UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 26
Docket No. DC-1221-19-0677-W-1
Peggy A. Maloney,
Appellant,
v.
Executive Office of the President, Office of Administration,
Agency.
August 3, 2022
Peggy A. Maloney, Alexandria, Virginia, pro se.
Raheemah Abdulaleem, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant petitions for review of the initial decision that dismissed her
individual right of action (IRA) appeal for lack of jurisdiction. For the following
reasons, we GRANT the petition for review, VACATE the initial decision, and
REMAND the appeal for further adjudication consistent with this Opinion
and Order.
BACKGROUND
¶2 The appellant, a GS-11 Management Analyst with the Office of
Administration (OA), an entity within the Executive Office of the President
2
(EOP), filed this IRA appeal alleging that, in reprisal for whistleblowing
disclosures, the agency took numerous actions against her, including placing her
on administrative leave, issuing a letter of reprimand, placing her on a work
improvement plan, denying her a within-grade increase (WIGI), and proposing
her suspension. 1 Initial Appeal File (IAF), Tab 1 at 1, 6-19, Tabs 5-6, Tab 11
at 19. The agency moved to dismiss the appeal for lack of jurisdiction asserting,
among other things, that it was not an “agency” under 5 U.S.C. §§ 1221(a),
2302(a)(2)(A), (b)(8), over which the Board has jurisdiction in an IRA appeal .
IAF, Tab 8 at 14-21. The appellant filed a response to the agency’s motion to
dismiss, in which she addressed this issue. IAF, Tab 14 at 14-17.
¶3 Based on the written record, the administrative judge dismissed the appeal,
finding that the Board lacks jurisdiction over IRA appeals filed by OA employees
in EOP. 2 IAF, Tab 19, Initial Decision (ID) at 1, 5-8. She reasoned that, under
1
The appellant also filed and had automatically refiled Board appeals challenging her
subsequent separation from employment. Maloney v. Executive Office of the President,
Office of Administration, MSPB Docket No. DC-0752-20-0092-I-1; Maloney v.
Executive Office of the President, Office of Administration , MSPB Docket
No. DC-0752-20-0092-I-2. Those cases will be adjudicated by the Board in separate
decisions. The appellant also has filed a request for regulation review, the disposition
of which does not impact our decision here. See Maloney v. Office of Personnel
Management, MSPB Docket No. CB-1205-21-0005-U-1. Therefore, that request will be
separately adjudicated.
2
Although not raised by the parties on review, the agency asserted below that the
appeal was untimely filed because it was not filed within the 60-day deadline set forth
at 5 U.S.C. § 1214(a)(3)(A). IAF, Tab 8 at 21-23. The administrative judge found the
appellant timely filed the appeal, but provided no reasoning in support of that
conclusion. We agree that the appeal was timely filed. Section 1214(a)(3)(A) of title 5
provides that an IRA appeal must be filed no more than 60 days after “notification was
provided” that the Office of Special Counsel (OSC) terminated its investigation of the
appellant’s complaint. The statutory language does not specify whether the 60-day
period begins to run from the date of the Special Counsel’s notice or the date of the
whistleblower’s receipt of that notice. Practices and Procedures for Appeal and Stay
Requests of Personnel Actions Allegedly Based on Whistleblowing, 62 Fed. Reg.
59992-01, 59992 (Nov. 6, 1997). Under the Board’s implementing regulations
clarifying that issue, an IRA appeal must generally be filed no later than 65 days after
3
the applicable statute, only employees in a covered position in an “agency” may
seek corrective action from the Board, and that EOP was not an “agency.” Id.
The administrative judge also noted that, although the appellant asserted that the
agency denied her a WIGI, “there is no record that the appellant filed an appeal of
that action.” ID at 4 n.2.
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has filed a response thereto. Petition for Review (PFR) File, Tabs 1-2, 4,
13. 3 The appellant has filed a reply to the agency’s response to her petition for
review. PFR File, Tab 14. 4
the date OSC issued its close-out letter or, if the letter is received more than 5 days
after its issuance, within 60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1); e.g.,
Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 6 (2014). If the 65th day
falls on a weekend or holiday, the filing period automatically is extended to the next
work day. Pry v. Department of the Navy, 59 M.S.P.R. 440, 442-43 (1993); 5 C.F.R.
§ 1201.23. Here, the 65th day after OSC emailed its May 9, 2019 letter advising the
appellant of her right to file an IRA appeal with the Board was Saturday, July 13, 2019.
IAF, Tab 11 at 6-7. Thus, she timely filed her appeal on the next workday, which was
July 15, 2019. IAF, Tab 1.
3
Because the appellant’s arguments at Tabs 1 and 4 of the Petition for Review File are
identical, we have cited only to where those arguments appear at Tab 1 for the sake of
clarity. For the same reason, to the extent the appellant repeats the same arguments in
Petition for Review File, Tab 2, we have cited only to where those arguments appear in
Tab 1.
4
The appellant has filed several motions for leave to submit additional pleadings in
which she raises “objection[s]” and “concerns” that address arguments already
mentioned in her petition for review, such as the administrative judge’s decision to
sever her appeals and failure to issue a decision within 120 days. PFR File, Tabs 10,
20; see 5 C.F.R. § 1201.114(a)(5) (providing that no pleading other than those
described in 5 C.F.R. § 1201.114(a) will be accepted unless the Clerk of the Board
grants the party’s motion to do so). She also raises new claims such as an alleged
criminal conspiracy. PFR File, Tab 10. Once the record closes on review, no
additional evidence or argument will be accepted unless it is new and material and was
not readily available before the record closed. 5 C.F.R. § 1201.114(k). We deny the
appellant’s motions because she has not met these requirements. See Durr v.
Department of Veterans Affairs, 119 M.S.P.R. 195, ¶ 23 (2013) (denying an appellant’s
request to submit a document containing information that he failed to show was
unavailable despite his due diligence before the record closed on review).
4
ANALYSIS
Our focus in this case is primarily on whether OA, rather than EOP as a whole , is
subject to the Board’s IRA jurisdiction.
