Joseph P. Carson v. Office of Special Counsel

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH P. CARSON, DOCKET NUMBER

Appellant, AT-1221-14-0620-W-1

v.

OFFICE OF SPECIAL COUNSEL, DATE: March 25, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Joseph P. Carson, Knoxville, Tennessee, pro se.

Jason Weidenfeld, Esquire, and Pamela Gault, 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 his 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

erroneous interpretation of statute or regulation or the erroneous application of

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to address the appellant’s new claims raised in the first instance

on review, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant, an employee of the Department of Energy, filed an IRA

appeal alleging that, in reprisal for his whistleblowing activities, the Office of

Special Counsel (OSC) failed or refused to take steps to resolve his protected

disclosures regarding violations of law by OSC. Initial Appeal File (IAF), Tab 1

at 1, 15-16, Tab 2 at 1. On the section of the appeal form requiring the appellant

to indicate the personnel action or decision that he was appealing, he wrote, “any

other significant change in working conditions.” IAF, Tab 1 at 4. OSC

responded, alleging that the appellant was never employed by OSC, the matters

raised in his appeal were not personnel actions, and the Board lacked jurisdiction

to review the merits of OSC’s investigative decisions. IAF, Tab 6 at 6.

Subsequently, the administrative judge issued an order to show cause, which set

forth the requirements for establishing jurisdiction over an IRA appeal. IAF,

Tab 10 at 1-2.

¶3 After the appellant submitted two responses to the order to show cause, the

administrative judge dismissed the appeal for lack of jurisdiction without holding

3

the hearing requested by the appellant. See IAF, Tab 1 at 2, Tab 13, Initial

Decision (ID) at 1, 4; see also IAF, Tabs 11-12 (the appellant’s responses to the

show cause order). He found that the Board lacked jurisdiction over the appeal

because OSC’s failure to resolve the appellant’s claims of whistleblower

retaliation was not a “personnel action” under 5 U.S.C. § 2302(a)(2)(A). 2 ID at 3.

In addition, the administrative judge found that the Board lacked authority to

review the appellant’s allegations that OSC violated 5 U.S.C. § 1213(g), a

statutory provision addressing referral of certain protected disclosures received

by OSC to agency heads. ID at 4; IAF, Tab 12 at 4-6.

¶4 The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 3. The agency has filed a response to the petition for review, and

the appellant has filed a reply. PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 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). The Board has

jurisdiction over an IRA appeal if the appellant exhausts his administrative

remedies before OSC and makes nonfrivolous allegations that: (1) he made a

disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in protected activity

described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the

disclosure or protected activity 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). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). We agree with the administrative

2

The administrative judge found that, standing alone, the fact that the appellant was not

employed by OSC, the agency that he alleged took the personnel action against him, did

not necessarily preclude Board jurisdiction over h is appeal. See ID at 3; see also Weed

v. Social Security Administration, 113 M.S.P.R. 221, ¶¶ 9-10 (2010) (finding that the

Whistleb lower Protection Act (WPA) did not restrict the definition of an “employee” to

employees of the agency alleged to have taken the personnel action at issue).

4

judge that the dispositive issue in this appeal is whether the appellant raised a

nonfrivolous allegation that OSC took or failed to take a personnel action against

him. See ID at 3.

The administrative judge correctly found that the appellant failed to raise a

nonfrivolous allegation that OSC took or failed to take a personnel action against

him.

¶6 “Personnel actions,” for purposes of the Whistleblower Protection

Enhancement Act (WPEA), are defined as the following 12 actions: (i) an

appointment; (ii) a promotion; (iii) an action under 5 U.S.C. chapter 75 or other

disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a

reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance

evaluation under 5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or

awards, or concerning education or training if the education or training may

reasonably be expected to lead to an appointment, promotion, performance

evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); (x) a decision

to order psychiatric testing or examination; (xi) the implementation or

enforcement of any nondisclosure policy, form, or agreement; and (xii) any other

significant change in duties, responsibilities, or working conditions. 5 U.S.C.

