The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD YOUNG, DOCKET NUMBER
Appellant, DC-0752-19-0658-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 2, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Eden Brown Gaines , Esquire, Washington, D.C., for the appellant.
Lori A. Ittner , Esquire, and Stephanie Ramjohn Moore , Esquire,
Washington, D.C., 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
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his indefinite suspension appeal for lack of jurisdiction based on his
prior election to proceed with a whistleblower reprisal claim before the Office of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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Special Counsel (OSC). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant was a GS-15 Supervisory Information Technology Specialist
for the agency. Initial Appeal File (IAF), Tab 6 at 18. He was required to
maintain a security clearance as a condition of employment. Id. at 136-37. On or
about March 9, 2017, the agency withdrew the appellant’s eligibility to access
classified information. Id. at 11. On November 13, 2018, the agency proposed
his indefinite suspension based on his loss of eligibility to access classified
information. Id. at 12-14. After he responded, on February 15, 2019, the agency
issued a decision indefinitely suspending him. Id. at 131-34, 216-20.
¶3 On July 9, 2019, the appellant filed a Board appeal of his indefinite
suspension under 5 U.S.C. § 7513(d). 2 IAF, Tab 1 at 4. During the pendency of
the proceedings, it came to the administrative judge’s attention that the appellant
had an individual right of action (IRA) appeal pending that concerned, among
other things, the same indefinite suspension. 3 Young v. Department of
2
The appellant alleged that he did not receive the agency’s decision letter until July 3,
2019. IAF, Tab 1 at 4. After considering the parties’ submissions on this issue, the
administrative judge denied the agency’s motion to dismiss the appeal as untimely.
IAF, Tabs 9-12, Tab 19 at 10-12.
3
The appellant’s IRA appeal was assigned to a different administrative judge and
originally concerned his indefinite suspension. Young v. Department of Agriculture,
MSPB Docket No. DC-1221-20-0175-W-1, Appeal File (W-1 AF), Tab 15 at 2. The
administrative judge issued an order on jurisdiction finding that the Board does not
have authority to review agency actions based on security clearance determinations,
including the appellant’s indefinite suspension. W-1 AF, Tab 18 at 2. In
February 2024, the appeal was dismissed without prejudice “to await the outcome of the
appellant’s pending district court case.” Young v. Department of Agriculture, MSPB
Docket No. DC-1221-20-0175-W-8, Appeal File, Tab 9 at 1. The appellant’s district
court case includes claims of discrimination, harassment, and reprisal under Title VII
concerning, among other things, his indefinite suspension. Young v. Vilsack, Case No.
1:19-cv-02144-RC (D.D.C.).
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Agriculture, MSPB Docket No. DC-1221-20-0175-W-1. The administrative judge
notified the parties that the Board may lack jurisdiction over the appeal to the
extent that the appellant elected to contest his indefinite suspension before OSC
in the context of a whistleblower reprisal complaint before he filed the instant
Board appeal under chapter 75. IAF, Tab 19 at 12-15. He ordered the parties to
file evidence and argument on the issue. IAF, Tab 20.
¶4 After the parties responded, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 23, Initial
Decision (ID) at 2, 7. He found that, on or about July 3, 2019, the appellant’s
representative learned that the indefinite suspension had been effected, and she
informed the OSC investigator handling the appellant’s already-pending OSC
complaint. ID at 2. Approximately 6 days later, the appellant filed the instant
Board appeal to contest the indefinite suspension as an otherwise appealable
action. Id. In light of these facts, and considering that OSC’s October 17, 2019
close-out letter listed the indefinite suspension among the issues that OSC
investigated, the administrative judge found that the appellant made a prior
election under 5 U.S.C. § 7121(g) to contest his indefinite suspension before OSC
and that the Board therefore lacks jurisdiction over the instant appeal. ID at 2-7;
IAF, Tab 21 at 30.
