UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANGELA DAWN WHETTENHERNANDEZ,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DE-3443-16-0457-I-1

DATE: April 25, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Simp McCorvey, III, Albuquerque, New Mexico, for the appellant.

Zulema Hinojos-Fall, Esquire, Albuquerque, New Mexico, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed the appellant’s termination appeal as withdrawn. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous interpretation of statute or regulation 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).

¶2 The appellant filed an appeal of her termination from her Licensed Practical 

Nurse position during her initial year of service. Initial Appeal File (IAF), Tab 1. 

As described in the initial decision, while the appeal was pending before the 

Board, the appellant, who was represented, unequivocally withdrew her appeal 

during a telephonic conference. IAF, Tab 8 (withdrawal audio recording), Tab 9, 

Initial Decision (ID) at 1-2. The administrative judge found that the appellant’s 

withdrawal of her appeal was knowing and freely made and that she understood 

that the administrative judge would dismiss the appeal with prejudice to refiling. 

ID at 2. The administrative judge dismissed the appeal in a September 28, 2016 

initial decision. ID. The agency has now petitioned for review, arguing that the 

appellant withdrew her appeal based on incorrect information, and moves to 

dismiss the appeal for lack of jurisdiction. Petition for Review (PFR) File, Tab 1 

at 5-6.2 

 

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There is a question regarding the timeliness of the agency’s petition for review. See

5 C.F.R. § 1201.114(e). However, we need not decide the timeliness issue because we 

find that the administrative judge properly dismissed this appeal as withdrawn. Cf. 

Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005) (stating that, when the 

Board clearly lacks jurisdiction over an appeal and the record suggests that the question 
3

¶3 Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and 

in the absence of unusual circumstances such as misinformation or new and 

material evidence, the Board will not reinstate an appeal once it has been 

withdrawn. Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 7 (2007). Although 

the Board may relieve an appellant of the consequences of her decision to 

withdraw an appeal when the conditions set forth above exist, here the appellant 

has not indicated that she wants to reinstate her appeal. Id. Rather, it is the 

agency that seeks to have the withdrawn appeal reinstated. PFR File, Tab 1. 

¶4 The Board’s regulations specify that only an appellant, her designated 

representative, or a party properly substituted may file an appeal. 5 C.F.R. 

§ 1201.24(a); Goode v. Department of the Navy, 93 M.S.P.R. 122, ¶ 6 (2002). 

This is consistent with the statutory language, which provides that “[a]n 

employee, or applicant for employment, may submit an appeal to the Merit

Systems Protection Board from any action which is appealable to the Board under 

any law, rule, or regulation.” 5 U.S.C. § 7701(a). Furthermore, the Board has 

held that it may dismiss an appeal as withdrawn based on the appellant’s request, 

despite the agency’s objections. Kravitz v. Office of Personnel Management, 

75 M.S.P.R. 44, 47-48 (1997). Because only an appellant may file an appeal and 

the appellant may withdraw her appeal over the agency’s objections, we find the 

agency’s petition for review unavailing.

3

 

of timeliness is close, the better practice is to address the jurisdictional issue and 

dismiss the appeal on that ground), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).

3 We appreciate the agency’s candor in admitting that it provided the appellant 

inaccurate information. According to the agency, it had represented to the 

administrative judge that the appellant’s termination during her probationary period had 

not been effected, when in fact it had. PFR File, Tab 1, at 5. Although the appellant 

was placed into a new job, the agency states that its effective date of hire occurred 

about a month and a half after the effective date of the appellant’s probationary period 

termination. Id. Although the agency does not explicitly so state in its petition for 

review, it appears that this would cause the appellant to have a break in service. The 

agency, of course, may choose to cure its misrepresentation by correcting the 

appellant’s personnel records, if it has not already done so. The appellant has shown no 
4

¶5 Accordingly, we deny the agency’s petition for review.

NOTICE OF APPEAL RIGHTS4

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). 

 

indication in the last several years that she wishes to pursue her appeal based upon the 

agency’s misrepresentations. However, the Board may at any time reopen any appeal in

which it has issued a final order. 5 C.F.R. § 1201.118. The Board will exercise its 

discretion to reopen an appeal only in unusual or extraordinary circumstances and 

generally within a short period of time after the decision becomes final. Id. 

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.
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

after your representative receives this decision. If the action involves a claim of 
6

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 

(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 
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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. 5The 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 particu lar 

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 

 

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. 
8

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