The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN P. LAUTERBACH, DOCKET NUMBER
Appellant, SF-1221-22-0045-W-1
v.
DEPARTMENT OF VETERANS DATE: April 5, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Brian P. Lauterbach , Welches, Oregon, pro se.
Stephen Funderburk , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his mixed-case 2 38 U.S.C. § 714 removal appeal/individual right of
action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
A mixed-case appeal is an appeal filed with the Board alleging that an appealable
agency action was effected because of discrimination. 29 C.F.R. § 1614.302(a)(2).
2
GRANT the appellant’s petition for review. We VACATE the administrative
judge’s analysis of the mixed-case portion of the appeal and REMAND that
portion of the matter to the Western Regional Office for further adjudication. We
AFFIRM the administrative judge’s conclusion that the Board lacks jurisdiction
over the IRA portion of this appeal.
BACKGROUND
On April 2, 2021, the appellant filed a Board appeal challenging his
January 20, 2021 removal from Federal service under 38 U.S.C. § 714.
Lauterbach v. Department of Veterans Affairs, MSPB Docket No. SF-0714-21-
0285-I-1, Initial Appeal File (0285 IAF), Tab 1 at 7-10. The appellant alleged
that his removal was precipitated by both discrimination and whistleblower
retaliation, and he averred that he had filed a complaint with the Office of Special
Counsel (OSC) 3 days prior, on March 30, 2021. Id. at 4-5. Shortly thereafter,
on April 13, 2021, the appellant requested to withdraw his Board appeal,
explaining that he was “filing [a] formal complaint with [the agency’s equal
employment opportunity (EEO) office],” and “[t]hey will not allow EEO and
MSPB complaints together.” 0285 IAF, Tab 5 at 3. The administrative judge
issued a show cause order explaining the legal implications of the appellant’s
withdrawal, i.e., that it was an act of finality that would end the Board proceeding
and providing both parties with an opportunity to object to dismissal of the
appeal. 0285 IAF, Tab 7 at 1-2. Neither party did so. Thereafter, on April 27,
2021, the administrative judge issued an initial decision dismissing the appeal as
withdrawn. 0285 IAF, Tab 8, Initial Decision at 1-2. Neither party filed a
petition for review of the initial decision.
Approximately 6 months later, on October 23, 2021, the appellant filed the
instant appeal alleging that (1) the agency had yet to issue a final agency decision
(FAD) regarding his April 13, 2021 formal EEO complaint and more than
120 days had elapsed since he had filed the same and (2) OSC had yet to issue a
3
decision concerning his March 30, 2021 complaint and more than 120 days had
passed. Initial Appeal File (IAF), Tab 1, Tab 10 at 2-3.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the mixed-case portion of the appeal for lack
of jurisdiction, reasoning that the appellant had previously filed and withdrawn a
Board appeal concerning his removal. IAF, Tab 14, Initial Decision (ID) at 8-10.
She also reasoned that the mixed-case portion of the appeal was untimely because
it had been filed beyond the statutory deadline set forth in 38 U.S.C. § 714(c)(4)
(B), i.e., more than 10 business days after the agency’s removal action. ID at 8.
Regarding the IRA portion of the appeal, the administrative judge concluded,
among other things, that the appellant had failed to make a nonfrivolous
allegation that he had 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). ID at 11-16.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 4. 3
We vacate the administrative judge’s analysis of the mixed-case portion of the
appeal and remand this portion of the appeal for adjudication of the merits.
When, as here, an employee alleges that he was subjected to an otherwise
appealable adverse action that can be the subject of a negotiated grievance
3
With his petition, the appellant provides additional documents, i.e., a copy of a
January 22, 2021 Executive Order, a printout regarding whistleblowing best practices, a
copy of an anonymous complaint made to the agency’s Office of the Inspector General
(OIG), email correspondence suggesting that the appellant contacted OIG on or about
March 4, 2021, and a letter indicating that the appellant’s wife contacted OIG on or
about April 1, 2021. PFR File, Tab 1 at 6-16. The Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).
