Keith Talley v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITH FRANKLIN TALLEY, DOCKET NUMBER

Appellant, AT-1221-19-0132-W-1

v.

DEPARTMENT OF VETERANS DATE: May 14, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Keith Franklin Talley , Nunnelly, Tennessee, pro se.

Charles Andrew Bates , Louisville, Kentucky, for the agency.

Lois F. Prince , Nashville, Tennessee, 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 individual right of action (IRA) appeal for lack of jurisdiction. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Atlanta Regional

Office for further adjudication in accordance with this Remand Order.

BACKGROUND

The appellant, a GS-06 Program Assistant for the agency’s Tennessee

Valley Healthcare System (TVHS) in Nashville, Tennessee, contends that the

agency did not select him for numerous positions in reprisal for protected

whistleblowing activity. Initial Appeal File (IAF), Tab 1 at 7. Beginning in

2012, he raised concerns both inside and outside the agency that the agency

violated 5 C.F.R. § 300.605 by failing to credit his service in higher-graded

legislative branch positions as time in those grades when not selecting him for

various vacancies. E.g., IAF, Tab 1 at 11, Tab 9 at 7, 9, 11, 18-19. In March

2018, the agency agreed, at least as to some of the vacancies for which it did not

select the appellant. IAF, Tab 6 at 14. Specifically, it determined that the

appellant’s higher-graded legislative service was initially not credited in its

review of the applications. Id. The agency concluded that the error and

associated eligibility certificates were corrected prior to referral to the hiring

official. Id. The appellant disputes their conclusion. Id. at 4.

With his appeal, the appellant submitted copies of the complaint he filed

with the Office of Special Counsel (OSC) and the letter in which OSC notified

him of his right to seek corrective action from the Board. IAF, Tab 1 at 8-16,

Tab 6 at 11-13. The administrative judge provided the appellant with notice of

how to establish jurisdiction over his appeal. IAF, Tab 2. In response, the

appellant alleged that, in reprisal for his alleged protected disclosures of the

agency’s errors as to his time-in-grade, the agency continued to find that he did

not meet the time-in-grade requirement for numerous positions. IAF, Tab 6 at 4,

Tab 9 at 4. He also claimed that he had disclosed that the agency had enrolled

veterans seeking care at TVHS into the Choice Program, under the Veterans

3

Access, Choice, and Accountability Act of 2014, without seeking their

permission. IAF, Tab 6 at 4-5.

On the written record, and without elaboration, the administrative judge

found that the appellant had “exhausted his administrative remedy before OSC

with respect to the alleged protected disclosures and personnel actions he raised

before OSC.” IAF, Tab 11, Initial Decision (ID) at 3. He then found that the

appellant made a nonfrivolous allegation that the agency had repeatedly not

selected him following his protected disclosure that, in previous nonselections, it

had ignored the requirements of 5 C.F.R. § 300.605 concerning his time-in-grade.

ID at 3-5. Nevertheless, because the appellant had failed to conclusively identify

any management official involved in those nonselections that also had any

knowledge of his disclosures, the administrative judge found that the appellant

failed to make a nonfrivolous allegation that his protected disclosures were a

contributing factor in his nonselections. ID at 5-7. Thus, the administrative

judge dismissed the appeal for lack of jurisdiction. ID at 7.

In his petition for review, the appellant identifies several specific

individuals that he alleges were aware of his protected disclosures considering

prohibited personnel practices and inappropriately enrolling veterans into the

Choice Program. Petition for Review (PFR) File, Tab 1 at 4-7. He provides

additional documentation in support of his arguments. Id. at 8-21. The agency

has responded to the appellant’s petition for review, and the appellant has filed a

reply to the agency’s response. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant established jurisdiction over his claim that the agency did not select

him in reprisal for his disclosure that, in previous nonselections, it had ignored

the requirements of 5 C.F.R. § 300.605 concerning his time-in-grade.

Under the Whistleblower Protection Enhancement Act of 2012, the Board

has jurisdiction over an IRA appeal if the appellant has exhausted his

administrative remedies before OSC and makes nonfrivolous allegations that

4

(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or

engaged in 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016). Once an appellant establishes jurisdiction over his IRA appeal, he is

entitled to a hearing on the merits of his claim, which he must prove by

preponderant evidence. Id. If the appellant proves that his protected disclosure

or activity was a contributing factor in a personnel action taken against him, the

agency is given an opportunity to prove, by clear and convincing evidence, that it

would have taken the same personnel action in the absence of the protected

disclosure. Id. (citing 5 U.S.C. § 1221(e)(1)-(2)).

The administrative judge found that the appellant exhausted his

administrative remedy before OSC without identifying the alleged disclosures and

personnel actions the appellant raised before OSC. ID at 3. He then determined

that the appellant had made a protected disclosure, finding that a disinterested

observer with knowledge of the essential facts known to and readily ascertainable

by the appellant could reasonably conclude that he disclosed a violation of law,

rule, or regulation, concerning the agency’s alleged failure to properly credit his

time served in the legislative branch. ID at 3-4 (citing Lachance v. White,

174 F.3d 1378, 1381 (Fed. Cir. 1999)). Next, he found that the nonselections the

appellant claimed qualified as personnel actions under whistleblower statutes. ID

at 5 (citing Ruggieri v. Merit Systems Protection Board, 454 F.3d 1323, 1327

(Fed. Cir. 2006) (finding that a nonselection is a personnel action for the purposes

of an IRA appeal)); IAF, Tab 1 at 14-15. The parties do not dispute these

findings, and we discern no reason to disturb them.

