                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     GEORGE DUGGAN,                                  DOCKET NUMBER
                 Appellant,                          SF-1221-14-0544-W-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: February 2, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           John Ota, Esquire, Alameda, California, for the appellant.

           Mark Hostetter, Esquire, San Jose, California, for the appellant.

           Kenya M. Gregory, Esquire, Fort Belvoir, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed without prejudice his individual right of action appeal. Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. See 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, and based on the following
     points and authorities, 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, 2 we AFFIRM the initial decision.
¶2        On May 7, 2014, the appellant filed this appeal alleging retaliation for
     whistleblowing. See Initial Appeal File (IAF), Tab 1. On August 22, 2014, the
     administrative judge dismissed the appeal without prejudice after the parties
     jointly requested postponement for the purpose of concluding discovery.         IAF,
     Tab 25, Initial Decision (ID) at 2-3. In the initial decision, the administrative
     judge also ruled on motions to compel brought by both parties. ID at 1-2; see
     IAF, Tabs 14, 17. He denied as moot the agency’s motion to compel and granted
     the appellant’s motion in part. ID at 1-2. He limited the scope of production for
     some of the appellant’s document production requests, and he denied others. He
     also denied some of the appellant’s interrogatories. ID at 2. Additionally, he set
     deadlines for discovery and the filing of prehearing submissions. ID at 3. He
     scheduled redocketing for October 20, 2014, and the hearing for November 18
     through 20, 2014.     ID at 3.   The appellant filed this petition for review on


     2
       The administrative judge erroneously included mixed-case appeal rights pursuant to
     5 U.S.C. §§ 7702(b)(1) and 7703(b)(1). We have corrected the notice of appeal rights.
                                                                                      3

     September 26, 2014, however, and the case has not been refiled. See Petition for
     Review (PFR) File, Tab 1.
¶3        The petition for review does not address the administrative judge’s
     dismissal of the appeal. Instead, he contends that the administrative judge abused
     his discretion by denying some parts of his July 15, 2014 Motion to Compel
     Further Responses to Interrogatories and Requests for Production of Documents.
     See IAF, Tab 14. He contends that the agency waived any possible objections to
     his requests for production of documents by untimely serving its response. See
     PFR File, Tab 1 at 10. Even if the agency’s response had been timely, he argues,
     the administrative judge abused his discretion by denying the discovery of
     evidence relevant to his whistleblower claim. Id. at 10-15. Regarding the request
     for interrogatories, the appellant contends that the agency “refus[es] to provide
     any responsive information” and that none of the agency’s responses are “verified
     or signed,” as required by Rule 33(b)(3), (5) of the Federal Rules of Civil
     Procedure. Id. at 16. The appellant requests that the Board remand the appeal to
     the administrative judge for adjudication “with instructions directing [him] to
     order the Agency to provide all of the documents requested by Appellant . . . and
     complete, non-evasive responses to Appellant’s Interrogator[ies].” Id. at 4.
¶4        The appellant’s pleading most closely resembles a motion for an
     interlocutory appeal, and the Board will consider it on that basis. See 5 C.F.R.
     § 1201.91 (“An interlocutory appeal is an appeal to the Board of a ruling made by
     a judge during a proceeding.”); cf. Special Counsel v. Woods, 26 M.S.P.R. 463,
     464 (1985) (a pleading entitled “Petition for Mandamus” seeking review of
     administrative law judge’s stay order would be considered under Board rules
     governing interlocutory appeals). As such, the motion is improperly filed with
     the Board as well as untimely.       Board regulations require parties seeking
     interlocutory review to “file a motion for certification within 10 days of the date
     of the ruling to be appealed” with the administrative judge.             5 C.F.R.
     § 1201.93(a).
                                                                                          4

¶5        The appellant did not file a motion for certification with the administrative
     judge within 10 days after the initial decision was issued.        He instead filed a
     timely petition for review on the last day of the filing period.       See PFR File,
     Tab 1 at 1; ID at 1, 3; see also 5 C.F.R. § 1201.114(e). Accordingly, the Board
     will not consider his uncertified motion for an interlocutory appeal. 3 See, e.g.,
     Sparrow v. Department of the Navy, 26 M.S.P.R. 335, 336 n.* (1985). Because
     the appellant has expressed a clear intention to pursue adjudication of his appeal,
     however, we FORWARD the appeal to the regional office for immediate refiling.
     See PFR File, Tab 1 at 4, 18-19.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
          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 have the right to
     request the United States Court of Appeals for the Federal Circuit to review this
     final decision.
          The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).


     3
       In any event, we have examined the pleadings and find that the issues presented are
     most appropriately addressed in the first instance by the administrative judge. The
     administrative judge has extensive knowledge of the record and issues and broad
     discretion in matters govern ing discovery. See Wagner v. Environmental Protection
     Agency, 54 M.S.P.R. 447, 452 (1992) (the Board will not reverse an administrative
     judge’s rulings on discovery matters absent an abuse of discretion), aff’d, 996 F.2d
     1236 (Fed. Cir. 1993) (Table).        Regarding the appellant’s contention that the
     interrogatories do not meet the requirements of the Federal Rules of Civil Procedure,
     we note that the Board looks to the rules for guidance but is not bound by them. Hebert
     v. Department of the Navy, 57 M.S.P.R. 68, 72 (1993); see PFR File, Tab 1 at 16.
                                                                                      5

        If you want to request review of the Board’s decision concerning your
claims     of   prohibited     personnel    practices   under 5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,     http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective           websites,             which         can        be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
                                                                            6

appellants before the Federal Circuit.      The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
