Opinion

Lynette Lewis v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Aug 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

finding that, in the absence of good cause for the late filing of a motion to compel, the administrative judge did not abuse his discretion in denying the motion as untimely

How later courts described this case

finding that, in the absence of good cause for the late filing of a motion to compel, the administrative judge did not abuse his discretion in denying the motion as untimely

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LYNETTE LEWIS, DOCKET NUMBER

Appellant, PH-0752-20-0030-I-1

SOCIAL SECURITY DATE: August 28, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lynette Lewis , Baltimore, Maryland, pro se.

Julie Tong , Esquire, Jennifer Karangelen , Esquire, and

Daniel Hutman , Esquire, Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication of

this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal with prejudice as a sanction for her repeated failures to obey

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

the administrative judge’s discovery-related orders. 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

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

The appellant filed an appeal of her removal based on three charges, misuse

of a government computer (37 specifications), conduct unbecoming

(2 specifications), and lack of candor (8 specifications). Initial Appeal File

(IAF), Tab 1, Tab 6 at 44-65. The administrative judge issued an

acknowledgment order setting forth, among other things, the Board’s discovery

process, and the agency timely served the appellant with interrogatories and

requests for the production of documents and noticed her deposition. IAF, Tab 2

at 3, Tab 28 at 11-12, Tab 32 at 13-26. After extensive proceedings, the

administrative judge dismissed this appeal with prejudice as a sanction for the

appellant’s willful failure to comply with multiple orders concerning discovery,

both written and by deposition. Initial Appeal File (IAF), Tab 63, Initial

Decision, (ID) at 9-12. He also found that the appellant filed fraudulent evidence

in an attempt to mislead the Board into believing that she had supplemented her

written discovery responses in compliance with the administrative judge’s order.

ID at 13-15. The chronology of the appellant’s failure to respond to the

administrative judge’s orders on discovery is recounted in significant detail in the

initial decision, but we set forth the relevant facts below. ID at 2-7. We first

address the appellant’s failure to respond to the agency’s written discovery

requests, then address her false assertion that she adequately responded by

supplementing her discovery responses, and finally address her failure to answer

relevant deposition questions.

The administrative judge found that the appellant failed to comply with his orders

to respond to the agency’s written discovery.

The appellant timely responded to the agency’s written discovery, but her

response to each of the agency’s interrogatories and requests for production

asserted that:

Ms. Lewis’s VA disability requires that you use Lynette Lewis’s

response to her rebuttal to the proposal to removal, for all the

information you are requesting. Ms. Lewis’s traumatization and the

financial hardship that SSA has caused her due to them firing her,

doesn’t allow her access to these records.

IAF, Tab 32 at 33-36, 41-46. The agency timely filed a motion to compel, and

the appellant failed to contest the motion within the time period allowed under the

Board’s regulations. 2 IAF, Tab 32, Tab 35 at 1. The agency also filed a motion

for sanctions. IAF, Tab 34. The administrative judge granted the motion to

compel and issued a January 7, 2020 order requiring the appellant to file

responses to the agency’s discovery within 7 days and warning her that a failure

to comply may result in the imposition of sanctions. IAF, Tab 35. The appellant

filed a January 14, 2020 response, arguing that the agency already had the

information it sought in her reply to the agency’s proposed removal and in her

Although the administrative judge found that the appellant’s objections to the

agency’s written discovery were untimely raised, he nevertheless considered them and

determined they were not valid. IAF, Tab 61, ID at 9-10 n.3. As discussed below, we

agree with the administrative judge’s analysis.

EEO case. IAF, Tab 37 at 4-5. She provided no further response to the agency’s

discovery requests. In a January 24, 2020 conference call, the administrative

judge ordered the appellant, for a second time, to provide full and complete

responses to the agency’s written discovery, due on or before January 29, 2020.

IAF, Tab 40 at 2. This time, he warned her that her “failure to comply with this

order will result in the imposition of sanctions, pursuant to 5 C.F.R. § 1201.43,

up to and including dismissal of this appeal.” Id. (emphasis in original).

