                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT NEWTON,                                  DOCKET NUMBER
                 Appellant,                          DC-0752-15-0300-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: November 10, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Gary Avery, Temple Hills, Maryland, for the appellant.

           Andrea L. Geiger and Joseph Moore, Washington, D.C., 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 his appeal as barred by the doctrine of collateral estoppel. For the
     reasons discussed below, we GRANT the petition for review, VACATE the initial
     decision, and REMAND the case to the regional 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                     BACKGROUND
¶2        The appellant resigned from his employment with the agency in
     August 2012. Initial Appeal File (IAF), Tab 1 at 6. On December 30, 2014, he
     filed a Board appeal in which he alleged that the agency discriminated against
     him by implanting radio frequency identification (RFID) devices on his body
     without his consent to track, follow, and harass him, denied him a within-grade
     increase, and forced him to resign on August 6, 2012. 2 Id. at 3, 8-9, 15-35. On
     his appeal form, the appellant indicated that he filed a whistleblower reprisal
     complaint with the Office of Special Counsel (OSC) on August 9, 2014, but had
     not received notification that OSC had terminated its investigation.      Id. at 4.
     Attached to his appeal form, the appellant submitted what appears to be his OSC
     complaint, in which he alleged that the agency took various personnel actions
     against him in retaliation for his whistleblowing activities, violated a number of
     laws and merit systems principles, and committed prohibited personnel practices.
     Id. at 3, 12-35. Finally, the appellant contended that the agency engaged in hiring
     practices that violated the requirements of veterans’ preference statutes.      Id.
     at 34-35.
¶3        Because it appeared that the Board previously had adjudicated these issues,
     see Newton v. Department of the Navy, MSPB Docket No. DC-0752-14-0148-I-1,
     Final Order (May 7, 2014) (0148 Final Order), the administrative judge ordered
     the appellant to show cause why his appeal should not be dismissed as barred by
     res judicata or collateral estoppel.   IAF, Tab 3.     In response, the appellant
     contended that his allegations relating to the RFID devices arose from scans of
     his body that post-dated his prior appeal, as reflected in a May 28, 2014 report
     from an expert that he retained. IAF, Tab 4 at 4, 8-12. The appellant also argued
     that the doctrine of collateral estoppel was inapplicable because OSC had
     accepted his “recent whistleblower complaint due to newer findings of Prohibited
     2
       The appellant indicated on his appeal form that he is appealing his involuntary
     retirement, but his Standard Form 50 indicates that he resigned. IAF, Tab 1 at 6.
                                                                                         3

     Personnel Practices and violations of Merit System Principles.” IAF, Tab 4 at 4,
     6, Tab 12 at 7.
¶4         The appellant also submitted a copy of a September 22, 2014 final agency
     decision (FAD) on an equal employment opportunity (EEO) complaint in which
     he alleged, among other things, that he was subjected to harassment as a result of
     the RFID devices and other agency actions, which forced him to resign on
     August 6, 2012. 3 IAF, Tab 4 at 33-46. The agency’s FAD treated the appellant’s
     complaint as a mixed-case complaint and notified him of his right to file a Board
     appeal within 30 calendar days of his receipt of the FAD. Id. at 34.
¶5         The agency replied to the appellant’s response to the show cause order,
     asserting that he was collaterally estopped from raising claims related to the
     RFID devices because those claims previously were litigated and decided by the
     Board.   IAF, Tab 11 at 5.     The agency further argued that, to the extent the
     appellant was attempting to appeal the FAD, he had received it on September 29,
     2014, and, thus, his December 30, 2014 Board appeal was untimely filed. Id.
     at 6-7, 11. Without holding the appellant’s requested hearing, the administrative
     judge dismissed the appeal as barred by collateral estoppel. IAF, Tab 1 at 2,
     Tab 13, Initial Decision (ID) at 5.
¶6         The appellant has filed a petition for review in which he asserts that he has
     new and material evidence consisting of a February 1, 2015 addendum to the
     May 28, 2014 expert report concerning scans of his body to test for the presence
     of RFID devices. 4 Petition for Review (PFR) File, Tab 1 at 4-7, 13-43. The
     agency has responded to the appellant’s petition. PFR File, Tab 4.


