Opinion

Timothy McNamara v. Department of State

Court: Merit Systems Protection Board
Filed: Nov 29, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY J. MCNAMARA, DOCKET NUMBER

Appellant, DC-1221-15-0813-W-1

DEPARTMENT OF STATE, DATE: November 29, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy J. McNamara, Chula Vista, California, pro se.

Marianne Perciaccante, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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 in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

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. 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, 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. Except as expressly MODIFIED by

this Final Order to find that the appellant did not exhaust his remedies as to his

first Office of Special Counsel (OSC) complaint, but did exhaust as to his second

OSC complaint, we AFFIRM the initial decision.

BACKGROUND

¶2 On November 13, 2013, the appellant retired from his position as an

Information Program Officer with the Foreign Service. Initial Appeal File (IAF),

Tab 7 at 103. At some point thereafter, he filed a complaint with OSC in which

he alleged that his retirement was a constructive discharge imposed upon hi m by

agency officials in retaliation for his having filed a complaint with the Office of

Inspector General (OIG) on May 23, 2013. IAF, Tab 1 at 4. In a March 26, 2015

letter, OSC notified the appellant that it had closed its file, and advised him of his

right to file an IRA appeal with the Board. Id.

¶3 The appellant filed a timely appeal, IAF, Tab 1, and requested a hearing.

Id. at 2. After the agency submitted its file in response, IAF, Tabs 5-9, and

moved to dismiss the appeal for lack of jurisdiction, IAF, Tab 10, the

administrative judge issued an order advising the appellant of the jurisdictional

requirements for an IRA appeal based on a claim of retalia tion for protected

disclosures under 5 U.S.C. § 2302(b)(8) and protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i)-(D), IAF, Tab 15, and directed him to file a statement,

accompanied by evidence, addressing those jurisdictional requirements. Id.

at 6-7.

¶4 The appellant responded to the order, IAF, Tabs 17-21, 23, and the agency

again urged that the appeal be dismissed for lack of jurisdict ion. IAF, Tab 22.

¶5 Based on the written record, the administrative judge dismissed the appeal

for lack of jurisdiction, IAF, Tab 28, Initial Decision (ID) at 1, 15, finding that

the matters the appellant disclosed to the OIG were not protected under 5 U.S.C.

§ 2302(b)(8). ID at 10-13. In the alternative, the administrative judge found that

the appellant failed to prove that he exhausted his remedies with OSC. ID

at 13-14.

¶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 3,

and the appellant has filed a reply to the agency’s response. 2 PFR File, Tab 4.

ANALYSIS

¶7 As noted by the administrative judge, the appellant filed two complaints

with OSC. The first complaint, MA-13-2836, was filed on May 1, 2013. 3 IAF,

Tab 3. In that complaint, the appellant described abuse of authority and nepotism

by the agency in violation of its regulations and statute when he was unjustly

accused of sexual harassment and involuntarily curtailed from his post in Tijuana ,

Mexico, and reassigned to Washington, D.C. so that the Consul General could

place her husband in the appellant’s former position; when the agency suspended

With his reply, the appellant has submitted documents related to the investigation into

an equal employment opportunity complaint he filed on October 23, 2013. PFR File,

Tab 4 at 19-167. We have not considered this part of his submission because a reply to

a response to a petition for review is limited to the factual and legal issues raised in the

response to the petition for review. 5 C.F.R. § 1201.114(a)(4).

The administrative judge erroneously found that the appellant failed to provide a copy

of this complaint. ID at 7.

his security clearance; and when it denied him access to the internal unclassified

system. However, the appellant did not, in the complaint, indicate that he

disclosed any of this alleged wrongdoing. Id. Nepotism constitutes a violation of

5 U.S.C. § 2302(b)(7). However, for an appellant to have an individual right of

action allowing them to seek corrective action from the Board, they must allege a

violation of 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). 5 U.S.C.

§ 1221(a). It does not appear, therefore, that the Board has jurisdiction over OSC

complaint MA-13-2836. Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 11

(2006) (finding that an appellant’s submissions to OSC, which simply alleged that

his supervisor and agency committed prohibited personnel practices, did not

contain allegations that would have given OSC a sufficient basis to pursue an

investigation of whistleblower reprisal as described in the Whistleblower

Protection Act (WPA), thus failing to establish jurisdiction for an IRA appeal).

¶8 In any event, as to OSC’s closure letter of December 5, 2013, the appellant

did not file the instant appeal until May 29, 2015, well after the 60-day time limit

provided under 5 U.S.C. § 1214(a)(3)A) or the 65-day time limit provided under

5 C.F.R. § 1209.5(a)(1). Although the appellant argued below that he did not

receive OSC’s closure letter until April 14, 2014, IAF, Tab 26 at 57, he still

did not file an appeal within 60 days of that date. 5 C.F.R. § 1209.5(a)(1). Nor

has he provided any reason why the filing period should be suspended under the

doctrine of equitable estoppel. Heimberger v. Department of Commerce,

121 M.S.P.R. 10, ¶ 10 (2014). Therefore, as to OSC complaint MA-13-2386,

even if the appellant exhausted his remedy before OSC, his appeal must be

dismissed as untimely filed. Id., ¶ 13.