¶5 It is not clear whether the administrative judge based her jurisdictional
determination on a finding that OA was not an “agency,” or on a determination
that the entire EOP was not an “agency.” Compare ID at 5 (“The Board lacks
jurisdiction over IRA appeals from employees in the Office of Administration in
the Executive Office of the President.”), 8 (“There is no evidence or argument to
establish that OA, EOP is covered under the definition of an ‘executive
agency.’”), with ID at 5-6 (finding that EOP was not an executive department or a
Government corporation, and stating that “[t]his case turns on whether EOP is an
‘independent establishment’ in the executive branch”). Because of the unique
nature of EOP as a collection of “offices and entities that directly support the
work of the President of the United States . . . courts have routinely examined
whether individual components within the EOP qualify as ‘independent
establishments’ or as ‘agencies,’ rather than examining the EOP’s status as a
whole.” Argus Secure Technology, LLC, B-419422, B-419422.2, 2021 WL
694804, *6 (Comp. Gen. Feb. 22, 2021) (citing Kissinger v. Reporters
Commission for Freedom of the Press, 445 U.S. 136, 156 (1980) (determining
that “the President’s immediate personal staff or units in the [EOP] whose sole
function is to advise and assist the President” are not agencies subject to the
Freedom of Information Act (FOIA), even though EOP is expressly included in
the definition of an “agency” under FOIA (citations omitted))); Citizens for
Responsibility & Ethics in Washington v. Office of Administration, 566 F.3d 219,
223-24 (D.C. Cir. 2009) (CREW) (reviewing which units within EOP the U.S.
Court of Appeals for the D.C. Circuit (D.C. Circuit) had found were, and which it
had found were not, agencies subject to FOIA); United States v. Espy, 145 F.3d
1369, 1373 (D.C. Cir. 1998) (recognizing that the D.C. Circuit has declined to
consider EOP as a whole to be an agency under FOIA); Electronic Privacy
5
Information Center v. Presidential Advisory Commission on Election Integrity,
266 F. Supp. 3d 297, 315-18 (D.D.C. 2017) (declining to deem EOP as a whole a
“parent agency” subject to the Administrative Procedures Act; instead, examining
the functions of the EOP entity at issue, the Director of White House Information
Technology, and concluding it was not an agency). 5 Thus, our review focuses on
the specific EOP organization that took the actions at issue here, which was OA.
The central issue in this appeal is whether OA is an independent establishment
within the meaning of 5 U.S.C. § 104(1).
¶6 An “employee . . . may, with respect to any personnel action taken, or
proposed to be taken, against such employee . . . as a result of a prohibited
personnel practice described in [5 U.S.C. § 2302(b)(8), 2302(b)(9)(A)(i), (B), (C),
or (D)], seek corrective action from the [Board]” by filing an IRA appeal.
5 U.S.C. § 1221(a). A “personnel action,” in turn, means one of a number of
listed employment actions “with respect to an employee in . . . a covered position
in an agency.” 5 U.S.C. § 2302(a)(2)(A). Therefore, the Board’s jurisdiction in
an IRA appeal is dependent, in part, on whether an “agency” took the alleged
personnel action or actions. 6 See O’Brien v. Office of Independent Counsel,
74 M.S.P.R. 192, 199 (1997).
5
The Board may consider decisions by Federal district courts, and opinions of the
Comptrollers General and the Attorneys General, as persuasive guidance, but not as
binding authority. Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 11 n.2 (2006)
(finding that the Board may follow district court decisions it finds persuasive); Special
Counsel v. DeMeo, 77 M.S.P.R. 158, 172 (1997) (finding that the Board may consider
decisions of the Comptrollers General and Attorney General as persuasive, but not
binding, authority), aff’d per curiam, 230 F.3d 1372 (Fed. Cir. 1999) (Table). We find
that, for purposes of our determination to focus primarily on OA, the reasoning of
Argus Secure Technology and the various courts cited above is persuasive in this case.
6
This jurisdictional requirement is absent from chapter 75 of title 5. The only
requirements for the Board’s chapter 75 jurisdiction generally are that a tenured
employee suffered an appealable adverse action. Moncada v. Executive Office of the
President, Office of Administration, 2022 MSPB 25, ¶¶ 13, 24. With exceptions not
relevant to our discussion here, the Board’s jurisdiction over a chapter 75 appeal is not
6
¶7 An “agency” for purposes of an IRA appeal is defined as an “Executive
agency” and the Government Publishing Office, but does not include certain
intelligence and counterintelligence entities and the Government Accountability
Office (GAO). 5 U.S.C. § 2302(a)(2)(C). Section 2302 does not define
“Executive agency.” In defining that term in IRA appeals, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) and the Board have generally
relied on 5 U.S.C. § 105. See, e.g., Booker v. Merit Systems Protection Board,
982 F.2d 517, 519 (Fed. Cir. 1992); Wilcox v. International Boundary & Water
Commission, 103 M.S.P.R. 73, ¶ 8 (2006); O’Brien, 74 M.S.P.R. at 199; Pessa v.
Smithsonian Institution, 60 M.S.P.R. 421, 425 (1994). The appellant states in her
petition for review that the administrative judge “denies section 105 of title 5 is
applicable in this case.” PFR File, Tab 2 at 13. She is mistaken. The
administrative judge properly cited to, and relied on, 5 U.S.C. § 105. ID at 5-6 &
n.3.
¶8 Section 105 of title 5 defines an “Executive agency” as “an Executive
department, a Government corporation, and an independent establishment.”
Sections 101 through 105 of title 5 were enacted together. Act of Sept. 6, 1966,
Pub. L. No. 89-554, 80 Stat. 378, 378-79 (codified as amended, in pertinent part,
at 5 U.S.C. §§ 101-105). Therefore, we read them together as part of a
harmonious whole. 2A Shambie Singer & Norman Singer, Sutherland Statutes &
Statutory Construction § 46:5 (7th ed. 2021). The Executive departments are
dependent on whether the entity that took the action was an “agency” because the
relevant statutory language does not contain such a requirement. 5 U.S.C.
§§ 7511(a)(1), 7512, 7513(d), 7701(a); Moncada, 2022 MSPB 25, ¶¶ 13-20, 24 & n.4.
Because, as explained above, the Board only has IRA jurisdiction over an “agency,”
cases addressing the Board’s chapter 75 jurisdiction over OA employees are not helpful
for our analysis here. Thus, to the extent that the appellant argues that we have
jurisdiction over this appeal because the Board adjudicated the merits of her coworker’s
removal under chapter 75 in Moncada, and found it had jurisdiction over an OA
employee’s chapter 75 appeal in Caveney v. Office of Administration, 64 M.S.P.R. 169,
170, 172 (1994), PFR File, Tab 1 at 9-10, we find those cases to be inapposite.
