Opinion

Peggy Maloney v. Executive Office of the President, Office of Administration

Court: Merit Systems Protection Board
Filed: Nov 17, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEGGY A. MALONEY, DOCKET NUMBER

Appellant, DC-0752-20-0092-I-2

EXECUTIVE OFFICE OF THE DATE: November 17, 2023

PRESIDENT, OFFICE OF

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peggy A. Maloney , Alexandria, Virginia, pro se.

Tanesha Petty and Raheemah Abdulaleem, Washington, D.C., 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 this refiled appeal of her removal because of a pending prior petition

for review involving the same removal action. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

erroneous findings of material fact; the initial decision is based on an 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. Because the pending prior petition for review

involving the same removal action has now been adjudicated by the Board, we

FORWARD this case to the regional office for docketing and adjudication on the

merits of the removal.

BACKGROUND

¶2 The appellant filed a Board appeal of her removal. Maloney v.

Executive Office of the President, Office of Administration , MSPB Docket

No. DC-0752-20-0092-I-1, Initial Appeal File (IAF), Tab 1. In an initial decision

dated July 29, 2020, the administrative judge dismissed the appeal

without prejudice for 40 days to afford the parties time to complete discovery.

IAF, Tab 40. The administrative judge informed the parties that the appeal would

be automatically refiled 36 days after issuance of the initial decision. Id. at 2.

¶3 On August 21, 2020, the appellant filed a petition for review of that initial

decision. Maloney v. Executive Office of the President, Office of Administration ,

MSPB Docket No. DC-0752-20-0092-I-1, Petition for Review File, Tab 3.

On September 4, 2020, the regional office automatically refiled the appeal.

Maloney v. Executive Office of the President, Office of Administration ,

MSPB Docket No. DC-0752-20-0092-I-2, Appeal File (I-2 AF), Tabs 1-2.

Because there was both a pending petition for review and a pending refiled appeal

involving the same removal action, the administrative judge notified the appellant

that, “[w]hile [she] is certainly free to pursue the pending PFR, the instant appeal

cannot proceed to adjudication while the PFR is pending.” I-2 AF, Tab 3. Thus,

the administrative judge informed the parties that, unless the appellant withdrew

her petition for review, it appeared that the refiled appeal should be dismissed.

Id. at 1. She afforded the parties an opportunity to object to dismissal of the

appeal. Id. at 2. The administrative judge issued a second order requesting that

the appellant advise her if she had withdrawn her petition for review so that the

instant appeal could proceed. I-2 AF, Tab 18. The administrative judge notified

the parties that if no such notice is received, the appeal would be dismissed. Id.

at 2.

¶4 Although the appellant initially appeared to seek withdrawal of her petition

for review, I-2 AF, Tab 20 at 7, she later indicated that she was “unable to make

up [her] mind,” and requested an extension of time to make a decision, I-2 AF,

Tab 33 at 4. The administrative judge granted an extension and informed the

appellant that if she chose to withdraw her petition for review she must so advise

the full Board no later than October 5, 2020, and file a copy of that withdrawal in

this appeal. I-2 AF, Tab 34. The administrative judge notified the appellant that

“[i]f a proper withdrawal is not received by that date, I will dismiss this appeal

without prejudice to refiling.” Id. at 2. The appellant ultimately informed the

administrative judge that she had decided not to withdraw her petition for review.

I-2 AF, Tab 37 at 5. Therefore, the administrative judge issued an initial decision

dismissing this appeal because “[a]n appeal cannot be pending in both forums

simultaneously,” and rulings on the argument the appellant made to the full Board

may impact adjudication of the instant appeal. I-2 AF, Tab 38, Initial Decision

(ID) at 2. The administrative judge notified the parties that adjudication of the

removal appeal would commence upon issuance of a decision by the full Board on

the petition for review in Maloney v. Executive Office of the President, Office of

Administration, MSPB Docket No. DC-0752-20-0092-I-1. ID at 2-3.

The appellant has filed a petition for review, to which the agency has not

responded. Petition for Review (PFR) File, Tab 1.

ANALYSIS

¶5 The appellant asserts on review that she was “never notified in advance . . .

that two PFR’s cannot be pending in both forums simultaneously and therefore

she should not file two PFRs.” PFR File, Tab 1 at 4-5. She also raises claims of

bias by the administrative judge, improper severance of cases that had previously

been joined, and discovery, conflict of interest, and certificate of service issues.

