                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HAKEEM MUSTAFIA MUHAMMAD,                       DOCKET NUMBERS
                 Appellant,                          AT-315H-14-0356-I-1
                                                     AT-1221-14-0160-W-1
                  v.

     DEPARTMENT OF THE ARMY,                         DATE: AUGUST 27, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Hakeem Mustafia Muhammad, Madison, Alabama, pro se.

           Kathryn R. Shelton, Esquire, Redstone Arsenal, Alabama, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed petitions for review of the initial decisions in the
     above-noted appeals, which dismissed his individual right of action (IRA) and
     probationary termination appeals for lack of jurisdiction.        We JOIN the two
     appeals because they concern the same termination action.              See 5 C.F.R.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     § 1201.36. Generally, we grant petitions such as these 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 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 these appeals, 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 petitions for review.
     Therefore, we DENY the petitions for review, and AFFIRM the initial decisions,
     which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶2            The agency appointed the appellant as a GS-9 Employee/Labor Relations
     Intern, effective January 14, 2013, subject to a 1-year probationary period.
     MSPB Docket No. AT-315H-14-0356-I-1, Initial Appeal File (IAF I-1), Tab 4
     at 10.     On November 4, 2013, while the appellant was still serving his
     probationary period, the agency notified him that he would be terminated from his
     position, effective November 15, 2013, because he:                (1) provided false
     information on the Optional Form 306 (OF-306) he completed during the hiring
     process; 2 (2) was still awaiting a security clearance after 8 months in his position;
     (3) allowed the balance on his government credit card to become delinquent, as a
     result of a charge he made on the card to attend a training course; (4) reported
     late to Basic Classification and Basic Staffing training courses; and (5) exhibited


     2
      According to the agency, in response to Question 12, the appellant stated that he had
     never been terminated from a position. IAF I-1, Tab 1 at 23. However, a Standard
     Form 50 indicates that he was terminated, effective August 18, 2011, from a position
     with another federal agency. Id.; IAF I-1, Tab 4 at 9.
                                                                                       3

     a negative attitude when, in response to being asked what he had learned during
     the Basic Staffing class, he stated that he “learned [he] did not want to work in
     Staffing.” IAF I-1, Tab 7 at 5-8; see IAF I-1, Tab 1 at 1 (the appellant indicating,
     in box 11 on his initial appeal form, that he was serving a probationary, trial, or
     initial service period at the time of his termination).
¶3         The November 4 termination notice did not afford the appellant the
     opportunity to respond to the proposed termination, as required under 5 C.F.R.
     § 315.805, because it relied in part on a pre-appointment reason—his alleged
     provision of false information on an employment form. IAF I-1, Tab 7 at 5-8.
     Nonetheless, on November 12, 2013, the appellant provided information in
     response to the November 4 termination notice. See IAF I-1, Tab 1 at 22; see
     also MSPB Docket No. AT-315H-14-0356-I-1, Petition for Review File (PFR
     File I-1), Tab 1 at 5 (“On the advice of my division director I wrote up a summary
     stating my position regarding the termination proposal.”). The deciding official
     considered the appellant’s response, and the agency rescinded the November 4
     termination notice and replaced it with a new notice on November 18, 2013.
     IAF I-1, Tab 1 at 22-25. The November 18 notice asserted the same bases for the
     appellant’s termination.    Id. at 23-25.    The deciding official concluded, after
     “carefully review[ing]” the appellant’s November 12 response, that termination
     was still appropriate, and the agency terminated the appellant, effective
     November 19, 2013. Id. at 22-25; IAF I-1, Tab 4 at 12.
¶4         The appellant filed an IRA appeal, alleging that the agency terminated him
     based on his whistleblowing activity. MSPB Docket No. AT-1221-14-0160-W-1,
     Initial Appeal File (IAF W-1), Tab 1. He also alleged that the agency failed to
     follow the procedural requirements of 5 C.F.R. § 315.805, and he requested a
     hearing. Id. at 2; see IAF I-1, Tab 1 at 2. The regional office docketed an IRA
     appeal and a separate probationary termination appeal. IAF W-1, Tab 2; IAF I-1,
     Tab 3.
                                                                                           4

