Rommie Requena v. Department of Homeland Security , 2022 MSPB 39 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 39Docket No. DA-0752-16-0012-I-3
Rommie Requena,
Appellant,
v.
Department of Homeland Security,
Agency.
December 6, 2022
Benjamin Wick, Esquire and Holly V. Franson, Esquire, Denver, Colorado,
for the appellant.
Grant Gardner, Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision th at
dismissed the appeal of her 30-day suspension and change in position under
5 U.S.C. § 7701 for lack of Board jurisdiction based on a prior election of
remedies. For the reasons set forth in this Opinion and Order, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
appeal to the regional office for further adjudication.
2
BACKGROUND
¶2 On October 14, 2014, the agency issued the appellant a decision notice
suspending her for 30 days and changing her position from Chief Supervisory
Customs and Border Protection Officer to Supervisory Customs and Border
Protection Officer due to various acts of alleged misconduct. 1 Requena v.
Department of Homeland Security, MSPB Docket No. DA-0752-16-0012-I-1,
Initial Appeal File (IAF), Tab 1 at 56-59. The action was to take effect on
October 26, 2014. Id. at 57. The notice advised the appellant of her appeal rights
and stated in relevant part that if she alleged that the action was taken in reprisal
for whistleblowing, then she must elect among filing an appeal with the Board
under 5 U.S.C. § 7701, filing an appeal through an applicable negotiated
grievance procedure if she was a member of a bargaining until, or seeking
corrective action by filing a complaint with the Office of Special Counsel (OSC).
Id. at 57-58. The notice added that an election would be based upon where the
appellant first filed and that if she first sought corrective action with OSC, any
subsequent appeal to the Board would be deemed an individual right of action
(IRA) appeal, meaning the Board only would consider the claim of reprisal for
whistleblowing. Id. at 58.
¶3 When the agency issued the decision notice, the appellant had at least one
whistleblower reprisal complaint pending with OSC. Requena v. Department of
Homeland Security, MSPB Docket No. DA-0752-16-0012-I-2, Appeal File
(I-2 AF), Tab 8 at 12. On October 16, 2014, the appellant contacted OSC and
inquired whether she needed to file a new complaint regarding the 30 -day
suspension and change in position, as she claimed that the agency was taking
1
In the decision notice, the agency characterized the change in positions as a demotion.
Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-0012-
I-1, Initial Appeal File, Tab 1 at 57. As discussed below, the exact nature of the agency
action against the appellant must be addressed on remand.
3
these actions in reprisal for her whistleblowing. Id. at 12, 14. OSC advised the
appellant that she need not file a new complaint, as the allegation would be
considered in her ongoing complaint. Id. at 12. On October 19, 2014, the
appellant asked OSC to investigate the agency’s motives behind the suspension
and change in position. I-2 AF, Tab 4 at 33, 40. The appellant requested that
OSC seek a stay of that disciplinary action on October 23, 2014. Requena v.
Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-1,
Initial Appeal File (W-1 IAF), Tab 6 at 19. OSC did so and the agency agreed to
an informal stay. IAF, Tab 5 at 19; W-1 IAF, Tab 6 at 21.
¶4 On September 17, 2015, the agency advised the appellant that the stay was
over and the 30-day suspension and change in position would take effect, which it
did on September 20, 2015. IAF, Tab 1 at 55. On October 7, 2015, the appellant
filed an appeal with the Board under 5 U.S.C. § 7701 contesting the 30-day
suspension and change in position. 2 IAF, Tab 1. The appellant raised affirmative
defenses, but did not include a whistleblower reprisal claim in this appeal. IAF,
Tab 19 at 4.
¶5 After receiving notice from OSC that it closed her complaint regarding the
30-day suspension and change in position, the appellant proceeded to file an IRA
appeal with the Board on August 8, 2016. 3 W-1 IAF, Tab 1 at 1-6, 60-62. The
administrative judge joined the two appeals for adjudication, though this joinder
2
The Board docketed this appeal as MSPB Docket No. DA-0752-16-0012-I-1. The
appeal was dismissed without prejudice on two occasions and automatically refiled.
I-2 AF, Tab 1 at 1-3, Tab 2 at 1-2; Requena v. Department of Homeland Security,
MSPB Docket No. DA-0752-16-0012-I-3, Appeal File (I-3 AF), Tab 1 at 1-3, Tab 4
at 1-2.
3
The Board docketed this appeal as MSPB Docket No. DA-1221-16-0488-W-1. The
appeal was dismissed without prejudice on two occasions and automatically refiled.
Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-
W-2, Appeal File, Tab 1 at 1-3, Tab 2 at 1-2; Requena v. Department of Homeland
Security, MSPB Docket No. DA-1221-16-0488-W-3, Appeal File, Tab 1 at 1-3, Tab 4
at 1-2.
4
would only be temporary. 4 IAF, Tab 46 at 1-2; infra ¶ 6. It appeared that the
appellant elected to seek corrective action with OSC over the 30 -day suspension
and change in position before filing either of her Board appeals. For this reason,
the administrative judge issued a jurisdictional order on the election of remedies
provision in 5 U.S.C. § 7121(g), directing the parties to respond to the order to
determine whether the Board had jurisdiction over the appeal of the suspension
and change in position under 5 U.S.C. § 7701, or as an IRA appeal. IAF, Tab 45
at 3-6.
¶6 After both parties responded to the order, the administrative judge issued an
initial decision dismissing this appeal for lack of Board jurisdiction. I-2 AF,
Tabs 4, 8-9; Requena v. Department of Homeland Security, MSPB Docket
No. DA-0752-16-0012-I-3, Appeal File (I-3 AF), Tab 27, Initial Decision (I-3 ID)
at 1-14. The administrative judge found that, after receiving notice of her
election rights, the appellant made a knowing and informed binding election to
seek corrective action with OSC for the 30-day suspension and change in position
prior to filing an appeal with the Board. I-3 ID at 1-14. As a result, the
administrative judge concluded that the appellant could only proceed before the
Board with an IRA appeal of the suspension and change in position. I-3 ID at 13;
Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-
0488-W-3, Appeal File (W-3 AF), Tab 30 at 2 n.3. As noted, such an IRA appeal
was pending with the administrative judge at the time of the initial decision in
4
The administrative judge advised the parties to file pleadings for the joined appeals
under MSPB Docket No. DA-1221-16-0488-W-1. IAF, Tab 46 at 2. The parties also
were advised that the records of the previous appeals may be referred to throughout the
adjudication of the joined appeals. I-2 AF, Tab 2 at 1; I-3 AF, Tab 4 at 1; Requena v.
Department of Homeland Security, MSPB Docket No. DA-1221-16-0488-W-2, Appeal
File, Tab 2 at 1; Requena v. Department of Homeland Security, MSPB Docket No. DA-
1221-16-0488-W-3, Appeal File, Tab 4 at 1; see McLaughlin v. Office of Personnel
Management, 62 M.S.P.R. 536, 549 (1994) (noting that the administrative judge
incorporated the record from previous Board appeals of the appellant into the record of
the current appeal), aff’d, 47 F.3d 1181 (Fed. Cir. 1995) (Table).
5
this appeal and, although he did not specifically address the matter, by issuing the
separate initial decision, the administrative judge effectively severed the
previously joined appeals. 5 The appellant’s petition for review followed.
Requena v. Department of Homeland Security, MSPB Docket No. DA-0752-16-
0012-I-3, Petition for Review (PFR) File, Tab 1. The agency responded in
opposition and the appellant filed a reply. PFR File, Tabs 4 -5.
ANALYSIS 6
¶7 Under the 1994 amendments to the Whistleblower Protection Act, an
employee subjected to an action appealable to the Board who alleges that the
contested action was taken in reprisal for whistleblowing may elect to pursue a
remedy through only one of the following remedial processes: (1) an appeal to
the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable
negotiated grievance procedure; or (3) a complaint seeking corrective action from
OSC under 5 U.S.C. §§ 1211-1222. 5 U.S.C. § 7121(g); Johnson v. Department
of Veterans Affairs, 121 M.S.P.R. 695, ¶ 6 (2014), aff’d, 611 F. App’x 496 (10th
Cir. 2015); see 5 C.F.R. § 1209.2(d)(1). If an employee first elects to timely file
an appeal with the Board under 5 U.S.C. § 7701 after being subjected to an action
under chapters 43 or 75 of Title 5 of the United States Code, the burden of proof
is on the agency to provide evidentiary support for its decision. See 5 U.S.C.
§ 7701(c)(1); 5 C.F.R. § 1201.56(a), (b); see also Gonzalez v. Department of
Homeland Security, 114 M.S.P.R. 318, ¶ 11 (2010). An employee also may raise
affirmative defenses, to include a claim that the action appealable to the Board
5
The appellant’s IRA appeal has also come before the Board on petition for review.
See Requena v. Department of Homeland Security, MSPB Docket No. DA-1221-16-
0488-W-3, Petition for Review File, Tabs 5, 9. We have addressed that appeal in a
separate decision.
6
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.
