                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BARRY AHURUONYE,                                DOCKET NUMBERS
                 Appellant,                          DC-1221-15-0156-W-1
                                                     DC-1221-15-0201-W-1
                  v.                                 DC-1221-15-0339-W-1 1


     DEPARTMENT OF THE INTERIOR,                     DATE: JUNE 29, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 2

           Barry Ahuruonye, Hyattsville, Maryland, pro se.

           Josh C. Hildreth, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                     REMAND ORDER

¶1        The appellant has filed petitions for review of the initial decisions, which
     dismissed these appeals for lack of jurisdiction. For the reasons discussed below,

     1
       We JOIN these appeals because they were before the same administrative judge
     below, contain numerous identical filings by the appellant, allege wh istleblower
     retaliation by the same agency management official, and/or concern the same Office of
     Special Counsel (OSC) complaint. See 5 C.F.R. § 1201.36.
     2
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     we GRANT the appellant’s petitions for review and REMAND these cases to the
     Washington Regional Office for further adjudication in accordance with this
     Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant is a GS-12 Grants Management Specialist. MSPB Docket No.
     DC-1221-15-0156-W-1 (0156), Initial Appeal File (IAF), Tab 1 at 1. He filed
     three individual right of action (IRA) appeals with the Board asserting that the
     agency retaliated against him for filing an IRA appeal in July 2014 (MSPB
     Docket No. DC-1221-14-0911-W-1), in violation of 5 U.S.C. § 2302(b)(9)(A)(i).
     He alleged that, in retaliation for the aforementioned Board appeal, the agency:
     (1) issued him a leave restriction letter in October 2014 and subsequently relied
     upon that letter to charge him with 8 hours of absence without leave (AWOL) for
     his absence on November 12, 2014 (MSPB Docket No. DC-1221-15-0156-W-1);
     (2) issued him a zero performance rating on November 28, 2014, which resulted
     in him being denied a promotion and training (MSPB Docket No. DC-1221-15-
     0201-W-1 (0201)); and (3) placed him on a performance improvement plan (PIP)
     on January 12, 2015 (MSPB Docket No. DC-1221-15-0339-W-1 (0339)). 0156,
     IAF, Tab 1 at 4, Tab 3 at 4-5, Tab 7 at 8; 0201, IAF, Tab 1, Tab 12 at 20-21;
     0339, IAF, Tab 1 at 4; see 0156, IAF, Tab 6 at 8-15; see also 0339, IAF, Tab 11
     at 21-26, 45. In all three appeals, he indicated that he did not wish to have a
     hearing. 0156, IAF, Tab 1 at 2; 0201, IAF, Tab 1 at 2; 0339, IAF, Tab 1 at 2.
¶3        The administrative judge dismissed the appeals for lack of jurisdiction,
     finding that the appellant failed to establish that he first exhausted his
     administrative remedies with OSC. 0156, IAF, Tab 21; 0201, IAF, Tab 35; 0339,
     IAF, Tab 21.
                                                                                              3

¶4         The appellant has filed petitions for review in these appeals, asserting that
     he has exhausted his administrative remedies with OSC. 3              0156, Petition for
     Review (PFR) File, Tab 2; 0201, PFR File, Tab 2; 0339, PFR File, Tab 1. The
     agency has filed a response to each petition, to which the appellant has replied. 4
     0156, PFR File, Tabs 6-7; 0201, PFR File, Tabs 5-6; 0339, PFR File, Tabs 5-6.
¶5         An appellant raising claims in an IRA appeal must establish that he
     exhausted his remedies before OSC by showing that he informed OSC of the
     precise ground of his charge of whistleblowing, giving OSC a sufficient basis to
     pursue an investigation that might lead to corrective action, and either: (1) that
     he received written notification that OSC was terminating its investigation into
     his complaints; or (2) that 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);
     Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 15 (2013).                  In
     addition to his initial OSC complaint, an appellant also may submit as evidence of
     exhaustion any amendments to the complaint, OSC correspondence discussing the
     claims, and his responses to OSC correspondence discussing the claims. Mudd v.
     Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 12 (2013); see Kinsey v.



