McCarthy v. Merit Systems Protection Board

United States Court of Appeals

for the Federal Circuit

______________________

ROBERT J. MCCARTHY,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2015-3072

______________________

Petition for review of the Merit Systems Protection

Board in No. DA-1221-09-0725-W-1, DA-1221-10-0078-W-

1.

______________________

Decided: January 14, 2016

______________________

PAULA NAOMI DINERSTEIN, Public Employees for Envi-

ronmental Responsibility, Washington, DC, argued for

petitioner.

MICHAEL ANTON CARNEY, Office of the General Coun-

sel, Merit Systems Protection Board, Washington, DC,

argued for respondent. Also represented by BRYAN G.

POLISUK.

______________________

Before PROST, Chief Judge, LOURIE and WALLACH, Circuit

Judges.

2 MCCARTHY v. MSPB

PROST, Chief Judge.

Robert McCarthy, who was formerly employed as a

supervisory attorney for the United States International

Boundary and Water Commission (the “Commission” or

the “USIBWC”), appeals from a denial by the Merit Sys-

tems Protection Board (“Board”) of his motion to reopen

his appeal. For the reasons discussed below, this court

affirms.

BACKGROUND

A

The circumstances giving rise to this appeal are

summarized in part in our decision McCarthy v. Interna-

tional Boundary and Water Commission: U.S. and Mexico,

497 F. App’x 4 (Fed. Cir. 2012) (unpublished). We provide

facts relevant to the issues here below.

USIBWC Commissioner Bill Ruth hired McCarthy as

a full-time, supervisory attorney for the Commission

beginning January 18, 2009. Between June and July,

2009, McCarthy prepared four legal memoranda (two on

June 19, one on July 14, and one on July 20) challenging

certain activities at the Commission as “gross misman-

agement” and contrary to existing law. McCarthy’s

memoranda also attacked certain officers as lacking “core

competencies.”

On July 28, 2009, McCarthy submitted a report titled

“Disclosures of Alleged Fraud, Waste and Abuse” to the

State Department Office of Inspector General (“OIG”), as

well as other federal agencies. The report stated, “I have

previously made the Commissioner aware of the matters

disclosed herein, and I have provided legal advice with

respect thereto.” J.A. 171. It specifically identified both

June 19 memoranda, but did not identify the July memo-

randa. That same day, McCarthy sent an email to the

USIBWC’s Commissioner Ruth informing him that he had

MCCARTHY v. MSPB 3

“report[ed] allegations of fraud, waste and abuse (and

suspected criminal activity).” J.A. 182.

On July 31, 2009, Commissioner Ruth terminated

McCarthy’s employment. In support of his decision,

Commissioner Ruth cited McCarthy’s

continued failure to support me or other members

of the executive staff in a constructive and collegi-

al manner as evidenced in [his] memoranda of

June 19, 2009, ‘Legal Requirements for Infor-

mation Management’, June 19, 2009, ‘Legal Re-

quirements for Separation of Budget and Finance

Responsibilities’, July 14, 2009, ‘Opinion on the

Draft Internal Audit Program Directive and Man-

ual’, and July 20, 2009, ‘Comments on Proposed

Directive Management System’ . . . .

J.A. 183.

B

On August 1, 2009, McCarthy filed a complaint with

the Office of Special Counsel (“OSC”), alleging whistle-

blower retaliation. His complaint identified his report to

OIG, but not the legal memoranda, as protected activity.

At the time, this was consistent with existing precedent,

which held that reports made in the course of an employ-

ee’s normal duties and reports made to a supervisor about

a supervisor’s conduct were not protected under the

Whistleblower Protection Act of 1989, Pub. L. No. 101-12,

103 Stat. 16 (codified at various sections of 5 U.S.C.)

(“WPA”). See Huffman v. Office of Pers. Mgmt., 263 F.3d

1341, 1344 (Fed. Cir. 2001). On August 21, McCarthy

submitted an additional “Statement in Support of Com-

plaint for Reprisal, Appeal and Stay Request” to the OSC

which discussed his whistleblowing complaint in more

detail. This statement did not explicitly identify the legal

memoranda, but discussed similar topics. Compare J.A.

