The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY FORD, DOCKET NUMBER
Appellant, DE-1221-20-0154-W-1
v.
DEPARTMENT OF THE ARMY, DATE: July 1, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.
Eric L. Carter , Fort Riley, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
applied collateral estoppel to dismiss her individual right of action (IRA) appeal
for lack of jurisdiction. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
case to the field office for further adjudication in accordance with this Remand
Order.
BACKGROUND
In July 2017, the agency proposed the appellant’s removal, alleging that
she falsely claimed leave to care for her husband under the Family and Medical
Leave Act of 1993 (FMLA). Ford v. Department of the Army, MSPB Docket
No. DE-1221-20-0154-W-1, Initial Appeal File (IAF), Tab 5 at 4-11. After
considering the appellant’s written and oral replies to the proposal notice, the
agency decided to remove her in September 2017. Id. at 13-16.
On October 3, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC). Id. at 18-26. In her complaint, she averred that her use
of FMLA leave was proper and that the agency violated the law when it removed
her for using FMLA leave. Id. at 22-24.
In April 2018, the appellant filed a removal appeal with the Board in which
she referenced, and to which she attached, her OSC complaint. Ford v.
Department of the Army, MSPB Docket No. DE-1221-18-0258-W-1, Initial
Appeal File (0258 IAF), Tab 1 at 4-5, 22-30. The field office docketed her appeal
as two appeals, one as an IRA appeal and the other as a chapter 75 appeal, both of
which were dismissed. 2 Ford v. Department of the Army, MSPB Docket No. DE-
1221-18-0258-W-1, Initial Decision (0258 ID) (May 25, 2018); Ford v.
Department of the Army, MSPB Docket No. DE-0752-18-0257-I-1, Initial
Decision (0257 ID) (May 25, 2018). The administrative judge issued an initial
decision dismissing the IRA appeal for lack of jurisdiction after the appellant
stated during a conference call that she was not alleging whistleblower reprisal in
2
The appellant filed the same stay request in both appeals, which the field office
separately docketed. Ford v. Department of the Army, MSPB Docket No. DE-0752-18-
0257-S-1, Initial Decision (May 25, 2018) (0257-S-1 ID); Ford v. Department of the
Army, MSPB Docket No. DE-1221-18-0257-I-1, Initial Appeal File, Tab 4 at 7;
0258 IAF, Tab 4 at 7. The administrative judge issued an initial decision denying the
stay request. 0257-S-1 ID. Neither party filed a petition for review; therefore, the
initial decision became final in June 2018. 0257-S-1 ID at 2.
3
connection with her removal. 0258 ID at 1-3. In a separate initial decision, the
administrative judge dismissed the chapter 75 appeal as untimely filed without
good cause shown. 0257 ID at 1-4. No petitions for review were filed in either
appeal, and the initial decisions became final in June 2018. 0258 ID at 3;
0257 ID at 4.
In December 2019, OSC issued the appellant a close-out letter regarding
her October 2017 OSC complaint. IAF, Tab 5 at 28. This IRA appeal followed,
again regarding the appellant’s removal. IAF, Tab 1.
The administrative judge informed the appellant of her burden to establish
the Board’s jurisdiction over her IRA appeal. 3 IAF, Tab 3. In response, the
appellant, through her representative, indicated that she had made disclosures in
her written and oral replies to the proposal notice that she and her supervisors
lacked FMLA training and that her supervisors had directed her to use FMLA
leave. IAF, Tab 6 at 5-8. She asserted that those disclosures were a contributing
factor in her removal. Id. at 6-8.
The administrative judge also ordered the appellant to show cause as to
why her IRA appeal should not be dismissed on the basis of collateral estoppel.
IAF, Tab 8. The appellant argued that collateral estoppel was inapplicable
because the issue of the Board’s jurisdiction over her whistleblower reprisal claim
was not actually litigated in her prior IRA appeal. IAF, Tab 11 at 5-7.
In his initial decision, the administrative judge dismissed the appellant’s
IRA appeal for lack of jurisdiction, finding that she was collaterally estopped
from re-litigating the jurisdictional issue. IAF, Tab 12, Initial Decision (ID) at 1,
5. He found that the issues presented in the instant IRA appeal and the prior IRA
appeal were identical in that they both involved the same alleged protected
disclosure, personnel action, and OSC complaint. ID at 4. He additionally found
3
The instant IRA appeal was adjudicated by a different administrative judge than the
one who adjudicated the appellant’s 2018 appeals and stay request.
4
that the issue of jurisdiction was actually litigated in the prior IRA appeal and
was necessary to the resulting judgment. Id.
The appellant has filed a petition for review, arguing that the administrative
judge erred in applying collateral estoppel to the jurisdictional determination in
her prior IRA appeal because the issue of reprisal for making protected
disclosures was not litigated in that appeal. Petition for Review (PFR) File,
Tab 3. The agency has filed a response to the petition for review. PFR File,
Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
We vacate the administrative judge’s determination that collateral estoppel barred
the appellant from litigating jurisdiction over her IRA appeal.
