Teresa K. Day v. Office of Personnel Management
Background
- Appellant Teresa K. Day filed an appeal with the Merit Systems Protection Board (MSPB) challenging an action by the Office of Personnel Management (OPM).
- The administrative judge issued an initial decision on March 27, 2016, dismissing the appeal for lack of jurisdiction.
- The appellant filed a petition for review of that initial decision.
- During subsequent settlement discussions, the appellant submitted a letter withdrawing her petition for review.
- The agency did not object to the withdrawal request.
- The Board treated the withdrawal as appropriate and dismissed the petition for review as withdrawn with prejudice; the initial decision therefore became final.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition for review should proceed | Day sought review of the AJ’s dismissal for lack of jurisdiction | OPM did not object to Day’s withdrawal of the petition | The Board accepted the withdrawal and dismissed the petition with prejudice |
| Whether the initial decision remains final after withdrawal | Day implicitly asked to vacate or reconsider by filing PFR earlier | OPM’s silence signaled no opposition to withdrawal | Initial decision remains final per 5 C.F.R. § 1201.113 |
| Whether the appellant retains appellate rights after dismissal | Day retains right to appeal Board decisions to the Federal Circuit | OPM’s position irrelevant to statutory appeal deadlines | Appellant may seek review at the U.S. Court of Appeals for the Federal Circuit within 60 days |
| Whether withdrawal can be conditioned or withdrawn later | Day did not request revocation of withdrawal | OPM did not consent to any modification | Board dismissed petition as withdrawn with prejudice to refiling |
Key Cases Cited
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court generally cannot waive statutory filing deadlines for appeals to the Federal Circuit)