                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MOHAN NIRALA,                                   DOCKET NUMBER
                 Appellant,                          DC-1221-16-0230-W-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: June 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mohan Nirala, Laurel, Maryland, pro se.

           Jack W. Rickert, Springfield, Virginia, 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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. 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, 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. Except as
     expressly MODIFIED by this Final Order to dismiss this IRA appeal for lack of
     jurisdiction on other grounds, we AFFIRM the initial decision.
¶2          Effective November 27, 2015, the agency removed the appellant from his
     excepted-service     position   as   a   GEOINT      Analyst     at   the   National
     Geospatial-Intelligence Agency because the revocation of his security clearance
     and access to classified information rendered him unqualified for this position.
     Initial Appeal File (IAF), Tab 1 at 10. The appellant filed an IRA appeal alleging
     that he was removed in reprisal for engaging in protected whistleblowing
     activity. 2   IAF, Tab 2 at 2. The administrative judge informed the appellant of
     the criteria for establishing jurisdiction over an IRA appeal and ordered him to
     submit proof that he exhausted his administrative remedies before the Office of
     Special Counsel (OSC). Id. at 3-4. The administrative judge also stated that he
     would dismiss the appeal for lack of jurisdiction if the appellant failed to respond
     to the order. Id. at 4.


     2
       The appellant filed an appeal with the Board challenging his removal. See MSPB
     Docket No. DC-0752-16-0189-I-1, Initial Appeal File (0752 IAF), Tab 1. The appellant
     raised several affirmative defenses on appeal, including a claim of whistleblower
     reprisal. 0752 IAF, Tab 1, Tabs 5-6, 10-14. Based on the written record, the
     administrative judge dismissed the appeal for lack of jurisdiction and forwarded his
     claim of whistleblower reprisal for docketing as this IRA appeal. 0752 IAF, Tab 15,
     Initial Decision at 5 n.4.
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¶3         After the appellant failed to respond to the order, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.           IAF,
     Tab 3, Initial Decision (ID). In the decision, the administrative judge found that
     the appellant failed to prove that he exhausted his administrative remedies before
     OSC. ID at 2-3. The appellant filed a petition for review and submitted a closure
     letter from OSC, issued 1 day before the initial decision, as proof of exhaustion.
     Petition for Review (PFR) File, Tab 2 at 58.
¶4         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 activity protected by the Whistleblower
     Protection Enhancement Act of 2012 (WPEA); and (2) the disclosure was a
     contributing factor in the agency’s decision to take or fail to take a personnel
     action.      See    Rebstock      Consolidation     v.    Department      of    Homeland
     Security, 122 M.S.P.R. 661, ¶ 9 (2015).
¶5         Although, on review, the appellant submitted new evidence that he
     exhausted his administrative remedies before OSC, we find that the Board has no
     jurisdiction over this IRA appeal because his former employer is not an agency
     covered under the WPEA. 3 Under 5 U.S.C. § 2302(a)(2)(C)(ii), “agency” means
     an Executive agency and the Government Publishing Office, but specifically
     excludes     the    appellant’s    former      employing      agency,     the    National
     Geospatial-Intelligence Agency, from coverage. See Presidential Policy Directive

     3
       On review, the appellant submitted a copy of OSC’s December 29, 2015 letter closing
     its file on his complaint alleging that his former employer, the National
     Geospatial-Intelligence Agency, removed him and revoked his security clearance in
     reprisal for whistleblowing, discriminated against him based on race and national
     origin, and retaliated against him for filing equal employment opportunity complaints.
     PFR File, Tab 2 at 58. In the letter, OSC stated that it had no jurisdiction to investigate
     allegations of prohibited personnel practices filed against the National
     Geospatial-Intelligence Agency because 5 U.S.C. § 2302(a)(2)(C)(ii)(I) specifically
     excludes that agency from coverage. Id. OSC also provided the appellant with a link to
     a website with information about how employees of the intelligence community can
     seek redress for whistleblower reprisal. Id.
                                                                                      4

19 (Oct. 19, 2012). 4        Because the appellant’s former employer is specifically
excluded from the generally applicable definition of “agency” covered under the
WPEA, we find that the Board has no jurisdiction over this IRA appeal.              We
therefore deny his petition for review.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.
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 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

4
  Presidential Policy Directive 19 (PPD-19), “Protecting Whistleblowers with Access to
Classified Information,” requires the National Geospatial-Intelligence Agency and other
covered agencies to provide an internal review process for retaliation claims by
employees “(1) serving in the Intelligence Community or (2) who are eligible for access
to classified information.” PPD-19 also provides for an Inspector General External
Review Panel process. PPD-19, ¶ C.
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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
                                                                                  6

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.
