UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEGGYE WILSON,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBERS

SF-0752-21-0330-I-2

SF-1221-21-0329-W-2

1

DATE: July 13, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL2

Peggye Wilson, APO, APO/FPO Pacific, pro se.

Amos N. Jones, Esquire, Washington, D.C., for the appellant.

Holly Kay Botes, Esquire, APO, APO/FPO Pacific, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

 

1 We have joined these two appeals on review based on our determination that joinder 

will expedite processing of the cases and will not adversely affect the interests of the 

parties. 5 C.F.R. § 1201.36(b). 

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, which 

dismissed for lack of jurisdiction her involuntary retirement and individual right 

of action (IRA) appeals. In her petitions for review, she argues that the 

administrative judge erred in finding that she failed to nonfrivolously allege that 

her retirement was involuntary and that she made protected disclosures or 

engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(8), (9). Wilson v.

Department of Defense, MSPB Docket No. SF-0752-21-0330-I-2, Petition for 

Review (I-2 PFR) File, Tab 1; Wilson v. Department of Defense, MSPB Docket 

No. SF-1221-21-0329-W-2, Petition for Review (W-2 PFR) File, Tab 1. 

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 regulatio n 

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 these appeals, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petitions for review. 

Therefore, we DENY the petitions for review and AFFIRM the initial decisions, 

which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b). 

¶2 The administrative judge correctly found that the appellant failed to 

nonfrivolously allege or show that her retirement was involuntary. Wilson v.

Department of Defense, MSPB Docket No. SF-0752-21-0330-I-2, Appeal File 

(I-2 AF), Tab 14, Initial Decision (I-2 ID) at 10-14. We similarly agree with the 

administrative judge that the appellant failed to nonfrivolously allege that she 
3

made a protected disclosure or engaged in protected activity pursuant to 5 U.S.C. 

§ 2302(b)(8), (9). Wilson v. Department of Defense, MSPB Docket No. SF-1221-

21-0329-W-2, Appeal File (W-2 AF), Tab 16, Initial Decision (W-2 ID) at 10-15. 

The appellant’s arguments on review, which amount to mere disagreements with 

the administrative judge’s findings, do not provide a basis to disturb the initial 

decisions in this regard. 

¶3 The appellant argues in both petitions for review that the administrative 

judge abused her discretion by refusing to accommodate her counsel’s religious 

observances when she denied requests for an extension of time to initiate 

discovery and file a jurisdictional briefing, which she filed in both proceedings 

below, respectively. I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. The 

appellant’s request was due to disruptions to her home life and the “supervening 

commitments” of her counsel, including his commitment to his church and the 

Easter holiday. I-2 AF, Tab 5; W-2 AF, Tab 7. The administrative judge denied 

the request for a 6-month extension. I-2 AF, Tab 8; W-2 AF, Tab 10. 

¶4 An administrative judge has wide discretion to control the proceedings in 

front of her, and specifically, to rule on motions. See 5 C.F.R. § 1201.41(b)(8). 

Here, it is undisputed that, although the administrative judge denied the 

appellant’s request for a 6-month extension, she granted a 7-day extension based 

on the appellant’s explanation of good cause. I-2 AF, Tab 8; W-2 AF, Tab 10. 

Further, following the 7-day extension, the administrative judge also granted an 

additional 8-day extension. I-2 AF, Tab 11; W-2 AF, Tab 13. On review, the 

appellant has not explained how these extensions failed to account for her 

counsel’s religious observance. Accordingly, this argument does not provide a 

basis to disturb the initial decisions. 

¶5 The appellant also argues on review that the prior dismissals of her appeals 

without prejudice constituted an abuse of discretion and resulted in the loss of her 

requested hearing. I-2 PFR File, Tab 1 at 4; W-2 PFR File, Tab 1 at 4. We 

acknowledge that the administrative judge dismissed the appeals without 
4

prejudice while the Board resolved the issues presented in Lucia v. Securities 

Exchange Commission, 138 S. Ct. 2044 (2018), and that the appeals were not 

refiled until approximately 1 year later. The appellant has not shown that any 

delay in the refiling of her appeals caused the loss of the requested hearings. 

Regarding her involuntary retirement claim, an appellant has a right to a hearing 

when she makes nonfrivolous allegations of Board jurisdiction. See Garcia v. 

Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006). 

Regarding her IRA appeal, an appellant is entitled to a hearing on the merits 

when she proves that she exhausted her administrative remedy with the Office of 

Special Counsel and makes nonfrivolous allegations that she engaged in protected 

activity that was a contributing factor in a personnel action. See Graves v. 

Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016). Based on the 

administrative judge’s findings and our agreements therewith as stated in this 

decision, the appellant failed to show that she was entitled to a hearing in either 

matter. 

¶6 Accordingly, we affirm the initial decisions. 

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 

 

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.
5

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 

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. 
6

(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 

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: 
7

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.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). 

 

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. 
8

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board