Opinion

Mary Rea v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: May 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

discussing the difficulties an individual may have in obtaining a copy of their OSC complaint

How later courts described this case

discussing the difficulties an individual may have in obtaining a copy of their OSC complaint

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARY C. REA, DOCKET NUMBER

Appellant, CH-1221-18-0397-W-1

DEPARTMENT OF VETERANS DATE: May 29, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mary C. Rea , Chesterfield, Missouri, pro se.

Erin E. Milligan , Esquire, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her 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;

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We VACATE the administrative

judge’s analysis of whether the appellant exhausted her administrative remedies

and FIND instead that the appellant exhausted her administrative remedies. We

AFFIRM the administrative judge’s conclusion that the appellant did not make a

nonfrivolous allegation of a whistleblowing disclosure, and thus, the Board lacks

jurisdiction over the appeal. Except as expressly modified by this Order, we

AFFIRM the initial decision.

BACKGROUND

The appellant was employed by the agency as a Veterans Claims Examiner.

Initial Appeal File (IAF), Tab 5 at 3. On April 17, 2017, the appellant filed a

complaint of possible prohibited personnel practice or other prohibited activity

with the Office of Special Counsel (OSC). Petition for Review (PFR) File, Tab 6

at 7-14. Among other things, the appellant alleged that her supervisor committed

privacy violations and engaged in other improper conduct, that she confronted her

supervisor about some of this conduct, and that she believed she was about to be

suspended or terminated. Id. at 12-14. Effective August 20, 2017, the appellant

was removed from her position on charges of absence without leave, misuse of

Government equipment, and failure to follow instructions. IAF, Tab 1 at 7,

Tab 14 at 2, 4. On March 30, 2018, OSC closed its investigation into the

appellant’s complaint and informed her of her right to seek corrective action with

the Board. IAF, Tab 5 at 5. The appellant thereafter filed this IRA appeal. IAF,

Tab 1.

The administrative judge informed the appellant of how to establish the

Board’s jurisdiction in an IRA appeal. IAF, Tab 3. In his initial decision, the

administrative judge found that the appellant failed to nonfrivolously allege that

she made a whistleblowing disclosure that was exhausted with OSC, and he

therefore dismissed her IRA appeal for lack of jurisdiction. IAF, Tab 21, Initial

Decision (ID) at 4, 9-12. On petition for review, the appellant indicates that she

never intended to allege that she suffered reprisal for whistleblowing, and she

asks for the Board to appoint an attorney for her, to replace the agency attorney,

and to provide her additional time to submit evidence. PFR File, Tab 1 at 10.

The agency has filed a response. 2 PFR File, Tab 3. The appellant has also filed a

supplement to her petition, which includes her OSC complaint and some of her

correspondence with OSC regarding a Freedom of Information Act (FOIA)

request. 3 PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board

The agency asserts that the appellant admitted that her petition for review was

untimely filed. PFR File, Tab 3 at 4. However, the Office of the Clerk of the Board has

already determined that her petition for review was timely filed. PFR File, Tab 2.

The appellant filed a sworn statement below, claiming that she never received a copy

of the agency’s proposal or decision letters. IAF, Tab 14 at 4. In light of the due

process and election of remedies implications, the Board issued a show cause order

directing the agency to submit evidence and argument on the issue. PFR File, Tab 7. In

response to the order, the agency submitted evidence showing that it timely delivered

both the proposal and decision letters to the appellant’s home address. PFR File,

Tab 8 at 47-72. The appellant does not dispute this evidence. To the extent that the

evidence shows that the appellant refused these deliveries, we find that she

constructively received the subject documents under 5 C.F.R. § 1201.22(b)(3).

jurisdiction over an IRA appeal, the appellant must exhaust her administrative

remedies before OSC and make nonfrivolous allegations that (1) she made a

whistleblowing disclosure 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, fail to take, or threaten to take a personnel action as defined by 5 U.S.C.

