NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3087
MINNIE L. NOBLE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: July 8, 2005
__________________________
Before MAYER, RADER, and LINN, Circuit Judges.
PER CURIAM.
Minnie L. Noble (“Noble”) seeks review of the Merit Systems Protection Board’s
(“Board”) final order denying Noble relief pursuant to the Whistleblower Protection Act of
1989 (“Whistleblower Protection Act”), Pub. L. 101-12, 103 Stat. 16. Noble v. Dep’t of
the Air Force, No. SF-1221-03-0551-W-1 (MSPB Dec. 17, 2004) (“Order”). As to
Noble’s non-promotion claim, because the Board’s determination that Noble failed to
establish Board jurisdiction was not arbitrary, capricious, an abuse of discretion, or
contrary to law, and was supported by substantial evidence, we affirm that
determination. However, as to Noble’s claim regarding the denial of advanced sick
leave, because the Board’s finding that Noble did not exhaust her remedies before the
Office of Special Counsel (“OSC”) was not supported by substantial evidence, we
reverse the Board’s decision on that issue and remand.
I. BACKGROUND
Noble, a 20-year employee of the Department of the Air Force (“the Agency”), is
a Housing Administrative Assistant, GS-1101-4, at the Travis Air Force Base in
California. In September 2002, an external recruitment notice was posted for a higher-
graded position (GS-5). Noble, as an employee, was ineligible for that position. It was
a position and promotion that she believed she had been promised by her supervisor.
In November 2002, Noble was reassigned from Military Family Housing to
Unaccompanied Housing, a position with less visibility and responsibility. As of
November 27, 2002, Noble was aware that she would not be upgraded or promoted by
classification to the GS-5 level, and would not be allowed to apply for the vacant
position.
On December 30, 2002, Noble made disclosures to the Inspector General
alleging improprieties by her supervisor. The Inspector General investigated and found
no violations regarding Noble’s allegations. On January 27, 2003, and February 20,
2003, Noble requested and was denied advanced sick leave for surgery, to correct a
torn rotator cuff sustained during an October 2002 auto accident. After being denied
advanced sick leave, on February 20, 2003, Noble notified the OSC alleging an
obstruction of her right to compete for promotion and the denial of advanced sick leave
as retaliation for her December 2002 whistleblowing activity. On May 23, 2003, OSC
closed its inquiry into Noble’s allegations of retaliation for her whistleblowing activities,
finding no retaliation.
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On July 26, 2003, Noble filed an individual right of action (“IRA”) appeal with the
Board, alleging that she was subjected to two personnel actions in reprisal for
disclosures protected under the Whistleblower Protection Act. Specifically, she alleged
that the Agency obstructed her right to compete for a promotion by only accepting
applications from external candidates for a position which would constitute a promotion
and that the Agency denied her request for advanced sick leave. In an initial decision,
the Administrative Judge found that Noble was a covered employee for the purposes of
appeal, that Noble timely filed her appeal, and that the Board would have jurisdiction
over the whistleblowing claim. Noble v. Dep’t of the Air Force, No. SF-1221-03-0551-
W-1, slip op. at 1 (MSPB Mar. 24, 2004) (“Opinion”).
The Administrative Judge then explained that Noble had to show that she had
exhausted her OSC remedies; that she had made nonfrivolous allegations that she had
engaged in whistleblowing activity by making a disclosure under 5 U.S.C. § 2302(b)(8);
and that the disclosure was a contributing factor in the agency decision to take or fail to
take a personnel action as defined by 5 U.S.C. § 2302(a). Opinion at 4. The
Administrative Judge found that, with regard to the non-promotion claim, Noble had
exhausted her remedies before OSC, that she had made a protected disclosure, and
that the non-promotion was a “personnel action” covered by the Whistleblower
Protection Act. Id. at 5. However, the Administrative Judge found that Noble’s
whistleblower disclosures occurred after the Agency precluded her from applying for the
higher-grade position, and therefore she could not establish that her allegations were a
contributing factor to the Agency action. The Administrative Judge noted that, to be a
contributing factor, a personnel action must take place after the protected disclosure
05-3087 3
was made, citing Horton v. Dep’t of the Navy, 66 F.3d 279, 283-84 (Fed. Cir. 1995).
Opinion at 5-6. The Administrative Judge based his conclusions on the timeline
established and undisputed by the parties. Id. at 2-3. Thus, the Administrative Judge
held that Noble failed to establish Board jurisdiction and dismissed the appeal without a
hearing. Id. at 2.
The Administrative Judge also found that the Board had no jurisdiction over the
claim involving advanced sick leave because Noble had not raised the allegation in her
complaint to the OSC. Id. at 3-5. The Administrative Judge based his finding on the
February 20, 2003, complaint filed by Noble to the OSC. The record shows, however,
additional correspondence in May 2003, between the OSC and Noble, and that the
OSC addressed and dismissed her claim regarding advanced sick leave.
The Initial Decision became final on December 17, 2004, when the Board denied
Noble’s petition for review. Noble timely appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
The scope of our review in an appeal from a Board decision is limited by statute.
We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); Munson v. Merit Sys. Prot. Bd., 318
F.3d 1358, 1360 (Fed. Cir. 2003).
Noble argues that the Administrative Judge’s findings with respect to the non-
promotion claim and the advanced sick leave claim were not supported by substantial
05-3087 4
evidence. Noble requests that we overturn the Board’s Order, that we promote her to a
grade of GS-9, and that we award her compensatory damages.
The Administrative Judge determined that Noble made a protected disclosure in
December of 2002 after the personnel action in November of that same year in which
she was denied the opportunity to apply for the higher-graded position. Thus, her
disclosure could not have been a contributing factor in the decision to make the higher-
graded position available only to external candidates. Horton, 66 F.3d at 283-84
(holding that, in order to be a contributing factor, the protected disclosure must take
place before the personnel action). Substantial evidence supports this part of the
Administrative Judge’s decision.
Noble contends that she exhausted her administrative remedies as to both of her
claims. Respondent now concedes that the Board erred in dismissing Noble’s
advanced sick leave claim for lack of jurisdiction. The Administrative Judge examined
only Noble’s complaint with the OSC and did not consider the May 2003
correspondence, which Respondent concedes shows exhaustion. Because proof of
exhaustion need not be limited to the complaint filed with the OSC, Kalil v. Dep’t of
Agriculture, 96 M.S.P.R. 77, 81 (2004), we agree with Noble that substantial evidence
does not support the Board’s finding that Noble did not exhaust her administrative
remedies as to her advanced sick leave claim.
CONCLUSION
Because the Board’s denial of the non-promotion claim was not arbitrary,
capricious, an abuse of discretion, or contrary to law, and was supported by substantial
evidence, we affirm that determination. However, because substantial evidence did not
05-3087 5
support the finding that Noble did not exhaust her remedies before the OSC regarding
the denial of advanced sick leave, we reverse and remand that claim. Accordingly, we
affirm-in-part, reverse-in-part, and remand.
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