UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY TERRELL LEE,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

AT-1221-18-0208-C-1

DATE: February 12, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony Terrell Lee, Saint Marys, Georgia, pro se.

Elizabeth Moseley, Millington, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the compliance initial

decision, which denied his petition for enforcement of the Board’s decision in the

underlying 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 application of the law to

1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

compliance initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

On petition for review, the appellant raises the following arguments: the

administrative judge misconstrued his claims and conflated his appeals; the

administrative judge failed to follow the Board’s compliance procedures set forth

at 5 C.F.R. § 1201.183; and the administrative judge engaged in ex parte

communications when she allegedly received bribes from the agency.

Compliance Petition for Review (CPFR) File, Tab 3 at 9-15. To support his

arguments, the appellant has resubmitted documentation related to the Merit

Systems Protection Board’s report on due process, his prior Board appeals, and

his discrimination complaint. CPFR File, Tab 3 at 19-23, Tab 6 at 11;

Compliance File (CF), Tab 14 at 16-18, 23-25. For the first time on review, the

appellant has submitted a July 2013 press release from the U.S. Attorney’s Office

in the District of Columbia. 2 CPFR File, Tab 3 at 16-18.

2 The appellant has failed to explain why he was unable to submit such evidence despite

his due diligence prior to when the record before the administrative judge closed. See

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that 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). Nevertheless, as discussed below, we find that such evidence

does not warrant a different outcome than that of the compliance initial decision.

2
After considering the appellant’s arguments and documents provided on

review, we discern no reason to disturb the compliance initial decision. We

acknowledge that the administrative judge’s adjudication of the appellant’s

petition for enforcement was premature at the time the compliance initial decision

was issued because the Board had not issued a final decision or order in his IRA

appeal. CF, Tab 17, Compliance Initial Decision (CID) at 1-2; see 5 C.F.R.

§ 1201.182(a) (providing that a party may petition the Board for enforcement of a

final decision or order issued under the Board’s appellate jurisdiction); cf.

Flaherty v. U.S. Postal Service, 68 M.S.P.R. 637, 638 (1995) (finding that the

adjudication of compliance issues would be premature because there was no final

order from which a petition for enforcement could be filed). Nevertheless, we

find that any error is immaterial to the outcome of this compliance proceeding.

Because the Board has issued a Final Order affirming the dismissal of the

underlying IRA appeal as untimely filed, the appellant has not been afforded any

relief and there is nothing for the Board to enforce. Lee v. Department of the

Army, MSPB Docket No. AT-1221-18-0208-W-1, Final Order (Feb. 12, 2024).

Similarly, we find that the administrative judge’s mischaracterization of the

disposition of his IRA appeal as dismissed for lack of jurisdiction, instead of as

dismissed as untimely filed, is immaterial to the outcome of this compliance

proceeding. CID at 2. 

Moreover, we deny the appellant’s motion for a written transcript of the

January 26, 2010 prehearing conference held in his prior removal appeal because

it is not relevant to the adjudication of this compliance matter. CPFR File, Tab 6

at 5; CF, Tab 16 at 10-11. Further, we find that the appellant’s substantive rights

have not been prejudiced by the administrative judge’s failure to address his

motion. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(finding that adjudicatory error that is not prejudicial to a party’s substantive

rights provides no basis for reversal of an initial decision). 

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Finally, we discern no reason to disturb the compliance initial decision

based on the appellant’s conclusory assertion that the administrative judge

engaged in ex parte communications when she allegedly received bribes from the

agency. CPFR File, Tab 3 at 13, 15. The appellant’s submission of a July 2013

press release from the U.S. Attorney’s Office in the District of Columbia

concerning a bribery and kickback scheme involving the U.S. Army Corps of

Engineers does not lend support to his assertion. Id. at 16-18. To the extent the

appellant is alleging that the administrative judge’s analysis and rulings were

biased in favor of the agency, such an argument is unavailing. The Board will not

infer bias based on an administrative judge’s case-related rulings, Vaughn v.

Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013), and we find that the

appellant’s broad allegation of bias is insufficient to rebut the presumption of the

administrative judge’s honesty and integrity, see Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980).

Accordingly, we affirm the compliance initial decision denying the

appellant’s petition for enforcement.

NOTICE OF APPEAL RIGHTS3

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

3

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.

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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

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

any attorney will accept representation in a given case. 

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(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

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: 

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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.4 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). 

4 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
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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