§ 2302(a). Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.

Cir. 2001); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

We will consider the appellant’s evidence on petition for review.

For the first time on review, the appellant submits a number of documents,

including her April 2017 OSC complaint, and October and November 2018

correspondence with OSC about FOIA requests that she filed. PFR File, Tab 1

at 13-14, Tab 6 at 7-17. The issue of the Board’s jurisdiction is always before the

Board and may be raised by either party or sua sponte by the Board at any time

during a Board proceeding. Simnitt v. Department of Veterans Affairs,

113 M.S.P.R. 313, ¶ 5 (2010); see Delgado v. Merit Systems Protection Board,

880 F.3d 913, 920-21 (7th Cir. 2018) (discussing the difficulties an individual

may have in obtaining a copy of their OSC complaint). Accordingly, we have

considered the documents submitted by the appellant on review.

Based on our review of her petition for review submissions, we find that the

appellant exhausted her administrative remedy with OSC. 4

Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective

action from [OSC] before seeking corrective action from the Board” through an

In the initial decision, the administrative judge noted that the appellant failed to make

a nonfrivolous allegation of a protected disclosure that was exhausted with OSC. E.g.,

ID at 1-2, 4, 9, 12. We believe that these statements improperly conflate the

requirement to prove exhaustion and the requirement to make a nonfrivolous allegation

of a protected disclosure. Accordingly, we modify the initial decision to vacate the

administrative judge’s exhaustion analysis, find instead that the appellant exhausted her

administrative remedies with OSC, and affirm the administrative judge’s conclusion

that she did not make a nonfrivolous allegation of a whistleblowing disclosure.

IRA appeal. Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3,

¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The substantive

requirements of exhaustion are met when an appellant has provided OSC with a

sufficient basis to pursue an investigation. Chambers v. Department of Homeland

Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is

limited to those issues that have been previously raised with OSC, but appellants

may give a more detailed account of their whistleblowing activities before the

Board than they did to OSC. Id. Appellants may demonstrate exhaustion of their

OSC remedies with evidence regarding their initial OSC complaint and other

communications with OSC concerning their allegations. See Baldwin v.

Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 (2010).

In her OSC complaint, the appellant stated that she suffered retaliation

because her supervisor “was called out for [a] privacy violation” on March 4,

2016. PFR File, Tab 6 at 12. The appellant also informed OSC that, on or about

February 18, 2016, a coworker sent her an email concerning her “work load

which immediately revealed that [the supervisor] was violating [the appellant’s]

privacy by discussing [her and her] workload with [the coworker].” Id. at 13.

OSC’s close-out letter stated that the appellant asserted reprisal for her disclosure

that her privacy was violated when her coworker sent her an email on

February 18, 2016, about her workload. IAF, Tab 5 at 5. 5 We therefore modify

the initial decision to find that the appellant exhausted her administrative

remedies with OSC. 6

OSC’s letter further stated that the appellant alleged that the agency had placed her in

absence without leave status and subsequently removed her in reprisal for her

disclosure. IAF, Tab 5 at 5.

The appellant alleged below that “two disclosure emails” that she sent on August 17,

2016, and December 29, 2016, could have been a contributing factor in everything that

happened to her thereafter. IAF, Tab 19 at 5, 9, 11. The appellant further indicated that

she was retaliated against for threatening to have her supervisor arrested in or about

December 2016. IAF, Tab 1 at 7-9. Although the appellant indicates that she filed

“[a]dditional complaints” with OSC after April 17, 2017, PFR File, Tab 6 at 3-4, the

record contains no evidence of such filings, any other correspondence between the

The appellant failed to nonfrivolously allege that she made a whistleblowing

disclosure.

