient

calls reporting chest pain or shortness of breath, the MSA SOP requires that the

MSA both create a T-CON and perform the warm handoff while the patient is on

the phone with him. ID at 8. In this case, the administrative judge found that the

appellant attempted a warm handoff but the call dropped. ID at 8. He also found

that the appellant did not create a T-CON for this consult until afterwards, when

3

 “T-CON” is an abbreviation for “Telephone Consult,” a computer entry created in

relation to a telephone call to or from a patient. IAF, Tab 11 at 24-25. “Warm handoff”

refers to connecting a patient’s telephone call directly to a nurse. IAF, Tab 8 at 7.

4
the individual who was supposed have received the handoff informed him that the

call had dropped and there was no T-CON in the system that would enable her to

call the patient back. Id.

On petition for review, the appellant argues that the language of the MSA

SOP is ambiguous as to whether the warm handoff should be attempted before the

T-CON is created. PFR File, Tab 1 at 4; IAF, Tab 15 at 19. If we were to restrict

our analysis to the single sentence of the MSA SOP that the appellant cites, we

would agree. That sentence provides that, when a patient presents with an

emergency (as defined elsewhere), the MSA should “[w]arm transfer to RN

immediately . . . create an Urgent (Red) T-Con for nurse and provide warm

hand-off.” IAF, Tab 11 at 25. This rather confusing sentence seems to give a

sequence of first providing a warm handoff, second creating an Urgent (Red)

T-CON, and third providing a warm handoff. However, the confusion and any

resulting ambiguity is resolved by reading the relevant provisions as a whole.

The sentence that the appellant cites is located in the T-CON section of the MSA

SOP, which sets forth the steps for creating a T-CON in various situations. Id.

at 24-28. More specifically, this sentence is located under the heading “Inform

the patient call-back protocol,” in which callback procedures for various types of

T-CONs are addressed. Id. at 25. In context, we find that the most natural way

to read this provision is that the T-CON is created first, and then callback

procedures are addressed, or in the case of an Urgent (Red) T-CON, a warm

handoff instead of a callback. Id. In other words, we find that this sentence

begins with reference to a warm handoff because it presupposes that a T-CON has

already been created, but it then repeats this sequence of events – the creation of

a T-CON first, and a warm handoff second. Id. Our reading of this provision is

bolstered by a nearly identical provision that appears in the MSA SOP

Appointment Scheduling section: “If patient calls or presents for an appointment

for the following reasons [including chest pain and shortness of breath], create an

5
Urgent (Red) T-Con for nurse and provide warm hand-off.” 4

 IAF, Tab 25 at 10.

This provision is arguably redundant of the similar one contained in the T-CON

section, but it provides a clearer picture of the sequence of events because it does

not proceed from a presumption that a T-CON has already been created.

Furthermore, we find that this interpretation makes the most sense because the

prompt creation of a T-CON would prevent the very problem that occurred in

specification 2, i.e., disconnection of an urgent call with no reliable way to call

the patient back.

Therefore, having fully considered and thoroughly addressed the

appellant’s argument regarding the sequence of operations required by the MSA

SOP, we agree with the administrative judge that, in an emergency situation such

as the one at issue in specification 2, the MSA SOP provides that a T-CON should

be created first, and a warm handoff should be conducted second. ID at 8. We

also agree with the administrative judge that, because the appellant attempted the

handoff before he created a T-CON, he failed to follow procedures, and that the

agency therefore proved specification 2. Id.

The appellant does not specifically dispute the administrative judge’s

findings on the remaining three specifications. Instead, he argues that the

administrative judge failed to consider his close of the record submission, and he

requests that the Board review that submission and issue a new decision in light

of it. PFR File, Tab 1 at 5. As an initial matter, an administrative judge’s failure

to cite to a particular brief or argument does not mean that he failed to consider it

in reaching his decision. Schindler v. General Services Administration,

53 M.S.P.R. 171, 173 (1992); Wilson v. Department of Agriculture, 28 M.S.P.R.

472, 476 (1985). In any event, we find that the administrative judge did, in fact,

consider the appellant’s close of the record submission because he cited to it

several times and discussed it substantively in his initial decision. ID at 4-5, 7, 9,

4

 This is the provision that the administrative judge cited in his initial decision. ID

at 6-7.

6
12, 17-19. Furthermore, under 5 C.F.R. § 1201.114(b), a petition for review must

state a party’s objections to the initial decision and be supported by specific

references to the record. The Board has long held that a petition for review that

merely incorporates by reference a brief that was filed with the administrative

judge does not satisfy this standard. Hulett v. Department of the Navy,

120 M.S.P.R. 54, ¶ 5 n.2 (2013); Cole v. Department of Transportation,

18 M.S.P.R. 102, 104 (1983). We therefore find that the appellant has not

provided a basis to disturb the administrative judge’s findings on specifications 3

through 5. 

The appellant also renews his argument that the agency considered lack of

remorse as an aggravating penalty factor without providing him with advance

notice that it would do so. PFR File, Tab 1 at 5. However, as the administrative

judge correctly found, the proposing official’s Douglas factor worksheet

explicitly stated that the appellant’s “failure to recognize and acknowledge his

repeated misconduct along with his failure to demonstrate remorse for his

behaviors” was being considered as an aggravating penalty factor. ID at 17; IAF,

Tab 10 at 18, 23. The agency provided the appellant with a copy of this

worksheet as an enclosure with the notice of proposed suspension. Id. at 12. We

find that this was sufficient to inform the appellant that the deciding official

would consider his lack of remorse in arriving at a penalty determination. See

Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004) (finding

that the due process notice requirement is satisfied when the proposal and any

attachments to it, taken together, provide the employee with sufficient

information to make a meaningful reply).

The appellant has not explicitly challenged the administrative judge’s other

findings on his affirmative defenses. Nor has he challenged the administrative

judge’s findings on the issues of nexus and penalty. For the reasons explained in

the initial decision we agree with the administrative judge’s findings on these

issues. ID at 15-23.

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NOTICE OF APPEAL RIGHTS5

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. 

(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: 

5

 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.

8
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

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

9
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: 

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

10
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.6 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 

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. 

6

 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. 

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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