The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD BAJUSCAK, DOCKET NUMBER
Appellant, DA-1221-15-0552-W-1
v.
DEPARTMENT OF VETERANS DATE: April 29, 2016
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ronald Bajuscak, Mesa, Arizona, pro se.
Chau Phan, Oklahoma City, Oklahoma, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. For the
reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Order.
BACKGROUND
¶2 In June 2011, the agency appointed the appellant to a dentist position.
Bajuscak v. Department of Veterans Affairs, MSPB Docket No. DA-1221-15-
0552-W-1, Initial Appeal File (0552 IAF), Tab 10 at 87-88. Although the
Standard Form 50 (SF-50) documenting his appointment initially indicated that he
had completed his initial probationary period, id., it was subsequently corrected
to indicate that the appointment was subject to a 2-year probationary period, id.
at 86. In November 2011, the appellant filed an Office of Special Counsel (OSC)
complaint in which he alleged that his supervisor: (1) issued him an
unsatisfactory performance appraisal thus causing him to be the subject of a
hospital board review, which led to his reassignment because he refused to have a
sexual relationship with her; and (2) retaliated against him for filing an equal
employment opportunity (EEO) complaint. 0552 IAF, Tab 18 at 13, 27. OSC
informed the appellant that his allegations were more appropriately resolved
through the EEO process. Id. at 27.
¶3 The appellant was terminated in January 2012. 0552 IAF, Tab 9 at 15-16.
In February 2012, he filed an IRA appeal regarding the termination. In
April 2012, the administrative judge dismissed the appeal for lack of jurisdiction
because she found that the appellant failed to exhaust his administrative remedies
with OSC. Bajuscak v. Department of Veterans Affairs, MSPB Docket
No. DA-1221-12-0215-W-1 (0215 Appeal), Initial Decision at 7 (Apr. 10, 2012).
Specifically, she found that, although the appellant made disclosures to the
agency’s Office of Inspector General, he did not file a request for corrective
action concerning either the disclosures or his termination. Id. at 6-7. The record
does not reflect when the appellant filed a complaint with OSC regarding the
termination. However, OSC’s preliminary close-out letter from June 2012
3
reflects that he filed an OSC complaint alleging that his supervisor retaliated
against him by, inter alia, changing his SF-50 to reflect that he was a
probationary employee and terminating him from his position. 0552 IAF, Tab 18
at 44, 50. In July 2012, OSC informed the appellant that it decided to close out
its inquiry. Id. at 45-46. OSC also informed the appellant that he had the right to
file an IRA appeal within 65 days of the issuance of the close-out letter. Id.
However, he did not file a Board appeal in that time frame.
¶4 More than 2 years after OSC issued its July 2012 close-out letter, the
appellant filed another OSC complaint in which he alleged that the agency both
improperly required him to serve a new probationary period and terminated him
in retaliation for whistleblowing. 0552 IAF, Tab 18 at 47-48. On April 30, 2015,
OSC informed the appellant that it was closing its inquiry into his complaint
because his allegations and documents already were considered in a prior OSC
complaint and he did not provide new information to indicate that the prior
decision was made in error. Id. OSC also informed the appellant that he had
65 days from the issuance of the close-out letter to file an IRA appeal. Id.
at 47‑49.
¶5 The appellant filed the instant IRA appeal on August 18, 2015. 0552 IAF,
Tab 1. The administrative judge ordered the appellant to file a statement,
accompanied by evidence, establishing that he exhausted his administrative
remedies before OSC and making nonfrivolous allegations that he engaged in
whistleblower activity that was a contributing factor in the agency’s decision to
take or fail to take a personnel action. 0552 IAF, Tab 3. The administrative
judge later issued an order informing the appellant that it appeared that he filed
his appeal 45 days late and that the Board might dismiss the appeal as untimely
filed without addressing the merits of the case. 0552 IAF, Tab 11. She ordered
him to file evidence and argument showing that he filed on time. Id. The
appellant responded that he attempted to file his appeal numerous times in June
through August 2015, but that he experienced technical problems with the
4
Board’s electronic filing system (e-Appeal Online). 0552 IAF, Tab 13 at 3. The
administrative judge found that the filing deadline should be equitably tolled
because of the appellant’s repeated attempts to timely file his appeal and the
technical issues with e-Appeal Online. 0552 IAF, Tab 17.
¶6 The administrative judge ordered the appellant to respond to her previous
order to submit evidence and argument regarding the issue of Board jurisdiction.
Id. In response, the appellant submitted documents, including, inter alia, OSC’s
letters from June and July 2012 regarding his complaint. 0552 IAF, Tab 18
at 44‑46, 50, 59. The administrative judge then issued an order to show cause
why the appeal should not be dismissed as it appeared that the appeal was
untimely filed because the appellant was trying to reopen the investigation that
OSC closed in 2012. 0552 IAF, Tab 21. She ordered the appellant to show why
his IRA appeal should not be dismissed as untimely, including, if he asserted that
his complaint raised new disclosures or new personnel actions that were not
previously at issue, providing evidence supporting such statements. Id. The
appellant responded to the order, but did not address the timeliness of his appeal
or whether he raised new disclosures or personnel actions. 0552 IAF, Tabs 22,
24. He also submitted a newspaper article regarding another agency employee
that was unrelated to him or to his appeal. 0552 IAF, Tab 22 at 5-6.
