Opinion

David Story v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: Nov 14, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 36.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID STOREY, DOCKET NUMBER

Appellant, SF-531D-24-0574-I-1

DEPARTMENT OF HEALTH AND DATE: November 14, 2025

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David Storey , Los Angeles, California, pro se.

Jennifer Smith and Douglas Cole Elliott , Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

dismissed his appeal for lack of jurisdiction. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. We FORWARD the matter to

the regional office for docketing as a separate timely-filed appeal.

5 C.F.R. § 1201.113(b).

The appellant, a former GS-15 Supervisory Data Scientist with the agency,

filed an appeal alleging that the agency denied a within-grade-increase (WIGI),

effective March 25, 2024, and subjected him to discrimination and retaliation

for whistleblowing and other protected activity. Initial Appeal File (IAF),

Tab 1 at 1, 9; Tab 17 at 30. The appellant was notified of his WIGI denial on

April 10, 2024, and emailed his supervisor that day expressing his disagreement,

acknowledging his right to request reconsideration, and seeking a resolution.

IAF, Tab 17 at 18-20, Tab 19 at 6-7.

The administrative judge issued an order, apprising the appellant of his

burden of proving Board jurisdiction over his appeal. IAF, Tab 2. The parties

responded and the agency submitted a declaration from an agency official stating

that it was drafting a final decision in response to the appellant’s reconsideration

request that it intended to issue “in the near future.” IAF, Tab 23 at 7.

Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 26, Initial Decision (ID) at 1, 4. The administrative judge found that the

appellant’s April 10, 2024 email constituted a request for reconsideration of the

initial denial of his WIGI denial; however, because the agency had not yet issued

a final decision on his reconsideration request, the appeal was premature. ID at 3.

The appellant has filed a petition for review in which he argues that the

agency’s delay in issuing a final decision effectively constitutes a denial of his

reconsideration request. Petition for Review (PFR) File, Tab 1 at 5. Thereafter,

the agency issued a final decision denying the appellant’s reconsideration request.

PFR File, Tab 7 at 10-15. The appellant then filed a motion for leave to file an

additional pleading and submitted a copy of the agency’s final decision.

PFR File, Tab 4, Tab 7 at 10-15. The agency has responded, and the appellant

has replied. PFR File, Tabs 6-7.

The Board can exercise jurisdiction over the agency’s withholding of an

appellant’s WIGI only if the agency affirmed its initial decision on

reconsideration or has unreasonably refused to act on a request for

reconsideration. Hunt v. Department of Veterans Affairs, 88 M.S.P.R. 365, ¶¶ 6,

7 n.1 (2001), overruled on other grounds by Brookins v. Department of the

Interior, 2023 MSPB 3; Priselac v. Department of the Navy, 77 M.S.P.R. 332,

335 (1998). Here, the administrative judge correctly dismissed the appeal for

lack of jurisdiction as prematurely filed because the agency had not yet issued its

final decision on the appellant’s reconsideration request. ID at 3. During the

pendency of this petition for review, the agency issued its final decision by letter

dated October 2, 2024. PFR File, Tab 7 at 10-15. On October 4, 2024, the

appellant timely requested leave to submit the final decision with the Board

and submitted a copy of the decision on October 26, 2024. PFR File, Tab 4,

Tab 7 at 10-15. Accordingly, we find that the appellant has established Board

jurisdiction over his WIGI denial. We therefore forward this appeal to the

regional office for docketing as a timely-filed separate appeal for adjudication on

the merits. 2

Because we find that the appellant established jurisdiction over his WIGI denial and

are forwarding the appeal to the regional office for adjudication on the merits, we need

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

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:

not reach the appellant’s remaining arguments on review.

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.

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. 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).

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