The appellant did not comply. 3 Instead, the appellant filed a February 10,

2020 request for a protective order, arguing, among other things, that the

agency’s discovery requests were unreasonably duplicative, unduly burdensome

or expensive, and obtainable from another source. IAF, Tab 42 at 6. The

administrative judge immediately denied the request, finding it untimely in light

of the appellant’s continued resistance to his multiple orders to respond to the

agency’s written discovery. IAF, Tab 43 at 1. He also found that the appellant

had failed to show that any limitation on the agency’s discovery requests was

warranted. Id. at 1-2. He ordered her, for a third time, to comply with his orders

to continue and complete discovery. Id. at 2. The agency then filed a third

motion for sanctions, requesting that the administrative judge dismiss the appeal

with prejudice. IAF, Tab 45.

Because it was unclear whether the appellant had ever supplemented her

discovery responses, the administrative judge subsequently ordered the agency to

clarify whether the appellant had supplemented her responses. IAF, Tab 51 at 2.

He ordered the appellant, in pertinent part, to show cause why her appeal should

not be dismissed with prejudice as a sanction for her multiple failures to comply

On January 29, 2020, the appellant submitted to the agency a discovery response from

a different Board appeal, an individual right of action appeal which the administrative

judge had dismissed without prejudice on January 28, 2020. IAF, Tab 48 at 4-25,

Tab 50 at 7-8, Tab 51 at 1; Lewis v. Social Security Administration , MSPB Docket

No. PH-1221-20-0085-W-1, Initial Decision (Jan. 28, 2020). This submission prompted

the administrative judge to inquire, among other things, whether the appellant had ever

supplemented her discovery responses in this appeal. IAF, Tab 51 at 2.

with his orders to provide full and complete responses to the agency’s written

discovery. Id.

The administrative judge found that the appellant submitted fraudulent evidence

asserting that, in a March 1, 2020 email, she had supplemented her responses to

the agency’s written discovery .

In an April 6, 2020 conference call, the appellant asserted that she believed

that she had supplemented her discovery responses, and the administrative judge

ordered her to submit those responses. IAF, Tab 58 at 2. In response, she

asserted that she had done so on March 1, 2020, and she included a screenshot of

her Gmail account as proof of her assertion. IAF, Tab 59 at 5, 27. The agency

replied that, despite extensive searching, it had no record of receiving the

appellant’s March 1, 2020 email and noted, among other things, that the

screenshot the appellant provided as proof that she had supplemented her

discovery responses did not indicate that the email with the supplemental

discovery response had actually been sent. IAF, Tab 60 at 7-8. The

administrative judge found in an April 30, 2020 order that the agency had raised

serious allegations that the appellant had falsely claimed that she had

supplemented her discovery response on March 1, 2020, and he ordered the

appellant to address the agency’s allegations. IAF, Tab 61 at 3-4. The appellant

responded, but she failed to address the agency’s allegations as she was ordered;

she instead argued that the agency had committed multiple fraudulent acts in an

effort to get her case dismissed. IAF, Tab 62 at 1-9. The administrative judge

ultimately determined that the appellant had falsely claimed that she had

supplemented her discovery responses in her March 1, 2020 email to the agency.

ID at 11. He found that she had instead done so on April 8, 2020, which was

4 months after the responses were due, and 11 weeks after the deadline he set for

her to respond when he granted the agency’s first motion to compel. Id. After

considering the evidence before him, the administrative judge was “left with the

firm conviction that the appellant did not serve her supplemental discovery

responses on the agency on March 1, 2020,” and he determined that the evidence

she submitted, as well as the declaration she made in her April 8, 2020 pleading

saying she had served the discovery responses on the agency on March 1, 2020,

were therefore false. ID at 15.

The administrative judge found that the appellant failed to answer deposition

questions after he had ordered her to do so .

As noted above, on November 20, 2019, the agency timely served notice

that it would depose the appellant at its office on December 18, 2019. IAF,

Tab 28 at 11-12. The appellant filed a December 4, 2019 motion for a protective

order requesting that the deposition be held telephonically because, among other

things, she claimed that she did not feel safe at the agency’s headquarters and

could not afford to drive there for the deposition. IAF, Tab 26 at 5. The agency

then filed a motion to compel an in-person deposition, in which, among other

things, it offered to hold the deposition at a neutral location, such as the court

reporter’s office. IAF, Tab 28 at 5-7. In a December 12, 2019 conference call

summary, the administrative judge noted the parties’ subsequent agreement to

cooperate to schedule an in-person deposition in January 2020. IAF, Tab 31 at 2.