     3
      In response to the show cause order, the appellant also submitted pleadings that did
     not address the issues of res judicata or collateral estoppel. See IAF, Tabs 5, 8.
     4
       Even if such evidence could be considered new, we would find that it is not material
     to the outcome of this appeal because it does not pertain to the dismissal of the
     appellant’s claims as barred by collateral estoppel or otherwise establish Board
     jurisdiction. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
     (holding that the Board will not grant a petition for review based on new evidence
                                                                                        4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7         An initial decision must identify all material issues of fact and law,
     summarize the evidence, resolve issues of credibility, and include the
     administrative judge’s conclusions of law and his legal reasoning, as well as the
     authorities on which that reasoning rests.       Spithaler v. Office of Personnel
     Management, 1 M.S.P.R. 587, 589 (1980). Here, in concluding that the appeal
     was barred by collateral estoppel, the administrative judge improperly limited the
     appeal solely to the issue of the agency’s alleged implanting of RFID devices on
     the appellant’s body without identifying and addressing all of the claims raised by
     the appellant. Accordingly, as set forth below, we remand the appeal for further
     adjudication. On remand, the administrative judge should provide specific notice
     to the appellant of his burdens of proof regarding each of his claims, discussed
     below, allow the parties to submit evidence and argument, hold a hearing if
     appropriate, and issue a new initial decision.
     The administrative judge failed to adjudicate the appellant’s whistleblower
     reprisal claim.
¶8         The Board has jurisdiction over an individual right of action (IRA) appeal if
     the appellant has exhausted his administrative remedies before OSC and makes
     nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.
     § 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
     was a contributing factor in the agency’s decision to take or fail to take a
     personnel action as defined by 5 U.S.C. § 2302(a).         5 U.S.C. §§ 1214(a)(3),
     1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
     Cir. 2001). Here, the appellant indicated on his appeal form that he had filed a
     whistleblowing complaint with OSC on August 9, 2014, and referenced an
     attached letter to OSC regarding agency prohibited personnel practices and


     absent a showing that it is of sufficient weight to warrant an outcome different from
     that of the initial decision).
                                                                                           5

      violations of merit system principles. IAF, Tab 1 at 3-4, 12-35. The appellant
      also referenced his recent OSC complaint in subsequent pleadings. IAF, Tab 12
      at 7, 10.
¶9          In light of the aforementioned, we find that the administrative judge should
      have provided the appellant with notice of how to establish jurisdiction as a
      whistleblower. See Burgess v. Merit Systems Protection Board, 758 F.2d 641,
      643-44 (Fed. Cir. 1985) (holding that an appellant must receive explicit
      information on what is required to establish an appealable jurisdictional issue);
      IAF, Tab 2 at 2, Tab 3.      Without Burgess notice, the parties did not submit
      responses with evidence and argument on the jurisdictional issue and,
      consequently, the record was not fully developed on this issue. See Rodriguez v.
      Department of Homeland Security, 112 M.S.P.R. 446, ¶ 11 (2009). Because this
      error was prejudicial to the appellant’s substantive rights, it was harmful and
      must be corrected. See Guzman v. Department of Veterans Affairs, 114 M.S.P.R.
      566, ¶ 18 (2010). 5 Accordingly, we remand the appeal for further adjudication of
      the appellant’s whistleblower reprisal claim.
      The administrative judge failed to adjudicate the appellant’s claim of a potential
      Veterans Employment Opportunity Act of 1998 (VEOA) violation.
¶10         The Board has jurisdiction over an agency action that violates a statutory or
      regulatory provision relating to veterans’ preference or that interferes with a
      veteran’s right to compete.        5 U.S.C. §§ 3330a(a)(1), (d)(1)-(2), 3330c;
      3304(f)(1). To establish Board jurisdiction over a veterans’ preference appeal, an
      appellant must (1) show that he exhausted his remedy with the Department of
      Labor (DOL), and (2) make nonfrivolous allegations that (i) he is a preference



      5
        Although the agency acknowledged the appellant’s whistleblower claim in its response
      to the show cause order, see IAF, Tab 11 at 6, it did not set forth the burdens and
      elements of proof for this claim either as an IRA appeal or an affirmative defense and
      thus, its response was insufficient to inform the appellant of what he needed to allege
      regarding jurisdiction, see Guzman, 114 M.S.P.R. 566, ¶ 18.
                                                                                            6

