Opinion

Dwight Suggs v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 5, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.5%

directing the Board to consider whether an appellant diligently filed with the Board newly discovered evidence related to his claim of fraud, which he alleged the agency wrongfully withheld

How later courts described this case

directing the Board to consider whether an appellant diligently filed with the Board newly discovered evidence related to his claim of fraud, which he alleged the agency wrongfully withheld

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DWIGHT A. SUGGS, DOCKET NUMBER

Appellant, SF-0714-19-0052-B-1

DEPARTMENT OF VETERANS DATE: February 5, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dwight A. Suggs , Gary, Indiana, pro se.

Mickel-Ange Eveillard , Esquire, Los Angeles, California, 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 remand initial decision,

which affirmed his removal under 38 U.S.C. § 714. On petition for review, the

appellant reargues the merits of the prior Board decision, challenges the

administrative judge’s finding that he failed to prove his whistleblower retaliation

affirmative defense, and challenges the deciding official’s assertion that he lacked

rehabilitative potential. Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 2 5 C.F.R. § 1201.113(b).

The appellant provides a number of documents with his petition for review that he

argues are “new and material,” and requests that they be considered. Remand Petition

for Review (RPFR) File, Tab 1 at 6-8, 10-35, Tab 4 at 5-6, 8-14. The Board generally

will not consider evidence submitted for the first time with a petition for review absent

a showing that it was unavailable before the record closed before the administrative

judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 213-14 (1980); 5 C.F.R. § 1201.115(d). None of the documents the appellant has

provided on review meet these criteria and so we need not consider them. The newly

provided documents address numerous topics, such as certifications and

recommendations the appellant received, appraisal records, and documents from prior

Board and EEO appeals and other state and Federal agencies concerning various

matters. However, all but two of the documents do not directly pertain to the three

issues for which this appeal was remanded. For the two remaining documents, a May 4,

2012 email from the office of the former Secretary of the agency, and an August 25,

2018 confirmation of receipt of a Federal Labor Relations Authority complaint, the

appellant alleges that these documents show that all agency officials, including the

deciding official, were aware that the appellant was “involved in whistle blowing.”

RPFR File, Tab 1 at 7, 32, Tab 4 at 6, 8. However, these documents both concern

different incidents than the October 11, 2018 protected activity that was the subject of

the appellant’s whistleblower retaliation affirmative defense, and so any potential

knowledge of these incidents by the deciding official would not be relevant to the

appellant’s affirmative defense claim. Remand Appeal File (RAF), Tab 18, Initial

Decision at 6-8; Suggs v. Department of Veterans Affairs, MSPB Docket No.

SF-0714-19-0052-I-1, Initial Appeal File, Tab 8 at 21-23. Further, all of the documents

are dated to the period from May 2005, through November 26, 2024, before the

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

December 11, 2024, close of record date in this appeal, and so none of the documents

are “new.” RPFR File, Tab 1 at 10-35, Tab 4 at 8-14; RAF, Tab 5 at 4; see Okello v.

Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under

5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the first

time with a petition for review absent a showing that it is both new and material).

Although the appellant asserts that the evidence was recently discovered, he has not

explained why the documents were previously unavailable or how he obtained them, or

otherwise argued that he exercised due diligence in attempting to obtain the documents

prior to the close of record. RPFR File, Tab 1 at 3. Although he generally asserts that

some of the documents were “held back” by the agency, he has not, for example,

offered any evidence or argument that the agency possessed these documents during the

pendency of the appeal and wrongfully withheld them from him. Cf. Armstrong v.

Department of the Treasury, 591 F.3d 1358, 1363 (Fed. Cir. 2010) (directing the Board

to consider whether an appellant diligently filed with the Board newly discovered

evidence related to his claim of fraud, which he alleged the agency wrongfully

withheld). Accordingly, because none of the evidence is new or material, we have not

considered it.

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. 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

address:

U.S. Court of Appeals

for the Federal Circuit

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.