In its first motion for sanctions, the agency alleged that the appellant had failed to

cooperate on setting a deposition date. IAF, Tab 34 at 6-7. The administrative

judge denied the motion for sanctions and ordered the appellant to cooperate in

rescheduling her deposition to be held in January 2020. IAF, Tab 35 at 2. He

noted that the agency may refile its motion at any time if the appellant failed to

comply with the order. Id., n.2.

The agency’s second motion for sanctions alleged, in pertinent part, that

the appellant had again failed to cooperate in scheduling her deposition and

requested that the administrative judge dismiss the appeal with prejudice as a

sanction. IAF, Tab 38 at 5-7. In a January 24, 2020 conference call summary,

the administrative judge noted that the parties had reached another agreement to

hold the appellant’s deposition, either on February 12, 2020, or if that date was

not possible, to cooperate to hold it within 1 week of that date. IAF, Tab 40 at 2.

Nevertheless, on February 10, 2020, the appellant filed another motion for a

protective order, which the administrative judge immediately denied as untimely

in light of her continued resistance to his orders to answer the agency’s written

discovery and to cooperate in scheduling her deposition. IAF, Tab 43 at 1. He

also found that the appellant had failed to show that the agency’s deposition or

discovery questions should be limited, and he therefore ordered her to comply

with his prior orders concerning discovery or face sanctions. Id. at 1-2.

The deposition was held on February 12, 2020, and in its third motion for

sanctions, the agency explained that, among other things, the appellant had

refused to answer a series of questions concerning her current employment and

financial circumstances. IAF, Tab 47 at 8, 27-28, 43-46. The parties contacted

the administrative judge during the deposition, and he explained to the appellant

that the information the agency sought was discoverable and instructed her to

answer the agency’s questions or face sanctions for her continued noncompliance.

Id. at 8-9, 102-03. Nevertheless, after the parties concluded their conference call

with the administrative judge, the appellant continued to refuse to answer the

agency’s questions. Id. at 108-09. Although the appellant subsequently

abandoned her back pay claim, such that the agency’s questions about her

finances were arguably not relevant, the administrative judge found that in the

absence of any evidence that the appellant had made the decision to waive her

back pay at the time of the deposition, or had asserted such a waiver as a basis for

objecting to the questions at the deposition, her noncompliance merited

significant weight in determining an appropriate sanction. ID at 12, n.6.

The administrative judge dismissed the appeal with prejudice as a sanction, and

the appellant has filed a petition for review of the initial decision .

The administrative judge ultimately concluded that the appellant’s failure

to comply with his orders to provide full and complete answers to the agency’s

written discovery and her refusal to answer deposition questions were both willful

and showed clear evidence of bad faith in the prosecution of her appeal. ID at 12.

Accordingly, he dismissed the appeal with prejudice. ID at 12, 15-16.

On review, the appellant argues that the agency’s discovery requests were

unduly burdensome and intended to cause her a financial strain. Petition for

Review (PFR) File, Tab 2 at 5-7. 4 She reiterates that the agency’s confiscation of

her work computer when it put her on administrative leave prior to her removal

left her without access to the information she needed to answer the agency’s

questions. Id. at 6-7, 9. Nevertheless, she also claims that her answers were

sufficient. Id. at 10. She similarly reiterates her assertion that she had already

provided the same or similar information in her EEO matter that the agency

sought in its discovery requests in this appeal. Id. Concerning the administrative

judge’s finding that she fraudulently asserted that she had supplemented her

responses to the agency’s written discovery, the appellant states that the agency

or the administrative judge could have asked her to send them the email directly

to verify its authenticity, but they did not ask her to do so. Id. at 12.

Regarding her deposition, the appellant contends on review that the

agency’s questions were outside the scope of her appeal, and the deposition itself

was intended to “harass, embarrass, harm, impede, or needlessly impose a cost or

burden” on her. Id. at 10. She claims that she did not feel safe answering the

agency’s questions about her financial situation due to her pending EEO

complaint. Id. at 8. She explained that she did not want the agency to retaliate

against current and future job opportunities and that, despite her disabilities of

post-traumatic stress disorder (PTSD) and military sexual trauma (MST), the

administrative judge ignored her request for a protective order. Id. She also

claims that the administrative judge ignored a letter from her therapist alleging

that agency counsel mocked her at her deposition. Id. at 9; IAF, Tab 56 at 20.

