Mariclar Osorio v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARICLAR V. OSORIO, DOCKET NUMBER
Appellant, SF-1221-19-0313-W-1
v.
DEPARTMENT OF VETERANS DATE: January 22, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Linda W. Smith , North Las Vegas, Nevada, for the appellant.
Theodore M. Miller , Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Upon our review of the procedural
history of the appeal, we find that adjudicatory efficiency is the appropriate basis
for dismissing the appeal. For the reasons stated below, we VACATE the initial
decision and DISMISS the appeal based on adjudicatory efficiency.
BACKGROUND
The appellant is employed as a nurse with the Veterans Health
Administration, Clinical Practices Clinic Base in Las Vegas, Nevada. Osorio v.
Department of Veterans Affairs, MSPB Docket No. SF-1221-19-0120-W-1,
Initial Appeal File (0120 IAF), Tab 9 at 10. She filed a complaint with the Office
of Special Counsel (OSC) alleging in her initial and subsequent submissions that
the agency had retaliated against her for making protected disclosures and
engaging in protected activity. 0120 IAF, Tab 3 at 47-51, 57, 61-72. In a letter
dated September 10, 2018, OSC informed the appellant that it made its final
determination to close her complaint. 0120 IAF, Tab 13 at 17. At that time, OSC
did not inform the appellant of her Board appeal rights.
On November 27, 2018, the appellant filed an IRA appeal with the Board.
0120 IAF, Tab 1. After affording the parties the opportunity to submit evidence
and argument, the administrative judge dismissed the appeal as untimely filed by
13 days in a March 12, 2019 initial decision. 0120 IAF Tab 17, Initial Decision.
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The appellant timely filed a petition for review of the initial decision.
0120 Petition for Review (PFR) File, Tab 1. In subsequent submissions, the
appellant filed new correspondence from OSC indicating that her case was
reopened to provide her with appeal rights on March 15, 2019, and closed on
March 18, 2019, which she asserted restarted the statutory filing period to seek
corrective action. 0120 PFR File, Tabs 2, 5.
Thereafter, the appellant filed the instant IRA appeal with the Board on
March 21, 2019. Osorio v. Department of Veterans Affairs, MSPB Docket
No. SF-1221-19-0313-W-1, Initial Appeal File (0313 IAF), Tab 1. After the
agency moved to dismiss the appeal as untimely filed, the administrative judge
ordered the appellant to file evidence and argument regarding the timeliness
issue, and the appellant responded. 0313 IAF, Tab 8, 23, 25. The administrative
judge dismissed the appeal as untimely filed by 127 days in a January 8, 2020
initial decision. 0313 IAF, Tab 26, Initial Decision (0313 ID). In so finding, the
administrative judge determined that the filing period began on September 10,
2018, when OSC terminated its investigation, not on March 18, 2019, when OSC
issued a new close-out letter after briefly reopening the appellant’s case. 0313
ID at 8. He observed that the Board has never held that a new statutory filing
period is triggered when, as here, OSC reopens a case to provide an appellant
with appeal rights. 0313 ID at 7.
The appellant has filed a petition for review of the initial decision. Osorio
v. Department of Veterans Affairs, MSPB Docket No. SF-1221-19-0313-W-1,
Petition for Review (0313 PFR) File, Tab 1. The agency has filed a response.
0313 PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Here, the appellant filed the instant appeal pursuant to the March 18, 2019
OSC close-out letter she received after the March 12, 2019 initial decision was
issued. When an appellant files an appeal that raises claims raised in a prior
4
appeal after the initial decision in the prior appeal has been issued, but before the
Board has acted on the appellant’s petition for review, it is appropriate to dismiss
the subsequent appeal on the grounds of adjudicatory efficiency. Bean v. U.S.
Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013). In other words, the Board will
dismiss an appeal based on adjudicatory efficiency where an identity of issues
exists and the controlling issues in the appeal will be determined in a prior
appeal. Id.Because OSC reopened and closed the appellant’s case for the singular
purpose of providing her with appeal rights, the prior and instant appeals concern
the same alleged protected disclosures and same alleged personnel actions.
We find that both appeals share an identity of issues and that the controlling
issues in the instant appeal will also be determined in the prior appeal. Thus, we
vacate the initial decision and dismiss the appeal based on adjudicatory
efficiency. As for the appellant’s arguments regarding her alleged protected
disclosures and alleged personnel actions, 0313 PFR File, Tab 1 at 7-19, they are
better directed to the prior appeal than to this one.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2
Since the issuance of the initial decision in this matter, the Board has 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.
5
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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 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).
3
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.
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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.