Opinion

Peggye Wilson v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jul 13, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEGGYE WILSON, DOCKET NUMBERS

Appellant, SF-0752-21-0330-I-2

SF-1221-21-0329-W-2 1

DEPARTMENT OF DEFENSE,

Agency. DATE: July 13, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Peggye Wilson, APO, APO/FPO Pacific, pro se.

Amos N. Jones, Esquire, Washington, D.C., for the appellant.

Holly Kay Botes, Esquire, APO, APO/FPO Pacific, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

We have joined these two appeals on review based on our determination that joinder

will expedite processing of the cases and will not adversely affect the interests of the

parties. 5 C.F.R. § 1201.36(b).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, which

dismissed for lack of jurisdiction her involuntary retirement and individual right

of action (IRA) appeals. In her petitions for review, she argues that the

administrative judge erred in finding that she failed to nonfrivolously allege that

her retirement was involuntary and that she made protected disclosures or

engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(8), (9). Wilson v.

Department of Defense, MSPB Docket No. SF-0752-21-0330-I-2, Petition for

Review (I-2 PFR) File, Tab 1; Wilson v. Department of Defense, MSPB Docket

No. SF-1221-21-0329-W-2, Petition for Review (W-2 PFR) File, Tab 1.

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 erroneous interpretation of statute or regulatio n

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 these appeals, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petitions for review.

Therefore, we DENY the petitions for review and AFFIRM the initial decisions,

which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).

¶2 The administrative judge correctly found that the appellant failed to

nonfrivolously allege or show that her retirement was involuntary. Wilson v.

Department of Defense, MSPB Docket No. SF-0752-21-0330-I-2, Appeal File

(I-2 AF), Tab 14, Initial Decision (I-2 ID) at 10-14. We similarly agree with the

administrative judge that the appellant failed to nonfrivolously allege that she

made a protected disclosure or engaged in protected activity pursuant to 5 U.S.C.

§ 2302(b)(8), (9). Wilson v. Department of Defense, MSPB Docket No. SF-1221-

21-0329-W-2, Appeal File (W-2 AF), Tab 16, Initial Decision (W-2 ID) at 10-15.

The appellant’s arguments on review, which amount to mere disagreements with

the administrative judge’s findings, do not provide a basis to disturb the initial

decisions in this regard.

¶3 The appellant argues in both petitions for review that the administrative

judge abused her discretion by refusing to accommodate her counsel’s religious

observances when she denied requests for an extension of time to initiate

discovery and file a jurisdictional briefing, which she filed in both proceedings

below, respectively. I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. The

appellant’s request was due to disruptions to her home life and the “supervening

commitments” of her counsel, including his commitment to his church and the

Easter holiday. I-2 AF, Tab 5; W-2 AF, Tab 7. The administrative judge denied

the request for a 6-month extension. I-2 AF, Tab 8; W-2 AF, Tab 10.

¶4 An administrative judge has wide discretion to control the proceedings in

front of her, and specifically, to rule on motions. See 5 C.F.R. § 1201.41(b)(8).

Here, it is undisputed that, although the administrative judge denied the

appellant’s request for a 6-month extension, she granted a 7-day extension based

on the appellant’s explanation of good cause. I -2 AF, Tab 8; W-2 AF, Tab 10.

Further, following the 7-day extension, the administrative judge also granted an

additional 8-day extension. I-2 AF, Tab 11; W-2 AF, Tab 13. On review, the

appellant has not explained how these extensions failed to account for her

counsel’s religious observance. Accordingly, this argument does not provide a

basis to disturb the initial decisions.

¶5 The appellant also argues on review that the prior dismissals of her appeals

without prejudice constituted an abuse of discretion and resulted in the loss of her

requested hearing. I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. We

acknowledge that the administrative judge dismissed the appeals without

prejudice while the Board resolved the issues presented in Lucia v. Securities

Exchange Commission, 138 S. Ct. 2044 (2018), and that the appeals were not

refiled until approximately 1 year later. The appellant has not shown that any

delay in the refiling of her appeals caused the loss of the requested hearings.

Regarding her involuntary retirement claim, an appellant has a right to a hearing

when she makes nonfrivolous allegations of Board jurisdiction. See Garcia v.

Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006).

Regarding her IRA appeal, an appellant is entitled to a hearing on the merits

when she proves that she exhausted her administrative remedy with the Office of

Special Counsel and makes nonfrivolous allegations that she engaged in protected

activity that was a contributing factor in a personnel action. See Graves v.

Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016). Based on the

administrative judge’s findings and our agreements therewith as stated in thi s

decision, the appellant failed to show that she was entitled to a hearing in either

matter.

¶6 Accordingly, we affirm the initial decisions.

NOTICE OF APPEAL RIGHTS 3

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

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.

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 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. 420 (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 describe d 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