Donaldson v. Merit Systems Protection Board , 527 F. App'x 945 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT DONNELL DONALDSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF HOMELAND SECURITY,
Intervenor.
______________________
2012-3161
______________________
Petition for review of the Merit Systems Protection
Board in No. DC1221120087-W-1.
______________________
Decided: July 11, 2013
______________________
ROBERT DONNELL DONALDSON, of Landover, Mary-
land, pro se.
CALVIN M. MORROW, Attorney, Office of the Gen-
eral Counsel, Merit Systems Protection Board, of Wash-
ington, DC, for respondent. With him on the brief were
2 DONALDSON v. MSPB
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
JOSHUA E. KURLAND, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for intervenor. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
SCOTT D. AUSTIN, Assistant Director.
______________________
Before LOURIE, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Robert Donnell Donaldson petitions for review of the
final decision of the Merit Systems Protection Board
(“Board”) that denied Mr. Donaldson’s petition for review
of the decision of an administrative judge (“AJ”). The AJ
dismissed for lack of jurisdiction Mr. Donaldson’s claim
for relief under the Whistleblower Protection Act of 1989,
Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered
sections of 5 U.S.C.) (“WPA”). See Donaldson v. Dep’t of
Homeland Sec., No. DC-1221-12-0087-W-1 (M.S.P.B. June
21, 2012) (“Final Decision”). We affirm.
DISCUSSION
I.
Mr. Donaldson is a disabled veteran who, in response
to a vacancy announcement posted in February of 2011,
applied for a position as a Marine Transportation Special-
ist with the Coast Guard. 1 After interviewing two candi-
1 This vacancy announcement was a re-posting of
one of the positions at issue in prior appeal 2012-3106,
reported at Donaldson v. Department of Homeland Securi-
DONALDSON v. MSPB 3
dates (but not Mr. Donaldson), the Department of Home-
land Security (the “agency”) offered the position to a
retired Coast Guard Lieutenant Commander, who accept-
ed the position.
II.
Mr. Donaldson appealed his non-selection to the
Board and requested a decision on the written record. On
October 3, 2011, the AJ assigned to the case issued a close
of record order that (1) allowed the parties to provide
additional information until the record closed a month
later, and (2) informed Mr. Donaldson of what was re-
quired to prove that the agency had violated his veterans’
preference rights. On October 13, 2011, the agency sub-
mitted a narrative response to Mr. Donaldson’s claims, as
well as certain supporting documentation. In response,
Mr. Donaldson filed a closing submission in which he
alleged that, with the non-selection, the agency not only
had violated his veterans’ preference rights under the
Veterans Employment Opportunities Act of 1998, 5 U.S.C.
§§ 3330a–3330c (“VEOA”) (as he had already alleged) but
that it also had retaliated against him for allegedly pro-
tected whistleblowing activity. 2 Mr. Donaldson stated
that he had raised these latter allegations (the “Whistle-
blower Claims”) with the Office of Special Counsel. The
AJ then docketed a separate individual right of action
appeal under the WPA to address the Whistleblower
Claims.
On November 4, 2011, the AJ issued a jurisdictional
show cause order that explained to Mr. Donaldson his
jurisdictional burden with respect to the Whistleblower
Claims and that required him to set forth his arguments
ty, 495 F. App’x 53 (Fed. Cir. Oct. 4, 2012), cert. denied,
___ S.Ct. ___, 2013 WL 673877 (June 24, 2013).
2 Mr. Donaldson’s original claims (the “VEOA
Claims”) are at issue in our appeal No. 2012-3160.
4 DONALDSON v. MSPB
regarding jurisdiction. In response, Mr. Donaldson stat-
ed, in relevant part:
• The agency took retaliation against the ap-
pellant for filing a complaint to competent
authority (the Merit System [sic] Protection
Board . . . , the Department of Labor, the
Office of Special Counsel)
* * *
• In the appellants [sic] submission(s) to the
Office of Special Counsel, the appellant
specifically mentioned and OSC addressed
5 U.S.C. § 2302.
Intervenor App. 67.
The agency responded by arguing that Mr. Don-
aldson’s allegation that “the Agency retaliated against
him for filing appeals to the MSPB . . . does not constitute
protected disclosures.” Resp’t App. 45. After considering
the parties’ submissions, the AJ dismissed for lack of
jurisdiction. See Donaldson v. Dep’t of Homeland Sec.,
No. DC-1221-12-0087-W-1 (Dec. 16, 2011) (“Initial Deci-
sion”). First, the AJ set forth the applicable law requiring
a party seeking review of whistleblower claims to estab-
lish jurisdiction before the Board by demonstrating ex-
haustion of administrative remedies and by making non-
frivolous allegations that (1) he or she engaged in protect-
ed whistleblowing activity by making a protected disclo-
sure under 5 U.S.C. § 2302(b)(8) 3 and that (2) the
3 The version of this section effective from October
14, 2008, to December 27, 2012, states:
Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not, with respect to such au-
thority . . . take or fail to take, or threaten to take
or fail to take, a personnel action with respect to
DONALDSON v. MSPB 5
disclosure was a contributing factor in an agency’s deci-
sion to take or fail to take a personnel action. See Initial
Decision at 4 (citing Yunus v. Dep’t of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001)).
