Case: 20-1006   Document: 35     Page: 1   Filed: 05/21/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  MITCHELL WINE,
                      Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2020-1006
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DA-1221-19-0363-W-1.
                 ______________________

                 Decided: May 21, 2020
                 ______________________

    MITCHELL WINE, Mountain View, AR, pro se.

     JEFFREY GAUGER, Office of the General Counsel,
 United States Merit Systems Protection Board, Washing-
 ton, DC, for respondent. Also represented by KATHERINE
 MICHELLE SMITH.
                  ______________________

  Before PROST, Chief Judge, REYNA and HUGHES, Circuit
                         Judges.
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 2                                             WINE   v. MSPB



 PER CURIAM.
     Mitch Wine petitions for review of the Merit Systems
 Protection Board’s dismissal of his individual right of ac-
 tion appeal for lack of jurisdiction. Because Mr. Wine did
 not make non-frivolous allegations of a “personnel action”
 taken against him, we affirm the Board’s decision.
                              I
      The United States Fish and Wildlife Service (FWS) em-
 ployed Mr. Wine from 2003 to 2018. In February 2016, Mr.
 Wine filed a complaint (MA-16-2281) with the Office of Spe-
 cial Counsel (OSC), alleging that FWS supervisors retali-
 ated against him for making certain protected disclosures.
 In July 2016, OSC informed Mr. Wine that it had termi-
 nated its investigation of these allegations, and Mr. Wine
 filed an individual right of action (IRA) appeal with the
 Board. See Wine v. Dep’t of the Interior, No. DA-1221-16-
 0513-W-2, 2017 MSPB LEXIS 5121 at *13 (M.S.P.B. De-
 cember 5, 2017) (2017 IRA Decision).
     In the fall of 2016, Mr. Wine filed a second OSC com-
 plaint (MA-17-0509, “Fall 2016 complaint”) detailing addi-
 tional disclosures. See id. at *14. Mr. Wine’s designated
 representative requested those claims be added to the
 pending IRA appeal, so OSC terminated its investigation
 in March 2017. See Wine v. Dep’t of the Interior, No. DA-
 0752-18-0116-S-7, 2019 MSPB LEXIS 1869 at *3–4
 (M.S.P.B. May 31, 2019) (finding that OSC had closed the
 2016 complaint, exhausting those issues, and that an IRA
 appeal based on that complaint would be untimely). The
 Board appears to have partly considered that second com-
 plaint in Mr. Wine’s IRA appeal, but found certain allega-
 tions not exhausted before OSC. 2017 IRA Decision
 at *18–19, *20 n.2, *43 n.6, *51 n.9, *92 n.12. Ultimately,
 the Board denied Mr. Wine’s request for corrective action
 because it found that FWS would have taken the same ac-
 tions absent his whistleblowing. Id. at *97.
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 WINE    v. MSPB                                            3



      In December 2017, FWS removed Mr. Wine and he ap-
 pealed the removal. Mr. Wine eventually entered into a
 settlement agreement with FWS, which the Board ap-
 proved as the final resolution of the appeal in April 2018.
 Wine v. Dep’t of the Interior, No. DA-0752-18-0116-I-1, 2018
 MSPB LEXIS 1541 (M.S.P.B. April 30, 2018).
     In January 2018, while that appeal was pending, Mr.
 Wine contacted OSC seeking “reconsideration” of his Fall
 2016 (MA-17-0509) complaint. S.A. 44. 1 Mr. Wine believed
 this was necessary to cure his failure to exhaust allegations
 in his original IRA appeal. Id. OSC purportedly agreed to
 reevaluate the complaint, but Mr. Wine, dissatisfied with
 a perceived lack of follow-up or action, in June 2019, filed
 the IRA appeal petitioned here. Id. See Wine v. Office of
 Special Counsel, No. DA-1221-19-0363-W-1, 2019 MSPB
 LEXIS 2747 (M.S.P.B. July 29, 2019) (Decision). He alleges
 that OSC retaliated against him in violation of 5 U.S.C.
 § 2302 by failing to complete an investigation of the Fall
 2016 complaint and by failing to “reconsider” that com-
 plaint in 2018. S.A. 44.
                              II
      In the petitioned IRA appeal, OSC moved for a juris-
 dictional determination, arguing that the Board lacked ju-
 risdiction because Mr. Wine “failed to nonfrivolously allege:
 (1) that OSC subjected him to an appealable action; or
 (2) that OSC subjected him to a covered personnel action in
 retaliation for his protected whistleblowing activity.” De-
 cision at *2–3. The Administrative Judge ordered Mr.
 Wine to show cause why the IRA appeal should not be dis-
 missed for lack of jurisdiction, directing Mr. Wine to ex-
 plain in particular how “OSC’s investigations or




