Rommie Requena v. Department of Homeland Security, 2022 MSPB 39

In October 2014 DHS issued a decision notice suspending Requena for 30 days and changing her position from Chief Supervisory CBP Officer to Supervisory CBP Officer; the notice explained appeal rights including election among a Board appeal, a negotiated grievance, or OSC corrective action.
At the time the notice issued Requena had a pending OSC whistleblower reprisal complaint; she asked OSC to include the suspension/change in position in that complaint and OSC treated it as part of the ongoing matter and obtained an informal stay.
The stay ended in September 2015, Requena filed a Board appeal under 5 U.S.C. § 7701 (Oct. 7, 2015) contesting the suspension/position change but did not raise a whistleblower reprisal claim in that filing.
After OSC closed its matter, Requena filed an individual right of action (IRA) appeal with the Board alleging whistleblower reprisal (Aug. 8, 2016); the administrative judge temporarily joined the appeals.
The AJ dismissed the § 7701 appeal for lack of Board jurisdiction, concluding Requena had made a prior, binding election to pursue OSC corrective action and thus could only proceed via an IRA.
On review the Board vacated the initial decision and remanded, directing the AJ to first determine whether Requena is a “supervisor or management official” (excluded from the chapter 71 definition of “employee” and thus from the § 7121(g) election-of-remedies rules); if not, proceed with jurisdictional and merits adjudication.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of § 7121(g) election-of-remedies to this appeal	Requena: she is a supervisor/management official and therefore not subject to § 7121(g) limitations	DHS: Requena first sought OSC corrective action, so § 7121(g) bars a full § 7701 appeal and limits subsequent Board review to an IRA	Vacated AJ decision and remanded for determination whether Requena is a supervisor/management official; if she is, § 7121(g) does not apply; if not, consider election-of-remedies effects
Proper interpretation of 5 C.F.R. § 1209.2(d) (Board regulation implementing § 7121(g))	Requena: regulation must be read consistent with chapter 71’s narrower definition of “employee” (5 U.S.C. § 7103(a))	DHS: regulation applies to individuals who seek OSC corrective action regardless of supervisory status	Board: regulation must be interpreted as applying only to individuals who meet the chapter 71 definition of “employee”; supervisors/management officials are excepted
Whether the AJ correctly dismissed the § 7701 appeal without determining supervisory status	Requena: dismissal was premature because the AJ did not decide whether she was a supervisor excluded from § 7121(g)	DHS: prior OSC election justified dismissal	Board: dismissal vacated as AJ failed to resolve the threshold statutory-definition issue; remand required for factual/legal development and, if appropriate, merits adjudication

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) (statutory interpretation: start with plain language of statute)
Kammunkun v. Dept. of Defense, [citation="800 F. App'x 916"] (Fed. Cir. 2020) (supervisor not bound by § 7121(g) election-of-remedies rule)
Corthell v. Dept. of Homeland Security, 123 M.S.P.R. 417 (2016) (application of § 7121(g) to whistleblower-reprisal claims)
Sherman v. Dept. of Homeland Security, 122 M.S.P.R. 644 (2015) (election of remedies; remedy first sought precludes pursuing matter in other fora)
Johnson v. Dept. of Veterans Affairs, 121 M.S.P.R. 695 (2014) (summary of § 7121(g) remedial options and election consequences)