Opinion

Mitch Wine v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Feb 10, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MITCH WINE, DOCKET NUMBER

Appellant, DA-4324-21-0377-I-1

DEPARTMENT OF THE INTERIOR, DATE: February 10, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mitch Wine, Mountain View, Arkansas, pro se.

Lindsey Gotkin, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his appeal with prejudice. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous a pplication 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 affec ted 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. Except as expressly

MODIFIED to address the appellant’s Appointments Clause claims , we AFFIRM

the initial decision.

¶2 The appellant filed this appeal in August 2021 alleging that the agency had

violated the Uniformed Services Employment and Reemployment Rights Act of

1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) by failing to

reemploy him. Initial Appeal File (IAF), Tab 1 at 4. In Octobe r 2021, the agency

filed a request for sanctions. IAF, Tab 18. The agency alleged that in response to

a request that the appellant not communicate directly with agency employees,

the appellant sent several emails to agency counsel with threatening and

inappropriate language. Id. at 4-7, 10-15. The agency requested a variety of

sanctions up to and including dismissal of the appeal. Id. at 8-9. The appellant

opposed the agency’s request and requested sanctions against the agency for

alleged felonies and violations of the appellant’s Constitutional rights.

IAF, Tab 19. The administrative judge denied the agency’s request to sanction

the appellant because the Board had not warned him about his conduct during the

processing of this appeal. IAF, Tab 21 at 3. However, the administrative judge

explicitly warned the appellant that if he engaged in any further instances of

unacceptable conduct in relation to parties, wit nesses, or Board personnel,

the Board would issue sanctions “that may include dismissal of this appeal with

prejudice.” Id. The administrative judge denied the appellant’s motion for

sanctions. Id. at 4.

¶3 Less than a month later, the agency filed another request for sanctions.

IAF, Tab 30. The agency alleged that after the administrative ju dge had warned

the appellant about his conduct, the appellant engaged in several further incidents

of inappropriate and/or threatening communications towards agency employees.

Id. at 7-8. The agency again requested dismissal of the appeal with prejudice.

Id. at 8. The appellant responded in opposition to the agency’s motion. IAF, Tab

31. While the motion for sanctions was pending, the appellant requested

certification of an interlocutory appeal regarding several prior rulings by the

administrative judge. IAF, Tab 35. After the administrative judge denied his

request, IAF, Tab 36, the appellant filed an objection in which he called the

administrative judge a liar, described him as lazy and corrupt, and accused him of

committing felonies, IAF, Tab 37. He also repeatedly threatened to perform

citizen’s arrests of agency officials who he alleged were withholding evidence

and asserted that such arrests could involve the use of lethal force. Id.

¶4 On November 18, 2021, the administrative judge issued an order to the

appellant to show cause why he should not be sanctioned for unacceptable

conduct and failures to comply with Board orders. IAF, Tab 38. He specifically

cited the “inflammatory comments” made in the appellant’s objection to the

denial of his request for an interlocutory appeal. Id. at 1. The administrative

judge gave the appellant until November 22, 2021 to respond to the show cause

order. Id. at 2. The appellant filed a timely response on November 19, 2021.

IAF, Tab 39. In his response, he called the administrative judge lazy

and incompetent and accused him of committing crimes. Id. at 5-6.

The appellant filed two additional pleadings related to the merits of his appeal on

November 21, 2021. IAF, Tabs 40-41. On November 23, 2021, the day after the

deadline set by the administrative judge, the appellant filed another response to

the show cause order. IAF, Tab 42. In addition to suggesting that officials of the

Board and the Office of Special Counsel were biased against him, the appellan t

argued for the first time in that pleading that the administrative judge was not

properly appointed under the Appointments Clause of the U.S. Constitution.

Id. at 5-6.

¶5 The administrative judge issued an initial decision dismissing the appeal on

November 23, 2021. IAF, Tab 43, Initial Decision (ID). The administrative

judge acknowledged the appellant’s pleading filed earlier the same day but found

that it was untimely. ID at 7. The administrative judge determined that despite

clear warnings 2 regarding his conduct in relation to this appeal, the appellant

repeatedly engaged in unacceptable conduct “which includes both direct and

indirect threats to multiple individuals.” ID at 8. He therefore concluded that the

severe sanction of dismissal with prejudice was warranted. Id.

¶6 The appellant has filed a timely petition for review of the initial decision.

Petition for Review (PFR) File, Tab 1. He argues that the administrative judge

failed to timely decide his appeal on the merits, and he challenges the

administrative judge’s rulings on jurisdictional and discovery matters. Id. at 4-7.

He also reiterates his argument regarding the appointment of the administrative

judge. Id. at 7. The appellant has filed a supplement to his petition for review

that further addresses the appointment of the administrative judge. PFR File,

Tab 2. The agency has filed a response in opposition to the petition for review,

PFR File, Tab 4, and the appellant has filed a reply, PFR File, Tab 5.

