The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL GIBBS, DOCKET NUMBER
Appellant, DC-3443-14-1062-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: February 20, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Michael Gibbs, Haymarket, Virginia, pro se.
Kerry E. Creighton, Esquire, Washington, D.C., 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In Gibbs v. Department of the Interior, MSPB Docket No. DC-3330-12-
0721-I-2, Final Order (Sept. 4, 2014), the Board affirmed the administrative
judge’s decision to dismiss the Veterans Employment Opportunities Act of 1998
appeal for lack of jurisdiction. Noting the appellant’s contention on review that
the administrative judge failed to address certain senior executive service
positions for which he had applied, and his concomitant assertion that the
agency’s decision not to select him for various positions was due to his military
status and/or his whistleblower status, the Board forwarded these claims to the
Washington Regional Office for docketing as a new appeal. See id., ¶ 6. It
appears that the appellant filed the instant appeal pursuant to that order, and he
only asserted therein that the agency’s actions were a violation of his First
Amendment rights and constituted a prohibited personnel practice pursuant
to 5 U.S.C. § 2302(b)(11). See Initial Appeal File (IAF), Tab 1.
¶3 The administrative judge issued an acknowledgment order which explained
that the Board has jurisdiction over nonselections in limited circumstances, for
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instance, when there is an allegation that the agency’s decision was made in
retaliation for whistleblowing, was the product of discrimination based on
uniformed service, or was a violation of the applicant’s veterans’ preference
rights, and she cited some relevant statutory provisions. See IAF, Tab 2 at 2-3.
The administrative judge ordered the appellant to file evidence and argument to
prove that the appeal was within the Board’s jurisdiction. Id. at 3. However, the
appellant did not respond to this order.
¶4 The agency filed a submission arguing that the Board lacks jurisdiction over
the appeal. See IAF, Tabs 5-6. In pertinent part, the agency noted that the
appellant: (1) stated in his initial appeal paperwork that he was not entitled to
veterans’ preference; (2) did not claim that he was discriminated against based on
military service; and (3) failed to show that he exhausted his administrative
remedies with the Office of Special Counsel (OSC) regarding a whistleblower
reprisal claim. See IAF, Tab 5 at 10. The appellant filed a subsequent
submission, in which he acknowledged that the positions for which he had applied
were “not subject to Veteran[s’] preference,” but he did not address any of the
agency’s other assertions. See IAF, Tab 7. The appellant also filed a motion to
compel. See IAF, Tab 8.
¶5 The administrative judge issued an initial decision that dismissed the appeal
for lack of jurisdiction without holding a hearing. IAF, Tab 9, Initial Decision
(ID). In pertinent part, the administrative judge noted that the appellant
“steadfastly asserted that his claims involve prohibited personnel practices, not
his status as a veteran,” he has not articulated any basis for the Board’s
jurisdiction in connection with discrimination based on prior military service,
and 5 U.S.C. § 2302(b) does not provide an independent basis for Board
jurisdiction. ID at 2-3. The appellant has filed a petition for review, the agency
has filed a response, and the appellant has filed a reply. Petition for Review
(PFR) File, Tabs 1, 3-4. On review, the appellant for the first time references,
among other things, “disclosures” that he allegedly made to the Office of the
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Inspector General and OSC, and he appears to quote from 5 U.S.C. § 2302(b)(8).
See PFR File, Tab 1 at 4-5. He also includes a copy of the agency’s discovery
requests and his responses thereto. See id. at 6-27.
¶6 It appears that the appellant may be asserting, for the first time on review in
this matter, that he was not selected for various positions in reprisal for
whistleblowing activity. Based on our review of the record, we conclude that the
appellant was given sufficient notice of his jurisdictional burden for a claim of
reprisal for whistleblowing activity and that he did not meet his jurisdictional
burden. The acknowledgment order identified a claim of reprisal for
whistleblowing activity as one circumstance in which the Board may have
jurisdiction over a nonselection, see IAF, Tab 2, but none of the appellant’s
submissions made any assertions in this regard. Moreover, the agency’s
submission informed the appellant that he was required to show that he exhausted
his administrative remedies with OSC. See IAF, Tab 5 at 10; see, e.g., Nichols v.
Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996) . Finally, we take
official notice that, in Gibbs v. Department of Homeland Security, MSPB Docket
No. DC-1221-11-0564-W-1, Initial Decision (Aug. 22, 2011), 2 the appellant was
apprised of his jurisdictional burden for a claim of reprisal for whistleblowing
activity. See 5 C.F.R. § 1201.64; see also Wofford v. Department of
Justice, 115 M.S.P.R. 468, ¶ 5 n.4 (2010) (the Board may take official notice of
matters that can be verified, including documents or actions in other Board
appeals).
¶7 Having found that the appellant had sufficient notice of his jurisdictional
burden in this regard, we further find that, in the absence of any evidence that he
exhausted his administrative remedy with OSC, the Board lacks jurisdiction over
any assertion that the nonselections were based on reprisal for whistleblowing
2
The appellant’s individual right of action appeal was dismissed for lack of jurisdiction
because he failed to exhaust administrative remedies with OSC. It does not appear that
the appellant filed a petition for review or appeal of that in itial decision.
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activity. See, e.g., Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001). We also agree with the administrative judge that the Board
lacks jurisdiction over the appellant’s remaining claims for the reasons described
in the initial decision. See, e.g., Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980) (prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.
1982). 3
¶8 It does not appear that the administrative judge ruled on the appellant’s
motion to compel below. See IAF, Tab 8; see also ID. We deny the motion to
compel because it did not comply with 5 C.F.R. § 1201.73(c). In pertinent part,
the motion did not include, among other things, a copy of the appellant’s original
discovery requests, the agency’s responses thereto, or a statement that he has
discussed or attempted to discuss the anticipated motion with the agency and
made a good faith effort to resolve the discovery dispute and narrow the areas of
disagreement.
¶9 Finally, we need not consider the appellant’s responses to the agency’s
discovery requests, submitted on review, because the Board generally 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, see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980),
and the appellant has not made such a showing.
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:
3
To the extent that the appellant is raising allegations of race and/or age discrim ination
for the first time on review, see PFR File, Tab 1 at 4, the Board also lacks jurisdiction
over such allegations.
6
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.
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
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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.