UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DINA T.L. JACKSON,

Appellant,

v.

DEPARTMENT OF STATE,

Agency.

DOCKET NUMBER

DC-1221-17-0104-W-1

DATE: March 28, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Donald M. Temple, Esquire, Washington, D.C., for the appellant.

Marianne Perciaccante, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 On February 27, 2017, the appellant filed a petition for review of the initial 

decision that dismissed her individual right of action appeal for lack of 

jurisdiction. Initial Appeal File, Tab 15, Initial Decision; Petition for Review 

(PFR) File, Tab 1. Thereafter, on March 24, 2017, the agency filed a response to 

the petition for review and a cross petition for review of the initial decision. PFR

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

File, Tab 3. On May 8, 2017, the appellant submitted a consent motion, signed 

by her attorney, which requested that her claims against the agency in the matter 

be dismissed. PFR File, Tab 5. Three days later, on May 11, 2017, the parties 

submitted a consent motion, signed by the appellant’s attorney and the agency 

representative, which jointly requested that the Board grant the appellant’s 

request to dismiss the pending petition for review with prejudice to refiling. PFR 

File, Tab 7. 

¶2 Subsequently, on June 7, 2018, the Acting Clerk of the Board informed the 

parties that, pursuant to a May 11, 2018 Delegation of Authority, the Office of the 

Clerk of the Board had been “delegated authority to grant a petitioner’s request to 

withdraw her petition for review.” PFR File, Tab 8 at 1-2 n.1. The order noted 

the parties’ May 11, 2017 submission consenting to the dismissal of the 

appellant’s petition for review with prejudice and informed the appellant that, 

consistent with the May 11, 2018 Delegation of Authority, she was ordered to 

submit a confirmation of her request to withdraw her petition for review. Id. at 2. 

The agency responded, indicating that it did not object to the appellant’s 

withdrawal of her petition for review and that it would withdraw its cross petition 

for review were the appellant to first withdraw her petition. PFR File, Tab 9. 

The appellant did not respond to the June 7, 2018 order or to the agency’s 

response. 

¶3 On August 3, 2018, the Clerk of the Board issued a second order, which 

noted the appellant’s failure to respond to the June 7, 2018 order and instructed 

her to file a brief pleading confirming her request to withdraw within 7 days of 

the second order. PFR File, Tab 10 at 1-2. That order also stated that, “[i]f the 

appellant does not file a pleading confirming her intent, no further action will be 

taken by the Office of the Clerk of the Board to process the appellant’s request to 

withdraw the petition for review under the May 11, 2018 policy signed by 

Vice Chairman Mark A. Robbins, and the Board will instead issue a decision 
3

following the restoration of a Board quorum.” Id. at 1-2 (emphasis removed). 

The appellant again did not respond. 

¶4 Thereafter, the Clerk of the Board issued an order informing the parties 

that, “[i]n light of the appellant’s failure to confirm her intent to withdraw the 

petition for review, the Office of the Clerk of the Board will take no further 

action to process the appellant’s request to withdraw the petition for review under 

the May 11, 2018 policy.” PFR File, Tab 11 at 2 (emphasis removed). The order 

further informed the parties that the appellant’s petition for review and the 

agency’s cross petition for review would be returned to the Board for 

consideration and that the Board would issue a decision on the petition for review 

and the cross petition for review following the restoration of a Board quorum. Id.

at 2.

¶5 Now that a Board quorum has been restored, we can act on the matters 

presented on review. Although the appellant did not avail herself of the option of 

having the Clerk of the Board dismiss her petition for review as withdrawn 

pursuant to the May 11, 2018 Delegation of Authority, we discern no basis not to 

give effect to the parties’ May 2017 consent motion, signed by both the 

appellant’s attorney and the agency’s representative, which jointly requested the 

voluntary dismissal of the pending petition for review with prejudice to refiling. 

PFR File, Tab 7. We find that withdrawal of the petition for review is appropriate 

under the circumstances. In addition, because the agency indicated that it would 

withdraw its cross petition for review if the appellant withdrew her petition for 

review, we find that withdrawal of the cross petition for review also is 

appropriate under the circumstances. PFR File, Tab 9. 

¶6 Accordingly, we DISMISS the petition for review and the cross petition for 

review as withdrawn with prejudice to refiling.
4

¶7 The initial decision of the administrative judge is final. This is the Board’s 

final decision in this matter. Title 5 of the Code of Federal Regulations, 

section 1201.113 (5 C.F.R. § 1201.113).

NOTICE OF APPEAL RIGHTS2

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). 

 

2

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.
5

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: 

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. ____ , 137 S. Ct. 1975 (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
6

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 
7

(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.3 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 

following address: 

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. 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

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

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
8

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. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

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

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board