After determining that the appellant proved exhaustion, we must next

consider whether the appellant has nonfrivolously alleged that she made a

whistleblowing disclosure or engaged in protected activity. See Salerno,

123 M.S.P.R. 230, ¶ 5; Carney v. Department of Veterans Affairs, 121 M.S.P.R.

446, ¶ 5 (2014). A nonfrivolous allegation of a protected disclosure is an

allegation of fact that, if proven, would show that the appellant disclosed a matter

that a reasonable person in her position would believe evidenced one of the

categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). See Salerno,

123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower

has a reasonable belief in the disclosure is an objective one: whether a

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

ascertainable by the employee could reasonably conclude that the actions of the

agency evidenced a violation of law, rule, or regulation, gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety. Id. The disclosures must be specific and detailed, not

vague allegations of wrongdoing. Id.

To make a protected disclosure of a violation of law, rule, or regulation, an

individual ordinarily must identify the specific law, rule, or regulation that was

violated. Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 24 (2015).

However, an employee need not identify a statutory or regulatory provision by a

title or number when the statements and the circumstances surrounding the

making of those statements “clearly implicate an identifiable violation of law,

rule, or regulation.” Id. (quoting Langer v. Department of the Treasury, 265 F.3d

appellant and OSC regarding her complaints, or any statements made under penalty of

perjury regarding the nature of the additional complaints that she made to OSC.

Accordingly, because there is no evidence whatsoever that the appellant informed OSC

about the purported disclosures that she made in August and December 2016, or of the

threat of arrest she made against her supervisor, the Board lacks jurisdiction over any

claim of reprisal she may have suffered for such actions.

1259, 1266 (Fed. Cir. 2001)). These requirements apply equally to pro se

appellants. Langer, 265 F.3d at 1262, 1266.

Here, the record reflects that the appellant disclosed to her supervisor that

she (the supervisor) violated her privacy by discussing her workload with one of

her coworkers. IAF, Tab 19 at 5; PFR File, Tab 6 at 12-13. The appellant does

not state what, specifically, the supervisor revealed about her workload, or

explain why she believed that she had a right to have that information kept

private. The appellant has not identified any specific law, rule, or regulation that

her supervisor’s actions would have violated, nor are we aware of any laws, rules,

or regulations which are implicated by the alleged acts. Accordingly, we find that

the appellant has failed to nonfrivolously allege that her disclosure evidenced a

violation of any law, rule, or regulation. See Ayers, 123 M.S.P.R. 11, ¶ 24

(finding that the appellant’s allegation of an improper relationship was not a

protected disclosure).

An abuse of authority occurs when there is an arbitrary or capricious

exercise of power by a Federal official or employee that adversely affects the

rights of any person or results in personal gain or advantage to herself or

preferred other persons. Pasley v. Department of the Treasury, 109 M.S.P.R.

105, ¶ 18 (2008). There is no de minimis standard for abuse of authority as a

basis of a protected disclosure. Id. Harassment or intimidation of other

employees may constitute an abuse of authority. Id. A supervisor’s use of her

influence to denigrate other staff members in an abusive manner and to threaten

the careers of staff members with whom she disagrees constitutes abuse of

authority. Id.

Here, the appellant has provided virtually no details about what,

specifically, the supervisor allegedly said to the coworker about the appellant’s

workload. IAF, Tab 19 at 5; PFR File, Tab 6 at 12-13. We therefore find that a

disinterested observer could not reasonably conclude that the supervisor’s alleged

statement constituted an abuse of authority. See Mc Corcle v. Department of

Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005) (finding that vague allegations of

wrongdoing, lacking in specific detail, fail to rise to the level of nonfrivolous

allegations of a protected disclosure).

Gross mismanagement means a management action or inaction that creates

a substantial risk of significant adverse impact on the agency’s ability to

accomplish its mission. Swanson v. General Services Administration,

110 M.S.P.R. 278, ¶ 11 (2008). Here, a reasonable person could not conclude

that the supervisor’s alleged statements about the appellant’s workload

constituted gross mismanagement. We also are not persuaded that the appellant’s

disclosure constituted a nonfrivolous allegation of a substantial and specific

danger to public health or safety. Accordingly, we find that the appellant has

failed to make a nonfrivolous allegation of a whistleblowing disclosure and has

therefore failed to establish the Board’s jurisdiction over this appeal. 7 Because of

this finding, we need not address whether the appellant made a nonfrivolous

allegation of contributing factor.

