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Dutta v. Merit Systems Protection Board

United States Court of Appeals for the Federal Circuit


December 2, 1999

RANENDRA N. DUTTA, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.

Before Newman, Circuit Judge, Skelton and Archer, Senior Circuit Judges.

PER CURIAM.

Ranendra N. Dutta seeks review of the decision of the Merit Systems Protection Board, Docket No. SF1221980409-W-1, dismissing his individual right of action appeal for lack of jurisdiction. Because Mr. Dutta has not alleged that he made any disclosure that he reasonably believed constituted protected whistleblowing, see 5 U.S.C. '2302(b)(8), this case must be dismissed.

DISCUSSION

Mr. Dutta, an electronics engineer employed by the Department of Defense, applied for the position of Senior Functional Advisor, GS-13. Of the approximately seventy applicants, sixteen were granted interviews, with six positions available. Mr. Dutta was not granted an interview.

Mr. Dutta filed a complaint with the Office of Special Counsel (OSC), alleging that the agency did not follow merit promotion procedures in failing to select him, and that the agency's action violated Title V. The OSC determined that although Mr. Dutta claimed to be a whistleblower, there was no evidence that he had made a disclosure protected under 5 U.S.C. '2302(b)(8), i.e., a disclosure that he reasonably believed evidenced a 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 and safety.

His inquiry terminated by OSC, Mr. Dutta appealed to the Regional Office. The agency moved to dismiss, arguing that the Board did not have jurisdiction over Mr. Dutta's appeal, since there was no evidence that Mr. Dutta made a protected disclosure. The administrative Judge issued an Order to Show Cause stating in part:

Appellant must establish that he disclosed information evidencing 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 and safety. Absent a disclosure, there is no basis for appellant to come within the protection of the WPA and the otherwise unappealable action may not be considered by the Board. . . . If appellant establishes that he made a disclosure or makes a non-frivolous allegation of the same, further directions will follow. If neither showing is made, the appeal will be dismissed.

Mr. Dutta was given ten days to respond to the Order to Show Cause. Mr. Dutta did not respond to the order. The administrative Judge dismissed Mr. Dutta's appeal for lack of jurisdiction, and the full Board denied Mr. Dutta's petition for review. Mr. Dutta appeals.

An agency's nonselection of an individual for a vacant position is generally not an appealable cause of action within the Board's jurisdiction. See Prewitt v. Merit Sys. Protection Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). However, a personnel action such as claimed by Mr. Dutta may be appealable to the Board as an individual right of action (IRA) appeal based on the provisions of the Whistleblower Protection Act. In order to establish jurisdiction over an IRA appeal under the Whistleblower Protection Act, an appellant must show, inter alia, that he made a disclosure that he reasonably believed evidenced a condition described at 5 U.S.C. '2032(b)(8). See Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 625 (Fed. Cir. 1992).

Although Mr. Dutta was given notice in the administrative Judge's Order to Show Cause that he needed to allege a specific protected disclosure, Mr. Dutta never alleged such a disclosure. Mr. Dutta alleges only that the agency did not follow merit promotion procedures when it failed to select him. Therefore, Mr. Dutta's appeal is not within the Board's jurisdiction. Accordingly, this case must be dismissed. *fn1


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