                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 42

                            Docket No. SF-1221-14-0742-W-1

                                   Philip J. Kerrigan,
                                        Appellant,
                                             v.
                                 Department of Labor,
                                         Agency.
                                       June 11, 2015

           Philip J. Kerrigan, Philadelphia, Pennsylvania, pro se.

           Isabella M. Finneman, San Francisco, California, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision
     dismissing his individual right of action (IRA) appeal for lack of jurisdiction.
     For the reasons set forth below, we DENY the appellant’s petition for review,
     VACATE the initial decision, and still DISMISS the appeal for lack of
     jurisdiction on other grounds. Specifically, we find that we lack jurisdiction over
     the appellant’s claim that the agency improperly terminated his Office of
     Workers’ Compensation Programs (OWCP) wage replacement benefits based on
     his protected whistleblowing activity because, as set forth under the Federal
     Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193, the appellant’s
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     exclusive remedy for his FECA claim is within the U.S. Department of Labor
     (DOL or the agency).

                                      BACKGROUND
¶2         The appellant held a temporary appointment as a Carpentry Worker at the
     Department of the Navy’s Public Works Center in San Diego, California, from
     August 20, 1985, until his termination on May 29, 1986.         Initial Appeal File
     (IAF), Tab 1 at 14, Tab 9 at 9, 23.       During his temporary appointment, the
     appellant injured his back while at work and filed a claim with OWCP. IAF,
     Tab 9 at 32. OWCP accepted the appellant’s claim and awarded benefits. Id.
     at 32-33. In 2001, the appellant sent letters to the Offices of Inspector General
     for both the Department of Defense and the agency, alleging that OWCP
     employees had engaged in illegal activity. Id. at 49-50, 52-54. In March 2002,
     OWCP terminated the appellant’s wage replacement benefits based on his refusal
     to participate in vocational rehabilitation. IAF, Tab 1 at 15. He appealed this
     decision, and the Employees’ Compensation Appeals Board (ECAB) affirmed the
     decision to terminate his compensation benefits. IAF, Tab 5 at 15-19.
¶3         In March 2004, the appellant filed a lawsuit against the agency, contending
     that it had illegally terminated his disability benefits under FECA. See Kerrigan
     v. Chao, 151 F. App’x 129, 130 (3d Cir. 2005) (per curiam). The district court
     dismissed the appellant’s case for lack of subject matter jurisdiction and for
     failure to state a due process violation. Kerrigan v. Chao, No. 04-1189, 2004 WL
     2397396, at *5 (E.D. Pa. Oct. 26, 2004). The U.S. Court of Appeals for the Third
     Circuit affirmed. Kerrigan, 151 F. App’x 129. In affirming the dismissal for
     lack of jurisdiction, the court held that an outside review of the agency’s decision
     was barred by statute unless a substantial due process claim was raised, which did
     not occur here. Id. at 131-32. Thereafter, the appellant filed another lawsuit,
     attempting to sue the physician who reviewed his medical records during the
     administrative proceedings before the ECAB. See Kerrigan v. Smoller, 271 F.
                                                                                        3

     App’x 279 (3d Cir. 2008) (per curiam). The district court again dismissed the
     appellant’s case, this time as an impermissible collateral attack on its previous
     decision in Kerrigan v. Chao. Id. After the appellant challenged that decision,
     the Third Circuit affirmed, determining that the appellant’s case was “meritless.”
     Id.
¶4         The appellant filed a complaint with the Office of Special Counsel (OSC)
     alleging that the agency terminated his compensation benefits in retaliation for
     making protected disclosures. IAF, Tab 1 at 10. In June 2014, OSC closed its
     investigation and advised the appellant of his Board appeal rights. Id. at 9-11.
¶5         The appellant initiated this IRA appeal, 12 years after OWCP terminated
     his benefits. IAF, Tab 1 at 1, Tab 5 at 16. The agency filed a motion to dismiss
     the appeal for lack of jurisdiction. IAF, Tab 5 at 4. The administrative judge
     issued an order that detailed the appellant’s burden of establishing jurisdiction
     over an IRA appeal. IAF, Tab 10. After the appellant responded to the order, the
     administrative judge issued an initial decision dismissing the appeal for lack of
     jurisdiction without holding the requested hearing.     IAF, Tab 1 at 3, Tab 13,
     Tab 15, Initial Decision (ID) at 1, 7. The bases for the administrative judge’s
     decision were that the appellant’s disclosure was not protected because he was
     never employed by the agency, and the filing of an OWCP claim is not a
     protected activity under 5 U.S.C. § 2302(b)(9). ID at 5-6. The administrative
     judge further found that the termination of the appellant’s OWCP benefits was
     not a personnel action under 5 U.S.C. § 2302(a)(1) because the term “personnel
     action” was intended to cover actions taken by an agency concerning its own
     employees. ID at 6.
¶6         The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tabs 1, 3.    The agency has filed a response in opposition to the
     petition for review. PFR File, Tab 4.
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                                        ANALYSIS
¶7         In its motion to dismiss the appeal, the agency contended that the Board
     lacks jurisdiction over FECA claims. IAF, Tab 5 at 10-11. The administrative
     judge failed to address this argument in the initial decision. See Spithaler v.
     Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision
     must identify all material issues of fact and law, summarize the evidence, resolve
     issues of credibility, and include the administrative judge’s conclusions of law
     and his legal reasoning, as well as the authorities on which that reasoning rests).
     Accordingly, we address the agency’s argument here.
¶8         Title 5 U.S.C. § 8128(b) states in pertinent part:
           The action of the Secretary [of Labor] or his designee in allowing or
           denying a payment under this subchapter is—
           (1) final and conclusive for all purposes and with respect to all
           questions of law and fact; and
           (2) not subject to review by another official of the United States or
           by a court by mandamus or otherwise.
     Pursuant to the text of this subsection, the issue of an appellant’s entitlement to
     FECA benefits is within the exclusive jurisdiction of DOL.         Minor v. Merit
     Systems Protection Board, 819 F.2d 280, 283 (Fed. Cir. 1987); Miller v. U.S.
     Postal Service, 26 M.S.P.R. 210, 212-13 (1985).            As we stated in Miller,
     subsection 8128(b) is included in FECA’s statutory scheme in order to ensure the
     finality of the administrative action before DOL and eliminate the possibility of
     any judicial review. 26 M.S.P.R. at 212-13. Indeed, the program which FECA
     establishes is similar in structure and policy to state workers’ compensation
     programs, i.e., employees are quickly granted fixed benefits regardless of fault
     and without litigation but in turn forego the possibility of greater awards through
     a court proceeding. See id.; see also National Ass’n of Letter Carriers, AFL-CIO
                                                                                          5