7
listed in 5 U.S.C. § 101. A Government corporation, according to 5 U.S.C. § 103,
“means a corporation owned or controlled by the Government of the
United States.” An “independent establishment,” as relevant here, is defined as
“an establishment in the executive branch . . . which is not an Executive
department, military department, Government corporation, or part thereof, or part
of an independent establishment.” 7 5 U.S.C. § 104(1).
¶9 The administrative judge determined that OA is neither an Executive
department, nor a Government corporation. ID at 5-6. The parties do not
challenge this determination, and we discern no basis to disturb it. As the
administrative judge correctly observed, OA is not included in the list of
Executive departments set forth at 5 U.S.C. § 101. ID at 5. Moreover, there is no
indication that OA is a corporation owned or controlled by the Government of the
United States. ID at 5-6; cf. Snead v. Pension Benefit Guaranty Corporation,
74 M.S.P.R. 501, 503 (1997) (finding that Congress explicitly classified the
Pension Benefit Guaranty Corporation as a wholly owned Government
corporation). Therefore, to be an Executive agency within the jurisdiction of the
Board in this IRA appeal, OA must meet the definition of
“independent establishment.”
OA is an “independent establishment.”
¶10 There are no Board or Federal court cases directly addressing whether OA
is an “independent establishment” within the meaning of 5 U.S.C. § 104.
Therefore, the administrative judge looked to other statutes relating to OA and
decisions that interpreted the terms “agency” or “independent establishment” as
used in other statutes. ID at 6-8. The appellant disputes the applicability of these
7
The definition expressly excludes the U.S. Postal Service and the Postal Regulatory
Commission, and expressly includes GAO. 5 U.S.C. § 104. Because these entities
are not before us here, we will not discuss them further.
8
statutes and cases to this IRA appeal. PFR File, Tab 1 at 10-11. In order to
address her arguments, we look first to the language of section 104.
The meaning of “independent establishment.”
¶11 The interpretation of a statute begins with the language of the statute itself.
Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016). As set
forth above, an “independent establishment” is defined as “an establishment in
the executive branch . . . which is not an Executive department, military
department, Government corporation, or part thereof, or part of an independent
establishment.” 5 U.S.C. § 104(1). This definition does not clarify what is meant
by an “establishment.” 8 Instead, section 104 defines “independent establishment”
primarily in terms of what it excludes. OA is clearly not an Executive
department, military department, or Government corporation, or part thereof. We
find that OA also is not “part of an independent establishment.” Rather, it is part
of EOP, which as set forth more fully below, itself can be viewed as not an
independent establishment for purposes of this appeal.
8
The heading of section 104 is entitled, “[i]ndependent establishment,” but the text of
that provision does not suggest that any additional element of “independence” is
required to meet the definition, other than the requirements set forth in the text. In
other words, the statutory text contemplates that, so long as an establishment is not an
Executive department, military department, Government corporation, or part thereof, or
part of an independent establishment, the establishment is “independent.” Although the
title and headings of a statute may be “permissible” indicators of meaning, Fulton v.
City of Philadelphia, 141 S. Ct. 1868, 1928 (2021), and can aid in resolving an
ambiguity in the legislation’s text, I.N.S. v. National Center for Immigrants’ Rights,
Inc., 502 U.S. 183, 189 (1991), as the Supreme Court explained in Brotherhood of
Railroad Trainmen v. Baltimore & Ohio Railroad Co., 331 U.S. 519, 528-29 (1947), a
“wise rule” of statutory interpretation is “that the title of a statute and the heading of a
section cannot limit the plain meaning of the text.” See 2A Sutherland Statutory
Construction § 47.3(7th ed. 2021) (“The title cannot control a statute’s plain words.”).
As set forth below, we address whether OA meets the definition of “independent
establishment” as set forth in the plain meaning of the text of section 104, which is
clear. We therefore need not separately address the meaning of the term “independent.”
9
¶12 To the extent the statutory term “establishment” may be ambiguous, the
legislative history of section 104 sheds little light on its meaning. A Senate
Report covering the enactment of section 104 merely provides that “[t]he section
is supplied to avoid the necessity for defining ‘independent establishment’ each
time it is used in this title,” and that “[c]ertain agencies are not independent
establishments under the definition since they are constituent agencies or parts of
an independent establishment.” S. Rep. No. 89-1380, at 22 (1966). However, the
Senate Report specifies that “these agencies would continue to be subject to the
provisions of this title applicable to the independent establishment of which th ey
are a constituent or part.” Id.
¶13 In the absence of a statutory definition or clear guidance in the legislative
history, the Board generally will interpret words as taking their ordinary,
contemporary, common meaning. Weed v. Social Security Administration,
107 M.S.P.R. 142, ¶ 6 (2007). In determining that meaning, the Board may refer
to dictionary definitions. Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 14
(2017), aff’d sub nom. Williams v. Merit Systems Protection Board, 892 F.3d
1156 (Fed. Cir. 2018). Therefore, we do so here.
¶14 The ordinary meaning of the term “establishment” has remained essentially
unchanged since the early 19th century. An “establishment” is “[t]hat which is
fixed or established; as a . . . local government, an agency, . . . etc.”
Establishment, Webster’s 1828 Dictionary; see Webster’s 1993 Dictionary 778
(using similar terms such as “something that has been established ,” and providing
as an example “a permanent civil or military force or organization”). As set forth
below, a review of the historical background leading up to the creation of EOP
and OA is helpful in ascertaining whether OA meets the above definition.
The history of EOP and OA.
¶15 EOP first came into existence as a result of President Roosevelt’s
Reorganization Plan No. 1 of 1939, pt. 1, 4 Fed. Reg. 2727 (July 1, 1939), as
10
reprinted in 53 Stat. 1423 (1939); Harold C. Relyea, Congressional Research
Service, 98-606 GOV, The Executive Office of the President: An Historical
Overview 8 (2008) (Relyea). In his message to Congress accompanying the plan,
President Roosevelt wrote that the plan reduced the number of agencies reporting
directly to the President and gave the President “assistance in dealing with the
entire executive branch by modern means of administrative management.”
Message of the President to the Congress of the United States Accompanying the
Reorganization Plan No. 1 of 1939, as reprinted in 5 U.S.C. app. 1. Both in
Reorganization Plan No. 1, and in a second reorganization plan issued the same
year, Reorganization Plan No. 2 of 1939, the President transferred a number of
functions and entities to EOP. Reorganization Plan No. 1 of 1939, §§ 1-4, 4 Fed.
