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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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