                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     RODOLFO M. CASTRO,                              DOCKET NUMBER
                  Appellant,                         DA-0752-14-0660-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: March 9, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Kristyn M. Houchen, Esquire, Ventura, California, for the appellant.

           Norbert S. Walker, Fort Bliss, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1        The agency has filed a petition for review of the initial decision, which
     dismissed the appeal without prejudice. Generally, we grant petitions such as this
     one only when: 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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, and based on the following points and authorities, 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 appellant filed this adverse action appeal following his August 30, 2014
     removal from his position as Lead Detective, GS-0083-09, at Fort Bliss, Texas,
     for Breach of Public Trust. Initial Appeal File (IAF), Tab 1, Tab 4 at 20, 24-29,
     57-59. He has asserted that he was removed in retaliation for whistleblowing
     activities.   IAF, Tab 1 at 16.    His petition for appeal included a statement
     regarding the circumstances surrounding his removal, id. at 18-20, as well as a
     copy of a report he made to the Honorable Beto O’Rourke, a Member of the U.S.
     House of Representatives, on January 30, 2014, id. at 25.             The report to
     Representative O’Rourke states that the appellant and several colleagues filed a
     complaint on May 13, 2013, with the Army Inspector General regarding a hostile
     work environment and other abuses. Id.
¶3         During a telephonic status conference, the appellant’s representative
     explained that he had filed a February 2014 complaint with the Office of Special
     Counsel (OSC) regarding other alleged retaliatory acts, and that he had more
     recently advised OSC’s investigator of his removal. See IAF, Tabs 9-10, 13. The
     representative requested that the administrative judge dismiss the appeal without
     prejudice to refiling within 120 days because OSC had informally stated that it
                                                                                        3

     might intervene on his behalf. IAF, Tab 10 at 4, Tab 13 at 5. The OSC complaint
     pre-dated the notice of proposed removal and was based on personnel actions that
     occurred before the removal action. 2        The representative explained that the
     appellant would not know whether OSC would incorporate the removal in his
     complaint until the investigator had issued a final decision. IAF, Tab 13 at 5.
     The agency objected, requesting that the appeal be dismissed with prejudice.
     IAF, Tab 10 at 4-5. The agency asserted that it would be prejudiced by the delay
     and that the Board lacked jurisdiction and/or the appellant had made a binding
     election under 5 U.S.C. § 7121(g). Id.
¶4           The administrative judge dismissed the appeal without prejudice, allowing
     the appellant to refile on or before March 14, 2015. IAF, Tab 15, Initial Decision
     (ID) at 1, 3. The administrative judge found that the agency failed to show that it
     would be prejudiced by the delay, but in any event, the appellant may have
     already been prejudiced because the conduct for which he was being disciplined
     had occurred more than 2 years before the proposal notice was issued. ID at 2.
     The administrative judge also noted that OSC might intervene or broker a
     settlement in the case. ID at 2. In its petition for review, the agency argues that
     the administrative judge abused his discretion by dismissing the appeal without
     prejudice and applied an erroneous interpretation of the law by not dismissing the
     appeal for lack of jurisdiction. Petition for Review (PFR) File, Tab 1 at 6-7.
¶5           An administrative judge has wide discretion to dismiss an appeal without
     prejudice in the interests of fairness, due process, and administrative efficiency,
     and he may order such a dismissal at the request of one or both parties, or to
     avoid a lengthy or indefinite continuance.        See Thomas v. Department of the
     Treasury, 115 M.S.P.R. 224, ¶ 7 (2010); see also 5 C.F.R. §§ 1201.29,
     1201.41(a)-(b).     The Board will uphold the administrative judge’s exercise of



     2
         The notice of proposed removal was issued on May 13, 2014. IAF, Tab 4 at 57.
                                                                                          4

     such an option when the circumstances so warrant.            Ryan v. Department of
     Homeland Security, 112 M.S.P.R. 43, ¶ 4 (2009).
¶6        Dismissal of the appeal without prejudice was appropriate here on grounds
     of both administrative efficiency and fairness for the reasons that the
     administrative judge cited. See ID at 2. The agency asserts that the appellant did
     not file evidence in support of his request for dismissal, PFR File, Tab 1 at 7, and
     that the administrative judge inappropriately credited the representations of his
     attorney regarding the potential for OSC intervention, id., Tab 3 at 4. We have
     long held that the representations of counsel are not evidence, see, e.g., Hendricks
     v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995). Ideally, the appellant
     would have submitted evidence of his contact with OSC, including the complaint
     form and the notice he gave the investigator regarding his removal. Nothing in
     the record, however, suggests that the administrative judge should have
     discounted counsel’s representations. To the contrary, the record shows that the
     appellant was engaged in whistleblowing activity and concerned about possible
     retaliation long before the notice of proposed removal was issued.           See IAF,
     Tab 1 at 18-20, 25; see also IAF, Tab 4 at 54-56.
¶7        Given counsel’s representations, it was a proper exercise of discretion for
     the administrative judge to allow the appellant to ascertain whether OSC intended
     to incorporate the removal in his existing complaint. It served the interests of
     both administrative efficiency and fairness to delay temporarily the processing of
     the appeal.   We believe that neither party would be prejudiced by the delay,
     especially the agency, given its still-inexplicable decision to pursue disciplinary
     action more than 2 years after the alleged misconduct occurred. 3 See ID at 2.

