UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BEVERLY MARTIN,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0752-17-0412-I-1

DATE: February 2, 2023

THIS ORDER IS NONPRECEDENTIAL1

Beverly Martin, Medford, Oregon, pro se.

Trever Cox-Neuroth, Landover, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review, VACATE the initial decision, and 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REMAND the case to the regional office for further adjudication in accordance 

with this Remand Order. 

BACKGROUND

¶2 The appellant retired from the EAS-25 Human Resources Business Data and 

Systems Analyst position2effective May 29, 2015. Initial Appeal File (IAF), 

Tab 1. On July 20, 2015, the appellant filed a formal equal employment 

opportunity (EEO) complaint alleging that her retirement was involuntary. IAF,

Tab 4 at 21. On February 23, 2017, the Equal Employment Opportunity 

Commission issued an order dismissing the appellant’s request for a hearing and 

indicating that the agency should process the complaint in accordance with the 

procedures for mixed-case complaints, i.e., complaints involving matters 

appealable to the Board, and should issue a final agency decision (FAD). IAF,

Tab 10 at 38-39. There is no evidence that the agency issued a FAD, and, on 

May 3, 2017, the appellant timely filed this appeal because more than 120 days 

had elapsed since she filed her formal EEO compliant without the agency issuing 

a FAD. IAF, Tab 1, Tab 10 at 38-39; see 29 C.F.R. § 1614.302(d)(1)(i). 

¶3 At the Board, the appellant timely initiated discovery, and by the agency’s 

admission, its responses were due on June 8, 2017. IAF, Tab 19 at 4. The agency 

moved for an extension of time to respond to the appellant’s interrogatories and 

requests of production of documents. Id. The administrative judge denied the 

agency’s request, IAF, Tab 20, and, when the agency failed to respond to the 

appellant’s discovery requests, she filed a motion to compel, IAF, Tab 22. The 

agency moved for another extension of time to respond to the appellant’s 

discovery requests. IAF, Tab 23. The administrative judge granted the agency’s 

 

2

The appellant was employed at the Postal Service Headquarters facility in 

Washington, D.C. However, at the time that she retired, the agency was allowing the 

appellant, for her convenience, to reside in Medford, Oregon, while still maintaining 

her status as an employee at the agency’s Headquarters in Washington, D.C. Initial

Appeal File, Tab 4 at 6. 
3

motion, affording it until July 10, 2017, to respond to the appellant’s discovery 

requests. IAF, Tab 25. Notwithstanding this order, the administrative judge 

issued the initial decision dismissing the appellant’s appeal on June 27, 2017, 

nearly 2 weeks before the agency’s responses to discovery were due. IAF, 

Tab 27.

¶4 In her petition for review, the appellant states that she consulted the Board’s 

regional office and was left with the understanding that she would have the 

opportunity to complete discovery and to present all of her evidence at a hearing. 

Petition for Review (PFR) File, Tab 5 at 6.

ANALYSIS

¶5 An administrative judge’s rulings regarding discovery matters are subject to 

an abuse of discretion standard. Wagner v. Environmental Protection Agency, 

54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). The 

rules governing discovery in Board proceedings are set out in the Board’s 

regulations at 5 C.F.R. §§ 1201.71-.75. These regulations require that 

“[d]iscovery must be completed within the time period designated by the 

judge . . . .” 5 C.F.R. § 1201.73(d)(4). Initial discovery requests must be served 

within 30 days of the administrative judge ordering the agency to produce its file 

and response. 5 C.F.R. § 1201.73(d)(1). A party must respond to a discovery 

request within 20 days. 5 C.F.R. § 1201.73(d)(2). Generally, any discovery 

requests following the initial discovery request must be served within 10 days of 

service of the response. Id. If a party serves objections to a discovery request or 

if the responding party does not timely respond to the discovery request, the 

requesting party has 10 days to file a motion to compel discovery. 5 C.F.R. 

§ 1201.73(d)(3). 

¶6 In the acknowledgment order, the administrative judge set the time frame 

for discovery consistent with the provisions of the Board’s regulations, indicating 

that initial discovery requests must be served within 30 days of May 5, 2017, and 
4

the opposing party’s responses to discovery must be served no later than 20 days 

after the date of service of the discovery request. IAF, Tab 2. Here, as noted, the 

discovery period was extended until July 10, 2017, and the administrative judge 

issued the initial decision on June 27, 2017. As the agency’s response to the 

appellant’s discovery request could have been filed on the last day provided for 

such a response, issuing the initial decision prior to the close of discovery 

effectively denied the appellant the opportunity to contest the agency’s 

objections, to follow up with requests for further discoverable material based 

upon the agency’s initial response, or to file a motion to compel. It also denied 

her the opportunity to submit into the record evidence obtained during discovery. 

¶7 As the party bearing the burden of proof on the claim that her retirement 

was involuntary, the appellant is entitled to obtain evidence to support her claim.

See Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 26 (2012). 

By issuing the initial decision prior to completing discovery, the administrative 

judge deprived the appellant of the opportunity to submit additional relevant 

evidence that she had obtained during the discovery process. See Lynch v. 

Department of Defense, 114 M.S.P.R. 219, ¶ 11 (2010). Thus, we find it 

necessary to remand the appeal for further adjudication.

ORDER

¶8 Accordingly, we remand this appeal for further adjudication and a new 

initial decision consistent with this Remand Order. In so remanding, we make no 

finding on whether the appellant has made a nonfrivolous allegation that her 

retirement was involuntary, entitling her to a hearing. See Thomas v. Department 

of the Navy, 123 M.S.P.R. 628, ¶ 11 (2016) (finding that in a constructive adverse 

action appeal, if an appellant makes a nonfrivolous allegation of fact establishing 

Board jurisdiction, she is entitled to a hearing at which she must prove 

jurisdiction by preponderant evidence). Rather, we remand because the appellant 

has not had a full and fair opportunity to obtain evidence in support of her claim 
5

that the agency forced her retirement. Based on the record as currently 

developed, we cannot say that the appellant’s discovery requests would not have 

led to relevant admissible evidence concerning the appellant’s allegations of 

involuntary retirement. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board