Chase Lentz v. Department of the Interior ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHASE M. LENTZ, DOCKET NUMBER
Appellant, SF-1221-15-0688-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: June 30, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chase M. Lentz, Fresno, California, pro se.
Christine Foley and Kevin Mack, Sacramento, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
found jurisdiction over some of the claims he raised in this individual right of
action (IRA) appeal, denied the appellant’s request for corrective action over
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
those claims, and dismissed the appellant’s remaining claims for lack of
jurisdiction. The initial decision also dismissed the appellant’s claim of
involuntary retirement under the doctrine of collateral estoppel. Generally, we
grant petitions such as this one only when: 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 affe cted 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. See
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, except
as expressly MODIFIED by this Final Order to find that the administrative judge
improperly applied collateral estoppel to bar the appellant’s claim that his
resignation was involuntary, the appellant nonfrivolously alleged that his
February 5, 2014 protected disclosure was a contributing factor in the proposed
14-day suspension under the knowledge-timing test, and the appellant did not
prove that his November 18, 2014 disclosure was protect ed, we AFFIRM the
initial decision.
BACKGROUND
¶2 On May 15, 2014, the agency issued the appellant a letter of reprimand
(LOR) based on charges of acting outside the scope of his authority and conduct
unbecoming. Initial Appeal File (IAF), Tab 6 at 68. On November 13, 2014, the
agency again charged him with acting outside the scope of his authority and
conduct unbecoming, and proposed a 14-day suspension. Id. at 49. In a
3
February 10, 2015 decision letter, the deciding official sustained both charges
underlying the proposed suspension. IAF, Tab 6 at 31. The suspension penalty
was to be effective February 15, 2015. Id. On February 11, 2015, the
appellant notified the agency that he was resigning from his position, effective
February 13, 2015. Id. at 24. He indicated that his resignation was the result of a
hostile work environment. Id.¶3 The appellant filed an IRA appeal alleging that the agency retaliated
against him for whistleblowing activity by issuing the LOR, by suspending him
effective February 15, 2015, and by harassing him and constructively discharging
him effective February 13, 2015, the effective date of his resignation. 2
IAF, Tab 1. The administrative judge dismissed the appellant’s constructive
discharge/involuntary retirement claim under the doctrine of collateral estoppel.
IAF, Tab 25, Initial Decision (ID) at 5-8. The administrative judge also found
that the Board has jurisdiction over a portion of the appeal pursuant to 5 U.S.C.
§ 1221, but he denied the appellant’s request for corrective action for those
claims. The administrative judge dismissed the remaining portion of the appeal
for lack of jurisdiction. ID at 8-32.
¶4 Specifically, the administrative judge found that the app ellant exhausted his
administrative remedy before the Office of Special Counsel (OSC), and
established jurisdiction over the following disclosures: (1) an October 23, 2013
statement concerning removing a literary quotation from the appellant’s work
space; (2) a February 5, 2014 allegation that the appellant’s supervisor made false
2
The appellant previously filed an appeal alleging that his resignation was involuntary,
which was dismissed for lack of jurisdiction. The appellant filed a petition for review
which the Board denied, affirming the initial decision. Lentz v. Department of the
Interior, MSPB Docket No. SF-0752-15-0363-I-1, Final Order (Jan. 11, 2016).
The U.S. Court of Appeals for the Federal Circuit vacated the Board’s decision and
remanded the appeal for further consideration of the appellant’s claims, which the
Board will adjudicate in a separate appeal. Lentz v. Merit Systems Protection Board,
876 F.3d 1380, 1386 (Fed. Cir. 2017); Lentz v. Department of the Interior,
MSPB Docket No. SF-0752-15-0363-R-1.
4
statements and withheld facts, which resulted in disciplinary action being taken
against the appellant; and (3) the appellant’s November 18, 2014 statement that
his supervisor was trying to coerce and intimidate him into not using his sick or
Family and Medical Leave Act of 1993 (FMLA) leave. ID at 10; IAF, Tab 1.
The administrative judge also found that the appellant exhausted his remedy
before OSC regarding his claim that the agency retaliated against him for his
equal employment opportunity (EEO) activity. ID at 10; IAF, Tab 1.
