The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CORETTA ADAMS, DOCKET NUMBER
Appellant, CH-0752-17-0027-I-1
v.
DEPARTMENT OF VETERANS DATE: July 14, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Coretta Adams, Oakwood Village, Ohio, pro se.
Amber Groghan, Esquire, Akron, Ohio, 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 her appeal without prejudice to refiling. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous a pplication 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 affec ted 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). For
the reasons discussed below, we DENY the appellant’s petition for review ,
AFFIRM the initial decision insofar as it found that the Board lacks jurisdiction
over a direct appeal of the appellant’s removal and that she prematurely filed her
individual right of action (IRA) appeal, and FORWARD her now-ripe IRA appeal
to the Board’s Central Regional Office for adjudication.
BACKGROUND
¶2 The appellant filed an appeal in which she challenged her removal from the
position of Registered Nurse with the Veterans Health Service (VHS), effective
September 12, 2016. Initial Appeal File (IAF), Tab 1, Tab 7 at 19. She alleged,
inter alia, that the agency improperly removed her for filing a w histleblower
complaint with the Office of Special Counsel (OSC) on August 28, 2016.
IAF, Tab 1 at 4-5. The administrative judge issued a jurisdictional order
informing the appellant of what she needed to show to establish Board
jurisdiction over her IRA appeal, which included showing that she had sought
corrective action from OSC and either that OSC had terminated its investigation
or that 120 days had expired since she filed her OSC complaint. IAF, Tab 3.
¶3 On November 8, 2016, the administrative judge issued an initial decision in
which she dismissed the appellant’s IRA appeal as premature. IAF, Tab 9,
Initial Decision (ID) at 3. The administrative judge found that the appellant
provided no evidence that she had received a letter from OSC terminating its
investigation and that 120 days had not yet elapsed since her OSC filing. ID at 3.
3
The administrative judge also found that VHS registered nurses such as the
appellant who are appointed generally under 38 U.S.C. § 7401 do not have appeal
rights to the Board and, thus, the Board has no authority to review the removal
decision as an otherwise appealable action. ID at 2.
¶4 The day after the administrative judge issued the initial decision, the
appellant filed a pleading intended to be a petition for review. Petition for
Review (PFR) File, Tab 1. The Board afforded the appellant the opportunity to
file a supplement, which she did. PFR File, Tab 3. The agency has filed a
response opposing the petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW 2
The administrative judge properly dismissed the appellant’s IRA appeal as
premature.
¶5 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations of the following: (1) she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D); and (2) the protected disclosure or activity was a contributing
factor in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230,
¶ 5 (2016). An appellant filing an IRA appeal has not exhausted her OSC remedy
unless she has filed a complaint with OSC and either OSC has notified her that it
was terminating its investigation into her complaint or 120 calendar days have
passed since she first sought corrective action. 5 U.S.C. § 1214(a)(3);
Garrison v. Department of Defense, 101 M.S.P.R. 229, ¶ 6 (2006).
¶6 On review, the appellant challenges the merits of the removal action, and
she asserts that her removal was in retaliation for whistleblowing. 3
2
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.
4
PFR File, Tabs 1, 3. However, the appellant has shown no error in the
administrative judge’s finding that the Board lacked jurisdiction over her appeal
when she first filed it because she had not received notice from OSC that it had
terminated its investigation into her complaint and 120 days had not yet expired
since she filed her complaint. See 5 U.S.C. § 1214(a)(3); Jundt v. Department of
Veterans Affairs, 113 M.S.P.R. 688, ¶ 6 (2010).
We forward the appellant’s now-ripe appeal to the regional office for
adjudication.
¶7 The Board’s practice is to adjudicate an appeal that was premature when it
was filed but becomes ripe while pending before the Board. See Jundt,
113 M.S.P.R. 688, ¶ 7. The undisputed evidence shows that the appellant filed a
complaint with OSC on August 28, 2016. IAF, Tab 5 at 37; PFR File, Tab 3.
Because 120 days have passed since that date, we find that the appellant has
exhausted her administrative remedies before OSC and that her appeal is now ripe
for adjudication. We therefore forward the appeal to the regional office.
See Jundt, 113 M.S.P.R. 688, ¶ 7.
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
3
The appellant does not challenge the administrative judge’s determination that, as a
VHR registered nurse appointed under 38 U.S.C. § 7401(1), the Board has no authority
to review the merits of the agency’s decision to remove her as an otherwise appealable
action. Therefore, we have not addressed it. Nevertheless, we have reviewed the
record, and we discern no basis upon which to disturb the administrative judge’s
determination in this regard.
4
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.
5
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:
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
6
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
7
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
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitio ns for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
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
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 websit e 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.