                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CHATCHAI UDOMPORN,                              DOCKET NUMBER
                 Appellant,                          SF-1221-15-0064-W-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: May 1, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Chatchai Udomporn, Palmer, Alaska, pro se.

           Jason A. VanWagner, Andrews Air Force Base, Maryland, 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 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
     erroneous interpretation of statute or regulation or the erroneous application of

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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).
¶2        The appellant filed a prohibited personnel practice complaint with the
     Office of Special Counsel (OSC) arguing, among other things, that he was
     retaliated against for filing a grievance against his employing agency in April
     2010. Initial Appeal File (IAF), Tab 1. OSC issued the appellant a close-out
     letter informing him of his right to file a request for corrective action with the
     Board, which he timely filed. Id. Based on the broad nature of the appellant’s
     allegations supporting his request for corrective action, the administrative judge
     apprised the appellant of several different ways he could establish the Board’s
     jurisdiction over an IRA appeal.       IAF, Tab 3.      In response, the appellant
     challenged both the administrative judge’s impartiality and the substantive
     standards for establishing jurisdiction over an IRA appeal, IAF, Tab 11, and the
     agency subsequently filed a narrative response and motion to dismiss for lack of
     jurisdiction, IAF, Tab 8.
¶3        The administrative judge issued an initial decision dismissing the
     appellant’s IRA appeal for lack of jurisdiction on two separate grounds. IAF, Tab
     13, Initial Decision (ID). First, the administrative judge found that the appellant
     failed to exhaust his administrative remedies with OSC regarding a possible claim
     of whistleblower reprisal under 5 U.S.C. § 2302(b)(8) because he failed to
                                                                                             3

     demonstrate that he specifically presented his allegation of whistleblower reprisal
     to OSC prior to filing his IRA appeal. ID at 3-4. Next, the administrative judge
     found that the Board lacked jurisdiction over the appellant’s allegation of reprisal
     based on his filing a grievance in April 2010 under 5 U.S.C. § 2302(b)(9) because
     prior to December 27, 2012 (the effective date of the Whistleblower Protection
     Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465), the
     Board lacked IRA jurisdiction over an allegation of a prohibited personnel
     practice under section 2302(b)(9).       ID at 5-6; see Miller v. Federal Deposit
     Insurance Corporation, 122 M.S.P.R. 3, ¶ 13 (2014) (prior to the enactment of
     the WPEA, an individual could only seek corrective action from the Board for
     retaliation for whistleblowing under section 2302(b)(8)). In his initial decision,
     the administrative judge further explained that, although an employee can now
     file an IRA appeal under the WPEA based on an allegation of reprisal for filing a
     grievance under section 2302(b)(9)(A)(i), 2 this right only extends to such
     allegations of reprisal occurring on or after the effective date of the WPEA. ID at
     6 (citing King v. Department of the Air Force, 119 M.S.P.R. 663, ¶¶ 17-18
     (2013)).
¶4         The appellant has filed a lengthy petition for review challenging the
     jurisdictional dismissal of his appeal, the impartiality of the administrative judge,
     and the Board’s general processes for adjudicating IRA appeals.              Petition for
     Review (PFR) File, Tab 1. The agency has filed a response in opposition to the
     petition for review, and the appellant has filed a reply. PFR File, Tabs 3, 6.
¶5         Generally, the Board has jurisdiction over an IRA appeal only if the
     appellant exhausts his administrative remedies with OSC.               See Edwards v.
     Department of the Air Force, 120 M.S.P.R. 307, ¶ 15 (2013).                 To properly
     exhaust his administrative remedies before OSC, the appellant must show either

     2
       Section 2302(b)(9)(A)(i) further requires that the grievance must concern “remedying
     a vio lation of [section 2302(b)(8)],” i.e., a grievance challenging alleged whistleblower
     reprisal.
                                                                                      4

