A Month in Merit Protection: Recapping Civil Service News for February 2014

A Month in Merit Protection is a new feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Initial Decisions

  • Administrative Judge Ronald J. Weiss reversed the agency’s removal of appellant, a Senior Executive and regional commissioner, finding that it failed to establish its charge of conduct unbecoming a Federal employee. Note: this case pertains to the fallout from the controversy involving the GSA’s $822,000 Las Vegas conference scandal, which came to light in 2012. Weller v. GSA, Docket No. DA-0752-12-0519-I-1 (Feb. 4, 2014)
  • AJ JoAnn M. Ruggiero granted a NOAA Special Agent’s request for corrective action, finding the agency wrongfully issued a low performance evaluation and may have denied him a promotion as a result of his disclosure that a fellow agent made a false law enforcement report. Rios v. Dep’t of Commerce, Docket No. NY-1221-10-0261-B-1 (Feb. 6, 2014) (coverage)
  • AJ Jeffrey S. Morris granted in part a Contract Specialist’s request for corrective action, finding that the agency wrongfully constructively suspended appellant for her disclosure that a (non-governmental) contractor employee was allowed to make key contracting decisions, which should have been made by government officials, in violation of acquisition regulations. The AJ found that the agency proved by clear and convincing evidence that it would have taken some but not all of the personnel actions at issue in the absence of the disclosures, and not a constructive suspension claim. Savage v. Dep’t of the Army, Docket No. AT-1221-12-0591-W-1 (Feb. 6, 2014)
  • In a 256-page decision, Chief Administrative Judge William L. Boulden reversed the agency’s removal of a radiologic technologist, finding that the decision was based on whistleblowing and grievance activity reprisal. Ayers v. Dep’t of the Army, Docket No. DA-0752-12-0396-I-3 (Feb. 21, 2014)

Precedential Decisions

  • The Board denied appellant’s Veterans Employment Opportunity Act claim, finding that a denial of a conditional offer of employment based on a negative suitability determination did not violate veterans’ preference. Beyers v. Dep’t of State, 2014 MSPB 8 (Feb. 12, 2014)
  • The Board denied the agency’s petition for review and upheld the order not sustaining appellant’s indefinite suspension. The Board found that the agency failed to provide appellant a meaningful opportunity to respond to its proposed suspension. Ulep v. Dep’t of the Army, 2014 MSPB 9 (Feb. 14, 2014)
  • The Board granted appellant’s PFR of an initial decision that affirmed his indefinite suspension on a charge of failure to meet a condition of employment (eligibility to occupy a sensitive position), reversed the ID, and held the indefinite suspension action as not sustained. The Board found that an element of the agency erroneously concluded that, because appellant’s temporary access to classified information had been removed, he was not eligible to occupy a sensitive position and therefore did not meet a condition of employment. Rather, another element has the authority to deny his eligibility to occupy a sensitive position but did not make such a determination. Jones v. Dep’t of the Navy, 2014 MSPB 10 (Feb. 24, 2014)
  • In a 2-1 decision, the Board denied appellant’s PFR of an initial decision that dismissed his individual right of action (IRA) appeals, modified the ID, and denied appellant’s request for corrective action. The majority found that appellant, a part time physician who alleged several disclosures to the Office of Special Counsel–concerning abusive medical billing practices, non-compliance with radiation exposure regulations, destruction of records, and harassment of a fellow employee–failed to exhaust proceedings before OSC because the information to support the disclosures was “quite brief,” and when given a chance to provide additional information he declined to do so. Vice Chair Anne Wagner dissented, saying she would find that appellant exhausted his OSC remedies with regards to some of the disclosures, given that, in her opinion, appellant “sufficiently articulated with reasonable clarity and precision the basis of his complaint,” and that the Board has “consistently found allegations of similar specificity . . . adequate to meet the administrative exhaustion requirement” in other cases. Clarke v. Dep’t of Veterans Affairs, 2014 MSPB 11 (Feb. 27, 2014)
  • On remand from the U.S Court of Appeals for the Federal Circuit, the Board found, by a 2-0 vote (Member Robbins not participating), that appellant, a former State Department employee then based in Iraq, nonfrivolously alleged a disclosure that substandard and inadequate body armor was being supplied to agency employees en route to Iraq. The Board held that appellant’s disclosure–made to persons who may not have had actual authority to remedy the wrongdoing–was protected under both the retroactive provision in the WPEA (section 101) as well as under the WPA, as, contrary to the WPEA’s Senate Report, “neither the Federal Circuit, nor the Board, had recently interpreted the WPA to preclude protection for a disclosure unless it was made to a person with actual authority to remedy the wrongdoing.” The Board remanded the case to the AJ for adjudication on the merits. Nasuti v. Dep’t of State, 2014 MSPB 12 (Feb. 27, 2014)
  • The Board granted appellant’s PFR of an initial decision that affirmed his removal based on the revocation of his security clearance, vacated the ID, and reversed the removal. The Board found, contrary to the AJ, that appellant’s position did not require a security clearance and that the agency therefore failed to prove its sole charge–that appellant failed to meet a condition of employment. The Board found notable the fact that the agency continued to employ appellant for four years after suspending his access to classified information. Gamboa v. Dep’t of the Air Force, 2014 MSPB 13 (Feb. 28, 2014)

