Opinion

Juan Daniels v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Mar 28, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JUAN A. DANIELS, DOCKET NUMBER

Appellant, AT-0353-17-0310-I-1

UNITED STATES POSTAL SERVICE, DATE: March 28, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lorenzo Cobb, Sugarhill, Georgia, for the appellant.

Erika F. Campbell-Harris, Atlanta, Georgia, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 On May 9, 2017, the appellant filed a petition for review of the initial

decision that dismissed his restoration appeal for lack of jurisdiction. Initial

Appeal File, Tab 8, Initial Decision; Petition for Review (PFR) File, Tab 1. On

January 19, 2018, the appellant, through his attorney, filed a submission stating

that he was withdrawing his petition for review and did not wish to pursue 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

matter further because the agency had returned him to work and “back paid” him

for the time periods at issue. PFR File, Tab 5. On January 26, 2018, the

appellant’s attorney sent a letter to a settlement attorney w ith Board’s Office of

General Counsel, stating that the appellant understood that the withdrawal of his

petition for review was with prejudice to refiling. PFR File, Tab 6 at 1. With the

letter, the appellant’s attorney submitted a statement signed by the agency

representative on January 26, 2018, asserting that the agency did not object to the

appellant’s withdrawal of the petition for review. Id. at 2.

¶2 By order dated July 23, 2018, the Clerk of the Board informed the parties

that, pursuant to a May 11, 2018 Delegation of Authority, the Office of the Clerk

of the Board had been “delegated authority to grant a petitioner’s request to

withdraw his petition for review.” PFR File, Tab 7 at 1 n.*. The order noted the

appellant’s January 19, 2018 submission requesting to voluntarily withdraw the

petition for review, and his January 26, 2018 submission confirming his intent to

withdraw the petition for review with prejudice. Id. at 1-2. Consistent with the

May 11, 2018 Delegation of Authority, the Clerk directed the appellant to submit

a brief pleading confirming that his request to withdraw his petition for review

was voluntary and that he understood the withdrawal was with prejudice to

refiling with the Board. Id. at 2. The appellant did not respond to the July 23,

2018 order.

¶3 On August 28, 2018, the Clerk of the Board issued a second order, which

noted the appellant’s failure to respond to the July 23, 2018 order and instructed

him to file a brief pleading within 7 days of the second order confirming his

request to withdraw. PFR File, Tab 8 at 1-2. The second order also stated that,

“[i]f the appellant does not file a pleading confirming his intent, the Clerk of the

Board will not act on his request to withdraw the petition for review, and the

Board will instead issue a decision following the restoration of a Board quorum.”

Id. at 1-2 (emphasis removed). In addition, the Clerk ordered the agency to

submit a brief pleading stating whether it objected to the appellant’s withdrawal

of the petition for review. Id. at 2.

¶4 The appellant again did not respond. The agency submitted a copy of the

agency representative’s January 26, 2018 signed statement asserting that the

agency did not object to the appellant’s withdrawal of his petition for review.

PFR File, Tab 9.

¶5 Thereafter, the Clerk of the Board issued an order informing the parties

that, “[i]n light of the appellant’s failure to confirm his intent to withdraw the

petition for review, the Office of the Clerk of the Board will take no further

action to process the appellant’s request to withdraw the petition for review under

the May 11, 2018 policy.” PFR File, Tab 10 at 1 (emphasis removed). The order

further informed the parties that the appellant’s petition for review would be

returned to the Board for consideration and that the Board would issue a decision

on the petition for review following the restoration of a Board quorum. Id. at 1-2.

¶6 Because a Board quorum has been restored, we can issue a decision on the

petition for review. Although the appellant did not avail himself of the option of

having the Clerk of the Board dismiss his petition for review as withdrawn

pursuant to the May 11, 2018 Delegation of Authority, we discern no basis not to

give effect to the appellant’s January 19, 2018 request to withdraw the petition

for review, signed by the appellant’s attorney, and supplemented by his attorney’s

January 26, 2018 letter explicitly stating that the appellant understood that his

withdrawal was with prejudice to refiling. PFR File, Tabs 5-6. Moreover, as

noted above, the agency has submitted a statement asserting that it has no

objection to the appellant’s request to withdraw his petition for review. PFR File,

Tab 9. We find that withdrawal of the petition for review is appropriate under the

circumstances.

¶7 Accordingly, we DISMISS the petition for review as withdrawn with

prejudice to refiling.

¶8 The initial decision of the administrative judge is final. This is the Board’s

final decision in this matter. Title 5 of the Code of Federal Regulations,

section 1201.113 (5 C.F.R. § 1201.113).

NOTICE OF APPEAL RIGHTS 2

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 app licable 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).

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.

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 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. 3 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