UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL A. ARIZMENDI,

Appellant,

v.

COURT SERVICES AND OFFENDER 

SUPERVISION AGENCY FOR DC,

Agency.

DOCKET NUMBER

DC-3330-19-0357-I-1

DATE: April 26, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Steven L. Herrick, Esquire, San Diego, California, for the appellant.

Donald Tanguilig, Marvelle Butler, Esquire, and Tiffany Butler, Esquire, 

Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed as withdrawn his appeal alleging a violation of his rights under the

Veterans Employment Opportunities Act of 1998. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
erroneous findings of material fact; the initial decision is based on an 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). 

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. The Board will generally grant a motion to withdraw an

appeal unless the nonmoving party would suffer a clear legal prejudice. Kravitz

v. Office of Personnel Management, 75 M.S.P.R. 44, 46-47 (1997). Because an

appellant’s withdrawal of an appeal is generally an act of finality, in the absence

of unusual circumstances, such as if the appellant received misinformation, was

under mental distress at the time of withdrawal, or presents new and material

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

withdrawn merely because the appellant has had a change of mind and now

wishes to proceed before the Board. Lincoln, 113 M.S.P.R. 486, ¶¶ 8-9; Auyong

v. Department of the Navy, 97 M.S.P.R. 267, ¶ 4 (2004).

The appellant withdrew his appeal by submitting a filing to the Board,

through his legal counsel, titled “Notice of Withdrawal and Proposed Order,”

which stated that the appellant “hereby withdraws this Appeal.” Initial Appeal

File (IAF), Tab 15 at 4. The filing also included a proposed order dismissing the

2
appeal as withdrawn. Id. at 6. In his petition for review, the appellant does not

argue that he withdrew his appeal due to misinformation or mental duress, nor

does he request that his appeal be reinstated due to new and material evidence.

Petition for Review (PFR) File, Tab 1. Instead, he concedes that he withdrew his

appeal “at the urging of” his legal counsel, but asserts that he has “discovered

omissions of important information which are germane to the specifics of [his]

case,” and makes a number of arguments regarding the merits of his appeal.

Id. at 4-8. 

The appellant’s filing stating that he “hereby withdraws this Appeal,” is

clear, decisive, and unequivocal, and his request to reinstate his appeal because

he has had an apparent change of mind does not warrant reinstatement in this

case. See Lincoln, 113 M.S.P.R. 486, ¶¶ 8-9; Auyong, 97 M.S.P.R. 267, ¶ 4

(2004). Additionally, to whatever extent the appellant is alleging that his

attorney erred in withdrawing his appeal, it is well settled that an appellant is

responsible for the errors of his chosen representative. See Pacilli v. Department

of Veterans Affairs, 113 M.S.P.R. 526, ¶ 13, aff’d sub nom. Pacilli v. Merit

Systems Protection Board, 404 F. App’x 466 (Fed. Cir. 2010); Sofio v. Internal

Revenue Service, 7 M.S.P.R. 667, 670 (1981). Accordingly, we discern no reason

to disturb the initial decision, and we deny the petition for review and affirm the

initial decision dismissing the appeal as withdrawn. 2

2

 On review, the appellant submits a number of documents, some of which were

included in the record below. PFR File, Tab 1 at 9-19. We have reviewed all of the

documents, and we find that the appellant has not shown that any of the information he

has provided for the first time on review is material, so we have not considered it.

See Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting

that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for

the first time with a petition for review absent a showing that it is both new and

material). The agency has also provided a number of documents with its response to the

petition for review, all of which were included in the record below, and so we also have

not considered them. PFR File, Tab 3 at 14-133; IAF, Tab 8 at 13-132; see id.; Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is

already a part of the record is not new). 

3
NOTICE OF APPEAL RIGHTS3

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). 

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: 

3

 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.

4
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. 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

5
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

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

6
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.4 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,” 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. 

4

 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. 

7
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.

8