                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ABIGAIL L. PADILLA,                             DOCKET NUMBER
                    Appellant,                       DE-0752-15-0483-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: February 8, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Abigail L. Padilla, Denver, Colorado, pro se.

           Emily Urban, Esquire, San Francisco, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal without prejudice subject to automatic refiling within
     120 days. For the reasons discussed below, we GRANT the appellant’s petition
     for review and REMAND the case to the field office for further adjudication in
     accordance with this order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed an initial appeal with the Board on July 10, 2015,
     challenging her removal and raising various affirmative defenses, including
     whistleblower reprisal under 5 U.S.C. § 2302(b)(8) and reprisal for engaging in
     protected activity under several subsections of 5 U.S.C. § 2302(b)(9).           Initial
     Appeal File (IAF), Tab 1. The record below reflects that the agency issued the
     appellant a notice of proposed removal on March 27, 2015, and that it issued her
     a decision letter on June 18, 2015, which imposed her removal effective June 26,
     2015. IAF, Tab 22 at 34-39, 54-60. After filing her initial appeal, the appellant
     submitted a series of documents, one of which appears to be part of an Office of
     Special Counsel (OSC) complaint referencing her removal. 2 IAF, Tab 4 at 29-35.
¶3         The agency moved to dismiss the appeal for lack of jurisdiction.             IAF
     Tab 22 at 23. In its motion to dismiss, the agency argued that the appellant filed
     a complaint of whistleblower reprisal with OSC on June 11, 2015, and thus made
     an election to challenge her removal with OSC under 5 U.S.C. § 7121(g). See id.
     at 23-24 (citing IAF, Tab 4 at 37).       The agency further argued that because
     120 days had not passed since the appellant filed her complaint with OSC, the
     appellant’s appeal was premature, and the Board therefore lacked jurisdiction
     over the appeal as an individual right of action (IRA) appeal under 5 U.S.C.
     § 1221. Id. The administrative judge issued an order to show cause outlining the
     appellant’s burden of establishing the Board’s jurisdiction over her appeal, and in
     response, the appellant submitted various documents seeking both consequential
     damages and an accommodation from the Board enabling her to litigate her
     appeal, and she also provided a narrative of some of her OSC complaints. IAF,
     Tabs 33-35.

     2
       Although this document bears a date of July 13, 2015, in the lower right-hand corner,
     we are uncertain if this date refers to when the document was created, last accessed, or
     printed. IAF, Tab 4 at 29-35. The document, moreover, is missing the first few pages
     that would contain information relevant to when it was first created. Neither the agency
     nor the administrative judge cited to or discussed this document.
                                                                                          3

¶4         The administrative judge issued an initial decision dismissing the appeal
     without prejudice subject to automatic refiling within 120 days of the date of the
     initial decision. IAF, Tab 36, Initial Decision (ID). In his initial decision, the
     administrative judge agreed with the agency that the appellant submitted
     complaints to OSC prior to filing her Board appeal, and that, because 120 days
     had not elapsed since the filing of her complaints, her appeal was premature. ID
     at 6. The appellant has filed a petition for review suggesting that she did not
     challenge her removal in any of her complaints to OSC and that the
     administrative judge incorrectly stated the date on which she filed her appeal with
     the Board. Petition for Review (PFR) File, Tab 1 at 7-8. The agency has filed a
     response in opposition to the petition for review. PFR File, Tab 3. 3
¶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 based his dismissal of the appeal without prejudice upon
     finding that the appellant had filed a complaint with OSC prior to filing her Board
     appeal and that she had not yet exhausted her administrative remedies with OSC.
     ID at 6. As explained below, we disagree with the administrative judge insofar as
     he found that the appellant’s June 11, 2015 complaint to OSC encompassed her
     removal. Although we are unable to determine whether the appellant challenged
     her removal in any of her other complaints to OSC prior to filing her appeal with
     the Board, and thus we make no finding whether the appellant has made an


     3
       On December 6, 2015, January 6, 2016 and January 27, 2016, the appellant submitted
     four pleadings. PFR File, Tabs 12-15. Because the record in this matter had already
     closed upon the expiration of the period for filing the reply to the response to the
     petition for review, see 5 C.F.R. § 1201.114(k), and because the appellant did not
     comply with the Board’s regulation that required her to file a motion and obtain leave
     to submit an additional pleading, see 5 C.F.R. § 1201.114(a)(5), we have not considered
     these pleadings on review. However, the administrative judge should consider the
     appellant’s additional pleadings on remand.
                                                                                              4

     election of remedies under 5 U.S.C. § 7121(g) concerning her removal, we
     disagree that dismissal without prejudice to refiling was appropriate.
¶6        An employee who has been subjected to an action appealable to the Board
     and who alleges that she has been affected by a prohibited personnel practice
     other than a claim of discrimination under 5 U.S.C. § 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.     See 5 U.S.C. § 7121(g); Edwards v. Department of the
     Air Force, 120 M.S.P.R. 307, ¶ 12 (2013). Whichever remedy is sought first by
     an aggrieved employee is deemed to be an election of that procedure and
     precludes   pursuing   the   matter     in     either   of   the     other    two   forums.
     Edwards, 120 M.S.P.R. 307, ¶ 12.             If an employee elects to challenge an
     otherwise appealable action by filing a request for corrective action with OSC, an
     appellant must exhaust her administrative remedies with OSC before filing an
     IRA appeal with the Board. Id., ¶ 15.
¶7        Here, the administrative judge determined that the appellant filed a
     complaint with OSC on June 11, 2015, before filing her Board appeal, and that
     because 120 days had not elapsed since filing her complaint with OSC, and
     because she did not submit evidence that OSC had notified her that it was
     terminating its investigation into her complaint, the Board lacked jurisdiction
     over the appeal as a prematurely filed IRA appeal.                 ID at 6.   The agency,
     however, did not issue a decision letter on the proposed removal until June 18,
     2015, and it did not issue a Standard Form 50 (SF-50) effecting the removal until
     June 26, 2015. IAF, Tab 22 at 35-36. The Board previously has found that an
     OSC complaint challenging a proposed removal does not preclude an appellant
     from filing a separate Board appeal under chapter 75 challenging the removal
     action. See Westmoreland v. Department of Veterans Affairs, 77 M.S.P.R. 315,
                                                                                         5

