UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

TIMOTHY J. HOEFT,

Appellant,

v.
DEPARTMENT OF THE TR EASURY,

Agency. DOCKET NUMBER SF

- 0752

- 16

- 0203

- I

- 1

DATE: January 19, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard D. Senders , Esquire, Portland, Oregon, for the appellant.

Richard I. Anstruther , Esquire, San Francisco, California, for the agency.

BEFORE Cathy A. Harris
, Vice Chairman Raymond A. Limon
, Member Tristan L. Le avitt , Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal

. 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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

or regulation or the erroneous a pplication 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 affec ted 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.
The refore, 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 The appellant ’ s petition for review generall y challenges the administrative judge ’ s findings that the agency proved the charges, that the appellant failed to
establis h his affirmative defenses, that the agency established nexus , and that the penalty is within the bounds of reasonableness

. 2 Petition for Review Fi le, Tab 1

. We have considered the appellant ’ s challenge to these findings
, and because we discern no error in the administrative judge ’ s well

- reasoned initial decision regarding these matters, we will not disturb them

. 3 See Crosby v. U.S. P ostal

2 The appellant attaches eight exhibits to his petition for review . Of those attachments, Exhibits 3 and 5 were not previously submitted into the record. Exhibit 3 appears to be an excerpt from an agency ’ s policy guide. It was available to the appellant prior to the close of the record and thus is not previously unavailable. Exhibit 5 is an unsigned and undated declaration from a person who was approved to testify as a witness for the app ellant bu t was not called. The declaration also was available prior to the close of the record and thus is not new. Under 5 C.F.R. § 1201.115 , the Board 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. Avansino v. U.S. Postal Service
, 3 M.S.P.R. 211 , 214 (1980). The remaining exhibits are excerpts of documents already in the record. Because these documents are already part of the record, Initial Appeal File (IAF), Tab 18 at 93

– 97, they do not constitute new evidence. See Meier v. Department of the Interior
, 3 M.S.P.R. 247, 256 (1980).

3 In discussing specification 1 of charge 2, the administrative judge referred to an agency policy that appears to only apply to attorne ys, which the appellant is not. IAF, Tab 38, Initial Decision at 11

- 12; IAF, Tab 31 at 95. This error by the administrative3

Service , 74 M.S.P.R. 98 , 105

- 06 (1997) (finding no reason to disturb the administrative judge ’ s findings when 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 RIG HTS 4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your cla ims 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 Mer it 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 y ou 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 yo ur 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 c ase, 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.

judge provides no basis to disturb the initial decision
, as the record shows that the appellant did not have the required permissi on to engage in the activities that formed the basis of the specification. IAF, Tab 13 at 5.

4 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.4

Court of Appeals for the Federal Circui t, 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 Appeal s 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) J udicial 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 d iscrimination. 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.

____ , 137 S. Ct. 1975 (2017). If you have a5

representative in this case, and your representative recei ves 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 ori gin, 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 rec eives 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 Fede ral Operations Equal Employment Opportunity Commission

131 M Street, N.E. Suite 5SW12G Washington, D.C. 205076

(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 se ction 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. 5 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 Feder al 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
Circ uit 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.

5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 2 7, 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 Fed eral 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 are interes ted 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 appell ants 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 w ebsites, 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