                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL N. OHNSTAD,                             DOCKET NUMBER
                  Appellant,                         SF-315H-15-0101-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: July 24, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Michael N. Ohnstad, Barstow, California, pro se.

           Loren L. Baker, Esquire, Barstow, California, 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
     regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                      BACKGROUND
¶2        The appellant was terminated from his Maintenance Worker position during
     his probationary period, effective October 14, 2014.       See Initial Appeal File
     (IAF), Tab 7 at 5, Tab 9, Subtab 4a. The appellant filed a Board appeal and
     requested a hearing. IAF, Tab 1, Tab 4 at 2. During the pendency of the appeal,
     it appeared that the appellant was also alleging reprisal for whistleblowing
     activity, a violation of his veterans’ preference rights pursuant to the Veterans
     Employment Opportunities Act of 1998 (VEOA), and a violation of the
     Uniformed Services Employment and Reemployment Rights Act of 1994
     (codified at 38 U.S.C. §§ 4301-4333) (USERRA).         See, e.g., IAF, Tabs 1, 4-5,
     11. In response to the administrative judge’s jurisdictional orders, the appellant
     submitted correspondence that he received from the Office of Special Counsel
     (OSC), and he clarified that he was not claiming a violation of VEOA or
     USERRA. See IAF, Tab 17 at 65-68.
¶3        The administrative judge issued an initial decision, which dismissed the
     appeal for lack of jurisdiction without holding the appellant’s requested hearing.
     IAF, Tab 19, Initial Decision (ID). In pertinent part, the administrative judge
                                                                                         3

     found that:     (1) the Board lacks jurisdiction over the appeal under chapter 75
     because   the     appellant   was   not   an   employee   pursuant    to   5   U.S.C.
     § 7511(a)(1)(A)(i) or (ii), and he failed to nonfrivolously allege that his
     termination during his probationary period was based on partisan political reasons
     or marital status; (2) the Board also lacks jurisdiction over the appeal as an
     individual right of action (IRA) appeal because the appellant has not proven by
     preponderant evidence that he exhausted his administrative remedies with OSC;
     (3) the appellant withdrew his USERRA and VEOA claims; and (4) the Board
     lacks jurisdiction over the appellant’s remaining contentions, including that the
     agency committed harmful procedural error, and that he was subjected to
     discrimination, prohibited personnel practices, and violations of law. ID at 4-10.
     The appellant has filed a petition for review. Petition for Review (PFR) File,
     Tab 2. The agency did not file a response.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶4         The appellant appears to argue on review that the administrative judge erred
     in his conclusion on the administrative exhaustion issue, he alleges fraud, waste,
     and abuse by agency management, and he includes a copy of OSC’s December 30,
     2014 correspondence. PFR File, Tab 2 at 2-3. 2 The appellant also appears to
     contend that the administrative judge erred by not issuing subpoenas on his
     behalf. PFR File, Tab 2. For the following reasons, the appellant’s petition for
     review does not warrant a different outcome.
     The administrative judge correctly found that the Board lacks jurisdiction over
     this case as an IRA appeal.
¶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 made a disclosure described under 5 U.S.C. § 2302(b)(8),

     2
       OSC’s December 30, 2014 letter is not new evidence because it was already in the
     record below. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980); see
     also IAF, Tab 17 at 68; ID at 7-8.
                                                                                      4

     or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
     (C), or (D); and (2) the disclosure or protected activity 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). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department
     of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
¶6         Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
     action from OSC before seeking corrective action from the Board, and the
     Board’s jurisdiction is limited to the issues raised before OSC. Briley v. National
     Archives and Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001).
     The appellant bears the burden of showing that he sought corrective action from
     OSC and that he exhausted his administrative remedies there. Id. To meet his
     burden to show administrative exhaustion, the appellant must provide OSC a
     sufficient basis to pursue an investigation which might have led to corrective
     action. Id. In other words, the appellant must articulate with reasonable clarity
     and precision before OSC the basis for his complaint of reprisal for
     whistleblowing activity. Id.; Coufal v. Department of Justice, 98 M.S.P.R. 31,
     ¶ 14 (2004). An appellant may demonstrate exhaustion through his initial OSC
     complaint, evidence that he amended the original complaint, including but not
     limited to OSC’s determination letter and other letters from OSC referencing any
     amended allegations, and the appellant’s written responses to OSC referencing
     the   amended     allegations.       Mason     v.   Department     of   Homeland
     Security, 116 M.S.P.R. 135, ¶ 8 (2011).
¶7         As discussed by the administrative judge in the initial decision, the record
     contains an October 16, 2014 letter to the appellant from the OSC Disclosure
     Unit, the appellant’s November 17, 2014 letter to OSC, and a December 30, 2014
     letter to the appellant from the OSC Complaints Examining Unit. IAF, Tab 5,
                                                                                          5

