Xichun Sun v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
XICHUN SUN, DOCKET NUMBER
Appellant, DC-1221-21-0257-W-1
v.
DEPARTMENT OF VETERANS DATE: March 20, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ibidun Roberts , Esquire, Columbia, Maryland, for the appellant.
Michael J.A. Klein , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On February 19, 2021, the appellant e-filed his appeal with the Board.
Initial Appeal File (IAF), Tab 1. The appeal contained no text but included a
close-out letter from the Office of Special Counsel (OSC) noting that it was
terminating its investigation into the appellant’s allegations that the agency
“investigated [him], suspended [his] clinical privileges, removed [him], assigned
[him] to a different office upon [his] return to the agency, placed [him] on
multiple focused professional practice evaluations, issued [him] a reprimand, and
denied [his] sick leave in retaliation for appealing [his] 2018 removal, engaging
in union activity, and cooperating with the Office of Inspector General in
September 2019.” Id. at 5. The e-appeal transmittal sheet instructed the
appellant to submit all hardcopy documents to the Central Regional Office (CRO)
and provided the mailing address, phone number, and fax number for that office.
Id. at 4. The appellant also received an email confirming that his appeal had been
filed and noting the same instructions for filing documents in hardcopy. 2 Petition
for Review (PFR) File, Tab 1 at 8.
On February 23, 2021, the administrative judge issued a jurisdictional order
instructing the appellant to file evidence and argument supporting the Board’s
jurisdiction over his IRA appeal. IAF, Tab 3. It instructed him to specifically
identify the alleged protected activity and the personnel actions complained of.
Id. The appellant did not file a response. On March 15, 2021, the agency filed a
motion to dismiss the appeal for lack of jurisdiction and the administrative judge
issued an initial decision dismissing the appeal on the same day, finding no basis
for Board jurisdiction based on the documents in the record. IAF, Tabs 5, 6.
Unbeknownst to the administrative judge, on February 23, 2021, the same
day that she issued the jurisdictional order, the appellant had faxed a 77 -page
narrative submission to the CRO in accordance with the instructions received
2
These instructions appear to have been in error, as the appeal was adjudicated by the
Washington Regional Office (WRO) and not the CRO.
3
from the Board. IAF, Tab 8 at 1; PFR File, Tab 1 at 10. The appellant sent the
same documents to the CRO by certified mail on the following day. PFR File,
Tab 1 at 11. On March 16, 2021, the WRO received the appellant’s 77-page
submission, presumably from the CRO, and it was uploaded to the e-appeal
system on that same day. IAF, Tab 8.
The appellant has filed a petition for review of the initial decision, and the
agency has filed a response. PFR File, Tabs 1, 3. The appellant’s petition for
review asserts that he never received the jurisdictional order, but nonetheless, his
77-page submission was timely filed in accordance with instructions received
from the Board, and that this information is sufficient to establish jurisdiction
over the appeal. PFR File, Tab 1 at 1-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed his 77-page submission on February 23, 2021, in
accordance with the instructions contained in the initial appeal document and the
email he received confirming that his appeal was submitted. IAF, Tab 1 at 4,
Tab 8 at 1. The document was submitted prior to the close of the record before
the administrative judge. Thus, we will consider the evidence as if it had been in
the record at the time it closed. See Mandel v. Office of Personnel Management ,
86 M.S.P.R. 299, ¶ 4 (2000), aff'd, 20 F. App’x 901 (Fed. Cir. 2001) (reopening a
closed case to consider evidence that was inadvertently omitted from the
appellate record)). Moreover, the issue of Board jurisdiction may be raised at any
time during a proceeding. Morgan v. Department of the Navy, 28 M.S.P.R. 477,
478 (1985).
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
4
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security, 2022 MSPB 39. A protected
disclosure is a disclosure of information that the appellant reasonably believes
evidences a violation of any 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. 5 U.S.C. § 2302(b)(8).
