Dwyne Chambers v. Department of Homeland Security
2022 MSPB 8
MSPB2022Background
- Appellant Dwyne Chambers, a Coast Guard Yard pipefitter, filed a whistleblower complaint with OSC (Mar. 30, 2016) alleging reprisal for disclosures and union grievances dating to 2007–2012; OSC sent a preliminary determination (Oct. 14, 2016) and a closure letter (Nov. 16, 2016) after receiving no response.
- Chambers appealed to the MSPB (Jan. 14, 2017). The administrative judge dismissed for lack of jurisdiction, finding Chambers failed to exhaust because he did not reply to OSC’s preliminary determination and, alternatively, that his Board allegations were conclusory.
- OSC filed an amicus brief arguing failure to reply to the preliminary determination does not defeat exhaustion; the Board agreed that OSC’s statute makes responding permissive, not mandatory.
- The Board found Chambers had exhausted OSC for certain disclosures (May 17, 2007 email about coworkers sending sexually explicit material; Aug. 1, 2007 police statement about a cut tire) and for filing union grievances (2007, 2011), and for a February 18, 2016 written admonishment claim.
- A settlement agreement signed Aug. 15, 2014 released claims arising on or before that date; the Board held this bars Chambers’ claims about nonselections in 2008 and 2012.
- The Board dismissed the appeal for lack of jurisdiction because Chambers failed to nonfrivolously allege that his earlier protected disclosures or activities were a contributing factor to the Feb. 18, 2016 admonishment (timing too remote, no evidence of knowledge or retaliatory motive).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does failing to reply to OSC’s preliminary determination defeat exhaustion? | Chambers: OSC termination and closure suffice; reply not required. | DHS/AJ: Failure to respond meant Chambers didn’t comply with OSC procedure and thus didn’t exhaust. | Reply is permissive under 5 U.S.C. § 1214(a)(1)(D); failure to reply does not by itself defeat exhaustion. |
| Does the Aug. 15, 2014 settlement bar claims arising before that date? | Chambers did not dispute the settlement; argued earlier events are related to reprisal. | DHS: Settlement released all claims arising on or before its date, barring MSPB claims. | Settlement release precludes pursuing claims based on facts through Aug. 15, 2014 (bars 2008 and 2012 nonselection claims). |
| Did Chambers exhaust before OSC and identify protected disclosures/activities? | Chambers: OSC complaint and attachments raised disclosures (May 17, 2007; Aug. 1, 2007) and grievances. | DHS: Some allegations untimely or barred by settlement; questioned sufficiency. | Board found Chambers exhausted OSC on the identified disclosures and union grievances for the February 18, 2016 admonishment claim. |
| Did Chambers nonfrivolously allege that protected activity was a contributing factor in the Feb. 18, 2016 admonishment? | Chambers: Prior disclosures and grievances caused adverse treatment; tardiness related to medical condition. | DHS: Admonishment was for tardiness and task performance; temporal gap and lack of knowledge/motive evidence negate contributing-factor claim. | Dismissed: temporal gap (4–8 years), lack of evidence official knew of disclosures, and absence of motive/causation make allegations not nonfrivolous. |
Key Cases Cited
- Mount v. Department of Homeland Security, 937 F.3d 37 (1st Cir. 2019) (substantive exhaustion requires OSC be given sufficient basis to investigate)
- Delgado v. Merit Systems Protection Board, 880 F.3d 913 (7th Cir. 2018) (same: exhaustion standard for OSC)
- McCarthy v. Merit Systems Protection Board, 809 F.3d 1365 (Fed. Cir. 2016) (exhaustion requirement and scope of MSPB jurisdiction over IRA appeals)
- Briley v. National Archives & Records Administration, 236 F.3d 1373 (Fed. Cir. 2001) (Board jurisdiction limited to issues previously raised with OSC)
- Vogel v. Department of the Navy, 106 M.S.P.R. 451 (2007) (settlement release construed to bar subsequent Board appeals based on pre-release facts)
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (2016) (knowledge/timing test and nonfrivolous contributing-factor standard)