Reg. at 2727-28; Reorganization Plan No. 2 of 1939, § 301(a), 4 Fed. Reg. 2731,
2732 (July 1, 1939), as reprinted in 53 Stat. 1431. By joint resolution, Congress
provided that both reorganization plans went into effect on July 1, 1939. S.J.
Res. 138, 76 th Cong., 53 Stat. 813 (1939) (enacted).
¶16 A few months later, the President issued an Executive Order organizing
EOP by defining its functions and duties so as to provide the President with
“adequate machinery for the administrative management of the Executive branch
of the Government.” Exec. Order No. 8248, 4 Fed. Reg. 3864 (Sept. 8, 1939).
Since its creation, EOP has had a varying number of principal units within it.
Relyea at 8-10 (2008). As it exists today, “[t]he function of the EOP is to support
the work of the President . . . at the center of the executive branch of the federal
government.” Argus Secure Technology, LLC, 2021 WL 694804, *1.
¶17 President Jimmy Carter “established” OA in EOP by means of
Reorganization Plan No. 1 of 1977, § 2, 42 Fed. Reg. 56,101 (July 15, 1977, as
amended Sept. 15, 1977), as reprinted in 3 U.S.C. ch. 2, refs. & annot. In a
message to Congress accompanying the plan, the President emphasized that “ EOP
exists to serve the President and should be structured to meet his needs,” and that
he desired to “[l]imit the EOP, wherever possible, to functions directly related to
11
the President’s work.” Message of the President Transmitting Reorganization
Plan No. 1 of 1977 (July 15, 1977), as reprinted in 3 U.S.C. ch. 2, refs. & annot.
He summarized the functions of EOP as including, for example, “[p]rovid[ing]
day-to-day operational support (e.g., scheduling, appointments),” assisting with
presidential communications, and managing his “decisionmaking processes
efficiently and fairly.” Id.
¶18 Reorganization Plan No. 1 of 1977 provided that OA shall “be headed by
the President,” have a Director “appointed by the President,” and “provide
components of [EOP] with such administrative services as the President shall
from time to time direct.” Reorganization Plan No. 1 of 1977, § 2, 42 Fed.
Reg. 56,101. President Carter set forth additional information and direction
regarding OA’s responsibilities in Executive Order No. 12,028, 42 Fed.
Reg. 62,895 (Dec. 12, 1977). Per the Executive Order, OA “shall provide
common administrative support and services to all units within [EOP], ” and
“upon request, assist the White House Office in performing its role of
providing . . . administrative services” to the President. Executive Order
No. 12,028, § 3(a), 42 Fed. Reg. at 62,895. Further, OA’s common
administrative support and services “shall encompass all types of administrative
support and services that may be used by, or useful to, units within [EOP],”
including personnel management services, equal employment opportunity
programs, financial management services, data processing, library services,
records, information services, and mail services. Executive Order No. 12,028,
§ 3(b), 42 Fed. Reg. at 62,895. The Director of OA shall, among other things,
“do all other things that the President, as head of [OA], might do.” Executive
Order No. 12,028, § 4(a)(4), 42 Fed. Reg. at 62,896. Thus, OA is an extension of,
and provides support to, the President. It also supports EOP, which reports
directly to, and serves as an extension of, the President.
12
OA meets the definition of “independent establishment.”
¶19 As discussed above, the meaning of the word establishment” has remained
virtually unchanged throughout this period. An “establishment” could be a
permanent civil, military, public, or private institution. Establishment, Webster’s
1828 Dictionary; see Webster’s 1993 Dictionary 778. OA is an establishment
within the meaning of this definition. EOP was created in 1939, and since OA
was “established” in 1977 by means of Reorganization Plan No. 1 of 1977, it has
been a civil organization within EOP. See Pessa, 60 M.S.P.R. at 425 (finding the
Smithsonian Institution to be an “independent establishment” under 5 U.S.C.
§ 104 because the statute creating it identified it as an “establishment,” and it was
independent of any of the Executive departments). As examples of its
permanency, it has subdivisions and a staff. IAF, Tab 2 at 87 (describing the
appellant’s position as within the Office of the Chief Financial Officer (CFO)
within OA), Tab 9 at 123-24 (establishing a Staff Advisory Council within OA,
which is designed to “provide a unified voice to the Director and chief officers to
affect meaningful change on behalf of the OA workforce,” and “serve as a bridge
between staff and senior management”), 124 (listing five offices within OA),
Tab 12 at 52, 57 (describing positions as existing within the White House
Information Technology subdivision of OA and the CFO Office).
¶20 Moreover, OA is not “part of an independent establishment.” 5 U.S.C.
§ 104(1). As set forth above, OA is integrated into EOP and subject to the
President’s control. The U.S. Government Manual’s organizational chart does not
include EOP on its list of independent establishments, but instead places it on the
chart directly under the President and Vice President. Federal Register, The
United States Government Manual, Organizational Chart (2021)
https://www.usgovernmentmanual.gov (last visited Aug. 1, 2022); see 1 C.F.R.
§ 9.1 (requiring the Director of the Administrative Committee of the Federal
Registrar to publish the U.S. Government Manual). As previously discussed,
13
EOP itself operates at the center of the Executive branch, serves the President’s
needs, and is limited, as much as possible, to supporting his work. E.g., Message
of the President Transmitting Reorganization Plan No. 1 of 1977 (July 15, 1977),
as reprinted in 3 U.S.C. ch. 2, refs. & annot; Argus Secure Technology, 2021 WL
694804, *1. 9
¶21 The appellant asserts on review that Wilcox, 103 M.S.P.R. 73, ¶¶ 8-10,
supports a finding that OA is an “agency” for purposes of her IRA appeal. PFR
File, Tab 2 at 20. In Wilcox, the Board found that the International Boundary and
Water Commission (IBWC) was an “agency” for purposes of the appellant’s IRA
appeal because, among other things, IBWC employees were covered by various
provisions of title 5 of the U.S. Code, such as the Federal Employees’ Retirement
System, the Federal Employees Group Life Insurance Program, the Federal
Employees’ Health Benefits Program, title 5 leave provisions, and the Fair Labor
Standards Act, all of which the Board found either rely on the same definition of
“agency” or apply to “executive agencies.” Id., ¶¶ 8-10. The Board found that
“[t]hese are all indicia of Executive agency status.” Id., ¶ 9. While there appear
to be some organizational differences between OA and IBWC, we agree with the
appellant that Wilcox does provide some support for our determination in this
case, given that the appellant is also covered by many of those same programs
and statutes. IAF, Tab 12 at 51, 56.