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal
Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation
is an allegation of “sufficient factual matter, accepted as true, to state a claim that
is plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1364, 1369 (Fed. Cir. 2020). If an appellant establishes Board jurisdiction
over an IRA appeal by exhausting his administrative remedies before OSC and
making the requisite nonfrivolous allegations, he has a right to a hearing on the
merits of his claim. Grimes v. Department of the Navy, 96 M.S.P.R. 595, ¶ 6
(2004). Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of affording the appellant a
hearing. Id., ¶ 12.
For the following reasons, we find jurisdiction over this appeal and remand
the appeal for adjudication of the merits.
The appellant exhausted his administrative remedies with OSC.
As noted above, to establish jurisdiction over an IRA appeal, an appellant
must, among other things, establish OSC exhaustion by preponderant evidence.
Corthell, 123 M.S.P.R. 417, ¶ 8; see Mason v. Department of Homeland Security,
116 M.S.P.R. 135, ¶ 9 (2011) (explaining that the appellant must prove
exhaustion with OSC, not merely present nonfrivolous allegations of exhaustion).
To satisfy the exhaustion requirement, the appellant must inform OSC of the
5
precise ground of his charge of whistleblowing, giving OSC a sufficient basis to
pursue an investigation that might lead to corrective action. Mason, 116 M.S.P.R.
135, ¶ 8. An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations. Id.Upon considering OSC’s close-out letter and the appellant’s
correspondence with OSC, we find that the appellant exhausted the following
alleged protected activities with OSC: appealing his 2018 removal, engaging in
union activity, responding to a State Licensing Board inquiry in June 2019, and
cooperating with the Office of the Inspector General (OIG) in September 2019.
IAF, Tab 1 at 5, Tab 8 at 71; see Miller v. Federal Deposit Insurance
Corporation, 122 M.S.P.R. 3, ¶¶ 6-10 (2014) (quoting Ellison v. Merit Systems
Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993)) (noting that allegations of
protected activity must be specifically alleged before OSC with “reasonable
clarity and precision”), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). While the
appellant may have attempted to raise additional allegations of protected activity
in his 77-page submission, we find no evidence in the record that additional
activities beyond those described above were exhausted with OSC. 3
To the extent that the appellant attempted to raise a claim that the agency
retaliated against him for a protected disclosure pursuant to 5 U.S.C. § 2302(b)
3
The appellant’s pleadings contain a vague reference to two OSC complaints filed in
2017. IAF, Tab 8 at 4. To the extent the appellant is claiming that his alleged 2017
OSC complaints constitute protected activity, we find no evidence that the appellant
exhausted this claim with OSC. The activity is not included in OSC’s close-out letter,
and its December 15, 2020 email to the appellant states, “OSC is not aware of any
protected activity you engaged in prior to your [May 2018] removal”). Id. at 13; IAF,
Tab 1 at 5. The appellant does not appear to have responded to this email. Even if we
were to find that the appellant proved that he exhausted this activity with OSC, the
appellant has not alleged that the agency had knowledge of the 2017 OSC complaints,
and thus, he has not nonfrivolously alleged that this activity was a contributing factor to
any of the personnel actions alleged. See 5 U.S.C. § 1221(e)(1)(A).
6
(8), he has failed to present evidence that he exhausted specific alleged protected
disclosures with OSC. IAF, Tab 8 at 76 (notifying the appellant that he did not
provide details to support an allegation of gross mismanagement, abuse of
authority, gross waste of funds, and substantial and specific danger to public
health). The appellant’s correspondence with OSC lacks any specificity
regarding alleged reprisal for making a protected disclosure under section 2302(b)
(8), such as details regarding the contents of his disclosures and the individuals to
whom they were made. Cf. Swanson v. General Services Administration,
110 M.S.P.R. 278, ¶ 8 (2008) (finding that an appellant satisfied the exhaustion
requirement when, with reasonable clarity and precision, he informed OSC of the
content of his disclosure, the individual to whom it was made, the nature of the
personnel actions allegedly taken in retaliation, and the individuals responsible
for taking those actions).
As for the personnel actions that the appellant exhausted before OSC,
OSC’s close-out letter identifies the following agency actions: the agency
investigated the appellant, suspended his clinical privileges, removed him,
assigned him to a different office space upon his return to the agency, placed him
on multiple focused professional practice evaluations, issued a reprimand, and
denied him sick leave. IAF, Tab 1 at 5. Thus, we find that the appellant
exhausted his remedies with OSC regarding these alleged personnel actions.
