UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY V. BAKA, DOCKET NUMBER
Appellant, SF-0432-15-0435-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THIS FINAL ORDER IS NONPRECEDENTIAL 1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 chapter 43 removal appeal 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
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the law to the facts of the case; the 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). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective January 30, 2015, the agency removed the appellant from his
GS-15 Attorney Advisor position under chapter 43 procedures. Initial Appeal
File (IAF), Tab 9, Subtabs 4a-4b. On February 25, 2015, the appellant amended
his January 21, 2015 formal equal employment opportunity (EEO) complaint to
include his removal. IAF, Tab 6 at 4, 11-12. He subsequently filed a Board
appeal challenging his removal on March 24, 2015. IAF, Tab 1.
¶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 11, Initial Decision.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that the chapter 43 removal appeal was docketed in error
because he only sought to file an appeal of his removal under the Veterans
Employment Opportunities Act of 1998 (VEOA). 2 Id. Accordingly, he asserts,
2
The administrative judge docketed three separate matters, all relating to the agency’s
removal action: the instant chapter 43 removal appeal, a VEOA appeal (Baka v.
Department of Justice, MSPB Docket No. SF-3330-15-0436-I-1), and an appeal under
the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified
at 38 U.S.C. §§ 4301-4333) (USERRA) (Baka v. Department of Justice, MSPB Docket
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the initial decision should be “vacated and expunged.” Id. at 5. The agency filed
a response, to which the appellant replied. PFR File, Tabs 3-4.
¶5 As an initial matter, we do not agree with the appellant that the chapter 43
removal appeal was docketed in error. He indicated on his initial appeal form
that he was appealing the agency’s removal action and referenced an attached
document, wherein he extensively challenged the agency’s assertions regarding
his performance. IAF, Tab 1 at 2, 10-21. He did not make clear that he was not
seeking review of the merits of the agency’s removal action within the Board’s
jurisdiction as an “otherwise appealable matter.”
¶6 When an appellant has been subject to an action appealable to the Board
and files a timely complaint of discrimination with the agency before filing a
Board appeal, then he may only file a Board appeal within 30 days after receiving
the agency resolution or final decision on the discrimination issue or, if no
resolution or final decision has been received, any time after the expiration of
120 calendar days from the filing of the formal
complaint. 5 C.F.R. § 1201.154(b). The appellant raised his removal in a formal
EEO complaint before filing the instant appeal and neither of the aforementioned
conditions was satisfied when the initial appeal was filed, or by the time the
initial decision was issued. Under these circumstances, the Board’s regulations
authorize an administrative judge to dismiss a prematurely filed appeal without
prejudice, which is what happened here. See 5 C.F.R. § 1201.154(c). We
therefore affirm the initial decision.
¶7 However, the appellant’s appeal is now ripe for consideration as more than
120 days have passed since the filing of his formal complaint. Where a
prematurely filed mixed case appeal ripens on review, the Board may forward the
No. SF-4324-15-0437-I-1). He dismissed without prejudice as premature the instant
removal appeal and the VEOA appeal, and he dismissed the USERRA appeal as
premature. The appellant also has filed a petition for review of the initial decision in
his VEOA appeal, which we are adjudicating separately. He did not file a petition for
review of the initial decision in his USERRA appeal.
4
appeal for adjudication. Price v. Department of Veterans Affairs, 105 M.S.P.R.
126, ¶ 10 (2007). The appellant, though, has indicated that he does not wish to
pursue his chapter 43 removal appeal before the Board and there is no indication
that the agency has issued its final decision on his discrimination complaint.
Thus, we will not forward the appeal at this time. If the appellant wishes to
pursue this appeal further before the Board, he must refile his appeal with the
Board’s Western Regional Office within 30 days of receiving the agency’s final
decision. See 5 C.F.R. § 1201.154(b)(1). If he has now received the agency’s
final decision, he may refile within 30 days of the date of this order.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
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representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.