      v. U.S. Postal Service, 272 F.3d 182, 188-89 (3d Cir. 2001) (citing party’s
      argument with approval). 1
¶9          We have previously found that section 8128 is not an absolute bar to Board
      jurisdiction over collateral issues such as whether to sustain a removal based on
      fraudulent conduct during OWCP proceedings. See Miller, 26 M.S.P.R. at 212-13
      (finding that the Board is not precluded from reviewing a removal based on
      falsely obtaining OWCP benefits); see also Daniels v. U.S. Postal Service,
      57 M.S.P.R. 272, 279 (1993) (same). However, the text of subsection 8128(b)
      precludes Board jurisdiction over cases where consideration of a claim would
      entail reviewing OWCP’s decision to pay, or deny, benefits in the first place. See
      Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 4 (2005) (finding that the Board
      lacks jurisdiction to review a denial of workers’ compensation benefits); see also
      Lee v. Department of Labor, 76 M.S.P.R. 142, 146 (1997) (same). Where an
      appellant has filed a claim of whistleblower reprisal challenging DOL’s decision
      to terminate FECA benefits, a determination on that claim would necessarily
      require the review that is prohibited by subsection 8128(b).
¶10         Such is the case here. The appellant has pursued the OWCP determination
      through the agency’s appellate process, received a decision from ECAB, and is
      challenging the agency’s determination to terminate his benefits through his IRA
      appeal.   His claim that the agency terminated his compensation benefits in
      retaliation for making protected disclosures would require a review of the
      agency’s determination.      Accordingly, we find that, because the appellant’s
      exclusive remedy for his FECA claim is within the agency, the Board lacks




      1
        Other than decisions of the U.S. Court of Appeals for the Federal Circuit, the
      decisions of the circuit courts are not binding on the Board, but the Board may follow
      such decisions if it is persuaded by their reasoning. Bowman v. Small Business
      Administration, 122 M.S.P.R. 217, ¶ 13 n.8 (2015). We are persuaded here.
                                                                                            6

      jurisdiction over this appeal. 2 See Clavin, 99 M.S.P.R. 619, ¶ 4; see also Lee,
      76 M.S.P.R. at 146.

                                             ORDER
¶11         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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.


      2
        Even if we were to apply the test for jurisdiction in an IRA appeal, the outcome would
      be the same. 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); Yunus v. Department of Veterans Affairs, 242 F.3d
      1367, 1371 (Fed. Cir. 2001).
             Here, the appellant has failed to nonfrivolously allege that his protected
      disclosures were a contributing factor in the agency’s decision to terminate his OWCP
      compensation benefits. Specifically, he has failed to allege that the official who made
      the decision to terminate his OWCP compensation benefits had any knowledge of his
      protected disclosures or was influenced by someone who did.              See Aquino v.
      Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014) (contributing factor
      may be proven by actual or constructive knowledge); see also Rumsey v. Department of
      Justice, 120 M.S.P.R. 259, ¶ 26 (2013) (explaining that an employee may demonstrate
      that a disclosure was a contributing factor in a personnel action through evidence that
      the official taking the personnel action knew of the disclosure and close proximity
      between that knowledge and the personnel action, i.e., by satisfying the
      knowledge/timing test). Further, he has not made a nonfrivolous allegation that his
      protected disclosures were a contributing factor in the agency’s personnel action
      through alternative means. See Rumsey, 120 M.S.P.R. 259, ¶ 26 (if an appellant fails to
      satisfy the knowledge/timing test, the Board must consider other relevant evidence).
      Accordingly, the appellant has failed to make a nonfrivolous allegation that the Board
      has jurisdiction over his IRA appeal.
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         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).
         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
                                                                                  8

respective      websites,      which       can      be       accessed       through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the 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
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:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
