F Midyett v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
F. ALLAN MIDYETT, DOCKET NUMBER
Appellant, DA-4324-15-0569-I-2
v.
DEPARTMENT OF VETERANS DATE: October 14, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
F. Allan Midyett, Fayetteville, Arkansas, pro se.
LaTasha C. Clark and John Michael Coleman, Jackson, Mississippi, 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
dismissed without prejudice his appeal under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 On June 26, 2017, the administrative judge issued an initial decision that
dismissed this appeal without prejudice, subject to refiling no later than
October 2, 2017, to allow the appellant a reasonable period of time to obtain
another representative. Midyett v. Department of Veterans Affairs, MSPB Docket
No. DA-4324-15-0569-I-2, Appeal File (I-2 AF), Tab 55, Initial Decision (ID)
at 2. The record reflects that, prior to issuing the initial decision, the
administrative judge issued an order excluding the appellant’s attorney from all
further proceedings in the appeal due to her unprofessional behavior during
settlement discussions on the second day of the hearing. I-2 AF, Tab 54.
According to the administrative judge, the appellant’s attorney became physically
unable to control her anger, and pointed her finger and shook it within inches of
the agency attorney’s face, causing the agency attorney to b ack away abruptly.
Id.¶3 On July 7, 2017, prior to the deadline for refiling his appeal on October 2,
2017, the appellant filed a petition for review. Petition for Review (PFR) File,
3
Tab 1. The agency has opposed the appellant’s petition, and the appella nt has
filed a reply, PFR File, Tabs 3-4. 2
¶4 We find that the appellant’s assertions on review fail to demonstrate that the
administrative judge abused her discretion in dismissing the appeal without
prejudice. An administrative judge has wide discretion to dismiss an appeal
without prejudice in the interests of fairness, due process, and administrative
efficiency, and may order such a dismissal at the request of one or both parties, or
to avoid a lengthy or indefinite continuance. Thomas v. Department of the
Treasury, 115 M.S.P.R. 224, ¶ 7 (2010). Further, the Board has found it
appropriate to dismiss an appeal without prejudice while an appellant seeks
representation. See, e.g., Cloonan v. U.S. Postal Service, 70 M.S.P.R. 226,
227-28 (1996). Thus, the record supports the administrative judge’s reason for
dismissing the appeal without prejudice to allow the appellant to obtain new
representation.
¶5 On review, the appellant also challenges the administrative judge’s ruling
excluding his attorney. He contends that his attorney, who is also his wife,
should be reinstated because she is the best qualified to represent him, she has
represented him since 2011, and she is uniquely familiar with the many thousands
of pages of documents relevant to the appeal. PFR File, Tab 1 at 3. He also
appears to assert that his attorney’s behavior during the settlement discussions
was influenced by the fact that she was undergoing treatment for a serious
2
The agency has filed a motion to strike the appellant’s repl y based on its erroneous
belief that, absent a showing of good cause, the Board does not consider pleadings by
an appellant subsequent to a petition for review. PFR File, Tab 5. The agency’s motion
is denied because the Board’s regulations allow for a reply to a response to a petition
for review. 5 C.F.R. § 1201.114(a)(4). However, such a reply must be “limited to the
factual and legal issues raised by another party in the response to the petition for
review.” Id. Accordingly, we have not considered the appellant’s arguments in his
reply to the extent they fail to respond to the agency’s arguments concerning the
administrative judge’s exclusion of the appellant’s attorney and dismissal of the appeal
without prejudice. In light of our disposition of the agency’s motion, the appellant’s
response to the agency’s motion, PFR File, Tab 6, is moot.
4
medical condition and, during the hearing, was experiencing symptoms of seve re
pain, nausea, vomiting, and hand shaking. Id. at 5-6. Finally, he appears to argue
that he cannot afford to hire an attorney, his wife’s request for assistance from the
Arkansas Bar Association Lawyer Assistance Program was denied, and if forced
to represent himself, he would experience stress that would exacerbate his health
conditions. Id. at 7-9.
¶6 The record reflects that there is a pending motion to reopen the appeal, I -2
AF, Tab 46, as well as a pending motion for a decision on the written record in
which the appellant sets forth these same arguments, I-2 AF, Tab 57. The
administrative judge has indicated that she will consider all outstanding motions
when the appeal is refiled. I-2 AF, Tab 54 at 2 n.1, Tab 58. We find that the
issues of whether, and in what context, the appellant’s attorney should be allowed
to participate in the proceeding, and/or whether the hearing should be reconvened
are most appropriately addressed in the first instance by the administrative judge.
The administrative judge has broad discretion to control the proceedings before
her. See Fritz v. Department of Health & Human Services, 87 M.S.P.R. 287, ¶ 15
(2000); 5 C.F.R. § 1201.41(b); see also Ryan v. Department of the Air Force,
117 M.S.P.R. 362, ¶ 5 (2012) (finding that the Board ordinarily will not reverse
an administrative judge’s rulings regulating the proceedings absent an abuse of
discretion); Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010)
(observing that the abuse of discretion is a very high standard and allows for
great deference).
¶7 On review, the appellant also contends that the administrative judge erred in
failing to continue the hearing after his attorney was nauseous and became
suddenly ill during the hearing as a result of treatment for her serious medical
condition. PFR File, Tab 1 at 6-7. However, the record does not reflect that the
appellant ever requested to continue the hearing. The appellant’ s remaining
arguments on review are essentially an attempt to reach the merits of the appeal,
which are irrelevant to the issue here of whether the administrative judge abused
5
her discretion in dismissing the appeal without prejudice to refiling. See Gingery
v. Department of the Treasury, 111 M.S.P.R. 134, ¶ 11 (2009). When an appeal
is dismissed without prejudice to refiling, the Board will not consider arguments
raised on review concerning matters that should be considered by the
administrative judge once the appeal has been refiled. See, e.g., Lewis v.
Department of the Air Force, 69 M.S.P.R. 40, 44 (1995).
¶8 As noted, the appellant filed his petition for review prior to the deadline the
administrative judge set for him to refile his appeal. In similar cases, we have
construed the appellant’s petition for review as notice of the appellant’s intent to
refile his appeal. See, e.g., King v. Department of the Army, 84 M.S.P.R. 235, ¶ 5
(1999). Accordingly, we forward this matter to the Dallas Regional Office for
docketing as a timely refiled appeal. 3
NOTICE OF APPEAL RIGHTS 4
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
3
Based on our finding, we need not reach the issue of whether this USERRA appeal is
barred under the doctrines of res judicata or collateral estoppel due to the appellant’s
previous USERRA appeal dismissed by the Board and/or civil actions he filed in the
United States District Court for the Western District of Arkansas. See Midyett v.
Department of Veterans Affairs, MSPB Docket No. DA-4324-12-0568-I-1, Initial
Decision (Mar. 8, 2013).
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.
6
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.
(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 Circ uit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(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. ____ , 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:
8
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. 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).
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 27, 2017. The All Circuit Review Act, signed into law by th e 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 compe tent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.