Case: 20-1006 Document: 35 Page: 1 Filed: 05/21/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MITCHELL WINE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1006
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-19-0363-W-1.
______________________
Decided: May 21, 2020
______________________
MITCHELL WINE, Mountain View, AR, pro se.
JEFFREY GAUGER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by KATHERINE
MICHELLE SMITH.
______________________
Before PROST, Chief Judge, REYNA and HUGHES, Circuit
Judges.
Case: 20-1006 Document: 35 Page: 2 Filed: 05/21/2020
2 WINE v. MSPB
PER CURIAM.
Mitch Wine petitions for review of the Merit Systems
Protection Board’s dismissal of his individual right of ac-
tion appeal for lack of jurisdiction. Because Mr. Wine did
not make non-frivolous allegations of a “personnel action”
taken against him, we affirm the Board’s decision.
I
The United States Fish and Wildlife Service (FWS) em-
ployed Mr. Wine from 2003 to 2018. In February 2016, Mr.
Wine filed a complaint (MA-16-2281) with the Office of Spe-
cial Counsel (OSC), alleging that FWS supervisors retali-
ated against him for making certain protected disclosures.
In July 2016, OSC informed Mr. Wine that it had termi-
nated its investigation of these allegations, and Mr. Wine
filed an individual right of action (IRA) appeal with the
Board. See Wine v. Dep’t of the Interior, No. DA-1221-16-
0513-W-2, 2017 MSPB LEXIS 5121 at *13 (M.S.P.B. De-
cember 5, 2017) (2017 IRA Decision).
In the fall of 2016, Mr. Wine filed a second OSC com-
plaint (MA-17-0509, “Fall 2016 complaint”) detailing addi-
tional disclosures. See
id. at *14. Mr. Wine’s designated
representative requested those claims be added to the
pending IRA appeal, so OSC terminated its investigation
in March 2017. See Wine v. Dep’t of the Interior, No. DA-
0752-18-0116-S-7, 2019 MSPB LEXIS 1869 at *3–4
(M.S.P.B. May 31, 2019) (finding that OSC had closed the
2016 complaint, exhausting those issues, and that an IRA
appeal based on that complaint would be untimely). The
Board appears to have partly considered that second com-
plaint in Mr. Wine’s IRA appeal, but found certain allega-
tions not exhausted before OSC. 2017 IRA Decision
at *18–19, *20 n.2, *43 n.6, *51 n.9, *92 n.12. Ultimately,
the Board denied Mr. Wine’s request for corrective action
because it found that FWS would have taken the same ac-
tions absent his whistleblowing.
Id. at *97.
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WINE v. MSPB 3
In December 2017, FWS removed Mr. Wine and he ap-
pealed the removal. Mr. Wine eventually entered into a
settlement agreement with FWS, which the Board ap-
proved as the final resolution of the appeal in April 2018.
Wine v. Dep’t of the Interior, No. DA-0752-18-0116-I-1, 2018
MSPB LEXIS 1541 (M.S.P.B. April 30, 2018).
In January 2018, while that appeal was pending, Mr.
Wine contacted OSC seeking “reconsideration” of his Fall
2016 (MA-17-0509) complaint. S.A. 44. 1 Mr. Wine believed
this was necessary to cure his failure to exhaust allegations
in his original IRA appeal.
Id. OSC purportedly agreed to
reevaluate the complaint, but Mr. Wine, dissatisfied with
a perceived lack of follow-up or action, in June 2019, filed
the IRA appeal petitioned here.
Id. See Wine v. Office of
Special Counsel, No. DA-1221-19-0363-W-1, 2019 MSPB
LEXIS 2747 (M.S.P.B. July 29, 2019) (Decision). He alleges
that OSC retaliated against him in violation of 5 U.S.C.
§ 2302 by failing to complete an investigation of the Fall
2016 complaint and by failing to “reconsider” that com-
plaint in 2018. S.A. 44.
