UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ABIGAIL L. PADILLA,

Appellant,

v. 

DEPARTMENT OF THE TREASURY,

Agency. 

DOCKET NUMBER

DE-0752-15-0483-I-1

DATE: February 8, 2016

THIS ORDER IS NONPRECEDENTIAL1

Abigail L. Padilla, Denver, Colorado, pro se. 

Emily Urban, Esquire, San Francisco, California, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her appeal without prejudice subject to automatic refiling within 

120 days. For the reasons discussed below, we GRANT the appellant’s petition 

for review and REMAND the case to the field office for further adjudication in 

accordance with this order. 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant filed an initial appeal with the Board on July 10, 2015, 

challenging her removal and raising various affirmative defenses, including 

whistleblower reprisal under 5 U.S.C. § 2302(b)(8) and reprisal for engaging in 

protected activity under several subsections of 5 U.S.C. § 2302(b)(9). Initial 

Appeal File (IAF), Tab 1. The record below reflects that the agency issued the 

appellant a notice of proposed removal on March 27, 2015, and that it issued her

a decision letter on June 18, 2015, which imposed her removal effective June 26, 

2015. IAF, Tab 22 at 34-39, 54-60. After filing her initial appeal, the appellant 

submitted a series of documents, one of which appears to be part of an Office of 

Special Counsel (OSC) complaint referencing her removal. 2

 IAF, Tab 4 at 29-35. 

¶3 The agency moved to dismiss the appeal for lack of jurisdiction. IAF

Tab 22 at 23. In its motion to dismiss, the agency argued that the appellant filed 

a complaint of whistleblower reprisal with OSC on June 11, 2015, and thus made 

an election to challenge her removal with OSC under 5 U.S.C. § 7121(g). See id.

at 23-24 (citing IAF, Tab 4 at 37). The agency further argued that because 

120 days had not passed since the appellant filed her complaint with OSC, the 

appellant’s appeal was premature, and the Board therefore lacked jurisdiction

over the appeal as an individual right of action (IRA) appeal under 5 U.S.C. 

§ 1221. Id. The administrative judge issued an order to show cause outlining the 

appellant’s burden of establishing the Board’s jurisdiction over her appeal, and in 

response, the appellant submitted various documents seeking both consequential 

damages and an accommodation from the Board enabling her to litigate her 

appeal, and she also provided a narrative of some of her OSC complaints. IAF, 

Tabs 33-35. 

 2 Although this document bears a date of July 13, 2015, in the lower right-hand corner, 

we are uncertain if this date refers to when the document was created, last accessed, or 

printed. IAF, Tab 4 at 29-35. The document, moreover, is missing the first few pages 

that would contain information relevant to when it was first created. Neither the agency 

nor the administrative judge cited to or discussed this document. 
3

¶4 The administrative judge issued an initial decision dismissing the appeal 

without prejudice subject to automatic refiling within 120 days of the date of the 

initial decision. IAF, Tab 36, Initial Decision (ID). In his initial decision, the 

administrative judge agreed with the agency that the appellant submitted 

complaints to OSC prior to filing her Board appeal, and that, because 120 days 

had not elapsed since the filing of her complaints, her appeal was premature. ID

at 6. The appellant has filed a petition for review suggesting that she did not 

challenge her removal in any of her complaints to OSC and that the 

administrative judge incorrectly stated the date on which she filed her appeal with 

the Board. Petition for Review (PFR) File, Tab 1 at 7-8. The agency has filed a 

response in opposition to the petition for review. PFR File, Tab 3.

3

 

¶5 The Board has held that a dismissal without prejudice to refiling is a 

procedural option that is left to the sound discretion of the administrative judge. 

See Milner v. Department of Justice, 87 M.S.P.R. 660, ¶ 13 (2001). The 

administrative judge based his dismissal of the appeal without prejudice upon 

finding that the appellant had filed a complaint with OSC prior to filing her Board 

appeal and that she had not yet exhausted her administrative remedies with OSC. 

ID at 6. As explained below, we disagree with the administrative judge insofar as 

he found that the appellant’s June 11, 2015 complaint to OSC encompassed her 

removal. Although we are unable to determine whether the appellant challenged 

her removal in any of her other complaints to OSC prior to filing her appeal with 

the Board, and thus we make no finding whether the appellant has made an 

 3 On December 6, 2015, January 6, 2016 and January 27, 2016, the appellant submitted 

four pleadings. PFR File, Tabs 12-15. Because the record in this matter had already 

closed upon the expiration of the period for filing the reply to the response to the 

petition for review, see 5 C.F.R. § 1201.114(k), and because the appellant did not 

comply with the Board’s regulation that required her to file a motion and obtain leave 

to submit an additional pleading, see 5 C.F.R. § 1201.114(a)(5), we have not considered 

these pleadings on review. However, the administrative judge should consider the 

appellant’s additional pleadings on remand.
4

election of remedies under 5 U.S.C. § 7121(g) concerning her removal, we 

disagree that dismissal without prejudice to refiling was appropriate. 

¶6 An employee who has been subjected to an action appealable to the Board 

and who alleges that she has been affected by a prohibited personnel practice 

other than a claim of discrimination under 5 U.S.C. § 2302(b)(1) may elect to 

pursue a remedy through one, and only one, of the following remedial processes: 

(1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant 

to the provisions of the negotiated grievance procedure; or (3) a complaint 

following the procedures for seeking corrective action from OSC under 5 U.S.C. 

§ 1211-1222. See 5 U.S.C. § 7121(g); Edwards v. Department of the 

Air Force, 120 M.S.P.R. 307, ¶ 12 (2013). Whichever remedy is sought first by 

an aggrieved employee is deemed to be an election of that procedure and 

precludes pursuing the matter in either of the other two forums. 

