Gary Steven Kalus v. Department of Homeland Security , 2016 MSPB 9 ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 9
Docket No. NY-1221-15-0110-W-1
Gary Steven Kalus,
Appellant,
v.
Department of Homeland Security,
Agency.
February 12, 2016
Gary Steven Kalus, Massapequa, New York, pro se.
Cynthia J. Pree, Esquire, and Keturah Carr, New York, New York, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. For the
reasons discussed below, we VACATE the initial decision, and REMAND the
case to the field office for further adjudication in accordance with this Opinion
and Order.
BACKGROUND
¶2 The appellant is a National Import Specialist with the agency’s Bureau of
Customs and Border Protection. Initial Appeal File (IAF), Tab 1 at 2, 9. On
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August 10, 2014, he filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC) alleging that his branch chief failed to nominate him for a
fiscal year 2011 performance award in reprisal for his prior protected activity.
Id. at 9-20. On December 8, 2014, OSC issued a close-out letter notifying the
appellant of his right to seek corrective action from the Board. Id. at 22. On
February 8, 2015, the appellant filed an IRA appeal with the Board. Id. at 2-8.
¶3 The agency argued that the appeal was untimely filed because the appellant
previously had filed an OSC complaint regarding the same issue on December 7,
2011, OSC had issued a prior close-out letter on August 29, 2012, and he
apparently failed to seek corrective action from the Board at that time. IAF,
Tab 9 at 5-6. Consequently, the administrative judge issued a show cause order
informing the appellant that his IRA appeal appeared to be untimely filed and
directing him to file evidence and argument to prove either that his appeal was
timely filed or that the filing deadline was subject to equitable tolling. IAF,
Tab 10.
¶4 In response, the appellant did not dispute that his August 10, 2014 OSC
complaint was based on the same matters raised in his prior OSC complaint, but
he argued that his most recent complaint was based on new evidence, he had
informed OSC of his prior complaint, and OSC decided to open a new case. IAF,
Tab 12 at 4-5. He further argued that he timely filed this IRA appeal within
65 days after receiving OSC’s December 8, 2014 letter terminating its
investigation. Id. Alternatively, he argued that equitable tolling was warranted
because his August 10, 2014 complaint was based on new evidence, specifically,
affidavits that he believed contained solid evidence in support of his
whistleblower complaint that he obtained in connection with his equal
employment opportunity complaint after OSC had issued its August 29, 2012
close-out letter. Id. at 5-8.
¶5 In an initial decision issued without holding the appellant’s requested
hearing, the administrative judge dismissed the appeal as untimely filed. IAF,
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Tab 15, Initial Decision (ID). The administrative judge found that the matters
raised in this appeal were the same as those previously raised before OSC in
December 2011, and thus, the appellant’s February 8, 2015 IRA appeal was
untimely filed with respect to OSC’s August 29, 2012 close-out letter. ID at 9.
The administrative judge further found that the circumstances did not warrant
equitable tolling. ID at 13.
¶6 The appellant has filed a petition for review in which he asserts that the
administrative judge improperly determined that his IRA appeal was untimely
filed and, alternatively, that the deadline was not subject to equitable tolling.
Petition for Review (PFR) File, Tab 1 at 8. The agency has opposed the
appellant’s petition. PFR File, Tab 3.
ANALYSIS
¶7 Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once OSC closes its investigation into his complaint and no more than
60 days have elapsed since notification of the closure was provided to him.
Under the Board’s regulations implementing that statutory time limit, an IRA
appeal must be filed no later than 65 days after the date that OSC issues 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).
¶8 In finding that the appellant’s IRA appeal was untimely filed, the
administrative judge relied on Heimberger v. Department of
Commerce, 121 M.S.P.R. 10 (2014), to determine that the statutory deadline
began to run from the date of OSC’s August 29, 2012 close-out letter. ID at 9.
We find Heimberger distinguishable from the circumstances in this case. In
Heimberger, after the statutory period for filing an IRA appeal had passed, the
appellant filed a request to reopen with OSC, OSC denied her request, and the
appellant filed an IRA appeal with the Board arguing that her appeal was timely
filed because timeliness should be calculated from the date of OSC’s denial of
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her request to reopen. Heimberger, 121 M.S.P.R. 10, ¶¶ 3-4. The Board
disagreed and found that the appellant’s IRA appeal was untimely filed. Id., ¶ 8.
The Board reasoned that, because the denial of a request to reopen generally
does not restart the statutory period to file an IRA appeal, the timeliness of the
appeal was properly assessed from the date of OSC’s close-out letter, not the date
of OSC’s denial of her request to reopen. Id.
¶9 Unlike Heimberger, which involved OSC’s denial of the appellant’s
request to reopen, OSC here accepted the appellant’s new complaint based on
new evidence and resumed its investigation under a new case number. The Board
has held, under similar circumstances, that OSC’s reopening of an appellant’s
complaint after it already had issued a close-out letter in the matter creates a new
statutory filing period, providing the appellant the right to file an IRA appeal
either within 65 days after OSC issued its new close-out letter or, in the absence
of a final OSC determination, at any time following 120 days from having sought
further corrective action. Morrison v. Department of the Army, 77 M.S.P.R. 655,
656-57, 661 (1998) (reviewing and applying the legislative history of the
Whistleblower Protection Act). Here, because the appellant filed his appeal
within 65 days of OSC’s new close-out letter, we find his appeal timely. * See id.
at 661.
¶10 As the Board noted in Morrison, the appellant’s request for reopening
alone would not have affected his deadline to file his IRA appeal with the Board;
rather, it was OSC’s decision to reopen that restarted the statutory filing period.
Id. at 659 n.4; cf. Hawker v. Department of Veterans Affairs, 123 M.S.P.R. 62,
¶ 7 (2015) (recognizing that a decision by OSC to reopen its investigation
deprives its initial close-out determination of the requisite finality needed for
purposes of seeking Board review). The Board will accept OSC’s decision to
*
Because we find that the appeal was timely filed, we need not address the appellant’s
arguments on review concerning equitable tolling. PFR File, Tab 1 at 4-8.
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reopen at face value, absent egregious circumstances evidencing an abuse of
process, which are not present here.
¶11 Finally, our decision to accept this appeal as timely filed is consistent with
the Board’s analysis in appeals of the final decisions of the Office of Personnel
Management (OPM) under similar circumstances. Like IRA appeals, which
require exhaustion before OSC, certain retirement matters can be appealed to the
Board within 30 days after the appellant receives a final decision from
OPM. 5 U.S.C. § 8347(d); 5 C.F.R. §§ 831.110, 1201.22(b)(1). The Board has
found that OPM’s issuance of a second final decision creates a new filing
deadline. See Smith v. Office of Personnel Management, 114 M.S.P.R. 395, ¶¶ 7,
9 (2010); see also House v. Office of Personnel Management, 44 M.S.P.R. 161,
165-66 (1990) (finding that OPM’s issuance of a letter supplementing its final
decision created a new filing deadline). Similarly, the Board also has recognized
that OPM’s issuance of a prior final decision does not preclude the Board from
taking jurisdiction over a matter pursuant to a subsequent final decision by OPM
regarding the same matter. See Smith v. Office of Personnel
Management, 117 M.S.P.R. 527, ¶ 5 n.1 (2012); Powell v. Office of Personnel
Management, 114 M.S.P.R. 580, ¶ 9 n.2 (2010).
¶12 Accordingly, we find that the appellant’s IRA appeal was timely filed.
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ORDER
¶13 For the reasons discussed above finding that the appeal was timely filed,
we remand this case to the field office for further adjudication.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.