UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

JAMES FRANCIS FITZPATRICK,

Appellant,

v.
DEPARTMENT OF HOMELAND SECURITY, Agency. DOCKET NUMBER NY-315H-19-0019-I-1

DATE: February 20, 2024



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neal Rosenberg , Esquire, New York, New York, for the appellant. Daniel Piccaluga , Esquire, Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

FINAL ORDER The appellant has filed a petition for review of the initial decision that dismissed as withdrawn the Board appeal of his probationary termination. Generally, we grant petitions such as 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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).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. 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). An appellant’s withdrawal of a Board appeal is an act of finality which removes the appeal from the Board’s jurisdiction. Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486, ¶ 7 (2010). A voluntary withdrawal must be clear, decisive, and unequivocal. Id. As the administrative judge properly found in the initial decision in this case, the appellant withdrew his Board appeal of his probationary
termination. 2 Initial Appeal File (IAF), Tab 11, Initial Decision at 1-3. The appellant voluntarily did so after the administrative judge issued two orders outlining the ramifications of such a withdrawal. IAF, Tabs 7, 9. The appellant’s statement of “I withdraw my case with prejudice” is clear, decisive, and unequivocal. IAF, Tab 10 at 3. On review, the appellant does not contest the validity of his withdrawal nor does he claim that his withdrawal was the result of misinformation or misunderstanding. Petition for Review (PFR) File, Tab 1. Thus, we discern no reason to disturb the initial decision. See Lincoln , 113 M.S.P.R. 486, ¶ 8 (finding that the administrative judge did not err in dismissing the appeal as withdrawn). 3

2 The administrative judge had yet to rule on whether the Board had jurisdiction over the appellant’s appeal of his probationary termination at the time of his withdrawal.

3 On review, the appellant claims that he is a whistleblower and asserts that he is “claiming [his] rights as an Individual Right of Action.” PFR File, Tab 1 at 4. The 2After the record closed on review, the appellant filed a motion for leave to

file additional documentation, to include, a letter from the Office of Special Counsel (OSC), a 165-page document from OSC, and a letter from the Federal Emergency Management Agency regarding a purported “breach of computer file information.” PFR File, Tab 6 at 3. Generally, the Board’s regulations do not provide for such a pleading to be filed after the close of the record. 5 C.F.R. § 1201.114(a)(5), (k). In order for such a filing to be accepted by the Board, the appellant must describe the nature of and need for the pleading, and it must contain new and material evidence or argument that was not readily available before the record closed. 5 C.F.R. § 1201.114(a)(5), (k); see PFR File, Tab 7

at 1. We DENY the appellant’s motion, as he failed to show that these documents were unavailable prior to the close of the record on review, nor has he outlined their relevance to the singular issue in this appeal–the voluntariness of his
withdrawal.

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 appellant made a similar claim before the administrative judge prior to his withdrawal set forth previously. IAF, Tab 8 at 3. Despite the administrative judge’s statement that the appellant’s withdrawal of his appeal would preclude a future Board appeal asserting that his probationary termination was in reprisal for whistleblowing, his reprisal for whistleblowing claim may fall under the purview of the Office of Special Counsel (OSC) to investigate and the appellant may have the right to file an individual right of action (IRA) appeal with the Board after exhausting his administrative remedies before OSC. IAF, Tab 9 at 1. Through this Final Order, the Board makes no determination regarding the jurisdiction or the merits concerning any IRA appeal filed by the appellant over his probationary termination at issue in this current appeal.

4 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. 3appropriate 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: 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 4for 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 5with 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

5 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. 6petition 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. 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:

______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 7