Kevin Mertens v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN P. MERTENS, DOCKET NUMBER
Appellant, PH-0752-21-0092-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 6, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin P. Mertens , Roseburg, Oregon, pro se.
Colleen M. Shook , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed without prejudice to refiling his appeal of the agency’s removal action .
On petition for review, the appellant challenges the administrative judge’s rulings
on discovery matters and his affirmative defenses, questions the accuracy of
conference summary orders, accuses the administrative judge of bias, and
requests that his appeal be transferred to another administrative judge. Generally,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
In a February 18, 2021 pleading, the appellant requested that his appeal be
dismissed without prejudice, stating that he required additional time to prosecute
his appeal due to delays caused by the ongoing COVID-19 pandemic. Initial
Appeal File (IAF), Tab 21 at 6. After convening a recorded telephonic
conference to address the appellant’s motion, the administrative judge issued an
initial decision dismissing the appeal without prejudice to refiling, concluding
that, consistent with the appellant’s request, dismissal was appropriate to
“facilitate efficient litigation of the appeal, conserve resources, and to avoid a
lengthy continuance.” IAF, Tab 28, Initial Decision (ID) at 1-2 see IAF,
Tabs 26-27. The administrative judge informed the appellant that he must refile
the appeal “by no later than August 30, 2021, but no sooner than May 4, 2021
– which is the date after which this decision becomes final. ” ID at 2 (emphasis
in original). The appellant timely filed a petition for review on April 27, 2021, in
which he challenges the administrative judge’s prior rulings on discovery matters
and his affirmative defenses, questions the accuracy of her conference summary
orders, accuses her of bias, and requests that she be disqualified and the case be
reassigned to a new administrative judge in the Western Regional Office.
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Petition for Review (PFR) File, Tab 1 at 2-17. The agency has filed a response
requesting that the petition for review be denied, noting that the appellant is not
challenging the administrative judge’s decision to dismiss without prejudice the
appeal and is instead challenging her prior rulings and arguing that his dismissal
request should have been granted earlier. PFR File, Tab 3 at 6-7. The agency
also argues that the Board should treat the appellant’s timely petition for review
as a timely filed petition for appeal. Id. at 7-8; see Desmond v. Department of
Veterans Affairs, 90 M.S.P.R. 301, ¶¶ 6-7 (2001).
An administrative judge has wide discretion to control the proceedings
before her, and a dismissal without prejudice to refiling is a procedural option left
to her sound discretion. Desmond, 90 M.S.P.R. 301, ¶ 4. We have reviewed the
record, including the telephonic status conference recording, and have not found
any evidence that the administrative judge abused her discretion in dismissing the
appeal without prejudice. Instead, she exercised her sound discretion in the
interest of efficiency to allow the parties to resolve their ongoing discovery issues
and to afford the appellant with additional time to prepare his case in light of
delays caused by the ongoing COVID-19 pandemic. ID at 1-2; see IAF, Tab 27
at 1-3. We find that this is a proper use of her discretion, and we will not disturb
the initial decision here.
We further decline to address the appellant’s remaining arguments on
review. See Lewis v. Department of the Air Force, 69 M.S.P.R. 40, 44 (1995)
(stating that if an appeal has been dismissed without prejudice in an initial
decision and the appellant then files a petition for review of that decision, the
Board will not consider arguments raised on review concerning discovery
disputes or other matters that should be considered by the administrative judge
once the appeal has been refiled). Because the Board treats an appellant’s timely
petition for review of an initial decision dismissing the appeal without prejudice
as a timely refiled petition for appeal, Desmond, 90 M.S.P.R. 301, ¶ 6, the
appellant may present his assertions regarding continuing discovery disputes, the
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scope of his affirmative defense claims, and any other claims to the
administrative judge, id. Accordingly, we deny the petition for review, and we
forward this case to the New York Field Office for adjudication on the merits.
This is the final decision of the Merit Systems Protection Board regarding the
initial decision dismissing the appeal without prejudice to refiling. 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 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.
(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
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.
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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
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
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(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.
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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.