                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ADRIAN E. BLAIR,                                DOCKET NUMBER
                   Appellant,                        DA-1221-14-0654-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: May 11, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Adrian E. Blair, Grand Prairie, Texas, pro se.

           Jenny Mai, Dallas, Texas, 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 his 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant is employed by the agency as a sign painter. Initial Appeal
     File (IAF), Tab 6 at 12. In January 2014, the agency suspended the appellant for
     14 days. Id. at 14-16. In May 2014, the appellant filed a whistleblower reprisal
     complaint with the Office of Special Counsel (OSC) regarding the suspension 2; he
     indicated in his OSC complaint that he had filed two equal employment
     opportunity (EEO) complaints. IAF, Tab 4, Subtab 7 at 5-7. OSC informed the
     appellant that it had made a preliminary determination to close its inquiry because
     his allegations were more appropriately addressed through the EEO process. Id.

     2
       The appellant previously filed a stay request and an appeal regard ing the 14-day
     suspension. The stay request was dismissed on the basis that the appellant had not
     alleged retaliation for whistleblowing and had not exhausted his OSC remedy. Blair v.
     Department of Veterans Affairs, MSPB Docket No. DA-3443-14-0213-S-1, Stay
     Decision (Feb. 3, 2014). The appeal was dismissed in an initial decision because a
     14-day suspension is not directly appealab le to the Board and the appellant had not
     exhausted his remedies with OSC before filing the appeal. Blair v. Department of
     Veterans Affairs, MSPB Docket No. DA-3443-14-0213-I-1, Initial Decision (Apr. 1,
     2014). The appellant did not petition for review in that case, and therefore the initial
     decision became final.
                                                                                      3

     at 14-15.   In response, the appellant requested that OSC remove the “EEO
     portion” of his complaint and amend his complaint to include only the
     “suspension procedure.” Id. at 16.
¶3        After being advised of his right to file an individual right of action (IRA)
     appeal with the Board, id., the appellant timely filed this appeal, IAF, Tab 1. The
     administrative judge notified the appellant of his burden with respect to
     establishing jurisdiction over an IRA appeal.        IAF, Tab 3.      The appellant
     responded, identifying his protected activities as two formal EEO complaints.
     IAF, Tab 4, Subtab 2. He appeared to identify the 14-day suspension, as well as
     several other actions (including two admonishments, a reprimand, and a lowered
     performance appraisal) as the retaliatory personnel actions. Id., Subtab 5.
¶4        In the initial decision, the administrative judge found that the appellant had
     only exhausted his administrative remedies before OSC regarding the suspension,
     and the Board therefore could not exercise jurisdiction over the other alleged
     retaliatory personnel actions. IAF, Tab 8, Initial Decision (ID) at 5-6. Regarding
     the suspension, the administrative judge found that the appellant failed to
     nonfrivolously allege that he made a protected disclosure or engaged in protected
     activity that could form the basis of an IRA appeal; the administrative judge
     therefore dismissed the appeal for lack of jurisdiction. ID at 6-7.
¶5        The appellant has filed a timely petition for review in which he generally
     objects to the administrative judge’s decision. Petition for Review (PFR) File,
     Tab 1. The agency has responded in opposition to the petition for review. PFR
     File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.
¶6        We agree with the agency that the appellant has provided no basis upon
     which to grant his petition for review. On review, the appellant does not address
     the administrative judge’s reasons for finding that the Board lacks jurisdiction
     over his appeal. PFR File, Tab 1. Thus, we find that his petition constitutes mere
     disagreement with the administrative judge’s well-reasoned findings and, as such,
     provides no basis for disturbing the initial decision. Weaver v. Department of the
                                                                                               4

     Navy, 2 M.S.P.R. 129, 133-34 (1980). For the reasons set forth below, we agree
     with the administrative judge that the Board does not have jurisdiction in this
     case.
¶7           The Board has jurisdiction over an IRA appeal if the appellant exhausts his
     administrative remedies before OSC and makes nonfrivolous allegations that:
     (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
     engaged in protected activity described 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
     in the agency’s decision to take or fail to take a personnel action as defined
     by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Linder v. Department
     of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). We agree with the administrative judge
     that the Board could consider only the appellant’s allegation that he was
     suspended in retaliation for his EEO complaint and not any other alleged
     disclosures, protected activities or personnel actions, because this was the only
     personnel action and the only alleged protected disclosure/activity that the
     appellant raised and exhausted before OSC.              Boechler v. Department of the
     Interior, 109 M.S.P.R. 638, ¶ 6 (2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009);
     see ID at 5; see also IAF, Tab 4, Subtab 7 at 1-2 (OSC closeout letters).
¶8           We also agree with the administrative judge that the appellant did not make
     a nonfrivolous allegation that he made protected disclosures or engaged in
     protected activities that can form the basis of an IRA appeal. See ID at 6-7. The
     Board has found that allegations that are limited to EEO matters covered
     under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under section
     2302(b)(8). 3          Applewhite        v.     Equal      Employment         Opportunity

     3
       Under 5 U.S.C. § 2302(b)(1), it is a prohib ited personnel practice to “discriminate for
     or against any employee or applicant for employment” based upon certain protected
     categories. Under 5 U.S.C. § 2302(b)(9)(A) it is a prohib ited personnel practice to
     “take or fail to take, or threaten to take or fail to take, any personnel action against any
     employee or applicant for employment because of the exercise of any appeal,
     complaint, or grievance right granted by any law, ru le, or regu lation.”
                                                                                      5

     Commission, 94 M.S.P.R. 300, ¶ 23 (2003). Thus, to the extent that he attempts
     to do so, the appellant cannot predicate his appeal on disclosures of EEO matters.
     See Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 21 (2005).
¶9        We also agree with the administrative judge that the appellant’s allegation
     of reprisal under section 2302(b)(9) based on his filing of a prior EEO complaint
     of discrimination does not establish the Board’s jurisdiction in an IRA appeal.
     See ID at 6-7.   Pursuant to the Whistleblower Protection Enhancement Act of
     2012 (WPEA), an employee may now seek corrective action in an IRA appeal for
     any personnel action taken as a result of a prohibited personnel practice described
     in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(a); see Colbert
     v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6 (2014). Reprisal for
     filing a prior EEO complaint, however, is not included among this listing of
     prohibited personnel practices which can form the basis of an IRA appeal; rather,
     this prohibition is contained within 5 U.S.C. § 2302(b)(9)(A)(ii), and it does not
     provide a basis for establishing the Board’s jurisdiction over an IRA appeal. See
     Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
     Therefore, the administrative judge properly found that the appellant’s allegations
     of EEO reprisal failed to nonfrivolously establish the Board’s jurisdiction over an
     IRA appeal. Id.; see ID at 6-7.

                      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
     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).
                                                                                      6

        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.
        If you are interested in securing pro bono (free of charge) representation for
your court appeal, 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
                                                                           7

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.