Edwards, 120 M.S.P.R. 307, ¶ 12. If an employee elects to challenge an 

otherwise appealable action by filing a request for corrective action with OSC, an 

appellant must exhaust her administrative remedies with OSC before filing an 

IRA appeal with the Board. Id., ¶ 15. 

¶7 Here, the administrative judge determined that the appellant filed a 

complaint with OSC on June 11, 2015, before filing her Board appeal, and that 

because 120 days had not elapsed since filing her complaint with OSC, and 

because she did not submit evidence that OSC had notified her that it was 

terminating its investigation into her complaint, the Board lacked jurisdiction 

over the appeal as a prematurely filed IRA appeal. ID at 6. The agency, 

however, did not issue a decision letter on the proposed removal until June 18, 

2015, and it did not issue a Standard Form 50 (SF-50) effecting the removal until

June 26, 2015. IAF, Tab 22 at 35-36. The Board previously has found that an 

OSC complaint challenging a proposed removal does not preclude an appellant 

from filing a separate Board appeal under chapter 75 challenging the removal 

action. See Westmoreland v. Department of Veterans Affairs, 77 M.S.P.R. 315, 
5

317-18 (1998); Douglass v. Department of Transportation, 60 M.S.P.R. 1, 4-5 

(1993). In Douglass, the Board explained that it does not have jurisdiction over a 

proposed removal under chapter 75, and it found that the administrative judge 

mistakenly dismissed a removal appeal pending the appellant administratively 

exhausting her complaint challenging her proposed removal with OSC. See

Douglass, 60 M.S.P.R. at 4-5. 

¶8 Under Douglass, therefore, the appellant could not have elected to 

challenge her removal with OSC in her June 11, 2015 complaint, and we find 

there was no legal basis for the administrative judge to dismiss the appellant’s 

appeal without prejudice based on her June 11, 2015 filing with OSC. See id. 

We thus grant the appellant’s petition for review and vacate the initial decision. 

We remand the appeal to the administrative judge for consideration of the 

following outstanding issues that bear upon the Board’s jurisdiction over the 

appellant’s case as either an IRA appeal or an otherwise appealable action under

chapter 75. 

¶9 The appellant has submitted documentation on petition for review reflecting 

that she filed five separate complaints with OSC. 4

 PFR File, Tab 2 at 11. Three 

of these complaints predate both the agency’s decision letter and the effective 

date of the appellant’s removal, and one of these complaints postdates the filing 

date of her Board appeal.

5

 Id. The appellant, therefore, could not have elected to 

challenge her removal in any of these OSC complaints because they either predate 

her removal or postdate the instant Board appeal. See 5 U.S.C. § 7121(g); 

Douglass, 60 M.S.P.R. at 4-5. 

 4 Although the appellant submitted numerous documents to the administrative judge, we 

have not found a copy of this summary in any of her submissions. 

5 We agree with the appellant that the agency and the administrative judge mistakenly 

stated that she filed her initial appeal with the Board on June 10, 2015. ID at 2. The 

appellant filed her initial appeal via the Board’s e-Appeal system on July 10, 2015, 

after the effective date of her removal. IAF, Tab 1. 
6

¶10 The appellant, however, appears to have filed a complaint with OSC on

June 23, 2015, which is in between the date of the agency’s decision letter and the 

date of the SF-50 effecting her removal. PFR File, Tab 2 at 11; IAF, Tab 22

at 34-39. The appellant has provided no specific information about the nature of 

this complaint or the alleged acts of reprisal identified therein. Additionally, 

there is some evidence in the documents the appellant submitted to the 

administrative judge that may reflect that she challenged her removal in one of 

her OSC complaints. 6

 IAF, Tab 4 at 29. It thus remains possible that the 

appellant challenged her removal in an OSC complaint before she filed her Board 

appeal on July 10, 2015. Based on the current record, however, we cannot make 

this determination. 

¶11 On remand, the administrative judge should ascertain the nature of the 

appellant’s June 23, 2015 OSC complaint, as well as the filing date of the OSC 

complaint referencing her removal. PFR File, Tab 2 at 11; IAF, Tab 4 at 29. If 

the appellant challenged her removal in an OSC complaint either as an act of 

whistleblower reprisal or as an act of reprisal for engaging in protected activity 

under 5 U.S.C. § 2302(b)(8)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D) before she 

filed her appeal with the Board on July 10, 2015, then she would have made an 

election to pursue her remedies with OSC under 5 U.S.C. § 7121(g), and her 

challenge to her removal should be adjudicated under the Board’s procedures 

governing IRA appeals once she administratively exhausts her complaint with 

OSC. See, e.g., Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, 

¶¶ 9-10 (2014). Alternatively, if the appellant did not challenge her removal in 

an OSC complaint that predates July 10, 2015, then the administrative judge 

should adjudicate her removal appeal under chapter 75, and he should adjudicate 

 6 Again, this document is undated, and we are unable to determine whether the appellant 

filed this document with OSC, and whether she did so before or after filing her Board 

appeal on July 10, 2015. Neither the agency nor the administrative judge addressed this 

document insofar as it bears on the nature of the Board’s jurisdiction over the 

appellant’s removal. 
7

any and all affirmative defenses she has raised in response to her removal under 

the applicable standards. See, e.g., Savage v. Department of the 

Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015) (setting forth the standards for 

adjudicating a discrimination affirmative defense); Alarid v. Department of the 

Army, 122 M.S.P.R. 600, ¶¶ 12-15 (2015) (explaining the standards for 

adjudicating affirmative defenses of reprisal under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), and (b)(9)(D)). 

ORDER

¶12 For the reasons discussed above, we remand this case to the field office for 

further adjudication in accordance with this remand order. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board