Young v. MSPB ( 2020 )

Case: 19-2268 Document: 40 Page: 1 Filed: 06/11/2020
United States Court of Appeals
for the Federal Circuit
______________________
TERESA M. YOUNG,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2019-2268
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-19-0574-W-1.
______________________
Decided: June 11, 2020
______________________
TERESA M. YOUNG, Frederick, MD, pro se.
KATRINA LEDERER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH, TRISTAN LEAVITT.
______________________
Before NEWMAN, BRYSON, and O’MALLEY, Circuit Judges.
BRYSON, Circuit Judge.
Teresa M. Young, a former Internal Revenue Service
employee, asserts that she was removed from her position
Case: 19-2268 Document: 40 Page: 2 Filed: 06/11/2020
2 YOUNG v. MSPB
with the agency for engaging in protected whistleblowing
activity. She filed a complaint with the U.S. Office of Spe-
cial Counsel and subsequently filed an Individual Right of
Action (“IRA”) appeal to the Merit Systems Protection
Board (“the Board”). A Board administrative judge ruled
that Ms. Young had not made a non-frivolous allegation
that her disclosures were protected by the Whistleblower
Protection Act, Pub. L. No. 101-12, 103 Stat. 16 (1989), and
therefore dismissed her appeal for lack of jurisdiction. We
affirm.
I
Ms. Young began working for the Internal Revenue
Service as a clerk on March 20, 2017. She was serving a
one-year probationary period when the agency removed
her on March 12, 2018, for misconduct.
Before filing her IRA appeal, Ms. Young filed a sepa-
rate appeal in June 2018 with the Board challenging her
removal as an unlawful adverse action under Chapter 75
of Title 5. Ms. Young also filed a formal Equal Employment
Opportunity (“EEO”) complaint alleging that she had been
terminated because of discrimination based on her national
origin, disability, and prior protected EEO activity. On
July 10, 2018, the administrative judge dismissed Ms.
Young’s adverse action appeal for lack of jurisdiction on the
ground that Ms. Young was a probationary employee at the
time of her removal and was not entitled to full appellate
rights from the adverse action against her.
Following that dismissal, Ms. Young filed a complaint
with the Office of Special Counsel, alleging that she had
been removed from her position because of whistleblowing
activities. On June 17, 2019, the Office of Special Counsel
advised her that it would not be taking any action in her
case. She then filed the IRA appeal at issue in this case
with the Board.
Case: 19-2268 Document: 40 Page: 3 Filed: 06/11/2020
YOUNG v. MSPB 3
II
In her IRA appeal, Ms. Young alleged that she had dis-
closed time and attendance violations and a hostile work
environment within her agency, which included a refusal
to accommodate her disabilities. She alleged that she had
been removed from her position as a probationary em-
ployee in retaliation for those disclosures. With respect to
the time and attendance violations, Ms. Young alleged that
she had disclosed that managers were concealing the fact
that their teams were not doing any work; that supervisors
were representing that employees were present when they
were not; that large numbers of employees were on family
medical leave status, although supervisors denied that to
be the case; and that employees were taking work breaks
longer than the 30 minutes allotted for such breaks.
In light of the lack of specificity in Ms. Young’s allega-
tions, the administrative judge who was assigned to the
case entered an order requiring Ms. Young to make a non-
frivolous showing that she had made protected disclosures
that led to her removal. In order to do so, the administra-
tive judge explained, she would be required to allege that
she disclosed information that she reasonably believed ev-
idenced a violation of law, rule, or regulation, gross mis-
management, a gross waste of funds, abuse of authority, or
a substantial and specific danger to public health or safety.
The administrative judge informed Ms. Young that “a
nonfrivolous allegation [of a protected disclosure] is a claim
under oath or penalty of perjury or supported by relevant
evidence that if proven, could establish the matters it as-
serts.” The administrative judge also informed her that
“[c]onclusory, vague, or unsupported allegations” are not
enough to meet that standard. In addition, the adminis-
trative judge advised Ms. Young that she had to show that
she had raised each of her claims before the Office of Spe-
cial Counsel and had exhausted her remedies before that
agency.
