Opinion

Donna Traylor v. Office of Special Counsel

Court: Merit Systems Protection Board
Filed: Feb 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.4%

holding that the Board had no authority to enforce the statutory requirement that OSC investigate allegations of whistleblower reprisal

How later courts described this case

holding that the Board had no authority to enforce the statutory requirement that OSC investigate allegations of whistleblower reprisal

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNA E. TRAYLOR, DOCKET NUMBER

Appellant, DA-1221-17-0216-W-1

OFFICE OF SPECIAL COUNSEL, DATE: February 28, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donna E. Traylor , Lawton, Oklahoma, pro se.

Amy Beckett , 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 for lack of jurisdiction her individual right of action (IRA) appeal.

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

or the erroneous application of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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

The appellant, an employee of the Department of the Army (Army), filed

an IRA appeal alleging that, in reprisal for her whistleblowing disclosures about

the Army, the Office of Special Counsel (OSC) failed to investigate her complaint

of whistleblower reprisal by her employing agency. Initial Appeal File (IAF),

Tab 1 at 3; Tab 7 at 5-6. On the section of the appeal form requiring the

appellant to indicate the personnel action or decision that she was appealing, she

indicated that she was appealing OSC’s “[d]ecision to take action on [a]ct of

[r]eprisal for a whistleblower complaint.” IAF, Tab 1 at 3, 11-12.

The administrative judge issued an order to show cause, which set forth the

requirements for establishing jurisdiction over an IRA appeal. IAF, Tab 3 at 2-8.

The appellant submitted two responses to the jurisdictional order. IAF, Tabs 7-8.

OSC responded by arguing, inter alia, that the appellant was never employed by

OSC and failed to make nonfrivolous allegations that the matters she raised on

appeal constituted personnel actions defined by 5 U.S.C. § 2302(a). IAF, Tab 9

at 6.

After receiving the parties’ responses, the administrative judge issued an

initial decision that dismissed the appeal for lack of jurisdiction without holding

the hearing requested by the appellant. IAF, Tab 13, Initial Decision (ID) at 1.

The administrative judge found that the appellant failed to nonfrivolously allege

that OSC had taken or failed to take a personnel action under 5 U.S.C. § 2302(a).

ID at 4. In reaching her decision, the administrative judge found that OSC’s

failure to resolve the appellant’s claims of whistleblower retaliation was not a

“personnel action” under 5 U.S.C. § 2302(a)(2)(A). ID at 4. The administrative

judge also found that it was beyond the Board’s purview to review the appellant’s

allegation that OSC failed to comply with its statutory obligations under 5 U.S.C.

§ 1212. 2 ID at 5.

The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. The agency has filed a response to the petition for review.

PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

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 Board has jurisdiction

over an IRA appeal if the appellant exhausts her administrative remedies before

OSC and makes nonfrivolous allegations that: (1) she made a disclosure

described under 5 U.S.C. § 2302(b)(8), 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

The appellant alleged that OSC did not comply with its statutory obligation under

5 U.S.C. § 1213, by failing to take action on her complaint. IAF, Tab 7 at 6-7. The

administrative judge, however, correctly found that the Board lacked the authority to

review the appellant’s allegation that OSC failed to comply with 5 U.S.C. § 1212,

which sets forth OSC’s powers and functions concerning receiving and investigating

allegations of prohibited personnel practices and to review and forward specified

disclosures of violations to the Attorney General or an agency head under 5 U.S.C.

§ 1213. See 5 U.S.C. § 1212(a)(2)-(3).

(Fed. Cir. 2001). For the reasons discussed below, we agree with the

administrative judge that the Board lacks jurisdiction over this appeal because the

appellant failed to raise a nonfrivolous allegation that OSC took or failed to take

a personnel action against her. 3 ID at 4.

The administrative judge correctly found that the appellant failed to raise a

nonfrivolous allegation that OSC took or failed to take a personnel action

against her.

“Personnel actions,” for purposes of the Whistleblower Protection

Enhancement Act, are defined as the following 12 actions: (i) an appointment;

(ii) a promotion; (iii) an action under 5 U.S.C. chapter 75 or other disciplinary or

corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;

(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under

5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or awards, or

concerning education or training if the education or training may reasonably be

expected to lead to an appointment, promotion, performance evaluation, or other

action described in 5 U.S.C. § 2302(a)(2)(A); (x) a decision to order psychiatric

testing or examination; (xi) the implementation or enforcement of any

nondisclosure policy, form, or agreement; and (xii) any other significant change

in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A).

The appellant asserts on review that she nonfrivolously alleged below that

OSC “failed to take a personnel action for [her]” due to her protected disclosure.

PFR File, Tab 1 at 1-2. In this regard, she contends that OSC “failed to use [its]

authority to take a personnel action to have [her] disclosure investigated by the

Agency, and require [it] to submit a written report surrounding [her] disclosure,”

and also failed to seek corrective or disciplinary action on her behalf through the

Board. Id. at 2. She further claims that OSC’s failure to act “led to continued

harassment from Agency officials.” Id. at 2-3.

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.

The appellant essentially contends that OSC failed to take such alleged

personnel actions as requiring the Army to investigate and issue a report on her

claims and filing an appeal on her behalf seeking disciplinary action from the

Board. Although an employee, like the appellant, need not work for the agency

that has allegedly taken or failed to take a personnel action, see Weed v. Social

Security Administration, 113 M.S.P.R. 221, ¶ 10 (2010), we nevertheless agree

with the administrative judge that none of the above actions constituted personnel

actions as enumerated at 5 U.S.C. § 2302(a)(2)(A). ID at 4-5.

The appellant’s contention that OSC’s failure to act led to continued

harassment by the Army is raised for the first time on review. Because she has

not alleged or shown that it is based on new and material evidence that, despite

her due diligence, was not available before the record closed below, we need not

consider it. See Weed v. Social Security Administration, 111 M.S.P.R. 450, ¶ 8

n.1 (2009), aff’d, 367 F. App’x 144 (Fed. Cir. 2010); 5 C.F.R. § 1201.115(d). In

any event, although alleged harassment by the Army might constitute a personnel

action if it rose to the level of a significant change in duties, responsibilities, or

working conditions, the appellant has provided no legal support for her apparent

contention that such harassment by the Army can be imputed to OSC. Moreover,

her generalized assertion on review of harassment would be insufficient to raise a

nonfrivolous allegation of a personnel action. See Godfrey v. Department of the

Air Force, 45 M.S.P.R. 298, 302-03 (1990) (finding that jurisdiction over an IRA

appeal requires more than generalized assertions unsupported by reference to any

specific matter). We find that the Board otherwise has no authority to adjudicate

the appellant’s contention that OSC improperly failed to investigate her claims.

See Wren v. Merit Systems Protection Board, 681 F.2d 867, 871-72 (D.C. Cir.

1982) (holding that the Board had no authority to enforce the statutory

requirement that OSC investigate allegations of whistleblower reprisal). We

therefore affirm the initial decision dismissing this appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 4

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

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:

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.

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.

(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

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. 5 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