Oguma v. Merit Systems Protection Board , 489 F. App'x 455 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PATRICK H. OGUMA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3053
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF3443110113-I-1.
__________________________
Decided: July 16, 2012
__________________________
PATRICK H. OGUMA, of Keaau, Hawaii, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
OGUMA v. MSPB 2
Before RADER, Chief Judge, NEWMAN and REYNA, Circuit
Judges.
PER CURIAM.
Petitioner pro se, Patrick H. Oguma, seeks review of a
decision of the Merit Systems Protection Board (“MSPB”
or “Board”) dismissing his appeal for lack of jurisdiction.
Because the Board correctly determined that it lacked
jurisdiction, we affirm.
I
On November 8, 2010, Mr. Oguma filed a petition
with the Board, making numerous allegations including
the alleged denial of a retroactive promotion. On Novem-
ber 15, 2010, the administrative judge ordered Mr.
Oguma to file evidence and argument on the denial-of-a-
promotion claim and to address the timeliness of his
appeal. After Mr. Oguma respond to this order, the
government moved to dismiss his appeal for lack of juris-
diction. Mr. Oguma argued, inter alia, that the Navy had
failed to advise him of his eligibility for disability retire-
ment and removed him in retaliation for filing a com-
plaint of disability discrimination. The administrative
judge found that Mr. Oguma’s responses did not clarify
the specific action(s) he aimed to appeal and failed to
adequately establish that the Board had jurisdiction.
As a result, on March 3, 2011, the administrative
judge issued an Order to Show Cause articulating Mr.
Oguma’s burden of proof and requesting evidence and/or
argument to prove that the Board had jurisdiction over
his appeal. In a subsequent order granting Mr. Oguma’s
motion for an extension of time in which to respond to the
Board’s Order to Show Cause and another order relating
to the timeliness of Mr. Oguma’s claims, the administra-
tive judge emphasized that the only issue pending before
3 OGUMA v. MSPB
it was whether the Board had jurisdiction over the alleged
denial of a promotion in 1986. The Order stated that if
Mr. Oguma sought to appeal any other agency action, he
must file a separate petition for appeal and clearly indi-
cate the nature of his appeal. 1
On May 18, 2011, the administrative judge dismissed
Mr. Oguma’s appeal for lack of jurisdiction. According to
the administrative judge, the record established that
effective January 6, 1985, Mr. Oguma received a promo-
tion from GS-07 position to a GS-09 position. On Novem-
ber 15, 1985, he was reassigned to another GS-09 position
because a reorganization had abolished his former posi-
tion. In response, Mr. Oguma had filed a grievance
seeking a retroactive promotion to a GS-11 position on the
grounds that he had been expected to perform at a GS-11
level.
Based on these factual findings, the administrative
judge determined that the Board lacked jurisdiction
because Mr. Oguma could not establish Board jurisdiction
over the cancellation of a promotion because he did not
allege that he was actually promoted to a GS-11 position
and his purported failure to receive a pay raise does not
constitute an appealable reduction in pay. The adminis-
trative judge concluded that the Board lacked jurisdiction
to adjudicate any allegations based on discrimination or
prohibited personnel practices because Mr. Oguma did not
raise an otherwise appealable action.
Mr. Oguma appealed this decision to the full Board,
but the Board denied his petition and the administrative
judge’s initial decision final became final. The Board
concluded, inter alia, that despite the administrative
1 The administrative judge also denied Mr.
Oguma’s request for appointment of counsel and his
motion to compel discovery.
OGUMA v. MSPB 4
judge’s attempts to get Mr. Oguma to clarify what actions
he aimed to appeal and to set out nonfrivolous allegations
that would vest the Board with jurisdiction over his
claims, Mr. Oguma failed to satisfy his burden of proof. 2
This appeal followed. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
This Court shall hold unlawful and set aside any
Board action, findings, or conclusions found to be “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). Whether the Board has jurisdiction is a
question of law reviewed de novo. See Chadwell v. Merit
Sys. Prot. Bd., 629 F.3d 1306, 1308-09 (Fed. Cir. 2010).
The Board’s jurisdiction is limited. It may review an
adverse agency action, such as a reduction in pay or
grade, a removal, a suspension for more than 14 days, and
a furlough of 30 days or less. See 5 U.S.C. § 7512(1)-(5).
As the petitioner, Mr. Oguma bears the burden of es-
tablishing the Board’s jurisdiction by preponderant evi-
dence. See 5 C.F.R. § 1201.56(a)(2). Complaints drafted
by pro se litigants are held to less stringent standards
than formal pleadings drafted by lawyers. See Henke v.
United States, 60 F.3d 795, 799 (Fed. Cir. 1995). How-
ever, this latitude does not permit a pro se plaintiff to
subvert the Court's jurisdictional requirements. Id.We conclude that the Board properly denied Mr.
Oguma’s petition for review. Not only did Mr. Oguma fail
to clarify what agency actions he aimed to appeal, but also
2 The Board found the timeliness issue irrelevant
since the case was dismissed on jurisdictional grounds.
5 OGUMA v. MSPB
he did not make non-frivolous factual allegations suffi-
cient to vest the Board with jurisdiction over his appeal
despite repeated opportunities to do so.
The Board correctly determined that it lacked juris-
diction over Mr. Oguma’s alleged denial of a retroactive
promotion. See 5 U.S.C. § 7512(1)-(5); Deida v. Dep’t of
the Navy, 110 M.S.P.R. 408, 414 (2009). Because Mr.
Oguma did not avail himself of multiple opportunities to
clarify the actions he attempted to appeal and raise
nonfrivolous jurisdictional facts sufficient to vest the
Board with jurisdiction over them, the Board did not err
in affirming the administrative judge’s decision to limit
Mr. Oguma’s appeal to his denial of promotion claim and
to dismiss his claim for lack of jurisdiction.
Mr. Oguma further alleges that the Board erred in af-
firming the administrative judge’s denial of his motion to
have counsel appointed due to his mental and physical
conditions. However, Mr. Oguma did not establish that
the standards for requesting pro bono counsel delineated
in French v. Office of Pers. Mgmt., 37 M.S.P.R. 496, 499
(1988), extend beyond retirement appeals. Therefore, the
Board did not err.
Finally, Mr. Oguma’s remaining allegations regarding
discrimination and prohibited personnel practices do not
constitute independent bases for Board jurisdiction. See
Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed. Cir.
1991) (en banc). Because these allegations were not
raised with an otherwise appealable action, the Board
lacked jurisdiction to consider them.
We have considered Mr. Oguma’s additional argu-
ments made on appeal and find that they provide no basis
for relief. For the foregoing reasons, the decision of the
Board is hereby
OGUMA v. MSPB 6
AFFIRMED
COSTS
Each party shall bear its own costs.