UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION 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### THIS FINAL ORDER IS NONPRECEDENTIAL 1

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, t he 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, 20 17, 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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. O n 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 appella nt’s request to dismiss the pending petition for review with prejudice to refil ing . 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 o f the Clerk of the Board had been “delegated authority to grant a petitioner’s request to
withdraw h er 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, s he was ordere d to
submit a confirmation of her request to withdraw her petition for review. Id. at 2. The agency responded, ind icating 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 wi thdraw 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 h er intent, no further action will be taken by the Office of the Clerk of the Board to process the app ellant’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 decision3

following the restoration of a Board quorum.” Id. at 1

- 2 (emphasis removed )

. The appel lant again did not respond. ¶4 Thereafter, the Clerk of the Board issued an order informing the parties that, “[i]n light of the ap pellant’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 1 1 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 c ross petition for review following the restoration of a Board quorum. Id.

at 2. ¶5 N ow that a Board quorum has been restored, we can act on the matters presented on review. Although the appellant did not avail her self 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 agenc y’s representative, which jointly requested the voluntary dismissal of the pending petition for revie w with prejudice to refiling

. PFR File, Tab 7. W e find that withdrawal of the petition for review is appropriate
under the circumstances

. In addition
, b ecause 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 Ac cordingly, 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 RIG HTS 2 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 b elow 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
fil ing 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 judicia l 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 Ci rcuit 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 Pe titioners 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 ou r 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 att orney 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 days6

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. 205077

(3) Judicial revi ew 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 Fe deral 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,” whic h is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

3 The origi nal 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, permane ntly 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.go v/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 representatio n 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/C ourt_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board