# Steven McKinnis v. Department of the Interior

> Merit Systems Protection Board · September 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9838808

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 7, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9838808

## How later opinions describe it (automated extraction)

- finding that the Board has jurisdiction over an IRA appeal if, among other things, the appellant has exhausted his administrative remedies before OSC

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

STEVEN A. MCKINNIS, DOCKET NUMBER
Appellant, DA-0432-18-0199-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: September 7, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Susan L. Kruger, Esquire, Washington, D.C., for the appellant.

Conor Cleary, Esquire, Tulsa, Oklahoma, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his performance-based removal 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;
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND
¶2 The appellant was a GS-12 Auditor for the agency’s Office of Natural
Resources Revenue. McKinnis v. Department of the Interior, MSPB Docket
No. DA-0432-18-0199-I-1, Initial Appeal File (0199 IAF), Tab 1 at 1, 9. On
October 14, 2016, the appellant filed a whistleblower complaint with the O ffice
of Special Counsel (OSC), challenging a July 19, 2016 letter of reprimand. Id.
at 21-33. Throughout the following year, the appellant amended his complaint to
include several other alleged personnel actions, culminating in a December 14,
2017 notice of proposed removal under 5 U.S.C. chapter 43. 0199 IAF, Tab 8
at 13-17, Tab 28 at 4-56.
3

¶3 On January 10, 2018, OSC sent the appellant a preliminary determination
letter, informing him that it planned to close its inquiry without taking corrective
action and giving him 13 days to respond. 0199 IAF, Tab 1 at 34, Tab 28
at 57-58. Then, on January 18, 2018, the agency issued a decision to remove the
appellant from service, which the appellant forwarded to OSC on January 22,
2018. 0199 IAF, Tab 8 at 5-9, Tab 33 at 12-15. On January 30, 2018, outside the
13 days but before OSC issued its close-out letter, the appellant received his
separation folder from the agency. 0199 IAF, Tab 33 at 16. He forwarded the
information to OSC in an email stating, “I receive d the following separation
folder today. Please see attached. Is there anything that can be done on my
behalf? Please advise.” 0199 IAF, Tab 33 at 16-26. The following day,
January 31, 2018, the OSC attorney handling the appellant’s case responded by
email, informing the appellant that there was insufficient information to
demonstrate that the removal was unfounded and that OSC would issue a
close-out letter later that day. Id. at 66. OSC issued the close-out letter as
promised, summarizing the appellant’s complaint as pertaining to a written
reprimand, a 14-day suspension, a performance improvement plan (PIP), and a
proposed removal. 0199 IAF, Tab 1 at 35. The close-out letter did not mention
the removal action per se.
¶4 On February 16, 2018, the appellant filed an individual right of action
(IRA) appeal with the Board, which he apparently intended to encompass his
removal as well as the various other personnel actions discussed above.
McKinnis v. Department of the Interior, MSPB Docket No. DA-1221-18-0200-
W-1, Initial Appeal File (0200 IAF), Tab 1. Because OSC’s close-out letter did
not specifically mention the removal action, the regional office docketed a
separate appeal for the removal under the procedures of 5 U.S.C. chapter 43.
0199 IAF, Tab 35, Initial Decision (ID) at 2. However, upon review of the record
as requested by the appellant’s attorney, the administrative judge determined that
the appellant had exhausted his administrative remedies with OSC with respect to
4

his removal. 0200 IAF, Tab 12 at 2. She advised the parties of her intention to
adjudicate the removal in the context of the IRA appeal and to dismiss the
chapter 43 appeal on the basis that the appellant had made a binding election to
challenge his removal before OSC. Id. Over the appellant’s objection, the
administrative judge issued an initial decision dismissing the chapter 43 appeal
for lack of jurisdiction. 0199 IAF, Tab 33; ID.
¶5 The appellant has filed a petition for review, arguing that he did not make a
knowing and informed decision to seek corrective action from OSC on the
removal decision. Petition for Review (PFR) File, Tab 1. The agency has filed a
response the petition for review, PFR File, Tab 3, and the appellant has filed a
reply to the agency’s response, PFR File, Tab 4.

ANALYSIS
¶6 Under 5 U.S.C. § 7121(g), an employee who has been subjected to an action
appealable to the Board and who alleges that he has been affected by a prohibited
personnel practice other than a claim of discrimination under 5 U.S.C.
§ 2302(b)(1) may elect to pursue a remedy through one, and only one, of the
following remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701;
(2) a grievance filed pursuant to the provisions of the negotiated grievance
procedure; or (3) a complaint following the procedures for seeking corrective
action from OSC under 5 U.S.C. §§ 1211–1222. Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶ 14 (2013). 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 forums. Agoranos, 119 M.S.P.R.
498, ¶ 14. To be binding, however, the election must be knowing and informed;
the employee must be aware of all of his options, and of the effect that pursuing a
particular option will have on his ability to pursue other options. Id., ¶ 15.
¶7 The administrative judge found, and the appellant does not dispute, that the
agency’s decision letter fully apprised him of his options for challenging the
5

