The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIM PETOSKEY, DOCKET NUMBER
Appellant, SF-3443-16-0808-I-1
v.
DEPARTMENT OF VETERANS DATE: June 21, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alan Harvey, Esquire, Vancouver, Washington, for the appellant.
Glen E. Woodworth, Esquire, Anchorage, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, 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 in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of 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. 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, 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 holds the position of Police Officer with the Veterans Affairs
Health Care System in Seattle, Washington. Initial Appeal File (IAF), Tab 1 at 7.
On August 2, 2016, the agency issued the appellant a letter of counseling based
on an email he sent on July 19, 2016. IAF, Tab 6 at 35. On August 23, 2016, the
agency issued him a written admonishment based on his conduct on July 27,
2016. Id. at 18-19, 29.
¶3 The appellant, through his attorney, filed a Board appeal challenging the
letter of counseling and admonishment, and he requested a hearing. IAF, Tab 1
at 1-6. 2 On the initial appeal form, he indicated that he had not filed a
whistleblowing complaint with the Office of Special Counsel (OSC). Id. at 5.
The administrative judge issued an acknowledgment order that informed the
appellant that he appeared to be challenging a letter of admonishment, which is
not an appealable action. IAF, Tab 2 at 2. She ordered him to file evidence and
argument showing that the matter appealed is an “otherwise appealable action” as
2
The appellant also claimed to have attached a “letter of suspension,” however, no such
document appears in the record. IAF, Tab 1 at 4, 7-27.
3
defined at 5 C.F.R. § 1209.2(b)(2) or that he had first sought corrective action
from OSC. Id. In response, the appellant alleged that the agency took
disciplinary actions against him “within months” of serving as “a material witness
against the interests of management” in an Administrative Board Inquiry. IAF,
Tab 5 at 6. He further asserted that he “engaged in whistleblower or protected
activities in that investigation,” which found that “management engaged in
discriminatory activity and the creation of a hostile work environment requiring
corrective action.” Id. In addition, he submitted supporting documentation. IAF,
Tab 4. The agency moved to dismiss the appeal for lack of jurisdiction. IAF,
Tab 6 at 4-6.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision granting the agency’s motion and dismissing the appeal for lack of
jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1, 4. Specifically, she found
that the letter of counseling and letter of admonishment were not the type of
actions that are independently appealable to the Board, and the appellant failed to
establish that he exhausted his administrative remedies before OSC regarding any
allegations of reprisal for whistleblowing or other protected activities, which
would be a prerequisite for filing an individual right of action (IRA) appeal on
such reprisal claims. ID at 3-4.
¶5 The appellant has filed a petition for review arguing that new and material
evidence establishes that he exhausted his administrative remedies with OSC .
Petition for Review (PFR) File, Tab 1 at 8-9. The agency has filed a response
opposing the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation of Board jurisdiction
over an otherwise appealable action.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the
4
burden of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Generally, an appellant is entitled to a jurisdictional
hearing if he raises a nonfrivolous allegation 3 of Board jurisdiction over his
appeal. Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013).
¶7 For the reasons described in the initial decision, the appellant failed to
nonfrivolously allege that the Board has jurisdiction over an otherwise appealable
action. ID at 2-4; see 5 U.S.C. § 7512(1)-(5); 5 C.F.R. §§ 1201.3(a),
1209.2(b)(2); see also Pridgen v. Office of Management and Budget,
117 M.S.P.R. 665, ¶ 7 (2012) (stating that the Board does not have jurisdiction
over discrimination claims absent an otherwise appealable action); Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). The parties do
not dispute this finding on review and, based on our review of the record, we find
no reason to disturb it. PFR File, Tabs 1, 3.
The Board lacks jurisdiction over this matter as an IRA appeal.
¶8 The Board may have jurisdiction over the appellant’s claims of retaliation
for whistleblowing or other protected activity in an IRA appeal. 4 See 5 U.S.C.
§§ 1214(a)(3), 1221(a); Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 7
(2006) (explaining that the Board has jurisdiction over whistleblow er reprisal
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
Effective December 27, 2012, the Whistleblower Protection Enhancement Act of 2012
(WPEA), Pub. L. No. 112-199, 126 Stat. 1465, expanded the grounds on which an IRA
appeal may be filed with the Board. See Alarid v. Department of the Army,
122 M.S.P.R. 600, ¶ 12 (2015). Prior to the enactment of the WPEA, an appellant could
only file an IRA appeal with the Board based on allegations of whistleblower reprisal
under 5 U.S.C. § 2302(b)(8). Id. Following the WPEA’s enactment, however, an
appellant also may file an IRA appeal with the Board concerning alleged reprisal based
on certain other classes of protected activity as defined in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), and (D). The relevant holdings of pre-WPEA cases that we have cited in this
Final Order have not been affected by the WPEA.
5
claims raised in connection with an otherwise appealable action or, if the action is
not otherwise directly appealable to the Board, in an IRA appeal) ; 5 C.F.R.
§ 1209.2(b)(1); see also Massie v. Department of Transportation, 114 M.S.P.R.
155, ¶ 13 (2010) (recognizing that an admonishment is a personnel action upon
which an IRA appeal may be based); but see Johnson v. Department of Health
and Human Services, 87 M.S.P.R. 204, ¶ 11 (2000) (finding that a memorandum
of oral counseling was not a personnel action). Once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim, which he must prove by preponderant evidence. Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
¶9 The first element of Board jurisdiction over an IRA appeal is exhaustion by
the appellant of his administrative remedies before OSC. Miller v. Federal
Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 6 (2014), aff’d per curiam,
626 F. App’x 261 (Fed. Cir. 2015). Specifically, 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” through an IRA appeal. Miller, 122 M.S.P.R.
