Robert Broome v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BROOME, DOCKET NUMBER
Appellant, DC-0831-18-0676-I-1
v.
OFFICE OF PERSONNEL DATE: June 21, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Robert Broome, King George, Virginia, pro se.
Carla Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, w hich
dismissed his appeal as withdrawn. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 On July 5, 2018, the Office of Personnel Management (OPM or agency)
issued a final decision recalculating the appellant’s annuity benefit under the
Civil Service Retirement System. Initial Appeal File (IAF), Tab 6 at 4-5. On
July 16, 2018, the appellant filed a Board appeal contesting OPM’s computation.
IAF, Tab 1. In an August 13, 2018 order, the administrative judge informed the
parties that he would initiate a telephonic status conference on September 5,
2018. IAF, Tab 4.
¶3 The agency representative was present for the September 5, 2018 status
conference, but the appellant did not appear. IAF, Tab 7 . The agency
representative told the administrative judge that she had spoken with the appellant
and that the appellant had told her he wished to withdraw his appeal. Id. The
following day, September 6, 2018, the administrative judge issued an order
summarizing the status conference. Id. He notified the appellant that if he
withdrew his appeal, it would be dismissed with prejudice, and he directed the
appellant to notify the Board of his decision by September 14, 2018. Id. The
administrative judge stated that if he did not receive notice by that date, he would
dismiss the appeal as withdrawn. Id. The appellant did not respond to the order,
and on September 18, 2018, the administrative judge issued an initial decision
dismissing the appeal. IAF, Tab 8, Initial Decision.
¶4 On October 15, 2018, the appellant filed a timely petition for review, in
which he contended that he never asked to withdraw his appeal. Petition for
Review (PFR) File, Tab 1 at 2. The agency filed a response. PFR File, Tab 3.
¶5 Subsequently, on January 24, 2023, the appellant submitted an additional
pleading, in which he requested that the Board “end adjudication” of the case.
PFR File, Tab 10. On January 27, 2023, the Acting Clerk of the Board issued an
3
order instructing the appellant to file a pleading within 7 days of the order
confirming whether he wished to withdraw his petition for review pursuant to the
Board’s June 28, 2022 Policy Regarding Clerk’s Authority to Grant Requests to
Withdraw Petitions for Review. 2 PFR File, Tab 11 at 2. The order explained that
if the appellant did not respond to the order within 7 days, the Board would
assume that he did not wish to withdraw his petition for review and would instead
issue a decision on the petition. Id. The appellant did not respond within 7 days
but filed a response over 3 months later that did not clearly confirm his intent to
withdraw his petition. PFR File, Tab 12. The Acting Clerk of the Board issued
another order, again ordering the appellant to confirm whether he wished to
withdraw his petition and explaining that if he did not respond within 7 days, the
Board would assume that he did not wish to withdraw his petition for review and
would instead issue a decision on the petition. PFR File, Tab 13. The appellant
did not respond.
ANALYSIS
¶6 Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and
in the absence of unusual circumstances such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it had been
withdrawn. Cason v. Department of the Army, 118 M.S.P.R. 58, ¶ 5 (2012).
However, a relinquishment of one’s right to appeal to the Board must be by clear,
unequivocal, and decisive action. Id.¶7 Here, the appellant did not take any affirmative step to inform the
administrative judge of a desire to withdraw his appeal. Rather, he failed to
2
Pursuant to the Board’s Delegations Manual at § 2.3.5.1, the Office of the Clerk of the
Board has delegated authority to grant a petitioner’s request to withdraw his petition for
review. Vice Chairman Cathy A. Harris, Member Raymond A. Limon and former
Member Tristan L. Leavitt issued a policy effective June 28, 2022, stating that the
Clerk may now exercise the delegated authority to grant a withdrawal of a petition for
review when requested by a petitioner if there is no apparent untimeliness of the
petition and if no other party objects to the withdrawal .
4
respond to the administrative judge’s order to clarify whether he wished to
withdraw his appeal or not. While the appellant’s noncompliance with that order
might have warranted a sanction under 5 C.F.R. § 1201.43, his silence did not
amount to a clear, unequivocal, and decisive action to relinqui sh his appeal right.
See Lopez v. Department of the Interior, 94 M.S.P.R. 393, ¶ 6 (2003) (concluding
that when the appellant was pro se, there was no record of her request to
withdraw her appeal, and she asserted on review that she did not intend to
withdraw her appeal, she did not clearly, unequivocally, and decisively withdraw
her appeal); Spencer v. Railroad Retirement Board, 93 M.S.P.R. 80, ¶ 5 (2002)
(same). Furthermore, as discussed above, the appellant has not clearly indicated
that he wishes to withdraw his petition for review of the initial decision.
Accordingly, we reinstate the appeal.
ORDER
¶8 For the reasons discussed above, we vacate the initial decision and remand
this case to the regional office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.