UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JAMES C. PETERS, JR.,

Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER AT

- 831M

- 16

- 0548

- I

- 1

DATE: July 27, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

James C. Peters, Jr. , Cordova, Tennessee, pro se.

Karla W. Yeakle , Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon
, Member Tristan L. Leavitt , Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the September 28, 2016
initial decision in this appeal

. Initial Appeal File, Tab 14, Petition for Review (PFR) File, Tab 1. During later discussions with a Board Settlement Attorney
, the appellant submitted an April 2017 letter withdrawing his petition for review

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

and stating his understanding that the Board would dismiss the petition for review with prejudice to refiling. PFR File, Tab 5 at 1 . The appellant’s letter included a statement signed by the agency’s representativ e, declaring that the agency had no objection to the appellant withdrawing the petition for review. Id. at 2

- 3. ¶2 Subsequently, in June 2018, the Clerk of the Board informed the parties that, pursuant to a May 11, 2018 Delegation of Authority, the Clerk of the Board had been “delegated authority to grant a petitioner’s request to withdraw his petition for review.” PFR File, Tab 7 at 1 . That order noted the appellant’s April 2017 submission withdrawing his petition for review and informed the appellant that, consistent with the May 11, 2018 Delegation of Au thority, he was ordered to submit a confirmation of his request to withdraw his petition for
review. Id

. at 2. The appellant did not respond. ¶3 On August 1, 2018, the Clerk of the Board issued a second order in which it noted the appellant’s failure to res pond to the June 2018 order, and stated that
, “[i]f the appellant wishes the Clerk of the Board to grant his request to withdraw his petition for review, he must respond” within 7 days. PFR File, Tab 8 at 1

. That order also stated that, “[i] f the appella nt does not file a pleading confirming his intent, the Clerk of the Board will not act on his request to withdraw the petition for review, and the Board will instead issue a decision following the restoration of a Board quorum.” Id

. at 1

- 2. ¶4 The appellant again did not respond. Thereafter, the Clerk of the Board issued an order informing the parties that, “[i]n light of the appellant’s failure to confirm his intent to withdraw the petition for review, the Office of the Clerk of
the Board will take no furth er action to process the appellant’s request to withdraw the petition for review under the May 11, 2018 policy.” PFR, File,
Tab 9 at 1 (emphasis removed) . The order further informed the parties that the petition for review would be returned to the Board for consideration, and that the Board would issue a decision on the appellant’s petition for review following the restoration of a Board quorum. Id

. at 1

- 2.3

¶5 Accordingly, now that a Board quorum has been restored, we can act on the matters presented on rev iew. While the appellant did not avail himself of the option of having the Clerk of the Board dismiss his petition for review as withdrawn pursuant to the May 11, 2018 Delegation of Authority, we discern no reason not to give effect to the appellant’ s Apr il 2017 withdrawal

. As noted previously, during discussions with a Board Settlement Attorney, the appellant submitted a document stating his desire to withdraw his petition for review and his understanding that, as a result, the Board would dismiss his pe tition for review with prejudice to refiling at a later time. PFR File, Tab 5 at 1 . As also noted, the agency provided a statement that it does not object to the withdrawal of the petition for review. Id

. at 2

- 3. Finding that w ithdrawal is appropriate under
th ese circumstances, we DISMISS the petition for review as withdrawn with prejudice to refiling. ¶6 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 Regulation s, section 1201.113 ( 5 C.F.R. § 1201.113 ).

NOTICE OF APPEAL RIGHTS 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 follo wing 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 w hich cases fall within their jurisdiction. If you wish to seek review of this final decision, you should

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 w hich option is most appropriate in any matter.4

immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applica ble 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 partic ular 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 wit h 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 Ru les 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.5

(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 you r 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 repres entative 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 informa tion 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 an y 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 rep resentative 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 EE OC is:6

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 personne l practice described in
section 2302(b) other than practices described in se ction 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).

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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.7

If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral 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
Cir cuit 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 intere sted 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 appel lants 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