                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CARLTON EUGENE HOOKER, JR.,                     DOCKET NUMBER
                 Appellant,                          AT-1221-14-0397-W-2

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 15, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Carlton Eugene Hooker, Jr., Saint Petersburg, Florida, pro se.

           Karen L. Mulcahy, Esquire, Bay Pines, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or 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, 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).

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2           The appellant filed an appeal, in which he alleged in pertinent part that, in
     response to protected disclosures made in his 2009 equal employment opportunity
     (EEO) complaint and in his 2009 Office of Special Counsel (OSC) complaint, the
     agency proposed his removal. Hooker v. Department of Veterans Affairs, MSPB
     Docket No. AT-1221-14-0397-W-1 (W-1), Initial Appeal File (IAF), Tab 1. The
     appellant further alleged that the agency’s action in this regard was taken in
     violation of 5 U.S.C. § 1214(f) and was a prohibited personnel practice (PPP)
     pursuant to 5 U.S.C. § 2302(b)(9). W-1, IAF, Tab 1. The appeal was dismissed
     without prejudice, pending a resolution of his related federal district court case
     with the agency. W-1, IAF, Tab 23.
¶3           The appeal was refiled. Hooker v. Department of Veterans Affairs, MSPB
     Docket No. AT-1221-14-0397-W-2 (W-2), IAF, Tab 1. The administrative judge
     dismissed the appeal for lack of jurisdiction. W-2, IAF, Tab 10, Initial Decision
     (ID).    Regarding the appellant’s disclosure in his 2009 EEO complaint, the
     administrative judge determined that: (1) the disclosure was not protected under
                                                                                            3

     the Whistleblower Protection Act (WPA) because it was covered under 5 U.S.C.
     §§ 2302(b)(1) and (b)(9), and not section 2302(b)(8); (2) the Whistleblower
     Enhancement Protection Act of 2012 (WPEA) permitted consideration of certain
     types of section 2302(b)(9) activity in a whistleblowing appeal, but the appellant
     did not show that his EEO complaint concerned “remedying a violation of
     paragraph (8)”; and (3) even if the appellant’s EEO complaint involved
     remedying a violation of section 2302(b)(8), the relevant events occurred well
     before the effective date of the WPEA, and the WPEA provisions regarding
     section 2302(b)(9) were not entitled to retroactive effect.        ID at 6-10 (citing,
     among other cases, Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629
     (2014)). Regarding the appellant’s 2009 OSC complaint and his later 2014 OSC
     complaint, the administrative judge noted that these complaints were “founded
     upon 5 U.S.C. [§] 2302(b)(9),” and he likewise concluded that these complaints
     did not form a basis for Board jurisdiction. ID at 10 (explaining that the Board
     held in Hooker that the WPEA should not be applied retroactively so as to grant
     the Board jurisdiction over IRA appeals under this section). The administrative
     judge also found that an alleged violation of 5 U.S.C. § 1214(f) 2 does not warrant
     a different outcome because this statutory section does not provide an
     independent basis for Board jurisdiction. ID at 10.        Because of his findings on
     the jurisdictional issue, the administrative judge noted that he did not need to
     address the agency’s arguments regarding the applicability of collateral estoppel
     and/or res judicata. ID at 11.
¶4         The appellant filed a petition for review, the agency filed a response, and
     the appellant filed a reply. W-2, Petition for Review (PFR) File, Tabs 1, 3-4. On
     review,   the   appellant   appears    to   challenge    the   administrative    judge’s


     2
      This statutory section reads: “During any investigation initiated under this subchapter,
     no disciplinary action shall be taken against any employee for any alleged prohibited
     activity under investigation or for any related activity without the approval of the
     Special Counsel.”
                                                                                             4

