Martin Lawson v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN LAWSON, DOCKET NUMBER
Appellant, CH-1221-15-0644-W-1
v.
DEPARTMENT OF VETERANS DATE: July 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Martin Lawson, Baldwinsville, New York, pro se.
Gregory White, Esquire, Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, 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 in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 initi al 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective July 20, 2015, the agency terminated the appellant from his term
position after determining that, at the time of his appointment, he did not meet the
eligibility requirements for the position, rendering his appointment erroneous.
Initial Appeal File (IAF), Tab 1 at 7-10. Thereafter, he filed the instant IRA
appeal, alleging that the agency terminated him in retaliation for his request to
discuss “perceived Prohibited Personnel Practices associated with agency
discrimination” with human resources personnel and in violation of agency
policies. Id. at 5. In an August 31, 2015 order, the administrative judge informed
the appellant of his burden of proof to establish Board jurisdiction over his
appeal—namely, to show that he exhausted his administrative remedy with the
Office of Special Counsel (OSC) and to make nonfrivolous allegations that he
made a protected disclosure or engaged in protected activity that was a
contributing factor in his termination—and ordered him to respond within 10 days
of the order. IAF, Tab 3. The appellant did not respond within 10 days of the
jurisdictional order or at any time during the pendency of the appeal.
3
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant failed to show that he
exhausted his administrative remedy with OSC and failed to nonfrivolously allege
that he made a protected disclosure or engaged i n protected activity. IAF,
Tab 51, Initial Decision (ID). Accordingly, the administrative judge dismissed
the appeal for lack of jurisdiction.
¶4 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition, and the appellant has submitted a reply to the
agency’s response. Petition for Review (PFR) File, Tabs 1, 3 -4.
ANALYSIS
¶5 The Board has jurisdiction over an IRA appeal based on whistleblowe r
reprisal under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
if the appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations of the following: (1) he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged
in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D); and (2) the disclosure or protected activity 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). Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
Cir. 2001); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
The administrative judge correctly determined that the appellant failed to show
that he exhausted his administrative remedies before OSC.
¶6 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). An appellant
raising an IRA claim can establish that he exhausted his remedies before OSC by
showing that he filed a request for corrective action there and either: (1) he
received written notification that OSC was terminating its investigation into his
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complaints; or (2) 120 days have passed since he filed his request with OSC and
he has not received written notification from OSC informing him that it was
terminating its investigation into his complaints. 5 U.S.C. § 1214(a)(3); Garrison
v. Department of Defense, 101 M.S.P.R. 229, ¶ 6 (2006). To satisfy the
exhaustion requirement, the appellant must inform OSC of the precise nature of
his protected disclosure or activity, giving OSC a sufficient basis to pursue an
investigation that might lead to corrective action. Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶ 4 n.2 (2014); 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. Mason, 116 M.S.P.R. 135, ¶ 8.
¶7 Here, the appellant submitted evidence below showing that he filed a
complaint with OSC on June 22, 2015, but failed to provide any information
regarding the nature of his communications with OSC. IAF, Tab 1 at 13, Tab 8
at 3, Tab 14 at 4. Therefore, the administrative judge found that the appellant
failed to show that he exhausted his administrative remedy. ID at 3-4. On
review, the appellant argues that the administrative judge previously found that
he had exhausted his administrative remedy with OSC in a telephonic status
conference summary and that he relied on that finding in deciding to participate
in mediation with the agency. PFR File, Tab 1 at 2-3.
¶8 In the telephonic status conference summary cited by the appellant, the
administrative judge found that more than 120 calendar days had passed since the
appellant filed his OSC complaint and that OSC had not yet informed him that it
was terminating its inquiry into his complaint or that it was seeking corrective
action on his behalf. IAF, Tab 12 at 1. Therefore, the administrative judge
concluded that, “[u]nder 5 U.S.C. § 1214(a)(3), the appellant is [] considered to
have exhausted his administrative remedies with OSC, meaning he can prosecute
5
his [IRA] appeal with this Board.” Id. Although the administrative judge found
that the appellant’s IRA appeal was properly before the Board under
section 1214(a)(3), she did not find that the appellant had proven exhaustion of
the specific claims at issue in this appeal or that the Board had jurisdiction over
the appeal. Id. Indeed, in the same summary, she stated that, if the parties did
not agree to participate in mediation and case processing resumed, the appellant
“shall” submit a copy of his OSC complaint. Id. at 2-3.
