Elaine M. Woods v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELAINE M. WOODS, DOCKET NUMBER
Appellant, CH-0752-15-0535-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 17, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elaine M. Woods, Overland Park, Kansas, pro se.
Daniel Piccaluga, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction based on the appellant’s expressed
intent to withdraw her appeal. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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.
BACKGROUND
¶2 On June 25, 2015, the appellant filed a Board appeal in which she asserted
that she was appealing her alleged indefinite suspension, the cancellation of her
enrollment for two training courses, and her denial of a promotion from “Trainee
Status” to “Qualified Status.” Initial Appeal File (IAF), Tab 1 at 4-5. The
appellant also asserted that the agency’s actions constituted harmful error and
were taken in reprisal for her prior equal employment opportunity (EEO) activity
and protected whistleblowing activity. Id. at 17-19. The administrative judge
issued a jurisdictional order informing the appellant of her burden of establishing
that her appeal was within the Board’s jurisdiction. IAF, Tab 7 at 1. The order
also informed the appellant of the Board’s jurisdiction over appeals of adverse
actions, including indefinite suspensions, and ordered her to provide evidence and
argument, such as a letter or notice from the agency demonstrating that she had
been indefinitely suspended. Id. at 1-2.
¶3 In response, the agency filed a motion to dismiss asserting that the Board
lacks jurisdiction because, among other things, the appellant had not been
subjected to an adverse action under 5 U.S.C. § 7512. IAF, Tab 10 at 6-7.
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Consequently, the administrative judge issued a show cause order directing the
appellant to respond to the agency’s jurisdictional arguments. IAF, Tab 13 at 2.
In her response, the appellant indicated that she was withdrawing her appeal and
would pursue her claims before the Equal Employment Opportunity Commission.
IAF, Tab 20 at 6-7. The appellant’s withdrawal was signed, dated, and notarized.
Id. at 7. Based on the appellant’s withdrawal of her appeal, the administrative
judge dismissed the appeal for lack of jurisdiction. IAF, Tab 21, Initial
Decision (ID).
¶4 The appellant has filed a petition for review in which she asserts that she is
reversing her decision to withdraw her appeal, which she made under stress and
as a result of the agency’s arguments that the Board lacks jurisdiction over her
appeal. Petition for Review (PFR) File, Tab 1 at 3-5. The agency has opposed
the appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An appellant’s withdrawal of an appeal is an act of finality that removes the
appeal from the Board’s jurisdiction. Drummond v. Department of
Defense, 91 M.S.P.R. 231, ¶ 4 (2002). The Board will not reinstate an appeal
withdrawn by an appellant absent unusual circumstances, such as if the appellant
received misinformation, was under mental distress, or presents new and material
evidence. Id.; Auyong v. Department of the Navy, 97 M.S.P.R. 267, ¶ 4 (2004).
¶6 Here, we discern no basis upon which to reinstate the appeal. While the
appellant claims that she was under stress, she fails to show that she was unable
to understand fully the effect of her withdrawal. See Auyong, 97 M.S.P.R. 267,
¶ 7 (finding that the appellant’s medical evidence showing that she suffered from
a mental illness did not warrant reinstatement of her withdrawn appeal because
she did not show that, as a result of this illness, she was unable to fully
understand the nature of her withdrawal). In addition, she has failed to introduce
new and material evidence. To the extent she is alleging that her withdrawal was
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the result of misinformation, the record does not support such a finding. Nor do
we discern any other extraordinary circumstances that might warrant reinstating
the appeal. Accordingly, we affirm the initial decision dismissing the appeal
as withdrawn.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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
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at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.