UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TONY KING,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

AT-0752-19-0350-I-1

DATE: October 18, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Tony King, Anniston, Alabama, pro se.

Jose Calvo, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained his removal. On petition for review, the appellant argues that he could 

not be removed while he was reinstated pursuant to an interim relief order issued 

in a prior Board appeal in King v. Department of Agriculture, MSPB Docket 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

No. AT-0752-18-0079-I-1. 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 In 2017, the agency removed the appellant from his GS-12 Enforcement 

Investigative and Analysis Officer position with the Food Safety and Inspection 

Service based on the charges of (1) unprofessional conduct and (2) failure to 

follow instructions. King v. Department of Agriculture, MSPB Docket 

No. AT-0752-18-0079-I-1, Initial Appeal File (0079 IAF), Tab 5 at 15-19, 

153-59. The administrative judge in that appeal issued an initial decision finding 

that the agency failed to prove the charges and that the appellant proved that the 

agency retaliated against him for having exercised his equal employment 

opportunity rights. 0079 IAF, Tab 25, Initial Decision at 20. She ordered interim 

relief if either party filed a petition for review, id. at 21-22, and the agency 

reinstated the appellant on that basis, King v. Department of Agriculture, MSPB

Docket No. AT-0752-19-0350-I-1, Initial Appeal File (IAF), Tab 9 at 66. The 

agency has filed a petition for review of the initial decision, which is pending 

with the Board.
3

¶3 While the appellant was employed on the basis of the interim relief order, 

the agency initiated the removal action that is the basis of this appeal. IAF, Tab 6 

at 27-32, Tab 9 at 10-15. He appealed that removal to the Board, and, after the 

appellant’s requested hearing, the administrative judge sustained the agency’s 

second removal action. IAF, Tab 29, Initial Decision. The essence of the 

appellant’s claim on review is that the second removal action was per se improper 

as contrary to the interim relief order in his first appeal. Petition for Review File, 

Tab 1. 

¶4 It is well settled that an interim relief order does not insulate an appellant 

from a subsequent adverse action so long as that action is not inconsistent with 

the initial decision. Rothwell v. U.S. Postal Service, 68 M.S.P.R. 466, 468 

(1995); Barcliff v. Department of the Navy, 62 M.S.P.R. 428, 433 (1994); see also 

Wilson v. Department of Justice, 66 M.S.P.R. 287, 291, 296–97 (1995) (finding 

that a removal action is not per se improper because it was effected during the 

interim relief period, although it was improper on its merits). When an agency 

effects a second removal action during a period of interim relief ordered in an 

initial decision in a prior removal action, and the appellant files an appeal of the 

second action, the Board considers the second removal action on its merits. See 

generally Wilson, 66 M.S.P.R. at 291, 296-97. That the appellant was reinstated 

pursuant to an interim relief order is irrelevant to the merits of the second 

removal action. Thus, the administrative judge properly adjudicated the second 

removal action on the merits and without reference to the fact that, at the time of 

his removal, the appellant was reinstated pursuant to an interim relief order.

¶5 The appellant’s arguments on review do not show error in the 

administrative judge’s findings that the agency proved the charged misconduct, 

established a nexus between the misconduct and the efficiency of the service, and 

showed that the penalty of removal was within the tolerable limits of 
4

reasonableness. We discern no reason to disturb the initial decision.

2

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 where she considered the evidence as a 

whole, drew appropriate references, and made reasoned conclusions); see also 

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987) (same).

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 

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. 

 

2

The appellant does not challenge on review the administrative judge’s findings 

regarding the affirmative defenses he raised below. 

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.
5

(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 
6

receive this decision. 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 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: 
7

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.4The 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 

 

4

The original statutory provision that provided for judicial review of ce rtain 

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. 
8

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board