¶5         The administrative judge dismissed both appeals for lack of jurisdiction,
     without hearings. He found that the appellant failed to nonfrivolously allege that
     the agency did not comply with the procedures of 5 C.F.R. § 315.805. 3 IAF I-1,
     Tab 13, Initial Decision. As to the appellant’s IRA appeal, the administrative
     judge found that the appellant failed to prove that he exhausted his administrative
     remedies before the Office of Special Counsel (OSC). IAF W-1, Tab 8, Initial
     Decision (ID W-1). The appellant has filed petitions for review in both appeals.
     PFR File I-1, Tab 1; MSPB Docket No. AT-1221-14-0160-W-1, Petition for
     Review File (PFR File W-1), Tab 1.
     The appellant has not nonfrivolously alleged that the agency failed to comply
     with the procedural requirements of 5 C.F.R. § 315.805.
¶6         When an agency proposes to terminate a probationary employee for reasons
     based in whole or in part on conditions arising before his appointment, he is
     entitled to: (1) advance written notice of the reasons for the proposed action;
     (2) a reasonable time to file a written answer and supporting affidavits, which the
     agency must consider in reaching its decision; and (3) written notification of the
     agency’s final decision, at the earliest practicable date, but no later than at the
     time the action will become effective. 5 C.F.R. § 315.805. Such an employee
     may appeal his termination to the Board on the ground that it was not effected in
     accordance with the procedural requirements of 5 C.F.R. § 315.805.             5 C.F.R.
     § 315.806(c). In such appeals, the merits of the agency’s decision are not before
     the Board. Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 7 (2008). Rather,
     if an appellant nonfrivolously alleges that he was terminated based in whole or in
     part on pre-appointment reasons, and that the agency failed to afford him the
     procedural protections of 5 C.F.R. § 315.805, then the Board has jurisdiction to
     determine whether the agency, in fact, failed to follow the procedures of 5 C.F.R.

     3
       The administrative judge informed the appellant that he also could establish Board
     jurisdiction by nonfrivolously alleging that his termination was based on his marital
     status or political affiliation, but the appellant did not make any such claim, and does
     not so allege on review. IAF I-1, Tab 3 at 2; see 5 C.F.R. § 315.806(b).
                                                                                            5

     § 315.805 and, if so, whether such procedural error was harmful. Id.; Jordan v.
     Department of the Air Force, 61 M.S.P.R. 388, 394 (1994).
¶7         Here, the agency’s November 4 notice did not comply with the requirements
     of 5 C.F.R. § 315.805. However, the agency subsequently cancelled that notice
     and, before the appellant’s removal became effective, issued a new decision after
     considering his November 12 response.          On review, the appellant states that
     although the deciding official “insisted that she would review” his November 12
     response, he is nonetheless concerned that she did not do so “as her mind was set
     on [his] termination.” PFR File I-1, Tab 1 at 5. This unsupported statement is
     insufficient to establish Board jurisdiction, as the record evidence indicates that
     the deciding official considered his response, and the appellant has presented no
     evidence to the contrary. Notably, in addition to asserting that she had “carefully
     reviewed” the appellant’s response, the deciding official provided specific
     responses to claims the appellant appears to have raised in response to the
     proposed termination notice; for example, she indicated that she: (1) reviewed an
     internal regulation the appellant cited but found it to be inapplicable; and
     (2) considered his contention that the circumstances surrounding his previous
     employment remained unresolved because he had filed an appeal, but did not
     agree that it justified his response to Question 12 on the OF-306, particularly
     because he failed to clarify or explain his response in the additional space
     provided on the form. 4      IAF I-1, Tab 1 at 22.        We therefore AFFIRM the
     dismissal for lack of jurisdiction because the appellant has not nonfrivolously
     alleged that the agency failed to afford him the procedural protections of 5 C.F.R.
     § 315.805. 5

     4
       The appellant’s November 12 response is not in the record. However, he admits that
     he submitted a response. PFR File I-1, Tab 1 at 5. Further, in this appeal, the appellant
     has raised arguments similar to those which the decision letter appears to address. See,
     e.g., id. at 6-8.
     5
      The appellant also alleges that he was entitled to the procedures set forth at 5 C.F.R.,
     part 752, subpart D. PFR File I-1, Tab 1 at 5-6. This is incorrect because these
                                                                                            6