¶22 Similarly, we find support for our determination in O’Brien, 74 M.S.P.R.
at 200, 202. The Board found therein that the Office of Independent Counsel was
an executive agency, and thus within the definition of “agency” for purposes of
the Whistleblower Protection Act (WPA), primarily because of the lack of an
9
Even assuming, however, that EOP were to be considered an “independent
establishment,” such a determination would not affect our determination in this case.
As set forth above, see supra ¶ 12, OA would continue to be subject to the provisions of
title 5 applicable to the independent establishment of which it is a constituent or part.
14
express statutory exclusion of that entity from 5 U.S.C. § 2302(a)(2)(C), as well
as court and GAO determinations finding that it was within the Executive branch.
The Board quoted from a GAO finding that independent counsels and their staff
are governed by the same statutory provisions and regulations applicable to other
executive branch officers and employees contained in title 5 of the U.S. Code
relating to pay, allowances, travel, and transportation. Id. at 200.
¶23 More importantly, because the whistleblower statutes are remedial
legislation, the Board will construe them liberally to embrace all cases fairly
within their scope, so as to effectuate the purpose of those statutes. Fishbein v.
Department of Health & Human Services, 102 M.S.P.R. 4, ¶ 8 (2006). In this
case, such a liberal construction includes 5 U.S.C. §§ 1221(a), 2302(a)(2)(A), and
2302(a)(2)(C), which together permit an employee in a covered position in an
“agency” to seek corrective action from the Board. The specific mention of
certain things in a statute implies the exclusion of other things. See Graves,
123 M.S.P.R. 434, ¶ 13. Here, it is significant that, although 5 U.S.C.
§ 2302(a)(2)(C) specifically excludes certain Federal entities from the definition
of “agency,” including the Federal Bureau of Investigation, the Central
Intelligence Agency, other entities involved in intelligence or counterintelligence
activities, and the GAO, it does not identify OA as being so excluded. See
O’Brien, 74 M.S.P.R. at 199 (holding that, when Congress excluded government
entities from coverage of the breadth of Federal civil service protections, it has
done so with specificity). Thus, this failure to specifically exclude OA from
section 2302(a)(2)(C) informs our interpretation of the term “Executive agency”
in that section, especially given that the definition of “Executive agency” set
forth at 5 U.S.C. § 105 is not specific to the whistleblower process. See
Jacobsen v. Department of Justice, 101 M.S.P.R. 134, ¶ 7 (2006) (holding that
specific statutory language aimed at a particular situation ordinarily controls over
general statutory language).
15
¶24 In fact, the legislative history of the 1994 Amendments to the WPA
indicates that Congress was dissatisfied with the Board’s narrow interpretation of
the statute that led to gaps in coverage. O’Brien, 74 M.S.P.R. at 208. In its
discussion of the expansion of the definition of “agency” in 5 U.S.C.
§ 2302(a)(2)(C) to include a government corporation, the responsible House
Committee warned against technically rigid criteria and directed that
“government corporation” be broadly construed to cover the full range of
federally-funded institutions “where the merit system may be relevant to defend
the taxpayers’ interest.” H.R. Rep. No. 103-769, at 23 (1994). More
significantly, the report provided as follows:
H.R. 2970 expands merit system coverage to virtually the entire
Federal workforce, including employees of the Department of
Veterans’ Affairs and of Government corporations. In addition to
those agencies exempted under section 2302(c)(ii) and 2302(c)(iii)
(the General Accounting Office, the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense Intelligence Agency,
the National Security Agency, and upon Presidential determination,
any Executive agency or unit thereof the principle function of which
is the conduct of foreign intelligence or counterintelligence
activities), the only employees not covered are those expected [sic]
from the competitive service when they applied or took office;
because of [the] position’s confidential, policy-determining,
policy-making, or policy-advocating character; or those excluded by
the President based on the President’s determination that it is
necessary and warranted by conditions of good administration.
Id. at 10. Given the above language in the legislative history, our determination
regarding OA adopts a broad construction of the terms “independent
establishment” and “Executive agency” to help expand whistleblower protection
coverage and make the merit systems more relevant to taxpayer interests.
¶25 Our interpretation of the applicable whistleblower statutes as not excluding
the appellant from Board appeal rights is not only consistent with the legislative
history of the Amendments, but is also consistent with OA’s historical position on
the appeal rights of its employees. The Presidential and Executive Office
16
Accountability Act (PEOAA), Pub. L. No. 104-331, 110 Stat. 4053 (1996)
(codified at 3 U.S.C. §§ 401-471), expanded the rights of individuals employed at
the EOP. The laws that became applicable to EOP employees under PEOAA
included, among others, the Fair Labor Standards Act of 1938, title VII of the
Civil Rights Act of 1964, various other statutes prohibiting discrimination, the
Family and Medical Leave Act of 1993, and the Occupational Sa fety and Health
Act of 1970. 3 U.S.C. § 402. PEOAA’s failure to include the applicable
whistleblower statutes of title 5 in the list suggests that Congress already
considered certain EOP employees to be covered by those statutes, which
predated PEOAA. In fact, in recommending the extension of these discrimination
and labor protections to EOP employees, the House Report appeared to assume
that the Board had jurisdiction over most EOP employees. See H.R. Rep.
No. 104-820, at 40-42 (1996) (indicating that most EOP employees “are covered
by Title 5 of the U.S. Code,” and that “Title 5 [EOP] employees are already
entitled to an administrative . . . hearing” before the Equal Employment
Opportunity Commission or the Board), as reprinted in 1996 U.S.C.C.A.N. 4348,
4375-77.
¶26 The legislative history also includes testimony regarding H.R. 3452, the bill
that became PEOAA, from Franklin S. Reeder, then-Director of OA. Mr. Reeder
explained that, “[t]he vast majority of [EOP] employees —two thirds or more—are
civil service employees covered by the same protections and rights as other career
executive branch employees under Title 5 of the U.S. Code.” Presidential and
Executive Office Accountability Act: Hearing on H.R. 3452 Before the
Subcomm. on Gov’t Mgmt., Info., & Tech. of the Comm. on Gov’t Reform and
Oversight, House of Representatives, 104th Cong. 152 (1996) (statement of
Franklin S. Reeder, Director, Office of Administration, Executive Office of the
President). He contrasted these employees with the remaining one third,
employed “in the four offices closest to the President: the White House Office,
17
Office of the Vice President, Office of Policy Development, and Exe cutive
Residence.” As to these employees:
By long tradition and express statutory authority, employees in
these four offices have served at the pleasure of the President. As
Congress mandated in the provisions of Title 3 of the
United States Code, these employees are hired “without regard to
any other provision of law regulating the employment or
compensation of persons in the Government service . . . . This
long tradition and express statutory authority flow from the
structure of the federal government established by the
United States Constitution. The unfettered ability of the
President to choose his closest advisers—and to choose when to
dismiss them—is a necessary outgrowth of the separation and
balance of the branches of government established in
the Constitution.
