                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JIMMY WALKER,                                   DOCKET NUMBER
                 Appellant,                          AT-1221-14-0005-W-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 19, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Jimmy Walker, Glennville, Georgia, pro se.

           Asmaa Abdul-Haqq, Fort Stewart, Georgia, 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 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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, 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 filed an individual right of action (IRA) appeal with the
     Board after receiving written notification from the Office of Special Counsel
     (OSC) that OSC terminated its investigation of the appellant’s allegations of
     prohibited personnel practices under 5 U.S.C. § 2302(b)(12). Initial Appeal File
     (IAF), Tab 1 at 5, 27-30. The appellant alleged that, effective January 31, 2011,
     the agency subjected him to several performance-based actions, including an
     official written reprimand, a poor performance rating, and a reassignment to a
     nonsupervisory position, without proper process or procedures. Id. at 3-5. The
     administrative judge issued an order to show cause why the appeal was within the
     Board’s IRA jurisdiction, because the initial appeal identified no protected
     whistleblowing disclosure made by the appellant. IAF, Tab 3. In his response,
     the appellant stated that his filing with OSC was not based on whistleblowing;
     rather, he argued that some of the issues he raised in his February 15, 2011
     grievance regarding the January 31, 2011 agency actions could be “arguably
     perceived as reason to retaliate,” and that he was “blowing the whistle on what
                                                                                     3

     [he] believe[s] to be a prohibited practice.” IAF, Tab 6 at 4. He further asserted
     that the challenged actions could have been taken in retaliation for participating
     in an equal employment opportunity (EEO) case based on sex discrimination, id.,
     and he alleged that the agency committed harmful procedural errors in taking
     these actions, id. at 4-6. The administrative judge dismissed the appeal based on
     the parties’ written submissions, finding that none of the appellant’s filings
     before the Board or OSC identified a protected whistleblowing disclosure, and
     thus the Board lacks IRA jurisdiction. IAF, Tab 8, Initial Decision (ID) at 2-3.
     In addition, the administrative judge found that the alleged personnel actions are
     not directly appealable to the Board and the alleged prohibited personnel
     practices claim is not reviewable absent an otherwise appealable action. ID at
     3-4; see IAF, Tab 6 at 4-5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶3         The appellant argues that the Board has jurisdiction over his appeal.
     Petition for Review (PFR) File, Tab 1. The Board has jurisdiction over appeals
     only from the types of agency actions specifically enumerated by law, rule, or
     regulation. Perez v. Merit Systems Protection Board, 931 F.2d 853, 855 (Fed.
     Cir. 1991). Appealable actions under 5 U.S.C. chapter 75 include: a removal; a
     suspension for more than 14 days; a reduction in grade; a reduction in pay; and a
     furlough of 30 days or less. 5 U.S.C. §§ 7512, 7513(d). In addition, a reduction
     in grade or removal for unacceptable performance may be appealable to the Board
     under 5 U.S.C. § 4303.          Allegations of prohibited personnel practices
     under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction.
     Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980).
¶4         The appellant has failed to make a nonfrivolous allegation of Board
     jurisdiction.   He filed a prohibited personnel practices complaint with OSC
     alleging that he was subject to a poor performance evaluation, official reprimand,
     and reassignment, and reiterated these claims on review. IAF, Tab 1 at 15-17;
                                                                                         4

     PFR File, Tab 1 at 2. Although the alleged actions may constitute “personnel
     actions” under 5 U.S.C. § 2302(a)(2)(A) for the purposes of evaluating prohibited
     personnel practices under 5 U.S.C. § 2302(b), such practices are not
     independently reviewable by the Board absent otherwise appealable actions. See
     Wren, 2 M.S.P.R. at 2.       The appellant has made no allegation that he has
     experienced a reduction in grade or pay as part of the reassignment, or that he
     was suspended for any period of time or removed from his position. Thus, the
     appellant has alleged no basis for Board appellate jurisdiction under 5 U.S.C
     chapters 43 or 75. See 5 U.S.C. §§ 4303(a), 7512-13.
¶5         The appellant also has failed to show error in the administrative judge’s
     finding that the Board lacks jurisdiction over the appellant’s claims as an IRA
     appeal.   See 5 U.S.C. § 1221(a). The Board has jurisdiction over an IRA appeal
     concerning   whistleblower     reprisal   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). The appellant has admitted in his pleadings that he
     has made no protected disclosure and he has not alleged that the alleged
     personnel actions were taken in retaliation for any whistleblowing activity. IAF,
     Tab 6 at 4; PFR File, Tab 1 at 4-5.
¶6         The appellant’s initial appeal included a vague assertion that the challenged
     personnel actions could have been taken in retaliation for his participation in an
     EEO case based on sex discrimination. IAF, Tab 6 at 4. However, he clarified in
     his petition for review that “the facts relevant to this case [are] that an employee
     made a frivolous complaint of gender discrimination or harassment against [him,]
     and the agency, through its own informal AR 15-6 investigation, found that there
     was no substance to the complaint.” PFR, Tab 1 at 9. The appellant then asserted
     that despite the results of the investigation, “the agency head still contemplated,
                                                                                      5

     by overt means, to charge [him] with charges unrelated to the employee’s initial
     complaint and imposed cumulative punishment against” the appellant. Id. To the
     extent that the appellant still asserts retaliation for participation in an EEO sex
     discrimination   complaint,   we    note   that   the   Whistleblower   Protection
     Enhancement Act of 2012 (WPEA), which gives an employee the right to seek
     corrective action before the Board for personnel actions taken against the
     employee because of “testifying for or otherwise lawfully assisting any
     individual” in the exercise of a right, does not change the result.       5 U.S.C.
     §§ 1221(a), 2302(b)(9)(B). The Board held in Hooker v. Department of Veterans
     Affairs, 120 M.S.P.R. 629, ¶ 13 (2014), that retroactive application of section
     101(b)(1)(A) of the WPEA, as it pertains to the prohibited personnel practice set
     forth at 5 U.S.C. § 2302(b)(9)(B), is impermissible because it would increase a
     party’s liability for past conduct as compared to pre-WPEA liability.        As in
     Hooker, the applicable WPEA amendments do not apply to this case, regardless
     of a lack of clear evidence in the record of whether the appellant’s described
     activity constitutes “testifying for or otherwise lawfully assisting” a complainant
     in an EEO investigation. See id., ¶ 10. The personnel actions challenged by the
     appellant occurred in 2011, prior to the enactment of the WPEA, IAF, Tab 1 at
     9-11, and thus, the Board lacks jurisdiction over the appellant’s 5 U.S.C.
     § 2302(b)(9)(B) claims as an IRA appeal, see Hooker, 120 M.S.P.R. 629, ¶ 15.
¶7        Therefore, we find that the appellant has not made a nonfrivolous allegation
     that the Board has appellate jurisdiction over his claims or has jurisdiction as an
     IRA appeal. The appellant admits that he has made no protected disclosure, and
     thus, he has failed to make a nonfrivolous allegation of Board jurisdiction over
     the IRA appeal. Finally, we note that throughout his appeal and OSC complaint,
     the appellant has sought a determination of “whether the agency’s investigation
     and personnel actions violated a law, rule, or regulation” related to the merit
     system principles. PFR File, Tab 1 at 8; IAF, Tab 1 at 5, 17. The appellant has
     essentially requested an advisory opinion, which the Board is statutorily
                                                                                    6

precluded from issuing, and so we cannot grant his request. 5 U.S.C. § 1204(h);
see Murray v. Department of Defense, 92 M.S.P.R. 361, ¶ 12 (2002).

                  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.
        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
                                                                                 7

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.
