Keith K. Foo v. Department of Agriculture

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITH K. FOO, DOCKET NUMBER

Appellant, SF-1221-15-0133-W-1

v.

DEPARTMENT OF AGRICULTURE, DATE: June 3, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Keith K. Foo, Waipahu, Hawaii, pro se.

Dora Malykin, Riverdale, Maryland, 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 this 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 In this IRA appeal, the appellant alleged that the agency decided not to

renew his term appointment as a Biological Technician for the agency’s Animal

and Plant Health Inspection Service in retaliation for his claimed disclosure that

his supervisor committed a firearms violation and in reprisal for filing an equal

employment opportunity (EEO) complaint. Initial Appeal File (IAF), Tab 1. In

addition to an acknowledgment order, the administrative judge issued a

jurisdictional order setting forth the appellant’s burden to establish jurisdiction

over his IRA appeal in order to receive a hearing on his claim. IAF, Tabs 2, 8.

The appellant did not reply to the administrative judge’s jurisdictional order.

Citing the appellant’s failure to respond to the jurisdictional order before the

close of the record, the agency moved to dismiss the appeal. IAF, Tab 9.

¶3 The administrative judge subsequently dismissed the appellant’s IRA appeal

for lack of jurisdiction without holding a hearing. IAF, Tab 13, Initial Decision

(ID). Specifically, the administrative judge found that the appellant failed to

establish that he had exhausted his administrative remedies before the Office of

Special Counsel (OSC) because he “failed to inform OSC of ‘the precise grounds

of his charge of whistleblowing’ sufficient to allow it to pursue an investigation

that might lead to corrective action.” ID at 5 (citing Mason v. Department of

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Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011)). Similarly, the administrative

judge found that the appellant failed to make the requisite nonfrivolous allegation

that he made a protected disclosure because his claim lacked sufficient specificity

and detail; the appellant not only neglected to explain the substance of his

disclosure, he also failed to identify to whom it was made and when he made it.

ID at 5-6. The administrative judge also found that the Board lacked jurisdiction

over the appellant’s claim of reprisal for filing an EEO complaint because the

appellant’s reprisal claim did not involve the exercise of his right to file an EEO

complaint as to remedying a violation of 5 U.S.C. § 2302(b)(8). ID at 7.

¶4 In his petition for review, the appellant alleges that he was denied the

opportunity to complete discovery and to have a hearing with witnesses. Petition

for Review (PFR) File, Tab 1 at 3. He provides statements and email messages

from his coworkers in support of his alleged disclosure, some of which are

addressed to his representative in Congress, and none of which appear to have

been unavailable before the record closed below. Id. at 6-20. He also provides a

copy of his motion to compel discovery, which arrived at the regional office after

the administrative judge issued his initial decision and was returned to the

appellant for that reason. Id. at 21-26. The agency responds in opposition to the

appellant’s petition for review, and he provides a reply to the agency’s response.

PFR File, Tabs 4-5.

¶5 The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his administrative remedies before OSC and makes nonfrivolous

allegations that: (1) he engaged in whistleblowing activity by making a protected

disclosure, and (2) the disclosure was a contributing factor in the agency’s

decision to take or fail to take a personnel action. Yunus v. Department of

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion

requirement of 5 U.S.C. § 1214(a)(3) in an IRA appeal, an appellant must inform

OSC of the precise ground of his charge of whistleblowing, giving OSC a

sufficient basis to pursue an investigation which might lead to corrective action.

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Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).

The test of the sufficiency of an employee’s charges of whistleblowing to OSC is

the statement that he makes in the complaint requesting corrective action, not his

post hoc characterization of those statements. Id.; Ellison v. Merit Systems

Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993).

¶6 As noted above, the appellant failed to respond to the administrative judge’s

jurisdictional order. Because the appellant failed to file an actual copy of the

complaint he filed with OSC, OSC’s October 30, 2014 letters were the only

evidence in the record by which the appellant could establish OSC exhaustion.

ID at 4-5; IAF, Tab 1 at 9-10. Thus, all we know that the appellant told OSC is

that his supervisor allegedly committed a firearms violation. See IAF, Tab 1 at 9.

As the administrative judge correctly observed, the record does not reflect that

the appellant ever told OSC when he made his alleged protected disclosure, the

identity of the person to whom he allegedly made his disclosure, or any specifics

regarding the content of the disclosure. ID at 4-5. Although he may have given

OSC more information, his failure to respond to the administrative judge’s

jurisdictional order and show exactly what he told OSC means that he failed to

carry his burden to establish exhaustion of his administrative remedies before

OSC.

¶7 The appellant also fails to address the issue of OSC exhaustion on review,

providing nothing with his petition for review to indicate that he provided any

more information to OSC regarding his alleged protected disclosure. 2 Thus, we

2

In Nasuti v. Merit Systems Protection Board, 376 F. App’x 29, 32 (Fed. Cir. 2010)

(citin g Ward, 981 F.2d at 526), our reviewing court remanded an IRA appeal in order

for the Board to consider evidence that the appellant in that matter claimed to have sent

to OSC while OSC was considering his complaint. Thus, had the appellant included

further information on the exhaustion issue with his petition for review, we would have

considered it, to the extent that it meets the Board’s evidentiary criteria, in order to

determine whether the appellant estab lished jurisdiction over his IRA appeal. See id;

see also Nasuti v. Department of State, 112 M.S.P.R. 587, ¶ 7 (2009); 5 C.F.R.