Id. at 5-10. The appellant further appears to raise contentions related to an

individual right of action (IRA) appeal she filed before her removal and an appeal

she filed with the Equal Employment Opportunity Commission (EEOC).

Id. at 10-13. She attaches to her petition for review email correspondence

involving her allegation that the Office of Special Counsel lacks “integrity,”

id. at 16-37, and submits a supplement to her petition for review that includes

email correspondence involving a coworker’s illness that apparently led to the

appellant receiving a letter of counseling, PFR File, Tab 2 at 4, 9-17. 2

The appellant has filed a motion for leave to file an additional pleading, PFR File,

Tab 4, a motion for leave to file additional evidence, PFR File, Tab 10, a motion to

incorporate all MSPB dockets, PFR File, Tab 12, and a motion to file various

objections, PFR File, Tabs 16-17. She requests that the Board permit her to file

evidence regarding an appeal she filed with the EEOC in which she alleges prohibited

discrimination. PFR File, Tab 4 at 4. She also requests that the Board permit her to file

pleadings she filed in two other appeals pending with the Board. PFR File, Tab 10 at 5-

7. Finally, she requests that the Board incorporate into the instant appeal all pleadings

and evidence in all of her pending Board appeals and requests leave to file various

objections regarding, in part, orders issued in her other matters as well as alleged errors

in her other matters. PFR File, Tab 12 at 4-5, Tabs 16-17. Because we are forwarding

this appeal for procedural reasons, we decline to rule on the appellant’s motions. Upon

docketing of the forwarded case, she may request leave to submit any new arguments or

allegations of discrimination or other matters, and may seek admission of relevant

evidence, consistent with the administrative judge’s orders.

¶6 Contrary to the appellant’s assertion on review, the issue addressed by the

administrative judge was not that the appellant had filed two petitions for review.

Rather, the administrative judge correctly dismissed this appeal upon finding that

the appellant had both a pending appeal in the regional office and a pending

petition for review before the full Board regarding the same removal action. ID at

2-3; see Wheeler v. Department of Defense, 113 M.S.P.R. 519, ¶ 7 (2010);

Hinton-Morgan v. Department of the Army, 75 M.S.P.R. 382, 399 (1997)

(“We find that the administrative judge reasonably determined that the

adjudication of the appellant’s adverse action demotion appeal should not move

forward pending the Board’s resolution of a petition for review involving the

same issues as those involved in the appeal before her.”). Thus, the appellant’s

contentions regarding the filing of two petitions for review does not show error in

the initial decision.

¶7 In making a claim of bias against an administrative judge, a party must

overcome the presumption of honesty and integrity that accompanies

administrative adjudicators. Thompson v. Department of the Army, 122 M.S.P.R.

372, ¶ 29 (2015). An administrative judge’s conduct during the course of a

proceeding warrants a new adjudication only if the administrative judge’s

comments or actions evidence a deep-seated favoritism or antagonism that would

make fair judgment impossible. Id. The mere fact that an administrative judge

has ruled against a party does not establish bias. Id. The appellant’s allegations

of bias do not meet this standard under the circumstances of this case.

¶8 We further find that the appellant’s allegations regarding the severance of

her cases that had previously been joined, discovery, an alleged conflict of

interest, certificate of service issues, and matters relating to her IRA and equal

employment opportunity appeals are not relevant to the issue of whether the

administrative judge properly dismissed this appeal. See As’Salaam v. U.S.

Postal Service, 85 M.S.P.R. 76, ¶ 15 (2000) (holding that the appellant’s

arguments regarding his medical limitations not related to a compensable injury

were not relevant to his restoration appeal). She has similarly not shown that the

email correspondence she submits on review is relevant to that issue.

¶9 Accordingly, now that the Board has issued a final decision adjudicating the

appellant’s petition for review of the initial decision in her initial appeal of her

removal, see Maloney v. Executive Office of the President, Office of

Administration, MSPB Docket No. DC-0752-0092-I-1, Final Order

(Nov. 17, 2023), we deem it appropriate to forward this appeal for adjudication

and a decision on the merits without requiring the appellant to refile her appeal,

see Jundt v. Department of Veterans Affairs, 113 M.S.P.R. 688, ¶¶ 7-8 (2010);

Wheeler, 113 M.S.P.R. 519, ¶ 7.

ORDER

¶10 We forward this case to the Washington Regional Office for adjudication on

the merits of the appellant’s removal.

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

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.

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.

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 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).

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