The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY NISKEY, DOCKET NUMBER
Appellant, DC-1221-18-0403-W-1
v.
DEPARTMENT OF HOMELAND DATE: February 16, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Larry Niskey , Easton, Maryland, pro se.
Felippe Moncarz , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
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 in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly MODIFIED to
(1) clarify that the appellant was required to show by a preponderance of the
evidence that he exhausted his administrative remedies before the Office of
Special Counsel (OSC), and (2) VACATE the administrative judge’s finding that
the appellant’s challenge to his removal is barred by res judicata, we AFFIRM the
initial decision.
To establish jurisdiction over an IRA appeal, an appellant must show by a
preponderance of the evidence 2 that he exhausted his administrative remedies
with OSC and make nonfrivolous allegations 3 that (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined at 5 U.S.C. § 2302(b)(a). 5 U.S.C. §§ 1214(a)(3),
2
Preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would need to find that a contested fact is
more likely true than not. 5 C.F.R. § 1201.4(q).
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that (1) is
more than conclusory, (2) is plausible on its face, and (3) is material to the legal issues
in the appeal. Id.
3
1221(e)(1); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014); see
5 C.F.R. § 1201.57(b)-(c).
The administrative judge correctly stated in the jurisdictional order that the
appellant was required to show by preponderant evidence that he exhausted his
remedy with OSC. Initial Appeal File (IAF), Tab 3 at 2. In contrast, the initial
decision contains language erroneously suggesting that the appellant could have
satisfied his burden by making a nonfrivolous allegation to that effect. IAF,
Tab 10, Initial Decision at 3. This error does not warrant a different result,
however, as the appellant failed to meet his burden under the correct evidentiary
standard, i.e., preponderance of the evidence. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is
not prejudicial to a party's substantive rights provides no basis for reversal of an
initial decision).
The purpose of requiring an appellant to exhaust his remedies with OSC
before filing an IRA appeal with the Board is to give OSC the opportunity to take
corrective action before involving the Board in the case. Chambers v.
Department of Homeland Security, 2022 MSPB 8, ¶ 10. The substantive
requirements of exhaustion are met when an appellant has provided OSC with
sufficient basis to pursue an investigation. Id. The sufficiency of the claim is
determined by the statements made in the appellant’s submissions to OSC, not in
the appellant’s later characterization of those statements. Ellison v. Merit
Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993). The Board may
consider only the disclosures (or activities) and personnel actions that the
appellant raised before OSC. Ormond v. Department of Justice, 118 M.S.P.R.
337, ¶ 5 (2012). An appellant may show exhaustion of the OSC process through
means other than his OSC complaint. Pasley v. Department of the Treasury,
109 M.S.P.R. 105, ¶ 12 (2008); see Mason v. Department of Homeland Security,
116 M.S.P.R. 135, ¶ 8 (2011) (holding that exhaustion can be demonstrated
through the appellant’s initial OSC complaint, evidence the original complaint
4
was amended, and the appellant’s written responses to OSC referencing the
amended allegations).
As evidence of exhaustion, the appellant provided copies of the
February 28, 2018 closeout letter in OSC File No. MA-18-1962 and the March 8,
2018 notice of appeal rights in OSC File No. MA-18-1094. IAF, Tab 1 at 18,
Tab 5 at 23. However, neither document specifies what allegations of protected
disclosures and/or protected activity the appellant made in those complaints. Nor
has the appellant provided any other evidence that he exhausted his remedies
before OSC concerning the specific disclosures and/or activities he identified
before the Board. Because the appellant failed to establish the exhaustion
requirement by a preponderance of the evidence, the administrative judge was
correct in her conclusion that he failed to establish jurisdiction over his appeal. 4
Finally, because the Board lacks jurisdiction over this appeal, the
administrative judge erred in finding that the appellant’s challenge to his removal
is barred by res judicata. See Hau v. Department of Homeland Security,
123 M.S.P.R. 620, ¶ 9 (2016) (observing that the Board must have jurisdiction
over an appeal to apply the doctrine of res judicata), aff’d sub nom. Bryant v.
Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). We therefore
vacate that finding.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
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.
5
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
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 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.
6
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
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
7
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
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. 6 The court of appeals must receive your petition for
6
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
8
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
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.
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.
9
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.