The appellant has nonfrivolously alleged that he engaged in protected activity
when he participated in an OIG interview in September 2019.
The appellant’s filings do not identify which type of protected activity he is
alleging. As set forth below, we have thus considered whether each of the
allegations in the appellant’s OSC close-out letter constitutes a nonfrivolous
allegation of a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D).
We first consider the appellant’s 2018 removal appeal submitted to the
Veterans Affairs Disciplinary Appeals Board. Under 5 U.S.C. § 2302(b)(9)(A)(i),
7
it is a prohibited personnel practice “to take or fail to take, or threaten to take or
fail to take, any personnel action against ay employee or applicant for
employment because of the exercise of any appeal, complaint, or grievance right
granted by any law, rule or regulation, with regard to remedying a violation” of
5. U.S.C. § 2302(b)(8). 4 Here, the appellant’s removal appeal itself is not in the
record. The appellant stated to OSC that his appeal “pointed out the absurdity of
the two investigations and suspension of my clinical privileges.” IAF, Tab 8
at 71. He has not, however, alleged that his 2018 removal appeal concerned
remedying an alleged violation of 5 U.S.C. § 2302(b)(8). We thus find that the
appellant’s removal appeal does not constitute protected activity under section
2302(b)(9)(A)(i) because he has not nonfrivolously alleged that his appeal
concerned remedying an alleged violation of 2302(b)(8), as set forth above. See
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
Next, we consider the appellant’s allegation the he was retaliated against
for engaging in union activity. IAF File, Tab 1 at 5. The appellant makes sparse
references to the union throughout his filing and notes that the union assisted him
in appealing his 2018 removal. IAF, Tab 8 at 29-30. Under 5 U.S.C. § 2302(b)
(9)(B), it is unlawful for an individual to take, fail to take, or threaten to take or
fail to take a personnel action because of the employee “testifying for or
otherwise lawfully assisting any individual in the exercise of any right referred to
in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).” Performing union-related duties, such as
filing grievances and representing other employees in the grievance process, are
protected activities under section 2309(b)(9). Alarid v. Department of the Army,
122 M.S.P.R. 600, ¶ 10 (2015). An appellant can establish that he was involved
in protected activity under section 2302(b)(9)(B) by proving that he testified or
assisted another employee in any appeal, complaint, or grievance right granted by
4
The Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112 -199,
126 Stat 1465, extended the Board’s jurisdiction over IRA appeals to claims arising
under 5 U.S.C. § 2302(b)(9)(A)(i), but not to those arising under (b)(9)(A)(ii). Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
8
any law, rule, or regulation. Id., ¶ 13. The appellant has not alleged that he
testified or assisted another employee in the grievance process, and thus, we find
that he has failed to nonfrivolously allege that his union activity is protected
activity pursuant to section 2302(b)(9)(B).
We next consider the appellant’s June 2019 response to the State Licensing
Board. IAF, Tab 8 at 71. 5 The response itself is not in the record, however, the
appellant explained in his filings that he “had to defend [his] practice and provide
documents to support [his] statement.” Id. at 37. To the extent the appellant is
attempting to allege that this constitutes protected activity, we find that he has
failed to make a nonfrivolous allegation that the June 2019 response was
protected under 5 U.S.C. § 2302(b)(9)(A)(i),(B),(C), or (D).
However, we find that the appellant has nonfrivolously alleged that he
engaged in activity protected by section 2302(b)(9)(C) when he cooperated with
or disclosed information to the OIG between September and November 2019, and
that he exhausted this protected activity with OSC. IAF, Tab 1 at 5, Tab 8 at 71;
see 5 U.S.C. § 2302(b)(9)(C) (defining protected activity as “cooperating with or
disclosing information to the Inspector General”). This allegation, accepted as
true, is sufficient to find jurisdiction pursuant to section 2302(b)(9)(C).
The appellant has nonfrivolously alleged that his September 2019 OIG activity
was a contributing factor to personnel actions taken by the agency.