removal and of the limitations of those options. ID at 5. We agree. The decision
letter informed the appellant that he had the right to appeal to the Board or to
seek corrective action before OSC, but if he sought corrective action before OSC,
the issue would be limited to whether the removal was in retaliation for
whistleblowing, and the appellant would be forgoing his right to otherwise
challenge the removal. 0199 IAF, Tab 8 at 7 -8. We find that these provisions
satisfy the notice requirement of 5 C.F.R. § 1201.21(d)(4).
¶8 The appellant argues, however, that his communications with OSC
regarding the removal did not actually constitute an election to proceed in that
forum. His argument is essentially in two parts: First, that although he apprised
OSC of his removal, he did not request that OSC investigate the matter but
instead asked whether anything could be done, and second, that OSC did not
investigate the removal and did not include it in its close-out letter. PFR File,
Tab 1 at 9-12. For the following reasons, we disagree.
¶9 Regarding the appellant’s apprising OSC of his removal, we agree that he
did not specifically request that OSC “investigate” the matter. PFR File, Tab 1
at 9-10; 0199 IAF, Tab 33 at 15-16. However, the governing statute does not
require a complainant to use any particular words to invoke OSC’s remedial
authority; it requires only an “allegation of a prohibited personnel practice.”
5 U.S.C. § 1214(a)(1)(A). In this case, the appellant not only informed OSC of
the January 18, 2018 removal action, but also did so in the context of his ongoing
whistleblower complaint and asked OSC whether it could do anything about the
removal. 0199 IAF, Tab 33 at 12-16. We agree with the administrative judge
that this was a rather unambiguous request for corrective action. ID at 4 -5.
¶10 Regarding OSC’s handling of the removal, we agree with the appellant that
OSC did not mention the removal in its close-out letter and does not appear to
have conducted a separate investigation of it. 0199 IAF, Tab 1 at 35; PFR File,
Tab 1 at 10-12. Nevertheless, OSC’s failure to specifically mention removal in
its close-out letter is not dispositive of the issue. In McVay v. Arkansas National
6

Guard, 80 M.S.P.R. 120, 124 (1998), the Board found that the appellant’s
submissions to OSC were sufficient to show that he had exhausted his
administrative remedy regarding a personnel action that was not mentioned in
OSC’s close-out letter. Accord Costin v. Department of Health and Human
Services, 72 M.S.P.R. 525, 534-35 (1996), modified on other grounds by Costin v.
Department of Health and Human Services, 75 M.S.P.R. 242 (1997). As
explained above, the appellant’s submissions to OSC are sufficient to show that
he elected to seek corrective action rather than file a Boar d appeal.
¶11 We also find that election of remedies is not predicated on OSC conducting
a full investigation into the allegations at issue. Under 5 U.S.C. § 1214(a)(1)(A),
OSC “shall investigate the allegation to the extent necessary to determine whether
there are reasonable grounds to believe that a prohibited personnel practice has
occurred, exists, or is to be taken.” In this case, OSC had been in possession of
the underlying PIP documents and notice of proposed removal for some time
before the appellant was removed, and indeed had already issued a preliminary
determination letter concerning those matters. 0199 IAF, Tab 28 at 51 -52, 57, 61.
When the appellant forwarded OSC the information concerning the removal
decision itself, the OSC attorney reviewed that information and found that there
was nothing in there to warrant further investigation. Id. at 66. We therefore find
that OSC carried out its statutory duty with respect to the appellant’s removal.
Furthermore, after reviewing the appellant’s removal-related information, the
OSC attorney replied to him as follows:
I have reviewed all of the documents you sent, but unfortunately I do
not think that OSC has enough to demonstrate that your assignments
were not late. [3] However, just because OSC does not take on your
case, does not mean you cannot continue to challenge the removal.
Later today, I will be sending you a closure letter and an Individual
Right of Action. An individual right of action gives you the ability
to file with the Merit Systems Protection Board.

3
The appellant’s removal was based on his alleged failure to complet e or timely
complete his work assignments. 0199 IAF, Tab 8 at 7, 15-16.
7

Id. Clearly, the OSC attorney handling the appellant’s case contemplated that he
would be able to challenge his removal in an IRA appeal, and had thus exhausted
his administrative remedies with respect to the removal. See Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (finding
that the Board has jurisdiction over an IRA appeal if, among other things, the
appellant has exhausted his administrative remedies before OSC).
¶12 For these reasons, we find that it was both the appellant’s intention and
OSC’s understanding that he had elected to seek corrective action regarding his
removal. We therefore agree with the administrative judge that the appellant is
precluded from challenging his removal as an otherwise appealable action
pursuant to 5 U.S.C. § 4303(e) under the provisions of 5 U.S.C. § 7701. See
5 U.S.C. § 7121(g).

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
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.

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.
8

Please read carefully each of the three main possible choi ces 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
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
9

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. 420 (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:
10

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 review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).

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 petitions 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.
11

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 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.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9838808. Public record. Not legal advice.