                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LANE O. SATO,                                   DOCKET NUMBER
                         Appellant,                  SF-3443-16-0122-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: July 19, 2016
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lane O. Sato, Honolulu, Hawaii, pro se.

           Dawn Dobbs and Steven J. Shim, Schofield Barracks, Hawaii, 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        A nonprecedential order is one that the Board has determined does not add
     significantly 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 Parties may cite nonprecedential orders,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
     administrative 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.       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, 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).

                                      BACKGROUND
¶2        The appellant is a GS‑6 Medical Records Technician with the U.S. Army
     Medical Command at Tripler Army Medical Center in Honolulu, Hawaii. Initial
     Appeal File (IAF), Tab 6 at 32. On November 18, 2015, the appellant filed a
     Board appeal, in which he alleged that, over a period of approximately 10 years,
     the agency had slowly assigned him additional duties warranting a higher grade
     level. IAF, Tab 1 at 5. He further alleged that: (1) his first‑level supervisor
     violated 5 U.S.C. § 2302(b)(3) when she ignored his requests for a classification
     review or upgrade of his position; and (2) his second‑level supervisor
     violated 5 U.S.C. § 2302(b)(4) and 18 U.S.C. § 1001(a)(2) and (c)(1) when,
     among other things, she falsely led the appellant to believe that a classification
     review or upgrade of his position had been initiated. IAF, Tab 1 at 3, 5.
¶3        On his initial appeal form, the appellant indicated that he had filed a
     whistleblower complaint with the Office of Special Counsel (OSC) on July 1,
     2015, and that OSC had closed its inquiry into his complaint on October 22, 2015.
     Id. at 4. With his appeal, the appellant submitted several documents, including a
     narrative in which he reiterated his claims regarding the classification of his
                                                                                     3

     position, and alleged, among other things, that the agency committed perjury,
     denied him equal pay, failed to promote him, discriminated against him based on
     age and gender, subjected him to a hostile work environment and bullying, and
     retaliated against him for unspecified actions by accusing him of “spreading
     propaganda and disruptive behavior.” Id. at 19‑26.
¶4         The administrative judge issued an acknowledgment order, which informed
     the appellant that he did not appear to have raised any action directly appealable
     to the Board and that the Board only has jurisdiction over an individual right of
     action (IRA) appeal where an appellant exhausts his administrative remedies with
     OSC and raises nonfrivolous allegations that the agency took or failed to take a
     personnel action in retaliation for protected whistleblowing. IAF, Tab 2 at 2‑3.
     The administrative judge ordered the appellant to submit evidence and argument
     regarding the Board’s jurisdiction over his appeal. Id. at 3.
¶5         In response, the appellant asserted that one of the documents that he
     furnished with his initial appeal form was a complaint that he had filed with OSC
     and that OSC did not process the complaint as a whistleblower complaint. IAF,
     Tab 4 at 1. He attached a July 23, 2015 letter from OSC, which indicated that the
     appellant had filed a complaint with OSC (OSC File No. MA‑15‑4735), in which
     he alleged that the agency had discriminated against him based on age and gender
     and subjected him to a hostile work environment, and raised various matters
     regarding the classification of his position. Id. at 33‑34. OSC characterized the
     appellant’s allegations as potential violations of 5 U.S.C. § 2302(b)(1), (b)(3),
     and b(12), and informed him that it had made a preliminary determination to close
     its inquiry into his complaint. IAF, Tab 4 at 33-34. The appellant also submitted
     a revised version of his prior narrative statement, dated November 20, 2015,
     which raised new allegations that his supervisors had abused their authority. Id.
     at 2‑9; see id. at 10‑32.
                                                                                          4

¶6          Thereafter, the appellant filed an additional pleading in response to the
     acknowledgment order, in which he alleged, among other things, that he had a
     pending equal employment opportunity (EEO) complaint and that the agency
     violated 5 U.S.C. § 2302(b)(9)(A) when it assigned him additional duties and
     ignored his requests for a classification review or upgrade of his position. IAF,
     Tab 5 at 4‑5.
¶7          The agency responded to the appellant’s pleadings, arguing that the Board
     lacked jurisdiction over the appeal.     IAF, Tab 6 at 5‑8, Tab 7. Thereafter, the
     appellant filed a motion to withdraw his appeal on the ground that he had another
     complaint pending before OSC (OSC File No. DI‑16‑0931). IAF, Tab 8 at 4.
¶8          The administrative judge issued an initial decision dismissing the appeal for
     lack   of   jurisdiction   without   holding   the   appellant’s   requested   hearing.
     IAF, Tab 9, Initial Decision (ID); IAF, Tab 1 at 2.         He found that the Board
     lacked jurisdiction over the appellant’s claims as an IRA appeal because the
     appellant failed to prove that he exhausted his administrative remedies before
     OSC regarding any allegations of whistleblower retaliation that he might have
     raised in his Board appeal. ID at 12‑13. He further found that the appellant
     failed to raise a nonfrivolous allegation that he was subject to an action directly
     appealable to the Board and that, absent an otherwise appealable action, the
     Board lacked jurisdiction over the appellant’s claims of prohibited personnel
     practices and retaliation for EEO activity. ID at 7‑10. Finally, the administrative
     judge denied the appellant’s request to withdraw his appeal, finding that the
     initial decision dismissing the appeal for lack of jurisdiction obviated the need to
     withdraw the appeal and that the appellant could file a new IRA appeal if he
     exhausted his administrative remedies with OSC. ID at 5 n.4, 13 n.7.
¶9          The appellant has filed a timely petition for review of the initial decision, in
     which he argues that the administrative judge erred in denying his motion to
                                                                                        5