     1  “S.A.” refers to the pages of the respondent’s sup-
 plemental appendix attached to the respondent’s brief.
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 4                                              WINE   v. MSPB



 prosecutorial decisions were personnel actions within the
 meaning of 5 U.S.C. § 2302(a)(2)(A).” Decision at *3.
      Mr. Wine argued that OSC’s failure to investigate qual-
 ified as a personnel action under § 2302(a)(2)(A)(xii) be-
 cause it “effectuated a ‘significant change in working
 conditions’ for [Mr. Wine] by allowing FWS managers to
 dismiss harassment grievances against themselves and in-
 terfere with [Mr. Wine’s] Workers’ Compensation claim to
 have it denied unlawfully.” Decision at *4 (quoting S.A. 45,
 itself quoting § 2302(a)(2)(A)(xii)). Mr. Wine argued that
 OSC’s actions were a prohibited personnel practice in vio-
 lation of § 2302(b)(12) because, in his view, OSC had an ob-
 ligation to investigate his claims under 5 U.S.C. § 1214(a),
 and not doing so would violate his due process rights. De-
 cision at *4–5.
     The Administrative Judge rejected these arguments,
 holding that the Board has no authority to enforce OSC’s
 statutory requirements to investigate allegations of whis-
 tleblower reprisal. Decision at *5–6 (citing Wren v. Merit
 Sys. Prot. Bd., 681 F.2d 867, 871–72, (D.C. Cir. 1982); Mil-
 ler v. Dep’t of Homeland Sec., 111 M.S.P.R. 325, 332–33
 (2009)). The Administrative Judge explained that “[OSC’s]
 investigations and decisions are not personnel actions
 within the meaning of 5 U.S.C. § 2302(a)(2)(A), even
 though they may be of interest to [Mr. Wine] and to his ca-
 reer with FWS.” Decision at *6.
     Mr. Wine did not petition for appeal to the full Board.
 The Administrative Judge’s initial decision became the
 Board’s final decision and Mr. Wine timely petitioned this
 Court for review. We have jurisdiction under 5 U.S.C.
 § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
                             III
     We set aside a final Board decision only if it is arbi-
 trary, capricious, an abuse of discretion, or otherwise not
 in accordance with law; obtained without procedures
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 WINE   v. MSPB                                             5



 required by law, rule, or regulation having been followed;
 or unsupported by substantial evidence. 5 U.S.C. § 7703(c);
 Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.
 1995). We review the Board’s determination that it lacks
 jurisdiction without deference. Id. However, we review the
 underlying factual findings on which a jurisdictional deter-
 mination is based for substantial evidence. Bolton v. Merit
 Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The
 petitioner, Mr. Wine, bears the burden of establishing the
 Board’s jurisdiction by a preponderance of the evidence.
 Stoyanov v. Dep’t of Navy, 474 F.3d 1377, 1379 (Fed. Cir.
 2007).
     We find no error in the Board’s dismissal for lack of ju-
 risdiction. “The Board’s jurisdiction is not plenary, but is
 limited to those matters over which it has been granted ju-
 risdiction by law, rule, or regulation.” Id. To establish the
 Board’s jurisdiction over an IRA appeal, petitioners must
 identify non-frivolous allegations that (1) they engaged in
 whistleblowing activity by making a protected disclosure
 under 5 U.S.C. §§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D);
 and (2) the protected disclosure 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). Id. at 1379–80; see
 5 U.S.C. § 1221(a). “[N]ot every agency action is a ‘person-
 nel action’ under the WPA.” King v. Dep’t of Health & Hu-
 man Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998). We agree
 with the Board that Mr. Wine has not sufficiently alleged
 a “personnel action as defined by 5 U.S.C. § 2302(a).”
 Stoyanov, 474 F.3d at 1380.
     Mr. Wine alleged that OSC took a personnel action un-
 der the “catch-all” provision, 5 U.S.C. § 2302(a)(2)(A)(xii),
 by failing to investigate his complaint. See S.A. 45. To es-
 tablish a personnel action under this provision, Mr. Wine
 would have to identify a “significant change in duties, re-
 sponsibilities, or working conditions” caused by OSC’s al-
 legedly improper inaction.       § 2302(a)(2)(A)(xii).  The
 circumstances here preclude any reasonable allegation
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 6                                                WINE   v. MSPB