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s legal analysis. Petition for Review (PFR) File, Tab 1. The agency has
not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 Under the 1994 amendments to the Whistleblower Protection Act, an
employee subjected to an action appealable to the Board who alleges that the
contested action was taken in reprisal for whistleblowing may elect to pursue a
remedy through only one of the following remedial processes: (1) an appeal to
the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable
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negotiated grievance procedure; or (3) a complaint seeking corrective action from
OSC under 5 U.S.C. §1211-1222. 5 U.S.C. § 7121(g); Requena v. Department of
Homeland Security, 2022 MSPB 39, ¶ 7. Whichever remedy is sought first by an
aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in either of the other two fora. Scalera v. Department of the
Navy, 102 M.S.P.R. 43, ¶ 9 (2006).
¶7 On review, the appellant challenges the administrative judge’s finding that
he made a prior election under 5 U.S.C. § 7121(g) to contest his indefinite
suspension before OSC and, therefore, that the Board lacks jurisdiction over the
instant appeal pursuant to 5 U.S.C. chapter 75. ID at 1, 3-7; PFR File, Tab 1
at 4-8. After the administrative judge issued his initial decision, the Board issued
its decision in Requena, in which it held that supervisors and management
officials are excepted from the election of remedies provisions of 5 U.S.C.
§ 7121(g). Requena, 2022 MSPB 39, ¶ 11. In Requena, the Board explained that
5 U.S.C. § 7103(a)(2) narrowly defined “employee” as excluding a “supervisor”
or “management official.” Id. Because the election of remedies statute for “an
aggrieved employee” falls within chapter 71, it is, therefore, subject to this
narrower definition of “employee.” Id.
¶8 Because the administrative judge did not have the benefit of this decision,
he did not address whether the appellant met the definition of “supervisor” or
“management official” and was, thus, not subject to the election of remedies
limitations. For the reasons discussed below, we vacate the initial decision and
remand this appeal for the administrative judge to determine whether the
appellant is subject to the election of remedies limitations.
¶9 Here, it is undisputed that the appellant’s classification title was
“Supervisory Information Technology Specialist.” IAF, Tab 1 at 14, Tab 6 at 18.
His position description indicates that his organizational title was “Director,
Information Services Division/Chief Information Officer” and that he had
managerial and supervisory duties. IAF, Tab 6 at 90-93. For example, as for
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managerial duties, the appellant was “responsible for management oversight of
[IT] support for both Washington and its field locations,” he “act[ed] as the
agency’s technical authority with considerable freedom for control over
development and administration of the IT function” whose “[d]ecisions,
recommendations and conclusions are generally accepted as authoritative.” Id.
at 90. Additionally, his supervisory duties included “oversee[ing] . . . several
program segments (each of which is managed through separate subordinate
organizational units).” Id. at 91. The record also contains the appellant’s
performance plan, progress review, and appraisal worksheet, which is on a form
“for supervisory positions,” and shows that “leadership/management or
supervision” was one of his critical elements. Id. at 98-100. These documents
suggest that the appellant is a “supervisor” and “management official,” as defined
by 5 U.S.C. § 7103(a)(10)-(11), rather than an “employee,” as defined by
5 U.S.C. § 7103(a)(2). If that is so, the appellant is not subject to the election of
remedies provisions of 5 U.S.C. § 7121(g). However, the nature of the
appellant’s position as it relates to this statutory scheme was not argued below or
on review. We therefore find it appropriate to remand this appeal for further
proceedings. See Requena, 2022 MSPB 39, ¶ 15.
¶10 On remand, the administrative judge should first give the parties an
opportunity to present argument and evidence about the nature of the appellant’s
position. If the administrative judge determines that the appellant is a
“supervisor or a management official,” and not an “employee” for purposes of
chapter 71, subject to the election of remedies provisions at 5 U.S.C. § 7121(g),
he must then proceed with adjudicating the appellant’s chapter 75 indefinite
suspension appeal, including holding the appellant’s requested hearing.
¶11 As mentioned above, because it appears that the appellant’s district court
case may decide matters that overlap with the issues in the appellant’s pending
IRA appeal, we do not believe the administrative judge in that appeal abused her
discretion in dismissing it without prejudice. Based on the circumstances here,
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we are not directing the regional office to join the instant chapter 75 appeal with
the appellant’s IRA appeal; however, the regional office may choose to do so if it
determines that it would serve adjudicatory efficiency. See 5 C.F.R. § 1201.36.
ORDER
¶12 For the reasons discussed above, we remand this case to regional office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.