      withdraw his appeal. Petition for Review (PFR) File, Tab 1 at 4. The agency has
      responded in opposition to the petition for review. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
      The administrative judge correctly found that the Board lacks jurisdiction over
      the appellant’s claims as an IRA appeal.
¶10        The appellant does not contest the administrative judge’s finding that the
      Board lacks jurisdiction over his claims as an IRA appeal, and we discern no
      basis to disturb this finding on review. PFR File, Tab 1.
¶11        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 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); Yunus v. Department of Veterans
      Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). As to the exhaustion requirement,
      the Board may only consider those disclosures, protected activities, and personnel
      actions that the appellant raised before OSC.           Coufal v. Department of
      Justice, 98 M.S.P.R. 31, ¶¶ 14, 18 (2004).     The appellant bears the burden of
      demonstrating by preponderant evidence that he sought corrective action from
      OSC and exhausted his administrative remedies there.            Briley v. National
      Archives   &   Records   Administration,   236   F.3d   1373,    1377   (Fed.   Cir.
      2001); 5 C.F.R. § 1201.57(c)(1).
¶12        We agree with the administrative judge that, even assuming without finding
      that the appellant alleged that he made a protected disclosure or engaged in
      protected activity during his Board appeal, he failed to demonstrate that he
      exhausted his administrative remedies regarding such allegations before OSC.
      ID at 12‑13. The appellant did not allege that he exhausted his administrative
                                                                                       6

      remedies before OSC regarding his allegations in OSC File No. DI‑16‑0931, but
      instead, requested that the administrative judge dismiss the appeal because that
      complaint was pending before OSC. IAF, Tab 8 at 4.
¶13        In the appellant’s submission that he alleged constituted his complaint in
      OSC File No. MA‑15‑4735, he did not claim that he made a protected disclosure
      or that the agency retaliated against him for protected whistleblowing.       IAF,
      Tab 1 at 7‑26, Tab 4 at 1. Similarly, in its July 23, 2015 correspondence, OSC
      characterized the appellant’s allegations in OSC File No. MA‑15‑4735 as
      potential violations of 5 U.S.C. § 2302(b)(1), (b)(3), and b(12), rather
      than 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). IAF,
      Tab 4 at 33‑34. While OSC’s opinions and conclusions are not binding on the
      Board, see Smith v. Department of Agriculture, 64 M.S.P.R. 46, 55 (1994),
      considering the content of the appellant’s purported OSC complaint in OSC File
      No. MA‑15‑4735, we agree with OSC’s conclusion that the appellant alleged that
      the agency committed prohibited personnel practices, but did not allege reprisal
      for whistleblowing. For these reasons, we find that the appellant has not shown
      that he exhausted his administrative remedies before OSC, and therefore, the
      Board lacks jurisdiction over the appellant’s claims as an IRA appeal. See, e.g.,
      Finston v. Health Care Financing Administration, 83 M.S.P.R. 100, ¶¶ 8–10
      (1999) (finding that a complaint to OSC alleging a violation of 5 U.S.C.
      § 2302(b)(4) did not constitute exhaustion of an appellant’s administrative
      remedies regarding his whistleblower allegations).
      The administrative judge correctly found that the Board otherwise lacks
      jurisdiction over the appellant’s claims.
¶14        On review, the appellant also does not contest the administrative judge’s
      finding that the Board lacks jurisdiction over the appeal as a direct appeal to the
      Board. PFR File, Tab 1. Again, we discern no reason to disturb this finding on
      review.
                                                                                           7