In addition to the warning included in his order denying the agency’s first motion for

sanctions, the administrative judge also cited a September 14, 2021 letter from the

Office of the Clerk of the Board regarding the appellant’s interactions with the Board.

ID at 3-4, 8.

The appellant did not timely raise his argument regarding the appointment of the

administrative judge.

¶7 As noted above, the appellant first raised his argument regarding the

appointment of the administrative judge in his untimely supplemental response to

the administrative judge’s show cause order. IAF, Tab 42. The Board held in

McClenning v. Department of the Army, 2022 MSPB 3, that such claims are

subject to its existing regulations and precedent requiring parties to timely raise

issues during Board adjudications. Among other things, the Board’s regulations

provide that the Board generally does not accept arguments raised after the close

of the record before the administrative judge. Id., ¶ 11; 5 C.F.R. § 1201.59(c).

The regulations allow new arguments to be raised only if they were not readily

available before the record closed or are in rebuttal to new argument raised by the

other party just before the record closed. 5 C.F.R. § 1201.59(c). We find that

neither of those conditions is met in this case and that therefore the administrative

judge properly did not consider the appellant’s November 23, 2021 submission.

See McClenning, 2022 MSPB 3, ¶¶ 12-13 (finding that discovery of a new legal

argument regarding the Appointments Clause does not excuse the failure to raise

that claim before the close of the record). Because the appellant did not timely

raise his Appointments Clause argument before the administrative judge, we will

not consider it on petition for review. Id., ¶ 25.

The administrative judge acted within his discretion by dismissing the appeal

with prejudice.

¶8 An administrative judge may impose sanctions upon the parties as necessary

to serve the ends of justice. 5 C.F.R. § 1201.43. Before imposing a sanction, the

judge shall provide appropriate prior warning, allow a response to the actual or

proposed sanction when feasible, and document the reasons for any resulting

sanction in the record. Id. The sanction of dismissal with prejudice is a severe

sanction, and the Board has held that it should only be imposed when: (1) a party

has failed to exercise due diligence in complying with Board orders; or (2) a party

has exhibited negligence or bad faith in its efforts to comply. Morris v.

Department of the Navy, 123 M.S.P.R. 662, ¶ 12 (2016).

¶9 Here, the administrative judge explicitly warned the appellant after the

agency submitted emails in which the appellant made a number of extremely

inappropriate comments. For example, those emails included the following

statements: (1) “I know you’d like [agency official] to rape more women ”; (2)

“Fuck you. If you want to fight, then come get me. Bring your punk husband.

See what happens to him”; (3) “I’ll bring [agency official] to justice in ways

he wishes weren’t legal”; (4) “You want to square up with me? You’d last

seconds.” IAF, Tab 18 at 10-11. The administrative judge explicitly warned the

appellant that further unacceptable conduct could result in the dismissal of his

appeal. IAF, Tab 21. Despite that warning, the appellant filed a pleading in

which he repeatedly insulted the administrative judge and threatened to use

deadly force in citizen’s arrests of agency officials. IAF, Tab 37. Then, in

response to an order to show cause why his appeal should not be dismissed as a

sanction, the appellant repeated several of his insults tow ards the administrative

judge. He ended his response to the show cause order as follows: “If [the

administrative judge] is too cowardly to hold an oral conference to discuss

matters or to do his taxpayer funded job and adjudicate this case, then

he certainly does not want to risk lawful citizen’s arrest.” IAF, Tab 39 at 7.

¶10 Determinations regarding the imposition of sanctions are left to the sound

discretion of the administrative judge, and the Board will not overturn such

determinations absent an abuse of that discretion. Davis v. Department of

Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). We find that the administrative judge

did not abuse his discretion in dismissing the appeal with prejudice in light of the

appellant’s conduct. Despite explicit warnings about his conduct, the appellant

remained defiant and insulting in his pleadings. He informed the administrative

judge that he would not comply with the Board’s “unlawful order” and repeated

his threats to use force against agency officials who he claimed were acting

illegally. IAF, Tab 37 at 5. Even after the administrative judge made clear that

he was considering dismissal of the appeal as a sanction, the appellant escalated

his insulting and threatening comments towards the administrative judge.

IAF, Tab 39. We find that the appellant’s repeated failure to comply with the

administrative judge’s orders and his defiance in response to warnings from the

administrative judge constitute a lack of due diligence and demonstrate that

he was acting in bad faith. We therefore find that dismissal was appropriate. See

Morris, 123 M.S.P.R. 662, ¶ 14 (dismissing a petition for review for repeated

failure to comply with directions from the Clerk of the Board and using

inappropriate and insulting language towards Board employees).

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d 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. Failu re to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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, th e

Board cannot advise which option is most appropriate in any matter.

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:

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. ____ , 137 S. Ct. 1975 (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 ch allenge 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).

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.

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