UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH K. FOO, DOCKET NUMBER
Appellant, SF-1221-15-0133-W-1
v.
DEPARTMENT OF AGRICULTURE, DATE: June 3, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Keith K. Foo, Waipahu, Hawaii, pro se.
Dora Malykin, Riverdale, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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).
¶2 In this IRA appeal, the appellant alleged that the agency decided not to
renew his term appointment as a Biological Technician for the agency’s Animal
and Plant Health Inspection Service in retaliation for his claimed disclosure that
his supervisor committed a firearms violation and in reprisal for filing an equal
employment opportunity (EEO) complaint. Initial Appeal File (IAF), Tab 1. In
addition to an acknowledgment order, the administrative judge issued a
jurisdictional order setting forth the appellant’s burden to establish jurisdiction
over his IRA appeal in order to receive a hearing on his claim. IAF, Tabs 2, 8.
The appellant did not reply to the administrative judge’s jurisdictional order.
Citing the appellant’s failure to respond to the jurisdictional order before the
close of the record, the agency moved to dismiss the appeal. IAF, Tab 9.
¶3 The administrative judge subsequently dismissed the appellant’s IRA appeal
for lack of jurisdiction without holding a hearing. IAF, Tab 13, Initial Decision
(ID). Specifically, the administrative judge found that the appellant failed to
establish that he had exhausted his administrative remedies before the Office of
Special Counsel (OSC) because he “failed to inform OSC of ‘the precise grounds
of his charge of whistleblowing’ sufficient to allow it to pursue an investigation
that might lead to corrective action.” ID at 5 (citing Mason v. Department of
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Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011)). Similarly, the administrative
judge found that the appellant failed to make the requisite nonfrivolous allegation
that he made a protected disclosure because his claim lacked sufficient specificity
and detail; the appellant not only neglected to explain the substance of his
disclosure, he also failed to identify to whom it was made and when he made it.
ID at 5-6. The administrative judge also found that the Board lacked jurisdiction
over the appellant’s claim of reprisal for filing an EEO complaint because the
appellant’s reprisal claim did not involve the exercise of his right to file an EEO
complaint as to remedying a violation of 5 U.S.C. § 2302(b)(8). ID at 7.
¶4 In his petition for review, the appellant alleges that he was denied the
opportunity to complete discovery and to have a hearing with witnesses. Petition
for Review (PFR) File, Tab 1 at 3. He provides statements and email messages
from his coworkers in support of his alleged disclosure, some of which are
addressed to his representative in Congress, and none of which appear to have
been unavailable before the record closed below. Id. at 6-20. He also provides a
copy of his motion to compel discovery, which arrived at the regional office after
the administrative judge issued his initial decision and was returned to the
appellant for that reason. Id. at 21-26. The agency responds in opposition to the
appellant’s petition for review, and he provides a reply to the agency’s response.
PFR File, Tabs 4-5.
¶5 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure, and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion
requirement of 5 U.S.C. § 1214(a)(3) in an IRA appeal, an appellant must inform
OSC of the precise ground of his charge of whistleblowing, giving OSC a
sufficient basis to pursue an investigation which might lead to corrective action.
4
Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
The test of the sufficiency of an employee’s charges of whistleblowing to OSC is
the statement that he makes in the complaint requesting corrective action, not his
post hoc characterization of those statements. Id.; Ellison v. Merit Systems
Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993).
¶6 As noted above, the appellant failed to respond to the administrative judge’s
jurisdictional order. Because the appellant failed to file an actual copy of the
complaint he filed with OSC, OSC’s October 30, 2014 letters were the only
evidence in the record by which the appellant could establish OSC exhaustion.
ID at 4-5; IAF, Tab 1 at 9-10. Thus, all we know that the appellant told OSC is
that his supervisor allegedly committed a firearms violation. See IAF, Tab 1 at 9.
As the administrative judge correctly observed, the record does not reflect that
the appellant ever told OSC when he made his alleged protected disclosure, the
identity of the person to whom he allegedly made his disclosure, or any specifics
regarding the content of the disclosure. ID at 4-5. Although he may have given
OSC more information, his failure to respond to the administrative judge’s
jurisdictional order and show exactly what he told OSC means that he failed to
carry his burden to establish exhaustion of his administrative remedies before
OSC.
¶7 The appellant also fails to address the issue of OSC exhaustion on review,
providing nothing with his petition for review to indicate that he provided any
more information to OSC regarding his alleged protected disclosure. 2 Thus, we
2
In Nasuti v. Merit Systems Protection Board, 376 F. App’x 29, 32 (Fed. Cir. 2010)
(citin g Ward, 981 F.2d at 526), our reviewing court remanded an IRA appeal in order
for the Board to consider evidence that the appellant in that matter claimed to have sent
to OSC while OSC was considering his complaint. Thus, had the appellant included
further information on the exhaustion issue with his petition for review, we would have
considered it, to the extent that it meets the Board’s evidentiary criteria, in order to
determine whether the appellant estab lished jurisdiction over his IRA appeal. See id;
see also Nasuti v. Department of State, 112 M.S.P.R. 587, ¶ 7 (2009); 5 C.F.R.