¶15         The Board’s jurisdiction is limited to those matters over which it has been
      given jurisdiction by law, rule, or regulation.          Maddox v. Merit Systems
      Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).         Thus, it follows that the
      Board does not have jurisdiction over all matters involving Federal employees
      that are alleged to be unfair or incorrect.               Johnson v. U.S. Postal
      Service, 67 M.S.P.R. 573, 577 (1995). An appellant who makes a nonfrivolous
      allegation of jurisdiction is entitled to a hearing at which he then must prove
      jurisdiction by a preponderance of the evidence.          Garcia v. Department of
      Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see 5 C.F.R.
      § 1201.56(b)(2)(i)(A).
¶16         Chapter 75 of title 5 grants the Board jurisdiction to hear appeals of certain
      enumerated adverse actions taken by an agency against an employee. 5 U.S.C.
      §§ 7512, 7513(d).        Such appealable adverse actions include a removal, a
      suspension for more than 14 days, a reduction in pay or grade, and certain
      furloughs.   5 U.S.C. § 7512.     Having considered the appellant’s submissions
      below and on review, we agree with the administrative judge that the appellant
      failed to raise a nonfrivolous allegation that he was subjected to an appealable
      adverse action. ID at 7‑10.
¶17         As the administrative judge correctly found, the Board lacks jurisdiction
      over the appellant’s claims concerning the proper classification of his position.
      ID at 7‑8; see Pierce v. Merit Systems Protection Board, 242 F.3d 1373, 1375‑76
      (Fed. Cir. 2001); Saunders v. Merit Systems Protection Board, 757 F.2d 1288,
      1290 (Fed. Cir. 1985). The administrative judge also correctly found that, with
      certain exceptions not applicable here, the Board lacks jurisdiction over claims
      regarding an agency’s failure to promote an employee, or claims regarding the
      agency’s assignment of additional duties to an employee. 2 ID at 8 & n.5; Harrell

      2
        Moreover, the denial of a promotion that would have provided the appellant with a pay
      increase is not an appealable reduction in pay. Caven v. Merit Systems Protection
      Board, 392 F.3d 1378, 1381 (Fed. Cir. 2004).
                                                                                        8

      v. U.S. Postal Service, 112 M.S.P.R. 492, ¶ 11 (2009) (finding that the Board
      generally lacks jurisdiction over an appellant’s nonselection for a promotion);
      D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 48 (1992) (finding that the
      Board lacks jurisdiction over matters concerning an agency’s authority to assign
      duties). The appellant’s allegations of perjury and false statements by the agency
      do not constitute appealable adverse actions, and no law, rule, or regulation
      otherwise grants the Board jurisdiction to review such claims.        See 5 U.S.C.
      § 7512.
¶18        Finally, the administrative judge correctly found that, absent an otherwise
      appealable action, the Board lacks jurisdiction to consider the appellant’s claims
      of prohibited personnel practices or EEO retaliation.         ID at 7; McNeil v.
      Department of Defense, 100 M.S.P.R. 146, ¶ 21 (2005) (finding that the Board
      lacked jurisdiction to consider an appellant’s claim of retaliation for EEO activity
      in the absence of an otherwise appealable action); Wren v. Department of the
      Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices
      under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction),
      aff’d, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).
¶19        In sum, for the reasons discussed above, we agree with the administrative
      judge that the appellant failed to raise a nonfrivolous allegation of jurisdiction
      over his appeal as a direct appeal to the Board.
      The administrative judge did not abuse his discretion in denying the appellant’s
      motion to withdraw the appeal.
¶20        On review, the appellant contests the administrative judge’s denial of his
      motion to withdraw his appeal. PFR File, Tab 1 at 4. The appellant’s motion to
      withdraw the appeal indicated that he intended to refile the appeal once he
      exhausted his administrative remedies before OSC. IAF, Tab 8 at 4. Thus, the
      appellant’s motion reflected that he wished to withdraw his appeal without
      prejudice. Simon v. Department of Justice, 112 M.S.P.R. 169, ¶ 7 (2009) (finding
      that a relinquishment of an appellant’s right to appeal to the Board must be made
                                                                                   9

by clear, unequivocal, and decisive action). An administrative judge has wide
discretion in deciding whether to grant or deny a motion to dismiss an appeal
without prejudice. Cassel v. Department of Agriculture, 72 M.S.P.R. 542, 546
(1996); 5 C.F.R. § 1201.29(b) (stating that the decision whether to dismiss an
appeal without prejudice is committed to the sound discretion of the
administrative judge). Here, we find that the administrative judge did not abuse
his discretion.    The Board lacked jurisdiction over the appeal, and, as the
administrative judge correctly noted, the appellant is free to file a future IRA
appeal if he exhausts his administrative remedies with OSC regarding any
allegations of whistleblowing that he may have raised in his Board appeal.
ID at 13 n.7; see also Bump v. Department of the Interior, 64 M.S.P.R. 326,
330-33 (1994) (finding that a jurisdictional dismissal of an appellant’s prior
whistleblower claims for failure to exhaust his administrative remedies before
OSC did not bar a second IRA appeal of the same claims after his administrative
remedies had been exhausted).

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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.
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
                                                                                 10

the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. 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 U.S. 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to
the U.S. 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
                                                                                 11

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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
