The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER
Appellant, DC-1221-14-0895-W-1
v.
SECURITIES AND EXCHANGE DATE: March 17, 2015
COMMISSION,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
John Doe, Sanford, Florida, pro se.
Richard M. Humes, Esquire, and Rufus Beatty, Washington, D.C., for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the individual right of action (IRA) 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly modified by
this Final Order in finding that the appellant alleged that he was protected under
the Whistleblower Protection Enhancement Act (WPEA) as an applicant for
employment rather than as an employee, we AFFIRM the initial decision.
¶2 The appellant 2 filed an IRA appeal, alleging that the agency retaliated
against him for engaging in protected whistleblowing activity. Initial Appeal File
(IAF), Tab 1. Based on the written record, the administrative judge found that the
appellant submitted a copy of a letter sent to him by the Office of Special Counsel
(OSC) advising him that he could file a request for corrective action with the
Board. IAF, Tab 19, Initial Decision (ID). 3 The administrative judge issued a
2
The appellant’s appeal and other submissions to the Board have been made
anonymously. See, e.g., Initial Appeal File (IAF), Tab 1. The administrative judge
denied the appellant’s apparent request to proceed anonymously and ordered the
appellant to provide identifying information sufficient to communicate with him and to
respond to the appeal. IAF, Tab 3. The appellant did not respond to the administrative
judge’s order.
3
The administrative judge noted that the letter to the appellant from OSC was
date-stamped January 6, 2014, and advised the appellant that he must file a request for
corrective action with the Board within 65 days. ID at 2. The appellant filed h is appeal
more than 65 days after January 6, 2014. IAF, Tab 1. Specifically, he filed his appeal
on July 16, 2014. I d. The administrative judge did not address the issue of the
timeliness of the appeal.
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jurisdictional order advising the appellant of his burden to establish jurisdiction
over his IRA appeal. IAF, Tab 5. The appellant made voluminous submissions in
response to the order, much of them redacted of names and identities of the actors
about whom the documents are written. IAF, Tabs 8 (Volumes 1-4), 14. The
administrative judge found that nothing in the appellant’s submissions show that
he is now or ever was a federal employee in a covered position, nor do they show
that he is entitled to the protection of the WPEA. ID at 4. Additionally, the
administrative judge found that the appellant failed to show that he was subject to
a personnel action. ID at 4. The administrative judge thus found that the
appellant failed to make a nonfrivolous allegation of facts sufficient to establish
Board jurisdiction over his IRA appeal and he dismissed the appeal for lack of
jurisdiction. ID at 4.
¶3 On petition for review, the appellant apparently clarifies his allegations as
to whether he is or ever was a federal employee, contending that the agency
retaliated against him as an applicant for employment by not selecting him for a
position. 4 Petition for Review (PFR) File, Tab 7 at 9, 10, 12. The agency has
responded in opposition to the petition, PFR File, Tab 12, and the appellant has
replied to the agency’s response, PFR File, Tab 16.
¶4 Generally, to establish jurisdiction over an IRA appeal regarding activity
protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that he exhausted
4
The appellant attached a number of documents to his petition for review. 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 unavailab le 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). A number of the appellant’s submissions on petition for
review predate the initial decision, and thus are not new, and he has not shown that they
were unavailable despite due diligence. We have not considered those submissions.
One submission, a letter to OSC seekin g that it intervene on the appellant’s behalf is
new; however, it provides no basis to reverse the initial decision because it does not
address the dispositive issued in this case of the Board’s jurisdiction over the appeal.
See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the in itial decision).
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his administrative remedies before OSC and make nonfrivolous allegations that
(1) he engaged in whistleblowing activity by making a protected disclosure
under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action as defined by 5
U.S.C. § 2302(a). Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12
(2002). In an IRA appeal filed pursuant to 5 U.S.C. § 1221(a), the appellant
seeking corrective action from the Board may be an employee, former employee,
or applicant for employment. Thus, the plain language of this statute extends the
Board’s IRA jurisdiction beyond individuals who meet the definition of
“employee” at 5 U.S.C. § 2105(a) to include “applicants for employment.”
¶5 Here, based on the OSC letter that the appellant submitted below, it appears
that he has exhausted his administrative remedies before OSC. Also, he has
alleged that he disclosed to OSC violations of law and millions of dollars of
waste by the agency. IAF, Tab 8. Additionally, he alleges that he applied for a
position with the agency, and he was not selected. PFR File, Tab 7 at 9-10, 12.
Nonselection for appointment is a personnel action under the WPEA. See Weed
v. Social Security Administration, 113 M.S.P.R. 221, ¶¶ 15–17 (2010). However,
as more fully explained below, the appellant has failed to show that his disclosure
was a contributing factor in the agency’s decision not to select him.
¶6 To satisfy the contributing factor criterion, an appellant must raise a
nonfrivolous allegation that the fact or content of the protected disclosure was
one factor that tended to affect the personnel action in any way. Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26 (2011). One way to
establish this criterion is the knowledge-timing test, under which an appellant
may nonfrivolously allege that the disclosure was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure, and that the personnel
5
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.
¶7 Here, it is unclear from the appellant’s submission how long after he made
his alleged protected disclosure that the nonselection occurred. However, the
appellant has not alleged that the selecting official knew or should have known of
his disclosure to OSC of alleged violations of law and waste by the agency at the
time he rendered his nonselection decision; therefore, there is no basis for the
Board to conclude that this disclosure was a contributing factor to the appellant’s
nonselection. Under these circumstances, the appellant has failed to meet the
jurisdictional criterion to make a nonfrivolous allegation that his alleged
disclosure was a contributing factor to his nonselection, and we must dismiss his
appeal for lack of jurisdiction. 5 See Reed v. Department of Veterans
Affairs, 122 M.S.P.R. 165, ¶ 25 (2015).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
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.
5
On review, the appellant alleges a number of adjudicatory errors by the administrative
judge. The appellant acknowledges that the administrative judge issued a jurisdictional
order informing the appellant of his burden to prove jurisdiction over the IRA appeal.
IAF, Tab 5. Because the appellant failed to meet his burden to establish jurisd iction,
we find that the administrative judge’s alleged adjudicatory errors, including h is alleged
error in denying the appellant’s motion to proceed anonymously, IAF, Tab 3, did not
affect the appellant’s substantive rights and provide no basis to reverse the initial
decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). We
note that the administrative judge applied the proper standard to deny the appellant’s
motion to proceed anonymously. See IAF, Tab 3; see also Pinegar v. Federal Election
Commission, 105 M.S.P.R. 677, ¶ 10 (2007).
6
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
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.
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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.