The appellant has failed to establish any other basis for granting the petition for

review.

On review, the appellant states the following:

In its closeout letter, OSC characterized my claims as a result of

whistleblowing reprisal along with numerous misstatements of facts.

They are not and have never been. I completed Form OSC-11 which

is for “COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL

PRACTICE OR OTHER PROHIBITED ACTIVITY.” Part 2 of that

form, “Reprisal for Whistle blowing[,]” was never completed by me.

I also did not complete Form OSC-12 “INFORMATION ABOUT

FILING A WHISTLEBLOWER DISCLOSURE WITH THE OFFICE

OF SPECIAL COUNSEL”.

Additionally, in her OSC complaint, the appellant indicated that she filed a complaint

with the Equal Employment Opportunity Commission in September 2016, filed a

grievance in December 2016, her spouse reported her issues to the agency Inspector

General in December 2016, and she would “soon” report her issues to a member of

Congress. PFR File, Tab 6 at 8. The appellant has not specifically alleged in this

appeal that she suffered reprisal for these activities.

PFR File, Tab 1 at 10 (grammar and capitalization as in original). We construe

the appellant’s statements on review as an indication that she never intended to

allege that she suffered reprisal for whistleblowing; rather, it appears that she is

seeking adjudication of the underlying removal action. In an IRA appeal, the

Board lacks the authority to adjudicate the merits of the underlying personnel

action; rather, our jurisdiction is limited to adjudicating the whistleblower

allegations. Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7

(2015). Accordingly, to the extent that the appellant asks the Board to adjudicate

the underlying removal in this IRA appeal, we lack jurisdiction to do so.

In her petition for review submission, the appellant asks “to resume this

appeal in July or August 2019,” after she recovers from surgery scheduled in

March 2019. PFR File, Tab 6 at 3. This request appears moot. As of the date of

this Order, the appellant has not provided any additional evidence.

On review, the appellant also requests that the Board appoint an attorney to

represent her. PFR File, Tab 1 at 10. It is the appellant’s obligation to secure

representation because there is no law, rule, or regulation requiring the Board to

appoint counsel for her. See Rosado v. Department of the Air Force, 46 M.S.P.R.

539, 541 n.1 (1991). Her request is therefore denied.

The appellant additionally requests a copy of the agency file, and that the

agency attorney, whom she claims failed to comply with the administrative

judge’s order to produce the agency file, be replaced. PFR File, Tab 1 at 10. In

his May 25, 2018 acknowledgement order, the administrative judge ordered the

agency to produce the materials listed on an enclosed schedule, along with other

information required by 5 C.F.R. § 1201.25, within 20 calendar days. IAF, Tab 2

at 6-7. In its June 5, 2018 motion to dismiss and to stay deadlines, the agency

requested a stay of its deadlines pending a decision on jurisdiction. IAF, Tab 7

at 12. The administrative judge did not rule on that request, and the agency never

produced the required documentation.

The Board will normally only consider an argument raised for the first time

on review if it is based on new and material evidence not previously available

despite the petitioner’s due diligence. Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). In none of the 12 pleadings

that the appellant filed with the Board between when the agency file was due and

the issuance of the initial decision did she argue that the agency failed to comply

with the acknowledgement order by failing to submit the agency file or otherwise

argue that the agency representative should be disqualified. IAF, Tabs 8-12,

14-20. Even if we consider this argument, the appellant has not explained how

production of the agency file would enable her to make a nonfrivolous allegation

of Board jurisdiction. We therefore deny her request. We also deny her request

to replace the agency attorney.

NOTICE OF APPEAL RIGHTS 8

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 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.

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.

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

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. 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:

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. 9 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).

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.

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