Case: 19-2268 Document: 40 Page: 4 Filed: 06/11/2020
4 YOUNG v. MSPB
In order to satisfy those requirements, Ms. Young was
directed to provide more detailed factual support for her
allegations. In particular, she was ordered to file a state-
ment, accompanied by evidence, listing various items in-
cluding the nature of the protected disclosures, the dates
she made those disclosures, and the persons to whom she
made the disclosures. Ms. Young did not respond to the
administrative judge’s order. The administrative judge
then dismissed her IRA appeal on the ground that she had
failed to set forth any non-frivolous allegations of protected
disclosures. 1
Ms. Young failed to make a sufficient showing that the
Board had jurisdiction over her claims, the administrative
judge ruled, because she failed to submit evidence or argu-
ment as to why she reasonably believed her disclosures
were protected. The administrative judge explained that
Ms. Young made “unsworn allegations that certain inap-
propriate conduct occurred,” but failed to describe “what
facts were known to her which caused her to believe there
was truth in the matters she disclosed, or that the viola-
tions she disclosed actually occurred.” Under those circum-
stances, the administrative judge concluded, Ms. Young
“has failed to allege facts which, if proven, would establish
that she had a reasonable belief that the matters that she
disclosed actually occurred or that she reasonably believed
that the matters she disclosed evidenced a violation of law,
1 Ms. Young contends that she was unable to file a
timely response to the administrative judge’s jurisdictional
order because of health issues, but she never sought an ex-
tension of the deadline for filing her response. Moreover,
Ms. Young submitted two other filings during the 10-day
period she was given for filing a response to the jurisdic-
tional order, which renders implausible her claim that
health issues prevented her from filing a timely response
to the jurisdictional order.
Case: 19-2268 Document: 40 Page: 5 Filed: 06/11/2020
YOUNG v. MSPB 5
rule, or regulation, gross mismanagement, a gross waste of
funds, abuse of authority, or a substantial and specific dan-
ger to public health or safety.”
As for Ms. Young’s claims that the agency had retali-
ated against her for requesting a reasonable accommoda-
tion for her disability or for filing EEO complaints, the
administrative judge ruled that the type of EEO activity
she described “cannot serve to confer Board jurisdiction
over her IRA appeal.” Similarly, the administrative judge
ruled that Ms. Young’s allegations that the agency had cre-
ated a hostile work environment for her in retaliation for
her EEO activity was not a valid basis for the Board to ex-
ercise jurisdiction over her IRA appeal.
After the administrative judge dismissed Ms. Young’s
IRA appeal, she petitioned this court for review of the ad-
ministrative judge’s ruling.
III
At the outset of the appellate proceedings, we issued a
show cause order directing the parties to address whether
this court has jurisdiction over Ms. Young’s appeal in light
of the Supreme Court’s decision in Perry v. Merit Systems
Protection Board, 137 S. Ct. 1975 (2017). In Perry, the Su-
preme Court held that the Board’s jurisdictional dismissal
of a “mixed case” appeal (i.e., an appeal involving both an
appealable agency action against an employee and a claim
that the action was based, in whole or in part, on discrimi-
nation) is appealable to a United States district court, not
to this court, even when the Board’s dismissal is based on
jurisdictional grounds. Id. at 1979.
In its response to the show cause order, the Board ar-
gued that this court has jurisdiction over any petition for
review of a Board decision in an IRA appeal under 5 U.S.C.
§ 1221. The Board explained that IRA appeals are never
“mixed cases” within the meaning of that term as applied
by the Supreme Court in Perry. Instead, according to the
Case: 19-2268 Document: 40 Page: 6 Filed: 06/11/2020
6 YOUNG v. MSPB
Board, the Perry decision applies to certain petitions for re-
view of adverse action appeals by the Board under 5 U.S.C.
§§ 7701 and 7702. Ms. Young did not specifically address
the Perry decision in her response to the court’s order, but
urged this court to address her petition on the merits and
grant the relief she requested.
We agree with the Board that jurisdiction over this ap-
peal lies with this court (or another circuit court of compe-
tent jurisdiction), and not with a district court. This is a
petition for review of an IRA appeal, not a petition for re-
view of a “mixed case” appeal in which a claim of discrimi-
nation is combined with a challenge to an adverse agency
action.