The appellant filed an Amended Petition for Review which is virtually identical to her

Petition for Review, save for several references in the amended version concerning her

EEO matter. PFR File, Tab 2 at 4-5, 9.

The appellant also asserts that the administrative judge was biased against

her. PFR File, Tab 2 at 7-8, 12, 15-16. She challenges the administrative judge’s

processing of her appeal and claims that he failed to address her due process

claim. Id. at 10, 12-13, 15-16. The agency has filed a response to the appellant’s

petition for review, and the appellant has filed a reply to the agency’s response.

PFR File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant failed to show that the administrative judge abused his discretion

when he dismissed the appeal as a sanction for her failure to comply with his

discovery orders .

It is well settled that administrative judges have broad discretion to

regulate the proceedings before them, including the authority to rule on discovery

motions and to impose sanctions as necessary to serve the ends of justice.

Defense Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶ 16

(2015); Roth v. Department of Transportation, 54 M.S.P.R. 172, 175-76 (1992),

aff’d per curiam, 988 F.2d 130 (Fed. Cir. 1993) (Table); see 5 C.F.R. § 1201.43

(discussing the circumstances under which an administrative judge may impose

sanctions, including failure to comply with an order). The extreme sanction of

dismissal with prejudice should be imposed only when a party has failed to

exercise basic due diligence in complying with any order, or when a party has

exhibited negligence or bad faith in its efforts to comply. Williams v. U.S. Postal

Service, 116 M.S.P.R. 377, ¶ 7 (2011); see Roth, 54 M.S.P.R. at 176-77.

Concerning the imposition of sanctions for a party’s failure to comply with

discovery-related rulings, the Board will consider the reason for the party’s

failure to comply in determining what sanction to impose, but if the party’s

discovery violation is found to be willful, the Board may dismiss the appeal based

on just a single failure to obey a discovery order. Roth, 54 M.S.P.R. at 176. The

imposition of sanctions is a matter within the administrative judge’s sound

discretion, and the Board will not find that the decision constitutes reversible

error absent a showing that such discretion has been abused. Smets v. Department

of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir.

2012).

Here, the administrative judge found that the appellant willfully failed to

comply with multiple orders instructing her to provide full and complete

responses to the agency’s written discovery. ID at 9-12. He also found that she

refused to answer specific questions at her deposition after he had explained to

her that the information was discoverable and that she would receive a severe

sanction if she refused to answer. ID at 12. On the basis of the appellant’s

failure to comply with his discovery orders, and his finding that she submitted

falsified evidence in response to another, he dismissed the appeal with prejudice

as a sanction. ID at 15-16.

As explained below, rather than explicitly challenge the administrative

judge’s finding that she failed to comply with his discovery orders, the appellant

generally reiterates her objections to the agency’s discovery efforts. 5 However,

As noted above, the administrative judge found that the appellant’s objections to the

agency’s written discovery were untimely raised. ID at 9 n.3; Tab 37 at 4-5; 5 C.F.R.

§ 1201.73(b), (d)(2) (requiring a response or objection to discovery be filed within

20 days of service of the discovery). The agency served its discovery on November 20,

2019, and the appellant’s objections were filed on January 14, 2020. IAF, Tab 32 at 13;

Tab 37 at 4-5. The appellant also failed to respond to the agency’s motion to compel in

a timely fashion. IAF, Tab 35 at 1. The agency served its motion to compel on the

appellant electronically on December 9, 2019. IAF, Tab 28 at 34. Board regulations

require that a party respond in opposition to a motion to compel within 10 days of the

date of service of the motion. 5 C.F.R. § 1201.73(d)(3). The appellant filed numerous

pleadings subsequent to the agency’s motion to compel, but she did not directly address

the agency’s motion until January 14, 2020, when she asserted her first objections to the

agency’s discovery requests, nearly 1 month after the agency served its motion on her.

