Mitch Wine v. Department of the Interior

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE, DOCKET NUMBER
Appellant, DA-4324-21-0377-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: February 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mitch Wine, Mountain View, Arkansas, pro se.
Lindsey Gotkin, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal with prejudice. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication 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 affec ted 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. Except as expressly
MODIFIED to address the appellant’s Appointments Clause claims , we AFFIRM
the initial decision.
¶2 The appellant filed this appeal in August 2021 alleging that the agency had
violated the Uniformed Services Employment and Reemployment Rights Act of
1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) by failing to
reemploy him. Initial Appeal File (IAF), Tab 1 at 4. In Octobe r 2021, the agency
filed a request for sanctions. IAF, Tab 18. The agency alleged that in response to
a request that the appellant not communicate directly with agency employees,
the appellant sent several emails to agency counsel with threatening and
inappropriate language. Id. at 4-7, 10-15. The agency requested a variety of
sanctions up to and including dismissal of the appeal. Id. at 8-9. The appellant
opposed the agency’s request and requested sanctions against the agency for
alleged felonies and violations of the appellant’s Constitutional rights.
IAF, Tab 19. The administrative judge denied the agency’s request to sanction
the appellant because the Board had not warned him about his conduct during the
processing of this appeal. IAF, Tab 21 at 3. However, the administrative judge
explicitly warned the appellant that if he engaged in any further instances of
unacceptable conduct in relation to parties, wit nesses, or Board personnel,
3
the Board would issue sanctions “that may include dismissal of this appeal with
prejudice.” Id. The administrative judge denied the appellant’s motion for
sanctions. Id. at 4.
¶3 Less than a month later, the agency filed another request for sanctions.
IAF, Tab 30. The agency alleged that after the administrative ju dge had warned
the appellant about his conduct, the appellant engaged in several further incidents
of inappropriate and/or threatening communications towards agency employees.
Id. at 7-8. The agency again requested dismissal of the appeal with prejudice.
Id. at 8. The appellant responded in opposition to the agency’s motion. IAF, Tab
31. While the motion for sanctions was pending, the appellant requested
certification of an interlocutory appeal regarding several prior rulings by the
administrative judge. IAF, Tab 35. After the administrative judge denied his
request, IAF, Tab 36, the appellant filed an objection in which he called the
administrative judge a liar, described him as lazy and corrupt, and accused him of
committing felonies, IAF, Tab 37. He also repeatedly threatened to perform
citizen’s arrests of agency officials who he alleged were withholding evidence
and asserted that such arrests could involve the use of lethal force. Id.¶4 On November 18, 2021, the administrative judge issued an order to the
appellant to show cause why he should not be sanctioned for unacceptable
conduct and failures to comply with Board orders. IAF, Tab 38. He specifically
cited the “inflammatory comments” made in the appellant’s objection to the
denial of his request for an interlocutory appeal. Id. at 1. The administrative
judge gave the appellant until November 22, 2021 to respond to the show cause
order. Id. at 2. The appellant filed a timely response on November 19, 2021.
IAF, Tab 39. In his response, he called the administrative judge lazy
and incompetent and accused him of committing crimes. Id. at 5-6.
The appellant filed two additional pleadings related to the merits of his appeal on
November 21, 2021. IAF, Tabs 40-41. On November 23, 2021, the day after the
deadline set by the administrative judge, the appellant filed another response to
4
the show cause order. IAF, Tab 42. In addition to suggesting that officials of the
Board and the Office of Special Counsel were biased against him, the appellan t
argued for the first time in that pleading that the administrative judge was not
properly appointed under the Appointments Clause of the U.S. Constitution.
Id. at 5-6.
¶5 The administrative judge issued an initial decision dismissing the appeal on
November 23, 2021. IAF, Tab 43, Initial Decision (ID). The administrative
judge acknowledged the appellant’s pleading filed earlier the same day but found
that it was untimely. ID at 7. The administrative judge determined that despite
clear warnings 2 regarding his conduct in relation to this appeal, the appellant
repeatedly engaged in unacceptable conduct “which includes both direct and
indirect threats to multiple individuals.” ID at 8. He therefore concluded that the
severe sanction of dismissal with prejudice was warranted. Id.¶6 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He argues that the administrative judge
failed to timely decide his appeal on the merits, and he challenges the
administrative judge’s rulings on jurisdictional and discovery matters. Id. at 4-7.
He also reiterates his argument regarding the appointment of the administrative
judge. Id. at 7. The appellant has filed a supplement to his petition for review
that further addresses the appointment of the administrative judge. PFR File,
Tab 2. The agency has filed a response in opposition to the petition for review,
PFR File, Tab 4, and the appellant has filed a reply, PFR File, Tab 5.