Here, the appellant provides no explanation as to why he could not submit these
documents prior to the close of the record. In any event, as discussed herein, these
documents are not material to the outcome of this appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision).
4
procedure and he claims that action was based on EEO discrimination, the
employee may choose among the following: (1) a negotiated grievance
procedure; (2) a Board appeal; or (3) a formal EEO complaint. 5 U.S.C.
§ 7121(d); Galloway v. Social Security Administration, 111 M.S.P.R. 78, ¶ 14
(2009). Whichever is filed first is generally deemed a binding, irrevocable
election to proceed in that forum. Carey v. Department of the Interior,
103 M.S.P.R. 534, ¶ 11 (2006). If the employee elects to file a formal EEO
complaint and the agency has not issued FAD within 120 days, the appellant may
file a Board appeal at any time after the expiration of the 120 calendar days.
5 U.S.C. § 7702(a); see 5 C.F.R. §§ 1201.151(a)(1), 1201.154(b)(2). Such an
appeal is known as a mixed case, and the Board will adjudicate both the
underlying appealable action and the discrimination claims. Wilson v.
Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 12, 14.
As stated, the appellant initially raised his discrimination claim regarding
the agency’s January 20, 2021 removal action via his April 2, 2021 Board appeal.
0285 IAF, Tab 1. This mixed-case appeal, however, was untimely filed. See
Davis v. Department of Veterans Affairs, 2022 MSPB 45, ¶¶ 17, 19 (finding that
5 U.S.C. § 7702(a)(1) governs mixed-case section 714 appeals filed directly with
the Board and, therefore, that an appellant is required to file such an appeal
within 30 days of the effective date of the agency’s action or 30 days after the
date of his receipt of the agency’s decision, whichever is later). 4 As a result, the
appellant’s April 2, 2021 Board appeal did not constitute a valid election. See
5 U.S.C. § 7121(d) (stating that “[a]n employee shall be deemed to have
exercised his option under this subsection . . . at such time as the employee timely
4
In her initial decision, the administrative judge stated that the April 2, 2021 appeal
was untimely because it was filed beyond the statutory deadline set forth in 38 U.S.C.
§ 714(c)(4)(B), i.e., more than 10 business days after the agency’s January 20, 2021
removal action. ID at 8. This finding was imprecise. The appellant’s April 2, 2021
appeal was instead untimely because it was not filed within 30 days of the effective date
of the agency’s action or within 30 days after the date of his receipt of the agency’s
decision. See Davis, 2022 MSPB 45, ¶ 17.
5
initiates an action under the applicable statutory procedure”) (emphasis added).
Accordingly, the appellant’s initial, valid election for purposes of 5 U.S.C.
§ 7121(d) was his April 13, 2021 formal EEO complaint. On October 23, 2021,
following the passage of more than 120 days without the issuance of a FAD, the
appellant filed the instant appeal.
The Board has clarified that, if an appellant files an EEO complaint
concerning an adverse action taken pursuant to 38 U.S.C. § 714 and thereafter
files a Board appeal, then that appeal is subject to the procedures contained in
5 U.S.C. § 7702, not 38 U.S.C. § 714. Wilson, 2022 MSPB 7, ¶ 19. Accordingly,
because the agency here failed to issue a FAD regarding the appellant’s EEO
complaint within 120 days, the appellant permissibly, and timely, filed his
mixed-case appeal with the Board on October 23, 2021. 5 U.S.C. § 7702(a)(2),
(e)(2). Accordingly, we remand the mixed-case portion of this matter to the
regional office for adjudication of the merits. 5
We discern no basis to disturb the administrative judge’s conclusion that
the Board lacks jurisdiction over IRA portion of the appeal. 6
5
As stated, the appellant withdrew his initial April 2, 2021 Board appeal. 0285 IAF,
Tab 5 at 3. Although an appellant’s withdrawal of an appeal is typically an act of
finality that removes the appeal from the Board’s jurisdiction and precludes
reinstatement, Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010), the Board
has recognized that unusual circumstances may warrant a departure from this rule, e.g.,
Nazario v. Department of Justice, 108 M.S.P.R. 468, ¶ 4 (2008). Here, we find such
circumstances present; indeed, at the time the pro se appellant filed his April 2, 2021
appeal, his direct mixed-case Board appeal was untimely, and the IRA portion of his
claim was not yet ripe for adjudication. 0285 IAF, Tab 1 at 4-5.
