Opinion

Patricia Buggs v. Department of the Navy

Court: Merit Systems Protection Board
Filed: May 31, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

finding that the appellant had waived her request for recusal of the administrative judge by failing to comply with the provisions of 5 C.F.R. § 1201.42

How later courts described this case

finding that the appellant had waived her request for recusal of the administrative judge by failing to comply with the provisions of 5 C.F.R. § 1201.42

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PATRICIA A. BUGGS, DOCKET NUMBER

Appellant, DC-0752-21-0674-I-2

DEPARTMENT OF THE NAVY, DATE: May 31, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Eva M. Clements , Quantico, Virginia, 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 involuntary resignation appeal for lack of jurisdiction. On petition

for review, the appellant argues that the Board’s March 4, 2022 ratification of the

Merit Systems Protection Board’s administrative judges’ appointments is

unconstitutional and requests that the Board forward her case to arbitration.

Petition for Review (PFR) File, Tab 1 at 4. Generally, we grant petitions such as

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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. 2 Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The appellant filed an appeal alleging that her resignation from Federal

service was involuntary. Buggs v. Department of the Navy, MSPB Docket No.

DC-0752-21-0674-I-1, Initial Appeal File (IAF), Tab 1. Thereafter, the agency

filed a motion to dismiss the appeal without prejudice in which it asserted that

there was a question as to whether Board administrative judges were properly

appointed under the Appointments Clause. IAF, Tab 8. Specifically, the agency

contended that, pursuant to the U.S. Supreme Court’s decision in Lucia v.

Securities Exchange Commission, 138 S. Ct. 2044 (2018), the administrative

judge may not have the authority to decide the appeal because the administrative

judge may qualify as an Officer of the United States subject to the Appointments

Clause, rather than as a mere employee. Id. The agency recognized that this

Following the petition for review, the appellant filed a motion for leave to submit

additional documentation she received pursuant to a Freedom of Information Act

request to substantiate her constructive discharge claim. PFR File, Tab 4 at 4.

Nonetheless, because the appellant has failed to sufficiently explain how this purported

new evidence would be material, i.e., of sufficient weight to warrant a different

outcome from that of the initial decision, we DENY her motion. 5 C.F.R.

§ 1201.114(k); see Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).

question was currently pending before the Board on interlocutory appeal, and it

requested that the appeal be dismissed without prejudice pending review of this

question by the Board. On October 18, 2021, the administrative judge dismissed

the appeal without prejudice in order for the Board to address this issue. IAF,

Tab 9, Initial Decision.

The appeal was automatically re-docketed on April 18, 2022. Buggs v.

Department of the Navy, MSPB Docket No. DC-0752-21-0674-I-2, Appeal File

(I-2 AF), Tab 1. After the case was refiled, the appellant filed a response to the

agency’s statement on jurisdiction in which she stated that she “has no objection

to the current Judge handling the case at hand.” I-2 AF, Tab 5. On July 6, 2022,

the administrative judge issued an initial decision dismissing the involuntary

resignation appeal for lack of jurisdiction. I-2 AF, Tab 10, Initial Decision.

On petition for review, the appellant argues that the ratification of the

Board’s administrative judges’ appointments is unconstitutional because only two

Board members ratified the appointments. PFR File, Tab 1 at 4. The appellant

also challenges the authority of the administrative judge by contending that the

administrative judge has two layers of removal protections. Id.

We need not, however, address these arguments because we find that the

appellant waived any objection to the administrative judge’s authority. The

appellant was apprised by the agency’s motion to dismiss the appeal and the

initial decision dismissing the appeal without prejudice that there was a question

pending before the Board on interlocutory appeal regarding whether

administrative judges were properly appointed pursuant to the Appointments

Clause. IAF, Tab 8-9. The appellant nonetheless expressly waived any objection

to the administrative judge adjudicating her appeal in her response to the

agency’s pleading on jurisdiction. I-2 AF, Tab 5; see Wynn v U.S. Postal Service,

115 M.S.P.R. 146, ¶ 9-10 (2010) (explaining the circumstances under which an

appellant may be deemed to have expressly waived an affirmative defense),

overruled on other grounds by Thurman v. U.S. Postal Service, 2022 MSPB 21.

Furthermore, the appellant did not raise any objections to the administrative

judge’s authority to adjudicate her appeal in her other pleadings below. Thus,

even if the appellant’s statement below did not constitute an express waiver on its

own, the appellant effectively waived any such objection to the administrative

judge’s authority by not pursuing it below. See Thurman, 2022 MSPB 21,

¶¶ 17-18 (explaining that the ultimate question in determining whether an

appellant waived an affirmative defense is whether an appellant demonstrated his

intent to continue pursuing his affirmative defense, and whether he conveyed that

intent after filing the initial appeal).

In addition, the Board’s regulations impose particular requirements on

litigants who wish to challenge the qualifications of the individual assigned to

hear their cases. McClenning v. Department of the Army, 2022 MSPB 3, ¶ 14. 3

Specifically, a party seeking to disqualify a judge must file a motion to disqualify

as soon as the party has reason to believe there is a basis for disqualification and,

if the administrative judge denies that motion, the party must request certification

of an interlocutory appeal or the disqualification issue is considered waived. Id.;

5 C.F.R. § 1201.42(b)-(c); see Thomas v. Office of Personnel Management,

350 F. App’x 448, 451 (Fed. Cir. 2009) (finding that the appellant had waived her

request for recusal of the administrative judge by failing to comply with the

provisions of 5 C.F.R. § 1201.42). Here, the appellant did not file any such

motion below.

To the extent that the appellant requests that the Board forward her

involuntary resignation claim to arbitration, because the Board lacks jurisdiction

over her claim, it similarly lacks the authority to refer her claim to another forum.

See Brady v. Department of the Treasury, 94 M.S.P.R. 439, ¶ 7 (2003) (where the

Board lacks jurisdiction over a matter, it also lacks authority to refer the matter to

another forum that may have jurisdiction).

We note that the Board’s decision in McClenning was issued on March 31, 2022, prior

to the July 6, 2022 initial decision dismissing the appeal for lack of jurisdiction.

I-2 AF, Tab 10.

NOTICE OF APPEAL RIGHTS 4

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. 5 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