                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EARL MARTIN,                                    DOCKET NUMBER
                         Appellant,                  NY-3443-15-0156-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 30, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           William Davis, Montrose, New York, for the appellant.

           Kathleen J. Tulloch, Esquire, Brooklyn, New York, 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 his 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of 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, 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 appeal, the appellant claimed that the agency committed harmful
     procedural error and engaged in prohibited personnel practices when it failed to
     select him for promotion to a Maintenance Worker position at the agency’s
     hospital in Montrose, New York. Initial Appeal File (IAF), Tab, Tab 1. With his
     appeal, the appellant provided a partial copy of a complaint he filed with the
     Office of Special Counsel (OSC) about the same selection process. Id. at 9-19.
     The administrative judge issued an acknowledgment order, along with two
     separate jurisdictional orders, in which he informed the appellant that the Board
     lacks jurisdiction over such nonselections for promotion and set forth the
     appellant’s burden to establish jurisdiction over his appeal by, among other
     things, making nonfrivolous allegations that the agency’s decision was either
     made    in   retaliation   for   protected   whistleblowing,   was   the   product   of
     discrimination based on uniformed service, or was made in violation of his
     veterans’ preference rights. IAF, Tabs 2, 4-5. The appellant did not respond by
     the latest of the dates set forth for his responses in the administrative judge’s
     orders, and the administrative judge subsequently dismissed the appeal for lack of
     jurisdiction based on the written record. IAF, Tab 10, Initial Decision (ID). On
     the day after the issuance of the initial decision, the appellant faxed a letter to the
                                                                                            3

     regional office in which he argued the merits of his nonselection claim, but he
     failed to address the jurisdictional issue. 2 IAF, Tab 12.
¶3           In his timely-filed petition for review, the appellant asserts that OSC
     dismissed his complaint because his union had unilaterally filed a grievance
     under the parties’ negotiated procedure. Petition for Review (PFR) File, Tab 1
     at 3.    Although the appellant includes the first page of a letter in which OSC
     acknowledges receipt of his complaint, id. at 8, he fails to offer any support for
     his assertion that OSC has closed its investigation into his complaint. He argues
     that “the administrative judge acted pre-maturely” in dismissing the appeal for
     lack of jurisdiction and accuses her of bias.          Id. at 2-4.   The appellant also
     contends that the Board has jurisdiction over the appeal as a mixed case
     regardless of whether the action is otherwise appealable to the Board because he
     raised the matter of discrimination. 3 Id. at 3. He resubmits the three-page letter
     he submitted after the administrative judge issued the initial decision. Id. at 9-11.
     The appellant does not challenge the administrative judge’s findings that he failed
     to establish jurisdiction under either the Veterans Employment Opportunities Act
     of 1998 or the Uniformed Services Employment and Reemployment Rights Act of
     1994 (codified at 38 U.S.C. §§ 4301-4333). See ID at 3-5.
¶4           The Board has jurisdiction over an individual right of action (IRA) appeal if
     the appellant has exhausted his administrative remedies before OSC and makes

     2
         The administrative judge returned this submission to the appellant. IAF, Tab 13.
     3
       The Board lacks jurisdiction over the appellant’s claims that the agency discriminated
     against him because such allegations do not provide the Board with an independent
     source of jurisdiction. Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶¶ 8-12
     (2005); see Perlmutter v. Department of the Air Force, 41 M.S.P.R. 38, 39 (1989)
     (finding that the appellant failed to meet his burden of proof to establish Board
     jurisdiction over his performance rating and that the Board could not hear his
     discrimination complaint absent an otherwise appealable action). Nor is this appeal a
     mixed case because the appellant’s nonselection for promotion is not otherwise
     appealable to the Board and a mixed case involves both an appealable matter and a
     claim of discrimination. See Conforto v. Merit Systems Protection Board, 713 F.3d
     1111, 1118 (Fed. Cir. 2013) (citing 5 U.S.C. § 7702(a)(1)).
                                                                                      4

     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).           An
     appellant has not exhausted his OSC remedy unless he filed a complaint with
     OSC and either OSC notified him that it was terminating its investigation of his
     allegations or 120 calendar days have passed since he first sought corrective
     action.   5 U.S.C. § 1214(a)(3); Simnitt v. Department of Veterans Affairs,
     113 M.S.P.R. 313, ¶ 8 (2010).
¶5         The appellant apparently filed his OSC complaint contemporaneously with
     his Board appeal. See ID at 5; see also IAF, Tab 1 at 16. Therefore, we agree
     with the administrative judge that, at the time he dismissed this IRA appeal, the
     appellant had not exhausted his OSC remedy and that the Board lacked
     jurisdiction over this IRA appeal. We therefore affirm the initial decision in that
     regard.
¶6         With his petition for review, the appellant submitted a letter from OSC,
     which indicates that it had received the appellant’s complaint as of April 9, 2015,
     PFR File, Tab 1 at 8, and it is therefore clear that 120 calendar days have passed
     since the appellant first sought corrective action with OSC and he may now file
     an IRA appeal, 5 U.S.C. § 1214(a)(3); Simnitt, 113 M.S.P.R. 313, ¶ 8.
     Additionally, because the nonselection at issue is not otherwise appealable to the
     Board, the choice to use the negotiated grievance procedure does not appear to
     constitute an election of remedies under 5 U.S.C. § 7121(g) that would bar the
     filing of a subsequent IRA appeal.      Edwards v. Department of the Air Force,
     120 M.S.P.R. 307, ¶ 12 (2013). Nevertheless, even though the Board’s practice is
     generally to adjudicate an appeal that was premature when it was filed but
     becomes ripe while pending with the Board, e.g., Jundt v. Department of Veterans
     Affairs, 113 M.S.P.R. 688, ¶ 7 (2010), for the following reasons, we decline to
     forward the appeal to the field office for further adjudication.
                                                                                     5

¶7         Although the appellant complains that the agency committed a prohibited
     personnel practice regarding the selection process for the position at issue, he
     never specifically alleges that the agency declined to select him for promotion in
     reprisal for an alleged protected disclosure. See IAF, Tab 1; PFR File, Tab 1.
     Instead, he asserts that his complaint itself “represents a disclosure matter” and
     makes his IRA appeal appropriate for consideration by OSC and within the
     Board’s jurisdiction. PFR File, Tab 1 at 2. However, if his complaint is also his
     disclosure, then it cannot have been the reason for the agency’s decision not to
     select him for promotion because, under that scenario, the agency took the
     personnel action before the appellant even made his alleged protected disclosure.
     See, e.g., Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 21
     (2011); Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 12 (2007), aff’d,
     278 F. App’x 1009 (Fed. Cir. 2008). Moreover, because the appellant has not
     shown that he raised a whistleblowing claim before OSC, he has not exhausted
     OSC proceedings as to any whistleblowing allegation he may have made in this
     Board appeal.     See, e.g., Finston v. Health Care Financing Administration,
     83 M.S.P.R. 100, ¶¶ 9-10 (1999).
¶8         Accordingly, we find that the administrative judge correctly dismissed the
     appellant’s appeal for lack of jurisdiction.

                     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
     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).
                                                                                              6

        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.
        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
                                                                                7

court.   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.
