The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN COLE, DOCKET NUMBER
Appellant, SF-0752-13-1125-I-1 1
v.
DEPARTMENT OF DEFENSE, DATE: September 25, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 2
Brian Cole, Arroyo Grande, California, pro se.
Christine J. Kim, Esquire, Stockton, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as withdrawn. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
1
Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation. Defense
Logistics Agency/8 v. Department of Defense, MSPB Docket No. SF-0752-14-0386-I-1.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the case to the Western Regional Office for further adjudication in accordance
with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal with the Board challenging the agency’s
action furloughing him from his GS-12 General Engineer position for a total of
48 hours. MSPB Docket No. SF-0752-13-1125-I-1, Initial Appeal File
(IAF 1125), Tab 1, Tab 6 at 4-13. He requested a hearing. IAF 1125, Tab 1 at 2.
¶3 Subsequently, a union representative filed a pleading requesting to
withdraw the appellant’s appeal. MSPB Docket No. SF-0752-14-0386-I-1, Initial
Appeal File (IAF 0386), Tab 10 at 2. She asserted that she had spoken with the
appellant, as well as other members of the consolidated appeal, and that the
appellant stated that he was no longer interested in pursuing his appeal. Id. The
administrative judge also had a telephone conversation with the union
representative wherein the union representative “reconfirmed the intent of the
appellant to withdraw his appeal.” IAF 1125, Tab 9, Initial Decision (ID)
at 2 n.*.
¶4 The administrative judge issued a prehearing conference summary
indicating her intent to dismiss the appellant’s appeal as withdrawn based upon
the union representative’s request. IAF 0386, Tab 11. The administrative judge
then issued an initial decision dismissing the appeal as withdrawn and cancelled
the scheduled hearing. ID.
¶5 The union representative thereafter filed a pleading indicating that she
spoke with the appellant, who stated that: (1) they had never spoken regarding
withdrawing his appeal; (2) he had filed his appeal on his own; (3) he did not
have union representation; and (4) he wanted to go forward with the hearing.
IAF 1125, Tab 10 at 2. Because the initial decision had already been issued, the
administrative judge returned the submission, stating that the appellant could file
3
a petition for review if he was dissatisfied with the initial decision. IAF 1125,
Tab 11.
¶6 The appellant has filed a petition for review. MSPB Docket No.
SF-0752-13-1125-I-1, Petition for Review (PFR) File, Tab 1. He states that he
does not wish to withdraw his appeal and that he never had a conversation with
the union representative asking her to do so on his behalf. Id. The agency filed a
response in opposition, to which the appellant replied. PFR File, Tabs 4-5.
¶7 In consolidated appeals, an administrative judge “may accept submissions
only from a designated representative or a pro se appellant.” MSPB Judges’
Handbook, Chapter (Ch.) 3, ¶ 3(e)(4). The Board’s regulations require a party
wishing to designate a representative to do so “in a signed submission, submitted
as a pleading.” 5 C.F.R. § 1201.31(a); see MSPB Judges’ Handbook, Ch. 2, ¶ 6
(“parties must designate their representatives in writing”).
¶8 There is no evidence that the appellant designated the union representative
to represent him in this appeal. To the contrary, he filed his appeal on his own
behalf, indicating that he did not wish to designate a representative. IAF 1125,
Tab 1 at 1. Other than the withdrawal request, the only other pleading filed for
the appellant before the initial decision was issued was filed by the appellant
himself, updating his business and personal contact information. IAF 1125,
Tab 7. The withdrawal request was not sufficient to designate the union
representative as the appellant’s representative. See Brothers v. Department of
Agriculture, 20 M.S.P.R. 377, 380 (1984) (rejecting the appellant’s assertion that
a motion for continuance filed by his new representative served as the equivalent
of the required written notification of a change in representation “since there is
no assurance that the purported representative is authorized to act on appellant’s
behalf without such written notice”). We find that it was therefore improper for
the administrative judge to dismiss the appellant’s appeal as withdrawn based on
the request of an individual whom the appellant did not designate to represent
him. See Visconti v. Environmental Protection Agency, 78 M.S.P.R. 17, 20-21
4
(1998) (determining that, where the appellant did not designate a representative in
writing, and had indicated that he would represent himself, the administrative
judge erred in dismissing the appeal without prejudice based on the request of an
individual who claimed to be the appellant’s representative); see also
Hightower v. Department of Commerce, 28 M.S.P.R. 281, 282 (1985). Thus, we
must vacate the initial decision and remand this appeal. 3
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
3
As the agency points out in its response, it appears that the appellant failed to comply
with the administrative judge’s orders to file a prehearing submission and participate in
the prehearing conference. See IAF 0386, Tab 11. We express no opinion at this time
as to whether dismissal on other grounds may be appropriate.