OSC Made “Preliminary Determination” Closing Your Case? No Response Needed Says MSPB
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
When an employee exhausts their administrative remedies in a whistleblower retaliation complaint to the Office of Special Counsel (OSC), they gain the right to file an Individual Right of Action (IRA) appeal of the retaliatory action directly to the Merit Systems Protection Board (MSPB). On May 2, 2022, the two-member quorum of the MSPB held that an employee fully exhausts their administrative remedies even if they don’t respond to the OSC’s “preliminary” determination to close their whistleblower retaliation complaint.
OSC processes whistleblower retaliation complaints pursuant to the statutory provision of 5 U.S.C. § 1214. After an employee files a whistleblower retaliation complaint with OSC, OSC acknowledges receipt and assigns a point of contact for the employee. Thereafter, OSC apprises the employee of the status of the investigation on a regular basis, and informs the employee if OSC determines that there are reasonable grounds to believe that government officials engaged in whistleblower retaliation. But pursuant to 5 U.S.C. § 1214(a)(1)(D), if OSC elects to close the complaint without action, it must provide the employee with an opportunity to respond to its preliminary determination to “terminate” the investigation. Then, OSC must take any comments from the employee under consideration before making its final determination.
Exhaustion requirements exist to ensure that federal employees take advantage of potential administrative solutions to their employment disputes before burdening the MSPB or the federal courts with those disputes. But knowing what the government considers “full” exhaustion can be challenging.
In Chambers v. DHS, an MSPB administrative judge (AJ) dismissed an IRA for lack of jurisdiction after finding that the employee failed to exhaust his administrative remedies. According to the AJ, the employee never responded to OSC’s preliminary determination, and thus did not fully exhaust his administrative remedies. In essence, the AJ held that because the employee waived that additional procedural right to respond to OSC’s decision to decline action on his behalf, he had also waived his right to challenge the action at MSPB.
In addition, the AJ held that the employee’s claims were so conclusory and vague that he failed to make a nonfrivolous allegation that he ever made a disclosure of wrongdoing protected by whistleblower statutes.
The employee petitioned the Board for review of the AJ’s decision, and the Department of Homeland Security (the employing agency) did not respond to the petition. In that vacuum, OSC filed an amicus curiae brief, arguing that the AJ “erred in finding that the appellant failed to exhaust his administrative remedies.”
According to OSC, the employee “was not required to respond to [OSC’s] preliminary determination letter in order to have exhausted his administrative remedies.” The MSPB agreed, relying on its interpretation of 5 U.S.C. § 1214(a)(1)(D), which provides that the individual who made the allegation “may submit written comments about the” preliminary determination. That “permissive” language coupled with the lack of statutory language requiring an employee to respond to OSC’s preliminary determination to preserve his IRA rights convinced the MSPB that exhaustion does not rely on a response to OSC’s preliminary determination to close a complaint.
Despite this ruling in the employee’s favor, the MSPB agreed with the AJ that the employee “failed to raise nonfrivolous allegations” that would give rise to IRA jurisdiction, because his allegedly protected disclosures “occurred between 4 to 8 years” before the allegedly retaliatory action, and the record did not reflect that the purportedly protected disclosures would have implicated the official who allegedly took the retaliatory action, or that the official knew of them. As such, the MSPB vacated the AJ’s erroneous initial decision, and then dismissed the employee’s IRA for lack of jurisdiction for the reasons spelled out in their own decision.
Read the full case: Chambers v. DHS.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.