Chambers v. Dep't of Homeland Sec.
| Decision Date | 02 May 2022 |
| Docket Number | PH-1221-17-0161-W-1 |
| Parties | Dwyne Chambers, Appellant, v. Department of Homeland Security, Agency. |
| Court | Merit Systems Protection Board |
Dwyne Chambers, Jarrettsville, Maryland, pro se.
Lorna J. Jerome, Esquire, Washington, D.C., for the agency.
Sally Gnat, Esquire and Christopher G. Leo, Esquire, Washington D.C., for amicus curiae, Office of Special Counsel.
BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member
¶1 The appellant has filed a petition for review of the initial decision, which dismissed his whistleblower individual right of action (IRA) appeal for lack of jurisdiction. For the reasons set forth in this Opinion and Order, we DENY the appellant's petition for review, VACATE the initial decision, and DISMISS the appeal for lack of jurisdiction.
¶2 The appellant is employed as a Pipefitter at the agency's U.S. Coast Guard Yard in Baltimore, Maryland. Initial Appeal File (IAF), Tab 9 at 81-85. On or about March 30, 2016, he filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) alleging that the agency took various actions against him in reprisal for his protected disclosures and protected activity. IAF Tab 1 at 5-57. On October 14, 2016, OSC sent him a preliminary determination letter with its proposed factual and legal determinations regarding his complaint and notified him that he had 13 days to respond. Id. at 3. On November 16, 2016, OSC sent the appellant a closure letter notifying him that it had not received any comments from him it was terminating its investigation, and he could file an appeal with the Board. Id. at 3-4.
¶3 On January 14, 2017, the appellant filed this IRA appeal. IAF, Tab 1. The administrative judge issued a jurisdictional order informing the appellant of his burdens of proving that he had exhausted his administrative remedies before OSC and of raising nonfrivolous allegations that he made a protected disclosure or engaged in protected activity that was a contributing factor in the agency's decision to take a personnel action against him. IAF, Tab 7. After the appellant failed to respond to the order, the administrative judge issued an initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID). The administrative judge found that the appellant failed to exhaust his administrative remedies before OSC because he failed to respond to OSC's preliminary determination letter. ID at 6-7. Alternatively, the administrative judge found that the appellant's claims were conclusory and vague and, thus, failed to amount to nonfrivolous allegations that he made a protected disclosure or engaged in protected activity that was connected to any action taken against him. ID at 7.
¶4 The appellant has filed a petition for review to which the agency has not responded. Petition for Review (PFR) File, Tab 1. OSC has filed an amicus curiae brief in which it argues that the administrative judge erred in finding that the appellant failed to exhaust his administrative remedies.[1] PFR File, Tab 3.
The administrative judge erred in finding that the appellant failed to exhaust his administrative remedies as a result of his failure to respond to OSC's preliminary determination letter.[2]
¶5 In a whistleblower IRA appeal, an appellant "shall seek corrective action from the Special Counsel before seeking corrective action from the Board." 5 U.S.C. § 1214(a)(3). This requirement of administrative exhaustion entails both substantive and procedural requirements. Procedurally, it requires that an appellant show that OSC has notified him that it terminated its investigation and no more than 60 days have elapsed since such notification was provided to him.[3] 5 U.S.C. § 1214(a)(3)(A); see 5 C.F.R. § 1209.5(a).
¶6 The administrative judge found that the appellant failed to exhaust his administrative remedies before OSC because OSC terminated its investigation after the appellant failed to respond to its preliminary determination letter. ID at 6-7. The administrative judge reasoned that, by failing to respond to OSC's preliminary determination letter, the appellant failed to comply with OSC's procedures and, thus, failed to fully exhaust his administrative remedies. ID at 7.
The administrative judge, however, cited no authority in support of such a finding. In its amicus brief, OSC argues that the appellant was not required to respond to its preliminary determination letter in order to have exhausted his administrative remedies. PFR File, Tab 3. We agree.