     3
       He also asserts that the administrative judge erred in cancelling a scheduled status
     conference during which he could have clarified the evidence he presented regarding
     exhaustion. 0201, Petition for Review (PFR) File, Tab 2 at 6-7. We need not address
     this argument because we find that he has now satisfied the exhaustion requirement and
     we remand these appeals accordingly.         Sim ilarly, we have not considered the
     appellant’s June 15, 2015 supplemental plead ing filed after the record closed on review.
     0339, PFR File, Tab 9.
     4
        The appellant argues that the Board should not consider the agency’s responses in
     MSPB Docket Nos. DC-1221-15-0156-W-1 and DC-1221-15-0201-W-1 because they
     were untimely filed on May 4, 2015, although they were due on May 2, 2015, without
     good cause shown. 0156, PFR File, Tab 7 at 4-5; 0201, PFR File, Tab 6 at 4-5. He is
     mistaken. May 2, 2015 was a Saturday, and the Board’s regulations specify that when a
     filing deadline falls on a Saturday, the filing period includes the first workday after the
     deadline. 5 C.F.R. § 1201.23. Thus, the agency’s responses were timely filed.
                                                                                            4

     Department of the Navy, 107 M.S.P.R. 426, ¶ 12 (2007) (an appellant may show
     exhaustion of his OSC remedy through means other than his OSC complaint).
¶6         On review, the appellant submits an OSC Form-11, which he asserts under
     penalty of perjury that he filed on November 28, 2014. 0156, PFR File, Tab 2 at
     3, 7, 36-43.    On that form, he alleged that the agency placed him on leave
     restriction, charged him with 8 hours of AWOL, issued him a zero performance
     rating, denied him a promotion, and denied him training in retaliation for his
     filing of an IRA appeal with the Board (MSPB Docket No. DC-1221-14-0911-
     W-1). Id. at 39-41. He submits an April 17, 2015 letter from OSC advising him
     that he may seek corrective action from the Board as to his allegations that the
     agency retaliated against him for making protected disclosures to the Board by
     charging him with AWOL, issuing him a zero performance rating, and denying
     him training.    0156, PFR File, Tab 5 at 4.          In addition, he submits email
     correspondence that he had with an investigator in OSC’s Investigation and
     Prosecution Division on January 20, 2015, wherein he reported that he
     experienced further retaliation because of his Board appeal when he was placed
     on a PIP as a result of the zero performance rating. 0339, PFR File, Tab 1 at
     26-28.
¶7         Based on the foregoing, we find that the appellant has exhausted his
     administrative remedies with OSC as to his claim that the agency retaliated
     against him for his previous filing of an IRA appeal by: issuing him a zero
     performance rating, placing him on leave restriction and a PIP, charging him with
     AWOL, and denying him a promotion and training. 5 As these issues are now ripe


     5
       The appellant’s complaints regarding the agency placing him on leave restriction,
     denying him a promotion, and placing him on a PIP are not specifically mentioned in
     OSC’s April 17, 2015 closure letter. However, at least 120 days have passed since the
     appellant reported all of these allegations to OSC and so they are ripe for adjudication.
     See Krape v. Department of Defense, 87 M.S.P.R. 126, ¶ 9 (2000) (considering whether
     the appellants had satisfied the exhaustion requirement assuming arguendo that the
     120-day time period began to run from the date they amended their OSC complaint).
                                                                                        5

     for adjudication, remand is appropriate.         See Morales v. Social Security
     Administration, 108 M.S.P.R. 583, ¶ 7 (2008) (remanding for adjudication a
     premature IRA appeal that ripened while pending before the Board).
¶8        It appears that the appellant also may be alleging under 5 U.S.C.
     § 2302(b)(8) that the personnel actions at issue in these appeals, in addition to
     being motivated by his previous IRA appeal, are part of an ongoing pattern of
     retaliation stemming from various protected disclosures he made beginning in
     April 2014 regarding purportedly illegal grants approved by his supervisor. See,
     e.g., 0156, IAF, Tab 16 at 4; 0339, IAF, Tab 1 at 4. The appellant has filed many
     voluminous pleadings, so we are presently unable to discern from the record
     whether he properly exhausted his OSC remedy as to such a claim.                 The
     administrative judge should resolve this issue on remand.
¶9        The appellant still bears the burden of establishing the remaining elements
     of Board jurisdiction, of which he already has been advised. We note that, in one
     of her jurisdictional orders below, the administrative judge stated that, in order to
     establish Board jurisdiction, the appellant must nonfrivolously allege that he
     made his alleged protected disclosures to “someone other than the alleged
     wrongdoer” and that a “disclosure made in the normal course of [one’s] job
     responsibilities is not protected as whistleblowing.”      0156, IAF, Tab 9 at 4.
     However, under the Whistleblower Protection Enhancement Act of 2012, Pub. L.
     No. 112-199, 126 Stat. 1465, which became effective on December 27, 2012, the
     law now provides protection to such disclosures. See 5 U.S.C. § 2302(f). This
     error does not appear to have caused any harm to the appellant but, to the extent
     that it did, he is now on notice and may raise such an issue on remand.
                                                                         6

                                 ORDER
     For the reasons discussed above, we REMAND these cases to the
Washington Regional Office for further adjudication in accordance with this
Remand Order.




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