UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GEORGE DUGGAN,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

SF-1221-14-0544-W-1

DATE: February 2, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

John Ota, Esquire, Alameda, California, for the appellant.

Mark Hostetter, Esquire, San Jose, California, for the appellant.

Kenya M. Gregory, Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed without prejudice his individual right of action appeal. Generally, we 

grant petitions such as this one only when: the initial decision contains erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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. See 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, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review. Except as expressly MODIFIED by this Final 

Order, 2

we AFFIRM the initial decision.

¶2 On May 7, 2014, the appellant filed this appeal alleging retaliation for 

whistleblowing. See Initial Appeal File (IAF), Tab 1. On August 22, 2014, the 

administrative judge dismissed the appeal without prejudice after the parties 

jointly requested postponement for the purpose of concluding discovery. IAF, 

Tab 25, Initial Decision (ID) at 2-3. In the initial decision, the administrative 

judge also ruled on motions to compel brought by both parties. ID at 1-2; see

IAF, Tabs 14, 17. He denied as moot the agency’s motion to compel and granted 

the appellant’s motion in part. ID at 1-2. He limited the scope of production for

some of the appellant’s document production requests, and he denied others. He 

also denied some of the appellant’s interrogatories. ID at 2. Additionally, he set 

deadlines for discovery and the filing of prehearing submissions. ID at 3. He

scheduled redocketing for October 20, 2014, and the hearing for November 18 

through 20, 2014. ID at 3. The appellant filed this petition for review on 

 2 The administrative judge erroneously included mixed-case appeal rights pursuant to 

5 U.S.C. §§ 7702(b)(1) and 7703(b)(1). We have corrected the notice of appeal rights.
3

September 26, 2014, however, and the case has not been refiled. See Petition for 

Review (PFR) File, Tab 1.

¶3 The petition for review does not address the administrative judge’s 

dismissal of the appeal. Instead, he contends that the administrative judge abused 

his discretion by denying some parts of his July 15, 2014 Motion to Compel 

Further Responses to Interrogatories and Requests for Production of Documents.

See IAF, Tab 14. He contends that the agency waived any possible objections to 

his requests for production of documents by untimely serving its response. See

PFR File, Tab 1 at 10. Even if the agency’s response had been timely, he argues, 

the administrative judge abused his discretion by denying the discovery of 

evidence relevant to his whistleblower claim. Id. at 10-15. Regarding the request 

for interrogatories, the appellant contends that the agency “refus[es] to provide 

any responsive information” and that none of the agency’s responses are “verified 

or signed,” as required by Rule 33(b)(3), (5) of the Federal Rules of Civil 

Procedure. Id. at 16. The appellant requests that the Board remand the appeal to 

the administrative judge for adjudication “with instructions directing [him] to 

order the Agency to provide all of the documents requested by Appellant . . . and 

complete, non-evasive responses to Appellant’s Interrogator[ies].” Id. at 4. 

¶4 The appellant’s pleading most closely resembles a motion for an 

interlocutory appeal, and the Board will consider it on that basis. See 5 C.F.R. 

§ 1201.91 (“An interlocutory appeal is an appeal to the Board of a ruling made by 

a judge during a proceeding.”); cf. Special Counsel v. Woods, 26 M.S.P.R. 463, 

464 (1985) (a pleading entitled “Petition for Mandamus” seeking review of 

administrative law judge’s stay order would be considered under Board rules 

governing interlocutory appeals). As such, the motion is improperly filed with 

the Board as well as untimely. Board regulations require parties seeking 

interlocutory review to “file a motion for certification within 10 days of the date 

of the ruling to be appealed” with the administrative judge. 5 C.F.R. 

§ 1201.93(a).
4

¶5 The appellant did not file a motion for certification with the administrative 

judge within 10 days after the initial decision was issued. He instead filed a 

timely petition for review on the last day of the filing period. See PFR File, 

Tab 1 at 1; ID at 1, 3; see also 5 C.F.R. § 1201.114(e). Accordingly, the Board 

will not consider his uncertified motion for an interlocutory appeal.3 See, e.g., 

Sparrow v. Department of the Navy, 26 M.S.P.R. 335, 336 n.* (1985). Because 

the appellant has expressed a clear intention to pursue adjudication of his appeal,

however, we FORWARD the appeal to the regional office for immediate refiling. 

See PFR File, Tab 1 at 4, 18-19.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

 3 In any event, we have examined the pleadings and find that the issues presented are 

most appropriately addressed in the first instance by the administrative judge. The 

administrative judge has extensive knowledge of the record and issues and broad 

discretion in matters governing discovery. See Wagner v. Environmental Protection 

Agency, 54 M.S.P.R. 447, 452 (1992) (the Board will not reverse an administrative 

judge’s rulings on discovery matters absent an abuse of discretion), aff’d, 996 F.2d 

1236 (Fed. Cir. 1993) (Table). Regarding the appellant’s contention that the 

interrogatories do not meet the requirements of the Federal Rules of Civil Procedure, 

we note that the Board looks to the rules for guidance but is not bound by them. Hebert 

v. Department of the Navy, 57 M.S.P.R. 68, 72 (1993); see PFR File, Tab 1 at 16.
5

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

for the Federal Circuit or any court of appeals of competent jurisdiction. The 

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States 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, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed 

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for a list of attorneys who have expressed 

interest in providing pro bono representation for Merit Systems Protection Board 
6

appellants before the Federal Circuit. The Merit Systems Protection Board 

neither endorses the services provided by any attorney nor warrants that any 

attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board