§ 2302(a)(2)(A).

¶7 The appellant has not alleged, either below or on review, that OSC’s actions

constitute any of the 11 personnel actions enumerated in 5 U.S.C.

§ 2302(a)(2)(A)(i)-(xi). See PFR File, Tabs 3, 6; see also IAF, Tabs 1-2, 11-12.

Instead, the appellant relies upon 5 U.S.C. § 2302(a)(2)(A)(xii), arguing that

OSC’s failure or refusal to resolve his alleged protected disclosures and refusal to

seek a legal opinion from the Office of Legal Counsel of the Department of

Justice regarding his allegations that OSC violated the law constitute a

“significant change in working conditions.” PFR File, Tab 3 at 10, 12, Tab 6

at 5; IAF, Tab 1 at 4, Tab 2 at 1 (the appellant’s argument below). We agree with

the administrative judge that, although OSC’s investigations and prosecutorial

5

decisions may be of keen interest to the appellant, they do not constitute

personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A). See ID at 3-4.

¶8 The appellant has not challenged the administrative judge’s findings that

OSC is not his employing agency and that he has not applied to OSC for any

work, transfer, detail, restoration, or other attribute of employment. ID at 3; PFR

File, Tabs 3, 6. The appellant continues to allege on review that OSC’s failure or

refusal to resolve his alleged protected disclosures was a personnel action because

it “would dissuade a[]reasonable co-worker from making protected disclosures to

OSC,” reporting prohibited personnel practices to OSC, or assisting in an OSC

investigation. See PFR File, Tab 3 at 10; see also IAF, Tab 2 at 1 (the appellant’s

argument below). However, he has not alleged that OSC’s actions or inactions

resulted in any specific changes in his own job duties, responsibilities, or working

conditions. 3 See 5 U.S.C. § 2302(a)(2)(A)(xii); see also PFR File, Tabs 3, 6; IAF,

Tab 1 at 15-16, Tab 2 at 1, Tabs 11-12. In the absence of such allegations, the

appellant’s generalized assertion that he experienced a significant change in

duties, responsibilities or working conditions is insufficient to raise a

nonfrivolous allegation that OSC took a personnel action against him. See

Godfrey v. Department of the Air Force, 45 M.S.P.R. 298, 303 (1990)

(jurisdiction over an IRA appeal requires more than generalized assertions

unsupported by reference to any specific matter).

3

Although not clearly articulated by the appellant on review, to the extent that he

alleges that OSC’s failure or refusal to resolve his disclosures is a personnel action

because it contributes to “corruption and dysfunction” in the federal workplace, we find

that such a general allegation is not sufficiently concrete or specific to constitute a

personnel action under 5 U.S.C. § 2302(a)(2)(A). See PFR File, Tab 3 at 6 (the

appellant’s argument that OSC’s alleged abandonment of its statutory responsibilities

results in corruption and dysfunction in federal agencies); see also King v. Department

of Health & Human Services, 133 F.3d 1450, 1452-53 (Fed. Cir. 1998) (an action must

have “practical consequences” for an employee to constitute a “personnel action” under

5 U.S.C. § 2302(a)(2)(A)); Zimmerman v. Department of Housing & Urban

Development, 61 M.S.P.R. 75, 80 (1994) (allegations of “continuing reprisal” and

“threats” were too vague to constitute personnel actions).

6

¶9 The statute authorizing Board jurisdiction over IRA appeals authorizes an

employee to seek corrective action from the Board with respect to a personnel

action taken “against such employee.” 5 U.S.C. § 1221(a). It does not authorize

an employee to appeal alleged personnel actions taken against his coworkers. See

id.; see also Stoyanov v. Department of the Navy, 474 F.3d 1377, 1380-81 (Fed.

Cir. 2007) (finding that the alleged personnel action must be taken or proposed to

be taken against the person bringing the IRA appeal). We find that the alleged

deterrent effect upon the appellant’s coworkers is not a personnel action

under 5 U.S.C. § 2302(a)(2)(A). 4

The administrative judge did not misinterpret the nature of the alleged “personnel

action.”

