Opinion

Timothy Winey v. Department of Defense

Court: Merit Systems Protection Board
Filed: Apr 20, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY WINEY, DOCKET NUMBER

Appellant, DC-1221-17-0011-W-1

DEPARTMENT OF DEFENSE, DATE: April 20, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy Winey, Suffolk, United Kingdom, pro se.

Schwanda Rountree, Alexandria, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his individual right of action (IRA) appeal on collateral estoppel

grounds. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findin gs of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 in itial 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. Except as expressly MODIFIED by

this Final Order to dismiss the appeal for lack of jurisdiction without addressing

the issue of collateral estoppel, we AFFIRM the initial decision. 2

¶2 The appellant filed an IRA appeal in which he contended that the agency

removed him from his position in retaliation for alleged whistleblowing. Initial

Appeal File (IAF), Tab 1. The administrative judge informed the appellant that

he had the burden of establishing jurisdiction over his appeal, and she provided

him with notice of what he must show to establish jurisdiction. IAF, Tab 3. The

administrative judge also issued a show cause order in which she directed the

appellant to show why his appeal should not be dismissed on the basis of

collateral estoppel as it appeared that he had raised the identical claim in an

earlier appeal. IAF, Tab 31. After considering the parties’ responses, the

administrative judge found that the appeal was barred by collateral estoppel.

IAF, Tab 48, Initial Decision (ID) at 7-9. She further found, in the alternative,

The appellant also filed a motion for leave to file additional pleadings. Petition for

Review File, Tab 6. In this motion, the appellant, without specifically identifying what

his additional pleadings are, is simply reiterating the arguments that he ha s already

raised in his petition for review; that is, that the administrative judge was biased, that

she should have ruled on his motion to compel before dismissing his case, and that he

has been prevented from obtaining documents from the Office of Special Counsel

through discovery. Because all of these arguments are addressed in this decision, the

appellant’s motion for leave to file additional pleadings is denied.

that the appellant failed to prove jurisdiction over his appea l because he did not

prove by preponderant evidence that he had exhausted his administrative

remedies with the Office of Special Counsel (OSC). ID at 9-13. The appellant

petitions for review.

¶3 The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his administrative remedies before OSC and makes nonfrivolous

allegations that: (1) he engaged in whistleblowing activity by making a protected

disclosure; and (2) the disclosure was a contributing factor in the agency’s

decision to take or fail to take a personnel action. Yunus v. Department of

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion

requirement of 5 U.S.C. § 1214(a)(3), an appellant must provide OSC with a

sufficient basis to pursue an investigation. Chambers v. Department of Homeland

Security, 2022 MSPB 8, ¶¶ 10-11.

¶4 Here, although the appellant filed a complaint with OSC and received a

closure letter, IAF, Tab 7 at 57-59, he did not submit a copy of his OSC

complaint to the Board. While proof of exhaustion need not be in the form of an

OSC complaint, the burden of proof is on the appellant to establish exhaustion.

Chambers, 2022 MSPB 8, ¶¶ 10-11. As such, it was incumbent on him to

articulate the substance of the disclosures that he made to OSC. The

administrative judge ordered the appellant to identify his protected discl osure, the

date of the disclosure, to whom it was made, and other pertinent information,

IAF, Tab 3 at 7, but the appellant provided no information about his OSC

complaint and instead raised arguments about the merits of his removal, his

discrimination claims, his requests for documents under the Freedom of

Information Act, and other matters not relevant to the outcome of this appeal.

¶5 The appellant asserts on review that OSC stated in its closure letter that he

had exhausted his administrative remedies and that the administrative judge erred

by finding otherwise. PFR File, Tab 2 at 4-5. The appellant has misinterpreted

OSC’s correspondence. IAF, Tab 1 at 52-54, Tab 7 at 57-59. In any event, an

IRA appeal before the Board is a de novo proceeding and any decisions that OSC

may have made are not binding on the Board. Mangano v. Department of

Veterans Affairs, 109 M.S.P.R. 658, ¶ 45 (2008). Moreover, as noted above,

OSC’s closure letter establishes that the appellant filed a complaint about alleged

whistleblowing, but it does not establish what the alleged whistleblowing was,

and it does not establish that he provided OSC with a sufficient basis to pursue an

investigation which might lead to corrective action.

¶6 The appellant further contends that he was unable to provide copies of his

correspondence with OSC because OSC was not cooperating with his various

requests for documents. PFR File, Tab 2 at 4. Whether the appellant has

satisfied the exhaustion requirement depends on what information he provided to

OSC. The documents he submitted to OSC would normally be in his own custody

and control and his access to them would not depend o n OSC’s response to his

requests for documents. Moreover, the appellant has been attempting to obtain

redress for his removal since 2011, including by filing of several Board appeals,

and has had ample opportunity to gather the documents he needs.

¶7 Finally, the appellant alleges that the administrative judge was biased and

should have recused herself. Id. at 4-5. 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. Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The party claiming

bias must show that it constitutes extrajudicial conduct rather than conduct

arising in the administrative proceedings before the administrative judge, and the

fact that the administrative judge ruled against the party, even erroneously, is

insufficient evidence to show bias. Vaughn v. Department of the Treasury,

119 M.S.P.R. 605, ¶ 18 (2013); Benson v. Office of Personnel Management,

83 M.S.P.R. 549, ¶ 7 (1999). The appellant’s claims of bias are based almost

entirely on the administrative judge’s rulings in this appeal and in prior appeals

and do not establish extrajudicial conduct warranting a finding of bias.

¶8 The appellant’s remaining allegation of bias proceeds from his

representation that he has named the administrative judge as a witness in a

discrimination complaint. However, he has submitted no evidence showing that

the administrative judge has been approved as a witness by an appropriate

authority. At this point, any suggestion that the administrative judge will testify

in any possible hearing that may or may not occur in connection with his

discrimination complaint is mere speculation, as is the apparent presumption that

the possibility of testifying necessarily would trigger bias against the appellant.

¶9 Based on the foregoing, we find that the administrative judge correctly

found that the appellant did not show that he exhausted his administrative

remedies with OSC and failed to establish jurisdiction over his IRA appeal. In

light of this disposition, we do not address the administrative judge’s finding that

the appeal was barred by the doctrine of collateral estoppel.

¶10 Finally, on March 1, 2018, the appellant filed a pleading titled “Motion to

Waive Jurisdiction.” PFR File, Tab 8. The Clerk of the Board issued an order

informing the appellant that it appeared that his pleading may constitute a request

to withdraw his petition for review. PFR File, Tab 9. The Clerk ordered the

appellant, if he indeed wished to withdraw his petition for review, to submit a

pleading confirming his request to withdraw his petition for review. Id. The

appellant did not respond to the Clerk’s order and we find that he did not intend

to withdraw his petition for review.

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

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.

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 an d

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

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 m ay 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. 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