                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DOM WADHWA,                                     DOCKET NUMBER
                         Appellant,                  PH-1221-16-0001-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: July 13, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Dom Wadhwa, Moorestown, New Jersey, pro se.

           Lauren Russo, 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 without prejudice to
     refiling. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, 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).
¶2         The procedural history of this appeal is as follows. The appellant filed an
     appeal on March 23, 2015, alleging that the agency committed prohibited
     personnel practices and reduced his performance pay for fiscal year (FY) 2014 in
     reprisal for making protected disclosures. Wadhwa v. Department of Veterans
     Affairs, MSPB Docket No. PH-3443-15-0266-I-1, Initial Appeal File (IAF), Tab 1
     at 5-6. The appellant also alleged that the reduction was in retaliation for his
     equal employment opportunity activity. IAF, Tab 1 at 6, Tab 10, Initial Decision
     (ID) at 1-2 n.1.   The administrative judge dismissed the appeal for lack of
     jurisdiction finding that the appellant had filed a premature IRA appeal because
     he failed to exhaust his administrative remedies before the Office of Special
     Counsel (OSC). ID at 4. The appellant filed a petition for review of that initial
     decision, and he submitted proof of exhaustion.         Wadhwa v. Department of
     Veterans Affairs, MSPB Docket No. PH-3443-15-0266-I-1, Petition for Review
     File, Tab 1 at 15. The Board determined that his appeal was ripe and forwarded
     the appeal to the regional office for adjudication as an IRA appeal. Wadhwa v.
     Department of Veterans Affairs, MSPB Docket No. PH-3443-15-0266-I-1, Final
     Order (Sept. 30, 2015).
                                                                                       3

¶3        During the proceedings on his IRA appeal, the appellant raised a new claim
     of whistleblower retaliation alleging that the agency also reduced his FY 2015
     performance pay.    Wadhwa v. Department of Veterans Affairs, MSPB Docket
     No. PH-1221-16-0001-W-1 (W-1 AF), Tab 19. The administrative judge held a
     conference call and informed the parties that the appellant could not raise this
     claim before the Board until he exhausted his remedies with OSC as to that issue.
     W-1 AF, Tab 20, Initial Decision (W-1 ID) at 1-2.        The appellant stated his
     intention to pursue the matter before OSC, and the parties agreed that the
     administrative judge would dismiss the appeal without prejudice to allow the
     appellant’s new claim to be heard with the other claims he raised in his IRA
     appeal. W-1 ID at 2.
¶4        After the administrative judge dismissed the appeal without prejudice to
     refiling, the appellant filed a timely petition for review arguing the merits of his
     appeal and requesting a ruling on a motion to compel discovery. Petition for
     Review (PFR) File, Tab 1. On review, he also submitted proof that he filed a
     complaint with OSC on March 28, 2016, concerning his FY 2015 performance
     pay reduction. PFR File, Tab 4 at 10-24.

                             DISCUSSION OF ARGUMENTS
¶5        The Board has held that a dismissal without prejudice to refiling is a
     procedural option that is left to the sound discretion of the administrative judge.
     See Milner v. Department of Justice, 87 M.S.P.R. 660, ¶ 13 (2001).              The
     administrative judge dismissed the appeal without prejudice upon finding that the
     appellant had not yet exhausted his administrative remedies with OSC concerning
     his FY 2015 performance pay reduction claim.      W-1 ID at 2. The administrative
     judge found that dismissing this appeal without prejudice was appropriate and
     that the dismissal would conserve the resources of the parties and avoid a lengthy
     delay. Id. The administrative judge directed the appellant to promptly file his
     OSC complaint regarding the FY 2015 performance pay and to refile this appeal
                                                                                        4

     within 30 days of receipt of written notice from OSC that it was closing its
     investigation into his complaint and/or that he had the right to file a Board
     appeal. Id. The administrative judge stated that, if the appellant did not refile his
     appeal within 90 days of the date of the initial decision’s issuance, the Board
     would automatically refile it. Id. The administrative judge further stated that, if
     OSC pursues an investigation into the appellant’s complaint regarding the
     FY 2015 performance pay, the appellant may wait for the results of the
     investigation and need not refile the appeal prior to the date that the Board refiles
     it. W-1 ID at 2 n.*.
¶6         Although on review the appellant submits proof that he filed an OSC
     complaint on March 28, 2016, concerning his FY 2015 performance pay
     reduction, he has not shown that he has exhausted his administrative remedies
     with OSC concerning this claim. PFR File, Tab 4 at 10, 25. Specifically, the
     appellant offers no evidence that he received notification that OSC has terminated
     its investigation into his March 28, 2016 complaint, and 120 days have not
     elapsed since he filed this complaint with OSC. Moreover, the appellant does not
     specifically dispute the administrative judge’s decision to dismiss his appeal
     without prejudice to refiling after he exhausts his remedies with OSC concerning
     his FY 2015 performance pay reduction claim. See PFR File, Tab 1. Because the
     appellant has not shown any error in the administrative judge’s decision to
     dismiss this appeal without prejudice, we deny the petition for review.
¶7         Accordingly, as set forth in the initial decision, in order to be considered
     timely, the appellant must refile this appeal within 30 days of receipt of written
     notice from OSC that it is closing its investigation into his complaint and that he
     has a right to file a Board appeal. Further, if the appellant has not refiled this
     appeal within 90 days after the date of this Final Order, the regional office will
     automatically refile it.   If OSC pursues an investigation into the appellant’s
     complaint regarding FY 15 performance pay, the appellant may wait for the
                                                                                      5

results of the investigation and need not refile the appeal prior to the date the
regional office refiles it.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS †
      You have the right to request review of this final decision by the U.S. 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 U.S. 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 U.S. 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.



†
  The initial decision did not afford the appellant notice of appeal rights under the
Whistleblower Protection Enhancement Act of 2012. We have provided notice of such
appeal rights herein.
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     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
title 5 of the U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about other
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.
     If you are interested in securing pro bono representation for your 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
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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