¶10 On review, the appellant argues that the administrative judge misinterpreted

the nature of the personnel action that he alleged that OSC took against him. PFR

File, Tab 3 at 4, 10-13. He contends that the administrative judge misconstrued

his appeal as alleging that the personnel action was OSC’s failure to protect him

from reprisal by his employing agency, the Department of Energy. Id. at 4,

12-13. We find that the appellant’s argument is not supported by the initial

decision or any other evidence in the record below. The administrative judge did

not state that the appellant alleged that OSC had failed to protect him from

reprisal by the Department of Energy. See ID. Instead, he found that the

appellant alleged that OSC’s “failure to resolve or refusal to resolve [his]

allegations of whistleblower reprisal in a timely and objective manner” was a

4

The appellant argues that Supreme Court precedent in Burlington Northern & Santa

Fe Railway Co. v. White, 548 U.S. 53 (2006), a case arising under Title VII of the Civil

Rights Act, requires the Board to consider whether OSC’s actions would dissuade a

reasonable coworker from making protected disclosures to OSC. PFR File, Tab 3 at 10.

However, in Stoyanov, which was decided after Burlington Northern, the U.S. Court of

Appeals for the Federal Circuit held that, in an IRA appeal, the personnel action must

be taken against the person bringing the appeal. Stoyanov, 474 F.3d at 1380-81. It is

well settled that decisions of the Federal Circu it constitute precedent that is b inding on

the Board. Spain v. Department of Homeland Security, 99 M.S.P.R. 529, ¶ 9 (2005),

aff’d, 177 F. App’x 88 (Fed. Cir. 2006).

7

personnel action. ID at 3. We find the administrative judge’s interpretation to be

consistent with the appellant’s allegations below that OSC retaliated against him

by failing or refusing to resolve his claims regarding OSC’s own violations of

law. 5 See IAF, Tab 2 at 1 (the appellant’s allegations below), Tab 11 at 2 (same).

Absent a personnel action, the Board lacks jurisdiction to review the appellant’s

claims that OSC violated the law.

¶11 On review, the appellant contends that the administrative judge erred in

failing to address whether he made a protected disclosure. 6 PFR File, Tab 3 at

12. However, absent a “personnel action,” the Board lacks jurisdiction over the

appellant’s IRA appeal. See Shivaee v. Department of the Navy, 74 M.S.P.R. 383,

387 (1997) (in order for a right of appeal to accrue under the WPA, the

predecessor to the WPEA, the appellant must establish that he was subject to a

threatened personnel action); see also Yunus, 242 F.3d at 1371 (in order to

establish Board jurisdiction over an IRA appeal, an appellant must establish both

that he made a protected disclosure and that the disclosure was a contributing

factor in the decision to take or fail to take a personnel action). Therefore, once

5

Even assuming for the sake of argument, however, that the administrative judge

misconstrued the appellant’s arguments, the appellant has not demonstrated that this

error would be prejudicial to his substantive rights. See Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a

party’s substantive rights provides no basis for reversal of an initial decision). We find

that the appellant failed to raise a nonfrivo lous allegation that either OSC’s failure to

resolve his allegations that OSC violated the law or OSC’s failure to protect him from

unspecified reprisal by the Department of Energy was a personnel action, as that term is

defined in 5 U.S.C. § 2302(a)(2)(A).

6

After the close of the record on review, the appellant filed two motions seeking leave

to file additional evidence and argument. PFR File, Tabs 9, 12. The appellant alleges

that this new evidence would support his claims of “having a ‘reasonable belief’ in his

whistleblower disclosures about OSC law breaking . . . .” See PFR File, Tab 9 at 4, see

also PFR File, Tab 12 at 4-5. However, the appellant has not demonstrated the

relevance of this evidence to the dispositive issue in this appeal, which is whether he

raised a nonfrivolous allegation that OSC took or failed to take a personnel action

against him. Accordingly, the appellant’s motions are denied. See 5 C.F.R.

