explaining that the Board must first resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal
How later courts described this case
- explaining that the Board must first resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HENRY SEARCY, JR., DOCKET NUMBER
Appellant, DC-1221-21-0555-W-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 11, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Henry Searcy, Jr., Bowie, Maryland, pro se.
Stephanie J. Mitchell, Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal without prejudice to
refiling. For the reasons discussed below, we GRANT the appellant’s petition for
review and REMAND this matter to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 On December 27, 2021, the administrative judge issued an initial decision
dismissing this matter without prejudice to refiling because of a significant
overlap of issues between this matter and another IRA appeal previously filed by
the appellant, i.e., Searcy v. Department of Agriculture, MSPB Docket No.
DC-1221-20-0455-W-1 (Searcy I). Initial Appeal File (IAF), Tab 15, Initial
Decision (ID) at 1-2. 2 In so doing, the administrative judge explained that the
instant appeal would be automatically refiled “180 days from the date of [the
initial] decision, or within 30 days of the Board’s issuance of its decision in
Searcy I, whichever date occurs first.” ID at 2-3. The appellant thereafter filed a
petition for review of the initial decision wherein he largely argues the merits of
his IRA appeal(s). 3 Petition for Review File, Tab 1.
¶3 To the extent the appellant argues that the administrative judge abused his
discretion in dismissing this matter without prejudice, we disagree; indeed, there
is a significant overlap of issues between this matter and Searcy I. See Wheeler v.
Department of Defense, 113 M.S.P.R. 519, ¶ 7 (2010) (concluding that the
administrative judge did not abuse his discretion in dismissing an appeal without
prejudice when the matter shared a common issue with another Board appeal); see
also Brigham v. Office of Personnel Management, 110 M.S.P.R. 108, ¶ 8 (2008)
(stating that the Board may dismiss an appeal without prejudice to refiling in
order to avoid a lengthy or indefinite continuance). To the extent he argues the
merits of his appeal, his arguments are misplaced; indeed, the administrative
2
Prior to issuing the initial decision, the administrative judge telephoned both parties,
left voicemails explaining that it appeared that he should dismiss the matter without
prejudice due to the overlap of issues, and requested that both parties return h is call.
IAF, Tab 14 at 1. Neither party did so. Id. Approximately 3 weeks later, the
administrative judge issued an order explaining that he intended to dismiss the matter
without prejudice and providing the parties with 5 days to object. Id. at 1-2. Neither
party objected or otherwise responded to the order.
3
Because the appellant’s petition for review ostensibly challenged the administrative
judge’s dismissal of the instant matter without prejudice, the matter was not
automatically redocketed with the administrative judge 180 days following the issuance
of the December 27, 2021 initial decision. ID at 2-3.
3
judge did not issue a finding regarding Board jurisdiction over the instant appeal.
See Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir.
2000) (explaining that the Board must first resolve the threshold issue of
jurisdiction before proceeding to the merits of an appeal).
¶4 Of note, the Board has issued its decision in Searcy I, i.e., one of the
conditions that the administrative judge indicated would trigger the refiling of
this matter. ID at 2-3. However, as stated, the administrative judge has yet to
issue a jurisdictional finding for the instant appeal. Accordingly, we find it
appropriate to remand this case for a jurisdictional determination and, if
appropriate, adjudication of the merits. See Wheeler, 113 M.S.P.R. 519, ¶ 7
(remanding an appeal that had been dismissed without prejudice because it shared
a common issue with a prior appeal filed by the same appellant because the Board
had since issued a final decision in the prior appeal). On remand, the regional
office may elect to join the appellant’s two IRA appeals. See 5 C.F.R. § 1201.36.
ORDER
¶5 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.