UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JULIO L. LEON, Appellant,

v.
DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER SF

- 0752

- 15

- 0602

- I

- 2

DATE: April 12, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Julio L. Leon , Miami, Florida, pro se.
Robert Gerleman
, Grand Prairie, Texas , for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member 2

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 Member Leavitt’s name is included in decisions on which the three

- member Board completed the voting process prior to his March 1, 2023 departure.2

following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regula tion 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 th e 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 120 1.115 ( 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 pe tition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s alternative finding that the agency proved by clear and convincing evidence that it would have removed the appellant in the

a bsence of his alleged protected disclosure, we AFFIRM the initial decision. ¶2 On petition for review, the appellant reasserts many of the arguments he made below and that the administrative judge , in his initial decision, found unpersuasive. Refiled Appeal File, Tab 10, Initial Decision (ID); Petition for Review (PFR) File, Tab 5. We find that the appellant’s arguments on review constitute mere disagreement with the administrative judge’s findings and do not provide a basis for reversal. See Crosby v. U.S. Postal Service
, 74 M.S.P.R. 98 , 105

- 06 (1997) (finding no reason to disturb the administrative judge’s findings
whe n she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). ¶3 The appellant submits numerous documents on review. PFR File, Tab 5

at 18

- 66, Tab 11 at 17

- 19. It appears that all of these documents predate the clos e of the record below . It also appears that many, if not all, of these documents
were omitted from th e record. The appellant seems to assert that at least some of
these documents were attached to his rebuttal to the proposed removal and3

therefore should have been submitted into the record as a part of the agency’s response to the initial appeal . PFR File, Tab 5 at 2

- 3, Tab 11 at 10. However, regardless of whether the agency should have submitted these documents into the
record below , the Board will norm ally only consider evidence submitted for the first time on review upon a showing that it previously was unavailable despite the petitioner’s due diligence. See Banks v. Department of the Air Force
, 4 M.S.P.R.
268 , 271 (1980); 5 C.F.R. § 1201.115 (d). Because the appellant has failed to make such a showing, we decline to consider his evidence. ¶4 The appellant also alleges the administrative judge was biased against him

. PFR File, Tab 5 at 3

- 4, 9, 11 . In making a claim of bias or prejudice against an administrative judge
, a party must overcome the presumption of honesty and integrit y that accompanies administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). Furthermore, an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if his or her comments or actions evince a deep

- seated favoritism or antagonism that would make fair judgment impossible. Scoggins v. Department of the Army
, 123 M.S.P.R. 592 , ¶ 19 (2016). Here, we find that the appellant merely takes exception to the fact that the adminis trative judge r uled against him and we therefore find his argument of bias to be without merit. See Thompson v. Department of the Army
, 122 M.S.P.R. 372 , ¶ 29 (2015). ¶5 For the reasons set forth in the initial decision, w e agree with the administrative judge that the appellant failed to demonstrate that he made a protected disclosure

. ID at 30

- 33. Accordingly, we modify the initial decision to vacate the administrative judge’s alternative finding that the agency proved by clear and convincing evidence that it would have removed the appellant in the absence of his alleg ed protected disclosure. ID at 33

- 35; see Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n

. 10 (2014) ( finding th at the Board may not proceed to the clear and convincing evidence test unless it has4

first determined that the appellant established his prima fac i e case), aff’d
, 623 F. App ’ x 1016 (Fed. Cir. 2015).

NOTICE OF APPEAL RIG HTS 3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nat ure 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 juri sdiction. 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 t o 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).

3 Since the issuance of the initial decision in thi s 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

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 o f 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 S ystems 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 c laim 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 judicia l 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 decisio n. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board
, 582 U.S.

____ , 137 S. Ct. 1975 (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 cla im of6

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 decis ion. 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) or7

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 prohi bited personne l 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 Circu it 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)

. 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
contai ned 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 f or information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The

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 judic ial 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. Pu b. L. No. 115

- 195, 132 Stat. 1510.8

Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a give n 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_Locato r/CourtWebsites.aspx

.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board