Case: 19-1677   Document: 50     Page: 1    Filed: 02/07/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                     TRACY LEHR,
                       Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2019-1677
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. CH-1221-19-0002-W-1.
                 ______________________

                Decided: February 7, 2020
                 ______________________

    JAMES SOLOMON, Solomon, Maharaj & Kasimati, P.A.,
 Tampa, FL, for petitioner.

     STEPHEN FUNG, Office of General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 for respondent. Also represented by KATHERINE MICHELLE
 SMITH, TRISTAN LEAVITT.
                  ______________________

     Before PROST, Chief Judge, SCHALL and WALLACH,
                     Circuit Judges.
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 2                                              LEHR v. MSPB




 PROST, Chief Judge.
     Tracy Lehr petitions for review of a Merit Systems Pro-
 tection Board (“Board”) decision dismissing her Individual
 Right of Action (“IRA”) appeal for lack of jurisdiction. See
 Lehr v. Dep’t of Veteran Affairs, No. CH-1221-19-0002-W-
 1, 2018 WL 6682330 (M.S.P.B. Dec. 13, 2018) (“Decision”).
 We affirm.
                              I
      Ms. Lehr, who was, and still is represented by counsel,
 filed an IRA appeal with the Board raising allegations that
 she had been subjected to adverse personnel actions be-
 cause of protected whistleblower disclosures. An adminis-
 trative judge (“AJ”) entered an Order on Jurisdiction and
 Proof Requirements (“Order”). The Order stated that
 “[t]here is a question whether this appeal is within the
 Board’s jurisdiction.” J.A. 66 (emphasis removed). The Or-
 der therefore required Ms. Lehr to show that she had ex-
 hausted her administrative remedies at the Office of
 Special Counsel (“OSC”) and that she raised non-frivolous
 allegations regarding her whistleblower-related activity,
 both of which are required for the Board to have jurisdic-
 tion over the IRA appeal. J.A. 67, 72. The Order also
 stated that the AJ “will review only those alleged disclo-
 sures and personnel actions that were specifically raised to
 and exhausted at OSC.” J.A. 67.
     Ms. Lehr responded to the Order by filing a response
 (the “response”) with two attachments. She described
 these attachments as: (1) “the letter from OSC notifying
 [Ms. Lehr] of her [IRA] to appeal to the Board,” (the “clo-
 sure letter”); and (2) Ms. Lehr’s “complaint to OSC.”
 J.A. 81–82. Of relevance to this petition for review, in the
 complaint to OSC, in response to a box labelled “A. What
 Information Was Disclosed?,” only the following appeared:
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 LEHR v. MSPB                                                3




 J.A. 91.
     The Department of Veterans Affairs (“Agency”) re-
 sponded requesting the AJ “to enter an Order of Dismis-
 sal for want of jurisdiction pursuant to” the Order.
 J.A. 109 (emphasis in original). The Agency noted that the
 submitted OSC complaint “merely describes the whistle-
 blower disclosure” as the hiring of Dr. Leskosky. J.A. 110.
     The AJ issued an initial decision dismissing the IRA
 appeal for lack of jurisdiction. The AJ first noted that the
 closure letter “refer[red] to [Ms. Lehr’s] alleged disclosures
 broadly, stating that they regard ‘fraud and patient safety
 concerns.’” Decision, slip op. at 3. The AJ then noted that
 the OSC complaint’s “sole disclosure” was related to the
 hiring of Dr. Leskosky. Id. The AJ also noted that the OSC
 complaint “generally claim[ed] that veterans’ reports were
 erroneous” and that the “record contain[ed] no other docu-
 ments or any other evidence of any additional communica-
 tions between [Ms. Lehr] and OSC.” Id.
     The AJ then determined that the sole disclosure (i.e.,
 the hiring of Dr. Leskosky) failed to meet the standards of
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 4                                              LEHR v. MSPB




