                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STACEY L. HILL,                                 DOCKET NUMBER
                         Appellant,                  CH-1221-15-0508-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: July 22, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Stacey L. Hill, Evansville, Indiana, pro se.

           Michael M. McFatridge, Esquire, Danville, Illinois, 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 her 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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         The appellant filed an IRA appeal in which she alleged that the agency
     retaliated against her for her protected disclosures.    The administrative judge
     dismissed the appeal for lack of jurisdiction without a hearing.                The
     administrative judge found that the appellant exhausted her administrative
     remedies with the Office of Special Counsel (OSC) as to some of her claims, but
     not as to her claims that the agency created a hostile working environment and
     threatened to remove her. Initial Appeal File (IAF), Tab 25, Initial Decision (ID)
     at 7-10.   The administrative judge also found that the appellant made a
     nonfrivolous allegation that her disclosure about Dr. H.’s patient care was
     protected, but failed to make a nonfrivolous allegation that her disclosure that her
     manager engaged in gross mismanagement by not giving her enough work to do
     was protected. ID at 4‑7. The administrative judge also found that the appellant
     failed to make a nonfrivolous allegation that she was affected by a personnel
     action because she failed to elaborate on her claims that the agency subjected her
     to a “terrible eval” and “stopped [her] from any increases.” ID at 11‑13.
                                                                                      3

¶3         The Board has jurisdiction over an IRA appeal if the appellant exhausts her
     administrative remedies before OSC and makes nonfrivolous allegations that:
     (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) 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).     See, e.g., Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6
     (2014).      The appellant is entitled to a hearing only once jurisdiction is
     established, and that hearing is on the merits, not on jurisdiction.     Graves v.
     Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016).
¶4         The appellant does not make a serious challenge to the initial decision in
     her petition for review. She asserts that the agency mistreated her, singled her
     out, treated her differently from other employees, and was not receptive to her
     disclosures.    Petition for Review (PFR) File, Tab 1 at 5-8.      None of these
     arguments provides any basis for review because they do not allege or show any
     error in the initial decision.
¶5         The appellant also asserts that she has new evidence that she did not submit
     to the administrative judge because the administrative judge did not request it.
     PFR File, Tab 1 at 6.      The appellant appears to be referring to the discovery
     responses that she submits for the first time on review.       Id. at 10-20.   The
     discovery responses do not include any documents, merely the appellant’s
     narrative answers to the agency’s questions. If the appellant believes that the
     responses contain information that would help her case, she does not identify
     what that information might be. To the extent that the appellant’s responses may
     contain further elucidation on her pleadings, the administrative judge ordered her
     to provide additional information concerning her claims and the appellant did not
     do so. IAF, Tabs 12, 23‑24.
¶6         The appellant contends for the first time on review that the agency barred
     her from applying for education assistance. PFR File, Tab 1 at 8. The Board will
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     not consider an argument raised for the first time in a petition for review absent a
     showing that it is based on new and material evidence not previously available
     despite   the    party’s     due   diligence.     Banks       v.    Department     of   the
     Air Force, 4 M.S.P.R. 268, 271 (1980).           The appellant has not made such
     a showing.
¶7        Accordingly, we affirm the initial decision.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           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
     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.
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      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 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 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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
