                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KEITH K. FOO,                                   DOCKET NUMBER
                         Appellant,                  SF-1221-15-0133-W-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: June 3, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Keith K. Foo, Waipahu, Hawaii, pro se.

           Dora Malykin, Riverdale, Maryland, 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 this individual right of action (IRA) 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 regulation or the erroneous application of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2           In this IRA appeal, the appellant alleged that the agency decided not to
     renew his term appointment as a Biological Technician for the agency’s Animal
     and Plant Health Inspection Service in retaliation for his claimed disclosure that
     his supervisor committed a firearms violation and in reprisal for filing an equal
     employment opportunity (EEO) complaint.       Initial Appeal File (IAF), Tab 1.    In
     addition to an acknowledgment order, the administrative judge issued a
     jurisdictional order setting forth the appellant’s burden to establish jurisdiction
     over his IRA appeal in order to receive a hearing on his claim. IAF, Tabs 2, 8.
     The appellant did not reply to the administrative judge’s jurisdictional order.
     Citing the appellant’s failure to respond to the jurisdictional order before the
     close of the record, the agency moved to dismiss the appeal. IAF, Tab 9.
¶3           The administrative judge subsequently dismissed the appellant’s IRA appeal
     for lack of jurisdiction without holding a hearing. IAF, Tab 13, Initial Decision
     (ID).    Specifically, the administrative judge found that the appellant failed to
     establish that he had exhausted his administrative remedies before the Office of
     Special Counsel (OSC) because he “failed to inform OSC of ‘the precise grounds
     of his charge of whistleblowing’ sufficient to allow it to pursue an investigation
     that might lead to corrective action.” ID at 5 (citing Mason v. Department of
                                                                                      3

     Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011)). Similarly, the administrative
     judge found that the appellant failed to make the requisite nonfrivolous allegation
     that he made a protected disclosure because his claim lacked sufficient specificity
     and detail; the appellant not only neglected to explain the substance of his
     disclosure, he also failed to identify to whom it was made and when he made it.
     ID at 5-6. The administrative judge also found that the Board lacked jurisdiction
     over the appellant’s claim of reprisal for filing an EEO complaint because the
     appellant’s reprisal claim did not involve the exercise of his right to file an EEO
     complaint as to remedying a violation of 5 U.S.C. § 2302(b)(8). ID at 7.
¶4        In his petition for review, the appellant alleges that he was denied the
     opportunity to complete discovery and to have a hearing with witnesses. Petition
     for Review (PFR) File, Tab 1 at 3. He provides statements and email messages
     from his coworkers in support of his alleged disclosure, some of which are
     addressed to his representative in Congress, and none of which appear to have
     been unavailable before the record closed below. Id. at 6-20. He also provides a
     copy of his motion to compel discovery, which arrived at the regional office after
     the administrative judge issued his initial decision and was returned to the
     appellant for that reason. Id. at 21-26. The agency responds in opposition to the
     appellant’s petition for review, and he provides a reply to the agency’s response.
     PFR File, Tabs 4-5.
¶5        The Board has jurisdiction over an IRA appeal if the appellant has
     exhausted his administrative remedies before OSC and makes nonfrivolous
     allegations that: (1) he engaged in whistleblowing activity by making a protected
     disclosure, and (2) the disclosure was a contributing factor in the agency’s
     decision to take or fail to take a personnel action.     Yunus v. Department of
     Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion
     requirement of 5 U.S.C. § 1214(a)(3) in an IRA appeal, an appellant must inform
     OSC of the precise ground of his charge of whistleblowing, giving OSC a
     sufficient basis to pursue an investigation which might lead to corrective action.
                                                                                            4

     Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
     The test of the sufficiency of an employee’s charges of whistleblowing to OSC is
     the statement that he makes in the complaint requesting corrective action, not his
     post hoc characterization of those statements.         Id.; Ellison v. Merit Systems
     Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993).
¶6          As noted above, the appellant failed to respond to the administrative judge’s
     jurisdictional order. Because the appellant failed to file an actual copy of the
     complaint he filed with OSC, OSC’s October 30, 2014 letters were the only
     evidence in the record by which the appellant could establish OSC exhaustion.
     ID at 4-5; IAF, Tab 1 at 9-10. Thus, all we know that the appellant told OSC is
     that his supervisor allegedly committed a firearms violation. See IAF, Tab 1 at 9.
     As the administrative judge correctly observed, the record does not reflect that
     the appellant ever told OSC when he made his alleged protected disclosure, the
     identity of the person to whom he allegedly made his disclosure, or any specifics
     regarding the content of the disclosure. ID at 4-5. Although he may have given
     OSC more information, his failure to respond to the administrative judge’s
     jurisdictional order and show exactly what he told OSC means that he failed to
     carry his burden to establish exhaustion of his administrative remedies before
     OSC.
¶7          The appellant also fails to address the issue of OSC exhaustion on review,
     providing nothing with his petition for review to indicate that he provided any
     more information to OSC regarding his alleged protected disclosure. 2 Thus, we


