Dina Jackson v. Department of State ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DINA T.L. JACKSON, DOCKET NUMBER
Appellant, DC-1221-17-0104-W-1
v.
DEPARTMENT OF STATE, DATE: March 28, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donald M. Temple, Esquire, Washington, D.C., for the appellant.
Marianne Perciaccante, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 On February 27, 2017, the appellant filed a petition for review of the initial
decision that dismissed her individual right of action appeal for lack of
jurisdiction. Initial Appeal File, Tab 15, Initial Decision; Petition for Review
(PFR) File, Tab 1. Thereafter, on March 24, 2017, the agency filed a response to
the petition for review and a cross petition for review of the initial decision. PFR
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
File, Tab 3. On May 8, 2017, the appellant submitted a consent motion, signed
by her attorney, which requested that her claims against the agency in the matter
be dismissed. PFR File, Tab 5. Three days later, on May 11, 2017, the parties
submitted a consent motion, signed by the appellant’s attorney and the agency
representative, which jointly requested that the Board grant the appellant’s
request to dismiss the pending petition for review with prejudice to refil ing. PFR
File, Tab 7.
¶2 Subsequently, on June 7, 2018, the Acting Clerk of the Board informed the
parties that, pursuant to a May 11, 2018 Delegation of Authority, the Office of the
Clerk of the Board had been “delegated authority to grant a petitioner’s request to
withdraw her petition for review.” PFR File, Tab 8 at 1-2 n.1. The order noted
the parties’ May 11, 2017 submission consenting to the dismissal of the
appellant’s petition for review with prejudice and informed the appellant that,
consistent with the May 11, 2018 Delegation of Authority, she was ordered to
submit a confirmation of her request to withdraw her petition for review. Id. at 2.
The agency responded, indicating that it did not object to the appellant’s
withdrawal of her petition for review and that it would withdraw its cross petition
for review were the appellant to first withdraw her petition. PFR File, Tab 9.
The appellant did not respond to the June 7, 2018 order or to the agency’s
response.
¶3 On August 3, 2018, the Clerk of the Board issued a second order, which
noted the appellant’s failure to respond to the June 7, 2018 order and instructed
her to file a brief pleading confirming her request to withdraw within 7 days of
the second order. PFR File, Tab 10 at 1-2. That order also stated that, “[i]f the
appellant does not file a pleading confirming her intent, no further action will be
taken by the Office of the Clerk of the Board to process the appellant’s request to
withdraw the petition for review under the May 11, 2018 policy signed by
Vice Chairman Mark A. Robbins, and the Board will instead issue a decision
3
following the restoration of a Board quorum.” Id. at 1-2 (emphasis removed).
The appellant again did not respond.
¶4 Thereafter, the Clerk of the Board issued an order informing the parties
that, “[i]n light of the appellant’s failure to confirm her intent to withdraw the
petition for review, the Office of the Clerk of the Board will take no further
action to process the appellant’s request to withdraw the petition for review under
the May 11, 2018 policy.” PFR File, Tab 11 at 2 (emphasis removed). The order
further informed the parties that the appellant’s petition for review and the
agency’s cross petition for review would be returned to the Board for
consideration and that the Board would issue a decision on the petition for review
and the cross petition for review following the restoration of a Board quorum. Id.
at 2.
¶5 Now that a Board quorum has been restored, we can act on the matters
presented on review. Although the appellant did not avail herself of the option of
having the Clerk of the Board dismiss her petition for review as withdrawn
pursuant to the May 11, 2018 Delegation of Authority, we discern no basis not to
give effect to the parties’ May 2017 consent motion, signed by both the
appellant’s attorney and the agency’s representative, which jointly requested the
voluntary dismissal of the pending petition for review with prejudice to refiling.
PFR File, Tab 7. We find that withdrawal of the petition for review is appropriate
under the circumstances. In addition, because the agency indicated that it would
withdraw its cross petition for review if the appellant withdrew her petition for
review, we find that withdrawal of the cross petition for review also is
appropriate under the circumstances. PFR File, Tab 9.
¶6 Accordingly, we DISMISS the petition for review and the cross petition for
review as withdrawn with prejudice to refiling.
4
¶7 The initial decision of the administrative judge is final. This is the Board’s
final decision in this matter. Title 5 of the Code of Federal Regulations,
section 1201.113 (5 C.F.R. § 1201.113).
NOTICE OF APPEAL RIGHTS 2
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 b elow 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.
(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).
2
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
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 ou r 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
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
6
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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(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. 3 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
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3
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 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
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.