 that OSC’s failure to investigate created a “significant
 change” in Mr. Wine’s working conditions. Because Mr.
 Wine did not work for OSC, OSC had no direct authority to
 change Mr. Wine’s working conditions. Claims that OSC’s
 actions can cause a “significant change” in Mr. Wine’s
 working conditions—when he was employed by FWS, not
 OSC—rest on a dubious foundation.
     Moreover, OSC’s alleged failure to investigate logically
 cannot have changed Mr. Wine’s working conditions. Any
 hostile working conditions Mr. Wine experienced at FWS
 must have existed before he even complained to OSC, else
 he would have had no grounds for a complaint. Thus, ei-
 ther OSC has not yet been given adequate notice of
 Mr. Wine’s allegations, or any failure to act by OSC only
 maintained the status quo. OSC’s hypothetical ability to
 improve the status quo by investigating Mr. Wine’s allega-
 tions and recommending corrective action does not give the
 Board jurisdiction over an IRA appeal involving OSC. Cf.
 Wren v. Merit Sys. Prot. Bd., 681 F.2d 867, 871–72 (D.C.
 Cir. 1982) (holding that the Board has no authority to en-
 force OSC’s statutory requirement to investigate whistle-
 blower reprisals).
     The Whistleblower Protection Act offers Mr. Wine the
 opportunity to resolve any allegations he believes were not
 adequately investigated by OSC through filing an IRA ap-
 peal directed to FWS’s actions. Mr. Wine invoked that
 right for the Fall 2016 complaint already, as discussed in
 the 2017 IRA Decision. See Section I, supra. If any allega-
 tions were not exhausted before that IRA appeal—thereby
 depriving the Board of jurisdiction over those allegations
 in that appeal—the lack of jurisdiction was not for OSC’s
 failure to investigate or take action, but for Mr. Wine’s fail-
 ure to make those allegations to OSC with adequate
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 WINE    v. MSPB                                            7



 specificity. 2 After all, the OSC need not act for aggrieved
 persons to have exhausted their remedies before OSC. See
 Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir.
 1993) (“[I]f no action has been taken by the OSC within 120
 days . . . [an] employee [may] seek corrective action from
 the Board.”) (citing 5 U.S.C. § 1214(a)(3)(B)). Any IRA ap-
 peal Mr. Wine may still have lies against FWS, not OSC.
 Establishing Board jurisdiction in such an appeal may re-
 quire a new OSC complaint specifically making the unex-
 hausted allegations, if Mr. Wine has a basis for such a
 complaint despite having already been separated from
 FWS.
      Because the Board did not err in finding that Mr. Wine
 failed to identify a qualifying personnel action that OSC
 had taken against him, we affirm the Board’s dismissal of
 his appeal.
                        AFFIRMED
     No costs.




     2   In that appeal, the Administrative Judge also
 found that—assuming Mr. Wine had exhausted the allega-
 tions made here—those allegations were “discrete, unre-
 lated events, which taken together, do not constitute
 impermissible alterations in the terms and conditions of
 his employment.” Wine, 2017 MSPB LEXIS 5121 at *51.
 So, even if Mr. Wine’s allegations were properly raised
 against OSC, they would still not yield non-frivolous alle-
 gations of a personnel action under § 2302(a)(2)(A)(xii).