      eligible within the meaning of the VEOA, 6 (ii) the action(s) at issue took place on
      or after the October 30, 1998 enactment date of the VEOA, and (iii) the agency
      violated his rights under a statute or regulation relating to veterans’ preference.
      5 U.S.C. § 3330a; Abrahamsen v. Department of Veterans Affairs, 94 M.S.P.R.
      377, ¶ 6 (2003). To establish Board jurisdiction over a right-to-compete appeal
      under VEOA, an appellant must (1) show that he exhausted his remedy with DOL,
      and (2) make nonfrivolous allegations that (i) he is a veteran within the meaning
      of 5 U.S.C. § 3304(f)(1), (ii) the action at issue took place on or after the
      December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of
      2004, and (iii) the agency denied him the opportunity to compete under merit
      promotion procedures for a vacant position for which the agency accepted
      applications from individuals outside its own workforce in violation of 5 U.S.C.
      § 3304(f)(1). Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5
      (2010).
¶11         Here, the appellant alleged that the agency violated veterans’ preference
      requirements and engaged in nepotism when it hired, promoted, and advocated
      the hiring and promoting of relatives. IAF, Tab 1 at 34. The appellant further
      asserted that the agency hired certain recruits in an effort to violate veterans’
      preference laws. Id. The appellant’s allegations should have been considered as
      an appeal under VEOA. As such, he must receive explicit information on what is
      required to establish jurisdiction over a VEOA claim.         See Burgess, 758 F.2d
      at 643-44.   Accordingly, we remand the appeal for further adjudication of the
      appellant’s potential VEOA claim.




      6
        The appellant denied on his appeal form that he is preference eligible. IAF, Tab 1
      at 1. Nonetheless, in light of our decision to remand the appeal and the appellant’s pro
      se status, the administrative judge should provide him with the opportunity on remand
      to nonfrivolously allege whether he is preference eligible.
                                                                                      7

      The administrative judge failed to adjudicate the appellant’s claim that he was
      constructively removed.
¶12         An employee-initiated action, such as a retirement or resignation, is
      presumed to be voluntary and thus outside the Board’s jurisdiction.      Vitale v.
      Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). If involuntary,
      however, it is equivalent to a forced removal and therefore is within the Board’s
      jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328
      (Fed. Cir. 2006). An appellant who claims that his retirement or resignation was
      involuntary may rebut the presumption of voluntariness in a variety of ways, for
      example, by showing that under the totality of the circumstances, the working
      conditions were made so intolerable by the agency that a reasonable person in the
      employee’s position would have felt compelled to leave. Wright v. Department of
      Veterans Affairs, 85 M.S.P.R. 358, ¶ 25 (2000). Jurisdiction is established in
      constructive adverse action appeals by showing:       (1) the employee lacked a
      meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
      deprived the employee of that choice.     Morrison v. Department of the Navy,
      122 M.S.P.R. 205, ¶ 5 (2015).
¶13         The record below reflects that the appellant asserted an involuntary
      retirement claim on his appeal form. IAF, Tab 1 at 3. Similarly, the appellant
      claimed in his EEO complaint that he was forced to resign due to the agency’s
      harassment of him with RFID devices. IAF, Tab 4 at 38. The administrative
      judge, however, failed to provide the appellant with notice of his jurisdictional
      burden with respect to this claim. See Burgess, 758 F.2d at 643-44; IAF, Tab 2
      at 2, Tab 3. Accordingly, we remand the appellant’s constructive removal claim
      for further adjudication.
      The administrative judge failed to adjudicate the appellant’s claim that he was
      denied a within-grade increase (WIGI).
¶14         The Board has jurisdiction over a denial of a WIGI.          See 5 C.F.R.
      § 1201.3(a)(8). An employee ordinarily is not entitled to appeal the denial of a
      WIGI to the Board unless he first has timely sought and received a
                                                                                         8

      reconsideration decision from the agency.         5 U.S.C. § 5335(c); 5 C.F.R.
      § 531.410(d); see Goines v. Merit Systems Protection Board, 258 F.3d 1289, 1292
      (Fed. Cir. 2001).
¶15         Here, although the appellant indicated that he was attempting to appeal the
      denial of a WIGI, see IAF, Tab 1 at 3, the administrative judge did not
      acknowledge such a claim, apprise the appellant of how to establish Board
      jurisdiction over it, or address it in the initial decision. Accordingly, we remand
      the appellant’s alleged denial of a WIGI claim.
      We provide the following guidance for the administrative judge on remand.
¶16         After receiving the parties’ responses to his jurisdictional notice or notices,
      on remand, the administrative judge should address the following issues in the
      order he deems appropriate.
¶17         The administrative judge should determine whether any of the appellant’s
      claims are barred by the doctrines of res judicata or collateral estoppel in light of
      the overlap of some of the issues with those raised by the appellant in his prior
      appeal. See Newton v. Department of the Navy, MSPB Docket No. DC-0752-14-
      0148-I-1, Initial Decision (Dec. 20, 2013); 0148 Final Order.         In the initial
      decision, the administrative judge found that all of the appellant’s claims were
      barred by collateral estoppel.    ID at 5.    However, in its final order on the
      appellant’s prior appeal, the Board observed that some issues, such as the
      appellant’s alleged involuntary resignation or retirement and the denial of a
      WIGI, were not properly before the Board because they were not raised below.
      0148 Final Order at 4.     Therefore, the administrative judge should revisit the
      issue of preclusion.
¶18         Regarding the appellant’s whistleblower reprisal claim, the administrative
      judge should address whether the appellant has elected to pursue this claim as a
      direct appeal to the Board, through a negotiated grievance procedure, or in an
      OSC complaint culminating in an IRA appeal. See Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶ 17 (2015). At this point, it is unclear whether the
                                                                                            9