¶5 The administrative judge further found that the appellant exhausted his
remedy before OSC regarding his claim that, in reprisal for his protected acti vity,
the agency (1) issued him an LOR, (2) proposed his suspension, and (3) harassed
him. ID at 10. However, the administrative judge found that the appellant did
not exhaust his remedy before OSC concerning his claims that the agency both
constructively and actually suspended him. Id. Additionally, the administrative
judge found that the appellant failed to prove that he exhausted his remedy with
OSC regarding numerous other disclosures 3 the appellant identified in his appeal.
Finally, the administrative judge found that the Board lacks jurisdiction over the
appellant’s claim of reprisal for filing an EEO complaint. ID at 31-32.
Accordingly, the administrative judge dismissed the appellant’s involuntary
resignation claim pursuant to the doctrine of collateral estoppel, he denied
corrective action for claims over which the Board has jurisdiction, and he
dismissed the remaining claims for lack of jurisdiction. ID at 32.
¶6 The appellant has filed a petition for review of the initi al decision. 4 Petition
for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
3
The administrative judge identified these alphabetically as disclosures (a) – (t).
ID at 11-14.
4
The appellant challenges the administrative judge’s determination that he is
collaterally estopped from arguing that his resignation amounted to a constructive
discharge. Based on the court’s decision in Lentz v. Merit Systems Protection Board,
876 F.3d 1380, 1386 (Fed. Cir. 2017), which held that collateral estoppel could not
apply to the appellant’s constructive discharge claim, we agree. Thus, we modify the
5
DISCUSSION OF ARGUMENTS ON REVIEW 5
¶7 To establish Board jurisdiction over an IRA appeal, an appellant must
establish that he exhausted his OSC remedies and nonfrivolously allege that:
(1) he made a protected disclosure; and (2) the disclosure was a contributing
factor in the agency’s decision to take or fail to take a personnel action. Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001);
Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 7 (2015).
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue. 6 5 C.F.R. § 1201.4(s). An allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an
allegation that is more than conclusory, plausible on its face, and material to the
legal issues in the appeal. Id. Vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board’s jurisdiction over an IRA appeal. El v.
Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921(Fed. Cir. 2016).
initial decision to vacate its finding that the appellant is collaterally estopped from
arguing that his resignation was a constructive discharge. Nevertheless, we need not
determine whether the appellant proved that his alleged involuntary resignation
constituted a personnel action because, even assuming that the appellant met that
burden, and as set forth more fully below, he has not shown that his disclosures were
protected. See Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 7 (2011)
(holding that the Board may resolve the merits issues in an IRA appeal in any order it
deems most efficient); but see 5 U.S.C. § 1221(e)(2) (permitting a finding on whether
the agency met its clear and convincing evidence burden only after a finding has been
made that a protected disclosure was a contributing factor in a personnel action).
5
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
The U.S. Court of Appeals for the Federal Circuit clarified that, in whistle blower
cases, the nonfrivolous allegation standard is “analogous to the ‘well-pleaded complaint
rule’ used to evaluate federal question jurisdiction in federal court.” Hessami v. Merit
Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020).
6
¶8 To satisfy the contributing factor criterion at the jurisdictional stage of the
case, the appellant need only raise a nonfrivolous allegation that the fact of, or
the content of, the protected disclosure was one factor that tended to affect a
personnel action in any way. Sherman, 122 M.S.P.R. 644, ¶ 8.
¶9 After establishing the Board’s jurisdiction in an IRA appeal, the appellant
then must establish a prima facie case of whistleblowing retaliation by proving by
preponderant evidence that he made a protected disclosure that was a contributing
factor in a personnel action taken against him. 5 U.S.C. § 1221(e)(1); Lu v.
Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). The appellant
has a right to a hearing to meet this burden. Peterson v. Department of Veterans
Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). If the appellant makes out a prima facie
case, then the agency must prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the protected disclosure.
5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
The Appellant’s Disclosures
The appellant alleged that he notified three individuals that someone’s
removing a paper copy of a literary quote from his work space was an act
of censorship and violated his right to free speech.
