George Duggan v. Department of Defense ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE DUGGAN, DOCKET NUMBER
Appellant, SF-1221-14-0544-W-1
v.
DEPARTMENT OF DEFENSE, DATE: February 2, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
John Ota, Esquire, Alameda, California, for the appellant.
Mark Hostetter, Esquire, San Jose, California, for the appellant.
Kenya M. Gregory, Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed without prejudice his individual right of action appeal. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 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. See 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, and based on the following
points and authorities, 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. Except as expressly MODIFIED by this Final
Order, 2 we AFFIRM the initial decision.
¶2 On May 7, 2014, the appellant filed this appeal alleging retaliation for
whistleblowing. See Initial Appeal File (IAF), Tab 1. On August 22, 2014, the
administrative judge dismissed the appeal without prejudice after the parties
jointly requested postponement for the purpose of concluding discovery. IAF,
Tab 25, Initial Decision (ID) at 2-3. In the initial decision, the administrative
judge also ruled on motions to compel brought by both parties. ID at 1-2; see
IAF, Tabs 14, 17. He denied as moot the agency’s motion to compel and granted
the appellant’s motion in part. ID at 1-2. He limited the scope of production for
some of the appellant’s document production requests, and he denied others. He
also denied some of the appellant’s interrogatories. ID at 2. Additionally, he set
deadlines for discovery and the filing of prehearing submissions. ID at 3. He
scheduled redocketing for October 20, 2014, and the hearing for November 18
through 20, 2014. ID at 3. The appellant filed this petition for review on
2
The administrative judge erroneously included mixed-case appeal rights pursuant to
5 U.S.C. §§ 7702(b)(1) and 7703(b)(1). We have corrected the notice of appeal rights.
3
September 26, 2014, however, and the case has not been refiled. See Petition for
Review (PFR) File, Tab 1.
¶3 The petition for review does not address the administrative judge’s
dismissal of the appeal. Instead, he contends that the administrative judge abused
his discretion by denying some parts of his July 15, 2014 Motion to Compel
Further Responses to Interrogatories and Requests for Production of Documents.
See IAF, Tab 14. He contends that the agency waived any possible objections to
his requests for production of documents by untimely serving its response. See
PFR File, Tab 1 at 10. Even if the agency’s response had been timely, he argues,
the administrative judge abused his discretion by denying the discovery of
evidence relevant to his whistleblower claim. Id. at 10-15. Regarding the request
for interrogatories, the appellant contends that the agency “refus[es] to provide
any responsive information” and that none of the agency’s responses are “verified
or signed,” as required by Rule 33(b)(3), (5) of the Federal Rules of Civil
Procedure. Id. at 16. The appellant requests that the Board remand the appeal to
the administrative judge for adjudication “with instructions directing [him] to
order the Agency to provide all of the documents requested by Appellant . . . and
complete, non-evasive responses to Appellant’s Interrogator[ies].” Id. at 4.
¶4 The appellant’s pleading most closely resembles a motion for an
interlocutory appeal, and the Board will consider it on that basis. See 5 C.F.R.
§ 1201.91 (“An interlocutory appeal is an appeal to the Board of a ruling made by
a judge during a proceeding.”); cf. Special Counsel v. Woods, 26 M.S.P.R. 463,
464 (1985) (a pleading entitled “Petition for Mandamus” seeking review of
administrative law judge’s stay order would be considered under Board rules
governing interlocutory appeals). As such, the motion is improperly filed with
the Board as well as untimely. Board regulations require parties seeking
interlocutory review to “file a motion for certification within 10 days of the date
of the ruling to be appealed” with the administrative judge. 5 C.F.R.
§ 1201.93(a).
4
¶5 The appellant did not file a motion for certification with the administrative
judge within 10 days after the initial decision was issued. He instead filed a
timely petition for review on the last day of the filing period. See PFR File,
Tab 1 at 1; ID at 1, 3; see also 5 C.F.R. § 1201.114(e). Accordingly, the Board
will not consider his uncertified motion for an interlocutory appeal. 3 See, e.g.,
Sparrow v. Department of the Navy, 26 M.S.P.R. 335, 336 n.* (1985). Because
the appellant has expressed a clear intention to pursue adjudication of his appeal,
however, we FORWARD the appeal to the regional office for immediate refiling.
See PFR File, Tab 1 at 4, 18-19.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
3
In any event, we have examined the pleadings and find that the issues presented are
most appropriately addressed in the first instance by the administrative judge. The
administrative judge has extensive knowledge of the record and issues and broad
discretion in matters govern ing discovery. See Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992) (the Board will not reverse an administrative
judge’s rulings on discovery matters absent an abuse of discretion), aff’d, 996 F.2d
1236 (Fed. Cir. 1993) (Table). Regarding the appellant’s contention that the
interrogatories do not meet the requirements of the Federal Rules of Civil Procedure,
we note that the Board looks to the rules for guidance but is not bound by them. Hebert
v. Department of the Navy, 57 M.S.P.R. 68, 72 (1993); see PFR File, Tab 1 at 16.
5
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
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appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.