                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 62

                            Docket No. DC-1221-14-0802-W-1

                                     Jeffrey Hawker,
                                        Appellant,
                                             v.
                           Department of Veterans Affairs,
                                         Agency.
                                    December 10, 2015

           Nina Ren, Esquire, Washington, D.C., for the appellant.

           Jeffrey James Hatch, Roanoke, Virginia, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND 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. For
     the reasons discussed below, we GRANT the appellant’s petition for review,
     FIND that the Office of Special Counsel (OSC) has reopened its investigation of
     the appellant’s whistleblower reprisal complaint, VACATE the initial decision,
     and DISMISS the appeal without prejudice to refiling under the terms set
     forth below.
                                                                                            2

                                        BACKGROUND
¶2         The appellant was employed as a Physician at the agency’s Salem, Virginia
     Medical Center under the authority of 38 U.S.C. § 7401(1), subject to a 2-year
     probationary period.     Initial Appeal File (IAF), Tab 1 at 10.       By letter dated
     December 16, 2013, the agency informed the appellant that he would be separated
     during his probationary period due to alleged substandard care and professional
     incompetence. Id. On February 25, 2014, the appellant filed a whistleblower
     reprisal complaint with OSC alleging that his employment was terminated in
     retaliation for his prior protected disclosures regarding patient care issues. Id.
     at 12-24. On April 26, 2014, OSC issued a close-out letter notifying the appellant
     of his right to seek corrective action from the Board. Id. at 25. On June 15,
     2014, the appellant filed a timely IRA appeal with the Board. 1 Id. at 5, 17-18.
¶3         The administrative judge issued an order informing the appellant that, to
     establish Board jurisdiction over an IRA appeal, he had to demonstrate that he
     had exhausted his reprisal claims before OSC and make nonfrivolous allegations
     that (1) he engaged in whistleblowing by making a protected disclosure or
     engaged in other protected activity, and (2) the disclosure or activity was a
     contributing factor in the agency’s decision to take or fail to take a personnel
     action. IAF, Tab 3 at 2. The appellant did not respond to the order. Without
     holding the appellant’s requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction, finding that the


     1
       The appellant also checked the box on his appeal form indicating that he was
     appealing his termination, but, on review, does not argue that the Board has jurisdiction
     over his termination as an independently appealable action. IAF, Tab 1 at 4. We note
     that, as a Department of Veterans Affairs Physician appointed under 38 U.S.C.
     § 7401(1), the appellant cannot appeal his termination directly to the Board. See
     5 U.S.C. § 7511(b)(10); Evans v. Department of Veterans Affairs, 119 M.S.P.R. 257, ¶ 6
     (2013). He can, however, bring this IRA appeal, in which the only issue is whether his
     termination was retaliatory. See 5 U.S.C. §§ 1221, 2105(f); Harding v. Department of
     Veterans Affairs, 448 F.3d 1373, 1377 (Fed. Cir. 2006).
                                                                                       3

     appellant failed to nonfrivolously allege the basic facts necessary to establish his
     IRA claim. IAF, Tab 8, Initial Decision (ID).
¶4         The appellant has filed a petition for review in which he asserts that, prior
     to the issuance of the initial decision, OSC had reopened its investigation of his
     claims.   Petition for Review (PFR) File, Tab 3 at 12, 33.     Because the record
     did not contain any correspondence from OSC informing the appellant that it
     would reconsider its original April 16, 2014 close-out determination, the Board
     issued a show cause order directing the appellant to submit evidence that OSC
     had reopened his case. PFR File, Tab 5. In response, the appellant provided a
     letter from OSC confirming that it had reopened its investigation following the
     appellant’s October 31, 2014 request for reconsideration. PFR File, Tab 7 at 7.
     On review, the appellant requests that the Board vacate the initial decision and
     dismiss the appeal without prejudice to refiling within 65 days of OSC’s closure
     of its investigation. PFR File, Tab 3 at 17. The agency has not responded to the
     appellant’s petition.

                                        ANALYSIS
¶5         Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his
     administrative remedies with OSC before seeking corrective action from the
     Board in an IRA appeal.          Mason v. Department of Homeland Security,
     116 M.S.P.R. 135, ¶ 8 (2011).       An appellant filing an IRA appeal has not
     exhausted his OSC remedy unless he has filed a complaint with OSC and either
     OSC has notified him that it was terminating its investigation of his allegations or
     120 calendar days have passed since he sought corrective action.           5 U.S.C.
     § 1214(a)(3); Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8
     (2010); 5 C.F.R. § 1209.5(a).
¶6         Here, OSC initially issued a close-out letter on April 16, 2014, notifying
     the appellant of his right to seek corrective action from the Board. IAF, Tab 1
     at 25. The appellant filed a timely Board appeal on June 15, 2014. Id. at 2-3. On
                                                                                          4