¶10 The appellant contended that on October 23, 2013, he noti fied three
individuals that someone removed a copy of a literary quotation from his work
space and that this constituted an act of censorship and violated his right to free
speech. The record reflects that the appellant had the following quotation printed
on a piece of paper and taped to the back of his work chair: “they smashed up
things and creatures and then retreated back into their money or their vast
carelessness or whatever it was that kept them together, and let other people clean
up the mess that they had made.” IAF, Tab 21 at 56. It is undisputed that the
appellant’s supervisor removed the quote from his chair sometime in
October 2013. Id. at 55. The administrative judge found that the appellant
exhausted his remedy before OSC regarding this disclosure and that it constituted
7
a nonfrivolous allegation that he made a disclosure protected under 5 U.S.C.
§ 2302(b)(8). 7 ID at 14.
¶11 The administrative judge then apparently assumed without making a finding
that the appellant nonfrivolously alleged that this disclosure was a contributing
factor, as the administrative judge found further that the appellant failed to prove
by preponderant evidence that a reasonable person would believe this disclosure
evidenced a violation by his supervisor of any law, rule, or regulation.
ID at 14-18. To the extent the appellant argued that he believed his supervisor ’s
actions in removing the paper violated his First Amendment right to free speech,
the administrative judge found that no reasonable person could believe that the
appellant’s quotation amounted to speech on a matter of public concern.
Thus, the administrative judge found that no reasonable person could believe the
appellant was disclosing either a violation of his right to free speech under the
First Amendment, or of any other law, rule or regulation. 8 ID at 17.
¶12 Regarding the appellant’s assertion that removing the paper quote amounted
to his supervisor’s denying him due process, the administrative judge found that
the appellant failed to prove by preponderant evidence that he reasonably
believed that he had a protected property interest in the piece of paper containing
the literary quotation. Additionally, the administrative judge found that the
appellant failed to prove by preponderant evidence that he had a protected
7
In light of our analysis below, we have not addressed whether the a dministrative
judge’s finding—that the appellant’s claim that the October 23, 2013 notification
constituted a nonfrivolous allegation that he made a protected disclosure—was correct.
8
Although the administrative judge failed to make a jurisdictional contributing factor
determination on this disclosure prior to addressing whether the appellant proved by
preponderant evidence that he made a protected disclosure, the administrative judge
correctly found that the appellant’s disclosure was not protected. Thus, any error by the
administrative judge does not warrant reversal. An adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversing an initial
decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
8
property interest in the literary quote, or that his supervisor’s actions constituted
an abuse of discretion. ID at 18.
¶13 On review, the appellant argues that the administrative judge ’s decision
addressed only the free speech element, and that the administrative judge failed to
address the taking of his property and his Fifth Amendment right to due process.
PFR File, Tab 1 at 7. The appellant asserts that the fact that the agency’s Bureau
of Land Management State Human Resources Office ordered the literary quote
returned to him shows that he has a property interest in it. Id. at 8.
¶14 However, contrary to the appellant’s assertions, the administrative judge
addressed the appellant’s due process argument and correctly found that the
appellant failed to prove by preponderant evidence that he reasonably believed
that he had a protected property interest in the piece of paper taped t o the back of
his chair. ID at 18.
¶15 Similarly, while the appellant does not specifically argue that the
administrative judge failed to address his abuse of authority argument concerning
this disclosure, the initial decision shows that the administrative ju dge thoroughly
addressed this argument and found that the appellant failed to prove by
preponderant evidence that his supervisor’s actions constituted an abuse of
authority. Id. We have reviewed the administrative judge’s determination and we
find no basis upon which to disturb it. Id.The appellant alleged that he disclosed that his supervisor withheld facts
and made false statements about him, resulting in disciplinary action taken
against him.
¶16 The appellant argued that he made a protected disclosure on
February 5, 2014, when he notified the field manager that his supervisor was
withholding facts and making false statements regarding her knowledge of the
goat grazing program and authorization. IAF, Tab 3 at 21, Tab 18 at 77.
