The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA DAWN WHETTEN- DOCKET NUMBER
HERNANDEZ, DE-3443-16-0457-I-1
Appellant,
v.
DATE: April 25, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Simp McCorvey, III, Albuquerque, New Mexico, for the appellant.
Zulema Hinojos-Fall, Esquire, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
dismissed the appellant’s termination appeal as withdrawn. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 interpretation of statute or regulation 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 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
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 and
AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant filed an appeal of her termination from her Licensed Practical
Nurse position during her initial year of service. Initial Appeal File (IAF), Tab 1.
As described in the initial decision, while the appeal was pending before the
Board, the appellant, who was represented, unequivocally withdrew her appeal
during a telephonic conference. IAF, Tab 8 (withdrawal audio recording), Tab 9,
Initial Decision (ID) at 1-2. The administrative judge found that the appellant’s
withdrawal of her appeal was knowing and freely made and that she understood
that the administrative judge would dismiss the appeal with pre judice to refiling.
ID at 2. The administrative judge dismissed the appeal in a September 28, 2016
initial decision. ID. The agency has now petitioned for review, arguing that the
appellant withdrew her appeal based on incorrect information, and moves to
dismiss the appeal for lack of jurisdiction. Petition for Review (PFR) File, Tab 1
at 5-6. 2
2
There is a question regarding the timeliness of the agency’s petition for review. See
5 C.F.R. § 1201.114(e). However, we need not decide the timeliness issue because we
find that the administrative judge properly dismissed this appeal as withdrawn. Cf.
Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005) (stating that, when the
Board clearly lacks jurisdiction over an appeal and the record sug gests that the question
3
¶3 Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and
in the absence of unusual circumstances such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it has been
withdrawn. Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007). Although
the Board may relieve an appellant of the consequences of her decision to
withdraw an appeal when the conditions set forth above exist, here the appellant
has not indicated that she wants to reinstate her appeal. Id. Rather, it is the
agency that seeks to have the withdrawn appeal reinstated. PFR File, Tab 1.
¶4 The Board’s regulations specify that only an appellant, her designated
representative, or a party properly substituted may file an appeal. 5 C.F.R.
§ 1201.24(a); Goode v. Department of the Navy, 93 M.S.P.R. 122, ¶ 6 (2002).
This is consistent with the statutory language, which provides that “[a]n
employee, or applicant for employment, may submit an appeal to the Merit
Systems Protection Board from any action which is appealable to the Board under
any law, rule, or regulation.” 5 U.S.C. § 7701(a). Furthermore, the Board has
held that it may dismiss an appeal as withdrawn based on the appellant’s request,
despite the agency’s objections. Kravitz v. Office of Personnel Management,
75 M.S.P.R. 44, 47-48 (1997). Because only an appellant may file an appeal and
the appellant may withdraw her appeal over the agency’s objections, we find the
agency’s petition for review unavailing. 3
of timeliness is close, the better practice is to address the jurisdictional issue and
dismiss the appeal on that ground), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
3
We appreciate the agency’s candor in admitting that it provided the appellant
inaccurate information. According to the agency, it had represented to the
administrative judge that the appellant’s termination during her probationary period had
not been effected, when in fact it had. PFR File, Tab 1, at 5. Although the appellant
was placed into a new job, the agency states that its effective date of hire occurred
about a month and a half after the effective date of the appellant’s probationary period
termination. Id. Although the agency does not explicitly so state in its petition for
review, it appears that this would cause the appellant to have a break in service. The
agency, of course, may choose to cure its misrepresentation by correcting the
appellant’s personnel records, if it has not already done so. The appellant has shown no
4
¶5 Accordingly, we deny the agency’s petition for review.
NOTICE OF APPEAL RIGHTS 4
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 b elow 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).
indication in the last several years that she wishes to pursue her appeal based upon the
agency’s misrepresentations. However, the Board may at any time reopen any appeal in
which it has issued a final order. 5 C.F.R. § 1201.118. The Board will exercise its
discretion to reopen an appeal only in unusual or extraordinary circumstances and
generally within a short period of time after the decision becomes final. Id.
4
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
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 war rants 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 t he 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
6
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
7
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. 5 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
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 particu lar
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
5
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
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.