The administrative judge applied the doctrine of collateral estoppel to give
preclusive effect to the jurisdictional finding in the appellant’s prior IRA appeal.
ID at 4-5. The appellant disputes this determination, arguing that she did not
raise a whistleblower reprisal claim in her first IRA appeal. PFR File, Tab 3
at 5-7. We agree.
The doctrine of collateral estoppel may preclude a second action in the
same forum that dismissed a prior appeal for lack of jurisdiction. Johnson v.
Department of the Air Force, 92 M.S.P.R. 370, ¶ 13 (2002). Collateral estoppel
is appropriate when, as relevant here, the issue was actually litigated in the prior
action. Id. The “actually litigated” element is satisfied when the issue was
“properly raised by the pleadings, was submitted for determination, and was
determined.” Id. (quoting Banner v. United States, 238 F.3d 1348, 1354 (Fed.
Cir. 2001)).
The Board has found that the underlying jurisdictional issue of whether an
appellant made protected disclosures was not previously litigated when an
appellant withdrew a prior appeal to cure a failure to exhaust. Serrao v.
Department of Commerce, 69 M.S.P.R. 475, 477-78 (1996). In addition, the
Board held that dismissal for lack of jurisdiction of a prior IRA appeal does not
5
bar a subsequent IRA appeal based on different alleged disclosures or protected
activities. Id. at 478-79. The Board also declined to give collateral estoppel
effect to a jurisdictional dismissal for failure to exhaust when the appellant had
since exhausted and the jurisdictional issue in the second appeal was whether the
appellant’s alleged disclosures were protected. El v. Department of Commerce,
123 M.S.P.R. 76, ¶¶ 6-7 & n.7 (2015), aff’d per curiam, 663 F. App’x 921 (Fed.
Cir. 2016). In these instances, the Board reasoned, as relevant here, that the same
jurisdictional issue was not actually litigated in a prior appeal. Id., ¶ 7 n.7; see
Serrao, 69 M.S.P.R. at 477-79 (concluding further that the issues were not
identical in the first and second appeals, as necessary to apply the doctrine of
collateral estoppel).
Here, the issue of the Board’s jurisdiction over claims the appellant raised
for the first time in the instant appeal was not, and could not be, actually litigated
in her prior appeal. The appellant clarified in response to the field office’s
docketing of her prior IRA appeal that she was not raising a claim of
whistleblower reprisal. 0258 ID at 2. As a result, the administrative judge found
that she failed to meet her jurisdictional burden. Id. We find that the prior
dismissal based on the appellant’s failure to raise a whistleblower reprisal claim
does not bar the appellant’s specific claim here that the agency removed her in
reprisal for her FMLA disclosures. Therefore, we vacate the administrative
judge’s finding that collateral estoppel precluded the appellant from asserting
jurisdiction over the instant appeal.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her remedies before OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 5.
6
Although the administrative judge did not make findings on these issues, he
developed the record on jurisdiction. IAF, Tab 3 at 2-6, Tabs 5-6, Tab 7 at 10.
We find that the record is sufficient to determine that appellant has established
jurisdiction over her appeal, as described below. See Carson v. Department of
Energy, 109 M.S.P.R. 213, ¶¶ 33-34 (2008) (determining that an appellant
established jurisdiction over his IRA appeal in the first instance on review when
the record was sufficiently developed for the Board to make the necessary
findings), aff’d per curiam, 357 F. App’x 293 (Fed. Cir. 2009).
The appellant exhausted her alleged disclosure and personnel action with OSC.
The Board, in Chambers v. Department of Homeland Security, 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
were previously raised with OSC. However, appellants may give a more detailed
account of their whistleblowing activities before the Board than they did to OSC.
Id. Appellants may demonstrate exhaustion through their initial OSC complaint;
evidence that they amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations; and their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.
As previously noted, the appellant alleged that in her written and oral
replies to the proposal notice she made disclosures that she and her supervisors
lacked FMLA training and that her supervisors had directed her to use
FMLA-protected leave. IAF, Tab 6 at 5-8. In her 2017 OSC complaint, the
appellant described how she “requested and got approved” to use FMLA leave to
care for her husband following his cancer diagnosis. IAF, Tab 5 at 22. She
explained that the timekeeper sent her an email on how to invoke and code FMLA
7
and that her supervisor “informed [her] to add FMLA . . . on an annual leave
request.” Id. The appellant alleged to OSC that none of her supervisors
requested additional documentation from her and that the agency’s subsequent
actions violated regulations concerning leave entitlement and the FMLA. Id.
at 23. The appellant further alleged to OSC that her removal constituted
whistleblower reprisal. Id. at 28. Under the circumstances, we find that the
appellant provided OSC with a sufficient basis to pursue an investigation, and she
therefore met the exhaustion requirement. See Chambers, 2022 MSPB 8,
¶¶ 10-11.
The appellant nonfrivolously alleged that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) and that she was subjected to a personnel action.