Attorney Fee Awards

  • AJ Brian Bohlen awarded appellant $13,425 in attorney fees “as the prevailing party based on the Board’s Order requiring the agency to rescind its 30-day suspension on Due Process grounds.” Ms. Voeller was represented by Norman Jackman, Esq., of Lincoln, New Hampshire. Voeller v. Dep’t of the Army, Docket No. AT-0752-12-0447-A-1 (Feb. 5, 2014). The underlying decision is Voeller v. Dep’t of the Army, Docket No. AT-0752-12-0447-I-1 (Oct. 17, 2012).
  • AJ Anthony W. Cummings awarded appellant $58,322 in attorney fees “incurred in connection with his successful appeal of the agency’s action constructively suspending him from the position he held as Assistant Inspector General-Management, GS-15, in the agency’s headquarters office.” Mr. Shrewsberry was represented by Adam A. Carter of The Employment Law Group. Shrewsberry v. FCC, Docket No. DC-3443-12-0288-A-1 (Feb. 5, 2014). The underlying decision is Shrewsberry v. FCC, Docket No. DC-3443-12-0288-I-1 (Apr. 24, 2013).
  • Regional Directory Jeremiah Cassidy awarded appellant $188,044 in attorney fees “in connection with . . . arbitration proceedings and her request for review with the Board.” Ms. Hollingsworth was represented by Stephanie M. Herrera, Esq., and Gary M. Gilbert, Esq., of Silver Spring, Maryland. Hollingsworth v. Dep’t of Commerce, Docket No. CB-7121-10-0016-A-1 (Feb. 28, 2014). A prior ruling which recounts this case’s litigation history is available at Hollingsworth v. Dep’t of Commerce, 117 M.S.P.R. 327 (2012).

Reports, Studies, and Newsletters

Personnel Changes

  • N/A

Other Items of Note

  • OSC announced it settled a number of Hatch Act cases based on prohibited partisan activity. (Feb. 3, 2014)
  • Citing to an incident whereby a federal employee “posted dozens of tweets about partisan elections and candidates while on duty,” OSC reminded the federal workforce not to engage in political activity while on duty. (Feb. 3, 2014)
  • MSPB filed a brief in the U.S. Court of Appeals for the Federal Circuit (partly in response to this author’s amicus curiae brief) defending its decision in O’Donnell v. USDA, 2013 MSPB 69 (Sept. 10, 2013), which resurrected a pre-WPEA Federal Circuit ruling that disclosures made in the adjudicative context are not protected.
  • MSPB transferred preparation of its weekly Case Reports to its Office of General Counsel. (Feb. 28, 2014)
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Corrective Action Ordered in Retaliation Case of NOAA Whistleblower Held Accountable for Assignment Given in Error

468px-NOAA_logo.svgA criminal investigator with the National Oceanic and Atmospheric Administration in Puerto Rico may have been wrongfully denied a promotion after his supervisor took into account his performance on an investigation into his colleagues — a matter which the administrative judge found should never have been assigned to him in the first place.

