The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL N. OHNSTAD, DOCKET NUMBER
Appellant, SF-315H-15-0101-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 24, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael N. Ohnstad, Barstow, California, pro se.
Loren L. Baker, Esquire, Barstow, California, 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
regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant was terminated from his Maintenance Worker position during
his probationary period, effective October 14, 2014. See Initial Appeal File
(IAF), Tab 7 at 5, Tab 9, Subtab 4a. The appellant filed a Board appeal and
requested a hearing. IAF, Tab 1, Tab 4 at 2. During the pendency of the appeal,
it appeared that the appellant was also alleging reprisal for whistleblowing
activity, a violation of his veterans’ preference rights pursuant to the Veterans
Employment Opportunities Act of 1998 (VEOA), and a violation of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified at 38 U.S.C. §§ 4301-4333) (USERRA). See, e.g., IAF, Tabs 1, 4-5,
11. In response to the administrative judge’s jurisdictional orders, the appellant
submitted correspondence that he received from the Office of Special Counsel
(OSC), and he clarified that he was not claiming a violation of VEOA or
USERRA. See IAF, Tab 17 at 65-68.
¶3 The administrative judge issued an initial decision, which dismissed the
appeal for lack of jurisdiction without holding the appellant’s requested hearing.
IAF, Tab 19, Initial Decision (ID). In pertinent part, the administrative judge
3
found that: (1) the Board lacks jurisdiction over the appeal under chapter 75
because the appellant was not an employee pursuant to 5 U.S.C.
§ 7511(a)(1)(A)(i) or (ii), and he failed to nonfrivolously allege that his
termination during his probationary period was based on partisan political reasons
or marital status; (2) the Board also lacks jurisdiction over the appeal as an
individual right of action (IRA) appeal because the appellant has not proven by
preponderant evidence that he exhausted his administrative remedies with OSC;
(3) the appellant withdrew his USERRA and VEOA claims; and (4) the Board
lacks jurisdiction over the appellant’s remaining contentions, including that the
agency committed harmful procedural error, and that he was subjected to
discrimination, prohibited personnel practices, and violations of law. ID at 4-10.
The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 2. The agency did not file a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant appears to argue on review that the administrative judge erred
in his conclusion on the administrative exhaustion issue, he alleges fraud, waste,
and abuse by agency management, and he includes a copy of OSC’s December 30,
2014 correspondence. PFR File, Tab 2 at 2-3. 2 The appellant also appears to
contend that the administrative judge erred by not issuing subpoenas on his
behalf. PFR File, Tab 2. For the following reasons, the appellant’s petition for
review does not warrant a different outcome.
The administrative judge correctly found that the Board lacks jurisdiction over
this case as an IRA appeal.
¶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 made a disclosure described under 5 U.S.C. § 2302(b)(8),
2
OSC’s December 30, 2014 letter is not new evidence because it was already in the
record below. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980); see
also IAF, Tab 17 at 68; ID at 7-8.
4
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).
¶6 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board, and the
Board’s jurisdiction is limited to the issues raised before OSC. Briley v. National
Archives and Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001).
The appellant bears the burden of showing that he sought corrective action from
OSC and that he exhausted his administrative remedies there. Id. To meet his
burden to show administrative exhaustion, the appellant must provide OSC a
sufficient basis to pursue an investigation which might have led to corrective
action. Id. In other words, the appellant must articulate with reasonable clarity
and precision before OSC the basis for his complaint of reprisal for
whistleblowing activity. Id.; Coufal v. Department of Justice, 98 M.S.P.R. 31,
¶ 14 (2004). An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations. Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 8 (2011).
¶7 As discussed by the administrative judge in the initial decision, the record
contains an October 16, 2014 letter to the appellant from the OSC Disclosure
Unit, the appellant’s November 17, 2014 letter to OSC, and a December 30, 2014
letter to the appellant from the OSC Complaints Examining Unit. IAF, Tab 5,
5
Exhibit E, Tab 17 at 67-68; see ID at 7-8. 3 Based on the limited evidence in the
record, we are not persuaded that the appellant met his burden to show that he
exhausted his administrative remedies with OSC. Importantly, the appellant has
not proven that he provided OSC with sufficient factual information, such as his
protected disclosures, the date he made these alleged disclosures, and/or why he
believed that his disclosures were a contributing factor in the termination
decision, so that OSC could investigate a claim of reprisal for whistleblowing
activity. Additionally, it does not appear that OSC construed the appellant’s
submissions as making a claim of reprisal for whistleblowing activity because
neither letter referenced the relevant statutory provisions or provided him with
Board appeal rights for an IRA appeal. See IAF, Tab 17 at 67-68.
¶8 Under these circumstances, we discern no error with the administrative
judge’s conclusion that the appellant failed to establish that he raised before OSC
any purportedly protected disclosures of information for which the agency
retaliated against him by terminating his employment. See ID at 8 (citing
Mason, 116 M.S.P.R. 135, ¶ 8). 4 Because the appellant did not exhaust his
administrative remedies with OSC, we need not address the remaining
jurisdictional requirements for his IRA appeal. See Miller v. Federal Deposit
Insurance Corporation, 122 M.S.P.R. 3, ¶ 10 (2014) (exhaustion of
3
It does not appear that the appellant included in the record below his initial OSC
complaint, OSC’s preliminary determination letter, or his response to OSC’s
preliminary determination letter. See IAF, Tab 17 at 68.
4
Although not raised by the appellant, we considered whether his initial
correspondence to OSC, as described in OSC’s October 16, 2014 letter, or his
complaints to the Marine Corps Logistics Base Barstow Command Inspector General or
the Inspector General of the Marine Corps could constitute protected disclosures
pursuant to 5 U.S.C. § 2302(b)(8)(B)(i) or (ii). See, e.g., IAF, Tab 17 at 67, 74-76,
81-83. Because it appears that the appellant did not initiate contact with any of these
entities until after his termination, any purported disclosures therein could not have
been a contributing factor in the agency’s decision to terminate him. See Kukoyi v.
Department of Veterans Affairs, 111 M.S.P.R. 404, ¶ 11 (2009), overruled on other
grounds by Mason, 116 M.S.P.R. 135, ¶ 26 n.7.
6
administrative remedies before OSC is a jurisdictional prerequisite to raising an
IRA appeal before the Board); see also supra ¶ 5.
The administrative judge correctly determined that the Board lacks jurisdiction
over this matter as an appeal under chapter 75, and that the appellant withdrew
his VEOA and USERRA claims.
¶9 The appellant does not challenge the administrative judge’s finding that the
Board lacks jurisdiction over his appeal under chapter 75, and we discern no basis
for disturbing this well-reasoned finding on review. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions). Furthermore, he
does not contest the administrative judge’s findings that he withdrew his
USERRA and VEOA claims, and he fails to otherwise raise a basis under which
the Board could have jurisdiction over his appeal.
¶10 Finally, because the administrative judge properly dismissed the appeal for
lack of jurisdiction, there was no need for him to issue subpoenas on the
appellant’s behalf. See Nortz v. Department of Veterans Affairs, 47 M.S.P.R.
526, 531-33 (1991) (where the Board did not have jurisdiction over the appeal,
the administrative judge did not err in denying the appellant’s request for
discovery and for the issuance of subpoenas).
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
7
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.
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
8
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.