The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNETTE M. MCFARLIN, DOCKET NUMBER
Appellant, SF-3443-14-0632-I-1
v.
OFFICE OF SPECIAL COUNSEL, DATE: December 12, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donnette M. McFarlin, Vista, California, pro se.
Pamela Gault, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
Vice Chairman Wagner has recused herself from this case.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the Office of Special Counsel’s (OSC’s) purported
inaction on a complaint. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision is based on an erroneous interpretation of statute or 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).
¶2 The appellant previously appealed the Office of Personnel Management’s
(OPM’s) dismissal of her disability retirement application as incomplete. See
McFarlin v. Office of Personnel Management, MSPB Docket No. SF-844E-13-
0682-I-1 (OPM Appeal), Final Order (May 1, 2014). However, that appeal was
dismissed as untimely. Id. at 5.
¶3 After the dismissal of her OPM appeal, the appellant reportedly filed a
complaint with OSC, asserting that the Board abused its authority, defamed her
character, exhibited bias, and issued a decision containing a false accusation. 2
Initial Appeal File (IAF), Tab 1 at 5-6. Subsequently, the appellant filed the
instant Board appeal, this time naming OSC as the opposing party. Id. at 2. It
2
At least in part, the appellant’s claim is premised on the Board “publish[ing] [an]
On-Line accusation that [she] applied to OPM for Death Benefits and a Death Lump
Sum Payment.” Initial Appeal File, Tab 1 at 6. It is true that the initial decision in the
appellant’s prior appeal referred to the case as relating to an application for lump-sum
death benefits, when the application was actually one for disability retirement. See
OPM Appeal, Final Order at 2 n.2. However, we noted the error in the final order,
finding that it did not affect the appellant’s substantive rights. Id.
3
appears that the appellant sought to appeal OSC’s decision not to investigate. Id.
at 5.
¶4 The administrative judge issued an acknowledgment order, advising that the
appellant appeared to be challenging an action falling outside the Board’s limited
jurisdiction. IAF, Tab 2 at 2. Accordingly, the judge instructed the appellant to
file argument and evidence to establish the Board’s jurisdiction. Id. at 4. The
order provided notice of how she could establish jurisdiction if she was trying to
file an individual right of action under the Whistleblower Protection Act. Id. at
2-4. The appellant failed to respond.
¶5 Without holding the requested hearing, IAF, Tab 1 at 3, the administrative
judge dismissed the appeal for lack of jurisdiction, 3 IAF, Tab 4, Initial Decision
(ID) at 1. The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶6 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In the absence of
Board jurisdiction, a decision on the merits would be a nullity. Schmittling v.
Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000). It is the appellant
that bears the burden of proving, by a preponderance of the evidence, that the
Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(a)(2)(i). An appellant
is entitled to a jurisdictional hearing if she makes a nonfrivolous allegation of
unresolved issues of fact that relate to the Board’s jurisdiction. Manning v. Merit
Systems Protection Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).
¶7 In her petition, the appellant seems to suggest that the administrative judge
erred in interpreting her appeal. See PFR File, Tab 1 at 4-5. It appears that the
appellant is now challenging the prior Board decision in her OPM appeal, rather
3
The administrative judge noted that if the appellant was seeking to amend the record
of an earlier appeal, she may submit a request for amendment to the Clerk of the Board
as a Privacy Act Request, pursuant to 5 C.F.R. § 1205.21. ID at 2-3.
4
than OSC’s refusal to investigate the matter. See id. at 3-5. Nevertheless, to the
extent that the appellant’s petition can be construed as challenging OSC’s refusal
to investigate, she has provided no cause to disturb the initial decision, which
rightly found that this is not a matter within the Board’s jurisdiction. Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (mere disagreement with the
presiding official’s findings and conclusions does not warrant full review of the
record by the Board); see 5 U.S.C. § 1213 (detailing OSC’s process of reviewing
disclosures, without providing any statutory right to appeal OSC’s action or
inaction). 4
¶8 To the extent that the appellant’s petition can be construed as challenging
something other than OSC’s refusal to investigate, the appellant failed to bring
the argument to the attention of the administrative judge below, when given the
opportunity to respond to the acknowledgment order. See IAF, Tab 2 at 4
(providing 10 calendar days for a responsive pleading). The Board generally will
not consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). In addition, under 5 C.F.R. § 1201.115, the
Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980). Therefore, we need not consider the appellant’s new arguments,
see PFR File, Tab 1 at 3-5, or the appellant’s newly submitted evidence, see id. at
7-8. The appellant failed to show that her arguments or evidence were previously
unavailable. Moreover, to the extent that the appellant is requesting that we
reopen our final order in her appeal against OPM, we decline to do so. See OPM
4
Despite the administrative judge’s notice below, IAF, Tab 2 at 2-4, the appellant has
not raised a claim of whistleblower retaliation that implicates the appeal rights of
5 U.S.C. § 1221.
5
Appeal, Final Order at 6-7 (explaining the appellant’s right to appeal the Board’s
decision in her OPM appeal to the U.S. Court of Appeals for the Federal Circuit);
PFR File, Tab 1 at 8 (letter from the Clerk of the Board, rejecting the appellant’s
prior request for reconsideration of her OPM appeal); see also Special Counsel v.
Greiner, 119 M.S.P.R. 492, 496 (2013) (the Board will exercise its authority to
reopen a final order pursuant to 5 C.F.R. § 1201.118 only in unusual or
extraordinary circumstances; among the factors considered is the likelihood of
reaching a new result based on the evidence and argument presented).
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
6
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.
If you are interested in securing pro bono representation for your court
appeal, 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 court. 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.