II
In the petitioned IRA appeal, OSC moved for a juris-
dictional determination, arguing that the Board lacked ju-
risdiction because Mr. Wine “failed to nonfrivolously allege:
(1) that OSC subjected him to an appealable action; or
(2) that OSC subjected him to a covered personnel action in
retaliation for his protected whistleblowing activity.” De-
cision at *2–3. The Administrative Judge ordered Mr.
Wine to show cause why the IRA appeal should not be dis-
missed for lack of jurisdiction, directing Mr. Wine to ex-
plain in particular how “OSC’s investigations or
1 “S.A.” refers to the pages of the respondent’s sup-
plemental appendix attached to the respondent’s brief.
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4 WINE v. MSPB
prosecutorial decisions were personnel actions within the
meaning of 5 U.S.C. § 2302(a)(2)(A).” Decision at *3.
Mr. Wine argued that OSC’s failure to investigate qual-
ified as a personnel action under § 2302(a)(2)(A)(xii) be-
cause it “effectuated a ‘significant change in working
conditions’ for [Mr. Wine] by allowing FWS managers to
dismiss harassment grievances against themselves and in-
terfere with [Mr. Wine’s] Workers’ Compensation claim to
have it denied unlawfully.” Decision at *4 (quoting S.A. 45,
itself quoting § 2302(a)(2)(A)(xii)). Mr. Wine argued that
OSC’s actions were a prohibited personnel practice in vio-
lation of § 2302(b)(12) because, in his view, OSC had an ob-
ligation to investigate his claims under 5 U.S.C. § 1214(a),
and not doing so would violate his due process rights. De-
cision at *4–5.
The Administrative Judge rejected these arguments,
holding that the Board has no authority to enforce OSC’s
statutory requirements to investigate allegations of whis-
tleblower reprisal. Decision at *5–6 (citing Wren v. Merit
Sys. Prot. Bd.,
681 F.2d 867, 871–72, (D.C. Cir. 1982); Mil-
ler v. Dep’t of Homeland Sec.,
111 M.S.P.R. 325, 332–33
(2009)). The Administrative Judge explained that “[OSC’s]
investigations and decisions are not personnel actions
within the meaning of 5 U.S.C. § 2302(a)(2)(A), even
though they may be of interest to [Mr. Wine] and to his ca-
reer with FWS.” Decision at *6.
Mr. Wine did not petition for appeal to the full Board.
The Administrative Judge’s initial decision became the
Board’s final decision and Mr. Wine timely petitioned this
Court for review. We have jurisdiction under 5 U.S.C.
§ 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
III
We set aside a final Board decision only if it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures
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WINE v. MSPB 5
required by law, rule, or regulation having been followed;
or unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir.
1995). We review the Board’s determination that it lacks
jurisdiction without deference.
Id. However, we review the
underlying factual findings on which a jurisdictional deter-
mination is based for substantial evidence. Bolton v. Merit
Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998). The
petitioner, Mr. Wine, bears the burden of establishing the
Board’s jurisdiction by a preponderance of the evidence.
Stoyanov v. Dep’t of Navy,
474 F.3d 1377, 1379 (Fed. Cir.
2007).
We find no error in the Board’s dismissal for lack of ju-
risdiction. “The Board’s jurisdiction is not plenary, but is
limited to those matters over which it has been granted ju-
risdiction by law, rule, or regulation.”
Id. To establish the
Board’s jurisdiction over an IRA appeal, petitioners must
identify non-frivolous allegations that (1) they engaged in
whistleblowing activity by making a protected disclosure
under 5 U.S.C. §§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D);
and (2) the protected disclosure was a contributing factor
in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a).
Id. at 1379–80; see
5 U.S.C. § 1221(a). “[N]ot every agency action is a ‘person-
nel action’ under the WPA.” King v. Dep’t of Health & Hu-
man Servs.,
133 F.3d 1450, 1453 (Fed. Cir. 1998). We agree
with the Board that Mr. Wine has not sufficiently alleged
a “personnel action as defined by 5 U.S.C. § 2302(a).”