6
was taken in reprisal for whistleblowing. See 5 U.S.C. § 7701(c)(2)(B); Campbell
v. Department of the Army, 123 M.S.P.R. 674, ¶ 11 (2016). This is because
5 U.S.C. § 7701(c)(2)(B) states that an adverse or a performance-based action
appealable to the Board may not be sustained if it is shown “that the decision was
based on any prohibited personnel practice described in [5 U.S.C. §] 2302(b).”
Section 2302(b)(8) prohibits reprisal against an employee for making a
whistleblowing disclosure, while section 2302(b)(9) prohibits reprisal for
engaging in protected activity. The process is similar when an employee elects to
file a grievance under an applicable negotiated grievance procedure, assuming
such procedure provides for resolving affirmative defenses. 5 U.S.C. § 7121(g);
Jones v. Department of Justice, 87 M.S.P.R. 91, ¶ 3 (2000) (noting that the
appellant raised whistleblower reprisal as an affirmative defense to his removal
before an arbitrator); see Jones v. Department of Energy, 120 M.S.P.R. 480,
¶¶ 3-8 (2013) (recognizing that not all negotiated grievance procedures permit
affirmative defenses, such as discrimination allegations), aff’d, 589 F. App’x 972(Fed. Cir. 2014).
¶8 In contrast to the scenarios discussed above, if an employee who is
subjected to an action otherwise appealable to the Board and claims
whistleblower reprisal first elects to seek corrective action with OSC regarding
the agency action, any subsequent appeal to the Board on the matter is limited to
an IRA appeal, resolving the claim of reprisal for whistleblowing disclosures and
activities and nothing else. Corthell v. Department of Homeland Security,
123 M.S.P.R. 417, ¶ 16 (2016); Thompson v. Department of Justice, 61 M.S.P.R.
364, 367 (1994); 5 C.F.R. § 1209.2(c), (d)(2). The remedy first sought by an
aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in other fora. Sherman v. Department of Homeland Security,
122 M.S.P.R. 644, ¶ 12 (2015).
¶9 The administrative judge applied these limitations to find that the instant
appeal must be dismissed for lack of jurisdiction, due to the appellant’s prior
7
election of remedies, i.e., her whistleblower reprisal complaint with OSC. I-3 ID
at 6-13. For the reasons discussed below, we vacate the initial decision and
remand this appeal for the administrative judge to determine whether the
appellant is subject to the election of remedies limitations.
¶10 The controlling election of remedies statute applies to “[a]n aggrieved
employee affected by” certain prohibited personnel practices. 5 U.S.C.
§ 7121(g)(1)-(2). But Title 5 includes multiple distinct definitions of the term
“employee.” One, at 5 U.S.C. § 2105(a), is applicable to all of Title 5, “except as
otherwise provided . . . or when specifically modified.” This provision defines an
“employee” as an “officer and an individual who is (1) appointed in the civil
service by one” of the types of individuals enumerated in the statute acting in
their official capacity; “(2) engaged in the performance of a Federal function
under authority of law or an Executive act;” and (3) subject to the supervision of
an authorized official while engaged in the performance of the duties of his
position. 5 U.S.C. § 2105(a); see Poole v. Department of the Army, 117 M.S.P.R.
516, ¶ 16 (2012); Usharauli v. Department of Health & Human Services,
116 M.S.P.R. 383, ¶ 16 (2011); Special Counsel v. Perkins, 104 M.S.P.R. 148, ¶
14 (2006).
¶11 Another definition of “employee,” found at 5 U.S.C. § 7103(a), is written
more narrowly. In relevant part, this provision defines an “employee” for
purposes of chapter 71 of Title 5 as including “an individual employed in an
agency,” but not “a supervisor or a management official.” 5 U.S.C. § 7103(a)(2);
see 5 U.S.C. § 7103(a)(10)-(11) (defining supervisor and management official). 7
This is particularly relevant because the election of remedies statute for “an
7
Title 5, section 7511(a)(1) sets out yet another, different definition of “employee” that
applies specifically to Title 5, chapter 75, subchapter II. See, e.g., Bryant v.
Department of the Army, 2022 MSPB 1, ¶ 8 (discussing the definition of “employee” for
purposes of adverse action appeal rights to the Board under chapter 75 of Title 5).
8
aggrieved employee” falls within chapter 71 and is, therefore, subject to this
narrower definition of “employee” than the general definition in 5 U.S.C.