     317-18 (1998); Douglass v. Department of Transportation, 60 M.S.P.R. 1, 4-5
     (1993). In Douglass, the Board explained that it does not have jurisdiction over a
     proposed removal under chapter 75, and it found that the administrative judge
     mistakenly dismissed a removal appeal pending the appellant administratively
     exhausting her complaint challenging her proposed removal with OSC.               See
     Douglass, 60 M.S.P.R. at 4-5.
¶8        Under Douglass, therefore, the appellant could not have elected to
     challenge her removal with OSC in her June 11, 2015 complaint, and we find
     there was no legal basis for the administrative judge to dismiss the appellant’s
     appeal without prejudice based on her June 11, 2015 filing with OSC. See id.
     We thus grant the appellant’s petition for review and vacate the initial decision.
     We remand the appeal to the administrative judge for consideration of the
     following outstanding issues that bear upon the Board’s jurisdiction over the
     appellant’s case as either an IRA appeal or an otherwise appealable action under
     chapter 75.
¶9        The appellant has submitted documentation on petition for review reflecting
     that she filed five separate complaints with OSC. 4 PFR File, Tab 2 at 11. Three
     of these complaints predate both the agency’s decision letter and the effective
     date of the appellant’s removal, and one of these complaints postdates the filing
     date of her Board appeal. 5 Id. The appellant, therefore, could not have elected to
     challenge her removal in any of these OSC complaints because they either predate
     her removal or postdate the instant Board appeal.          See 5 U.S.C. § 7121(g);
     Douglass, 60 M.S.P.R. at 4-5.


     4
      Although the appellant submitted numerous documents to the administrative judge, we
     have not found a copy of this summary in any of her submissions.
     5
       We agree with the appellant that the agency and the administrative judge mistakenly
     stated that she filed her initial appeal with the Board on June 10, 2015. ID at 2. The
     appellant filed her initial appeal via the Board’s e-Appeal system on July 10, 2015,
     after the effective date of her removal. IAF, Tab 1.
                                                                                              6

¶10         The appellant, however, appears to have filed a complaint with OSC on
      June 23, 2015, which is in between the date of the agency’s decision letter and the
      date of the SF-50 effecting her removal.          PFR File, Tab 2 at 11; IAF, Tab 22
      at 34-39. The appellant has provided no specific information about the nature of
      this complaint or the alleged acts of reprisal identified therein.         Additionally,
      there is some evidence in the documents the appellant submitted to the
      administrative judge that may reflect that she challenged her removal in one of
      her OSC complaints. 6        IAF, Tab 4 at 29.      It thus remains possible that the
      appellant challenged her removal in an OSC complaint before she filed her Board
      appeal on July 10, 2015. Based on the current record, however, we cannot make
      this determination.
¶11         On remand, the administrative judge should ascertain the nature of the
      appellant’s June 23, 2015 OSC complaint, as well as the filing date of the OSC
      complaint referencing her removal. PFR File, Tab 2 at 11; IAF, Tab 4 at 29. If
      the appellant challenged her removal in an OSC complaint either as an act of
      whistleblower reprisal or as an act of reprisal for engaging in protected activity
      under 5 U.S.C. § 2302(b)(8)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D) before she
      filed her appeal with the Board on July 10, 2015, then she would have made an
      election to pursue her remedies with OSC under 5 U.S.C. § 7121(g), and her
      challenge to her removal should be adjudicated under the Board’s procedures
      governing IRA appeals once she administratively exhausts her complaint with
      OSC. See, e.g., Aquino v. Department of Homeland Security, 121 M.S.P.R. 35,
      ¶¶ 9-10 (2014). Alternatively, if the appellant did not challenge her removal in
      an OSC complaint that predates July 10, 2015, then the administrative judge
      should adjudicate her removal appeal under chapter 75, and he should adjudicate

      6
        Again, this document is   undated, and we are unable to determine whether the appellant
      filed this document with    OSC, and whether she did so before or after filing her Board
      appeal on July 10, 2015.    Neither the agency nor the administrative judge addressed this
      document insofar as it      bears on the nature of the Board’s jurisdiction over the
      appellant’s removal.
                                                                                        7

      any and all affirmative defenses she has raised in response to her removal under
      the   applicable   standards.     See,   e.g.,   Savage   v.   Department   of   the
      Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015) (setting forth the standards for
      adjudicating a discrimination affirmative defense); Alarid v. Department of the
      Army, 122 M.S.P.R. 600, ¶¶ 12-15 (2015) (explaining the standards for
      adjudicating affirmative defenses of reprisal under 5 U.S.C. § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), and (b)(9)(D)).

                                            ORDER
¶12         For the reasons discussed above, we remand this case to the field office for
      further adjudication in accordance with this remand order.




      FOR THE BOARD:                             ______________________________
                                                 William D. Spencer
                                                 Clerk of the Board
      Washington, D.C.
