Verna Spotted_Wood v. Department of Health and Human Services ( 2024 )


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  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    VERNA SPOTTED WOOD,                             DOCKET NUMBER
    Appellant,                         DE-0351-18-0378-I-1
    v.
    DEPARTMENT OF HEALTH AND                        DATE: March 25, 2024
    HUMAN SERVICES,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Verna Spotted Wood , Sergeant Bluff, Iowa, pro se.
    Carol Liang , Denver, Colorado, for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    FINAL ORDER
    The appellant has filed a petition for review of the initial decision, which
    dismissed her appeal as withdrawn. 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 or regulation or the erroneous application of the law to
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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).
    BACKGROUND
    Effective July 27, 2018, the agency separated the appellant from service
    due to a reduction in force (RIF). Initial Appeal File (IAF), Tab 1 at 6. On
    August 6, 2018, the appellant filed a Board appeal challenging her separation and
    she requested a hearing.    
    Id. at 2
    .   On her Board appeal form, the appellant
    alleged that the agency committed a prohibited personnel practice (PPP) by its
    “refusal to compete for openings.” 
    Id. at 3
    .
    The administrative judge issued an order directing the appellant to identify
    which aspects of the RIF she was challenging and what PPP the agency allegedly
    committed. IAF, Tab 4. The appellant did not respond. The administrative judge
    then issued an order informing the appellant that, if she wanted to withdraw her
    appeal, she should file a submission clearly stating so as soon as possible. IAF,
    Tab 11. The administrative judge explained that, if the appellant’s withdrawal
    appeared to be voluntary, he would dismiss her appeal as withdrawn with
    prejudice. 
    Id.
    The appellant then filed a submission withdrawing her Board appeal. IAF,
    Tab 12.   The administrative judge found that the appellant’s withdrawal was
    3
    knowing and voluntary, and he issued an initial decision dated August 24, 2018,
    that dismissed the appeal as withdrawn. IAF, Tab 13, Initial Decision (ID).
    In her timely petition for review, the appellant asserts that she has evidence
    pertaining to her PPP claim that was not available during the proceedings below.
    Petition for Review (PFR) File, Tab 1 at 3-4. With her petition, the appellant
    submits an August 31, 2018 letter from the Office of Special Counsel (OSC)
    notifying her of its decision to terminate its inquiry into her complaint 2 alleging
    that agency officials discriminated against her based on her age in conducting the
    RIF. 
    Id. at 6-7
    . The agency has filed a response in opposition to the petition for
    review. PFR File, Tab 3.
    ANALYSIS
    The administrative judge properly dismissed the appeal as withdrawn,
    An appellant’s withdrawal of an appeal is an act of finality that has the
    effect of removing the matter from the Board’s jurisdiction.        Lincoln v. U.S.
    Postal Service, 
    113 M.S.P.R. 486
    , ¶ 7 (2010). A voluntary withdrawal must be
    clear, decisive, and unequivocal.    
    Id.
     The appellant made such a withdrawal,
    explicitly stating in writing her intent to withdraw her appeal. IAF, Tab 12. We
    therefore find that the administrative judge did not err in dismissing the appeal as
    withdrawn. Lincoln, 
    113 M.S.P.R. 486
    , ¶¶ 7-8.
    The appellant has not shown unusual circumstances warranting the reinstatement
    of her appeal.
    Absent unusual circumstances, such as misinformation or new and material
    evidence, the Board will not reinstate an appeal once it has been withdrawn.
    Lincoln, 
    113 M.S.P.R. 486
    , ¶ 9. The appellant has not alleged that she withdrew
    her appeal based on misinformation. See generally PFR File, Tab 1.
    The evidence the appellant submits with her petition for review, OSC’s
    August 31, 2018 closeout letter, PFR File, Tab 1 at 6-7, is new because it was
    2
    In her petition for review, the appellant indicates that she filed her OSC complaint
    while her appeal was pending before the administrative judge. PFR File, Tab 1 at 3.
    4
    unavailable before the record closed below. See Avansino v. U.S. Postal Service,
    
    3 M.S.P.R. 211
    , 214 (1980). It is not material, however, because the appellant
    has made no showing that OSC’s decision to terminate its inquiry into her age
    discrimination claim would warrant an outcome different from that of the initial
    decision.   See Russo v. Veterans Administration, 
    3 M.S.P.R. 345
    , 349 (1980)
    (holding that the Board will not grant a petition for review based on new evidence
    absent a showing that it is of sufficient weight to warrant an outcome different
    from that of the initial decision). Although the appellant could have raised her
    age discrimination claim as an affirmative defense in an otherwise appealable
    action appeal, she chose to withdraw that appeal and pursue her discrimination
    claim with OSC instead. OSC’s decision to terminate its inquiry into that claim
    has no bearing on the voluntariness of her withdrawal.                 Therefore, the
    circumstances in this appeal do not provide a basis on which to reinstate the
    appeal.
    NOTICE OF APPEAL RIGHTS 3
    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.
    3
    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
    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 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
    6
    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
    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.
    7
    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
    (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. 4 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).
    4
    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 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:                        ______________________________
    Gina K. Grippando
    Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DE-0351-18-0378-I-1

Filed Date: 3/25/2024

Precedential Status: Non-Precedential

Modified Date: 3/26/2024