The Supreme Court in Perry based its decision on the
specific statutory scheme allocating the judicial review of
Board decisions in adverse action cases under sections
7701 and 7702 of Title 5. Section 7703(b)(1)(A) of Title 5
provides that petitions for review of final Board decisions
must be taken to the Federal Circuit except in two circum-
stances. First, Board decisions in Whistleblower Protec-
tion Act cases can be reviewed by the Federal Circuit or
any other circuit court of competent jurisdiction. 5 U.S.C.
§ 7703(b)(1)(B). Second, Board decisions arising under sec-
tion 7702, i.e., mixed cases involving adverse agency ac-
tions in which the employee alleges that discrimination
was a basis for the adverse action, can be reviewed only by
district courts. 5 U.S.C. § 7703(b)(2).
The Supreme Court in Perry held that the exclusive ju-
risdiction of district courts in mixed cases applies not only
when the Board has decided the case on the merits or on
procedural grounds, but also when the Board has dis-
missed the employee’s appeal on jurisdictional grounds.
Perry, 137 S. Ct. at 1979. Because the Supreme Court’s
analysis was tied to mixed cases, as described in section
7702, and the assignment of judicial review of such cases,
as provided in section 7703(b)(2), it has no application to
Case: 19-2268 Document: 40 Page: 7 Filed: 06/11/2020
YOUNG v. MSPB 7
petitions for review in IRA cases. Petitions for judicial re-
view of IRA appeals are governed by a different procedure,
set forth in section 7703(b)(1)(B). Section 7703(b)(1)(B) is
not one of the “interwoven statutory provisions” that were
at issue in Perry and its forerunner, Kloeckner v. Solis, 568
U.S. 41, 46 (2012).
Importantly, in an IRA appeal to the Board, the
Board’s review is limited to the merits of allegations of vi-
olations of the Whistleblower Protection Act. Discrimina-
tion claims may not be raised in that context. See 5 C.F.R.
§ 1209.2(c) (in an IRA appeal the “appellant may not raise
affirmative defenses, such as claims of discrimination or
harmful procedural error”), quoted in Rafferty v. Merit Sys.
Prot. Bd., No. 2017-1793, Dkt. No. 15, at 3 (Fed. Cir. Sept.
7, 2017) (non-precedential order); see also Newcastle v.
Dep’t of the Treasury, 94 M.S.P.R. 242, 246 (2003); Marren
v. Dep’t of Justice, 51 M.S.P.R. 632, 638–39, aff’d, 980 F.2d
745 (Fed. Cir. 1992) (table) (“[T]he Board’s jurisdiction to
review IRA complaints based on personnel actions over
which it otherwise does not have appellate jurisdiction is
limited to adjudicating the whistleblower allegations.”).
The Perry decision is applicable to “mixed cases” that arise
from adverse action appeals, but it has no application to
IRA appeals, which by definition are never “mixed cases.”
See Zachariasiewicz v. U.S. Dep’t of Justice, 395 F. Supp.
3d 734, 739–40 (E.D. Va. 2019). We therefore conclude that
we have jurisdiction over Ms. Young’s petition.
IV
On the merits, we affirm the decision of the Board dis-
missing Ms. Young’s IRA appeal for lack of jurisdiction.
The Whistleblower Protection Act allows a federal em-
ployee to seek corrective action from the Board for any per-
sonnel action, as defined in the Act, that the employee
reasonably believes was taken in retaliation for any act of
whistleblowing, as defined in section 2302(b)(8) of Title 5,
or for any act set forth in section 2302(b)(9)(A)(i), (B), (C),
Case: 19-2268 Document: 40 Page: 8 Filed: 06/11/2020
8 YOUNG v. MSPB
or (D) of Title 5. See 5 U.S.C. § 1221. Whether an individ-
ual has such a reasonable belief is determined by an objec-
tive test: whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee would reasonably conclude that the actions
of the government evidence wrongdoing as defined by the
Whistleblower Protection Act. See Giove v. Dep’t of
Transp., 230 F.3d 1333, 1338 (Fed. Cir. 2000).
A party cannot establish jurisdiction through general
assertions, but must provide substantive details. See El-
lison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir.
1993). Moreover, an employee must exhaust his or her
remedies with the Office of Special Counsel before appeal-
ing to the Board. 5 U.S.C. § 1214(a)(3).
The record before the Board does not contain Ms.
Young’s complaint filed with the Office of Special Counsel.