IAF, Tab 28 at 34, Tab 37 at 4-5. Thus, the administrative judge did not abuse his

discretion in finding that the appellant’s response to the agency’s motion to compel, and

her objections to the agency’s discovery requests, were both untimely. Cf. Fellhoelter

v. Department of Agriculture, 568 F.3d 965, 977 (Fed. Cir 2009) (finding that, in the

absence of good cause for the late filing of a motion to compel, the administrative judge

did not abuse his discretion in denying the motion as untimely). Nevertheless, the

administrative judge reviewed the appellant’s objections on the merits, and he

determined that they were not valid because, for example, she had not filed any of the

discovery responses from her EEO proceeding that purportedly contained the

what is at issue on review is the appellant’s compliance with the administrative

judge’s orders and the resulting dismissal of the appeal for failure to comply with

those orders, not the appellant’s objections to the agency’s discovery requests.

See Montgomery v. Department of the Army, 80 M.S.P.R. 435, ¶ 9 (1998) (finding

that the agency’s objections to the appellant’s discovery requests were irrelevant

to the imposition of sanctions for noncompliance with the administrative judge’s

order to produce the materials). Because the record establishes that the appellant

willfully failed to comply with multiple discovery orders issued in this appeal, the

administrative judge did not abuse his discretion in dismissing the appeal with

prejudice as a sanction. Williams, 116 M.S.P.R. 377, ¶¶ 9, 12; Roth, 54 M.S.P.R.

at 176.

Concerning the deposition, we agree with the administrative judge that the

appellant’s failure to assert that she was waiving her back pay claim until after

the deposition concluded supports a finding that she failed to comply with his

order to answer the agency’s questions at the deposition and merits significant

weight. ID at 12 n.6. This is yet another instance of the appellant failing to

comply with the administrative judge’s discovery related rulings. 6 That failure,

when combined with the other failures, supports the administrative judge’s

imposition of the sanction of dismissal of the appellant’s appeal. Roth,

54 M.S.P.R. at 176 (upholding a dismissal with prejudice based on a single

willful failure to comply with an administrative judge’s discovery order).

information that the agency requested, and, in any event, that action could not have

included her removal, as that action is within the Board’s jurisdiction. ID at 9 n.3. We

agree. The appellant identifies no reason in her petition for review to revisit the

administrative judge’s findings concerning these objections.

To the extent that the appellant’s waiver of her potential back pay claim may indicate

that her failure to obey the administrative judge’s order to answer the agency’s

deposition questions may not support the imposition of sanctions in and of itself, it does

not change the result here because the appellant’s multiple failures to obey the

administrative judge’s orders concerning written discovery more than justify the

sanction he imposed. ID at 9-12. Roth, 54 M.S.P.R. at 176.

Concerning the administrative judge’s finding that she fraudulently

asserted that she had supplemented her responses to the agency’s written

discovery, the appellant states that the agency or the administrative judge could

have asked her to send them the email directly to verify its authenticity, but they

did not ask her to do so. PFR File, Tab 2 at 12. However, it was not the agency’s

burden to do so. The administrative judge ordered the appellant to address the

agency’s argument that she had introduced fraudulent evidence to support her

claim that she had supplemented her discovery responses in an email she sent to

the agency on March 1, 2010. IAF, Tab 61 at 3-4. The appellant’s claim on

review that she could have somehow refuted the assertion that she submitted

fraudulent evidence if only the agency or the administrative judge had just asked

her to do so is belied by the record, which shows that the administrative judge

ordered the appellant to address the agency’s contentions that her evidence was

fraudulent, and she simply failed to do so.

The appellant failed to show that the administrative judge was biased against her .

The appellant makes several assertions concerning the administrative

judge’s handling of the proceedings, which we consider as claims of bias. She

alleges on review that the administrative judge denied her motion for a protection

order the same day she filed it because he was biased against her. PFR File,

Tab 2 at 7-8; IAF, Tab 26, 42-43. She also asserts that bias prevented the

administrative judge from following up to request an authentic copy of the

March 1, 2020 email in which she allegedly supplemented her discovery

response, PFR File, Tab 2 at 12. She also complains that the administrative judge

rejected her pleading containing notes of a conference call, failed to rule on her

due process claim, and held the agency to a different standard by failing to

sanction it for its failure to respond to two of his orders. PFR File, Tab 2

at 15-16; IAF, Tab 23.

