Case: 24-2355 Document: 1-2 Page: 1 Filed: 09/25/2024
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`FORM 5. Petition for Review/Notice of Appeal of an Order or Decision of an Agency, Board,
`Form 5
`Commission, Office, Bureau, or the US Court of Federal Claims (vaccine appeals only))
` March 2023
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`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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`PETITION FOR REVIEW/NOTICE OF APPEAL
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`Notice is hereby given that the petitioner(s)/appellant(s) listed below hereby
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`appeal(s) the below-noted case to the United States Court of Appeals for the Federal
`Circuit.
`Originating Tribunal (Name of Agency, Board, Commission, Office, Bureau, or Court
`whose decision is being appealed):
`__________________________________________
`MSPB
`Case number being appealed:
`________________________________________________
`DE-3443-20-0189-I-1
`Case title being appealed:
`________________________________________________
`Shirley Muhleisen v Department of Veterans Affair
`09/06/2024
`Date of final decision or order being appealed:
`______________________________
`09/11/2024
`Date decision or order was received:
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`______________________________
`(cid:1798) I have attached a copy of the decision or order being appealed.
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`List all Petitioners/Appellants (List each party filing this appeal. Do not use “et
`al.” or other abbreviations. Attach continuation pages if necessary.)
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`Shirley Ann Muhleisen
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`09/22/2024
`Date:
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`Signature:
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`Shirley Ann Muhleisen
`Name:
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`5121 Lee Place
`Address:
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`Marrero Louisiana
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`70072
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`5042351640
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`Phone Number:
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`shirleymuhleisen@gmail.com
`Email Address:
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`Case: 24-2355 Document: 1-2 Page: 2 Filed: 09/25/2024
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`UNITED STATES OF AMERICA
`MERIT SYSTEMS PROTECTION BOARD
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`SHIRLEY MUHLEISEN,
`Appellant,
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`DOCKET NUMBER
`DE-3443-20-0189-I-1
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`v.
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`DEPARTMENT OF VETERANS
`AFFAIRS,
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`Agency.
`
`DATE: September 6, 2024
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`THIS FINAL ORDER IS NONPRECEDENTIAL 1
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`Shirley Muhleisen , Marrero, Louisiana, pro se.
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`LaTasha C. Clark , Jackson, Mississippi, for the agency.
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`BEFORE
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`Cathy A. Harris, Chairman
`Raymond A. Limon, Vice Chairman
`Henry J. Kerner, Member
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`FINAL ORDER
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`The appellant has filed a petition for review of the initial decision, which
`dismissed her appeal, which alleged that the agency separated her from service in
`1999 by early retirement rather than her preferred resignation, for lack of
`jurisdiction. On review, the appellant presents a number of arguments on topics
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`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).
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`Case: 24-2355 Document: 1-2 Page: 3 Filed: 09/25/2024
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`ranging from the nature of her separation in 1999 to ones concerning her prior
`appeals with the Board and Federal courts, but none that specifically address the
`jurisdictional limitation identified in the initial decision. Petition for Review
`(PFR) File, Tab 1.2 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 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).
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`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
`2 Long after her petition, the appellant requested permission to submit additional
`argument or evidence about her retirement. PFR File, Tab 6. That request is denied.
`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.
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`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:
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`U.S. Court of Appeals
`for the Federal Circuit
`717 Madison Place, N.W.
`Washington, D.C. 20439
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`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
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`Board neither endorses the services provided by any attorney nor warrants that
`any attorney will accept representation in a given case.
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`(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
` 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
`receive this decision.
`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
` See 42 U.S.C.
`requirement of prepayment of fees, costs, or other security.
`§ 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
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`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:
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`Office of Federal Operations
`Equal Employment Opportunity Commission
`P.O. Box 77960
`Washington, D.C. 20013
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`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
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`(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
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`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.
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`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.
`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 .
`
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`FOR THE BOARD:
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`Washington, D.C.
`
`______________________________
`Gina K. Grippando
`Clerk of the Board
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