     or about October 31, 2014, while the appeal was pending before the
     administrative judge, the appellant requested reconsideration from OSC, and OSC
     granted his request. PFR File, Tab 3 at 111, Tab 7 at 7. The exact date OSC
     reopened its investigation is not clear from the record, but the appellant averred
     that he was aware of the reopening before his deployment on January 4, 2015.
     PFR File, Tab 3 at 33.        Apparently unaware that OSC had reopened the
     appellant’s case, the administrative judge issued an initial decision dismissing the
     appeal on January 26, 2015. ID at 1, 5.
¶7         The Board has held that a decision by OSC to reopen its investigation
     deprives its initial close-out determination of the requisite finality needed before
     an appellant can file an IRA appeal with the Board pursuant to 5 U.S.C.
     § 1214(a)(3)(A). Morrison v. Department of the Army, 77 M.S.P.R. 655, 659-62
     (1998). In Morrison, the Board held that, as a result of OSC’s reopening of its
     investigation during the limitations period, the appellant could file her IRA
     appeal within 65 days after any new close-out letter from OSC or, in the absence
     of a final OSC determination, at any time following 120 days from having sought
     further corrective action.   Id. at 661-62.   In so holding, the Board found that
     nothing in the Whistleblower Protection Act (WPA) or its legislative history
     prevented OSC from reconsidering matters after issuing its close-out letter and
     equated the requirement in 5 U.S.C. § 1214(a)(3)(A)(i) that OSC provide notice
     that its investigation “has been terminated” with the finality requirement for
     purposes of seeking appellate review. 2        Id. at 660-61.    Although Morrison
     involved the timeliness of the appellant’s Board appeal, whereas here the
     appellant filed a timely appeal and OSC subsequently reopened its investigation
     after the limitations period, we nonetheless find the reasoning in Morrison
     applicable here. Significantly, the Board in Morrison noted that the legislative

     2
      Nothing in the statutory amendments of the Whistleblower Protection Enhancement
     Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, alters the Board’s previous analysis.
                                                                                               5

     history of the WPA reflected Congress’s intent that OSC be allowed time to settle
     cases informally and take an active role in pursuing complaints on behalf of
     complaining individuals. Morrison, 77 M.S.P.R. at 661 (citing S. Rep. No. 413,
     100th Cong., 2d Sess. 19 (1988)).
¶8         More than 120 days have passed since OSC reopened the appellant’s case,
     and there is no question that, pursuant to 5 U.S.C. § 1214(a)(3)(B), he could now
     seek corrective action from the Board even absent a final decision from OSC. 3
     Generally, the Board’s practice is to adjudicate an appeal that was premature
     when filed but becomes ripe while pending before the Board. See, e.g., Jundt v.
     Department of Veterans Affairs, 113 M.S.P.R. 688, ¶ 7 (2010) (forwarding an
     IRA appeal that became ripe while pending on petition for review). However,
     under the unique circumstances of this case, we find that it is not appropriate to
     forward the case to the regional office for further adjudication in light of the
     appellant’s request to pursue his Board appeal following OSC’s closure of its
     investigation.   PFR File, Tab 3 at 16-17.          Accordingly, we dismiss the appeal
     without   prejudice    to   refiling   with   the     regional   office   subject   to   the
     following requirements. 4


     3
       Because 120 days now have passed since OSC granted the appellant’s request for
     reconsideration, we need not decide whether the appellant was required to re-exhaust
     his administrative remedies by waiting 120 days following OSC’s reopening of its
     investigation before filing an IRA appeal with the Board. Cf. Edwards v. Department of
     the Air Force, 120 M.S.P.R. 307, ¶¶ 14-18 (2013) (finding that merely filing a request
     for reconsideration with OSC did not create an additional administrative exhaustion,
     and so, absent any evidence that OSC granted the appellant’s request for
     reconsideration, the appellant was not required to wait for a response from OSC on his
     reconsideration request, or if he did not receive a response, wait at least 120 days after
     requesting reconsideration before filing his IRA appeal with the Board). Even if the
     reopening triggered a new 120-day waiting period under 5 U.S.C. § 1214(a)(3)(B), that
     time has passed.
     4
       Upon refiling, the administrative judge may incorporate portions of the record from
     this appeal, but in any event shall afford the parties a new opportunity to develop the
     record on all issues. In this regard, we note that the initial decision incorrectly states
     that there must be an “element of blatancy” to qualify activity as “gross
                                                                                         6

¶9          This is the final decision of the Merit Systems Protection Board in this
      (MSPB Docket No. DC-1221-14-0802-W-1) appeal.                Title 5 of the Code of
      Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

                                               ORDER
¶10         The appeal is dismissed without prejudice. Because the 120-day period in
      5 U.S.C. § 1214(a)(3)(B) is satisfied here, the appellant may refile his IRA appeal
      with the regional office at any time, but in any event, not later than 65 days after
      receiving a new close-out letter from OSC notifying him that it is terminating its
      investigation or 180 days after issuance of this Opinion and Order, whichever
      occurs first.

                         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 the U.S. Court of Appeals for the Federal Circuit or any court of


      mismanagement” under 5 U.S.C. § 2302(b)(8). ID at 5; see White v. Department of the
      Air Force, 391 F.3d 1377, 1383 (Fed. Cir. 2004).
                                                                                  7

appeals of competent jurisdiction to review this final decision.      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.
      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 http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      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
                                                                                  8

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.