The AJ found that Mr. Donaldson’s Whistleblower
Claims were to the effect that the agency had failed to
select him based on (1) the filing of an earlier appeal with
the Board from an earlier non-selection and (2) the filing
of complaints related to the non-selection with the De-
partment of Labor and the Office of Special Counsel under
the VEOA and the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301–35
(“USERRA”). Initial Decision at 6. The AJ concluded
that filing a Board appeal is not a protected disclosure
under 5 U.S.C. § 2302(b)(8), but rather falls under
any employee or applicant for employment be-
cause of (A) any disclosure of information by an
employee or applicant which the employee or ap-
plicant reasonably believes evidences (i) a viola-
tion of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger
to public health or safety, if such disclosure is not
specifically prohibited by law and if such infor-
mation is not specifically required by Executive
order to be kept secret in the interest of national
defense or the conduct of foreign affairs; or (B)
any disclosure to the Special Counsel, or to the
Inspector General of an agency or another em-
ployee designated by the head of the agency to re-
ceive such disclosures, of information which the
employee or applicant reasonably believes evi-
dences (i) a violation of any law, rule, or regula-
tion, or (ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
6 DONALDSON v. MSPB
5 U.S.C. § 2302(b)(9), 4 which protects an employee from
retaliation for exercising appeal, complaint, or grievance
rights, but does not provide an independent basis for
Board jurisdiction. Initial Decision at 6–7. At the same
time, the AJ concluded that complaints under the VEOA
and the USERRA also are covered under § 2302(b)(9), and
thus do not provide an independent basis for Board juris-
diction. Initial Decision at 7. Because Mr. Donaldson had
failed to establish that he had engaged in protected
whistleblowing activity by making a protected disclosure,
the AJ dismissed for lack of jurisdiction.
Mr. Donaldson petitioned the Board for review. In the
Final Decision, the Board denied the petition. Final
Decision at 3. Specifically, the Board found that Mr.
Donaldson’s “activities of filing appeals with the Board
and complaints with the Department of Labor are activi-
ties that are protected by § 2302(b)(9)(A),” and that Mr.
Donaldson failed to make a non-frivolous allegation that
4 The version of this section effective from October
14, 2008, to December 27, 2012, states:
Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not, with respect to such au-
thority . . . take or fail to take, or threaten to take
or fail to take, any personnel action against any
employee or applicant for employment because of
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regu-
lation; (B) testifying for or otherwise lawfully as-
sisting any individual in the exercise of any right
referred to in subparagraph (A); (C) cooperating
with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in
accordance with applicable provisions of law; or
(D) for refusing to obey an order that would re-
quire the individual to violate a law.
DONALDSON v. MSPB 7
these activities constituted protected disclosures under
§ 2302(b)(8). Final Decision at 2 (citing Serrao v. Merit
Sys. Prot. Bd., 95 F.3d 1569, 1575–76 (Fed. Cir. 1996)).
Finding that Mr. Donaldson had not engaged in protected
whistleblowing activity by making a protected disclosure,
the Board declined to address the second prong under
Yunus—whether Mr. Donaldson alleged that a protected
disclosure was a contributing factor in his non-selection.
Final Decision at 2. The Board found that it lacked
jurisdiction over claims under § 2302(b)(9) in the absence
of an otherwise appealable action. Final Decision at 3.
With the petition for review denied, the Initial Deci-
sion became the final decision of the Board. See id. at 3.
This appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
III.
Our scope of review in an appeal from a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence. 5 U.S.C. §
7703(c); Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998). An appellant before the
Board has the burden to establish jurisdiction by a pre-
ponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2).
Whether the Board has jurisdiction to adjudicate an
appeal is a question of law, which we review de novo. See
Johnson v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008).
IV.
Mr. Donaldson argues that the Whistleblower Claims
constituted allegations under either § 2302(b)(8) or
§ 2302(b)(9), and that, by docketing a separate appeal for
the Whistleblower Claims, the AJ created a jurisdictional
issue that did not exist prior to bifurcation. We disagree.
8 DONALDSON v. MSPB
The Board’s jurisdiction is not plenary. Rather, it is
limited to actions designated as appealable to the Board
“under any law, rule, or regulation.” See Prewitt v. Merit
Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998) (citing 5
U.S.C. § 7701(a)). “An agency’s failure to select an appli-
cant for a vacant position is generally not appealable to
the Board.” Prewitt, 133 F.3d at 886. Certain exceptions
to this general rule, however, do exist.