     2
       In Nasuti v. Merit Systems Protection Board, 376 F. App’x 29, 32 (Fed. Cir. 2010)
     (citin g Ward, 981 F.2d at 526), our reviewing court remanded an IRA appeal in order
     for the Board to consider evidence that the appellant in that matter claimed to have sent
     to OSC while OSC was considering his complaint. Thus, had the appellant included
     further information on the exhaustion issue with his petition for review, we would have
     considered it, to the extent that it meets the Board’s evidentiary criteria, in order to
     determine whether the appellant estab lished jurisdiction over his IRA appeal. See id;
     see also Nasuti v. Department of State, 112 M.S.P.R. 587, ¶ 7 (2009); 5 C.F.R.
     §§ 1201.114(i), 1201.115(d)(1).
                                                                                       5

     agree with the administrative judge that the appellant’s vague allegation of
     wrongdoing lacked sufficient specificity and detail such that OSC could pursue an
     investigation that might lead to corrective action and that the appellant therefore
     failed to establish that he had exhausted his administrative remedies before OSC.
     ID at 4-5; see Yunus, 242 F.3d at 1371. A party “whose submissions lack clarity
     risks being found to have failed to meet his burden of proof.” Luecht v.
     Department of the Navy, 87 M.S.P.R. 297, ¶ 8 (2000).
¶8        We also agree with the administrative judge that the appellant failed to
     make the requisite nonfrivolous allegation that he made a protected disclosure
     which a reasonable person would believe evidenced 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 or safety. ID at 5-6. The
     entirety of the appellant’s argument is not much more than conclusory allegations
     of wrongdoing, very little of which even touches on the subject of his purported
     disclosure, and the information that does refer to it is vague and potentially
     contradictory. For example, it appears that the appellant told the agency’s Office
     of Inspector General that he had reported an instance of firearms mishandling to
     his supervisor, IAF, Tab 5 at 4, but, in the appellant’s own account, he instead
     claims that the supervisor was there at the time of the incident, “did not stop it,”
     and that another employee put a stop to the class, id. at 9. Moreover, nearly all of
     the information in the record about any alleged firearms incidents is contained in
     statements made by the appellant’s coworkers, and absolutely nothing the
     appellant provided below, or that he provides with his petition for review,
     identifies what he disclosed, to whom he disclosed it, or when he made the
     alleged protected disclosure for which he contends that the agency retaliated
     against him. IAF, Tabs 1, 5; PFR File, Tab 1 at 6-20.
¶9        As for the appellant’s allegations of reprisal for filing an EEO complaint,
     under 5 U.S.C. § 1221(a), as amended by the Whistleblower Protection
     Enhancement     Act,   Pub.   L.   No.   112-199,    126   Stat.   1465   (WPEA),
                                                                                         6

      section 101(b)(1)(A),   an   employee,   former    employee,   or     applicant   for
      employment may, with respect to any personnel action taken, or proposed to be
      taken against such employee, former employee, or applicant for employment, as a
      result of a prohibited personnel practice described in 5 U.S.C. § 2302(b)(8) or
      § 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Board.
      Among other things, the WPEA expanded the scope of 5 U.S.C. § 2302(b)(9), to
      include:
            (A) the exercise of any appeal, complaint, or grievance right granted
            by any law, rule, or regulation—
            (i) with regard to remedying a violation of paragraph (8); or
            (ii) other than with regard to remedying a violation of paragraph (8).
      However, of those two categories, the WPEA only extended the Board’s IRA
      jurisdiction to claims arising under 5 U.S.C. § 2302(b)(9)(A)(i) but not to those
      arising under (b)(9)(A)(ii). See WPEA section 101(b)(1)(A).
¶10         The administrative judge found that the appellant’s failure to claim that his
      EEO complaint involved remedying a violation of 5 U.S.C. § 2302(b)(8),
      precludes finding Board jurisdiction over this IRA appeal on that basis.          ID
      at 6-7.    The only documentation in the record regarding the substance of the
      appellant’s EEO complaint does not indicate that he sought therein to remedy
      whistleblower reprisal, see IAF, Tab 7, Subtab 4B at 4, and it was therefore not a
      protected disclosure under the WPEA, e.g., Reed v. Department of Veterans
      Affairs, 122 M.S.P.R. 165, ¶ 13 (2015). Thus, we agree with the administrative
      judge that the Board lacks jurisdiction to consider such a claim in this IRA
      appeal. ID at 7.
¶11         Lastly, we address the appellant’s contention that the administrative judge
      denied him discovery and a hearing with witnesses.        First, we note that the
      administrative judge made no rulings regarding discovery, and, as set forth above,
      we agree with his decision to dismiss this IRA appeal for lack of jurisdiction
      without holding a hearing.     Regarding discovery, the record reflects that the
                                                                                          7

      appellant erroneously filed his discovery requests, as well as his responses to the
      agency’s discovery, with the administrative judge, who returned them to the
      appellant along with an explanation of why he was doing so. See IAF, Tabs 6, 10.
      The record also reflects that the appellant attempted to file a motion to compel
      which was received by the regional office after the administrative judge issued
      his initial decision. PFR File, Tab 1 at 24-26. 3 Because the administrative judge
      therefore made no actual rulings on the issue, there is no basis on which to find
      that the administrative judge abused his discretion concerning discovery.         See
      Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992) (the
      Board will not reverse an administrative judge’s rulings on discovery matters
      absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).
      Moreover, the appellant was not entitled to engage in discovery regarding his IRA
      appeal because he failed to raise a nonfrivolous allegation that he made a
      protected disclosure that was a contributing factor in the agency’s decision to take
      or fail to take a personnel action. See, e.g., Sobczak v. Environmental Protection
      Agency, 64 M.S.P.R. 118, 122 (1994).
¶12        Accordingly, for the reasons set forth above, we agree with the
      administrative judge’s determination that the appellant failed to establish
      jurisdiction over this IRA appeal.

                      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

      3
        The appellant’s motion did not comply with the Board’s regulation settin g forth the
      requirements for a motion to compel discovery. See PFR File, Tab 1 at 24-26; see a lso
      5 C.F.R. § 1201.73(c).
                                                                                        8

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
respective         websites,       which         can      be      accessed        through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
                                                                                  9

      If you are interested in securing pro bono representation for an appeal to the
United States 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.