4 MCCARTHY v. MSPB

209–23 (August 21 statement), with J.A. 152–81 (legal

memoranda).

The administrative judge issued an initial decision on

April 9, 2010, concluding that McCarthy had not been

retaliated against. The Board affirmed the administra-

tive judge’s initial decision on August 5, 2011, and we

affirmed on October 15, 2012. McCarthy, 497 F. App’x at

16.

McCarthy petitioned for rehearing on November 29,

2012. Petition for Panel Rehearing, Rehearing En Banc,

McCarthy, 497 F. App’x 4 (No. 11-3239), ECF No. 2.

While McCarthy’s petition was still pending, Congress

enacted the Whistleblower Protection Enhancement Act of

2012 (“WPEA”), which became effective December 27,

2012. Pub. L. No. 112-199, 126 Stat. 1465-76 (codified as

amended in scattered sections of 5 U.S.C., 6 U.S.C. § 133,

31 U.S.C. § 1116, 50 U.S.C. § 401a). Both parties recog-

nize that, under the WPEA, McCarthy’s four legal memo-

randa could be protected disclosures. Compare Opening

Br. 31–32, with Responsive Br. 31; see 5 U.S.C. § 2302(f).

On June 26, 2013, the Board decided Day v. Department

of Homeland Security, No. DC-1221-12-0528-W-1, 2013

WL 3204514 (M.S.P.B. June 26, 2013), which held that

§ 101 of the WPEA could be applied retroactively to

pending cases. The parties do not dispute that the WPEA

could be applied retroactively here. Compare Opening Br.

14, 24–25, with Responsive Br. 28. McCarthy did not

raise the WPEA’s change in law while his petition for

rehearing was pending. 1

1 At oral argument, McCarthy explained that he did

not raise WPEA’s change in law while his petition was

pending because the Board had not yet decided Day.

Thus, in his view, it was unclear that the WPEA could be

retroactively applied to his case.

MCCARTHY v. MSPB 5

We denied McCarthy’s petition for rehearing on Feb-

ruary 13, 2013. McCarthy v. Int’l Boundary & Water

Comm’n: U.S. & Mex., No. 11-3239 (Fed. Cir. Feb. 13,

2013). McCarthy petitioned for certiorari to the Supreme

Court on May 13, 2013, which was denied on October 7,

2013. McCarthy v. Int’l Boundary & Water Comm’n: U.S.

& Mex., No. 12-1364 (Oct. 7, 2013).

On October 25, 2013, McCarthy filed a motion to reo-

pen his appeal with the Board, seeking reinstatement and

“other appropriate relief.” J.A. 132. After the Board did

not respond, on December 1, 2014, McCarthy petitioned

this court for a writ of mandamus directing the Board to

issue a decision. Petition for Writ of Mandamus, In re

McCarthy, No. 2015-118 (Fed. Cir. Dec. 1, 2014), ECF No.

1. While McCarthy’s mandamus petition was pending, on

January 8, 2015, the Clerk of the Board sent McCarthy a

letter informing him that the Board would not reopen his

case. We denied McCarthy’s mandamus petition on

January 29, 2015, electing to instead construe his petition

as a timely petition for review, which is the appeal now

before us.

DISCUSSION

A

This court’s review of decisions by the Board is lim-

ited. Under 28 U.S.C. § 1295(a)(9), we may only hear “an

appeal from a final order or final decision of the” Board.

28 U.S.C. § 1295(a)(9) (2012). A threshold question, then,

is whether the Clerk’s January 8 letter constitutes a “final

order or final decision” that may be reviewed by us.

Section 1201.113 of 5 C.F.R., titled “Finality of deci-

sion,” provides in relevant part:

The initial decision of the judge will become the

Board’s final decision 35 days after issuance. Ini-

tial decisions are not precedential.

