Marvin H. Davis v. Department of Defense , 77 F.3d 503 ( 1996 )

77 F.3d 503

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Marvin H. DAVIS, Petitioner,
v.
DEPARTMENT OF DEFENSE, Respondent.

No. 95-3700.

United States Court of Appeals, Federal Circuit.

Jan. 26, 1996.

Before RICH, RADER, and SCHALL, Circuit Judges.

RADER, Circuit Judge.

1

Mr. Marvin H. Davis appeals the decision of the Merit Systems Protection Board, docket number CH1221950634-W-1. Mr. Davis appeals his twenty-day suspension, alleging it occurred because of his whistleblowing activities. The Board dismissed his appeal because the suspension occurred before the effective date of the Whistleblower Protection Act (WPA), July 9, 1989. Because the Board correctly determined it did not have jurisdiction, this court affirms.

2

The Department of Defense suspended Mr. Davis for twenty days for threatening his supervisor with bodily harm. Mr. Davis appealed the suspension to the Board. The Board sustained Defense's charge and affirmed the twenty-day suspension. This court affirmed the Board's decision on October 15, 1990.

3

Subsequently, Mr. Davis filed a request for corrective action with the Office of Special Counsel. That office informed Mr. Davis that he could seek corrective action with the Board. Mr. Davis appealed to the Board, claiming his suspension was reprisal for disclosures he made protected by the WPA. The Board dismissed his appeal for lack of jurisdiction because the suspension occurred prior to the effective date of the WPA.

4

No provision of the WPA is to be applied by the Board in such a way as to affect any pending administrative proceeding that began before the effective date of the Act. WPA, Pub.L. No. 101-12, § 7(b), 103 Stat. 16, 34 (1989). The term "proceeding" encompasses existing agency proceedings, including personnel actions that were proposed, threatened, or taken before July 9, 1989. Butz v. Department of Navy, 45 M.S.P.R. 539, 540 (1990). Because Mr. Davis' suspension was proposed by letter dated and received by Mr. Davis on February 28, 1989--before the effective date of the WPA--the Board correctly determined it does not have jurisdiction over this cause of action. Therefore, this court affirms the Board's decision.