After unsuccessfully expressing reservations about the assignment in question (investigating an alleged assault against a federal officer following a colleague’s tip), the investigator reported to the FBI and the U.S. Attorney that the colleague had been untruthful. When the investigator later applied for a promotion, his supervisor claimed that the investigator erred in sending the report without first checking with him.

Thus began a four-year ordeal originating with a complaint for whistleblower reprisal with the Office of Special Counsel, followed by an MSPB initial decision finding that the disclosure was unprotected because it was made pursuant to the investigator’s “normal duties.” This was reversed by the three-member MSPB panel, which found that an investigation into assault against a federal official was not part of this NOAA special agent’s normal duties. Rios v. Dep’t of Commerce, 119 M.S.P.R. 490 (June 14, 2013).

On remand, Administrative Judge JoAnn Ruggiero focused on the sole question of whether the agency proved with clear and convincing evidence that it would have denied the investigator’s promotion and performance rating in the absence of his disclosure in the report.

“The assault investigation played a major role in both personnel actions,” Judge Ruggiero said. “However, it should not have. This type of investigation was not within the appellant’s area of expertise, and he was placed in the situation of having to look into an incident that involved his co-worker.”

The judge noted that the investigator could confer with the U.S. Attorney’s Office in his supervisor’s absence. Further, the supervisor “realized that his mistake in assigning the assault investigation to the appellant–and the repercussions of that mistake–could cause him [the supervisor] embarrassment,” the judge said, finding a motive to retaliate on the supervisor’s part.

“The appellant’s disclosures to [the FBI and the U.S. Attorney] not only raised questions about [the colleague’s] credibility, but indirectly raised questions about the managerial decision to have an agent investigate an incident involving a fellow agent,” the judge said.

The case is Rios v. Department of Commerce, MSPB Docket No. NY-1221-10-0261-B-1 (Feb. 6, 2014).

MSPB Statistics for 2013: Petitions for Review by Administrative Judges in New York

Merit Systems Protection Board Statistics
Petitions for Review for Administrative Judges Stationed
in the New York Field Office
Fiscal Year 2013

Administrative Judge Summary Detail – PFR Total
Booker, Barry G. Dismissed/Settled 5
Denied (Not Short Form) 3
Denied: Reopnd/ID Aff’d/Vacated 0
Granted: Remnd/Rvrs/Affm/Vacat 0
Briody, Maureen Dismissed/Settled 0
Denied (Not Short Form) 5
Denied: Reopnd/ID Aff’d/Vacated 0
Granted: Remnd/Rvrs/Affm/Vacat 0
Dominguez, Maria Dismissed/Settled 1
Denied (Not Short Form) 9
Denied: Reopnd/ID Aff’d/Vacated 0
Granted: Remnd/Rvrs/Affm/Vacat 4
Joseph, Arthur S. Dismissed/Settled 0
Denied (Not Short Form) 4
Denied: Reopnd/ID Aff’d/Vacated 0
Granted: Remnd/Rvrs/Affm/Vacat 1
Ruggiero, JoAnn M. Dismissed/Settled 2
Denied (Not Short Form) 14
Denied: Reopnd/ID Aff’d/Vacated 0
Granted: Remnd/Rvrs/Affm/Vacat 4
REGIONAL TOTAL Dismissed/Settled 8
Denied (Not Short Form) 35
Denied: Reopnd/ID Aff’d/Vacated 0
Granted: Remnd/Rvrs/Affm/Vacat 9
TOTAL PFRs 52
% PFRs Granted 17.31%
% PFRs Modified (granted+denied w/reopening) 17.31%
Key:
Denied (Not Short Form): Full Board affirms the AJ’s decision and does not take issue with the AJ’s analysis or reasoning.
Denied: Reopnd/ID Aff’d/Vacated: Full Board arrives at the same result that is adverse to the petitioner’s interests but nonetheless takes issue with the AJ’s reasoning or analysis.
Granted: Remnd/Rvrs/Affm/Vacat: In most instances, full Board arrives at a different legal outcome and takes issue with the AJ’s reasoning or analysis.
Dismissed/Settled: Full Board does not reach a substantive decision.
Data derived from http://mspbwatch.files.wordpress.com/2011/12/pardofoia_2013.xlsx, pursuant to a FOIA request.
No fields have been excluded as the focus is on the AJ’s performance/analysis and not the type of case before him/her.
Grade/salary information is available at http://mspbwatch.org/2013/06/07/mspb-staff-directory-2012/.