6 MCCARTHY v. MSPB

(a) Exceptions. The initial decision will not be-

come the Board’s final decision if within the time

limit for filing specified in 1201.114 of this part,

any party files a petition for review or, if no peti-

tion for review is filed, files a request that the ini-

tial decision be vacated for the purpose of

accepting a settlement agreement into the record.

(b) Petition for review denied. If the Board denies

all petitions for review, the initial decision will be-

come final when the Board issues its last decision

denying a petition for review.

(c) Petition for review granted or case reopened. If

the Board grants a petition for review or a cross

petition for review, or reopens or dismisses a case,

the decision of the Board is final if it disposes of

the entire action.

The reviewability of Clerk letters from the Board is

not an entirely new question to us. In Haines v. Merit

Systems Protection Board, 44 F.3d 998, 1000 (Fed. Cir.

1995), we found that a pro forma letter from the Clerk

denying repetitive motions to reopen was not a “final

order or final decision” under 5 C.F.R. § 1201.113, and

thus not reviewable. We reasoned that “the letter was

merely an administrative response by the Clerk to

Haines’s third informal letter request that the Board

reopen her appeal and reconsider its final decision on its

own motion. The Clerk had been delegated the authority

to make such responses by the Board and was performing

only a ministerial function in this regard.” Id.

While we need not decide the reviewability of Clerk

letters generally, we conclude that, at least in the circum-

stances of this case, where a Clerk letter denies a first

motion to reopen, Haines does not apply. As we previous-

ly noted, Haines appears to have involved repetitive

motions to reopen. In re McCarthy, No. 15-118, slip op. at

2 (Fed. Cir. Jan. 29, 2015). Because of this, the situation

MCCARTHY v. MSPB 7

only required an “administrative response” which could be

dispensed by a “ministerial function.” Haines, 44 F.3d at

1000. By contrast, McCarthy’s motion to reopen had not

been previously considered by the Board as it involved an

intervening change in law. In effect, then, the Clerk

letter announcing the Board’s denial of his motion an-

nounced a substantive decision which had a real impact

on McCarthy’s interests. The nature of this decision is

akin to a “final order or final decision,” not an “adminis-

trative response,” and should be construed as such. This

court’s jurisdiction should not turn on the manner in

which the Board chooses to announce its decision, and it

would elevate form over substance to hold otherwise.

The Board’s arguments to the contrary are unavail-

ing. While it is true that existing statutes and regula-

tions do not specifically state that a Clerk letter is a “final

order or final decision,” see, e.g., 5 U.S.C. § 7701(e)(1)(B),

5 C.F.R. §§ 1201.113, 1201.117(c), they also do not prohib-

it it from being so. Indeed, they are silent as to the form

these documents may or may not take. Id. Thus, charac-

terizing a Clerk letter as a “final order or decision” does

not conflict with existing law.

Accordingly, we are not deprived of jurisdiction simply

because the Board issued its denial of McCarthy’s motion

to reopen in letter form.

B

This case presents a second jurisdictional hurdle: even

if the Clerk letter in this case qualifies as a “final order or

decision,” we may not hear this case if the Board’s deci-

sion on McCarthy’s motion to reopen a case is not itself

reviewable. In past cases, we have acknowledged that is

an open question. See, e.g., Zamot v. Merit Sys. Prot. Bd.,

332 F.3d 1374, 1378 (Fed. Cir. 2003) (noting that whether

we have the authority to review a Board decision regard-

ing reopening is “an issue the court has left open”); Nelson

v. FDIC, 83 F.3d 1375, 1377 (Fed. Cir. 1996) (“Assuming,

8 MCCARTHY v. MSPB

without deciding, that we may review the Board’s decision

not to reopen an appeal on its own motion . . . for an abuse

of discretion, we discern no such abuse . . . .”).

“Congress rarely intends to prevent courts from en-

forcing its directives to federal agencies” and there exists

a “strong presumption favoring judicial review of adminis-

trative action.” Mach Mining, LLC v. EEOC, 135 S. Ct.

1645, 1651 (2015). Nevertheless, before review may be

had, “a party must first clear the hurdle of § 701(a).”