The administrative judge found that the appellant’s assertion constituted a
nonfrivolous allegation of a protected disclosure, and that the appellant
9
nonfrivolously alleged that his disclosure to the field manager was a contributing
factor in her decision to issue the LOR. ID at 14-15. The administrative judge
found further that the appellant failed to prove by preponderant evidence that he
reasonably believed he made a protected disclosure to the field manager regarding
the goat grazing. Specifically, the administrative judge found that the appellant
failed to prove by preponderant evidence that a reasonable person, with
knowledge of the essential facts known to and readily ascertainable by the
appellant, would conclude that the appellant’s supervisor committed a violation
of a law, rule, or regulation, or an abuse of authority. Additionally, the
administrative judge found that the appellant knew the proper process for
approving goat grazing permits and that he failed to prove by preponderant
evidence that he reasonably believed that during the relevant time,
December 2014, his supervisor had given him verbal authorization to sign the
goat grazing permit at issue. ID at 20-26.
¶17 However, the administrative judge also found that the appellant did not
show that this claimed disclosure was a contributing factor in the agency’s
issuing the proposed suspension notice. ID at 15. Specifically, the administrative
judge found that the appellant failed to nonfrivolously allege that the deciding
official, who became the appellant’s supervisor on August 25, 2014
(new supervisor), knew about the appellant’s February 5, 2014 disclosure to the
field manager prior to her issuing the notice of proposed suspension. ID at 15.
¶18 On review, the appellant contends that his new supervisor knew about his
February 5, 2014 disclosure prior to her issuing the notice of proposed suspension
on November 13, 2014, and that the administrative judge erred by finding that he
had not shown that the disclosure was a contributing factor. PFR File, Tab 1 at 5.
The appellant asserts that, prior to issuing the notice, the new supervisor had
access to the LOR, which was in his personnel file, and that his disclosure was
identified in the LOR when it alleged that he had “demonstrated conduct
unbecoming when you accused your supervisor of not only lying to me, but also
10
willfully deceiving me.” PFR File, Tab 1 at 6. In addition, the appellant
contends that the LOR is mentioned throughout the suspension proposal notice.
Id. He asserts further that, because the field manager and the new supervisor
discussed the proposed suspension, the new supervisor also had constructive
knowledge of his disclosure. Id.¶19 An appellant’s nonfrivolous allegation that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
protected activity was a contributing factor in that action is sufficient to meet the
knowledge-timing test, and satisfies the appellant’s burden to nonfrivolously
allege that his protected disclosure was a contributing factor in the personnel
action. Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 7 (2014).
Therefore, if the appellant has alleged that the supervisors were aware of his
disclosures prior to the agency’s decision to propose his suspension he will have
made allegations of fact that, if proven, could establish a prima facie case of
Board jurisdiction. Id., ¶¶ 7-11.
¶20 Upon reviewing the record, we find that it supports the appellant’s
assertions. Specifically, the proposed suspension referred to the LOR which
relied on the conversation wherein the alleged disclosure occurred. IAF, Tab 6
at 49, 51, 56-58. Further, the proposed suspension indicated that it was based on
the same misconduct cited in the LOR, stated that “a search of your personnel
record found” the LOR, and quoted the LOR. IAF, Tab 6 at 59, 62, 64-66.
¶21 Based upon the record evidence, we cannot conclude that the proposing
official contemplated the proposed suspension, initiated the proposal notice, or
issued the proposal notice prior to learning of the appellant ’s February 5, 2014
disclosure to the field manager. See, e.g., Fickie v. Department of the Army,
86 M.S.P.R. 525, ¶ 9 (2000) (finding that an action that was merely
“contemplated and in preparation” prior to a disclosure can serve as the predicate
personnel action in an IRA appeal). Thus, under the knowledge/timing test, we
find that the decision to propose the appellant’s suspension was made after the
11
new supervisor learned of the appellant’s February 5, 2014 disclosure and that it
may have had some effect on her decision to propose his suspension. Carey v.
Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003) (finding that an
appellant need only prove that the fact or content of the disclosure was one of the
factors that tended to affect the personnel action in any way). Accordingly, even
though the proposing official was not the appellant’s supervisor at the time of the
disclosure, we find that the appellant has made a nonfrivolous allegation that his
protected disclosure was a contributing factor in the proposed suspension under
the knowledge/timing test. We thus vacate the administrative judge’s finding that
the appellant failed to nonfrivolously allege that his February 5, 2014 disclosure
was a contributing factor in the decision to propose his suspension under 5 U.S.C.