§ 2105(a). 5 U.S.C. § 7121(g). As a consequence, “supervisors” and
“management officials” are excepted from the election of remedies provisions
described in 5 U.S.C. § 7121(g). 8
¶12 The U.S. Court of Appeals for the Federal Circuit recognized this very issue
while the instant appeal was pending on review. In a nonprecedential decision,
the court vacated a Board initial decision that had dismissed an individual’s
chapter 75 appeal for lack of jurisdiction due to her prior pursuit of the same
matter with OSC. Kammunkun v. Department of Defense, 800 F. App’x 916, 917
(Fed. Cir. 2020). 9 The court explained that the individual at issue was a
“supervisor,” so she was not bound by the election of remedies provisions in
5 U.S.C. § 7121(g), or the associated regulatory provision at 5 C.F.R.
§ 1209.2(d). Id.¶13 We recognize that the Board’s regulatory provision, 5 C.F.R. § 1209.2(d),
discusses the election of remedies requirements in the statute, 5 U.S.C. § 7121(g),
without expressly mentioning the applicable definition of “employee” found at
5 U.S.C. § 7103(a)(2). Nevertheless, like the court in Kammunkun, we find that
5 C.F.R. § 1209.2(d) must be interpreted as applying only to individuals who
meet the definition of employee found at 5 U.S.C. § 7103(a)(2).
¶14 We also recognize that the Board previously has issued decisions that did
not address how 5 U.S.C. § 7103(a)(2) excepts supervisors and management
officials from the election of remedies provisions of 5 U.S.C. § 7121(g). For
8
“The starting point in interpreting a statute is its language; for ‘[i]f the intent of
Congress is clear, that is the end of the matter.” Good Samaritan Hospital v. Shalala,
508 U.S. 402, 409 (1993).
9
The Board may follow a nonprecedential decision of a court when it finds its
reasoning persuasive, as we do here. Edwards v. Department of Labor, 2022 MSPB 9,
¶ 16 n.6.
9
example, the Board implied that certain appellants were subject to
section 7121(g), despite appearing to be supervisors or management officials.
See, e.g., Corthell, 123 M.S.P.R. 417, ¶¶ 2, 15-17 (applying section 7121(g) to a
Supervisory Criminal Investigator); Edwards v. Department of the Air Force,
120 M.S.P.R. 307, ¶¶ 2, 12-13 (2013) (applying section 7121(g) to a Supervisory
Bowling Facility Manager). To the extent that these or any similar decisions find
that the election of remedies statute of 5 U.S.C. § 7121(g) is applicable to
supervisors and management officials, they are hereby overruled.
¶15 In the instant matter, it is undisputed that the appellant held the position of
Chief Supervisory Customs and Border Protection Officer prior to the 30-day
suspension and change in position to Supervisory Customs and Border Protection
Officer that she challenged in the instant appeal. E.g., IAF, Tab 1 at 56-57, Tab 5
at 5. While proposing and effectuating those actions, the agency alluded to the
appellant as holding a “supervisory position” and “high-level supervisory
position.” E.g., IAF, Tab 1 at 56-57, Tab 5 at 21. These descriptors suggest that
the appellant is a “supervisor,” as defined by 5 U.S.C. § 7103(a)(10), rather than
an “employee,” as defined by 5 U.S.C. § 7103(a)(2). If that is so, the appellant is
not subject to the election of remedies provision s of 5 U.S.C. § 7121(g).
However, the nature of the appellant’s position as it relates to this statutory
scheme was not argued below or on review. We therefore find it appropriate to
remand this appeal for further proceedings.
¶16 On remand, the administrative judge should first give the parties an
opportunity to present argument and evidence about the nature of the appellant’s
position. If the administrative judge determines that the appellant is a
“supervisor or a management official,” and not an “employee” for purposes of
chapter 71, subject to the election of remedies provisions at 5 U.S.C. § 7121(g),
he must then determine whether the Board otherwise has jurisdiction over this
appeal. If the administrative judge finds that the appellant has established
jurisdiction, he should develop the record and adjudicate the appeal on the
10
merits. 10 In a remand decision, the administrative judge should include a new
jurisdictional determination and a decision on the merits, as appropriate.
ORDER
¶17 For the reasons discussed above, we GRANT the petition for review,
VACATE the initial decision, and REMAND this appeal to the Dallas Regional
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
/s/______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
10
As noted, the agency suspended the appellant for 30 days and assigned her to a
different position, which in the decision notice the agency characterized as a demotion.
IAF, Tab 1 at 57. While a determination of whether the appellant suffered an
appealable reduction in grade or pay is not necessary to establish the Board’s
jurisdiction because a 30-day suspension is an appealable action pursuant to 5 U.S.C.
§ 7512(2), on remand the administrative judge should determine the precise nature of
the agency’s action.