U.S. Court of Appeals, Federal Circuit
January 11, 1999
RICHARD BECKER, PETITIONER,
DEPARTMENT OF VETERANS AFFAIRS, RESPONDENT.
Before Michel, Bryson, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
Petitioner Richard Becker filed an Individual Right of Action ("IRA") appeal with the Merit Systems Protection Board seeking corrective action for the failure of the Department of Veterans Affairs to hire him for certain positions. The Board dismissed the appeal for lack of jurisdiction. Docket No. CH-1221-97-0190-B-1. We affirm.
In papers submitted to the Board, Mr. Becker alleged that the Department of Veterans Affairs refused to hire him as a retail manager or manager trainee in retaliation for certain protected disclosures he made to the Office of Special Counsel ("OSC"). The substance of Mr. Becker's allegedly protected disclosures was that agency officials did not adequately advertise certain job openings and made hiring decisions based upon nepotism.
In the first proceeding before the Board, the administrative Judge assigned to Mr. Becker's case dismissed his appeal for lack of jurisdiction, finding that Mr. Becker had failed (1) to prove that he had made a protected disclosure and (2) to make a prima facie showing of retaliation from such a disclosure. The full Board granted Mr. Becker's petition for review and found that he had made non-frivolous allegations of protected disclosures and that the administrative Judge's treatment of the other two jurisdictional requisites was deficient. The Board therefore vacated the administrative Judge's decision and remanded the case with the following instructions:
"(1) On remand, the administrative Judge should give the appellant a full opportunity to identify which positions he applied for and when he applied for them. He should also be given a chance to introduce argument and evidence showing that he raised his nonselection for these positions with OSC, and that OSC proceedings have been exhausted as to them."
"(2) On remand, the administrative Judge must expressly inform the appellant that, to make a non-frivolous allegation of exhaustion, he must submit argument and evidence showing that the disclosures and nonselection actions that he is asking us to review are the same ones that he raised to the Special Counsel."
On remand, another administrative Judge was assigned to the case. Pursuant to the Board's directives, the new administrative Judge issued an order directing Mr. Becker to "provide written evidence and argument showing which positions he applied for and when he applied for them." In addition, the order required Mr. Becker to show that "he raised his nonselection for these positions with the [OSC] and that OSC proceedings were exhausted regarding the nonselections." In response to that order, Mr. Becker failed to produce evidence of the positions for which he applied, when he applied for the positions, whether he raised the specific nonselection actions with the OSC, and whether OSC proceedings were exhausted with regard to the alleged personnel actions. The administrative Judge therefore dismissed Mr. Becker's appeal for lack of jurisdiction. The full Board denied Mr. Becker's petition for review of that dismissal order.
Under Board precedents and regulations, a party who brings an IRA appeal must establish three facts by a preponderance of the evidence in order for the Board to have jurisdiction over the action:
"(1) [that the appellant] engaged in whistleblowing activity by making a statutorily protected disclosure, i.e., he disclosed information that he reasonably believed evidenced violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety;"
"(2) [that] the agency took or failed to take, or threatened to take or fail to take, a "personnel action" as defined in 5 U.S.C. § 2302(a)(2)(A) after the July 9, 1989 effective date of the Whistleblower Protection Act of 1989 (WPA); and"
"(3) [that the appellant] raised the precise whistleblower reprisal issue before the OSC, and proceedings before the OSC have been exhausted." Thomas v. Dept. of the Treasury, 77 M.S.P.R. 224, 229-30 (1998); see also 5 C.F.R. §§ 1209.5(a), 1209.6(a)(5). The administrative Judge found that Mr. Becker's papers failed to establish either the second or third points, and the administrative Judge therefore directed Mr. Becker to provide "written evidence and argument showing which positions he applied for and when he applied for them" and evidence that "he raised his nonselection for these positions with the [OSC] and that OSC proceedings were exhausted regarding the nonselections." When Mr. Becker failed to comply with that directive, the administrative Judge concluded that he had failed to satisfy his burden of establishing the predicates for Board jurisdiction.
We agree that Mr. Becker failed to identify the precise personnel action or actions at issue in the case, as he failed to identify the position or positions for which he allegedly applied and was rejected. We also agree that Mr. Becker failed to establish that he had raised a claim with respect to those personnel actions before the OSC and that he had exhausted his remedies before the OSC with respect to those actions. Accordingly, we uphold the Board's dismissal order on the ground that Mr. Becker failed to satisfy his burden of establishing that the Board had jurisdiction over his appeal.