Id. at 152-53. In a footnote, Mr. Reeder added:
The [OA] is also authorized by Title 3, but its employees are, by
design, virtually all career civil servants hired under Title 5
authority. A small number of [OA] employees are Title 3
employees who serve at the will of the President, on the same
standing as employees in the White House Office and the other
three Title 3 offices. See 3 U.S.C. § 107(b)(1)(A). Accordingly,
the Office of Administration is more properly treated as a
“Title 5” agency for purposes of the applicability of employee
workplace laws.
Id. at 152 n.1. In later proceedings held on the PEOAA bill, the idea of creating a
new entity to review EOP employee claims was abandoned, with Representative
Carolyn Maloney explaining that EOP “employees already have recour se to the
Merit Systems Protection Board.” 142 Cong. Rec. H12,283-02, H12,286 (daily
ed. Oct. 4, 1996) (statement of Rep. Maloney).
¶27 In sum, because we find that OA is an independent establishment under
5 U.S.C. §§ 101, 103-104, it is also an Executive agency under 5 U.S.C. § 105,
and therefore meets the definition of “agency” set forth at 5 U.S.C.
§ 2302(a)(2)(C).
18
We decline to rely on decisions interpreting other statutes and concerning other
agencies to determine whether OA is an independent establishment.
¶28 We note that the agency and the administrative judge relied in part on
CREW, 566 F.3d at 220, 222, a case in which the court found that OA was not an
“agency” under FOIA, and therefore not covered by that statute. Although we
have relied on CREW in our determination above that the agency at issue in this
case is OA and not EOP, we otherwise find the CREW decision distinguishable
and do not rely upon it as a touchstone for determining the status of the OA. The
court in CREW noted that the term “agency” was defined for purposes of FOIA
as, among other things, an “establishment in the executive branch of the
Government (including the Executive Office of the President).” Id. at 222. The
court determined that the issue in deciding whether an EOP unit was an “agency”
subject to FOIA was whether the entity wielded substantial authority
independently of the President. Id. In adopting this standard, the court cited
Kissinger, 445 U.S. at 156, which relied on the legislative history of FOIA. Id.
The court concluded that the OA was not an “agency” subject to FOIA because it
did not wield substantial independent authority. Id. at 223-24. The statutes at
issue in this case differ significantly from those in CREW. Moreover, as set forth
above, there is scant legislative history for 5 U.S.C. § 104; thus, there is no basis
for using the CREW test to determine the status of OA in this case.
¶29 The agency and the administrative judge also relied on 3 U.S.C.
§ 107(b)(1), which provides that the President is authorized to regulate the
employment and compensation of certain OA employees without regard to other
provisions of law. ID at 7-8. The administrative judge found that this statute
supports a finding that OA is not an “agency” because “the President may
exercise authority over employees of OA as he determines to be appropriate.” ID
at 8. However, section 107(b)(1) addresses the President’s authority to appoint
and fix the pay of not more than 10 OA employees at designated rates of basic
pay “without regard to such other provisions of law as the President may specify
19
which regulate the employment and compensation of persons in the Government
service.” It does not suggest that all employees of OA are appointed under the
authority of title 3 of the U.S. Code. In fact, as set forth above, most EOP
employees are appointed under the authority of title 5 of the U.S. Code.
Therefore, we are not persuaded that section 107(b)(1) provides a basis for
making a determination as to whether OA is an “independent establishment”
under 5 U.S.C. § 104. 10
¶30 The administrative judge relied on Haddon v. Walters, 43 F.3d 1488, 1489
(D.C. Cir. 1995), wherein the court addressed whether an employee of the
Executive Residence of the White House could bring a title VII discrimination
case under 29 U.S.C. § 2000e-16. ID at 6. The administrative judge noted that
the court, in finding that the Executive Residence was not an “independent
establishment,” relied on 3 U.S.C. § 112, which the court held “distinguish[es]”
the Executive Residence from independent establishments. ID at 6-7.
Section 112 provides that “[t]he head of any department, agency, or independent
establishment of the executive branch of the Government may detail, from time to
time, employees of such department, agency, or establishment to the White House
Office, the Executive Residence at the White House, the Office of the Vice
President, the Domestic Policy Staff, and the Office of Administration.” 3 U.S.C.
10
The agency cites to Reorganization Plan No. 1 of 1977 in support of its contention
that “by law, staff members of OA are appointed by the President himself (or his
designee).” PFR File, Tab 13 at 16. However, section 2 of that reorganization plan,
which establishes the OA in the EOP, only references the President’s appointment of
the Director of the OA, who shall serve as its chief administrative officer.
The agency also contends that the Board’s website provides that PEOAA is the “only
basis” for its jurisdiction over EOP employees, and onl y after certain procedural
requirements have been met. PFR File, Tab 13 at 20-21. The agency has not shown
that the Board is bound by informational statements included on its website to assist
appellants with answers to common questions. In any event, t he Board’s website
merely provides a brief description of PEOAA; it does not identify PEOAA as the only
basis for Board jurisdiction over an appeal filed by an EOP employee.
20
§ 112. It provides that any such office to which an employee has be en detailed
shall reimburse the detailing department, agency, or establishment for the pay of
each employee under certain circumstances. Id. Thus, Haddon held that because
Congress distinguished the Executive Residence from independent
establishments, this suggested that Congress did not regard the Executive
Residence to be an independent establishment. Haddon, 43 F.3d at 1490. The
administrative judge applied analogous reasoning to OA. ID at 6-7. 11
¶31 However, we find that a provision in a statute like 3 U.S.C. § 112, relating
to details involving certain entities within EOP, does not shed light on the intent
of Congress regarding whistleblower protections in general, and whether an OA
employee can file an IRA appeal in particular. In other words, although Congress
may have intended that independent establishments be distinct from the OA for
purposes of details—although section 112 could just as easily be read as simply
setting forth a way of authorizing certain details without implying anything about
the status of the sending and receiving entities—it does not shed light on the
intent of Congress regarding whistleblower rights. Thus, we find that 3 U.S.C.