Heckler v. Chaney, 470 U.S. 821, 828 (1985). Sec-

tion 701(a)(2) of the Administrative Procedures Act

(“APA”) precludes judicial review where “agency action is

committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2). This is a “very narrow exception” that applies

in “those rare instances where ‘statutes are drawn in such

broad terms that in a given case there is no law to apply.’”

Citizens to Preserve Overton Park, Inc., 401 U.S. 402, 410

(1971) (quoting S. Rep. No. 79-752, at 26 (1945)); see also

Heckler, 470 U.S. at 830 (“[R]eview is not to be had if the

statute is drawn so that a court would have no meaning-

ful standard against which to judge the agency’s exercise

of discretion.”). In addition, § 701(a)(2) more likely ap-

plies if an “agency decision not to enforce often involves a

complicated balancing of a number of factors which are

peculiarly within its expertise.” Heckler, 470 U.S. at 831.

The only statutory acknowledgement of the Board’s

authority to reopen cases appears in 5 U.S.C. § 7701(e)(1),

which provides:

(e)(1) Except as provided in section 7702 of this ti-

tle, any decision under subsection (b) of this sec-

tion shall be final unless—

(A) a party to the appeal or the Director petitions

the Board for review within 30 days after the re-

ceipt of the decision; or

MCCARTHY v. MSPB 9

(B) the Board reopens and reconsiders a case on

its own motion.

The Board, for good cause shown, may extend the

30-day period referred to in subparagraph (A) of

this paragraph. One member of the Board may

grant a petition or otherwise direct that a decision

be reviewed by the full Board. The preceding sen-

tence shall not apply if, by law, a decision of an

administrative law judge is required to be acted

upon by the Board.

The Board argues that the “broad and standard-less

language” of § 7701(e)(1)(B) is sufficient to bring cases

such as this, where the Board denies a motion to reopen,

within the prohibition of § 701(a)(2). Specifically, the

Board notes that this statute neither authorizes motions

to reopen, nor does it lay out a standard by which such

motions should be judged. It contrasts this to statutes

governing motions to reopen in other contexts, such as 49

U.S.C. § 10327(g), 2 which sets forth the Interstate Com-

2 Section 10327(g) of 49 U.S.C. provides:

(g)(1) The Commission may, at any time on its

own initiative because of material error, new evi-

dence, or substantially changed circumstances—

(A) reopen a proceeding;

(B) grant rehearing, reargument, or reconsidera-

tion of an action of the Commission; and

(C) change an action of the Commission.

An interested party may petition to reopen and

reconsider an action of the Commission under this

paragraph under regulations of the Commission.

(2) The Commission may grant a rehearing, rear-

gument, or reconsideration of an action of the

10 MCCARTHY v. MSPB

merce Commission’s authority to reopen prior decisions

and which the Supreme Court has found reviewable in

certain circumstances. Interstate Commerce Comm’n v.

Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284 (1987).

The Board’s reliance on § 7701(e)(1)(B) is misplaced.

Section 7701(e), the broader provision in which

§ 7701(e)(1)(B) appears, is a provision which sets forth

conditions under which a decision of the Board can be

considered final. Its reference to “the Board reopens” is

simply that—a reference to reopening such that it can set

forth how reopening impacts a decision’s status (e.g., final

or not final). Unlike 49 U.S.C. § 10327(g) (the Interstate

Commerce Commission provision cited by the Board), this

is not a provision focused on reopening procedures, nor

the Board’s authority to act in this way. Therefore, it

makes sense that § 7701(e)(1)(B) would not fully set forth

legal standards or address motion practice—this was not

the purpose of this provision and an attempt to do so

Commission that was taken by a division desig-

nated by the Commission if it finds that—

(A) the action involves a matter of general trans-

portation importance; or

(B) the action would be affected materially be-

cause of clear and convincing new evidence or

changed circumstances.

An interested party may petition for rehearing,

reargument, or reconsideration of an action of the

Commission under this paragraph under regula-

tions of the Commission. The Commission may

stay an action pending a final determination un-

der this paragraph. The Commission shall com-

plete reconsideration and take final action by the

120th day after the petition is granted.