2
In addition to the warning included in his order denying the agency’s first motion for
sanctions, the administrative judge also cited a September 14, 2021 letter from the
Office of the Clerk of the Board regarding the appellant’s interactions with the Board.
ID at 3-4, 8.
5
The appellant did not timely raise his argument regarding the appointment of the
administrative judge.
¶7 As noted above, the appellant first raised his argument regarding the
appointment of the administrative judge in his untimely supplemental response to
the administrative judge’s show cause order. IAF, Tab 42. The Board held in
McClenning v. Department of the Army, 2022 MSPB 3, that such claims are
subject to its existing regulations and precedent requiring parties to timely raise
issues during Board adjudications. Among other things, the Board’s regulations
provide that the Board generally does not accept arguments raised after the close
of the record before the administrative judge. Id., ¶ 11; 5 C.F.R. § 1201.59(c).
The regulations allow new arguments to be raised only if they were not readily
available before the record closed or are in rebuttal to new argument raised by the
other party just before the record closed. 5 C.F.R. § 1201.59(c). We find that
neither of those conditions is met in this case and that therefore the administrative
judge properly did not consider the appellant’s November 23, 2021 submission.
See McClenning, 2022 MSPB 3, ¶¶ 12-13 (finding that discovery of a new legal
argument regarding the Appointments Clause does not excuse the failure to raise
that claim before the close of the record). Because the appellant did not timely
raise his Appointments Clause argument before the administrative judge, we will
not consider it on petition for review. Id., ¶ 25.
The administrative judge acted within his discretion by dismissing the appeal
with prejudice.
¶8 An administrative judge may impose sanctions upon the parties as necessary
to serve the ends of justice. 5 C.F.R. § 1201.43. Before imposing a sanction, the
judge shall provide appropriate prior warning, allow a response to the actual or
proposed sanction when feasible, and document the reasons for any resulting
sanction in the record. Id. The sanction of dismissal with prejudice is a severe
sanction, and the Board has held that it should only be imposed when: (1) a party
has failed to exercise due diligence in complying with Board orders; or (2) a party
6
has exhibited negligence or bad faith in its efforts to comply. Morris v.
Department of the Navy, 123 M.S.P.R. 662, ¶ 12 (2016).
¶9 Here, the administrative judge explicitly warned the appellant after the
agency submitted emails in which the appellant made a number of extremely
inappropriate comments. For example, those emails included the following
statements: (1) “I know you’d like [agency official] to rape more women ”; (2)
“Fuck you. If you want to fight, then come get me. Bring your punk husband.
See what happens to him”; (3) “I’ll bring [agency official] to justice in ways
he wishes weren’t legal”; (4) “You want to square up with me? You’d last
seconds.” IAF, Tab 18 at 10-11. The administrative judge explicitly warned the
appellant that further unacceptable conduct could result in the dismissal of his
appeal. IAF, Tab 21. Despite that warning, the appellant filed a pleading in
which he repeatedly insulted the administrative judge and threatened to use
deadly force in citizen’s arrests of agency officials. IAF, Tab 37. Then, in
response to an order to show cause why his appeal should not be dismissed as a
sanction, the appellant repeated several of his insults tow ards the administrative
judge. He ended his response to the show cause order as follows: “If [the
administrative judge] is too cowardly to hold an oral conference to discuss
matters or to do his taxpayer funded job and adjudicate this case, then
he certainly does not want to risk lawful citizen’s arrest.” IAF, Tab 39 at 7.
¶10 Determinations regarding the imposition of sanctions are left to the sound
discretion of the administrative judge, and the Board will not overturn such
determinations absent an abuse of that discretion. Davis v. Department of
Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). We find that the administrative judge
did not abuse his discretion in dismissing the appeal with prejudice in light of the
appellant’s conduct. Despite explicit warnings about his conduct, the appellant
remained defiant and insulting in his pleadings. He informed the administrative
judge that he would not comply with the Board’s “unlawful order” and repeated
his threats to use force against agency officials who he claimed were acting
7
illegally. IAF, Tab 37 at 5. Even after the administrative judge made clear that
he was considering dismissal of the appeal as a sanction, the appellant escalated
his insulting and threatening comments towards the administrative judge.
IAF, Tab 39. We find that the appellant’s repeated failure to comply with the
administrative judge’s orders and his defiance in response to warnings from the
administrative judge constitute a lack of due diligence and demonstrate that
he was acting in bad faith. We therefore find that dismissal was appropriate. See
Morris, 123 M.S.P.R. 662, ¶ 14 (dismissing a petition for review for repeated
failure to comply with directions from the Clerk of the Board and using
inappropriate and insulting language towards Board employees).
NOTICE OF APPEAL RIGHTS 3
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 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 an d 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. Failu re 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, th e
Board cannot advise which option is most appropriate in any matter.
8
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
9
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:
10
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 ch allenge 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.
11
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.