Nevertheless, the administrative judge found that the appellant failed to

make a nonfrivolous allegation that his protected disclosures were a contributing

factor in a personnel action because he failed to conclusively identify any

5

management official involved in any of the alleged nonselections that knew of his

disclosures. ID at 6. Because the appellant failed to make a nonfrivolous

allegation that his protected disclosures were a contributing factor in a personnel

action, the administrative judge dismissed his IRA appeal for lack of jurisdiction.

ID at 7.

The administrative judge used an incorrect standard to evaluate the

appellant’s assertion that his disclosure was a contributing factor in his

nonselections. When the personnel action at issue is a nonselection, an appellant

can meet his burden to receive a hearing on his whistleblowing claim without

specifically identifying which management officials were responsible for the

reprisal. Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 16

(2016). Thus, the appellant’s assertion that agency officials did not select him in

reprisal for his protected disclosures is a nonfrivolous allegation that his

disclosures were a contributing factor in the agency’s decisions. Id.

Accordingly, he has established jurisdiction over his IRA appeal, and we must

remand the appeal for a hearing on the appellant’s whistleblowing claim.

The appellant did not exhaust his administrative remedy before OSC with respect

to his alleged disclosure concerning the Choice Program.

An employee is required to seek corrective action from OSC before seeking

corrective action from the Board, and the Board may only consider

those disclosures of information that the appellant raised before OSC. Ormond v.

Department of Justice, 118 M.S.P.R. 337, ¶ 5 (2012); Mason v. Department of

Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). 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. Mason,

116 M.S.P.R. 135, ¶ 8.

6

The administrative judge found that the appellant exhausted his

administrative remedy with respect to the alleged protected disclosures and

personnel actions he raised before OSC. ID at 2-3; IAF, Tab 1 at 14-15.

Although the initial decision did not specifically identify the disclosures the

appellant exhausted, the administrative judge only considered the appellant’s

disclosure concerning the agency’s alleged violation of 5 C.F.R. § 300.605. ID

at 3-4. He did not discuss the appellant’s claim that he made a protected

disclosure that the agency inappropriately enrolled veterans in the Choice

Program without their knowledge. IAF, Tab 6 at 4-5. The appellant reiterates

that claim on review. PFR File, Tab 1 at 4. With his petition for review, he

provides additional documentation concerning, among other things, the Choice

Program. Id. at 7-9. 2

The administrative judge advised the appellant of how to demonstrate

exhaustion of his administrative remedies before OSC. IAF, Tab 3 at 2.

Nevertheless, the appellant provided no evidence indicating that he raised

his disclosure concerning the Choice Program before OSC, either below

or on review. His OSC complaint solely identifies the disclosure concerning

5 C.F.R. § 300.605 and does not mention any disclosure concerning the Choice

Program. IAF, Tab 1 at 8-13. OSC’s closing letter similarly restricts its findings

2

Under 5 C.F.R. § 1201.115, the Board 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. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980). The appellant makes no such showing.

Nevertheless, because the documents that the appellant submits on review, PFR File,

Tab 1 at 7-21, Tab 4 at 7-14, do not show that the appellant exhausted his

administrative remedies before OSC on his purported disclosure concerning the Choice

Program, even if we were to consider them, the documents do not demonstrate that the

administrative judge erred in tacitly finding that the appellant failed to establish that he

had exhausted this disclosure. To the extent that these documents address the

contributing factor issue pertaining to his disclosures concerning the agency’s alleged

violation of 5 C.F.R. § 300.605, PFR File, Tab 1 at 6, 10-21, Tab 4 at 7-14, because we

have found that the appellant established jurisdiction over this claim, we find it

unnecessary to address these documents. On remand, the appellant may resubmit these

documents, as appropriate, as evidence in support of the merits of his appeal.

7

to the appellant’s alleged disclosure concerning the agency’s alleged violation of

5 C.F.R. § 300.605. Id. at 14-16; IAF, Tab 6 at 11-13. Thus, the appellant failed

to establish that he exhausted this disclosure before OSC. To the extent that, by

raising this purported disclosure on review, the appellant intends to challenge the

administrative judge’s tacit finding that he failed to exhaust this disclosure,

because he fails to demonstrate in his petition for review that he raised the issue

before OSC, such a challenge must fail.

In conclusion, we find that the appellant has made nonfrivolous allegations

of fact sufficient to establish jurisdiction over his claim that the agency did not

select him in reprisal for his disclosures that it failed to properly credit his

time-in-grade under 5 C.F.R. § 300.605, and he is entitled to a hearing on the

merits. Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5.

Accordingly, we vacate the initial decision and remand the case to the

Atlanta Regional Office for further adjudication consistent with this Order.

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. 3

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

3

In the remand initial decision, the administrative judge may reincorporate prior

findings as appropriate, consistent with this Remand Order.