Coretta Adams v. Department of Veterans Affairs
CH-0752-17-0027-I-1
MSPBJul 14, 2022Background
- Appellant Coretta Adams, a Veterans Health Service registered nurse, was removed effective September 12, 2016.
- Adams filed a whistleblower complaint with the Office of Special Counsel (OSC) on August 28, 2016, alleging retaliation.
- She filed an MSPB appeal asserting whistleblower reprisal (an individual right of action, IRA) and challenging the removal.
- The administrative judge dismissed the IRA appeal as premature because OSC had not notified her of termination and 120 days had not elapsed; the judge also found MSPB lacked jurisdiction to review the removal of nurses appointed under 38 U.S.C. § 7401.
- On petition for review the Board denied relief, affirmed the lack of jurisdiction over a direct removal appeal and the initial prematurity finding, but found the OSC 120‑day period has now passed and forwarded the now‑ripe IRA appeal to the MSPB regional office for adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MSPB jurisdiction over a direct appeal of Adams's removal | Adams challenged the removal on the merits and as retaliation for whistleblowing | Agency argued VHS RNs appointed under 38 U.S.C. § 7401 lack Board appeal rights | Board agreed with the AJ: it lacks authority to review the removal as a direct appeal for § 7401 RNs |
| Whether Adams exhausted OSC remedies / whether IRA was premature when filed | Adams contended removal was retaliatory and pursued OSC corrective action | Agency argued OSC had not terminated and 120 days had not elapsed at time of filing, so appeal was premature | Board held the IRA was premature when filed (no OSC termination and <120 days) but is now ripe (120 days have passed) and forwarded the appeal to the regional office |
Key Cases Cited
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (MSPB 2016) (elements and standards for IRA jurisdiction)
- Garrison v. Department of Defense, 101 M.S.P.R. 229 (MSPB 2006) (OSC exhaustion requirement: OSC termination or 120 days)
- Jundt v. Department of Veterans Affairs, 113 M.S.P.R. 688 (MSPB 2010) (Board may adjudicate appeals that were premature when filed but later become ripe)
- Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017) (forum and timing rules for judicial review of MSPB decisions on discrimination claims)