MSPB Statistics for 2013: Initial Decisions by Administrative Judges in New York

Merit Systems Protection Board Statistics
Initial Decisions by Administrative Judges Stationed in the
New York Field Office
Fiscal Year 2013

Administrative Judge Summary Detail Total Percent
Booker, Barry G. Dismissed With Prejudice 26 46%
Dismissed Without Prejudice 7 13%
For Agency 3 5%
For Employee 2 4%
Settled 18 32%
TOTAL 56  
Briody, Maureen Dismissed With Prejudice 23 38%
Dismissed Without Prejudice 10 16%
For Agency 2 3%
Employee 5 8%
Settled 21 34%
TOTAL 61  
Dominguez, Maria Dismissed With Prejudice 24 44%
Dismissed Without Prejudice 5 9%
For Agency 6 11%
For Employee 0 0%
Settled 20 36%
TOTAL 55  
Joseph, Arthur S. Dismissed With Prejudice 28 61%
Dismissed Without Prejudice 1 2%
For Agency 0 0%
For Employee 0 0%
Settled 17 37%
TOTAL 46  
Ruggiero, Joann M. Dismissed With Prejudice 18 33%
Dismissed Without Prejudice 11 20%
For Agency 0 0%
For Employee 2 4%
Settled 23 43%
TOTAL 54  
Grand total initial decisions for Administrative Judges stationed in New York: 272
Cases decided for the employee-appellant: 9
Regional percentage of cases won for the employee-appellant: 3.31%
Administrative Judges with no decisions for the employee-appellant:
Dominguez, Maria
Key:
DISMISSED WITH PREJUDICE: Declared outside of MSPB’s decision-making role.
  Categories include: Cancel or failure to prosecute, Jurisdiction or Res judicata, Timeliness, Withdrawn by Appellant, (Action) Terminated.
DISMISSED WITHOUT PREJUDICE: Request for postponement by appellant subject to case being revisited.
FOR AGENCY: Decided in favor of agency.
  Categories include: Affirmed, Corrective action not ordered.
FOR EMPLOYEE APPELLANT: Decided in favor of employee.
  Categories include: Mitigate agency action, Remanded to agency, Reversed.
SETTLED: Settled.
Data derived from http://mspbwatch.files.wordpress.com/2011/12/pardofoia_2013.xlsx, pursuant to a FOIA request.
Statistics exclude fields where appeal type specifies CSRA, Employment Practices, FERCCA, FERS, Misc, Reduction in Force, Reemployment Priority, or Restoration to Duty.
Grade/salary information is available at http://mspbwatch.org/2013/06/07/mspb-staff-directory-2012/.

MSPB Statistics for 2012: Initial Appeals by Attorney Examiners in New York

Merit Systems Protection Board Statistics
Initial Appeals by Attorney Examiners Stationed in the
New York Regional Office

Fiscal Year 2012

Attorney Examiner  / (Grade/Salary)

Summary Detail

Total

Percent

Briody, Maureen
(N/A) Dismissed With Prejudice 22 53.7%
Dismissed Without Prejudice 2 4.9%
For Agency 1 2.4%
For Employee Appellant 4 9.8%
Settled 12 29.3%
TOTAL 41
 