      appellant has made such an election and, if so, whether the election was knowing
      and voluntary. Id., ¶ 18; see IAF, Tab 1 at 4, 9, 12-35.
¶19         To the extent the record reflects that the appellant may have filed a
      grievance as well an EEO complaint concerning some of the claims at issue in
      this appeal, the administrative judge also should address whether the appellant
      made a binding election of a different forum for pursuing those claims. 5 U.S.C.
      § 7121(d), (e); see generally Westbrook v. Department of the Air Force,
      77 M.S.P.R. 149, 152-54 (1997) (discussing the remedies under section 7121(d)
      and (e) available for different types of appealable matters). It is unclear from the
      record before us where and when the appellant first raised his constructive
      removal, denial of a WIGI, or other claims.
¶20         In addition, the administrative judge should determine whether the appeal of
      the FAD was timely filed. 7 If an appellant elects to file a Board appeal after
      filing a timely EEO complaint with the agency, such an appeal must be filed
      within 30 days of receiving the FAD. 5 C.F.R. § 1201.154(b)(1). The appellant
      bears the burden of proof regarding timeliness, which he must establish by
      preponderant evidence.        Mohammed v. Office of Personnel Management,
      108 M.S.P.R. 609, ¶ 8 (2008); 5 C.F.R. § 1201.56(a)(2)(ii) (Jan. 1, 2015). Here,
      the agency has provided evidence that the FAD was delivered to the appellant via
      certified mail on September 29, 2014. IAF, Tab 11 at 7, 11. The administrative
      judge did not address the FAD, but one of the agency’s pleadings below did. See
      id. at 6-7. The appellant submitted a response below addressing the timeliness
      issue, but he apparently did not dispute that he received the FAD on


      7
        The appellant’s claim that he was denied a WIGI does not appear to have been
      addressed in the agency’s FAD, see IAF, Tab 4 at 33-46, and it is not clear if the
      appellant raised this claim during the EEO process, see IAF, Tab 1 at 9, Tab 4 at 17-19,
      or when the alleged denial of the WIGI occurred. Thus, on remand the administrative
      judge should determine where and when the appellant first raised this claim and address
      any related timeliness issues, given that the appellant has not worked for the agency
      since August 2012. IAF, Tab 1 at 6.
                                                                                      10

      September 29, 2014. See IAF, Tab 12 at 6-7. Thus, it seems that the deadline for
      filing his appeal was October 29, 2014, and any appeal from the FAD would be
      untimely.
¶21        If an appellant fails to timely submit his appeal, it will be dismissed as
      untimely filed absent a showing of good cause for the delay.             5 C.F.R.
      § 1201.22(c). To establish good cause for the untimely filing of an appeal, a
      party must show that he exercised due diligence or ordinary prudence under the
      particular circumstances of the case.   Alonzo v. Department of the Air Force,
      4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good cause,
      the Board will consider the length of the delay, the reasonableness of his excuse
      and his showing of due diligence, whether he is proceeding pro se, and whether
      he has presented evidence of the existence of circumstances beyond his control
      that affected his ability to comply with the time limits or of unavoidable casualty
      or misfortune which similarly shows a causal relationship to his inability to
      timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60,
      62–63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶22        The agency’s pleading below did not discuss the good cause standard and
      the administrative judge did not issue a timeliness order informing the appellant
      of his burden.    See IAF, Tab 11 at 6-7.        On remand, if appropriate, the
      administrative judge shall provide the appellant with an opportunity to explain if
      his appeal of the FAD was timely filed, and, if not, demonstrate good cause for
      his untimely appeal of the FAD.
                                                                                   11


                                          ORDER
¶23        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




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