§ 1221(e)(l).
¶22 Nevertheless, even though we find that the appellant made a nonfrivolous
allegation that the February 5, 2014 disclosure was a contributing factor in the
notice of proposed suspension, we reach the same ultimate finding as did the
administrative judge, namely that the appellant failed to prove by preponderant
evidence that this disclosure constituted a protected disclosure. Specifically, the
administrative judge found that the appellant: (1) previously had followed the
process to obtain the necessary approval for the goat grazing program; (2) did not
obtain the required supervisors’ signatures for the authorization at issue here; and
(3) was not credible in claiming that he requested and received prior verbal
authorization and was contradicted by the written record. ID at 24-25.
Additionally, the administrative judge found the appellant ’s alleged disclosure
both vague and conclusory because he failed to provide the details of the
conversation in which he allegedly received verbal authorization. Thus, while the
administrative judge erred by not finding that the February 5, 2014 disclosure was
a contributing factor in the proposed suspension, we agree with him that the
appellant failed to prove by preponderant evidence that he made a disclosure to
the field manager on February 5, 2014, that a reasonable person, with knowledge
12
of the essential facts known to and readily ascertainable by the appellant, would
believe evidenced a violation of law, rule, or regulation or an abuse of autho rity
by the appellant’s supervisor.
The appellant alleged that he made a protected disclosure that his
supervisor tried to coerce and intimidate him into not using his FMLA
leave.
¶23 Concerning this November 18, 2014 disclosure, the administrative judge
found that the appellant exhausted his remedy bef ore OSC, and that the
appellant’s allegations constituted a nonfrivolous allegation of a protected
disclosure. ID at 9-10, 14-15. However, the administrative judge found further
that this disclosure could not have been a contributing factor in the agency’s
issuing the LOR or its notice of proposed 14-day suspension. ID at 16.
The administrative judge noted that the appellant never returned to work after
November 14, 2014, prior to his resignation; thus his alleged disclosure after that
date could not have been a contributing factor to a hostile work environment due
to harassment.
¶24 On review, the appellant challenges the administrative judge’s
determination that his alleged disclosure after he permanently left t he agency
could not have been a contributing factor to a hostile work environment due to
harassment. PFR File, Tab 1 at 7. As the administrative judge correctly found,
however, the appellant’s alleged disclosure on or after November 18, 2014,
could not have been a contributing factor in the agency’s earlier issuance of the
May 15, 2014 LOR, or the November 13, 2014 notice of a proposed 14 -day
suspension. Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 27 (2013)
(finding that disclosures made after the agency took the personnel action at issue
cannot have been a contributing factor). Furthermore, only agency actions that,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by 5 U.S.C.
13
§ 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs, 2022 MSPB 17,
¶ 16. Thus, we find no merit to the appellant’s claims in this regard.
¶25 Moreover, the appellant has not proven that this disclosure is protected.
The appellant asserted that his supervisor tried to coerce and intimidate him into
not using his sick or FMLA leave in violation of 5 U.S.C. § 6385(a), which
provides that an employee shall not directly or indirectly intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce, any other employee for the
purpose of interfering with the employee’s exercise of any rights relating to
FMLA leave. IAF, Tab 15 at 21-22. More specifically, the appellant contended
that the proposing official informed him in a November 18, 2014 FMLA letter
that the FMLA “entitles eligible employees to take up to twelve workweeks of
unpaid leave (LWOP) in a 12-month period,” with the word “unpaid” underlined
and in bold typeface, and that this emphasis incorrectly “impl[ied] that [he] will
only be entitled to unpaid leave.” IAF, Tab 3 at 36 -37. He also claimed that the
letter indicated that he could substitute paid leave to which he was entitled for the
unpaid leave “upon [the supervisor’s] approval,” and that th is latter language was
“meant to make me feel that I have less entitlement to leave than I actually do.”
Id. at 37. The appellant also noted that the letter instructed him to provide the
agency with a completed Form WH-380, Certification of Health Care Provider,
and that this was “another attempt to coerce and intimidate me” because agencies
may request such medical certification, but are not required to do so. Id.Finally, the appellant addressed the letter’s statement that a failure to provide
adequate medical documentation to support an absence may result in a placement
on absence without leave (AWOL), which may result in disciplinary action.