However, the Special Counsel’s letter closing that office’s
investigation identifies the claims she made in the proceed-
ing before the Special Counsel as being (1) time and attend-
ance abuses at her agency, (2) a hostile workplace, and (3)
discrimination and problems with obtaining a reasonable
accommodation for her disability during her employment.
Although Ms. Young’s submissions before the Board and in
this court make reference to a wide variety of claims of mis-
conduct by employees of her agency, the administrative
judge properly limited the Board’s inquiry to those claims
that were shown to have been presented to the Special
Counsel.
With respect to Ms. Young’s disclosures of alleged time
and attendance abuses, the administrative judge found
that the evidence she presented to the Board did not con-
stitute a non-frivolous showing that a reasonable person
would consider that the violations she alleged evidenced
conduct falling within one of the categories of wrongdoing
set forth in 5 U.S.C. § 2302(b)(8)(A). We agree.
Case: 19-2268 Document: 40 Page: 9 Filed: 06/11/2020
YOUNG v. MSPB 9
As the administrative judge found, Ms. Young’s allega-
tions of time and attendance violations were conclusory
and lacked any specificity as to particular instances in
which the violations allegedly occurred. Her assertions, for
example, that employees were taking longer breaks than
were permitted and that “no work was being done” were so
general in nature that those allegations, standing alone,
did not rise to the level of non-frivolous allegations of vio-
lations of a law, rule, or regulation, gross mismanagement,
a gross waste of funds, or an abuse of authority.
Under those circumstances, it was appropriate for the
administrative judge to insist on greater specificity from
Ms. Young in order to determine whether she had made
non-frivolous allegations of qualifying disclosures. Yet,
when the administrative judge directed Ms. Young to pro-
vide additional factual support for her allegations, she did
not respond.
Ms. Young also contends that she was retaliated
against and subjected to a hostile work environment for fil-
ing EEO complaints. Allegations of retaliation for exercis-
ing a Title VII right, however, do not fall within the scope
of section 2302(b)(8) of the Whistleblower Protection Act
and are therefore not proper subjects for inclusion in an
IRA appeal on that ground. See Serrao v. Merit Sys. Prot.
Bd., 95 F.3d 1569, 1575–76 (Fed. Cir. 1996); Spruill v.
Merit Sys. Prot. Bd., 978 F.2d 679, 689 (Fed. Cir. 1992).
Nor do such allegations fall within the list of other prohib-
ited personnel practices for which the Board can grant cor-
rective action in an IRA appeal.
In the Whistleblower Protection Enhancement Act of
2012 (“WPEA”), Pub. L. No. 112-199, 126 Stat. 1465–76,
Congress expanded the list of prohibited personnel prac-
tices for which the Board can grant corrective action to in-
clude those set forth in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),
and (D). 5 U.S.C. § 1221(a). Section 2302(b)(9)(A)(i) covers
retaliation for exercising any appeal, complaint, or
Case: 19-2268 Document: 40 Page: 10 Filed: 06/11/2020
10 YOUNG v. MSPB
grievance right relating to whistleblowing, i.e, retaliation
for seeking to remedy a violation of section 2302(b)(8). See
Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318, 1320 (Fed. Cir.
2016).
Section 2302(b)(9)(A)(ii), which is not included in the
list of prohibited personnel practices for which the Board
can issue corrective action, covers retaliation for exercising
any appeal, complaint, or grievance right other than one
seeking to remedy a violation of section 2302(b)(8). Retali-
ation for filing those other types of complaints is remedia-
ble through different mechanisms, and not by an IRA
appeal to the Board. See Hansen v. Merit Sys. Prot. Bd.,
746 F. App’x 976, 981 n.6 (Fed. Cir. 2018) (reporting alle-
gations of sexual harassment does not constitute a whistle-
blowing disclosure); Garvin v. Merit Sys. Prot. Bd., 737 F.
App’x 999, 1004 (Fed. Cir. 2018) (filing union grievances
and EEO complaint do not fall within the WPEA); Nuri v.
Merit Sys. Prot. Bd., 695 F. App’x 550, 553 (Fed. Cir. 2017)
(filing EEO complaint, unfair labor practice complaint, or
grievance is not within Board’s IRA jurisdiction because
they did not seek to remedy an act of whistleblower re-
prisal); Coulibaly v. Merit Sys. Prot. Bd., 709 F. App’x 9
(D.C. Cir. 2017) (filing a race discrimination complaint is
not a whistleblower disclosure); Daniels v. Merit Sys. Prot.