 a protected whistleblower disclosure. Id. at 4 (citing
 5 U.S.C. § 2302(b)(8)). Next the AJ found that the closure
 letter’s summation concerning “‘fraud and patient safety
 concerns’ [was] too vague and too broad to evidence wrong-
 doing.” Id. Ultimately, the AJ dismissed the appeal be-
 cause Ms. Lehr “failed to meet her burden of proving by
 preponderant evidence that the Board has jurisdiction to
 hear her IRA appeal.” Id. 4–5.
     The initial decision became the Board’s final decision
 and Ms. Lehr petitioned for our review. We have jurisdic-
 tion under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
 § 1295(a)(9).
                              II
     On petition for review, Ms. Lehr argues that her IRA
 appeal was improperly dismissed for lack of jurisdiction.
 She contends that the AJ incorrectly interpreted her com-
 plaint to OSC and that the AJ’s conclusions were incorrect
 and unsupported. See, e.g., Pet’r’s Br. 5–6, 15–16, 21–23.
 We address these arguments below.
                              A
     This court must affirm the Board’s decision unless the
 decision is: “(1) arbitrary, capricious, an abuse of discre-
 tion, or otherwise not in accordance with law; (2) obtained
 without procedures required by law, rule, or regulation
 having been followed; or (3) unsupported by substantial ev-
 idence.” 5 U.S.C. § 7703(c). The Board’s determination
 that it lacked jurisdiction is a question of law that we re-
 view de novo. Bennett v. Merit Sys. Prot. Bd., 635 F.3d
 1215, 1218 (Fed. Cir. 2011). The petitioner bears the bur-
 den of proving the Board’s jurisdiction over her appeal by
 a preponderance of the evidence. Id. “[A]lthough we may
 review freely the Board’s conclusion that it did not have
 jurisdiction . . . we are bound by the AJ’s factual determi-
 nations unless those findings are not supported by
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 LEHR v. MSPB                                                  5



 substantial evidence.” Bolton v. Merit Sys. Prot. Bd., 154
 F.3d 1313, 1316 (Fed. Cir. 1998).
      The Board has jurisdiction over an IRA appeal “if the
 appellant has exhausted [her] administrative remedies be-
 fore the OSC and makes ‘non-frivolous allegations’ of whis-
 tleblowing activity with evidence that the disclosure was a
 contributing factor in the agency’s personnel action.”
 Kalil v. Dep’t of Agric., 479 F.3d 821, 824 (Fed. Cir. 2007).
 In order “[t]o demonstrate exhaustion of [her] remedies,
 [an appellant] must show not only that [she] made a com-
 plaint to OSC, but that the disclosures and personnel ac-
 tions alleged in that complaint match the allegations made
 to the Board.” Cooper v. Merit Sys. Prot. Bd., 468 F. App’x
 977, 979 (Fed. Cir. 2012). An allegation is non-frivolous if
 it: “(1) [i]s more than conclusory; (2) [i]s plausible on its
 face; and (3) [i]s material to the legal issues in the appeal.”
 5 C.F.R. § 1201.4(s).
                                B
      Ms. Lehr first argues that the AJ incorrectly inter-
 preted the OSC complaint she submitted in response to the
 Order. She contends that the AJ “failed to consider the ad-
 ditional three pages of electronic text contained in text box
 ‘A’” in her submission and that the AJ should have known
 that the “‘+’ sign in the corner of the text box . . . denote[d]
 additional text [was] attached.” Pet’r’s Br. 5, 14–15. She
 also contends that the AJ improperly denied her request to
 submit additional evidence prior to rendering a decision
 and that the AJ should have first provided her notice that
 her response was deficient. Id. at 6, 22–23.
     Ms. Lehr’s arguments, however, ignore that the addi-
 tional three pages of the OSC complaint never became part
 of the record. Having not included the additional three
 pages, Ms. Lehr failed to show that the disclosures made in
 her OSC complaint match the disclosures she made in her
 IRA appeal. See Bennett, 635 F.3d at 1218 (“the peti-
 tioner . . . bears the burden of proving the MSPB’s
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 6                                                LEHR v. MSPB




 jurisdiction over her appeal by a preponderance of the evi-
 dence”). Instead, based on what was submitted, the AJ
 found Ms. Lehr only proved she exhausted her administra-
 tive remedies for one disclosure—the hiring of
 Dr. Leskosky. Based on Ms. Lehr’s submissions in re-
 sponse to the Order, we conclude that substantial evidence
 supports the AJ’s finding that the only disclosure Ms. Lehr
 proved to have raised to OSC was the hiring of
 Dr. Leskosky. 1
     Further, as the Government points out, and Ms. Lehr
 does not rebut, Ms. Lehr does not cite to any part of the
 record to show that she requested the opportunity to sub-
 mit additional evidence prior to the AJ rendering a deci-
 sion. See Resp’t’s Br. 23 n.6. 2 Rather, Ms. Lehr only cites
 to a motion for reconsideration which was received on the
 same day that the AJ rendered her decision. See Pet’r’s Br.
 22–23 (citing J.A. 766). In addition, Ms. Lehr cites to