Id. at 38. The appellant asserted that this statement “is intimidating and coercing
me by emphasizing AWOL and disciplinary action, but leaving out that I may
request that the provisional leave be charged as leave without pay or charged to
annual and/or sick leave.” Id. The agency approved FMLA leave for the
appellant on November 25, 2014, one week later. IAF, Tab 18 at 27.
14
¶26 The record does not appear to include a copy of the agency’s
November 18, 2014 FMLA letter. However, even assuming that the appellant has
accurately characterized the agency’s statements in that letter, they merely reflect
and are consistent with the legal and regulatory requirements relating to FMLA
leave and the fact that AWOL can lead to disciplinary action. See 5 U.S.C.
§§ 6382(c)-(d), 6383; 5 C.F.R. §§ 630.1203(a), .1206; see also Adams v.
Department of Labor, 112 M.S.P.R. 288, ¶ 8 (2009) (holding that a sustained
charge of AWOL is inherently connected to the efficiency of the service).
Under these circumstances, the appellant has not proven that a reasonable p erson,
with knowledge of the essential facts known to and readily ascertainable by him,
would believe that these statements evidenced a violation of law, rule, or
regulation, such as section 6385(a), an abuse of authority by the appellant’s
supervisor, or any of the other situations detailed under 5 U.S.C. § 2302(b)(8)(A).
Thus, we agree with the administrative judge’s determination that the appellant
was not entitled to corrective action as to this purported disclosure.
Exhaustion of Claims before OSC
¶27 In response to the administrative judge’s determination that the appellant
failed to exhaust some of his claims before OSC, the appellant asserts on review
that OSC’s letter dated May 16, 2016, states, “You also allege that the negative
references are retaliation . . . . Because OSC previously made a determination to
close an earlier complaint involving all but the most recent allegations involving
negative references, OSC’s current review only involved the allegedly retaliatory
negative references.” PFR File, Tab 1 at 28. Thus, the appellant argues that the
administrative judge erred in determining that he did not exhaust his remedies
before OSC.
¶28 It appears from the appellant’s OSC complaint and with OSC’s
May 16, 2016 letter that the appellant may have exhausted his remedies with OSC
regarding some, or all 20, of the disclosures which the administrative judge found
that he had not exhausted. Having found evidence that the appellant exhausted
15
his OSC remedies with at least some of the 20 disclosures, we would ordinarily
remand this appeal to determine jurisdiction on those claims, and if appropriate, a
hearing on the merits. Kukoyi v. Department of Veterans Affairs, 111 M.S.P.R.
404, ¶ 19 (2009), overruled on other grounds by Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 26 n. 7 (2011). Nevertheless, we find
remand unnecessary in this appeal. Courts have the inherent authority, in the
interest of judicial efficiency, to dismiss an action because of the pendency of
another action, so long as an identity of issues exists and the controlling issues in
the dismissed action will be determined in another lawsuit. Kinler v. General
Services Administration, 44 M.S.P.R. 262, 263 (1990). In most cases of judicial
efficiency, we would dismiss the subsequent appeal and the prior a ppeal would be
adjudicated. Id.; O’Leary v. Office of Personnel Management, 90 M.S.P.R. 124,
¶ 7 (2001).
¶29 However, we are dismissing the appellant’s claims in this appeal, which the
administrative judge found were not exhausted, so that these claims can be
considered in the appellant’s subsequent appeal that was filed with the Board’s
Western Regional Office. The subsequent appeal was docketed as an IRA appeal,
in which the appellant challenges the numerous disclosures which were found to
be not exhausted before OSC in this appeal, and he alleges the agency took the
action partly in response to his protected disclosures. Lentz v. Department of the
9
Interior, MSPB Docket No. SF-1221-21-0497-W-2. The appellant has included
9
This separate IRA appeal before the Board’s Western Regional Office was originally
docketed as MSPB Docket No. SF-1221-16-0681-W-1. The appeal was refiled and
dismissed without prejudice multiple times. See MSPB Docket Nos. SF-1221-16-0681-
W-1 through SF-1221-16-0681-W-9. When the appeal was refiled a ninth time, due to
technical limitations of the Board’s software, it was assigned a new docket number,
MSPB Docket No. SF-1221-21-0497-W-1, and was again dismissed without prejudice
and then refiled. On March 8, 2022, the Board’s Western Regional Office issued an
initial decision in MSPB Docket No. SF-1221-21-0497-W-2, dismissing the appeal
without prejudice to be automatically refiled within 15 calendar days of the first of the
following to occur: (1) the date of issuance of a Board opinion in SF-1221-15-0688-
W-1; or (2) September 5, 2022. See MSPB Docket No. SF-1221-21-0497-W-2, Initial
16
the same OSC documentation that he submitted in this appeal, and he included
evidence that he submitted a new filing with OSC in December 2015.