¶8         The appellant raises several arguments regarding the merits of the agency’s
     termination action, including that:       (1) the agency violated various internal
     regulations, and his rights, in relying upon the fact that he had yet to receive a
     decision regarding his security clearance; (2) he exhibited “superb performance
     and conduct” during his tenure with the agency; (3) he did not receive any
     negative counseling regarding his government travel card balance, tardiness
     during training, and negative attitude; (4) employees in other regions are not
     required to obtain security clearances; and (5) all records from his previous
     employment were “on hold” due to an equal employment opportunity complaint
     he filed, so the information he provided on the OF-306 regarding the
     circumstances under which he left his prior position was not false. PFR File I-1,
     Tab 1 at 6-10; PFR File W-1, Tab 1 at 2-3. However, we do not address these
     arguments    because     we    lack   jurisdiction   over    these   appeals. 6      See
     Hope, 108 M.S.P.R. 6, ¶ 7 (2008).


     regulations expressly state that they do not apply to competitive service employees
     serving a probationary or trial period who have not completed 1 year of current
     continuous service under other than a temporary appointment limited to 1 year or less.
     5 C.F.R. §§ 752.401(c)(2), (d)(13). 5 U.S.C., chapter 75, to which the appellant also
     cites, is similarly inapplicable. See 5 U.S.C. § 7511(a)(1)(A). The administrative judge
     informed the appellant of what he needed to establish to show that he was not a
     probationer and had chapter 75 appeal rights, but the appellant has not done so. IAF
     I-1, Tab 3 at 3-4.
     6
       The appellant states that the agency failed to respond to his discovery requests. PFR
     File I-1, Tab 1 at 9-11. He argues that the agency’s discovery responses would have
     disproved its allegations forming the basis for its termination action, shown that the
     agency obstructed his rights by preventing him from participating in required training,
     and proved that the agency retaliated against him because of his alleged whistleblowing
     activity. Id. at 9-10. None of this information would change the outcome in this
     matter. Moreover, in support of this claim, he submits discovery requests captioned
     with MSPB Docket No. AT-1221-14-0160-W-1, which he served to the agency on or
     about March 20, 2014. Id. at 22-34. The initial decision in that matter was issued on
     January 17, 2014, so the appellant’s requests were untimely. ID W-1; see 5 C.F.R.
     § 1201.73(d)(4). If the appellant’s March 20 discovery requests were incorrectly
     captioned and were actually intended for MSPB Docket No. AT-315H-14-0356-I-1, then
     we note that there is no evidence that he timely initiated discovery prior to serving the
     March 20 requests, and it therefore appears that the requests were served over a month
                                                                                             7

     The appellant has not established Board jurisdiction over his IRA appeal.

¶9         On his initial appeal form, the appellant stated that he filed a complaint
     with OSC on November 18, 2013, and had not yet received written notice that it
     had made a decision or terminated its investigation. IAF W-1, Tab 1 at 22. The
     administrative judge ordered the appellant to file evidence and argument to meet
     his burden to establish jurisdiction by showing that he exhausted his
     administrative remedies before OSC and making 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 against him. 7          IAF W-1, Tab 3; see Shibuya v.
     Department of Agriculture, 119 M.S.P.R. 537, ¶ 25 (2013). The appellant alleged
     that he made protected disclosures to the Division Director, regarding the
     aforementioned training courses, when he informed her that: (1) the Human



     beyond the deadline to do so.          See IAF I-1, Tab 3 at 6; see also 5 C.F.R.
     § 1201.73(d)(1). The appellant also failed to comply with the requirements for filing a
     motion to compel. See 5 C.F.R. § 1201.73(c). Further, instead of serving his discovery
     requests upon the agency’s representative, he served separate sets of requests directly to
     three different witnesses, which is improper and exceeds the allowable number of
     interrogatories. PFR File I-1, Tab 1 at 16-17, 22-34; see 5 C.F.R. § 1201.73(e). Thus,
     to the extent that the appellant contends the administrative judge committed any error as
     to his discovery requests, we disagree for the foregoing reasons.
     7
       In his jurisdictional order, the administrative judge stated that the appellant must
     nonfrivolously allege that he made his disclosures to “someone other than the alleged
     wrongdoer,” and that a “disclosure made in the normal course of [one’s] job
     responsibilities is not protected as whistleblowing.” IAF W-1, Tab 3 at 3-4. This is
     incorrect. The Whistleblower Protection Enhancement Act of 2012, Pub. L. No.
     112-199, 126 Stat. 1465 (WPEA), which became effective in December 2012, provides
     protection to both disclosures made in the course of an employee’s normal duties and
     disclosures made to the alleged wrongdoer. 5 U.S.C. §§ 2302(f)(1)(A), (f)(2); see also
     Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18 (2013). We discern
     no harm because the OSC letters the appellant submits on review, which relate to his
     OSC complaint about his termination, do not concern any such disclosures. PFR File
     W-1, Tab 1 at 7, 9; see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
     (1984) (an adjudicatory error that is not prejudicial to a party’s substantive rights
     provides no basis for reversal of an initial decision).
                                                                                       8