¶7 The administrative judge issued an initial decision dismissing the IRA
appeal as untimely filed. 0552 IAF, Tab 25, Initial Decision. Specifically, she
found that the appellant’s 2015 OSC complaint involved the same allegations he
raised in 2012 and that he did not submit evidence that would justify equitable
tolling from 2012 until April 30, 2015, the date of OSC’s second close-out letter.
Id. at 6-7. The appellant has filed a timely petition for review in which he asserts
his disagreement with the initial decision and states that the Board is ignoring
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new evidence about the agency’s actions as reflected in the newspaper article. 2
Petition for Review (PFR) File, Tab 1, Tab 2 at 9. He generally also challenges
the actions of the agency, OSC, the Board and the Equal Employment
Opportunity Commission. PFR File, Tab 2 at 9. The agency has responded in
opposition to the appellant’s petition. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once OSC closes its investigation into his complaint and no more than
60 days have elapsed since notification of the closure was provided to him. See
Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 6 (2014). Under the
Board’s regulations at 5 C.F.R. § 1209.5(a)(1) implementing that statutory time
limit, an IRA appeal must be filed no later than 65 days after the date that OSC
issues its close-out letter, or, if the letter is received more than 5 days after its
issuance, within 60 days of the date of receipt. See Heimberger, 121 M.S.P.R.
10, ¶ 6.
¶9 In finding that the appellant’s IRA appeal was untimely filed, the
administrative judge relied on Heimberger to determine that the statutory
deadline began to run from the date of OSC’s July 23, 2012 close-out letter. ID
at 4, 6. We find Heimberger distinguishable from the circumstances in this case.
In Heimberger, after the statutory period for filing an IRA appeal had passed, the
appellant filed a request to reopen with OSC, OSC denied her request, and the
appellant filed an IRA appeal with the Board arguing that she filed a timely
appeal because timeliness should be calculated from the date of OSC’s denial of
2
In support of his petition, the appellant attaches an article that he asserts describes an
abandoned and mistreated patient who was the subject of his reports to the agency.
Petition for Review (PFR) File, Tab 2 at 4-9. We do not consider this evidence because
the appellant has not shown that it was not previously available despite his due
diligence. See 5 C.F.R. § 1201.115(d). The appellant also has submitted an untimely
reply to the agency’s response, which generally challenges the initial decision. PFR
File, Tab 6. We also do not consider this pleading. See 5 C.F.R. § 1201.114(e).
6
her request to reopen. Heimberger, 121 M.S.P.R. 10, ¶¶ 3-4. The Board
disagreed and found that the appellant’s IRA appeal was untimely filed. Id., ¶ 8.
The Board reasoned that, because the denial of a request to reopen generally
does not restart the statutory period to file an IRA appeal, the timeliness of the
appeal was properly assessed from the date of OSC’s close-out letter, not the date
of OSC’s denial of her request to reopen. Id., ¶ 9.
¶10 Unlike Heimberger, which involved OSC’s denial of the appellant’s request
to reopen, in this case OSC accepted the appellant’s new complaint, resumed its
investigation under a new case number, and issued a new close-out letter that
provided the appellant with Board appeal rights. 0552 IAF, Tab 18 at 47-49. The
Board has held, under similar circumstances, that OSC’s reopening of an
appellant’s complaint after it already had issued a close-out letter in the matter
creates a new statutory filing period, providing the appellant the right to file an
IRA appeal either within 65 days after OSC issued its new close-out letter or, in
the absence of a final OSC determination, at any time following 120 days from
having sought further corrective action. Kalus v. Department of the Army,
123 M.S.P.R. 226, ¶ 9 (2016); Morrison v. Department of the Army, 77 M.S.P.R.
655, 656–57, 661 (1998) (reviewing and applying the legislative history of the
Whistleblower Protection Act). Thus, under the circumstances in this case, the
statutory deadline for filing an IRA appeal began to run from OSC’s April 30,
2015 close-out letter. Here, however, the appellant did not file his appeal within
65 days of OSC’s new close-out letter.
¶11 The Board cannot waive the statutory time limit for filing an IRA appeal for
good cause shown, because there is no statutory mechanism for doing so.
Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526, ¶ 10, aff’d,
404 F App’x 466 (Fed. Cir. 2010). However, the Board may invoke the doctrine
of equitable tolling to suspend the filing period for equitable reasons.
Heimberger, 121 M.S.P.R. 10, ¶ 10. The Board only applies this remedy in
unusual circumstances and generally requires a showing that the litigant has been
7
pursuing his rights diligently and some extraordinary circumstances stood in his
way. Id. We find that the doctrine of equitable tolling is justified in this case
because of the appellant’s numerous attempts to file a Board appeal from June
through August 2015, and his technical issues with e-Appeal Online. 0552 IAF,
Tab 13 at 3. We therefore find the appellant has shown a sufficient basis to waive
the filing deadline for his IRA appeal.
ORDER
¶12 For the reasons discussed above, we vacate the initial decision and remand
this case to the regional office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.