As set forth above, the appellant asserted that in her written and oral replies
to the proposal notice she made disclosures that she and her supervisors lacked
FMLA training and that her supervisors had directed her to use the FMLA leave
underlying her removal. IAF, Tab 6 at 5-8. We find that the appellant has made
a nonfrivolous allegation that these disclosures were protected.
A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining
whether an employee had a reasonable belief that her disclosures were protected
is whether a disinterested observer in her position with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions evidenced any of the conditions set forth in 5 U.S.C.
§ 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 5. Any doubt or ambiguity as to
whether an appellant raised a nonfrivolous allegation of a reasonable belief
should be resolved in favor of a finding that jurisdiction exists. Id., ¶ 8.
8
In the notice of proposed removal, the agency alleged, among other things,
that the appellant falsified approximately 25 FMLA-protected leave requests,
between February 22, 2016, through February 3, 2017, by claiming that she was
caring for her husband with cancer when she was not. IAF, Tab 5 at 4-5. The
appellant did not submit copies of her written and oral replies to the proposal
notice; however, she alleged that in those replies she disclosed to the deciding
official and other management officials that her supervisors had directed her to
apply for FMLA-protected leave, they had approved her FMLA-protected leave,
and neither she nor her supervisors had received training on the process for
obtaining and requesting FMLA-protected leave. IAF, Tab 6 at 5. She claims she
also disclosed that when she submitted an annual or sick leave request, her
supervisor “directed her to ascribe her leave request to the FMLA, because an
application for FMLA leave did not require these supervisors to first check her
annual or sick leave balances before approving Appellant’s application for leave.”
Id.
Agencies are responsible for properly administering FMLA, “including . . .
informing employees of their entitlements and obligations.” 5 C.F.R.
§ 630.1201(c). Regulations implementing FMLA reserve the right to invoke
FMLA to the employee rather than the agency. 5 C.F.R.
§ 630.1203(b), (h). “An employee may request to use annual leave or sick leave
without invoking family and medical leave.” 5 C.F.R. § 630.1206(e)(4). The
appellant submitted an email dated July 20, 2017, which shows that her direct
supervisor, who also proposed her removal, instructed her to revise her timecard
for the pay period beginning on May 28, 2017 and “add the FMLA code for any
of the dates [she] had annual leave.” 4 IAF, Tab 6 at 12. She also submitted
sworn statements from two of her supervisors, including the proposing official,
acknowledging that they had not received any formal training on the FMLA
4
Although this email is dated after the notice of proposed removal had been issued on
July 17, 2017, we find it is relevant to the extent that it evidences the agency’s practices
prior to that date.
9
program or process. Id. at 13, 22. One supervisor also stated that she had never
counseled the appellant regarding the use of FMLA-protected leave. Id. at 22.
We find that the appellant has nonfrivolously alleged that a reasonable person in
her position, with knowledge of the facts known to her, could have reasonably
concluded that the agency failed to properly administer FMLA by failing to
inform her of her obligations under FMLA and that an agency official improperly
required the appellant to invoke FMLA protections for annual leave in violation
of FMLA regulations. Moreover, a removal is a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). Thus, we find that the appellant nonfrivolously alleged that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that she was
subjected to a personnel action.
The appellant nonfrivolously alleged that her protected disclosure was a
contributing factor in her removal.
Next, we consider whether the appellant nonfrivolously alleged that her
disclosures were a contributing factor in her removal. We find that she did.
An appellant’s protected disclosure is a contributing factor if it in any way
affects an agency’s decision to take a personnel action. Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant may establish
the contributing factor criterion is the knowledge/timing test, under which she
submits evidence showing that the official taking the personnel action knew of
the disclosure or activity and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosure or activity
was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 63. The Board has held that a
personnel action taken within approximately 1 to 2 years of an appellant’s
disclosures or activity satisfies the timing portion of the knowledge/timing test.
Id.
The appellant alleged that her July 26 and 31, 2017 disclosures, delivered
in her written and oral replies to her proposed removal, resulted in her
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September 5, 2017 removal. IAF, Tab 6 at 5. Therefore, the appellant’s
allegations are sufficient to meet her jurisdictional burden as to the timing prong
of the knowledge/timing test.
We also conclude that the appellant nonfrivolously alleged that the official
who decided to remove the appellant had direct knowledge of the appellant’s
disclosures. Specifically, in the notice of decision on the proposed removal, the
deciding official acknowledges that she received the appellant’s written response
on July 26 and met with the appellant and received the oral reply on July 31,
2017. IAF, Tab 5 at 13. Thus, the appellant has made nonfrivolous allegations
regarding the knowledge prong of the knowledge/timing test for purposes of
establishing the Board’s IRA jurisdiction. Accordingly, we remand this appeal
for further development of the record on the merits, including holding the
appellant’s requested hearing. IAF, Tab 1 at 3; see Rusin v. Department of the
Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (stating that, when the test for
establishing the Board’s IRA jurisdiction has been met, the appellant is entitled to
a hearing on the merits of his claim).
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.