PFR File, Tab 1; Lentz v. Department of the Interior, MSPB Docket
No. SF-1221-16-0681-W-1.
¶30 We find that the two appeals share an identity of issues. We also find that
the controlling issue of the present appeal—whether the appellant has made a
nonfrivolous allegation of jurisdiction for an IRA appeal and if so whether the
agency took the personnel action in reprisal for his disclosures —also will be
determined by the Board’s Western Regional Office. Because the appeal before
the Board’s Western Regional Office addresses the same issues currently before
us, we deny the portions of the appellant’s petition for review concerning the
disclosures over which the administrative judge found that the appellant had not
exhausted his remedy with OSC, and dismiss those portions in the in terest of
justice.
The Appellant’s Remaining Arguments
¶31 Finally, the appellant reasserts his version of the various incidents and he
contends that the administrative judge ignored his evidence and arguments
throughout the initial decision. 10 PFR File, Tab 1 at 9-16. For example, the
appellant argues that the administrative judge relied on inconsist ent statements by
the appellant’s supervisor concerning the proper authorization for grazing and he
asserts that the administrative judge erred by not addressing his claim that he had
received verbal authorization, and that even so, no authorization was required
Decision (Mar. 8, 2022). After the issuance of this decision, the Board’s Western
Regional Office shall refile the appeal as MSPB Docket No. SF-1221-21-0497-W-3.
10
The appellant asserts on review that the administrative judge left out the agency’s
characterizing the charges as malicious and intentional in the LOR, and he contends that
the administrative judge changed the agency’s burden of proof by failing to require the
agency to prove these elements. PFR, Tab 1 at 4; IAF, Tab 28 at 45 -46.
However, because the merits of the underlying adverse actions are not before the Board
in this appeal, the administrative judge did not determine the merits of the charged
misconduct, and we have not considered these arguments on review.
17
because he had the authority to acquire services within the micro purchase
amount. Id. at 9-10. In this connection, the appellant also reasserts his clai m that
he was acting under the assumption that he had appropriate National
Environmental Policy Act 11 documentation and authorization to conduct the goat
vegetation management project, and that his actions were not malicious and
intentional. Id. at 14. The appellant challenges the administrative judge’s
credibility determinations regarding his supervisor and the testimony concerning
a meeting he had with her, and he asserts that the administrative judge ’s finding
that he did not have a “reasonable belief” that his supervisor authorized the
project is “conclusory and unsupported” by the evidence he submitted.
Id. at 12-13. Similarly, the appellant challenges the administrative judge ’s
finding that his disclosure concerning the interns was vague and conclus ory and
thus not protected. Id. at 15.
¶32 We have considered these arguments, as well as the appellant’s many other
arguments on review concerning the administrative judge ’s weighing of the
evidence. However, we discern no reason to reweigh the evidence or substitute
our assessment of the record evidence for that of the administrative judge.
See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same). Accordingly, we find that the appellant has provided no
basis upon which to reverse the initial decision.
11
The National Environmental Policy Act sets forth a procedural process for analyzing
proposed Federal actions. IAF, Tab 6 at 68.
18
NOTICE OF APPEAL RIGHTS 12
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 an d
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.
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:
12
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.
19
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 n or 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. ____ , 137 S. Ct. 1975 (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
20
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).
21
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 a ny court
of appeals of competent jurisdiction. 13 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).
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
13
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.
22
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.