Bd., 832 F.3d 1049, 1055 & n.13 (9th Cir. 2016) (in enacting
the WPEA, Congress intended to protect only disclosures
of the kind of misconduct listed in section 2302(b)(8));
Mudd v. Dep’t of Veterans Affairs, 120 M.S.P.R 365, 369–
70 (2013) (reprisals for filing grievances, which fall within
section 2302(b)(9)(A)(ii), are not within the scope of IRA
proceedings). For that reason, Ms. Young’s contention that
she was removed in part in retaliation for making EEO
complaints about the agency’s failure to accommodate her
disability does not present an issue over which the Board
has jurisdiction under 5 U.S.C. § 1221(a).
Ms. Young further argues that the agency failed to ac-
commodate her disability in various ways, such as by
Case: 19-2268 Document: 40 Page: 11 Filed: 06/11/2020
YOUNG v. MSPB 11
assigning her a one-armed chair and a non-working com-
puter, and not providing her with the keys to the cabinets
in her cubicle. Ms. Young contends that the “lack of accom-
modations for the Appellant represented a substantial and
specific danger to the health of the Appellant.” In addition,
she contends that the agency retaliated against her for re-
questing that the agency remedy the situation and provide
her with reasonable accommodations for her disability.
Contrary to her contentions, Ms. Young’s allegations do
not establish that she reasonably believed the agency’s ac-
tions constituted a “substantial and specific danger to pub-
lic health and safety” within the meaning of section
2302(b)(8). See S. Rep. No. 95-969, at 21 (1978) (“[T]he
Committee intends that only disclosures of public health or
safety dangers which are both substantial and specific are
to be protected.”); S. Rep. No. 112-155, at 8 (2012) (“[T]he
Committee notes that, with respect to a disclosure of ‘gross
mismanagement,’ a ‘gross waste’ of funds, or a ‘substantial
and specific danger to public health or safety,’ the statute
requires more than disclosure of de minimis wrongdoing.”).
Ms. Young characterizes her complaints regarding the
agency’s failure to accommodate her disability as posing a
danger to the “health of the Appellant,” i.e., to Ms. Young
herself, not a substantial danger to the health or safety of
the public. For that reason, Ms. Young’s “reasonable ac-
commodation” complaints do not qualify as whistleblower
disclosures falling within the Board’s IRA jurisdiction.
And because her complaints to her supervisors regarding
the agency’s failure to accommodate her disability did not
constitute whistleblower disclosures, her contention that
she was retaliated against for those complaints did not con-
stitute a form of whistleblower retaliation falling within
the Board’s IRA jurisdiction.
Finally, as we have noted, the record does not reflect
that the various other alleged disclosures that Ms. Young
refers to in her brief were presented to the Office of Special
Case: 19-2268 Document: 40 Page: 12 Filed: 06/11/2020
12 YOUNG v. MSPB
Counsel. For that reason, the administrative judge was
correct to conclude that Ms. Young did not show that she
exhausted her administrative remedies with respect to
those claims. Those claims are therefore not properly be-
fore this court. See Yunus v. Dep’t of Veterans Affairs, 242
F.3d 1367, 1371 (Fed. Cir. 2001).
Because the administrative judge correctly held that
Ms. Young failed to make nonfrivolous allegations that she
made disclosures that the Board has jurisdiction to address
in an IRA appeal, we uphold the Board’s decision dismiss-
ing Ms. Young’s IRA appeal for lack of jurisdiction. 2
No costs.
AFFIRMED
2 Ms. Young moved for the appointment of counsel to
represent her in this court. As we have noted, in civil pro-
ceedings, the right to the appointment of counsel “is highly
circumscribed, and has been authorized in exceedingly re-
stricted circumstances.” Lariscey v. United States, 861
F.2d 1267, 1270 (Fed. Cir. 1988). A pro se party in a civil
case such as this one is not entitled to the appointment of
counsel as a matter of right, see Taylor v. Merit Sys. Prot.
Bd., 527 F. App’x 970, 972 (Fed. Cir. 2013), and the issues
in this case are not so complex that we regard it as worth-
while to invite pro bono counsel to represent Ms. Young.
The motion for the appointment of counsel is therefore de-
nied.