     Exhibit E, Tab 17 at 67-68; see ID at 7-8. 3 Based on the limited evidence in the
     record, we are not persuaded that the appellant met his burden to show that he
     exhausted his administrative remedies with OSC. Importantly, the appellant has
     not proven that he provided OSC with sufficient factual information, such as his
     protected disclosures, the date he made these alleged disclosures, and/or why he
     believed that his disclosures were a contributing factor in the termination
     decision, so that OSC could investigate a claim of reprisal for whistleblowing
     activity.   Additionally, it does not appear that OSC construed the appellant’s
     submissions as making a claim of reprisal for whistleblowing activity because
     neither letter referenced the relevant statutory provisions or provided him with
     Board appeal rights for an IRA appeal. See IAF, Tab 17 at 67-68.
¶8         Under these circumstances, we discern no error with the administrative
     judge’s conclusion that the appellant failed to establish that he raised before OSC
     any purportedly protected disclosures of information for which the agency
     retaliated against him by terminating his employment.           See ID at 8 (citing
     Mason, 116 M.S.P.R. 135, ¶ 8). 4       Because the appellant did not exhaust his
     administrative remedies with OSC, we need not address the remaining
     jurisdictional requirements for his IRA appeal. See Miller v. Federal Deposit
     Insurance    Corporation,    122    M.S.P.R.    3,   ¶ 10   (2014)   (exhaustion    of


     3
       It does not appear that the appellant included in the record below his initial OSC
     complaint, OSC’s preliminary determination letter, or his response to OSC’s
     preliminary determination letter. See IAF, Tab 17 at 68.
     4
        Although not raised by the appellant, we considered whether his initial
     correspondence to OSC, as described in OSC’s October 16, 2014 letter, or his
     complaints to the Marine Corps Logistics Base Barstow Command Inspector General or
     the Inspector General of the Marine Corps could constitute protected disclosures
     pursuant to 5 U.S.C. § 2302(b)(8)(B)(i) or (ii). See, e.g., IAF, Tab 17 at 67, 74-76,
     81-83. Because it appears that the appellant did not initiate contact with any of these
     entities until after his termination, any purported disclosures therein could not have
     been a contributing factor in the agency’s decision to terminate him. See Kukoyi v.
     Department of Veterans Affairs, 111 M.S.P.R. 404, ¶ 11 (2009), overruled on other
     grounds by Mason, 116 M.S.P.R. 135, ¶ 26 n.7.
                                                                                      6

      administrative remedies before OSC is a jurisdictional prerequisite to raising an
      IRA appeal before the Board); see also supra ¶ 5.
      The administrative judge correctly determined that the Board lacks jurisdiction
      over this matter as an appeal under chapter 75, and that the appellant withdrew
      his VEOA and USERRA claims.
¶9         The appellant does not challenge the administrative judge’s finding that the
      Board lacks jurisdiction over his appeal under chapter 75, and we discern no basis
      for disturbing this well-reasoned finding on review. See Crosby v. U.S. Postal
      Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
      administrative judge’s findings where she considered the evidence as a whole,
      drew appropriate inferences, and made reasoned conclusions). Furthermore, he
      does not contest the administrative judge’s findings that he withdrew his
      USERRA and VEOA claims, and he fails to otherwise raise a basis under which
      the Board could have jurisdiction over his appeal.
¶10        Finally, because the administrative judge properly dismissed the appeal for
      lack of jurisdiction, there was no need for him to issue subpoenas on the
      appellant’s behalf.   See Nortz v. Department of Veterans Affairs, 47 M.S.P.R.
      526, 531-33 (1991) (where the Board did not have jurisdiction over the appeal,
      the administrative judge did not err in denying the appellant’s request for
      discovery and for the issuance of subpoenas).

                      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
                                                                                        7

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.
        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
                                                                                8

at   http://www.mspb.gov/probono for      information    regarding    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.
