Opinion

Peggy Maloney v. Executive Office of the President, Office of Administration

Court
Merit Systems Protection Board
Filed
Feb 20, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEGGY ANNE MALONEY, DOCKET NUMBER

Appellant, DC-531D-23-0410-I-1

v.

EXECUTIVE OFFICE OF THE DATE: February 20, 2025

PRESIDENT, OFFICE OF

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peggy Anne Maloney , Alexandria, Virginia, pro se.

Raheemah Abdulaleem , Esquire, and Tanesha Petty , Esquire, Washington,

D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman*

Raymond A. Limon, Member

*Vice Chairman 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 alleging the improper withholding of multiple within-grade

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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

increases (WIGIs) in part for lack of Board jurisdiction and in part as untimely filed

without good cause shown for the delay. On petition for review, the appellant

primarily discusses pleadings and matters related to her other cases pending before

the Board, claims that the administrative judge made procedural errors, and

reargues issues related to her 2017 WIGI. 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. 2 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). 3

2

With her petition for review, the appellant submits documents including the agency’s

final decision to withhold her WIGI for fiscal year 2017, copies of the Board’s

regulations, a blank appeal form, a motion to compel issued in her individual right of

action case, an addendum to her Office of Special Counsel complaint, and email

correspondence. Petition for Review (PFR) File, Tab 1 at 27-56. The evidence related to

her WIGI is already in the record, and evidence that is already part of the record is not

new evidence that warrants granting review. Initial Appeal File, Tab 7 at 67-88; see

Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980); 5 C.F.R. § 1201.115(d)

(identifying new and material evidence as a basis on which the Board may, in appropriate

circumstances, grant review). The evidence related to the appellant’s whistleblower

claims is not relevant or material to the administrative judge’s findings in this case, and

the Board generally will not grant a petition for review based on new evidence absent a

showing that it is of sufficient weight to warrant an outcome different from that of the

initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).

3

There are before the Board three outstanding motions filed by the appellant. PFR File,

Tabs 4, 11, 14. The appellant’s first motion requests leave to file an additional pleading

3

NOTICE OF APPEAL RIGHTS 4

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 about

whether a particular forum is the appropriate one to review your case, you should

contact that forum for more information.

and appears to both address a separate and unrelated Board appeal and to request to

submit a petition for review reply in excess of the page limit. PFR File, Tab 4. Her

second motion requests leave to file a petition for review but also appears to mostly

address a separate and unrelated Board appeal. PFR File, Tab 11. She also notes alleged

new and material evidence related to the Board members’ licenses to practice law,

although it is unclear what she is contending. Id. The appellant’s third motion requests

leave to file a supplemental petition for review based on new allegations of evidence

tampering, an ongoing mediation before the Equal Employment Opportunity

Commission, the agency’s alleged noncompliance with disability requirements, and the

agency’s failure to produce certain evidence. PFR File, Tab 14. However, this motion

also appears to address an unrelated Board appeal. Again, the evidence related to the

appellant’s other Board appeals is not relevant or material to the administrative judge’s

jurisdictional and timeliness findings in this case. Russo, 3 M.S.P.R. at 349.

Furthermore, not only did the agency not file a petition for review response in this case,

but the appellant has not alleged information or otherwise put forward an argument that

goes to the dispositive questions in this case. Accordingly, we DENY her motions.

4

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.

4

(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).

5

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

6

(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. 5 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

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

5

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.

7

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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