Stoyanov, 474 F.3d at 1380.
Mr. Wine alleged that OSC took a personnel action un-
der the “catch-all” provision, 5 U.S.C. § 2302(a)(2)(A)(xii),
by failing to investigate his complaint. See S.A. 45. To es-
tablish a personnel action under this provision, Mr. Wine
would have to identify a “significant change in duties, re-
sponsibilities, or working conditions” caused by OSC’s al-
legedly improper inaction. § 2302(a)(2)(A)(xii). The
circumstances here preclude any reasonable allegation
Case: 20-1006 Document: 35 Page: 6 Filed: 05/21/2020
6 WINE v. MSPB
that OSC’s failure to investigate created a “significant
change” in Mr. Wine’s working conditions. Because Mr.
Wine did not work for OSC, OSC had no direct authority to
change Mr. Wine’s working conditions. Claims that OSC’s
actions can cause a “significant change” in Mr. Wine’s
working conditions—when he was employed by FWS, not
OSC—rest on a dubious foundation.
Moreover, OSC’s alleged failure to investigate logically
cannot have changed Mr. Wine’s working conditions. Any
hostile working conditions Mr. Wine experienced at FWS
must have existed before he even complained to OSC, else
he would have had no grounds for a complaint. Thus, ei-
ther OSC has not yet been given adequate notice of
Mr. Wine’s allegations, or any failure to act by OSC only
maintained the status quo. OSC’s hypothetical ability to
improve the status quo by investigating Mr. Wine’s allega-
tions and recommending corrective action does not give the
Board jurisdiction over an IRA appeal involving OSC. Cf.
Wren v. Merit Sys. Prot. Bd.,
681 F.2d 867, 871–72 (D.C.
Cir. 1982) (holding that the Board has no authority to en-
force OSC’s statutory requirement to investigate whistle-
blower reprisals).
The Whistleblower Protection Act offers Mr. Wine the
opportunity to resolve any allegations he believes were not
adequately investigated by OSC through filing an IRA ap-
peal directed to FWS’s actions. Mr. Wine invoked that
right for the Fall 2016 complaint already, as discussed in
the 2017 IRA Decision. See Section
I, supra. If any allega-
tions were not exhausted before that IRA appeal—thereby
depriving the Board of jurisdiction over those allegations
in that appeal—the lack of jurisdiction was not for OSC’s
failure to investigate or take action, but for Mr. Wine’s fail-
ure to make those allegations to OSC with adequate
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WINE v. MSPB 7
specificity. 2 After all, the OSC need not act for aggrieved
persons to have exhausted their remedies before OSC. See
Ellison v. Merit Sys. Prot. Bd.,
7 F.3d 1031, 1036 (Fed. Cir.
1993) (“[I]f no action has been taken by the OSC within 120
days . . . [an] employee [may] seek corrective action from
the Board.”) (citing 5 U.S.C. § 1214(a)(3)(B)). Any IRA ap-
peal Mr. Wine may still have lies against FWS, not OSC.
Establishing Board jurisdiction in such an appeal may re-
quire a new OSC complaint specifically making the unex-
hausted allegations, if Mr. Wine has a basis for such a
complaint despite having already been separated from
FWS.
Because the Board did not err in finding that Mr. Wine
failed to identify a qualifying personnel action that OSC
had taken against him, we affirm the Board’s dismissal of
his appeal.
AFFIRMED
No costs.
2 In that appeal, the Administrative Judge also
found that—assuming Mr. Wine had exhausted the allega-
tions made here—those allegations were “discrete, unre-
lated events, which taken together, do not constitute
impermissible alterations in the terms and conditions of
his employment.” Wine, 2017 MSPB LEXIS 5121 at *51.
So, even if Mr. Wine’s allegations were properly raised
against OSC, they would still not yield non-frivolous alle-
gations of a personnel action under § 2302(a)(2)(A)(xii).