§ 1201.114(k) (once the record closes, no additional evidence or argument will be

accepted unless it is new and material).

8

the administrative judge found that the appellant had failed to raise a

nonfrivolous allegation that OSC took or failed to take a personnel action against

him, he was not required to address whether the appellant had a reasonable belief

that OSC was violating the law. See Shivaee, 74 M.S.P.R. at 387-89 (dismissing

an IRA appeal on the ground that the appellant failed to raise a nonfrivolous

allegation of a personnel action, without addressing whether he had a reasonable

belief that the agency violated the law).

¶12 On review, the appellant also repeatedly asserts that OSC violated the law

when it failed to resolve his whistleblower disclosures. PFR File, Tab 3 at 4-6,

10, 12, Tab 6 at 5. However, the Board has no authority to adjudicate the

appellant’s claims that OSC violated the law in failing to investigate his claims.

See Wren v. Merit Systems Protection Board, 681 F.2d 867, 871-72 (D.C. Cir.

1982) (finding that the Board had no authority to enforce the statutory

requirement that OSC investigate allegations of whistleblower reprisal).

The Board will not address the issue of whether the Board took a personnel action

against him by failing to conduct special studies, including studies of OSC.

¶13 On review, the appellant continues to argue that the Board enables OSC’s

violations of law by failing to conduct “special studies” pursuant to 5 U.S.C.

§ 1204(a)(3). 7 See PFR File, Tab 3 at 6-7, 9, 12, Tab 6 at 5; see also IAF, Tab 11

at 6 (the appellant’s assertion below that the Board violated the law by failing to

conduct special studies). For the first time on review, he additionally contends

that the Board’s failure to conduct special studies was itself a “significant change

in working conditions.” PFR File, Tab 6 at 5.

¶14 The appellant previously raised the issue of whether the Board took a

personnel action against him by failing to conduct special studies, including

studies of OSC, in another appeal against the Board, Carson v. Merit Systems

Protection Board, MSPB Docket No. AT-1221-14-0637-W-1. The administrative

7

Because the administrative judge did not address this claim, we MODIFY the initial

decision to do so.

9

law judge dismissed the appeal for lack of jurisdiction, finding that the appellant

failed to raise a nonfrivolous allegation that the Board’s failure to conduct special

studies constituted a personnel action. 8 See Carson v. Merit Systems Protection

Board, MSPB Docket No. AT-1221-14-0637-W-1, Initial Decision at 2, 5-7

(Nov. 6, 2014). The initial decision became the Board’s final decision after all

three Board members recused themselves from considering the appellant’s

petition for review. Carson v. Merit Systems Protection Board, MSPB Docket

No. AT-1221-14-0637-W-1, Order (Dec. 23, 2014); see 5 C.F.R. § 1200.3(b).

Because the Board’s members previously recused themsel ves from considering

this issue, the Board will not address it further. 9

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.

27, 2012). If you choose to file, be very careful to file on time. The court has

8

For the first time on review, the appellant also argues that because he raised claims

against the Board, his appeal should have been assigned to an administrative law judge

under 5 C.F.R. § 1201.13, as though it were an appeal by a Board employee, or

alternatively, that the administrative judge should have been disqualified under 5 C.F.R.

§ 1201.42. PFR File, Tab 3 at 9, 12. As noted above, the appellant’s appeal against the

Board was assigned to an administrative law judge. See Carson v. Merit Systems

Protection Board, MSPB Docket No. AT-1221-14-0637-W-1, Initial Decision at 1 n.2

(Nov. 6, 2014).

9

On December 31, 2014, the appellant appealed the Board’s final decision to the U.S.

Court of Appeals for the District of Columbia Circuit, where his appeal remains

pending. The court will review the issue of the Board’s jurisdiction over the appeal de

novo. See Stoyanov, 474 F.3d at 1379 (whether the Board has jurisdiction to adjudicate

an appeal is a question of law that is reviewed de novo).

10

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. 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

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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.