¶9 The record does not indicate the date the appellant filed the second OSC

complaint, MA-14-1990. The administrative judge found in the alternative that,

as to this complaint, the appellant did not exhaust his administrative remedies

with OSC because, despite being ordered to do so, he failed to submit a copy of

the complaint, and because OSC’s termination letter lacked specificity regarding

the actual disclosures he raised in that complaint. ID at 13-14.

¶10 The Board has recently clarified the substantive requirements of exhaustion.

Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The

requirements are met when an appellant has provided OSC with sufficient basis to

pursue an investigation. The Board’s jurisdiction is limited to those issues that

have been previously raised with OSC. However, an appellant may give a mor e

detailed account of his whistleblowing activities before the Board than he did to

OSC. An appellant may demonstrate exhaustion through his initial OSC

complaint, evidence that he amended the original complaint, including but not

limited to OSC’s determination letter and other letters from OSC referencing any

amended allegations, and the appellant’s written responses to OSC referencing

the amended allegations. An appellant may also establish exhaustion through

other sufficiently reliable evidence, such as an affidavit or declaration attesting

that the appellant raised with OSC the substance of the facts in the Board

appeal. Id.

¶11 It is true that the appellant failed to submit a copy of O SC complaint

MA-14-1990. However, this is not required to establish jurisdiction. According

to the March 26, 2015 notice of appeal rights issued by OSC, the appellant

alleged in this complaint that the agency constructively discharged him in

retaliation for filing an OIG complaint regarding a violation of its internal

manual, 3 FAM 4377, which prohibits employees from making false or unfounded

statements concerning an officer or employee of the U.S. Government, and

5 U.S.C. § 2302(b)(7), which prohibits nepotism. According to the closure letter,

the appellant alleged that a female subordinate unjustly accused him of sexual

harassment in order to have him removed from post, thereby assisting the Consul

General in promoting her husband into the appellant’s former po sition. 4 IAF,

Tab 1 at 4. 5 Therefore, contrary to the administrative judge’s alternative finding,

we find that OSC’s March 26, 2015 closure letter is sufficient to

establish exhaustion.

¶12 The administrative judge otherwise found that the matters the appe llant

disclosed to the OIG were not protected under 5 U.S.C. § 2302(b)(8) of the WPA

and that therefore the Board lacked jurisdiction over these claims. ID at 10-13.

However, the Whistleblower Protection Enhancement Act of 2012 (WPEA)

expanded the Board’s jurisdiction over IRA appeals, providing that protected

activities include both disclosures defined by 5 U.S.C. § 2302(b)(8), and

activities defined by 5 U.S.C. §§ 2302(b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C.

§ 1221(a). Under subsection (C), an employee engages in protected activity when

he cooperates with or discloses information to the OIG “in accordance with

applicable provisions of law.” Notwithstanding the comprehensive jurisdictional

order he issued, IAF, Tab 15, the administrative judge failed to consider that, in

OSC complaint MA-14-1990, the appellant alleged that the agency retaliated

against him because of his protected activity in filing with the OIG. IAF, Tab 1

at 4; Tab 7 at 105-113. As such, based on the record evidence, we find that the

appellant nonfrivolously alleged that he engaged in protected activity under

5 U.S.C. § 2302(b)(9)(C) when he filed the OIG complaint.

¶13 To establish the Board’s jurisdiction over his IRA appeal, the appella nt also

must nonfrivolously allege that the protected activity was a contributing factor in

These are the same claims the appellant raised in his OIG complaint. IAF, Tab 7

at 105-113.

While 5 U.S.C. § 1221(f)(2) provides that OSC’s decision to terminate its

investigation may not be considered in an IRA appeal, “[t]he purpose of this evidentiary

rule . . . is to ensure that a whistleblower is not ‘penalized’ or ‘prejudiced’ in any way

by OSC’s decision not to pursue a case.” Costin v. Department of Health & Human

Services, 64 M.S.P.R. 517, 531 (1994). However, there is no statutory violation in the

Board’s consideration of OSC’s closure letter solely to determine the issue of

exhaustion. Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 10 (2016).

the agency’s decision to take or fail to take a personnel action as defined by

5 U.S.C. § 2302(a). One way an employee can make such an allegation is by

means of the knowledge-timing test, that is, through circumstantial evidence,

including evidence that the official taking the personnel action knew of the

protected activity, and that the personnel action occurred within a period of time

such that a reasonable person could conclude that the protected activity was a

contributing factor in the personnel action. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 26 (2011).

¶14 The appellant asserted below that, based on the report of investigation

prepared regarding the equal employment opportunity complaint he filed on

October 24, 2013, his supervisor at the time he retired was aware that he had

earlier filed an OIG complaint, although the supervisor was not mentioned in it.

IAF, Tab 12 at 20. However, while the appellant retired on November 13, 2013,

when he became eligible, 6 months after he filed the OIG complaint, he

acknowledged that he began to plan his retirement on January 12, 2012, a year

and a half before he filed the OIG complaint. Id. at 8-9, 12-13. Based on this

circumstantial evidence, we find that a reasonable person could not conclude that

the appellant’s protected activity was a contributing factor in his retirement , and,

therefore, he failed to make the necessary nonfrivolous allegations to establish the

Board’s jurisdiction over his IRA appeal. 6 The initial decision, as supplemented

by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R.

§ 1201.113.

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

NOTICE OF APPEAL RIGHTS 7

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d

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).

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.

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:

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. ____ , 137 S. Ct. 1975 (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 descri bed 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. 8 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