§§ 1201.114(i), 1201.115(d)(1).

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agree with the administrative judge that the appellant’s vague allegation of

wrongdoing lacked sufficient specificity and detail such that OSC could pursue an

investigation that might lead to corrective action and that the appellant therefore

failed to establish that he had exhausted his administrative remedies before OSC.

ID at 4-5; see Yunus, 242 F.3d at 1371. A party “whose submissions lack clarity

risks being found to have failed to meet his burden of proof.” Luecht v.

Department of the Navy, 87 M.S.P.R. 297, ¶ 8 (2000).

¶8 We also agree with the administrative judge that the appellant failed to

make the requisite nonfrivolous allegation that he made a protected disclosure

which a reasonable person would believe evidenced a violation of law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety. ID at 5-6. The

entirety of the appellant’s argument is not much more than conclusory allegations

of wrongdoing, very little of which even touches on the subject of his purported

disclosure, and the information that does refer to it is vague and potentially

contradictory. For example, it appears that the appellant told the agency’s Office

of Inspector General that he had reported an instance of firearms mishandling to

his supervisor, IAF, Tab 5 at 4, but, in the appellant’s own account, he instead

claims that the supervisor was there at the time of the incident, “did not stop it,”

and that another employee put a stop to the class, id. at 9. Moreover, nearly all of

the information in the record about any alleged firearms incidents is contained in

statements made by the appellant’s coworkers, and absolutely nothing the

appellant provided below, or that he provides with his petition for review,

identifies what he disclosed, to whom he disclosed it, or when he made the

alleged protected disclosure for which he contends that the agency retaliated

against him. IAF, Tabs 1, 5; PFR File, Tab 1 at 6-20.

¶9 As for the appellant’s allegations of reprisal for filing an EEO complaint,

under 5 U.S.C. § 1221(a), as amended by the Whistleblower Protection

Enhancement Act, Pub. L. No. 112-199, 126 Stat. 1465 (WPEA),

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section 101(b)(1)(A), an employee, former employee, or applicant for

employment may, with respect to any personnel action taken, or proposed to be

taken against such employee, former employee, or applicant for employment, as a

result of a prohibited personnel practice described in 5 U.S.C. § 2302(b)(8) or

§ 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Board.

Among other things, the WPEA expanded the scope of 5 U.S.C. § 2302(b)(9), to

include:

(A) the exercise of any appeal, complaint, or grievance right granted

by any law, rule, or regulation—

(i) with regard to remedying a violation of paragraph (8); or

(ii) other than with regard to remedying a violation of paragraph (8).

However, of those two categories, the WPEA only extended the Board’s IRA

jurisdiction to claims arising under 5 U.S.C. § 2302(b)(9)(A)(i) but not to those

arising under (b)(9)(A)(ii). See WPEA section 101(b)(1)(A).

¶10 The administrative judge found that the appellant’s failure to claim that his

EEO complaint involved remedying a violation of 5 U.S.C. § 2302(b)(8),

precludes finding Board jurisdiction over this IRA appeal on that basis. ID

at 6-7. The only documentation in the record regarding the substance of the

appellant’s EEO complaint does not indicate that he sought therein to remedy

whistleblower reprisal, see IAF, Tab 7, Subtab 4B at 4, and it was therefore not a

protected disclosure under the WPEA, e.g., Reed v. Department of Veterans

Affairs, 122 M.S.P.R. 165, ¶ 13 (2015). Thus, we agree with the administrative

judge that the Board lacks jurisdiction to consider such a claim in this IRA

appeal. ID at 7.

¶11 Lastly, we address the appellant’s contention that the administrative judge

denied him discovery and a hearing with witnesses. First, we note that the

administrative judge made no rulings regarding discovery, and, as set forth above,

we agree with his decision to dismiss this IRA appeal for lack of jurisdiction

without holding a hearing. Regarding discovery, the record reflects that the

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appellant erroneously filed his discovery requests, as well as his responses to the

agency’s discovery, with the administrative judge, who returned them to the

appellant along with an explanation of why he was doing so. See IAF, Tabs 6, 10.

The record also reflects that the appellant attempted to file a motion to compel

which was received by the regional office after the administrative judge issued

his initial decision. PFR File, Tab 1 at 24-26. 3 Because the administrative judge

therefore made no actual rulings on the issue, there is no basis on which to find

that the administrative judge abused his discretion concerning discovery. See

Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992) (the

Board will not reverse an administrative judge’s rulings on discovery matters

absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).

Moreover, the appellant was not entitled to engage in discovery regarding his IRA

appeal because he failed to raise a nonfrivolous allegation that he made a

protected disclosure that was a contributing factor in the agency’s decision to take

or fail to take a personnel action. See, e.g., Sobczak v. Environmental Protection

Agency, 64 M.S.P.R. 118, 122 (1994).

¶12 Accordingly, for the reasons set forth above, we agree with the

administrative judge’s determination that the appellant failed to establish

jurisdiction over this IRA appeal.

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

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The appellant’s motion did not comply with the Board’s regulation settin g forth the

requirements for a motion to compel discovery. See PFR File, Tab 1 at 24-26; see a lso

5 C.F.R. § 1201.73(c).

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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 information regarding 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.