Booker, Barry G.
(GS 15/$155,500) Dismissed With Prejudice 33 60.0%
Dismissed Without Prejudice 10 18.2%
For Agency 3 5.4%
For Employee Appellant 1 1.8%
Settled 8 14.5%
TOTAL 55
Dominguez, Maria M.
(GS 15/$128,241) Dismissed With Prejudice 28 52.8%
Dismissed Without Prejudice 8 15.1%
For Agency 5 9.4%
For Employee Appellant 1 1.9%
Settled 11 20.8%
TOTAL 53
Joseph, Arthur S.
(GS 15/$155,500) Dismissed With Prejudice 44 71.0%
Dismissed Without Prejudice 2 3.2%
For Agency 2 3.2%
For Employee Appellant 1 1.6%
Settled 13 21.0%
TOTAL 62
Ruggiero, Joann M.
(GS 15/$155,500) Dismissed With Prejudice 27 44.2%
Dismissed Without Prejudice 11 18.0%
For Agency 3 4.9%
For Employee Appellant 2 3.3%
Settled 18 29.5%
TOTAL 61
Grand total of dockets for MSPB attorney examiners stationed in New York:

272

Cases won for the employee appellant:

9

Regional percentage of cases won for employee appellant:

3.3%

Key:
DISMISSED WITH PREJUDICE: declared outside of MSPB’s decision-making role.
Categories include: Cancel or failure to prosecute, Jurisdiction or res judicata,    Timeliness, Withdrawn by Appellant, (Action) Terminated
DISMISSED WITHOUT PREJUDICE: request for postponement by appellant subject to being revisited
FOR AGENCY: decision in favor of agency
Categories include: Affirmed, Corrective action not ordered
FOR EMPLOYEE APPELLANT: decision in favor of employee
Categories include: Mitigate agency action, remanded to agency, reversed
SETTLED: settled
Data derived from MSPB FOIA No. MSPB-OCB-2013-000051 (excel chart)
Statistics exclude fields where appeal type specifies CSRA, FERS, USERRA, VEOA, Reduction in Force, Restoration to Duty, Suitability, or FERCCA benefit claims
Thanks go out to civilservicechange.org for pioneering this data organization

More statistical information can be found here.

Whistleblowers under Probation: Delaying payment and attempting to access own files warrants paralegal’s termination

Whistleblowers under Probation takes a look at the plight of probationary federal employees who had the misfortune of becoming whistleblowers during their first or second year of federal employment. Their rights are more limited than others, requiring more intricate legal maneuvering as whistleblowers. This series explores how to survive the process for these individuals. Their names will be omitted whenever possible.

Date: Jun. 7, 2012
Jurisdiction: New York
Judge: Joann M. Ruggiero
Agency: Social Security Administration, Office of Disability Adjudication and Review
Appellant: Legal Assistant, GS-6
Representation: Leo Haar, AFGE Local 160

Order: Request for corrective action denied.

Rationale: Judge found with clear and convincing evidence that agency would have terminated probationer in absence of whistleblowing.

Disclosure: Appellant disclosed that second-level supervisor engaged in abuse of authority by denying her use of leave which she had earned.

Clear and Convincing Evidence:

  1. Strength of Evidence: Appellant (i) attempted to access own Social Security file; (ii) was late in paying government-issued credit card; and (iii) was admonished not to socialize as much during work hours.
  2. Motive: While second-level supervisor possessed retaliatory motive, other deciding officials did not.
  3. Similarly Situated: Another employee who was late in paying credit card was found not to be “similarly situated” due to witness’ non-probationary status and fact that analogous incident occurred a “significant number of years ago.”

Download opinion

Whistleblowers under Probation: A new MSPB Watch feature

Whistleblowers under Probation takes a look at the plight of probationary federal employees who had the misfortune of becoming whistleblowers during their first or second year of federal employment. Their rights are more limited than others, requiring more intricate legal maneuvering as whistleblowers. This series explores how to survive the process for these individuals. Their names will be omitted whenever possible.

Date: May 31, 2012
Jurisdiction: New York
Judge: Arthur S. Joseph
Agency: Department of Labor, Wage and Hour Division
Appellant: Administrative Specialist, GS-7
Representation: Pro Se

Order: Dismissal of stay request following termination during probationary period.

Rationale:  Failure to establish Board jurisdiction due to failure to file complaint with OSC.

Key portion of opinion:

In her stay request, the appellant alleged that she was terminated during her trial period due to whistleblower reprisal. She also averred that that she was subjected to race and disability discrimination because her absences were due to her medical condition. She conceded that she did not seek corrective action before OSC. See SRF, Tab 1.