¶9 Even if the administrative judge’s summary was confusing and the appellant
took it to mean that he no longer needed to submit evidence regarding the
contents of his OSC complaint, he cannot show that his substantive rights were
prejudiced because the initial decision put him on notice of what he must do to
establish jurisdiction on review. 2 ID at 4; see Easterling v. U.S. Postal Service,
110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s failure to
provide an appellant with proper jurisdictional notice can be cured if the initial
decision puts him on notice of what he must do to establish jurisdiction, thus
affording him the opportunity to meet his jurisdictional burden on review). On
review, the appellant has submitted a December 10, 2015 letter from OSC
indicating that it was closing its investigation into his complaint, in which he
alleged that the agency terminated his employment in reprisal for his
whistleblowing activity and in violation of agency guidelines. PFR File, Tab 4
at 6. He also has submitted a copy of his Freedom of Information Act request to
OSC seeking a copy of his original OSC complaint and indicated that he will
submit the document to the Board as soon as he receives it. Id. at 4, 7-10.
¶10 The OSC close-out letter does not show that the appellant advised OSC of
the specific alleged protected activity upon which he now bases this IRA appeal
and is, therefore, insufficient to establish that he exhausted his administrative
2
In addition, the appellant failed to show how he was prejudiced by participating in an
ultimately unsuccessful mediation with the agency. PFR File, Tab 1 at 5 -6.
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remedies. See Mason, 116 M.S.P.R. 135, ¶ 8. In addition, although he submitted
evidence showing that he is in the process of obtaining a copy of his original OSC
complaint, we need not delay the matter further awaiting OSC’s response
because, as discussed below, the appellant has also failed to make a nonfrivolous
allegation that he engaged in protected activity or made a protected disclosure.
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that he made a protected disclosure or engaged in protected
activity.
¶11 As noted above, to establish Board jurisdiction in an IRA appeal, an
appellant must, after showing exhaustion, make nonfrivolous allegations that he
engaged in protected activity or made a protected disclosure that was a
contributing factor in the challenged personnel action. Salerno, 123 M.S.P.R.
230, ¶ 5. Here, the administrative judge found that, even if the appellant had
exhausted his claim that the agency terminated him in retaliation for contacting
human resources to discuss age discrimination before OSC, the Board would still
lack jurisdiction over his appeal. ID at 4. In so finding, the administrative judge
explained that reprisal for exercising an equal employment opportunity (EEO)
right or for filing an EEO complaint that does not pertain to remedying
whistleblower reprisal is not protected under the WPEA . ID at 4-5. The
appellant does not challenge this finding on review, and we discern no basis to
disturb it. PFR File, Tabs 1, 4; see Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶¶ 6-7 (2013) (clarifying that the substance of a complaint,
appeal, or grievance must concern remedying whistleblower reprisal to be
protected activity under section 2302(b)(9)(A)(i)); see also Redschlag v.
Department of the Army, 89 M.S.P.R. 589, ¶ 84 (2001) (finding that purported
disclosures that involve alleged discrimination or reprisal for engag ing in
activities protected by Title VII, even if made outside the grievance or EEO
processes, do not constitute protected whistleblower activity under
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section 2302(b)(8) because they pertain to matters of discrimination co vered by
section 2302(b)(1)(A)), review dismissed, 32 F. App’x 543 (Fed. Cir. 2002).
¶12 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 3
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
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 choice s 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).
3
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.
8
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 particu lar
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.
(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
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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:
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
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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. 4 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 a t 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.uscour ts.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
4
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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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.
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.