Opinion

Bridget Bunner v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

holding that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that: (1

How later courts described this case

holding that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations that: (1
holding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRIDGET BUNNER, DOCKET NUMBER

Appellant, PH-1221-20-0114-W-1

DEPARTMENT OF VETERANS DATE: July 22, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bridget Bunner , Nutter Fort, West Virginia, pro se.

Matthew Kelly , Esquire, Huntington, West Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed for lack of jurisdiction her individual right of action (IRA) appeal. For

the reasons discussed below, we GRANT the appellant’s petition for review,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

VACATE the initial decision, and DISMISS the appeal for lack of jurisdiction on

other grounds.

BACKGROUND

The appellant served as Nurse Manager of a Medical/Surgical unit at the

Department of Veterans Affairs medical center in Clarksburg, West Virginia. In

2018, based on an anonymous complaint, the agency’s Office of the Inspector

General (OIG) began conducting what turned out to be a lengthy investigation

into criminal activity, implicating the floor on which the appellant’s unit was

located. The appellant was not named in the investigation, although she and her

coworkers were required to provide information to the investigators conducting

the inquiry. Initial Appeal File (IAF), Tab 8 at 8, 13. On August 8, 2019, after

unsuccessfully applying for three positions in the Quality Management (QM)

department for which she was qualified, the appellant filed a complaint with the

Office of Special Counsel (OSC). IAF, Tab 6 at 5-13. She alleged that her

supervisor told her that she would not be hired in the QM department, even

though the supervisor there wanted to hire her, because of “optics,” that is,

because of the ongoing investigation at the facility. Id. at 9-10.

On appeal, the appellant reiterated her claim. 2 IAF, Tab 1 at 3. She

declined a hearing. Id. at 2. In a subsequent pleading, the appellant explained

that, although she had done nothing wrong, she was denied a fair chance to

compete for the positions. IAF, Tab 4 at 3-4. Construing the appellant’s claim to

be that the agency took retaliatory action against her because of her

whistleblowing or other protected activity, the administrative judge issued an

order on jurisdiction and proof requirements for an IRA appeal. IAF, Tab 5. In

When she initially did not receive a close-out letter from OSC, the appellant filed her

appeal. However, because 120 days had not passed since she filed her OSC complaint,

the appeal was dismissed as premature on December 20, 2019. Bunner v. Department of

Veterans Affairs, MSPB Docket No. PH-1221-20-0044-W-1, Initial Decision (Dec. 20,

2019). On that same day, 120 days having now passed, the Northeastern Regional

Office docketed this appeal on the appellant’s behalf and adjudication proceeded.

her response, the appellant did not address any of the IRA jurisdictional or proof

requirements set forth in the administrative judge’s order. IAF, Tab 6. Rather,

the appellant stated that the agency had willfully obstructed her right to compete

for the positions and, as a remedy, she asked to be allowed to “competitively

compete.” Id. at 10. The agency moved that the appeal be dismissed for lack of

jurisdiction, explaining that, due to the investigative process, the facility

determined that it was not in the best interest of patients and staff to allow the

appellant to become part of an organization with oversight responsibilities. IAF,

Tab 8 at 13.

The administrative judge issued an initial decision based on the written

record. IAF, Tab 14, Initial Decision (ID). She found that, under 5 U.S.C.

§ 2302(b)(9)(C), it is a prohibited personnel practice for an agency to take a

personnel action against an employee for making a disclosure to the agency’s

OIG, but that the matter disclosed must rise to the level of whistleblowing. ID

at 5. The administrative judge then found that the appellant failed to articulate

what she disclosed to the OIG or why she reasonably believed that it constituted

protected whistleblowing activity. ID at 6. The administrative judge found,

therefore, that the appellant failed to establish the Board’s jurisdiction over her

IRA appeal which she dismissed for lack of jurisdiction. ID at 2, 6.

The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5.

ANALYSIS

On review, the appellant states that she believes there is “some confusion

on the facts of the case.” PFR File, Tab 1 at 4. She explains that she is not

stating that the agency would not hire her in the QM department because she was

“a whistleblower to the OIG,” but rather that the agency is guilty of a prohibited

personnel practice, specifically 5 U.S.C. § 2302(b)(4), which precludes anyone

with authority from deceiving or willfully obstructing any person with respect to

such person’s right to compete for employment. Id.

We agree that the administrative judge misconstrued the nature of the

appellant’s appeal. The basis of her OSC complaint was “willful obstruction” of

the right to compete for employment. IAF, Tab 6 at 10, 12. She made no

mention of retaliation for whistleblowing, either in the complaint or in her email

communications with the OSC employee assigned to her case. Id. at 14-31.

Further, in the additional information the appellant submitted with her appeal, she

again stated that she had not been given a chance to compete for employment.

IAF, Tab 4 at 3. And, as noted, in response to the administrative judge’s

jurisdictional order setting forth the requirements for an IRA appeal, the appellant

did not address any of those requirements, IAF, Tab 6, but instead repeated her

claim that the agency had willfully obstructed her right to compete, id. at 10. For

these reasons, and given the appellant’s clear statement on review, we find that

she did not intend to file an IRA appeal.

However, we need not remand this case to the administrative judge because

we may resolve it on the basis of the written record. The Board has no authority

to review an alleged violation of 5 U.S.C. § 2302(b)(4) absent an otherwise

appealable action. Finston v. Health Care Financing Administration,

83 M.S.P.R. 100, ¶ 10 (1999); see also Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982) (holding that

prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent

source of Board jurisdiction). Therefore, on this basis, the appellant’s appeal is

dismissed for lack of jurisdiction. 3

We note the appellant’s claim on review that the agency’s detailing her to another

department on October 21, 2019, “could be perceived as retaliation for filing the PPP

[prohibited personnel practice] against the agency.” PFR File, Tab 1 at 4. If the

appellant wishes to pursue this claim as one of retaliation for protected activity, she

must first exhaust her remedy before OSC. See Yunus v. Department of Veterans

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (holding that 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

NOTICE OF APPEAL RIGHTS 4

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

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:

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).

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.

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.

(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

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

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

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 .

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 of appeals of

competent jurisdiction. 5 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