Opinion

Patricia Buggs v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: May 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PATRICIA A. BUGGS, DOCKET NUMBER

Appellant, DC-3330-19-0844-I-5

DEPARTMENT OF HEALTH AND DATE: May 16, 2024

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Patricia A. Buggs , Fredericksburg, Virginia, pro se.

Keian Weld , Esquire, Susan M. Andorfer , Esquire, and LerVal Marcelline

Elva , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal without prejudice to refiling. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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). For

the reasons discussed below, we DENY the appellant’s petition for review,

AFFIRM the initial decision insofar as it dismissed the appellant’s appeal without

prejudice to refiling pending the Board’s resolution of the interlocutory appeals in

Jolley v. Department of Housing and Urban Development, MSPB Docket Nos.

AT-4324-18-0576-I-2 and AT-4324-19-0041-I-1, and Flynn v. Securities and

Exchange Commission, MSPB Docket No. DC-1221-14-1124-M-4, on the

question of whether the Board’s administrative judges were properly appointed

under the Appointments Clause of the U.S. Constitution, and FORWARD the case

to the Board’s Washington Regional Office for adjudication of the underlying

appeal.

BACKGROUND

On September 19, 2019, the appellant filed an appeal alleging the agency

violated her rights under the Veterans Employment Opportunities Act of 1998.

Buggs v. Department of Health and Human Services , MSPB Docket No.

DC-3330-19-0844-I-1, Initial Appeal File (IAF), Tab 1 at 4-5. The agency moved

for reassignment of the appeal or dismissal without prejudice, citing the U.S.

Supreme Court’s decision in Lucia v. Securities and Exchange Commission,

138 S. Ct. 2044 (2018), concerning the appointment of administrative law judges.

IAF, Tab 5. On October 4, 2019, the administrative judge issued a decision

dismissing the appeal without prejudice to refiling, noting that the agency’s

argument concerning Lucia was currently certified to the Board for interlocutory

appeal. IAF, Tab 8, Initial Decision (I-1 ID) at 1-2. That decision specified that

the appeal would be automatically refiled 180 days from the date of the decision,

or, if the Board issued a decision addressing the Lucia issue prior to that date, the

appellant could request to refile her appeal. I-1 ID at 2.

The appeal was automatically refiled and dismissed without prejudice

subject to refiling multiple times. Buggs v. Department of Health and Human

Services, MSPB Docket No. DC-3330-19-0844-I-4, Tab 1, Tab 6, Initial Decision

(I-4 ID) at 2-3; Buggs v. Department of Health and Human Services , MSPB

Docket No. DC-3330-19-0844-I-3, Tab 1, Tab 6, Initial Decision (I-3 ID) at 2-3;

Buggs v. Department of Health and Human Services , MSPB Docket No.

DC-3330-19-0844-I-2, Tab 1, Tab 4, Initial Decision (I-2 ID) at 1, 3. 2 On

December 27, 2021, the instant appeal was automatically refiled. Buggs v.

Department of Health and Human Services, MSPB Docket No. DC-3330-19-

0844-I-5 (I-5 AF), Tab 1. On February 3, 2022, the administrative judge issued

an initial decision again wherein he noted that the Lucia issue had still not been

resolved and that in the interest of judicial economy and administrative efficiency

the appeal would be again dismissed without prejudice to allow the Board to

address the Lucia issue. I-5 AF, Tab 4, Initial Decision (I-5 ID) at 2-3.

The appellant timely filed a petition for review. Petition for Review (PFR)

File, Tab 1 at 4. The agency has filed a response opposing the petition for

review, noting that the Lucia issue is now moot. PFR File, Tab 6 at 4-5. The

appellant has not responded.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant challenges the administrative judge’s decision to

dismiss her appeal without prejudice subject to refiling. PFR File, Tab 1 at 4.

Specifically, she appears to have adopted the agency’s Lucia argument, claiming

The initial decisions specified that the case would be automatically refiled 180 days

from the date of the decisions, or earlier in the event the Board issued a decision

addressing the Lucia issue. I-2 ID at 2; I-3 ID at 3; I-4 ID at 3.

that she is entitled “to a hearing and review by constitutionally-appointed

decision-maker(s).” Id. at 4, 14, 43.

An administrative judge has wide discretion to control the proceedings

before him and dismissal without prejudice is a procedural option committed to

his sound discretion. Gingery v. Department of the Treasury, 111 M.S.P.R. 134,

¶ 9 (2009). A dismissal without prejudice is appropriate when it is in the

interests of fairness, due process, and administrative efficiency. Id. The Board

has held that an administrative judge may order a dismissal without prejudice at

the request of one or both parties, or to avoid a lengthy or indefinite continuance.

Id. The administrative judge dismissed the appellant’s appeal about a month

prior to the Board resolving the Lucia issue. I-5 ID at 1; see McClenning v.

Department of the Army, 2022 MSPB 3 (2022); see also Flynn, MSPB Docket No.

DC-1221-14-1124-M-4, Order at 3 (Mar. 31, 2022). Thus, we believe that the

administrative judge’s decision to dismiss the appeal without prejudice was

appropriate in light of the then-pending interlocutory appeals.

As to the appellant’s Appointment Clause argument on review, we find that

we need not address this argument. On March 4, 2022, six days prior to the

appellant’s petition for review, all of the Board’s administrative judges received

appointments ratified by the head of the agency, thereby satisfying the

requirements of the Appointments Clause. See U.S. Merit Systems Protection

Board Ratification Order (Mar. 4, 2022),

https://www.mspb.gov/foia/files/AJ_Ratification_Order_3-4-2022.pdf. The

Ratification Order is a public document, of which we take administrative notice.

Id. Thus, the Appointments Clause claim raised by the agency and the appellant

is moot. See Milner v. U.S. Postal Service, 118 M.S.P.R. 600, ¶ 4 (2012)

(holding that an issue is moot when there is no effective relief that the Board can

provide). Therefore, we forward the appeal to the regional office for adjudication

of the underlying appeal.

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.

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:

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.

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).

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