MCCARTHY v. MSPB 11

could render the remainder of the provision confusing.

Given this context, it would not be reasonable to infer an

intent to “commit to agency discretion by law” from

§ 7701(e)(1)(B)’s passing reference to “the Board reopens.”

See Barlow v. Collins, 397 U.S. 159, 166–67 (1970)

(“[J]udicial review of a final agency action by an aggrieved

person will not be cut of [sic] unless there is persuasive

reason to believe that such was the purpose of Con-

gress.”); Abbott Labs. v. Gardner, 387 U.S. 136, 141

(1967), abrogated by Califano v. Sanders, 430 U.S. 99

(1977) (“[O]nly upon a showing of ‘clear and convincing

evidence’ of a contrary legislative intent should the courts

restrict access to judicial review.”). We decline to do so

here.

We also do not think that the fact that Congress has

otherwise been silent as to the Board’s authority to reo-

pen a case is sufficient to pull this case within the realm

of § 701(a)(2). The mere absence of a statute spelling out

the details of how an agency should carry out a particular

action does not mean that that action has been wholly

committed to agency discretion. Indeed, the Supreme

Court has found agency decisions—including decisions to

not reopen a case—reviewable under the APA, even in the

absence of specific statutory directives. See, e.g., Dunlop

v. Bachowski, 421 U.S. 560, 573 (1975), overruled on other

grounds by Local No. 82, Furniture & Piano Moving,

Furniture Store Drivers, Helpers, Warehousemen & Pack-

ers v. Crowley, 467 U.S. 526, 549–50 (1984) (Secretary of

Labor’s decision to file certain civil actions was judicially

reviewable in absence of statutory prohibition); Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 158

(1970) (ruling by Comptroller was judicially reviewable in

absence of statutory indication that review was preclud-

ed); see also INS v. Rios-Pineda, 471 U.S. 444, 451 (1985)

(refusal to reopen suspension proceeding reviewable

despite absence of statutory mechanism for reopening).

12 MCCARTHY v. MSPB

What remains, then, is the “strong presumption favor-

ing judicial review of administrative action.” Mach Min-

ing, LLC, 135 S. Ct. at 1651. In the specific facts before

us here, where the Board issued a decision on a motion to

reopen that is premised on a change in law, we find that

review is appropriate under 5 U.S.C. § 706(2)(A). The

Supreme Court has held:

Though the agency’s discretion is unfettered at

the outset, if it announces and follows—by rule or

by settled course of adjudication—a general policy

by which its exercise of discretion will be gov-

erned, an irrational departure from that policy (as

opposed to an avowed alteration of it) could con-

stitute action that must be overturned as ‘arbi-

trary, capricious, [or] an abuse of discretion’

within the meaning of the Administrative Proce-

dure Act, 5 U.S.C. § 706(2)(A).

INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996). This is

precisely the case here: the Board has established a

practice of entertaining motions to reopen which, alt-

hough not codified in statute, are governed by regulations

and substantially settled case law. See, e.g., 5 C.F.R.

§§ 1201.117, 1201.118; Anthony v. Office of Pers. Mgmt.,

70 M.S.P.R. 214, 219 (1996); Moss v. Dep’t of the Air

Force, No. CH-1221-97-0313-B-1, 1999 WL 398739

(M.S.P.B. June 11, 1999), aff’d sub nom. Moss v. Dep’t of

the Air Force, 230 F.3d 1372 (Fed. Cir. 1999). Most nota-

bly, the Board has held that reopening “may be appropri-

ate where there is clear and material legal error, and a

conflict between the holding of the decision and a control-

ling precedent or statute, either because of an oversight or

a change in the controlling law between the date of the

original decision and the reopening request.” Olson v.

Dep’t of Agric., No. CH-3443-00-0857-I-1, 2002 WL

1289867 (M.S.P.B. June 3, 2002).