3, ¶ 6. The substantive requirements of exhaustion are met when an appellant has
provided OSC with a sufficient basis to pursue an investigation. Chambers v.
Department of Homeland Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction
over an IRA appeal is limited to those issues that have been previously raised
with OSC, but appellants may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC. Id. Appellants
may demonstrate exhaustion of their OSC remedies with evidence regarding their
initial OSC complaint and other communications with OSC concerning their
allegations. See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469,
¶ 8 (2010).
¶10 Here, we find that the administrative judge’s acknowledgment order and the
agency’s motion to dismiss correctly informed the appellant that he needed to
establish that he first sought corrective action from OSC regarding his allegations
6
of retaliation for whistleblowing or other protected activity in connection with
actions that were not otherwise appealable. IAF, Tab 2 at 2, Tab 6 at 5.
However, the appellant did not file any evidence or argument regarding this issue
below. To the contrary, his initial appeal form stated that he had not filed a
whistleblowing complaint with OSC. IAF, Tab 1 at 5. Thus, the administrative
judge properly found that the appellant failed to establish that he exhausted his
administrative remedies before OSC. ID at 4.
¶11 With his petition for review, the appellant for the first time has submitted
evidence, predating his initial Board appeal, purportedly showing that he
exhausted his administrative remedies before OSC. PFR File, Tab 1.
Specifically, the appellant has submitted two email chains dated July 19-20, 2016,
and August 24, 2016. Id. at 10-15. In the July 19-20, 2016 email chain, the
appellant informed an OSC employee that the agency intended to suspend him on
July 19, 2016, for sending an email, and he requested that someone from OSC
join a “fact finding” meeting scheduled for July 21, 2016. Id. at 14-15. The OSC
employee responded that he could request information from the agency but could
not represent the appellant. Id. at 13. In the August 24, 2016 email chain
concerning the appellant’s 24-page facsimile, which is not included in this record,
the OSC employee instructed another individual, who is presumably also an OSC
employee, to add the information to the appellant’s existing complaint under OSC
File No. MA-16-1677. Id. at 11-12. The OSC employee then told the appellant
to “[k]nock this off, please” and just send “a little” email about issues that he
wanted to add to his complaint. Id. at 10. The appellant apologized and stated
that he would send an email. Id.
¶12 The Board generally will not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. See Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the appellant’s
attorney asserts that the emails submitted on review were unavailable when the
7
record closed because their “import was not readily accessible to a lay person”
and he received them from the appellant after the issuance of the initial decision.
PFR File, Tab 1 at 4, 6, 8. The appellant’s attorney further claims that he had
been unaware of the facts and circumstances surrounding the appellant’s
communications with OSC in the emails. Id. at 7. We find that these
explanations fail to show that the appellant exercised due diligence when the
emails predated his initial appeal and, as discussed above, he received notice of
his burden of establishing OSC exhaustion.
¶13 In addition, we find that the emails submitted on review are not of sufficient
weight to warrant an outcome different from that of the initial decision because
they do not establish that the appellant exhausted his administrative remedies
before OSC regarding the actions at issue in this appeal. 5 Although the appellant
asserted in the July 19-20, 2016 email chain that the agency unlawfully suspended
him and took away his badge and credentials, he did not claim that such actions
were taken in retaliation for whistleblowing or other protected activity. Id. at 14.
Moreover, nothing in the August 24, 2016 email chain explains what additional
matter was added to the appellant’s existing OSC complaint or specifies the
substance of his complaint. Id. at 10-11. Therefore, we find the emails fail to
establish that the appellant provided OSC with a sufficient basis to pursue an
investigation into his claims of retaliation for whistleblowing or other protected
activity. See Sabbagh v. Department of the Army, 110 M.S.P.R. 13, ¶ 15 (2008)
(finding that the appellant failed to exhaust her administrative remedy before
OSC because she did not allege whistleblower reprisal before OSC regarding the
5
The appellant’s attorney argues and states in a declaration submitted on review that
the emails concern an ongoing OSC investigation into a “form 11” matter, specifically,
a “pending whistleblower action.” PFR File, Tab 1 at 6-7. We assume that the
appellant’s attorney is referring to Form OSC-11, “Complaint of Possible Prohibited
Personnel Practice or Other Prohibited Activity.” See Sabbagh v. Department of the
Army, 110 M.S.P.R. 13, ¶ 15 (2008). However, the emails submitted on review do not
describe the circumstances upon which the appellant’s existing complaint is based.
PFR File, Tab 1 at 10-15.
8
claims that she raised in her IRA appeal); see also Miller, 122 M.S.P.R. 3, ¶ 6.
Because the appellant has failed to satisfy the OSC exhaustion requirement, the
Board lacks jurisdiction to consider his claims of retaliation for whistleblowing or
other protected activity in an IRA appeal. 6
¶14 Accordingly, we find that the administrative judge properly dismissed this
appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6
This Final Order does not preclude the appellant from filing a new IRA appeal with
the Board’s regional office after exhausting his administrative remedies before OSC.
To timely file an IRA appeal, he must file with the Board within 65 days of the issuance
of OSC’s closure letter, or, if no closure letter has been issued, at any time after the
expiration of 120 days from when he first sought corrective action from OSC. 5 U.S.C.
§ 1214(a)(3); Hamley v. Department of the Interior, 122 M.S.P.R. 290, ¶ 8 (2015);
5 C.F.R. § 1209.5(a).
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
10
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.