The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT CONKLIN, DOCKET NUMBER
Appellant, AT-1221-15-0100-W-1
v.
DEPARTMENT OF THE ARMY, DATE: October 6, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Michael T. McCulley, Esquire, Atlanta, Georgia, for the appellant.
Anne M. Norfolk, Esquire, Fort Benning, Georgia, 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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the law to the facts of the case; the administrative 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 The appellant filed an IRA appeal in which he contended that he was not
selected for a position in June 2012, because the agency committed prohibited
personnel practices under 5 U.S.C. § 2302(b)(4), (b)(6), and (b)(9). Initial
Appeal File (IAF), Tab 1 at 6. The administrative judge issued an appropriate
order directing the appellant to submit evidence and argument on the issue of
jurisdiction, IAF, Tab 3, and, after considering the parties’ responses, he
dismissed the appeal for lack of jurisdiction without a hearing upon finding that
the appellant failed to exhaust his remedies with the Office of Special Counsel
(OSC), IAF, Tab 7, Initial Decision (ID).
¶3 The alleged personnel action at issue in this appeal occurred in June 2012.
Effective December 27, 2012, Congress amended the Whistleblower Protection
Act to grant the Board jurisdiction over certain allegations of retaliation under
5 U.S.C. § 2302(b)(9). Whistleblower Protection Enhancement Act of 2012
(WPEA), Pub. L. No. 112-199, 126 Stat. 1465, §§ 101(b)(1)(A), 202. The Board
has held that the portion of the WPEA extending the Board’s jurisdiction to
allegations of violations of 5 U.S.C. § 2302(b)(9) is not retroactive. Miller v.
Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶¶ 13-15 (2014), aff’d,
No. 2015-3054, 2015 WL 4681015 (Fed. Cir. Aug. 6, 2015). Therefore, the
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administrative judge correctly found that the appellant’s (b)(9) claim is not within
the Board’s jurisdiction. ID at 5-6; see Becker v. Department of Veterans Affairs,
112 M.S.P.R. 516, ¶ 5 (2009) (explaining that the Board lacks direct jurisdiction
over a nonselection for a position); Davis v. Department of Defense,
103 M.S.P.R. 516, ¶ 11 (2006) (applying pre-WPEA law and finding that the
appellant’s prohibited personnel practices claims, including his (b)(9) claim, did
not provide a basis for Board jurisdiction absent an otherwise appealable action).
¶4 In an IRA appeal, the appellant must prove that the Board has jurisdiction
over the appeal by proving, inter alia, that he exhausted his administrative
remedies before OSC. Miller, 122 M.S.P.R. 3, ¶ 6. To satisfy the exhaustion
requirement, an appellant must inform OSC of the precise ground of his claim of
whistleblowing, giving OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Id. The test of the sufficiency of an employee’s
charges of whistleblowing to OSC is the statement he made in the complaint
requesting protective action, not his post hoc characterization of those statements.
Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993).
¶5 The appellant consistently contended before OSC, both in his initial
complaint and in his attorney’s subsequent letters to OSC, that the agency
committed violations of 5 U.S.C. § 2302(b)(4), (b)(6) and (b)(9)(A). IAF, Tab 4
at 19-30, 36-40. Never did he allege that he made protected disclosures, much
less that the agency retaliated against him because of his disclosures. Even in his
petition for review, the appellant does not allege that he made any protected
disclosures. He merely attempts, as he did below, to recharacterize the
allegations he made to OSC. We find, therefore, that the administrative judge
correctly found that the appellant did not exhaust his administrative remedies
before OSC and properly dismissed the appeal for lack of IRA jurisdiction. ID
at 4.
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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).
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
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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 your 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.