MSPB to Determine Whether WPEA Applies Retroactively

CARLOS GONZALEZ, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.
DOCKET NUMBER CH-1221-13-0037-W-1
MERIT SYSTEMS PROTECTION BOARD

December 4, 2012

COUNSEL:

Timothy A. Bridge, Esquire, St. Charles, Illinois, for the appellant.
Kristin Langwell, Esquire, Hines, Illinois, for the agency.

ALJ:
MANROSE

INITIAL DECISION

INTRODUCTION

The appellant filed an Individual Right of Action request for corrective action. He was employed as an Air Conditioning Equipment Mechanic with the Department of Veterans Affairs, Hines, Illinois, prior to his termination on October 14, 2011.

For the reasons stated below, the appeal is DISMISSED WITHOUT PREJUDICE.

ANALYSIS AND FINDINGS

As the parties know, the Whistleblower Protection Enhancement Act of 2012 has passed Congress and been signed into law. This law makes significant changes to the current whistleblower law but there is an issue whether the Act should be applied retroactively or prospectively. In a conference with the parties today, I informed them the Board intends to certify an interlocutory appeal to address this issue and that oral argument will likely be held. The parties are agreeable to a dismissal of this appeal without prejudice pending the Board’s decision. This delay will also permit more time for the parties to address issues raised in the appellant’s pending EEO complaint and may facilitate settlement.

Dismissal without prejudice is a procedural option committed to the sound discretion of the presiding Administrative Judge. It is appropriate when used in the interests of fairness, due process, and administrative efficiency. See Gingery v. Department of Treasury, 111 M.S.P.R. 134, 138 (2009). Based on the circumstances present here, I find this case should be dismissed without prejudice. n1

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n1 All time deadlines will start from the beginning once the appeal is refiled.

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DECISION

The appeal is DISMISSED WITHOUT PREJUDICE. It will automatically be refiled on April 1, 2013 unless the Board issues its decision on the interlocutory appeal prior to that date and the appellant elects to refile on an earlier date. Documents already provided should not be resent.

FOR THE BOARD:

Stephen E. Manrose
Administrative Judge

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ARTHUR L. WELTON, Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMIN, Agency.
DOCKET NUMBER SF-1221-13-0042-W-1

MERIT SYSTEMS PROTECTION BOARD

December 12, 2012

COUNSEL:

Arthur L. Welton, Carlsbad, New Mexico, Pro se.
J. Brett Swanson, Edwards, California, for the agency.

ALJ:
WEVER

INITIAL DECISION

On October 19, 2012, the appellant filed this Individual Right of Action appeal, alleging that National Aeronautics and Space Administration Dryden Flight Research Center took one or more personnel actions against him in reprisal for whistleblowing activities. Initial Appeal File (IAF), Tab 1. Per the appellant’s request, a hearing was scheduled for January 10, 2013. * Id., Tabs 1, 5, 24. For the reasons set forth below, the appeal is DISMISSED WITHOUT PREJUDICE.

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* In light of the dismissal without prejudice of the instant appeal, the January 10 hearing is cancelled. Upon refiling of the appeal, a follow-up prehearing conference will be scheduled and a new hearing date set

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DISMISSAL WITHOUT PREJUDICE

In the course of this appeal, the agency has contended the appellant did not make any protected whistleblower disclosures, because his alleged protected disclosures were made in the course of his normal duties through normal channels and/or relate to debatable differences of opinion on policy issues. As I advised the parties in a status conference on December 7, 2012, the Whistleblower Protection Act was recently amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA), and among the changes enacted in the WPEA are new provisions which: (1) effectively overrule case law holding that disclosures made as part of an employee’s normal duties through normal channels are not protected; and (2) narrow the scope of policy disagreements that do not constitute protected disclosures. IAF, Tab 24. I further advised the parties that an issue exists as to whether the WPEA should be applied retroactively to actions taken and/or appeals filed before the December 27, 2012 effective date (which applies to most provisions of the WPEA, including the two provisions referenced above). Id.

On December 12, 2012, I convened the scheduled telephonic prehearing conference with the parties. In follow-up to the December 7 conference, I advised the parties of my intent to dismiss the appeal without prejudice for a six-month period, to allow time for the Board to rule on the WPEA retroactivity issue. IAF, Tab 27 (CD Recording of December 12, 2012 Prehearing Conference). Neither party objected to this course of action. Id.

A dismissal without prejudice to refile is left to the sound discretion of the Administrative Judge and that such a dismissal is appropriate where it is in the interests of fairness, due process, and administrative efficiency. See 5 C.F.R. § 1201.29. Under the circumstances presented here, I find that the interests of justice and judicial economy warrant dismissing this appeal without prejudice. Accordingly, the appeal is dismissed without prejudice to be refiled sua sponte (on the Board’s own motion) six months from the date of this decision (i.e., on June 12, 2013), or within five business days after the Board has ruled on the WPEA retroactivity issue, whichever occurs first. Upon the Board’s refiling of this appeal, all documents previously submitted into the record will be made a part of the refiled appeal.

DECISION

The appeal is DISMISSED WITHOUT PREJUDICE.

FOR THE BOARD:

Nancy E. Wever
Administrative Judge

[Emphasis added]

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