¶7 The statutory requirements for OSC's processing of whistleblower complaints are set forth in 5 U.S.C. § 1214. In pertinent part, that section provides that, no later than 10 days before terminating its investigation, OSC must provide to the individual who made an allegation of a prohibited personnel practice a written status report containing its proposed findings of fact and legal conclusions.[4] 5 U.S.C. § 1214(a)(1)(D). It further provides that the individual who made the allegation of a prohibited personnel practice "may submit written comments about the report" to OSC. Id. (emphasis added). After reviewing any comments submitted by the individual, if OSC nonetheless decides to terminate its investigation, it must provide that individual with written notice of the termination of its investigation, containing a summary of the relevant facts, its response to any comments submitted by the individual, and the reasons for terminating its investigation.[5] 5 U.S.C. § 1214(a)(2)(A).
¶8 As OSC points out, the language in 5 U.S.C. § 1214(a)(1)(D) is permissive regarding an individual's response to OSC's preliminary determination letter and nothing in the statute requires an individual to respond to OSC's preliminary determination letter to retain his IRA appeal rights. Thus, we find that the appellant was not required to respond to OSC's preliminary determination letter to prove that he exhausted his administrative remedies and the administrative judge erred in misconstruing the appellant's opportunity to respond under 5 U.S.C. § 1214(a)(1)(D) as a requirement to respond. Instead, as explained below, the relevant inquiry concerning exhaustion in this matter is whether the appellant provided OSC with sufficient detail concerning his claims.
The appellant's request for corrective action concerning events that occurred prior to August 15, 2014, is barred by a settlement agreement.
¶9 The appellant seeks corrective action concerning events that occurred between 2008 and 2012. IAF, Tab 1 at 4, 11-12, 14-15. The agency moved to dismiss the appeal, in part arguing that it was barred by a prior settlement agreement resolving the appellant's equal employment opportunity (EEO) complaint in which he alleged that his nonselection in 2012 was due to discrimination. IAF, Tab 6 at 5, 76-79. The appellant did not respond to the agency's motion and has not contested the validity of the settlement agreement, which he signed on August 15, 2014. Id. at 79. In the agreement, the agency agreed to place the appellant in a Work Leader position for 30 days, provide him with priority consideration for the next Work Leader position, provide him certain training, and pay his attorney's fees. Id. at 76-77. In exchange, the appellant agreed to withdraw his EEO complaint and "to waive his rights to pursue any complaint, related claim, or charge arising from facts extant [sic] through the date of this Agreement." Id. at 77. He further agreed that the Settlement Agreement and General Release included "all Claims that he has the right to pursue before the [Equal Employment Opportunity Commission], the Merit Systems Protection Board, the Office of Special Counsel, whether past, present, or future, regarding facts arising on or prior to the date of his signing this Agreement, which he may have against the Agency." Id. at 78. Thus, we find that the settlement agreement precludes the appellant from pursuing any claims before the Board against the agency regarding facts arising on or before August 15, 2014. See, e.g., Vogel v. Department of the Navy, 106 M.S.P.R. 451, ¶¶ 2, 5 (2007) (). In particular, to the extent the appellant is alleging that he was not selected for Pipefitter Work Leader positions in 2008 and 2012 in reprisal for his whistleblowing, IAF, Tab 1 at 11-12, such claims are barred by the settlement agreement.
The appellant exhausted his administrative remedies regarding his claim that he received a written admonishment on February 18, 2016, in reprisal for making protected disclosures on May 17 and August 1, 2007, and for filing grievances in June 2007, and May 2011.
¶10 As described above, 5 U.S.C. § 1214(a)(3) requires that an appellant in an IRA appeal exhaust his administrative remedies by seeking corrective action from OSC before seeking corrective action from the Board. The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Mount v. Department of Homeland Security, 937 F.3d 37, 47-48 (1st Cir. 2019); Delgado v. Merit Systems Protection Board 880 F.3d 913, 916 (7th Cir. 2018); Acha v. Department of Agriculture, 841 F.3d 878, 883-84 (10th Cir. 2016); McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1374 (Fed. Cir. 2016); Briley v. National Archives & Records Administration, 236 F.3d 1373, 1377-78 (Fed. Cir. 2001); Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992); ...
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