The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAY E. HOLSTEIN, DOCKET NUMBER
Appellant, PH-0752-17-0210-I-1
v.
DEPARTMENT OF VETERANS DATE: November 14, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jim Kutz, Esquire, Harrisburg, Pennsylvania, for the appellant.
Lauren Russo, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his allegedly involuntary resignation for lack of
jurisdiction without holding the requested hearing. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 e ither 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 th at, 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. 5 C.F.R. § 1201.113(b).
¶2 On review, the appellant seems to request that the Board consider the
agency’s alleged actions from his perspective—as a disabled veteran with
anxiety. Initial Appeal File (IAF), Tab 3 at 3; Petition for Review (PFR) File,
Tab 1 at 4-5; see Baker v. U.S. Postal Service, 84 M.S.P.R. 119, ¶ 15 (1999)
(finding that the relevant issue is whether a reasonable person with the
employee’s specific physical or mental condition would have felt forced to
retire). He failed, however, to detail the extent of his medical conditions, specify
how they impaired his decision-making abilities, or explain how they would have
caused a reasonable person with such conditions to perceive the agency’s actions
as so coercive or improper that the person would have had no realistic alternative
but to resign. 2 See Baker, 84 M.S.P.R. 119, ¶ 22. Nevertheless, after taking the
appellant’s asserted medical conditions into consideration, we find that he failed
2
The record reflects that the appellant did not resign from the Federal service but
instead accepted a transfer. IAF, Tab 9 at 40-41. However, because the appellant
asserts that he was coerced into resigning, and a coerced transfer is analogous to a
coerced resignation, we refer to the appellant’s departure from the agency as a
resignation. IAF, Tab 3 at 3; see Colburn v. Department of Justice, 80 M.S.P.R. 257,
¶ 6 (1998).
3
to nonfrivolously allege working conditions so intolerable that a reasonable
person in his position would have felt compelled to resign. IAF, Tab 1 at 6,
10-12, Tab 3 at 3; see Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶¶ 13, 15,
aff’d, 469 F. App’x 852 (Fed. Cir. 2011). 3
¶3 The appellant argues that the administrative judge demonstrated his bias
and abused his discretion by granting the agency’s request for additional time to
file its response to his initial appeal. PFR File, Tab 1 at 3. In making a claim of
bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Walker-King v. Department of Veterans Affairs, 119 M.S.P.R. 414,
¶ 14 (2013). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
a deep-seated favoritism or antagonism that would make fair judgment
impossible. Id. The appellant makes no such showing here, and we find that the
administrative judge’s actions do not evidence favoritism or antagonism.
¶4 Additionally, an administrative judge’s rulings on motions generally will be
reversed only upon a showing that the ruling was inconsistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case. 5 C.F.R. § 1201.115(c). Administrative judges have
substantial discretion to rule on motions, and a request for an extension of time
may be granted upon a showing of good cause—an elastic concept that rests upon
principles of equity and justice. Owens v. Department of Homeland Security,
97 M.S.P.R. 629, ¶ 6 (2004). The appellant’s conclusory allegation that the
agency missed its filing deadline due to incompetence does not establish that the
administrative judge abused his discretion or evidenced bias in granting the
agency’s request. PFR File, Tab 1 at 3. Nor does the appellant assert how he was
3
A nonfrivolous allegation in the context of this appeal is an allegation of fact that, if
proven, could establish that the agency coerced the appellan t’s resignation. See Brown,
115 M.S.P.R. 609, ¶ 11; 5 C.F.R. § 1201.4(s).
4
prejudiced by the administrative judge’s ruling. Indeed, in light of the appellant’s
failure to make a nonfrivolous allegation of Board jurisdiction, the a gency’s
submission was largely immaterial to the disposition of this case. Similarly, the
appellant’s conclusory assertion that the administrative judge displayed
unpreparedness does not establish that he abused his discretion or that the
appellant was prejudiced. Id.
¶5 Finally, the appellant also alleges that the agency failed to sufficiently
investigate his complaint of discrimination. Id. at 3-5. The Board’s jurisdiction
is limited to those matters over which it has been given jurisdiction by law, ru le,
or regulation. Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 7 (2017), aff’d
sub nom. Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir.
2018). It is apparent that the Board has no jurisdiction to adjudicate the
appellant’s allegation regarding the agency’s investigation. 4 See 5 C.F.R.
§ 1201.3. For the reasons set forth above, we affirm the initial decision and
dismiss the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 5
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
4
In determining the voluntariness of a resignation, the Board will consider whether an
agency inequitably handled an appellant’s discrimination complaint. Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009). Here, however, the
appellant filed his complaint after resigning. IAF, Tab 1 at 9, 13, Tab 9 at 40.
Accordingly, the agency’s alleged inequitable handling of his complaint could not have
been a factor in his decision to resign.
5
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.
5
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 ch oices 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 par ticular
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
6
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 a t 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
7
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. 6 The court of appeals must receive your
6
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.
8
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.