As previously indicated, in order to establish Board jurisdiction under 5 U.S.C. § 1221(a), the appellant must establish, inter alia, that she has exhausted her administrative remedies before the OSC and made “non-frivolous allegations” that she made, were perceived to have made, or was closely associated [*8] with someone who made a protected disclosure under 5 U.S.C. § 2302(b)(8). See Yunus, 242 F.3d at 1371-72; Rusin, 92 M.S.P.R. 298, P 12.

An allegation that an appellant was subjected to race and disability discrimination constitutes a prohibited personnel practice claim under 5 U.S.C. § 2302(b)(1), but, standing alone, does not constitute protected whistleblowing under 5 U.S.C. § 2302(b)(8). See Applewhite v. Equal Employment Opportunity Commission, 94 M.S.P.R. 300, P 13 (2003); see also Spruill v. Merit systems Protection Board, 978 F.2d 679, 692 (Fed. Cir. 1992);

Assuming arguendo that the appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8), I noted that she also must establish that she exhausted corrective action proceedings before OSC. To establish exhaustion, she must show, as required by 5 U.S.C. § 1214(a)(1)(A), that (1) OSC terminated its investigation into her whistleblower reprisal claim or (2) OSC did not notify him within 120 days after the complaint was filed that it intended [*9] to pursue corrective action. See Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1033-34 (Fed. Cir. 1993); Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). Here, the appellant acknowledged in her stay request that she has not even filed a complaint with OSC seeking corrective action regarding her termination. See SRF, Tab 1.

Accordingly, I find that she did not satisfy her exhaustion burden under 5 U.S.C. § 1214(a)(3). See Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1576 (Fed. Cir. 1996).

###

Date: May 30, 2012
Jurisdiction: Denver
Judge: Laura M. Albornoz
Agency: Department of Health and Human Services, Indian Health Service
Appellant: Registered Nurse, GS-7
RepresentationPro Se

Order: Dismissal of appeal to allow appellant to file complaint with OSC.

Rationale:  Failure to establish Board jurisdiction due to failure to file complaint with OSC.

Key portion of opinion:

I convened a telephonic status conference with the parties on March 30, 2012. During the call, the appellant advised that she understood the Board had no appellate jurisdiction where she did not dispute her probationary status and she did not intend to claim marital status or partisan political discrimination. The appellant requested to withdraw her appeal and stated that she would file a complaint with the Office of Special Counsel (OSC) alleging that she was terminated under 5 U.S.C. § 2302(b)(8) in [*2] retaliation for her protected whistleblowing disclosures. See IAF, Compact Disc, Left Inside Cover. Where, as here, the underlying action is not appealable to the Board, such action, if allegedly based on the employee’s whistleblowing, may be appealable to the Board as an Individual Right of Action (IRA), under 5 C.F.R. §§ 1209.2(b)(1) and 1209.4. For an IRA to be appealable to the Board, the appellant must first show that she has sought corrective action from the OSC in accordance with 5 C.F.R. § 1209.5. The appellant’s claim, if appealed in the form of an IRA, is premature at this time. *

* The appellant was notified that she may file an IRA appeal, pursuant to 5 C.F.R. § 1209.5, no later than 65 days after the issuance of OSC’s written notification that it is terminating its investigation; or, if OSC has not notified the appellant that it has resolved his complaint within 120 days, any time after the expiration of 120 days.

###

Date: May 29, 2012
Jurisdiction: Chicago
Judge: Nina Puglia
Agency: Department of the Navy, Naval Facilities Engineering Command Midwest
Appellant: Occupational Safety Health Specialist, GS-12
RepresentationPro Se

Order: Dismissal of appeal to allow appellant to exhaust remedies with OSC.

Rationale:  Failure to establish Board jurisdiction due to failure to exhaust administrative remedies with OSC.

Key portion of opinion:

In the case at bar, the appellant states he filed his initial complaint with the OSC on March 14, 2012, but has not yet received written notification from OSC terminating its investigation. Because federal law requires the appellant to exhaust his remedies before the OSC before seeking such action from the Board, the Board cannot take jurisdiction over the appellant’s IRA appeal at this time. 5 U.S.C. § 1214(a)(3). If the OSC does not notify him that it will seek corrective action on his behalf, he may refile his appeal at any time after July 12, 2012.

