The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATAKI DAMALI MACMURRAY, DOCKET NUMBER
Appellant, DC-3443-14-0183-I-1
v.
OFC OF NATIONAL DRUG DATE: August 7, 2014
CONTROL POLICY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nataki Damali MacMurray, Hyattsville, Maryland, pro se.
Jeffrey J. Teitz, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the regional
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appeal in which she 2 challenged the agency’s
decision not to select her for the position of Senior Policy Analyst (Prevention
Branch Chief), GS-15. Initial Appeal File (IAF), Tab 1. Because it appeared that
the Board may not have jurisdiction over her nonselection, the administrative
judge issued an acknowledgement order that specifically advised the appellant of
the jurisdictional requirements with regard to her nonselection for promotion.
IAF, Tab 2. In a response dated December 19, 2013, the appellant alleged that
“the agency’s decision of non-selection was made in retaliation for whistle-
blowing.” IAF, Tab 3. The appellant asserted that “I invoke whistle-blower
protections for reporting a violation of my civil rights in the workplace to the
department of EEOC offices in December 2007.” Id. The appellant asserted
further that, since reporting the civil rights violation in 2007, she has
“experienced differential treatment in various matters from my supervisor who
was the subject of my reporting.” The appellant specifically identified the
personnel actions she asserts were taken against her in reprisal and she stated that
she was “requesting the MSPB consider my appeal under its jurisdiction to review
my case of non-selection in retaliation for whistle-blowing.” Id. The agency
addressed the appellant’s whistleblower claim in its January 3, 2014 response,
IAF, Tab 5.
¶3 Despite the clear import of the pleadings, the administrative judge failed to
acknowledge the appellant’s whistleblower claim and provide the appropriate
Burgess 3 notice informing her of what she needed to do to establish Board
jurisdiction over her whistleblower claim. Rather, on March 28, 2014, the
2
We note that, while the administrative judge consistently referred to the appellant as a
male, the agency’s submissions indicate that the appellant is a female. IAF, Tab 5.
3
An appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985).
3
administrative judge issued an initial decision that dismissed the appeal finding
that the Board does not have jurisdiction over her nonselection claim. IAF,
Tab 6, Initial Decision (ID). In the decision, the administrative judge set forth
the burden of proof regarding an individual right of action (IRA) appeal and
found that the appellant did not provide any evidence showing that she exhausted
her remedies with the Office of Special Counsel (OSC). ID at 2-3. However, the
administrative judge also noted that he failed to provide the appellant any notice
explaining the elements necessary to prove the Board’s jurisdiction over an IRA
appeal and, instead, advised her that, if she has exhausted her rights with OSC,
“[s]he is welcome to submit such evidence to the Board in a petition for review of
this initial decision.” ID at 3 n.1.
¶4 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Further, the Board has jurisdiction
over an IRA appeal if the appellant has exhausted her administrative remedies
before OSC and makes nonfrivolous allegations that: (1) she engaged in
whistleblowing activity by making a protected disclosure; and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001). The question of whether the appellant has made a nonfrivolous
allegation is determined based on the written record, without holding a
jurisdictional hearing. Spencer v. Department of the Navy, 327 F.3d 1354, 1356
(Fed. Cir. 2003); Wells v. Department of Homeland Security, 102 M.S.P.R. 36,
¶ 5 (2006).
¶5 Here, with regard to the jurisdictional question, the administrative judge
failed to identify all material issues of fact and law, include his conclusions of
law and his legal reasoning, or identify the authorities on which that reasoning
4
rested. See Spithaler, 1 M.S.P.R. at 589. This was error. See, e.g., Wells,
102 M.S.P.R. 36, ¶ 9. Moreover, the written record, as developed to date, does
not provide sufficient bases for determining whether the appellant has established
all of the elements of Board jurisdiction over her IRA appeal. Specifically, the
appellant, who is pro se, clearly raised an IRA claim below and the agency
responded to the appellant’s allegations. IAF, Tabs 3, 5. However, the agency’s
response did not set forth the burdens and elements of proof for establishing this
affirmative defense and thus, its response was insufficient to inform the appellant
of what she needed to allege regarding jurisdiction. See Guzman v. Department
of Veterans Affairs, 114 M.S.P.R. 566, ¶18 (2010). Further, rather than providing
the appellant with the proper Burgess notice, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction on the basis of her
nonselection claim and invited her to submit evidence of exhaustion before OSC
for a first time on review to support her IRA claim. While under some
circumstances the Board might be able to adjudicate a whistleblower complaint
without remand, here, the administrative judge invited the appellant to submit
evidence of exhaustion, but he failed to advise the appellant to submit any
additional evidence or argument relevant to her claim. ID at 3 n.1. Moreover,
because the administrative judge was aware that he had failed to provide the
appellant with the proper Burgess notice for an IRA appeal, he should have
corrected that error prior to issuing his initial decision. Accordingly, we remand
this appeal to the Washington Regional Office for further processing. On remand
the administrative judge must provide proper Burgess notice regarding the
burdens and elements of proof for establishing a whistleblower protection claim.
5
ORDER
For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.