UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY WINEY, DOCKET NUMBER
Appellant, DC-1221-17-0011-W-1
v.
DEPARTMENT OF DEFENSE, DATE: April 20, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy Winey, Suffolk, United Kingdom, pro se.
Schwanda Rountree, Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal on collateral estoppel
grounds. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findin gs of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 in itial 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. Except as expressly MODIFIED by
this Final Order to dismiss the appeal for lack of jurisdiction without addressing
the issue of collateral estoppel, we AFFIRM the initial decision. 2
¶2 The appellant filed an IRA appeal in which he contended that the agency
removed him from his position in retaliation for alleged whistleblowing. Initial
Appeal File (IAF), Tab 1. The administrative judge informed the appellant that
he had the burden of establishing jurisdiction over his appeal, and she provided
him with notice of what he must show to establish jurisdiction. IAF, Tab 3. The
administrative judge also issued a show cause order in which she directed the
appellant to show why his appeal should not be dismissed on the basis of
collateral estoppel as it appeared that he had raised the identical claim in an
earlier appeal. IAF, Tab 31. After considering the parties’ responses, the
administrative judge found that the appeal was barred by collateral estoppel.
IAF, Tab 48, Initial Decision (ID) at 7-9. She further found, in the alternative,
2
The appellant also filed a motion for leave to file additional pleadings. Petition for
Review File, Tab 6. In this motion, the appellant, without specifically identifying what
his additional pleadings are, is simply reiterating the arguments that he ha s already
raised in his petition for review; that is, that the administrative judge was biased, that
she should have ruled on his motion to compel before dismissing his case, and that he
has been prevented from obtaining documents from the Office of Special Counsel
through discovery. Because all of these arguments are addressed in this decision, the
appellant’s motion for leave to file additional pleadings is denied.
3
that the appellant failed to prove jurisdiction over his appea l because he did not
prove by preponderant evidence that he had exhausted his administrative
remedies with the Office of Special Counsel (OSC). ID at 9-13. The appellant
petitions for review.
¶3 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion
requirement of 5 U.S.C. § 1214(a)(3), an appellant must provide OSC with a
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶¶ 10-11.
¶4 Here, although the appellant filed a complaint with OSC and received a
closure letter, IAF, Tab 7 at 57-59, he did not submit a copy of his OSC
complaint to the Board. While proof of exhaustion need not be in the form of an
OSC complaint, the burden of proof is on the appellant to establish exhaustion.
Chambers, 2022 MSPB 8, ¶¶ 10-11. As such, it was incumbent on him to
articulate the substance of the disclosures that he made to OSC. The
administrative judge ordered the appellant to identify his protected discl osure, the
date of the disclosure, to whom it was made, and other pertinent information,
IAF, Tab 3 at 7, but the appellant provided no information about his OSC
complaint and instead raised arguments about the merits of his removal, his
discrimination claims, his requests for documents under the Freedom of
Information Act, and other matters not relevant to the outcome of this appeal.
¶5 The appellant asserts on review that OSC stated in its closure letter that he
had exhausted his administrative remedies and that the administrative judge erred
by finding otherwise. PFR File, Tab 2 at 4-5. The appellant has misinterpreted
OSC’s correspondence. IAF, Tab 1 at 52-54, Tab 7 at 57-59. In any event, an
4
IRA appeal before the Board is a de novo proceeding and any decisions that OSC
may have made are not binding on the Board. Mangano v. Department of
Veterans Affairs, 109 M.S.P.R. 658, ¶ 45 (2008). Moreover, as noted above,
OSC’s closure letter establishes that the appellant filed a complaint about alleged
whistleblowing, but it does not establish what the alleged whistleblowing was,
and it does not establish that he provided OSC with a sufficient basis to pursue an
investigation which might lead to corrective action.
¶6 The appellant further contends that he was unable to provide copies of his
correspondence with OSC because OSC was not cooperating with his various
requests for documents. PFR File, Tab 2 at 4. Whether the appellant has
satisfied the exhaustion requirement depends on what information he provided to
OSC. The documents he submitted to OSC would normally be in his own custody
and control and his access to them would not depend o n OSC’s response to his
requests for documents. Moreover, the appellant has been attempting to obtain
redress for his removal since 2011, including by filing of several Board appeals,
and has had ample opportunity to gather the documents he needs.
¶7 Finally, the appellant alleges that the administrative judge was biased and
should have recused herself. Id. at 4-5. In making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The party claiming
bias must show that it constitutes extrajudicial conduct rather than conduct
arising in the administrative proceedings before the administrative judge, and the
fact that the administrative judge ruled against the party, even erroneously, is
insufficient evidence to show bias. Vaughn v. Department of the Treasury,
119 M.S.P.R. 605, ¶ 18 (2013); Benson v. Office of Personnel Management,
83 M.S.P.R. 549, ¶ 7 (1999). The appellant’s claims of bias are based almost
entirely on the administrative judge’s rulings in this appeal and in prior appeals
and do not establish extrajudicial conduct warranting a finding of bias.
5
¶8 The appellant’s remaining allegation of bias proceeds from his
representation that he has named the administrative judge as a witness in a
discrimination complaint. However, he has submitted no evidence showing that
the administrative judge has been approved as a witness by an appropriate
authority. At this point, any suggestion that the administrative judge will testify
in any possible hearing that may or may not occur in connection with his
discrimination complaint is mere speculation, as is the apparent presumption that
the possibility of testifying necessarily would trigger bias against the appellant.
¶9 Based on the foregoing, we find that the administrative judge correctly
found that the appellant did not show that he exhausted his administrative
remedies with OSC and failed to establish jurisdiction over his IRA appeal. In
light of this disposition, we do not address the administrative judge’s finding that
the appeal was barred by the doctrine of collateral estoppel.
¶10 Finally, on March 1, 2018, the appellant filed a pleading titled “Motion to
Waive Jurisdiction.” PFR File, Tab 8. The Clerk of the Board issued an order
informing the appellant that it appeared that his pleading may constitute a request
to withdraw his petition for review. PFR File, Tab 9. The Clerk ordered the
appellant, if he indeed wished to withdraw his petition for review, to submit a
pleading confirming his request to withdraw his petition for review. Id. The
appellant did not respond to the Clerk’s order and we find that he did not intend
to withdraw his petition for review.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
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.
6
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 an d
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:
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
7
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 m ay 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
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.
8
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
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
9
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 wa rrants 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.
10
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.