MCCARTHY v. MSPB 13

Accordingly, we hold that, at least in the case of a

Board decision on a motion to reopen that is premised on

a change in law, we have jurisdiction to review, generally

applying the “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law” standard under

5 U.S.C. § 706(2)(A). Whether we have jurisdiction to

review decisions on motions to reopen that are premised

on other grounds, or the Board’s decision to reopen a case

sua sponte, are issues we need not reach, and we decline

to do so here.

C

Having found the Board’s denial of McCarthy’s motion

to reopen reviewable under the APA, we next consider

whether the Board erred in denying McCarthy’s motion.

We conclude that it did not.

As an initial matter, we note that the Board did not

specify in its January 8 letter the bases under which it

denied McCarthy’s motion to reopen. This potentially

raises concerns under Chenery, which generally prohibits

courts from upholding agency decisions on grounds other

than those actually relied upon by the agency. See SEC v.

Chenery Corp., 318 U.S. 80, 95 (1943) (“[A]n administra-

tive order cannot be upheld unless the grounds upon

which the agency acted in exercising its powers were

those upon which its action can be sustained.”) However,

even under Chenery we may, in appropriate circumstanc-

es, “affirm the agency on grounds other than those relied

upon in rendering its decision, when upholding the agen-

cy’s decision does not depend upon making a determina-

tion of fact not previously made by the agency.” In re

Comiskey, 554 F.3d 967, 974 (Fed. Cir. 2009) (quoting

Killip v. Office of Pers. Mgmt., 991 F.2d 1564, 1568–69

(Fed. Cir. 1993)) (internal quotation marks omitted); see

also Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir.

1998) (quoting Koyo Seiko Co. v. United States, 95 F.3d

1094, 1099–1102 (Fed. Cir. 1996)) (“[T]he [Chenery]

14 MCCARTHY v. MSPB

doctrine does not prohibit a reviewing court from affirm-

ing an agency decision on a ground different from the one

used by the agency if the new ground is not one that calls

for ‘a determination or judgment which an administrative

agency alone is authorized to make.’”). Because, as we

explain below, we can affirm the Board’s decision on

precisely such grounds—a lack of jurisdiction based on

application of a statute (5 U.S.C. § 1214) to undisputed

facts (McCarthy did not identify the legal memoranda in

his submissions to the OSC)—there is no Chenery concern

here.

The Board’s jurisdiction is not plenary, but is limited

by statute. 5 U.S.C. § 7701(a). A petitioner bears the

burden of establishing that the Board has jurisdiction by

a preponderance of evidence. Serrao v. Merit Sys. Prot.

Bd., 95 F.3d 1569, 1573 (Fed. Cir. 1996) (citing 5 C.F.R.

§ 1201.56(a)(2)).

McCarthy’s case is an individual right of action

(“IRA”) appeal, which the Board has jurisdiction to hear

under 5 U.S.C. § 1214. However, before an aggrieved

employee can file an IRA appeal, he must first seek

corrective action from the OSC. 5 U.S.C. § 1214(a)(3)

(“Except in a case in which an employee, former employee,

or applicant for employment has the right to appeal

directly to the Merit Systems Protection Board under any

law, rule, or regulation, any such employee, former em-

ployee, or applicant shall seek corrective action from the

Special Counsel before seeking corrective action from the

Board.”).

In assessing whether an employee has exhausted his

OSC remedies, we look to his OSC complaint, as well as

written correspondence concerning his allegations. Ser-

rao, 95 F.3d at 1577; Benton-Flores v. Dep’t of Def., No.

DC-1221-13-0522-W-1, 2014 WL 3748419 (M.S.P.B. July

31, 2014). “We require that the employee ‘articulate with

reasonable clarity and precision [before the OSC] the

MCCARTHY v. MSPB 15

basis for his request for corrective action under the WPA’

to allow OSC to effectively pursue an investigation.”

Miller v. Merit Sys. Prot. Bd., No. 2015-3054, 2015 WL

4681015, at *6 (Fed. Cir. Aug. 6, 2015) (quoting Serrao, 95

F.3d at 1577); see also Knollenberg v. Merit Sys. Prot. Bd.,

953 F.2d 623, 626 (Fed. Cir. 1992) (requiring a “sufficient

basis to pursue an investigation which might have led to

corrective action”). “The Board’s jurisdiction over an IRA

appeal, assuming the employee does not have an inde-

pendent right to appeal directly to the Board, is thus

limited to those issues that have been previously raised

with OSC.” Miller, 2015 WL 4681015, at *6.

