The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMMY WALKER, DOCKET NUMBER
Appellant, AT-1221-14-0005-W-1
v.
DEPARTMENT OF THE ARMY, DATE: September 19, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Jimmy Walker, Glennville, Georgia, pro se.
Asmaa Abdul-Haqq, Fort Stewart, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant filed an individual right of action (IRA) appeal with the
Board after receiving written notification from the Office of Special Counsel
(OSC) that OSC terminated its investigation of the appellant’s allegations of
prohibited personnel practices under 5 U.S.C. § 2302(b)(12). Initial Appeal File
(IAF), Tab 1 at 5, 27-30. The appellant alleged that, effective January 31, 2011,
the agency subjected him to several performance-based actions, including an
official written reprimand, a poor performance rating, and a reassignment to a
nonsupervisory position, without proper process or procedures. Id. at 3-5. The
administrative judge issued an order to show cause why the appeal was within the
Board’s IRA jurisdiction, because the initial appeal identified no protected
whistleblowing disclosure made by the appellant. IAF, Tab 3. In his response,
the appellant stated that his filing with OSC was not based on whistleblowing;
rather, he argued that some of the issues he raised in his February 15, 2011
grievance regarding the January 31, 2011 agency actions could be “arguably
perceived as reason to retaliate,” and that he was “blowing the whistle on what
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[he] believe[s] to be a prohibited practice.” IAF, Tab 6 at 4. He further asserted
that the challenged actions could have been taken in retaliation for participating
in an equal employment opportunity (EEO) case based on sex discrimination, id.,
and he alleged that the agency committed harmful procedural errors in taking
these actions, id. at 4-6. The administrative judge dismissed the appeal based on
the parties’ written submissions, finding that none of the appellant’s filings
before the Board or OSC identified a protected whistleblowing disclosure, and
thus the Board lacks IRA jurisdiction. IAF, Tab 8, Initial Decision (ID) at 2-3.
In addition, the administrative judge found that the alleged personnel actions are
not directly appealable to the Board and the alleged prohibited personnel
practices claim is not reviewable absent an otherwise appealable action. ID at
3-4; see IAF, Tab 6 at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The appellant argues that the Board has jurisdiction over his appeal.
Petition for Review (PFR) File, Tab 1. The Board has jurisdiction over appeals
only from the types of agency actions specifically enumerated by law, rule, or
regulation. Perez v. Merit Systems Protection Board, 931 F.2d 853, 855 (Fed.
Cir. 1991). Appealable actions under 5 U.S.C. chapter 75 include: a removal; a
suspension for more than 14 days; a reduction in grade; a reduction in pay; and a
furlough of 30 days or less. 5 U.S.C. §§ 7512, 7513(d). In addition, a reduction
in grade or removal for unacceptable performance may be appealable to the Board
under 5 U.S.C. § 4303. Allegations of prohibited personnel practices
under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction.
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980).
¶4 The appellant has failed to make a nonfrivolous allegation of Board
jurisdiction. He filed a prohibited personnel practices complaint with OSC
alleging that he was subject to a poor performance evaluation, official reprimand,
and reassignment, and reiterated these claims on review. IAF, Tab 1 at 15-17;
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PFR File, Tab 1 at 2. Although the alleged actions may constitute “personnel
actions” under 5 U.S.C. § 2302(a)(2)(A) for the purposes of evaluating prohibited
personnel practices under 5 U.S.C. § 2302(b), such practices are not
independently reviewable by the Board absent otherwise appealable actions. See
Wren, 2 M.S.P.R. at 2. The appellant has made no allegation that he has
experienced a reduction in grade or pay as part of the reassignment, or that he
was suspended for any period of time or removed from his position. Thus, the
appellant has alleged no basis for Board appellate jurisdiction under 5 U.S.C
chapters 43 or 75. See 5 U.S.C. §§ 4303(a), 7512-13.
¶5 The appellant also has failed to show error in the administrative judge’s
finding that the Board lacks jurisdiction over the appellant’s claims as an IRA
appeal. See 5 U.S.C. § 1221(a). The Board has jurisdiction over an IRA appeal
concerning whistleblower reprisal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he 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 appellant has admitted in his pleadings that he
has made no protected disclosure and he has not alleged that the alleged
personnel actions were taken in retaliation for any whistleblowing activity. IAF,
Tab 6 at 4; PFR File, Tab 1 at 4-5.
¶6 The appellant’s initial appeal included a vague assertion that the challenged
personnel actions could have been taken in retaliation for his participation in an
EEO case based on sex discrimination. IAF, Tab 6 at 4. However, he clarified in
his petition for review that “the facts relevant to this case [are] that an employee
made a frivolous complaint of gender discrimination or harassment against [him,]
and the agency, through its own informal AR 15-6 investigation, found that there
was no substance to the complaint.” PFR, Tab 1 at 9. The appellant then asserted
that despite the results of the investigation, “the agency head still contemplated,
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by overt means, to charge [him] with charges unrelated to the employee’s initial
complaint and imposed cumulative punishment against” the appellant. Id. To the
extent that the appellant still asserts retaliation for participation in an EEO sex
discrimination complaint, we note that the Whistleblower Protection
Enhancement Act of 2012 (WPEA), which gives an employee the right to seek
corrective action before the Board for personnel actions taken against the
employee because of “testifying for or otherwise lawfully assisting any
individual” in the exercise of a right, does not change the result. 5 U.S.C.
§§ 1221(a), 2302(b)(9)(B). The Board held in Hooker v. Department of Veterans
Affairs, 120 M.S.P.R. 629, ¶ 13 (2014), that retroactive application of section
101(b)(1)(A) of the WPEA, as it pertains to the prohibited personnel practice set
forth at 5 U.S.C. § 2302(b)(9)(B), is impermissible because it would increase a
party’s liability for past conduct as compared to pre-WPEA liability. As in
Hooker, the applicable WPEA amendments do not apply to this case, regardless
of a lack of clear evidence in the record of whether the appellant’s described
activity constitutes “testifying for or otherwise lawfully assisting” a complainant
in an EEO investigation. See id., ¶ 10. The personnel actions challenged by the
appellant occurred in 2011, prior to the enactment of the WPEA, IAF, Tab 1 at
9-11, and thus, the Board lacks jurisdiction over the appellant’s 5 U.S.C.
§ 2302(b)(9)(B) claims as an IRA appeal, see Hooker, 120 M.S.P.R. 629, ¶ 15.
¶7 Therefore, we find that the appellant has not made a nonfrivolous allegation
that the Board has appellate jurisdiction over his claims or has jurisdiction as an
IRA appeal. The appellant admits that he has made no protected disclosure, and
thus, he has failed to make a nonfrivolous allegation of Board jurisdiction over
the IRA appeal. Finally, we note that throughout his appeal and OSC complaint,
the appellant has sought a determination of “whether the agency’s investigation
and personnel actions violated a law, rule, or regulation” related to the merit
system principles. PFR File, Tab 1 at 8; IAF, Tab 1 at 5, 17. The appellant has
essentially requested an advisory opinion, which the Board is statutorily
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precluded from issuing, and so we cannot grant his request. 5 U.S.C. § 1204(h);
see Murray v. Department of Defense, 92 M.S.P.R. 361, ¶ 12 (2002).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
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States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.