Opinion

Lisa Hogan v. Department of Defense

Court
Merit Systems Protection Board
Filed
Apr 16, 2024
Status
Unpublished
Cited by
0 cases

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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