      Resources (HR) Director failed to provide emergency contact information for
      himself and the course instructors to course attendees; (2) on one of the days
      when he arrived late, his coworker had informed the instructor, on his behalf, that
      he was delayed; (3) one student arrived 4 hours late and did not inform the
      instructor of his whereabouts; and (4) the courses did not provide detailed
      instructions to aid in the learning process. IAF W-1, Tab 5 at 1-2. However, he
      failed to submit any evidence or argument indicating that he exhausted his
      administrative remedies before OSC. We therefore AFFIRM the administrative
      judge’s initial decision finding that the appellant failed to establish Board
      jurisdiction over his IRA appeal.
¶10        On review, the appellant submits two letters from OSC, both dated
      December 30, 2013, informing him of its final determination to close his case and
      advising him of his right to seek corrective action from the Board. PFR File W-1,
      Tab 1 at 7-10. Ordinarily, the Board will not consider evidence submitted for the
      first time with the petition for review absent a showing that it was unavailable
      before the record was closed despite the party’s due diligence. Avansino v. U.S.
      Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115. The appellant
      has made no such showing. However, the Board will consider evidence of OSC
      exhaustion submitted for the first time on review which does not meet the criteria
      under 5 C.F.R. § 1201.115, if it warrants an outcome different from that in the
      initial decision. Atkinson v. Department of State, 107 M.S.P.R. 136, ¶ 12 (2007).
¶11        OSC’s letter indicates that the appellant alleged that he was terminated in
      reprisal for disclosing that the HR Development Training Manager’s “accusation
      that [he was] tardy to a training class was untrue” and that he “failed to provide
      students with contact information for adequate emergency communications with
      instructors.” PFR File W-1, Tab 1 at 7. Thus, we find that he exhausted his
      administrative remedies regarding his alleged disclosures that:        (1) the HR
      Director failed to provide to course attendees emergency contact information for
      himself and the course instructors; and (2) on one of the days when he arrived late
                                                                                            9

      to training, his coworker had informed the instructor, on his behalf, that he was
      delayed. 8
¶12         Notwithstanding, we still find that we lack jurisdiction because the
      appellant has not nonfrivolously alleged that the aforementioned disclosures are
      protected.    Protected whistleblowing occurs when an employee makes a
      disclosure that he reasonably believes evidences a violation of law, rule or
      regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
      or a substantial and specific danger to public health and safety.             5 U.S.C.
      § 2302(b)(8); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5
      (2013). As to establishing Board jurisdiction, an appellant must nonfrivolously
      allege that he had a reasonable belief that his disclosures were protected, i.e., that
      the matter disclosed was one which a disinterested observer with knowledge of
      the essential facts known to, and readily ascertainable by, the appellant could
      reasonably conclude that the actions evidenced a violation of a law, rule, or
      regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
      Mudd, 120 M.S.P.R. 365, ¶¶ 5, 8.
¶13         We find that no employee could reasonably believe that disputing an
      instructor’s assertions regarding his tardy arrival to training constitutes a
      disclosure which evidences any of the situations specified in 5 U.S.C.
      § 2302(b)(8). Further, the appellant has provided no explanation as to why he
      believes that the HR Director’s failure to provide emergency contact information
      constitutes one of the situations specified in 5 U.S.C. § 2302(b)(8).



      8
        The letter provides no indication that the appellant exhausted his administrative
      remedies with respect to his alleged disclosures that: (1) one student arrived 4 hours
      late and did not inform the instructor of his whereabouts; and (2) the courses did not
      provide detailed instructions to aid in the learning process. PFR File W-1, Tab 1 at 7.
      There is similarly no evidence that the appellant exhausted his administrative remedies
      with respect to his alleged disclosure, which he identifies on review, that the training
      resources were inadequate because there were no computers available. Id. at 1, 7. We
      therefore lack jurisdiction over these claims.
                                                                                         10

¶14           Based on the foregoing, we find that the additional evidence the appellant
      submitted on review regarding his OSC complaint is insufficient to establish
      Board jurisdiction over his IRA appeal.

                       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.
                                                                                11

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.