As set forth above, OSC’s close-out letter identifies the following
personnel actions: the agency investigated the appellant, suspended his clinical
privileges, removed him, assigned him to a different office space upon his return
to the agency, placed him on multiple focused professional practice evaluations,
issued a reprimand, and denied him sick leave. IAF, Tab 1 at 5. The appellant
may demonstrate that a protected activity was a contributing factor in a personnel
5
The appellant’s email to OSC refers to his response to the “SLE” inquiry in June 2019.
IAF, Tab 8 at 71. However, we believe this is a typographical error. The appellant
submitted a response to the State Licensing Board (SLB) in June 2019 and we believe
this is the alleged protected activity he intended to exhaust with OSC. Id. at 37.
9
action through circumstantial evidence, including, but not limited to, evidence
that the official taking the personnel action knew of the protected activity and
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 the
personnel action. 5 U.S.C. § 1221(e)(1); see Easterbrook v. Department of
Justice, 85 M.S.P.R. 60, ¶ 7 (2000). A protected activity that occurs after the
agency has already taken the personnel actions at issue cannot have been a
contributing factor in the personnel actions and does not support a nonfrivolous
allegation that the protected activity was a contributing factor in the personnel
actions. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007)
(finding that disclosures that were made prior to the personnel actions at issue
could not have been contributing factors in the personnel actions). Thus, we
consider only the alleged personnel actions that occurred after the protected
activity in September 2019: extension of the Focused Professional Practice
Evaluation in October 2019, investigation into the appellant in November or
December 2019, June 2020 reprimand, and denial of a sick leave request in late-
June or early-July 2020. IAF, Tab 1 at 5, Tab 8 at 7, 40, 47-48, 56, 59-61. The
remaining personnel actions identified in the close-out letter occurred prior to
September 2019.
A letter of reprimand is a personnel action within the meaning of the
Whistleblower Protection Act. Horton v. Department of Veterans Affairs,
106 M.S.P.R. 234, ¶ 18 (2007). Regarding the appellant’s remaining allegations,
the definition of “personnel action” includes “any . . . significant change in
duties, responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).
While the U.S. Court of Appeals for the Federal Circuit has held that retaliatory
investigations, in and of themselves, do not constitute personnel actions, Sistek v.
Department of Veterans Affairs, 955 F.3d 948, 954-55 (Fed. Cir. 2020), the
Board has found that agency actions that, individually or collectively, have
practical and significant effects on the overall nature and quality of an
10
employee’s working conditions, duites, or responsibilities constitute a personnel
action covered by section 2302(a)(2)(A)(xii), Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶¶ 15-16. We find that, similar to Skarada, the actions
complained of, if proven true, could meet this threshold. Id., ¶ 18 (concluding
that the appellant’s allegations that agency personnel harassed him, subjected him
to a hostile work environment, subjected him to multiple investigations, accused
him of fabricating data, refused his request for a review of his position for
possible upgrade, yelled at him, and failed to provide him the support and
guidance to successfully perform his duties amounted to a nonfrivolous allegation
of a significant change in his working conditions). Insofar as the appellant
alleged that management was aware of his September 2019 OIG activity and that
the personnel actions commenced shortly thereafter, we find that he has satisfied
the contributing factor jurisdictional element. IAF, Tab 8 at 7-8, PFR File, Tab 1
at 5; see Easterbrook, 85 M.S.P.R. 60, ¶ 7.
Accordingly, we find that the appellant made a nonfrivolous allegation of
jurisdiction and that he is entitled to a hearing on the merits. Prior to conducting
a hearing, the administrative judge shall afford the parties a reasonable
opportunity to complete discovery and order the parties to submit any other
evidence that the administrative judge deems necessary to adjudicate the merits of
the appeal. 6 Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 14 (2016).
6
Our jurisdictional findings herein are based on the appellant’s 77-page submission.
IAF, Tab 8. If the administrative judge deems it necessary, she may make further
findings regarding which personnel actions and protected activities and/or disclosures
are properly before the Board and fully address the appellant’s arguments and evidence
as to those matters.
11
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.