The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADRIAN E. BLAIR, DOCKET NUMBER
Appellant, DA-1221-14-0654-W-1
v.
DEPARTMENT OF VETERANS DATE: May 11, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Adrian E. Blair, Grand Prairie, Texas, pro se.
Jenny Mai, Dallas, Texas, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 The appellant is employed by the agency as a sign painter. Initial Appeal
File (IAF), Tab 6 at 12. In January 2014, the agency suspended the appellant for
14 days. Id. at 14-16. In May 2014, the appellant filed a whistleblower reprisal
complaint with the Office of Special Counsel (OSC) regarding the suspension 2; he
indicated in his OSC complaint that he had filed two equal employment
opportunity (EEO) complaints. IAF, Tab 4, Subtab 7 at 5-7. OSC informed the
appellant that it had made a preliminary determination to close its inquiry because
his allegations were more appropriately addressed through the EEO process. Id.
2
The appellant previously filed a stay request and an appeal regard ing the 14-day
suspension. The stay request was dismissed on the basis that the appellant had not
alleged retaliation for whistleblowing and had not exhausted his OSC remedy. Blair v.
Department of Veterans Affairs, MSPB Docket No. DA-3443-14-0213-S-1, Stay
Decision (Feb. 3, 2014). The appeal was dismissed in an initial decision because a
14-day suspension is not directly appealab le to the Board and the appellant had not
exhausted his remedies with OSC before filing the appeal. Blair v. Department of
Veterans Affairs, MSPB Docket No. DA-3443-14-0213-I-1, Initial Decision (Apr. 1,
2014). The appellant did not petition for review in that case, and therefore the initial
decision became final.
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at 14-15. In response, the appellant requested that OSC remove the “EEO
portion” of his complaint and amend his complaint to include only the
“suspension procedure.” Id. at 16.
¶3 After being advised of his right to file an individual right of action (IRA)
appeal with the Board, id., the appellant timely filed this appeal, IAF, Tab 1. The
administrative judge notified the appellant of his burden with respect to
establishing jurisdiction over an IRA appeal. IAF, Tab 3. The appellant
responded, identifying his protected activities as two formal EEO complaints.
IAF, Tab 4, Subtab 2. He appeared to identify the 14-day suspension, as well as
several other actions (including two admonishments, a reprimand, and a lowered
performance appraisal) as the retaliatory personnel actions. Id., Subtab 5.
¶4 In the initial decision, the administrative judge found that the appellant had
only exhausted his administrative remedies before OSC regarding the suspension,
and the Board therefore could not exercise jurisdiction over the other alleged
retaliatory personnel actions. IAF, Tab 8, Initial Decision (ID) at 5-6. Regarding
the suspension, the administrative judge found that the appellant failed to
nonfrivolously allege that he made a protected disclosure or engaged in protected
activity that could form the basis of an IRA appeal; the administrative judge
therefore dismissed the appeal for lack of jurisdiction. ID at 6-7.
¶5 The appellant has filed a timely petition for review in which he generally
objects to the administrative judge’s decision. Petition for Review (PFR) File,
Tab 1. The agency has responded in opposition to the petition for review. PFR
File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.
¶6 We agree with the agency that the appellant has provided no basis upon
which to grant his petition for review. On review, the appellant does not address
the administrative judge’s reasons for finding that the Board lacks jurisdiction
over his appeal. PFR File, Tab 1. Thus, we find that his petition constitutes mere
disagreement with the administrative judge’s well-reasoned findings and, as such,
provides no basis for disturbing the initial decision. Weaver v. Department of the
4
Navy, 2 M.S.P.R. 129, 133-34 (1980). For the reasons set forth below, we agree
with the administrative judge that the Board does not have jurisdiction in this
case.
¶7 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 protected 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); Linder v. Department
of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). We agree with the administrative judge
that the Board could consider only the appellant’s allegation that he was
suspended in retaliation for his EEO complaint and not any other alleged
disclosures, protected activities or personnel actions, because this was the only
personnel action and the only alleged protected disclosure/activity that the
appellant raised and exhausted before OSC. Boechler v. Department of the
Interior, 109 M.S.P.R. 638, ¶ 6 (2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009);
see ID at 5; see also IAF, Tab 4, Subtab 7 at 1-2 (OSC closeout letters).
¶8 We also agree with the administrative judge that the appellant did not make
a nonfrivolous allegation that he made protected disclosures or engaged in
protected activities that can form the basis of an IRA appeal. See ID at 6-7. The
Board has found that allegations that are limited to EEO matters covered
under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under section
2302(b)(8). 3 Applewhite v. Equal Employment Opportunity
3
Under 5 U.S.C. § 2302(b)(1), it is a prohib ited personnel practice to “discriminate for
or against any employee or applicant for employment” based upon certain protected
categories. Under 5 U.S.C. § 2302(b)(9)(A) it is a prohib ited personnel practice to
“take or fail to take, or threaten to take or fail to take, any personnel action against any
employee or applicant for employment because of the exercise of any appeal,
complaint, or grievance right granted by any law, ru le, or regu lation.”
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Commission, 94 M.S.P.R. 300, ¶ 23 (2003). Thus, to the extent that he attempts
to do so, the appellant cannot predicate his appeal on disclosures of EEO matters.
See Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 21 (2005).
¶9 We also agree with the administrative judge that the appellant’s allegation
of reprisal under section 2302(b)(9) based on his filing of a prior EEO complaint
of discrimination does not establish the Board’s jurisdiction in an IRA appeal.
See ID at 6-7. Pursuant to the Whistleblower Protection Enhancement Act of
2012 (WPEA), an employee may now seek corrective action in an IRA appeal for
any personnel action taken as a result of a prohibited personnel practice described
in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(a); see Colbert
v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6 (2014). Reprisal for
filing a prior EEO complaint, however, is not included among this listing of
prohibited personnel practices which can form the basis of an IRA appeal; rather,
this prohibition is contained within 5 U.S.C. § 2302(b)(9)(A)(ii), and it does not
provide a basis for establishing the Board’s jurisdiction over an IRA appeal. See
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
Therefore, the administrative judge properly found that the appellant’s allegations
of EEO reprisal failed to nonfrivolously establish the Board’s jurisdiction over an
IRA appeal. Id.; see ID at 6-7.
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).
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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.
If you are interested in securing pro bono (free of charge) representation for
your court appeal, you may visit our website at http://www.mspb.gov/probono for
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems Protection Board
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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.