The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WALTER ESSEX, DOCKET NUMBER
Appellant, DA-1221-15-0205-W-1
v.
DEPARTMENT OF VETERANS DATE: June 11, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Walter Essex, Sherman, Texas, pro se.
Kenneth S. Carroll, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 On September 8, 2014, the appellant filed a Board appeal alleging that, in
June 2012, the agency improperly failed to select him for one of three vacancies
for a position as an Addiction Therapist, failed to consider his status as a “50%
service disabled veteran,” and the agency’s actions constituted discrimination
based on his race and violated his rights under the “whistleblower act.” MSPB
Docket No. DA-3443-14-0649-I-1, Initial Decision at 2 (Jan. 26, 2015). On
January 23, 2015, the administrative judge docketed this IRA appeal to separately
address the appellant’s allegation raised in his prior case that his nonselection for
the Addiction Therapist position was in retaliation for his whistleblowing or other
protected activity. MSPB Docket No. DA-1221-15-0205-W-1, Initial Appeal File
(IAF), Tab 11, Initial Decision (ID) at 2. The administrative judge then issued an
order on jurisdiction in which she informed the appellant that, to establish Board
jurisdiction over his IRA appeal, he had to demonstrate, among other things, that
he had exhausted his whistleblowing claims before the Office of Special Counsel
(OSC) and she ordered him to submit proof of his exhaustion within 10 days.
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IAF, Tab 3. In response, the appellant submitted several pleadings, none of
which addressed whether he exhausted his administrative remedies before OSC.
IAF, Tabs 7-10. Without holding the appellant’s requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to demonstrate that he exhausted his administrative remedies
before OSC concerning his June 2012 nonselection. ID.
¶3 The appellant has filed a petition for review in which he asserts that he has
exhausted his administrative remedies before OSC but does not describe when or
how he brought his disclosure and personnel action to the attention of OSC and
does not attach copies of any documents he provided to, or received from, OSC.
Petition for Review (PFR) File, Tab 1 at 4, Tab 6 at 3. The agency has filed a
response in opposition to the appellant’s petition and he has filed a reply. PFR
File, Tabs 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his
administrative remedies with OSC before seeking corrective action from the
Board in an IRA appeal. Mason v. Department of Homeland Security,
116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not
exhausted his OSC remedy unless he has filed a complaint with OSC and either
OSC has notified him that it was terminating its investigation of his allegations or
120 calendar days have passed since he first sought corrective action. Simnitt v.
Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). The appellant
must inform OSC of the precise ground of his charge of whistleblowing, giving
OSC a sufficient basis to pursue an investigation that might lead to corrective
action. Mason, 116 M.S.P.R. 135, ¶ 8. To establish Board jurisdiction, the
appellant must prove exhaustion with OSC, not just present nonfrivolous
allegations of exhaustion. Id., ¶ 9. To establish that he has exhausted his OSC
remedy, the appellant must show what specific claims he presented to OSC by
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providing his OSC complaint, any amendments to the complaint, OSC’s
correspondence discussing the claims, and/or his responses to OSC’s
correspondence discussing the claims. See Baldwin v. Department of Veterans
Affairs, 113 M.S.P.R. 469, ¶ 8 (2010).
¶5 The Board may consider only those disclosures of information and
personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.
135, ¶ 8. If an appellant has exhausted his administrative remedies before OSC,
he can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging
that he made a protected disclosure and that the disclosure was a contributing
factor in the agency’s decision to take a personnel action. Peterson v.
Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). Once an appellant
establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the
merits of his claim. Id.
¶6 In the instant case, the administrative judge properly found that the
appellant failed to prove that he exhausted his administrative remedies before
OSC because the record below contains no evidence establishing that the
appellant alleged before OSC that his nonselection for the Addiction Therapist
position was in reprisal for protected whistleblowing activity. ID. Although the
appellant asserts on review that he has exhausted his administrative remedies with
OSC, he fails to provide information regarding any aspect of his complaint or any
evidence that he indeed filed a complaint, e.g., a copy of the complaint or any
response from OSC. Thus, we find that the administrative judge correctly
determined that the Board lacks jurisdiction over his appeal because the appellant
failed to show that he raised before OSC the same issues claimed in his appeal.
See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 21 (2007) (the Board
may consider only those charges of whistleblowing that the appellant raised
before OSC); see also Schmittling v. Department of the Army, 92 M.S.P.R. 572,
¶ 26 (2002) (an appellant has not exhausted his remedy when he has not raised
before OSC the personnel action that he is appealing to the Board).
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¶7 We note, however, that on March 3, 2015, the appellant filed another
appeal, currently pending before the Dallas Regional Office, in which he
submitted a March 31, 2015 determination letter from OSC regarding his claim of
nonselection for the Addiction Therapist position. See MSPB Docket No.
DA-1221-15-0257-W-1. To the extent that it appears that the appellant may have
now exhausted his administrative remedies with OSC, we would ordinarily
remand this appeal for a determination on jurisdiction, and, if appropriate, a
hearing on the merits. See, e.g., Hawkins v. Department of Commerce,
98 M.S.P.R. 107, ¶¶ 7–8 (2004) (remanding an IRA appeal that became ripe while
pending on petition for review). However, we find remand unnecessary because
the controlling issue in this appeal, whether the appellant has made a
nonfriovolous allegation of Board jurisdiction over his IRA appeal, will be
determined in the appellant’s pending appeal. See Kinler v. General Services
Administration, 44 M.S.P.R. 262, 263 (1990) (finding that the Board may, in the
interest of judicial efficiency, dismiss an appeal due to the pendency of another
appeal before the Board, so long as the identity of the issues exists and the
controlling issues in the dismissed appeal will be determined in the other appeal).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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).
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),
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(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 your appeal to
the 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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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.