The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA HOGAN, DOCKET NUMBER
Appellant, DC-3443-22-0522-I-1
v.
DEPARTMENT OF DEFENSE, DATE: April 16, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Lisa Hogan , Waldorf, Maryland, pro se.
Jonathan Tyler Baldwin , Esquire, Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal with prejudice based on her request for dismissal of the
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
By letter dated August 24, 2022, the appellant requested that the
administrative judge dismiss her appeal so that she could pursue her case in
another forum. Initial Appeal File (IAF), Tab 5 at 2. The administrative judge
issued an order notifying the appellant of the consequences of her request for
dismissal and giving her until October 18, 2022, to rescind her request. IAF,
Tab 6 at 1. On October 18, 2022, the administrative judge issued an initial
decision dismissing the appeal with prejudice based on the appellant’s request for
dismissal. IAF, Tab 7, Initial Decision at 1. Later that day, the appellant
submitted a pleading rescinding her request for dismissal and requesting to keep
her case open. Petition for Review (PFR) File, Tab 1 at 3-4. She attached
numerous documents to her pleading. Id. at 5-12. The Office of the Clerk of the
Board docketed the pleading as a petition for review of the initial decision. Id.
The agency has filed a response requesting that the appeal be dismissed for lack
of jurisdiction. PFR File, Tab 3 at 3-10.
The relinquishment of one’s right to appeal to the Board must be by clear,
unequivocal, and decisive action. Appell v. U.S. Postal Service, 69 M.S.P.R. 363,
365 (1996). Because the appellant took timely and effective action to rescind her
request for dismissal by filing a request to rescind the request during the time
period permitted by the administrative judge’s order, we find that her appeal must
be reinstated for processing. See Hoke v. U.S. Postal Service, 51 M.S.P.R. 362,
364 (1991).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. Because the
appellant has alleged that she engaged in whistleblowing activity, IAF, Tab 1
at 5, on remand, the administrative judge shall provide the appellant with notice
3
of the burdens and methods of proof for establishing jurisdiction over an
individual right of action appeal.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.