Failure to Allege Protected Employee Disclosures Precluded MSPB Jurisdiction
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
In this case, the Merit Systems Protection Board (MSPB, the Board) clarified that the issue of its jurisdiction must be addressed before reaching the merits of an individual right of action (IRA) appeal, and it found that it lacked jurisdiction to hear the appellant’s case.
Here, the appellant filed an IRA appeal with the Board after filing a complaint with the Office of Special Counsel (OSC), which OSC denied. The appellant’s complaint alleged that the Department of Agriculture denied his applications for three positions in reprisal for equal employment opportunity (EEO) complaints, which he had previously filed against the agency as well as his former employer, the Department of Homeland Security.
The administrative judge issued a decision finding that the appellant did make a protected disclosure when he filed an EEO complaint alleging that DHS improperly gave him a step increase and promotion in the same day. The administrative judge further found, though, that the appellant failed to show that the disclosure was a contributing factor in the agency’s nonselection decision. The appellant then filed the instant appeal with the Board, alleging that the agency failed to select him in retaliation for his prior EEO activity at DHS. In addition, he alleged that his nonselection was the result of DHS’ efforts to “black list” him from Federal employment.
The Board began its opinion by examining whether the Whistleblower Protection Act (WPA) and Whistleblower Protection Enhancement Act of 2012 (WPEA) are matters of civil service law, rule, or regulation. The Board’s jurisdiction is limited to matters over which it has been given jurisdiction by law, rule, or regulation, and the Board is able to determine its own jurisdiction in a case. Here, the Board’s jurisdiction over IRA appeals comes from the WPA. Importantly, the WPA and WPEA have a bearing on civil servants and strengthen the protections for Federal whistleblowers as set out by the Civil Service Reform Act of 1978. Therefore, a Board determination as to whether it possesses jurisdiction under the WPA and WPEA is a matter of civil service law, rule, or regulation.
The Board next discussed the issue of jurisdiction, including when Board jurisdiction must be addressed in IRA appeals and whether jurisdiction was present in this case. It first established that, before adjudicating an IRA appeal on the merits, the Board must make a threshold finding of jurisdiction and may not analyze the merits of the claim until it has done so. Because the administrative judge in this case failed to make any findings about jurisdiction, the Board explained that it was required to analyze jurisdiction before reaching the merits of the case.
Accordingly, the Board moved on to analyze whether it had jurisdiction over the appeal at issue. To establish Board jurisdiction over an IRA appeal based on whistleblower reprisal, the appellant must exhaust his administrative remedies before OSC and make nonfrivolous allegations of the following: (1) he engaged in whistleblower activity by making a protected disclosure 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 protected activity was a contributing factor the agency’s decision to take, fail to take, or threaten to take a personnel action. Notably, protected activity under § 2309(b)(9) includes “any appeal, complaint, or grievance right granted by any law, rule, or regulation . . . with regard to remedying a violation of [section 2302(b)(8)].” Section 2302(b)(8), then, provides that it is unlawful for an agency to take or fail to take a personnel action with regard to any employee because of disclosure of information that he reasonably believes evidences any 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. Therefore, section 2302(b)(9)(A)(i) only covers complaints seeking to remedy whistleblower reprisal.
Turning to the facts in the case, the Board explained that the appellant properly exhausted his administrative remedies before OSC because he filed a complaint with OSC on the same subject matter, and OSC closed its inquiry into appellant’s allegations. But, the Board next found that the appellant failed to nonfrivolously allege that he made a protected disclosure under the requisite statutes. Protected activity under § 2302(b)(9)(A)(i) includes only complaints seeking to remedy reprisal for protected disclosures under § 2302(b)(8). Here, appellant’s EEO reprisal complaint did not seek to remedy alleged whistleblower reprisal under § 2302(b)(8). As a result, the Board found that the appellant failed to nonfrivolously allege that he engaged in protected activity or made a protected disclosure, and the Board lacked jurisdiction to hear the case. For these reasons, the Board vacated the initial decision and dismissed the appeal for lack of jurisdiction.
Find the full case here: Bishop v. Department of Agriculture.
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