§§ 1201.114(i), 1201.115(d)(1).
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agree with the administrative judge that the appellant’s vague allegation of
wrongdoing lacked sufficient specificity and detail such that OSC could pursue an
investigation that might lead to corrective action and that the appellant therefore
failed to establish that he had exhausted his administrative remedies before OSC.
ID at 4-5; see Yunus, 242 F.3d at 1371. A party “whose submissions lack clarity
risks being found to have failed to meet his burden of proof.” Luecht v.
Department of the Navy, 87 M.S.P.R. 297, ¶ 8 (2000).
¶8 We also agree with the administrative judge that the appellant failed to
make the requisite nonfrivolous allegation that he made a protected disclosure
which a reasonable person would believe evidenced a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. ID at 5-6. The
entirety of the appellant’s argument is not much more than conclusory allegations
of wrongdoing, very little of which even touches on the subject of his purported
disclosure, and the information that does refer to it is vague and potentially
contradictory. For example, it appears that the appellant told the agency’s Office
of Inspector General that he had reported an instance of firearms mishandling to
his supervisor, IAF, Tab 5 at 4, but, in the appellant’s own account, he instead
claims that the supervisor was there at the time of the incident, “did not stop it,”
and that another employee put a stop to the class, id. at 9. Moreover, nearly all of
the information in the record about any alleged firearms incidents is contained in
statements made by the appellant’s coworkers, and absolutely nothing the
appellant provided below, or that he provides with his petition for review,
identifies what he disclosed, to whom he disclosed it, or when he made the
alleged protected disclosure for which he contends that the agency retaliated
against him. IAF, Tabs 1, 5; PFR File, Tab 1 at 6-20.
¶9 As for the appellant’s allegations of reprisal for filing an EEO complaint,
under 5 U.S.C. § 1221(a), as amended by the Whistleblower Protection
Enhancement Act, Pub. L. No. 112-199, 126 Stat. 1465 (WPEA),
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section 101(b)(1)(A), an employee, former employee, or applicant for
employment may, with respect to any personnel action taken, or proposed to be
taken against such employee, former employee, or applicant for employment, as a
result of a prohibited personnel practice described in 5 U.S.C. § 2302(b)(8) or
§ 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Board.
Among other things, the WPEA expanded the scope of 5 U.S.C. § 2302(b)(9), to
include:
(A) the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation—
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8).
However, of those two categories, the WPEA only extended the Board’s IRA
jurisdiction to claims arising under 5 U.S.C. § 2302(b)(9)(A)(i) but not to those
arising under (b)(9)(A)(ii). See WPEA section 101(b)(1)(A).
¶10 The administrative judge found that the appellant’s failure to claim that his
EEO complaint involved remedying a violation of 5 U.S.C. § 2302(b)(8),
precludes finding Board jurisdiction over this IRA appeal on that basis. ID
at 6-7. The only documentation in the record regarding the substance of the
appellant’s EEO complaint does not indicate that he sought therein to remedy
whistleblower reprisal, see IAF, Tab 7, Subtab 4B at 4, and it was therefore not a
protected disclosure under the WPEA, e.g., Reed v. Department of Veterans
Affairs, 122 M.S.P.R. 165, ¶ 13 (2015). Thus, we agree with the administrative
judge that the Board lacks jurisdiction to consider such a claim in this IRA
appeal. ID at 7.
¶11 Lastly, we address the appellant’s contention that the administrative judge
denied him discovery and a hearing with witnesses. First, we note that the
administrative judge made no rulings regarding discovery, and, as set forth above,
we agree with his decision to dismiss this IRA appeal for lack of jurisdiction
without holding a hearing. Regarding discovery, the record reflects that the
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appellant erroneously filed his discovery requests, as well as his responses to the
agency’s discovery, with the administrative judge, who returned them to the
appellant along with an explanation of why he was doing so. See IAF, Tabs 6, 10.
The record also reflects that the appellant attempted to file a motion to compel
which was received by the regional office after the administrative judge issued
his initial decision. PFR File, Tab 1 at 24-26. 3 Because the administrative judge
therefore made no actual rulings on the issue, there is no basis on which to find
that the administrative judge abused his discretion concerning discovery. See
Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992) (the
Board will not reverse an administrative judge’s rulings on discovery matters
absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).
Moreover, the appellant was not entitled to engage in discovery regarding his IRA
appeal because he failed to raise a nonfrivolous allegation that he made a
protected disclosure that was a contributing factor in the agency’s decision to take
or fail to take a personnel action. See, e.g., Sobczak v. Environmental Protection
Agency, 64 M.S.P.R. 118, 122 (1994).
¶12 Accordingly, for the reasons set forth above, we agree with the
administrative judge’s determination that the appellant failed to establish
jurisdiction over this IRA appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
3
The appellant’s motion did not comply with the Board’s regulation settin g forth the
requirements for a motion to compel discovery. See PFR File, Tab 1 at 24-26; see a lso
5 C.F.R. § 1201.73(c).
8
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
9
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.