Applying these principles here, we find that McCarthy

has not sufficiently exhausted his OSC remedies with

respect to the legal memoranda. McCarthy’s OSC com-

plaint only identifies his July 28 report to the OIG and a

July 29 disclosure to Congressman Reyes. It makes no

mention of his legal memoranda. Given this, the OSC’s

“basis to pursue an investigation” was only these two

disclosures and the circumstances surrounding them,

such as whom these disclosures were made to, the Com-

mission’s awareness of these disclosures, and how they

related to the events that led to McCarthy’s termination.

This did not provide the OSC with a “sufficient basis to

pursue an investigation” with respect to McCarthy’s legal

memoranda—these were different disclosures, made to

different people, at different times.

Moreover, the case that McCarthy presented to the

OSC in 2009 substantially differs from the case he pre-

sents now. In 2009, McCarthy’s legal memoranda were

not considered protected disclosures under the WPA;

thus, the OSC would have had no basis to investigate the

legal memoranda and develop findings related to these

disclosures. What McCarthy presents now is in essence a

different case, and the OSC has not had an opportunity to

“effectively pursue an investigation” with respect to these

16 MCCARTHY v. MSPB

circumstances. Thus, McCarthy has failed to satisfy

§ 1214(a)(3)’s exhaustion requirement.

McCarthy nonetheless argues that he has exhausted

his OSC remedies because his August 21 statement

discussed the substance of his legal memoranda. J.A.

206–27. We disagree. As discussed, this submission was

provided and subsequently evaluated against the back-

drop of the WPA: the legal memoranda were not protected

disclosures and the OSC would have had no basis to

“effectively pursue an investigation” with respect to them.

Next, McCarthy argues that “the Board and this court

have already considered the import of the legal memoran-

da.” Reply Br. 15. It is not clear to us that McCarthy’s

selective excerpts show that the Board or this court has

done so. Regardless, the consideration that the Board or

this court would give to the legal memoranda on appellate

review is not necessarily the same consideration that the

OSC would give in the first instance, and cannot be

substituted for it.

McCarthy also argues that the exhaustion require-

ment only applies to the content of whistleblowing disclo-

sures, and that existing case law does not require that he

correctly affix legal labels to these facts. We agree that

the focus of the exhaustion requirement is on substance;

however, McCarthy has not satisfied this requirement

here. Neither his OSC complaint nor his August 21

statement identifies the legal memoranda with sufficient

specificity or context to allow the OSC to effectively

investigate his claims. Unlike Briley v. National Archives

& Records Administration, 236 F.3d 1373, 1378 (Fed. Cir.

2001), cited by McCarthy, this is not simply a case where

McCarthy is presenting a “more detailed account of [his]

whistleblowing activities” to the Board than he did to the

OSC, but otherwise made submissions to the OSC that

“contain[ed] the core of [his] retaliation claim” and “gave

the OSC sufficient basis to pursue an investigation.”

MCCARTHY v. MSPB 17

Instead, the core substance of McCarthy’s complaint has

shifted from a single disclosure to the OIG (which, at best,

was at least in part cumulative of a nebulous collection of

previous disclosures) to four distinct legal memoranda

provided to specific individuals at specific times.

We find, then, that McCarthy has not exhausted his

OSC remedies with respect to the legal memoranda. This

rendered the Board without jurisdiction to hear his case

under 5 U.S.C. § 1214.

The Board did not err in dismissing McCarthy’s ap-

peal and we affirm the Board’s decision. We note that

McCarthy remains free to pursue a complaint with the

OSC with respect to his four legal memoranda, as there is

no statutory time limit for filing a request for corrective

action with the OSC. Augustine v. Dep’t of Justice, 50

M.S.P.R. 648, 652 (1991).

AFFIRMED

COSTS

Each party shall bear their own costs.