Under one such exception, a potential employee can
seek Board review of allegations that he or she was not
selected based on a disclosure protected under
§ 2302(b)(8). See id. (citing 5 U.S.C. § 1221(a)). Under
another exception, a potential employee can petition the
Board to review allegations that a non-selection violated
the VEOA or the USERRA. See Ruffin v. Dept. of Treas-
ury, 89 M.S.P.R. 396, 400–01 (2001). In cases involving
both of these exceptions, the Board will docket a separate
individual right of action appeal for the claims under
§ 2302(b)(8). See Wooten v. Dep’t of Veterans Affairs, 96
M.S.P.R. 671, 675 n.* (2004).
Under the law effective at the time of Mr. Donaldson’s
claims, generic retaliation claims under § 2303(b)(9)—
asserting that an agency retaliated based on the filing of
an appeal, complaint, or grievance—did not constitute an
exception to the general lack of Board jurisdiction for
claims based on a non-selection. 5 Instead, remedies for
such claims were limited to filing a request for corrective
action with the Office of Special Counsel, as Mr. Don-
5 Although the parties did not address the issue, we
note that Congress amended 5 U.S.C. § 1221(a), effective
December 27, 2012, to provide an individual right of
action under §§ 2302(b)(9)(A)(i), (B), (C), and (D). See
Whistleblower Protection Enhancement Act of 2012, Pub.
L. No. 112-199, 126 Stat. 1465, 1465 (2012). Prior to that
effective date, § 1221(a) only provided an individual right
of action under § 2302(b)(8).
DONALDSON v. MSPB 9
aldson did here. See Shaver v. Dep’t of the Air Force, 106
M.S.P.R. 601, 605 n.3 (2007) (citing 5 U.S.C. § 1214).
The question of Board jurisdiction over the Whistle-
blower Claims at issue here thus turns on whether those
claims fall under § 2302(b)(8) or § 2302(b)(9). If under the
former, the Whistleblower Claims (removed into a sepa-
rate appeal by the AJ) could properly stand alone as a
separate individual right of action appeal. See Wooten, 96
M.S.P.R. at 675 n.*. If under the latter, for reasons
discussed above, the Board could not exercise jurisdiction,
whether or not the AJ had separated those claims into
their own appeal apart from the VEOA claims. See
Schoenrogge v. Dep’t of Justice, 410 F. App’x 314, 318
(Fed. Cir. 2010) (noting that the Board “correctly ex-
plained that [it] does not have jurisdiction to consider an
agency’s alleged violation of prohibited personnel practic-
es [in a VEOA action]”); Ruffin, 89 M.S.P.R. at 400–01
(discussing the lack of authority to review claims of pro-
hibited discrimination in USERRA and VEOA cases).
We see no error in the Board’s conclusion that Mr.
Donaldson’s Whistleblower Claims fall under § 2302(b)(9),
and therefore, under the law applicable to this appeal, do
not support jurisdiction. See Final Decision at 2–3. As
set forth above, in response to the show cause order, Mr.
Donaldson clearly alleged that the agency failed to select
him in retaliation for filing a Board appeal as well as
filing complaints with the Department of Labor and Office
of Special Counsel. Mr. Donaldson relies only on these
activities and does not allege a separate protected disclo-
sure, such as the disclosure of information under
§ 2302(b)(8).
This court has previously noted that, in “enacting sec-
tions 2302(b)(8) and 2302(b)(9)(A), Congress purposefully
drew a distinction between ‘reprisal based on disclosure of
information and reprisal based upon exercising a right to
complain.’ The former is covered in section 2302(b)(8), the
latter in section 2302(b)(9)(A).” Serrao, 95 F.3d at 1575
(quoting Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 690
10 DONALDSON v. MSPB
(Fed. Cir. 1992)) (internal citations omitted); see also
Luecht v. Dep’t of the Navy, 87 M.S.P.R. 297, 302 (2000)
(noting that “filing appeals with the [MSPB] and griev-
ances are activities protected under (b)(9) and not as
whistleblowing under (b)(8)”). For these reasons, the
Board did not err in finding no jurisdiction over the
Whistleblower Claims under the applicable law. We have
considered the other arguments raised by Mr. Donaldson
and do not find them persuasive.
Because the Board properly found no jurisdiction over
the Whistleblower Claims, we need not address the merits
of those claims. In addition, we do not address the merits
of Mr. Donaldson’s arguments related to the VEOA
Claims, which are at issue in the companion appeal, No.
2012-3160, and addressed in our decision in that appeal.
V.
Because the final decision of the Board in this case is
supported by substantial evidence and is free of legal
error, it is affirmed.
AFFIRMED
COSTS
No costs.