Peggye Wilson v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PEGGYE WILSON, DOCKET NUMBERS
Appellant, SF-0752-21-0330-I-2
SF-1221-21-0329-W-2 1
v.
DEPARTMENT OF DEFENSE,
Agency. DATE: July 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Peggye Wilson, APO, APO/FPO Pacific, pro se.
Amos N. Jones, Esquire, Washington, D.C., for the appellant.
Holly Kay Botes, Esquire, APO, APO/FPO Pacific, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1
We have joined these two appeals on review based on our determination that joinder
will expedite processing of the cases and will not adversely affect the interests of the
parties. 5 C.F.R. § 1201.36(b).
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed petitions for review of the initial decisions, which
dismissed for lack of jurisdiction her involuntary retirement and individual right
of action (IRA) appeals. In her petitions for review, she argues that the
administrative judge erred in finding that she failed to nonfrivolously allege that
her retirement was involuntary and that she made protected disclosures or
engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(8), (9). Wilson v.
Department of Defense, MSPB Docket No. SF-0752-21-0330-I-2, Petition for
Review (I-2 PFR) File, Tab 1; Wilson v. Department of Defense, MSPB Docket
No. SF-1221-21-0329-W-2, Petition for Review (W-2 PFR) File, Tab 1.
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 regulatio n
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 these appeals, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶2 The administrative judge correctly found that the appellant failed to
nonfrivolously allege or show that her retirement was involuntary. Wilson v.
Department of Defense, MSPB Docket No. SF-0752-21-0330-I-2, Appeal File
(I-2 AF), Tab 14, Initial Decision (I-2 ID) at 10-14. We similarly agree with the
administrative judge that the appellant failed to nonfrivolously allege that she
3
made a protected disclosure or engaged in protected activity pursuant to 5 U.S.C.
§ 2302(b)(8), (9). Wilson v. Department of Defense, MSPB Docket No. SF-1221-
21-0329-W-2, Appeal File (W-2 AF), Tab 16, Initial Decision (W-2 ID) at 10-15.
The appellant’s arguments on review, which amount to mere disagreements with
the administrative judge’s findings, do not provide a basis to disturb the initial
decisions in this regard.
¶3 The appellant argues in both petitions for review that the administrative
judge abused her discretion by refusing to accommodate her counsel’s religious
observances when she denied requests for an extension of time to initiate
discovery and file a jurisdictional briefing, which she filed in both proceedings
below, respectively. I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. The
appellant’s request was due to disruptions to her home life and the “supervening
commitments” of her counsel, including his commitment to his church and the
Easter holiday. I-2 AF, Tab 5; W-2 AF, Tab 7. The administrative judge denied
the request for a 6-month extension. I-2 AF, Tab 8; W-2 AF, Tab 10.
¶4 An administrative judge has wide discretion to control the proceedings in
front of her, and specifically, to rule on motions. See 5 C.F.R. § 1201.41(b)(8).
Here, it is undisputed that, although the administrative judge denied the
appellant’s request for a 6-month extension, she granted a 7-day extension based
on the appellant’s explanation of good cause. I -2 AF, Tab 8; W-2 AF, Tab 10.
Further, following the 7-day extension, the administrative judge also granted an
additional 8-day extension. I-2 AF, Tab 11; W-2 AF, Tab 13. On review, the
appellant has not explained how these extensions failed to account for her
counsel’s religious observance. Accordingly, this argument does not provide a
basis to disturb the initial decisions.
¶5 The appellant also argues on review that the prior dismissals of her appeals
without prejudice constituted an abuse of discretion and resulted in the loss of her
requested hearing. I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. We
acknowledge that the administrative judge dismissed the appeals without
4
prejudice while the Board resolved the issues presented in Lucia v. Securities
Exchange Commission, 138 S. Ct. 2044 (2018), and that the appeals were not
refiled until approximately 1 year later. The appellant has not shown that any
delay in the refiling of her appeals caused the loss of the requested hearings.
Regarding her involuntary retirement claim, an appellant has a right to a hearing
when she makes nonfrivolous allegations of Board jurisdiction. See Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006).
Regarding her IRA appeal, an appellant is entitled to a hearing on the merits
when she proves that she exhausted her administrative remedy with the Office of
Special Counsel and makes nonfrivolous allegations that she engaged in protected
activity that was a contributing factor in a personnel action. See Graves v.
Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016). Based on the
administrative judge’s findings and our agreements therewith as stated in thi s
decision, the appellant failed to show that she was entitled to a hearing in either
matter.
¶6 Accordingly, we affirm the initial decisions.
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
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
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
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.
6
(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
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:
7
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 describe d 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.