UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY V. BAKA, DOCKET NUMBER
Appellant, SF-3330-15-0436-I-1
v.
DEPARTMENT OF JUSTICE, DATE: September 30, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gregory V. Baka, Dublin, California, pro se.
Melanie F. Jones, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his removal under the Veterans Employment
Opportunities Act of 1998 (VEOA) without prejudice as prematurely filed.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). For the reasons discussed below, we DENY the petition
for review and FORWARD the case to the regional office for docketing and
adjudication as a refiled appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective January 30, 2015, the agency removed the appellant from his
GS-15 Attorney Advisor position with the Bureau of Alcohol, Tobacco, Firearms,
and Explosives. Initial Appeal File (IAF), Tab 11, Subtabs 4a-4b. He filed a
complaint with the Department of Labor (DOL) on February 23, 2015, alleging
that his removal violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA) and VEOA. IAF, Tab 1 at 302-04. On March 11, 2015, DOL advised
him that it had concluded its investigation of his VEOA complaint and that he
could file an appeal with the Board as to that claim. IAF, Tab 1 at 306. On
February 25, 2015, the appellant amended his January 21, 2015 formal equal
employment opportunity (EEO) complaint to include his removal. IAF, Tab 7
at 4, 11-12. Subsequently, on March 24, 2015, he filed an appeal with the Board
regarding his removal. 2 IAF, Tab 1. He asserted that his removal violated
2
The administrative judge docketed three separate matters, all relating to the agency’s
removal action; the instant VEOA appeal, a chapter 43 removal appeal (Baka v.
Department of Justice, MSPB Docket No. SF-0432-15-0435-I-1), and an appeal under
USERRA (Baka v. Department of Justice, MSPB Docket No. SF-4324-15-0437-I-1).
He dismissed the instant VEOA appeal and the chapter 43 removal appeal without
prejudice as prematurely filed, and he dismissed the USERRA appeal as premature.
3
VEOA. 3 The administrative judge dismissed the appeal without prejudice as
prematurely filed because 120 days had not yet passed since the filing of the
appellant’s EEO complaint, and the agency had not yet issued its final decision on
that complaint. IAF, Tab 12, Initial Decision.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that the administrative judge erroneously conflated his
EEO complaint with his VEOA appeal, and that his VEOA appeal was already
ripe for adjudication because he had exhausted his administrative remedy with
DOL before filing it with the Board. Id. He contends that his VEOA appeal is
distinct and severable from his EEO complaint, noting that he could not have
raised a veterans’ preference claim in his EEO complaint. Id. The agency filed a
response, to which the appellant replied. PFR File, Tabs 3-4.
¶4 In dismissing the appellant’s appeal without prejudice as prematurely filed,
the administrative judge applied the timeliness requirements applicable to mixed
cases, which are set forth at 5 C.F.R. § 1201.154. See, e.g., Dowell v. U.S. Postal
Service, 113 M.S.P.R. 250, ¶ 7 (2010) (finding that if an appellant files a Board
appeal prematurely after filing a formal EEO complaint, the administrative judge
must dismiss the appeal without prejudice to its later refiling). An administrative
judge has broad discretion to control the proceedings before him, and dismissal
without prejudice is a procedural option that is committed to his sound discretion.
Desmond v. Department of Veterans Affairs, 90 M.S.P.R. 301, 302 (2001).
Regardless of whether the dismissal was proper, the issue is now moot because
The appellant also has filed a petition for review of the initial decision in his chapter 43
removal appeal, which we are adjudicating separately. He did not file a petition for
review of the initial decision in his USERRA appeal.
3
He claimed that circumstantial evidence establishes that the agency manufactured
performance deficiencies because it wanted to remove him in order to reduce costs by
reducing the number of attorneys in the office where he worked. IAF, Tab 1. He
asserted that the agency’s actions thus constituted a “de facto” reduction in force (RIF)
and that the agency should have accorded him veterans’ preference, which it would
have been required to apply had it utilized formal RIF procedures. Id.
4
more than 120 days have passed since the appellant filed his formal EEO
complaint. As such, we forward 4 this appeal to the Western Regional Office for
docketing as a refiled appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
4
The appellant checked the box on his initial appeal form indicating that he was also
appealing an involuntary retirement. IAF, Tab 1 at 2. He stated that on February 16,
2015, he applied “for an involuntary retirement, effective January 31, 2015.” Id. at 9.
The administrative judge did not address this claim and it is unclear whether the
appellant still wishes to pursue it, though it appears that he may. See PFR File, Tab 1
at 6. The administrative judge should resolve this issue during the adjudication of the
refiled appeal.
5
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms
5, 6, and 11.
If you are interested in securing pro bono representation for your appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.