     3
       The agency explained that the charge was based on transcripts of telephone
     conversations between the appellant and his acquaintance, who was the subject of an
     investigation by the Drug Enforcement Administration. IAF, Tab 14 at 5. The agency
     averred that it received the transcripts when the investigation closed, “long after the
     calls were recorded.” I d. The agency provides no other information that would allow
     us to determine the exact length of the delay.
                                                                                             5

¶8         The agency also asserts that the Board lacks jurisdiction in this case
     because the appellant made a binding election under 5 U.S.C. § 7121(g) when he
     informed OSC about his removal. 4 PFR File, Tab 1 at 6. When the appeal was
     dismissed, however, the appellant did not know whether the removal action would
     be incorporated into his existing complaint.         See IAF, Tab 13 at 5.         In his
     response to the petition for review, he explains that he was able to ascertain that
     OSC’s investigation was still proceeding and that OSC was not incorporating the
     removal action in the complaint.       PFR File, Tab 2 at 5.       He adds that OSC’s
     investigator advised him to file a new complaint regarding the removal. Id.
¶9         Even if OSC were to incorporate the removal action in the appellant’s
     complaint, we would still find that the appellant did not make a binding election
     when he notified OSC’s investigator about his removal because the agency has
     failed to provide the appellant with sufficient information regarding the
     limitations on his appeal rights to render any election knowing and informed.
     For matters arising under 5 U.S.C. §§ 7121(d) and (e), the Board has long held in
     appeals that an agency’s failure to provide proper notice of the “potential avenues
     of recourse” and of the limitations on those rights precludes finding that the
     employee has made a knowing and informed election and thus renders it invalid.
     See, e.g, Johnson v. Department of Labor, 26 M.S.P.R. 447, 450 (1985).                 In
     Agoranos v. Department of Justice, 119 M.S.P.R. 498 (2013), the Board applied
     general rules of statutory construction to find that Congress intended to extend
     the Board’s requirement of a knowing and informed election of remedies to

     4
        Under 5 U.S.C. § 7121(g), an employee who has been subjected to an action
     appealable to the Board and who alleges that he has been affected by a prohibited
     personnel practice other than a claim of discrimination under section 2302(b)(1), may
     elect to pursue a remedy through one, and only one, of the following remedial
     processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed
     pursuant to the provisions of the negotiated grievance procedure; or (3) a complaint
     following the procedures for seeking corrective action from OSC under 5 U.S.C.
     §§ 1211-1222. Agoranos, 119 M.S.P.R. 498, ¶ 14. Whichever remedy he seeks first is
     deemed to be his election of that process and precludes pursuit of the matter in the other
     two forums. I d.
                                                                                          6

      section 7121(g), id., ¶ 16. The appellant in that case had filed a complaint with
      OSC alleging that the agency denied him a within-grade increase, and he had
      amended his complaint to allege that he was removed in reprisal for his
      whistleblowing. Id., ¶ 17. The appellant subsequently filed a Board appeal. Id.
      The Board found that the appellant was not precluded from filing a subsequent
      Board appeal of his removal because the agency removed the appellant without
      notifying him of his right to file a request for corrective action with OSC and
      without notifying him of the effect that such an election would have before the
      Board. Id.
¶10         In the instant case, the agency notified the appellant of his right to appeal
      his removal to the Board or file a request for corrective action with OSC. IAF,
      Tab 4 at 27-29 of 106. The agency, however, did not notify the appellant of the
      effect that electing to file a Board appeal would have before OSC. Similarly, the
      agency did not notify the appellant of the effect that electing to request corrective
      action with OSC would have before the Board. Therefore, pursuant to Agoranos,
      the   appellant   has   not    made   a    knowing and     informed   election   under
      section 7121(g) of either the Board appeal process or OSC procedures.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
             You have the right to request review of this final decision by the United
      States 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),
                                                                                  7

(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 United States 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 United States 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 United States 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 United
States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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 United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
                                                                           8

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.