     1    Ms. Lehr and her counsel were apparently aware
 that the response omitted the additional three pages of the
 OSC complaint. Specifically, Ms. Lehr admits to having
 “only retained” the incomplete “copy” of the OSC complaint
 that was attached to the response, and to requesting,
 through the Freedom of Information Act (“FOIA”), 5 U.S.C.
 § 552 (2012), a complete copy of the OSC complaint the day
 before filing the response. Pet’r’s Br. 5 n.1. Yet, in the re-
 sponse, Ms. Lehr’s counsel failed to apprise the AJ of
 Ms. Lehr’s pending FOIA request or the additional three
 pages of the OSC complaint omitted from the response, or
 to otherwise supplement the response with an “affidavit,
 sworn statement, or declaration” as was expressly permit-
 ted. J.A. 72–73. See generally J.A. 81–82. Unfortunately,
 the failure of Ms. Lehr’s counsel prevents Ms. Lehr from
 moving forward.
     2    In fact, Ms. Lehr’s counsel did not submit a Reply
 brief in this appeal.
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 LEHR v. MSPB                                                7



 Cahill v. Merit Systems Protection Board, 821 F.3d 1370
 (Fed. Cir. 2016), for the proposition that “the Board should
 have given notice of the suspected deficiencies.” Pet’r’s
 Br. 6. We find the reference to Cahill unpersuasive. First,
 in Cahill “there [was] no dispute about exhaustion.” Ca-
 hill, 821 F.3d at 1373. Further, Cahill focused on how the
 agency (not the AJ) challenged some elements of the peti-
 tioner’s allegations, but did not challenge the particular el-
 ement that the AJ later found deficient. See id. at 1375–
 76. In Cahill, we emphasized that the agency’s silence sug-
 gested that the agency did not find the particular element
 deficient. Id. Here, however, the Agency did challenge the
 sufficiency of Ms. Lehr’s submission. For example, the
 Agency requested “an Order of Dismissal for want of juris-
 diction.” J.A. 109 (emphasis removed). The Agency also
 pointed out that the disclosure in the submitted OSC com-
 plaint “merely describe[d]” the hiring of Dr. Leskosky and
 that the “Agency was unable to locate other disclosures in
 the OSC complaint form itself.” J.A. 110 & n.1. Accord-
 ingly, we do not find that Cahill supports Ms. Lehr’s argu-
 ments.
                               C
     Ms. Lehr argues that the AJ incorrectly found that “no
 disinterested observer with knowledge of this alleged dis-
 closure could reasonably conclude it evidences the type of
 wrongdoings protected under the WPEA [Whistleblower
 Protection Enhancement Act].” Pet’r’s Br. 15 (emphasis
 added). She also argues that the AJ incorrectly found that
 the closure letter’s “summation of [Ms. Lehr’s] disclosures
 concerning ‘fraud and patient safety concerns’ was too
 vague and too broad to evidence wrongdoing.” Id. at 15–
 16, 22.
     With respect to “this alleged disclosure,” Ms. Lehr does
 not explain how a disinterested observer could conclude
 that the hiring of Dr. Leskosky evidences the type of wrong-
 doing that the WPEA is intended to protect against.
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 8                                                LEHR v. MSPB




 Ms. Lehr also does not describe why the AJ erred in finding
 that the closure letter’s general reference of “fraud and pa-
 tient safety concerns” was “too vague and too broad to evi-
 dence wrongdoing.” For example, she neither argues nor
 attempts to explain how the closure letter matches the al-
 legations in her IRA appeal. Instead, Ms. Lehr states that
 she “would have clearly been able to further elaborate on
 her disclosures if given the opportunity.” See id. at 22.
 This argument, even if true, does not cure the deficiencies
 and does not demonstrate that the closure letter is not too
 vague and too broad to evidence wrongdoing. See also
 Cooper, 468 F. App’x at 979 (finding a “letter from the OSC
 in which the OSC advised [the petitioner] that it was clos-
 ing its investigation does not serve [the] purpose” of estab-
 lishing what disclosures were made to the OSC). We
 therefore see no reason to disturb the AJ’s findings.
                              III
     We have considered the other arguments raised by
 Ms. Lehr and find them unpersuasive. For the foregoing
 reasons we affirm.
                        AFFIRMED
                            COSTS
     The parties shall bear their own costs.