###

Date: May 24, 2012
Jurisdiction: New York
Judge: JoAnn M. Ruggiero
Agency: General Services Administration
Appellant: Realty Specialist, GS-11
Representation: Jamie G. Miller, Esq., Atlanta, GA

Order: Dismissal of appeal without prejudice.

Rationale: To provide additional time for discovery.

Key portion of opinion:

On May 21, 2012, the appellant’s recently retained counsel filed a motion for a dismissal without prejudice. She indicated that additional time is needed for discovery and that there also were scheduling conflicts. She further stated that she conferred with the agency’s attorney and that the agency’s attorney did not oppose the motion for a dismissal without prejudice. See IAF, Tab 26.

An appeal may be dismissed without prejudice where [*2] such a dismissal is in the interest of fairness, due process, and administrative efficiency. See Ryan v. Department of Homeland Security, 112 M.S.P.R. 43, 45 (2009). Given the need for additional time for discovery, I find that a dismissal without prejudice is appropriate. If the appellant elects to refile her appeal, she must do so no sooner than Monday, July 2, 2012 and no later than Friday, August 3, 2012. The place for refiling is the Board’s New York Field Office.

MSPB Statistics for 2011: Initial Appeals by Attorney Examiners in New York

Merit Systems Protection Board Statistics
Initial Appeals by Attorney Examiners Stationed in the
New York Regional Office

Fiscal Year 2011

Attorney Examiner  / (Grade/Salary)

Summary Detail

Total

Percent

Booker, Barry G.
(GS 15/$155,500) Dismissed With Prejudice 42 61.8%
Dismissed Without Prejudice 15 22.1%
For Agency 3 4.4%
For Employee Appellant 1 1.5%
Settled 7 10.3%
TOTAL 68
Dominguez, Maria M.
(GS 14/$116,290) Dismissed With Prejudice 33 42.3%
Dismissed Without Prejudice 11 14.1%
For Agency 7 8.8%
For Employee Appellant 1 1.3%
Settled 26 33.3%
TOTAL 78
Hallock, Joseph A.
(GS 15/$155,500) Dismissed With Prejudice 1 11.1%
Dismissed Without Prejudice 0 0.0%
For Agency 3 33.3%
For Employee Appellant 2 22.2%
Settled 3 33.3%
TOTAL 9
Joseph, Arthur S.
(GS 15/$155,500) Dismissed With Prejudice 43 64.2%
Dismissed Without Prejudice 4 6.0%
For Agency 4 6.0%
For Employee Appellant 0 0.0%
Settled 16 23.9%
TOTAL 67
Ruggiero, Joann M.
(GS 15/$155,500) Dismissed With Prejudice 27 39.7%
Dismissed Without Prejudice 8 11.8%
For Agency 6 8.8%
For Employee Appellant 0 0.0%
Settled 27 39.7%
TOTAL 68
Grand total of dockets for MSPB attorney examiners stationed in New York:

290

Cases won for the employee appellant:

4

Regional percentage of cases won for employee appellant:

1.4%

Attorney examiners with no decisions for the employee appellant:

Arthur S. Joseph
Joann M. Ruggiero

Key:
DISMISSED WITH PREJUDICE / declared outside of MSPB’s decision-making role.
Categories include: Cancel or failure to prosecute, Jurisdiction or res judicata, Timeliness, Withdrawn by Appellant, (Action) Terminated
DISMISSED WITHOUT PREJUDICE / request for postponement by appellant subject to being revisited
FOR AGENCY / decision in favor of agency
Categories include: Affirmed, Corrective action not ordered
FOR EMPLOYEE APPELLANT / decision in favor of employee
Categories include: Mitigate agency action, remanded to agency, reversed
SETTLED / settled
Data derived from MSPB FOIA No. 2011-10-023 (excel chart)
Statistics exclude fields where appeal type specifies CSRA, FERS or FERCCA benefit claims
Thanks go out to civilservicechange.org for pioneering this data organization

FY2011 MSPB Initial Appeals stats New York Field Office