     (a) OSC has notified him that an investigation concerning him has been
     terminated and no more than 60 days have elapsed since notification was
     provided to him; or (b) 120 days have elapsed since he sought corrective action
     from OSC, and he has not been notified by OSC that it shall seek corrective
     action on his behalf.    Id.     The Board has consistently held that it may only
     consider the specific allegations of reprisal which have been presented to OSC.
     See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004). The Board’s
     jurisdiction over an IRA appeal is thus limited to the issues the appellant
     specifically raised before OSC, and an appellant must articulate with reasonable
     clarity and precision before OSC the basis for his request for corrective action in
     order to provide OSC with a sufficient basis to pursue an investigation that could
     lead to corrective action. Id.
¶6        We agree with the administrative judge that, to the extent that the appellant
     attempted to raise a claim of whistleblower reprisal under section 2302(b)(8) in
     his IRA appeal, he failed to present evidence that he exhausted his specific
     alleged protected disclosures with OSC. ID at 2-3. We fully concur with the
     administrative judge that the appellant’s submission lacks any specificity
     regarding alleged reprisal for making a protected disclosure under section
     2302(b)(8). See Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 17
     (2006) (vague and conclusory allegations of wrongdoing do not constitute
     nonfrivolous allegations establishing Board jurisdiction); ID at 2-3.
¶7        We further agree with the administrative judge that the appellant cannot
     establish the Board’s jurisdiction over his IRA appeal under the expanded
     provisions of the WPEA.          ID at 5-6.    Under the WPEA’s expanded IRA
     provisions, an employee may now seek corrective action from the Board
     concerning any personnel action taken, or proposed to be taken, against him as a
     result of a prohibited personnel practice described in section 2302(b)(8) or
     section 2302(b)(9)(A)(i), (B), (C), or (D). See Miller, 122 M.S.P.R. 3, ¶ 15. The
     Board has held, however, that an employee cannot bring an IRA appeal under one
                                                                                            5

     of these new IRA provisions based on events that occurred before the
     December 27, 2012 effective date of the WPEA. Id. Here, the appellant alleged
     that he was retaliated against for filing a grievance in April 2010, over 2 years
     prior to the WPEA’s effective date. 3 We therefore agree with the administrative
     judge that the appellant is unable to establish the Board’s jurisdiction under the
     expanded IRA provisions of the WPEA, and we AFFIRM the jurisdictional
     dismissal of the initial appeal. 4
¶8         Finally, we find that the appellant has not carried his heavy burden of
     establishing administrative judge bias.           See, e.g., Tyler v. U.S. Postal
     Service, 90 M.S.P.R. 545, ¶ 6 (2002). Here, the appellant’s claim of bias focuses
     on the administrative judge’s issuance of the Board’s standard acknowledgment
     order and a separate jurisdictional order explaining the relevant standards of
     proof. See IAF, Tab 9. In order to prove his claim of bias, the appellant must
     show that the alleged bias constitutes extrajudicial conduct rather than conduct
     arising in the administrative proceedings before the administrative judge.           See
     Tyler, 90 M.S.P.R. 545, ¶ 6.         The appellant’s claims, however, focus on the
     administrative judge’s conduct and the orders he issued during the proceedings
     below and thus fail to demonstrate a claim of bias. Id.
     3
       In Miller, the Board further found that the WPEA’s expanded provisions should not be
     applied to events predating the effective date of the WPEA even when the request for
     corrective action has been filed with the Board after the WPEA’s effective date. See
     Miller, 122 M.S.P.R. 3, ¶ 15 n.5. Thus, it is of no moment that the appellant filed h is
     request for corrective action with the Board after the WPEA’s effective date. See id.,
     ¶ 13 (find ing that the Board lacked jurisdiction over claims under section 2302(b)(9)
     based on the law in effect at the time of the events at issue).
     4
       To file an IRA appeal based on alleged retaliation under section 2302(b)(9)(A)(i), the
     appellant must allege that he filed a grievance, complaint, or appeal as to remedying an
     alleged violation of whistleblower reprisal under section 2302(b)(8). See Mudd v.
     Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). The April 2010
     grievance at issue did not concern remedying an alleged vio lation of section 2302(b)(8).
     See PFR File, Tab 1, Subtab 46 (copy of the April 2010 grievance). Thus, even if the
     WPEA’s expanded IRA provisions applied, which they do not, the appellant’s activity
     would fall outside of the Board’s expanded IRA jurisdiction under section
     2302(b)(9)(A)(i). See Mudd, 120 M.S.P.R. 365, ¶ 7.
                                                                                       6

¶9           Accordingly, the administrative judge’s jurisdictional dismissal of the
     appellant’s IRA appeal is AFFIRMED.

                       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 your court
appeal, 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:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