     jurisdictional analysis. He reiterates that he made protected disclosures in his
     2009 EEO complaint and his 2009 OSC complaint. PFR File, Tab 1 at 12. He
     also asserts that the administrative judge improperly denied his request to join
     this matter with his chapter 75 appeal, Hooker v. Department of Veterans Affairs,
     MSPB Docket No. AT-0752-10-0367-B-4. PFR File, Tab 1 at 15-16. Finally, the
     appellant also includes several lengthy exhibits.           See id. at 20-89, Tab 4 at
     16-100.
¶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).             We agree with the
     administrative judge that the appellant has not made a nonfrivolous allegation of
     Board jurisdiction.
¶6        Regarding his 2009 EEO complaint, the administrative judge correctly
     noted that in Hooker, 120 M.S.P.R. 629, ¶¶ 8-15, the Board declined to give
     retroactive effect to section 101(b)(1)(A) of the WPEA as it applied to the PPP
     described in 5 U.S.C. § 2302(b)(9)(B). The rationale applied by the Board in
     Hooker    was   subsequently    extended   to        PPPs    described   at   5    U.S.C.
     § 2302(b)(9)(A)(i) and (b)(9)(C). See, e.g., Miller v. Federal Deposit Insurance
     Corporation, 122 M.S.P.R. 3, ¶ 15 (2014) (discussing the PPP described at
     section    2302(b)(9)(A)(i));    Colbert        v.     Department        of       Veterans
     Affairs, 121 M.S.P.R. 677, ¶ 7 (2014) (discussing the PPPs described at sections
     2302(b)(9)(A)(i) and (b)(9)(C)). Thus, because the relevant WPEA provisions are
     not entitled to retroactive effect, and the appellant’s EEO complaint is not a
     protected disclosure under the WPA, the appellant did not make a nonfrivolous
     allegation of a protected disclosure in his 2009 EEO complaint. See Mudd v.
     Department of Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013). As noted by
                                                                                             5

     the administrative judge, the appellant appeared to rely on 5 U.S.C. § 2302(b)(9)
     to support his assertion that his 2009 OSC complaint was protected activity, and
     we also discern no error with the administrative judge’s conclusion that he did not
     make a nonfrivolous allegation of a protected disclosure in this regard. 3 Finally,
     the appellant has not persuaded us that the administrative judge erred in
     concluding that the statute at 5 U.S.C. § 1214(f) was not an independent source of
     Board jurisdiction. See Maddox v. Merit Systems Protection Board, 759 F.2d 9,
     10 (Fed. Cir. 1985) (the Board’s jurisdiction is limited to those matters over
     which it has been given jurisdiction by law, rule, or regulation).
           The administrative judge denied the appellant’s request to join this matter
     with Hooker v. Department of Veterans Affairs, MSPB Docket No. AT-0752-10-
     0367-B-4, and he also denied the appellant’s reconsideration request. See ID at 2
     n.1. We discern no error with this decision. Given the different nature of the
     appeals—a chapter 75 appeal and an IRA appeal—coupled with the fact that each
     appeal had been proceeding before different administrative judges, we conclude
     that joinder would not expedite processing of the cases and/or would adversely
     affect the parties. See 5 C.F.R. § 1201.36.
¶7         On review, the appellant includes: a May 20, 1998 Equal Employment
     Opportunity Commission Directives Transmittal and the Compliance Manual; the
     November 13, 2009 notice of proposed removal; the October 30, 2009 EEOC
     Counselor’s report; the December 14, 2009 correspondence regarding partial
     acceptance of the appellant’s EEO complaint; the 2009 decision letter on the
     proposed removal; and the March 4, 2010 Investigative report in the EEO matter.

     3
       The appellant stated in his response to the jurisdiction order that the personnel action
     that he was appealing was the proposed removal. W-1, IAF, Tab 20 at 15-16; see ID at
     10. Although not specifically mentioned by the administrative judge, we note that the
     agency proposed his removal prior to the filing of the 2009 OSC complaint. Compare
     W-1, IAF, Tab 6 at 86-91 (November 13, 2009 notice of proposed removal), with id. at
     141-54 (November 18, 2009 OSC complaint). His 2009 OSC complaint therefore could
     not have been a contributing factor in the agency’s decision to propose his removal.
     See McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶ 22 (2008).
                                                                                    6

PFR File, Tab 1 at 20-89. It appears that this documentation was included in the
record below, and thus, it is not new evidence.        Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980). Even if this evidence could somehow be
considered “new” evidence, it does not change our analysis of the jurisdictional
issue or our finding that the administrative judge correctly dismissed the 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).
        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.
                                                                                  7

     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 a list of attorneys who have expressed
interest in providing 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.
