Dom Wadhwa v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOM WADHWA, DOCKET NUMBER
Appellant, PH-3443-15-0266-I-1
v.
DEPARTMENT OF VETERANS DATE: September 30, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dom Wadhwa, Moorestown, New Jersey, pro se.
Lauren Russo, Esquire and Stacey Conroy, Esquire, Philadelphia,
Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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. 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, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
For the reasons discussed below, we DENY the petition for review, AFFIRM the
initial decision insofar as it found that the appellant had prematurely filed his
IRA appeal, and FORWARD the appellant’s now-ripe IRA appeal to the regional
office for adjudication.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant is a Physician for the agency. Initial Appeal File (IAF),
Tab 1 at 9. On March 22, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency took several personnel actions
against him, including reducing his performance pay for fiscal years 2012 and
2013 in connection with retaliation for equal employment opportunity activity or
other unspecified violations of Title VII of the Civil Rights Act. Id. at 14-26.
The following day, he filed a Board appeal challenging the performance pay
decisions. Id. at 3, 6.
¶3 On May 18, 2015, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 10,
Initial Decision (ID) at 2, 4. He found that the appellant did not allege that the
agency subjected him to any personnel action that he could appeal directly to the
Board. ID at 2 n.2. Rather, he construed the appeal as an IRA appeal and found
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that the appellant had not shown that he had exhausted his administrative
remedies with OSC. ID at 2-4. The administrative judge expressly declined to
make findings on the other jurisdictional elements of an IRA appeal. ID at 2 n.1.
¶4 The same day that the administrative judge issued his initial decision, the
appellant forwarded OSC a copy of one of his Board pleadings for inclusion in
the complaint file at issue. IAF, Tab 12. Among other things, the pleading
contained allegations that the reductions in performance pay were in reprisal for
protected disclosures. IAF, Tab 9 at 5-8.
¶5 On June 21, 2015, the appellant filed a timely petition for review. Petition
for Review (PFR) File, Tab 1. He attached correspondence from OSC dated
May 8, 2015, and May 27, 2015, showing that OSC had considered the
appellant’s whistleblower claims but nevertheless closed his file without taking
corrective action. Id. at 11-16. The agency has filed a response to the petition
for review, PFR File, Tab 3, and the appellant has filed a reply to the agency’s
response, PFR File, Tab 4.
¶6 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making 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).
¶7 For the reasons explained in the initial decision, we agree with the
administrative judge that the Board lacked jurisdiction over the appeal because
the appellant filed it prematurely, i.e., before OSC had closed the appellant’s
complaint file and before 120 days had passed since he filed his complaint.
ID at 3; see 5 U.S.C. § 1214(a)(3); Ratliff v. General Services Administration,
66 M.S.P.R. 394, 397 (1995), appeal dismissed, 52 F.3d 344 (Fed. Cir. 1995)
(Table). However, now that OSC has closed the appellant’s file, this appeal is
ripe for adjudication. PFR File, Tab 1 at 15-16; see 5 U.S.C. § 1214(a)(3)(A)(i).
4
Because the Board’s practice is to adjudicate an appeal that was premature when
it was filed but becomes ripe while pending with the Board, we forward this
appeal to the regional office for adjudication. See Jundt v. Department of
Veterans Affairs, 113 M.S.P.R. 688, ¶ 7 (2010).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your claims of
prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i),
(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s
disposition of any other claims of prohibited personnel practices, you may request
review of this final decision by the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction. The court of appeals
must receive your petition for review within 60 days after the date of this order.
See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file,
be very careful to file on time. You may choose to request review of the Board’s
decision in the United States Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
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Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the United States 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.