6
Under 5 U.S.C. § 7121(g), an employee subjected to an action appealable to the Board
who alleges that the contested action was because of whistleblowing may elect one of
the following avenues of redress: (1) an appeal to the Board under 5 U.S.C. § 7701;
(2) a grievance filed pursuant to the provisions of a negotiated grievance procedure; or
(3) the procedures for seeking corrective action from OSC, potentially followed by an
IRA appeal. An appellant’s first timely filed action determines the exclusive election.
King v. Department of the Air Force, 116 M.S.P.R. 423, ¶ 8 (2011). Because it is
undisputed that the appellant elected to file a complaint with OSC before he appealed to
the Board, we find it appropriate to consider the appellant’s mixed-case and IRA claims
separately, i.e., the appellant may not raise whistleblower reprisal as an affirmative
defense in the mixed-case portion of his appeal on remand.
6
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence 7 that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations 8 of the following: (1) he made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a protected
activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected 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).
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 11, 14. Here,
the administrative judge concluded that the appellant had failed to make a
nonfrivolous allegation that he had made such a protected disclosure or engaged
in such protected activity and, therefore, that the Board lacks jurisdiction over the
appellant’s IRA appeal. ID at 11-16. In so concluding, she reasoned that the
disclosures at issue, which concerned the agency’s purported medical
mistreatment/misdiagnoses of the appellant’s veteran son, did not involve the
type of wrongdoing protected under the statute. ID at 14. We discern no basis to
disturb any of her conclusions.
For the first time on review, the appellant asserts that he and his wife
informed the agency’s Office of the Inspector General (OIG) about the agency’s
purported medical mistreatment of their son; thus, he ostensibly argues that both
he and his wife engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C). 9
PFR File, Tab 1 at 17. We find this argument untimely and, in any event,
unavailing. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (explaining that the Board generally will not consider an argument raised
7
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
8
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
9
A disclosure of information to OIG constitutes protected activity under 5 U.S.C.
§ 2302(b)(9)(C) regardless of its content. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 62.
7
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence).
Indeed, to support this apparent argument, the appellant provides documents
suggesting that he and his wife contacted OIG on or about March 4, 2021, and
April 1, 2021, respectively. 10 PFR File, Tab 1 at 11-12, 16. Insofar as the
appellant was removed from his position on January 20, 2021, however, this
activity could not have contributed to his removal. See El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that, because the subject
personnel action predated the appellant’s protected disclosure, the disclosure
could not have contributed to the personnel action), aff’d, 663 F. App’x 921 (Fed.
Cir. 2016). Thus, we discern no basis to disturb the administrative judge’s
conclusion that the Board lacks jurisdiction over the IRA portion of this appeal.
ORDER
For the reasons discussed above, we remand the mixed-case portion of this
appeal to the Western Regional Office for further adjudication in accordance with
this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
10
The appellant also provides documents suggesting that his wife anonymously filed an
OIG complaint concerning staffing issues. PFR File, Tab 1 at 13-15. It is unclear when
this particular complaint was filed; however, the date “9/12/2018” appears on the same.
Id. In any event, the appellant does not discernably allege that agency personnel were
aware of this anonymous complaint, which was filed over 2 years prior to his removal,
or its potential connection to him.