In making a claim of bias or prejudice against an administrative judge, a

party must overcome the presumption of honesty and integrity that accompanies

administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R.

382, 386 (1980). The fact that an administrative judge has ruled against a party,

or mere conclusory statements of bias, do not provide sufficient bases for

disqualification. Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 281 (1991). An

administrative judge’s conduct during the course of a Board proceeding warrants

a new adjudication only if the administrative judge’s comments or actions

evidence “a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.

Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

The appellant presents no evidence in support of her conclusory statements

of bias, save for the fact that the administrative judge denied her motions. Her

statements do not come close to overcoming the presumption of honesty and

integrity that accompanies administrative adjudicators. Oliver, 1 M.S.P.R. at 386.

Concerning the administrative judge’s April 30, 2020 order for the appellant to

address the allegation that she had submitted fraudulent evidence, the appellant

could have submitted the March 1, 2020 email in response herself, and her failure

to do so does not show bias on the part of the administrative judge. PFR File,

Tab 2 at 12; see IAF, Tab 61.

As for her pleading including notes of the settlement conference, the

administrative judge explained in an order that he rejected the pleading because

the conference was informal, he did not make any rulings during the conference,

and the notes contained inaccurate statements. IAF, Tab 23. Inasmuch as the

conference concerned settlement, it is well established that settlement offers are

inadmissible on the merits of a case, Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 3 n.2 (2016), and even if the administrative judge erred in

deleting the notes, the appellant’s substantive rights were not harmed, Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides

no basis for reversal of an initial decision).

As for her allegation that the administrative judge failed to rule on her due

process claim, the appellant explains that her claim concerns the agency’s search

of her work computer for evidence against her. PFR File, Tab 2 at 15. However,

the appellant’s claim that the agency improperly searched her computer goes to

the merits of her appeal and, like her objections to the agency’s discovery

discussed above, is not relevant to the issue on review, i.e., the administrative

judge’s imposition of a sanction for her noncompliance with his discovery orders.

Montgomery, 80 M.S.P.R. 435, ¶ 9. Concerning her allegations that the

administrative judge did not sanction the agency for its failure to respond to his

March 13 and April 30, 2020 orders, the appellant’s argument is without merit as

neither of those orders required a response from the agency. 7 See IAF, Tab 55

at 2, Tab 61 at 4.

The appellant also asserted that, in considering the appellant’s conduct

during her deposition, the administrative judge ignored a letter from her therapist

alleging that agency counsel mocked the appellant about her responses. PFR File,

Tab 1 at 7, 10-11; IAF, Tab 56 at 20. Even if the administrative judge did not

mention all of the evidence of record, it does not mean that he did not consider it

in reaching his decision. Marques v. Department of Health and Human Services,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Moreover, neither the appellant nor her therapist explains what agency counsel

said. Although the therapist alleged that agency counsel appeared to be trying to

rattle the appellant, her description of the counsel’s behavior, e.g., dropping

documents and using hostile facial expressions, even if true, does not establish

that agency counsel mocked the appellant. IAF, Tab 56 at 20. Further, the

questions for which the therapist alleged that the agency counsel mocked the

appellant’s responses are the same ones concerning her finances that the

administrative judge unsuccessfully ordered the appellant to answer. Id. IAF,

The administrative judge’s April 30, 2020 order provided that “[t]he agency may file

evidence and argument in response to appellant’s filing,” but it did not require the

agency to file a response. IAF, Tab 61 at 4 (emphasis supplied).

Tab 44 at 5-6; ID at 4. As for the appellant’s assertion that the administrative

judge ignored her request for a protective order despite her alleged disabilities,

the appellant misrepresents what occurred. PFR File, Tab 2 at 8. The record

instead reflects that the parties reached a compromise concerning the appellant’s

first request for a protective order, IAF Tab 26, Tab 31 at 2, and the

administrative judge denied the appellant’s second request for a protective order

as untimely, IAF, Tab 43 at 1. Again, the appellant fails to show that the

administrative judge abused his discretion.

Accordingly, we affirm the initial decision dismissing the appellant’s

appeal as a sanction for her willful failure to comply with the administrative

judge’s discovery orders.

NOTICE OF APPEAL RIGHTS 8

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.

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

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.

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

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:

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. 9 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).

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

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.