§ 112 and 5 U.S.C. § 104 are not in pari materia, and that section 112 is therefore
not helpful in discerning the meaning of the term “independent establishment.”
See Iverson v. United States, 973 F.3d 843, 850 (8th Cir. 2020) (applying the
statutory canon requiring that statutes be in pari materia (“on the same subject”)
before courts can construe them “as if they were one law,” and finding that the
Federal Tort Claims Act and the Air Transportation Security Act are not “on the
11
The appellant contends that Haddon is distinguishable from this appeal because
Mr. Haddon was appointed to his White House chef position under the authority of
title 3 of the U.S. Code, while she was appointed to her positi on under the authority of
title 5. PFR File, Tab 1 at 10-11. Given our determination that the reasoning in
Haddon is otherwise not persuasive for purposes of this appeal, we need not address
this argument.
21
same subject,” and thus, “there is no reason to assume that Congress attached the
same meanings to employee and officer in each.”).
¶32 Moreover, any reliance on 3 U.S.C. § 112 in interpreting 5 U.S.C. § 104 has
an unacceptable statutory effect. It uses a later enactment —3 U.S.C. § 112—to
aid in the construction of an earlier enactment—5 U.S.C. § 104. In this regard,
section 112 was enacted as part of Pub. L. No. 95-570, § 3(a), 92 Stat. 2449, on
November 2, 1978. Section 104, by contrast, was enacted as part of Pub. L.
No. 89-554, 80 Stat. 379, on September 6, 1966. Relying on section 112 in
construing section 104, therefore, would require the Board to hold that Congress
silently informed or altered a term’s meaning in one statute by passing an
unrelated statute over 10 years later, which would be contrary to general
principles of statutory interpretation. See Iverson, 973 F.3d at 849-50.
The appellant is an “employee” in a “covered position.”
¶33 Because the administrative judge did not address any other jurisdictional
issues in this IRA appeal, we address some of them here. The right to file an IRA
appeal derives from 5 U.S.C. § 1221(a), which provides a right to seek corrective
action from the Board to “an employee, former employee, or applicant for
employment.” Fishbein, 102 M.S.P.R. 4, ¶ 11. To be an employee under
section 1221(a), an individual must meet the definition of employee un der
5 U.S.C. § 2105. Id., ¶ 12. Under 5 U.S.C. § 2105(a), an “employee” is: (1) an
officer and an individual who is appointed in the civil service by one of the types
of individuals enumerated in the statute acting in their official capacity;
(2) engaged in the performance of a Federal function under authority of law or an
Executive act; and (3) subject to the supervision of an authorized official while
engaged in the performance of the duties of his position. The “civil service” is
defined as “all appointive positions in the executive, judicial, and legislative
branches of the Government of the United States, except positions in the
uniformed services.” 5 U.S.C. § 2101(1). Based on the record, it appears that the
appellant meets the definition of an employee. IAF, Tab 11 at 19, 59, Tab 12
22
at 43-52, 56-57. The agency does not assert otherwise. IAF, Tab 8; PFR File,
Tab 13.
¶34 A “covered position” means, among other things, “any position in the
competitive service,” but does not include any position that is excepted from the
competitive service because of its confidential, policy-determining,
policy-making, or policy-advocating character, or that is excluded from the
coverage of section 2302 by the President based on a determination by the
President that it is necessary and warranted by conditions of good administration.
5 U.S.C. § 2302(a)(2)(B). The record reflects that the appellant occupied
positions in the competitive service. IAF, Tab 11 at 19, 59, Tab 12 at 51-52,
56-57. There is no indication that her positions were excepted from the
competitive service for a reason listed in 5 U.S.C. § 2302(a)(2)(B)(i) or excluded
from coverage based on a determination by the President. See Usharauli v.
Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 18 (2011). The
agency does not make such arguments in this case. IAF, Tab 8; PFR File, Tab 13.
Thus, we find that the appellant’s positions were “covered” under 5 U.S.C.
§ 2302(a)(2)(B).
The appellant’s remaining arguments on review are without merit.
¶35 The appellant challenges the administrative judge’s decision to sever this
appeal from her appeal of her separation from employment. PFR File, Tab 1 at 5;
Maloney v. Office of Administration, Executive Office of the President , MSPB
Docket No. DC-0752-20-0092-I-1, Initial Appeal File, Tab 38. On October 30,
2019, the administrative judge joined this IRA appeal involving pre -separation
personnel actions with the appellant’s separation appeal. IAF, Tab 17. However,
in her July 23, 2020 initial decision, the administrative judge stated that “the
appeals were later severed.” ID at 3 n.1.
¶36 An administrative judge may join cases if doing so would expedite
processing of the cases and not adversely affect the interests of the parties.
5 C.F.R. § 1201.36(b). The decision whether to join two appeals is a matter
23
committed to the sound discretion of the administrative judge in accordance with
the above guidance. McCarthy v. International Boundary & Water Commission,
116 M.S.P.R. 594, ¶ 10 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). By
extension, an administrative judge has the same discretion in severing appeals.
The appellant has shown no abuse of discretion by the administrative judge in her
determination to sever the appeals. See Orr v. Department of the Treasury,
83 M.S.P.R. 117, ¶ 6 n.2 (1999) (finding no abuse of discretion in the
administrative judge’s failure to grant joinder), aff’d per curiam, 232 F.3d 912
(Fed. Cir. 2000) (Table).
¶37 Additionally, the appellant appears to argue that she was not given
sufficient notice to object to the administrative judge’s decision to sever the
appeals because she first learned of the severance in the initia l decision. 12 PFR
File, Tab 1 at 4-5. Assuming, without deciding, that the administrative judge
erred in failing to provide prior notice, the appellant has failed to demonstrate
how she was harmed. An administrative judge’s procedural error is of no lega l
consequence unless it is shown to have adversely affected a party’s substantive
rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). The
jurisdictional issue in the instant appeal is unaffected by its joinder with or
severance from the appellant’s appeal of her separation.
