shaw bransford & roth case law update

New Appeal Deadline Granted After OSC Reopened Case

An employee who produced new evidence to the Office of Special Counsel (OSC) and had a new case opened had a renewed right to an individual right of action appeal after OSC issued a new close-out letter, found the Merit Systems Protection Board.

A National Import Specialist with the Department of Homeland Security filed a whistleblower reprisal complaint on August 10, 2014. The complaint was closed by the Office of Special Counsel on December 8, 2014, and the close-out letter advised the employee of his right to seek corrective action from the MSPB through an Individual Right of Action (IRA) appeal. The employee filed a seemingly timely appeal within the sixty-five day deadline on February 8, 2015. However, the agency took the position that the appeal was untimely, arguing that the employee had filed an OSC complaint on December 7, 2011, which was closed out by OSC on August 29, 2012 and not appealed by the employee. The MSPB administrative judge issued a show cause order, directing the employee to file evidence and argument to prove that his appeal was timely filed. The employee argued that although the two OSC complaints at issue were based on the same matters, his 2014 complaint had been based on new evidence. The employee further argued that OSC knew about his prior complaint, and decided to open a new case to investigate his most recent complaint. The MSPB administrative judge issued an initial decision dismissing the appeal as untimely filed. The employee petitioned the full Board for review of the administrative judge’s initial decision. On February 12, 2016, the Board vacated the administrative judge’s decision.

Citing 5 U.S.C. § 1214(a)(3)(A), the Board found that an employee may file an IRA appeal within 65 days from the issuance of the closure letter by OPM. The Board then distinguished this matter from the Board’s decision in Heimberger v. Department of Commerce, 121 M.S.P.R. 10 (2014), a decision that was relied on by the administrative judge in concluding that the appeal was untimely filed. In Heimberger, stated the Board, the employee filed a request to reopen a previous complaint with OSC and OSC denied that request to reopen. The employee in Heimberger argued that the date for timeliness should be calculated from the date of OSC’s denial of the request to reopen, but the Board disagreed, and held that such a denial did not restart the statutory period to file an IRA appeal.

In contrast to Heimberger, the employee in this matter submitted new evidence to support his previous claim, and OSC resumed its investigation under a new case number. The Board cited Morrison v. Department of the Army, 77 M.S.P.R. 655 (1998), holding that when OSC reopens a complaint after issuing a close-out letter, the statutory filing period is renewed after the issuance of a new close-out letter. In other words, as the Board stated in its decision, “It was OSC’s decision to reopen that restarted the statutory filing period.”

For the above stated reasons, the Merit Systems Protection Board vacated the administrative judge’s dismissal of the employee’s IRA appeal, and remanded the matter for adjudication consistent with its decision.

Read the full case: Kalus v. Department of Homeland Security


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For 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.

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