¶38 The appellant also appears to assert that the administrative judge decided to
sever her appeals and dismiss the instant appeal after she complained to the
12
The appellant similarly appears to assert that she received the email notification that
her appeal was severed 48 hours after it was issued. PFR File, Tab 1 at 4-5, 14. She
also asserts that the way in which her private email provider displayed emails in her
inbox caused her to overlook some of the Board’s emails. Id. at 14. Throughout this
appeal, the appellant has been a registered e-filer. IAF, Tab 1 at 2. As such, she has an
obligation to monitor case activity in the Board’s e -Appeal Online system, and the
initial decision is deemed to have been served on her on the date it was issued.
5 C.F.R. §§ 1201.14(j)(3), (m)(2). Her arguments regarding her receipt of automated
email notifications from e-Appeal Online do not demonstrate any error by the
administrative judge or the Board.
24
Department of Justice’s Office of Professional Responsibility regarding the
administrative judge’s “intentional delay of Appellant’s due process .” PFR File,
Tab 1 at 6, Tab 2 at 25-26. In making a claim of bias against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Thompson v. Department of the Army,
122 M.S.P.R. 372, ¶ 29 (2015). An administrative judge’s conduct during the
course of a proceeding warrants a new adjudication only if her comments or
actions evidence a deep-seated favoritism or antagonism that would make fair
judgment impossible. Id. We find that the appellant’s allegations of bias do not
meet this standard. The mere fact that the administrative judge ruled against a
party does not establish bias. Id.
¶39 The appellant further contends that the administrative judge did not meet
the Board’s 120-day time limit for issuing an initial decision and incorrectly
stated that the agency placed her on a performance impr ovement plan when it
actually placed her on a work improvement plan. 13 PFR File, Tab 1 at 4, 8-9, 12.
13
The appellant also appears to challenge the administrative judge’s determination that
she did not appeal the denial of a WIGI. PFR File, Tab 1 at 6. She cites to locations in
the record purportedly reflecting that she raised two WIGI denials, one in July 2017,
and another in July 2018, and appears to allege she was denied a third WIGI in 2019.
Id. (citing IAF, Tab 1 at 9-10, Tab 14 at 7-8); IAF, Tab 11 at 37-38. Although the
administrative judge acknowledged that the appellant raised a WIGI denial as an alleged
personnel action in this IRA appeal, she observed that the appellant did not otherwise
seek to appeal the denial. ID at 4 n.2. We discern no error by the administrative judge
in this regard. When an appellant raises a claim that may fall within the Board’s
jurisdiction, the Board must provide explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985). The record contains no records of WIGI denials
in 2018 or 2019. As to the July 2017 WIGI denial, the agency issued a final decision to
withhold the appellant’s WIGI on August 22, 2017, and notified her of her right to
appeal that action to the Board within 30 days. IAF, Tab 11 at 28-29. The appellant
filed the instant appeal approximately 11 months later. In her initial appeal, the
appellant contested at least 30 alleged personnel actions since 2015, including two
WIGI denials. IAF, Tab 1 at 7-10. Thus, read in context, we agree with the
administrative judge that the appellant raised her WIGI denials as alleged personnel
25
These arguments are without merit. The Board’s general practice is to issue an
initial decision within 120 days of the filing of the appeal. McCollum v.
Department of Veterans Affairs, 75 M.S.P.R. 449, 462 (1997). This time period
is a yardstick that the Board relies on to evaluate its administrative judges and its
rate of expeditiously processing appeals. Milner v. Department of Justice,
87 M.S.P.R. 660, ¶ 9 (2001). Although the administrative judge issued the initial
decision 8 months beyond the 120-day standard, compare IAF, Tab 1 at 1, with
ID at 1, the appellant has not shown that the administrative judge was biased
against her or otherwise committed reversible error in this regard. See
McCollum, 75 M.S.P.R. at 462; Sanborn v. Department of the Navy, 15 M.S.P.R.
553, 554 (1983). Further, the nomenclature used by the administrative judge to
address the appellant’s performance or work improve ment plan is not relevant to
the jurisdictional issue.
¶40 The appellant appears to reiterate a claim of sexual harassment that she
raised below. PFR File, Tab 2 at 21-22, Tab 14 at 10-11; IAF, Tab 1 at 8, 14.
This claim does not bring her appeal within the Board’s IRA jurisdiction.
Discrimination claims do not provide the Board with an independent source of
jurisdiction. Wooten v. Department of Veterans Affairs, 102 M.S.P.R. 131, ¶ 11
(2006). Further, the Board lacks the authority to decide, in conjunction with an
IRA appeal, the merits of an appellant’s allegation of prohibited discrimination.
Newcastle v. Department of the Treasury, 94 M.S.P.R. 242, ¶ 12 (2003).
Therefore, the appellant’s discrimination claim does not change the outcome in
this appeal.
actions in this IRA appeal and not as otherwise appealable actions. To the extent that
the appellant is now attempting to appeal the denials of WIGIs as separate matters
under 5 U.S.C. § 5335(c), she may file a Board appeal challenging those actions . She
will need to show that such an appeal is timely filed or that good cause exists for any
delay in filing. See Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980);
5 C.F.R. § 1201.22(b).
26
¶41 Finally, the appellant claims that: the administrative judge failed to rule on
her request that he ask the Office of Special Counsel (OSC) for an injunction
against EOP; she has new evidence concerning her health condition; and the
agency’s attorneys engaged in misconduct. PFR File, Tab 1 at 5, 12, Tab 2 at 24;
IAF, Tab 1 at 14-15. Although the Board may rule on an appellant’s request to
stay an employing agency’s personnel action, the appellant has not shown that
she has met the criteria for the Board to seek a stay or injunction on her behalf.
5 C.F.R. §§ 1209.8-1209.10. The appellant’s medical condition and any alleged
misconduct by the agency’s attorneys are not relevant to the jurisdictional issue,
and do not warrant a different result in this case.
¶42 Having found that OA is an “agency” for purposes of an IRA appeal and
that the appellant is an “employee” in a “covered positio n,” the remaining
jurisdictional questions in this case include whether the appellant has exhausted
her remedy with OSC and made nonfrivolous allegations that she made a
protected disclosure or engaged in protected activity that w as a contributing
factor in a personnel action. See Graves, 123 M.S.P.R. 434, ¶ 12. The
administrative judge shall address these questions on remand. If the appellant
establishes Board jurisdiction over this IRA appeal, the administrative judge shall
adjudicate the merits of the appeal.
27
ORDER
¶43 Accordingly, we remand this case for further adjudication c onsistent with
this Opinion and Order, including the hearing the appellant requested.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.