Nuri v. Merit Systems Protection Board ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AHMED M. NURI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1462
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-16-0293-W-1.
______________________
Decided: June 12, 2017
______________________
AHMED M. NURI, Mountain View, CA, pro se.
TREYER AUSTIN MASON-GALE, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK, KATHERINE M. SMITH.
______________________
Before PROST, Chief Judge, BRYSON and HUGHES, Circuit
Judges.
2 NURI v. MSPB
PER CURIAM.
Appellant Ahmed Nuri seeks review of a Merit Sys-
tems Protection Board (“MSPB” or “Board”) decision
dismissing his appeal of his termination for lack of juris-
diction. Ahmed v. Dep’t of the Army, M.S.P.B. No. SF-
1221-16-0293-W-1 (Final Order, Nov. 10, 2016; Initial
Decision, June 22, 2016). Because we conclude that the
MSPB lacked jurisdiction over this appeal, we affirm.
I
In 2005, the Department of the Army hired Mr. Nuri
as a senior instructor under a term appointment, which
was extended through a series of additional term ap-
pointments with the final appointment terminating no
later than October 27, 2015. In 2015, however, issues
arose concerning Mr. Nuri’s conduct and performance.
Specifically, on April 8, 2015, the agency counseled
Mr. Nuri in writing regarding his interactions with col-
leagues, and subsequently advised him that his lesson
presentation failed to meet the criteria for certification.
Additionally, the Army rated Mr. Nuri’s performance as
“needs improvement.” Shortly thereafter, on October 16,
2015, the agency notified Mr. Nuri that his term ap-
pointment would not be renewed beyond its not-to-exceed
date. His appointment terminated October 27, 2015.
A few days after receiving notice of his termination,
Mr. Nuri filed a complaint with the United States Office
of Special Counsel (“OSC”) alleging that the Army had
terminated his appointment in retaliation for several
petitions that he had filed, since 2008, “protesting gross
mismanagement, abuse of authority, and favoritism” by
the Army. Resp’t’s App. 61–70. In particular, Mr. Nuri
notified OSC of six purportedly protected disclosures that
he had made, which he asserts resulted in the Army
refusing to renew his appointment. A few months later,
OSC notified Mr. Nuri that it was closing its investigation
NURI v. MSPB 3
but informed him that he may file an individual right of
action with the MSPB if he desired further review.
Mr. Nuri appealed his dismissal and filed a whistle-
blower reprisal individual right of action with the MSPB.
The MSPB administrative judge found that the Board
lacked jurisdiction to review Mr. Nuri’s dismissal because
the Army’s failure to renew Mr. Nuri’s term appointment
was not an adverse action under 5 U.S.C. § 7513. Fur-
ther, the administrative judge concluded that the Board
did not have jurisdiction to review Mr. Nuri’s whistle-
blower reprisal individual right of action. The adminis-
trative judge found that four of Mr. Nuri’s submissions to
the OSC were not protected whistleblower disclosures and
that Mr. Nuri failed to non-frivolously allege that the
other two disclosures contributed to the Army’s decision
to dismiss him.
Mr. Nuri appealed the administrative judge’s decision
to the full Board, which affirmed the decision. Mr. Nuri
now appeals the Board’s decision. We have jurisdiction
pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
§ 1295(a)(9).
II
On appeal, Mr. Nuri argues that the Board should
have found jurisdiction because the Army improperly
removed him. Whether the Board has jurisdiction is a
question of law that this court reviews without deference.
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998). The court reviews the Board’s factual findings
for substantial evidence. Id. Ultimately, the petitioner
bears the burden of establishing jurisdiction. McCarthy v.
Merit Sys. Prot. Bd., 809 F.3d 1365, 1373 (Fed. Cir. 2016).
Mr. Nuri first contends that the Board had jurisdic-
tion to hear his appeal under 5 U.S.C. § 7513. Sec-
tion 7513 authorizes the Board to hear challenges to
adverse actions such as removals. See 5 U.S.C. § 7512(1);
4 NURI v. MSPB
5 C.F.R. § 1201.3(a)(1). “[N]on-renewal of a term ap-
pointment at the term’s expiration,” however, is not an
“adverse action.” Reddick v. F.D.I.C., 809 F.3d 1253, 1256
(Fed. Cir. 2016); see also 5 C.F.R. § 752.401(b)(11) (defin-
ing “[t]ermination of appointment on the expiration date
specified as a basic condition of employment at the time
the appointment was made” as an “excluded action” and
not an “adverse action”).
Here, it is uncontested that Mr. Nuri was serving a
term appointment not to exceed October 27, 2015, and
that his appointment expired on that date. Accordingly,
the Army’s failure to extend Mr. Nuri’s appointment was
not an “adverse action” and the MSPB lacked jurisdiction
to review his removal. Reddick, 709 F.3d at 1256.
Mr. Nuri also argues that the Constitution guarantees
him due process which he was denied here. This court,
however, has already held that a public employee’s “fed-
eral constitutional due process claim depends on his
having a property right in continued employment” and
where “the public employee is hired for a limited ap-
pointment or is at will, then the employee does not have a
property interest in continued employment.” Stone v.
F.D.I.C., 179 F.3d 1368, 1375 (Fed. Cir. 1999). According-
ly, because the Army did not deprive Mr. Nuri of a proper-
ty right in his continued employment, he does not have a
due process claim.
In sum, the MSPB lacked jurisdiction to hear Mr. Nu-
ri’s improper removal case and properly dismissed the
action.
III
Second, Mr. Nuri argues that the Board had jurisdic-
tion over his individual right of action for whistleblower
retaliation. We disagree. Under § 1221, the Board has
jurisdiction over an employee’s claim that he was termi-
nated because he made a protected disclosure or engaged
NURI v. MSPB 5
in protected activity. We have further explained that “the
Board has jurisdiction over an [individual right of action]
appeal if the appellant has exhausted his administrative
remedies before the OSC and makes ‘non-frivolous allega-
tions’ that (1) he engaged in whistleblowing activity by
making a protected disclosure under 5 U.S.C.
§ 2302(b)(8)–(9) , and (2) the 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).” Yunus
v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001).
Mr. Nuri’s whistleblower reprisal individual right of
action was premised on six purportedly protected disclo-
sures: (1) a November 24, 2008 Office of Inspector General
complaint alleging discrimination and nepotism; (2) an
April 22, 2014 Equal Employment Opportunity complaint
alleging discrimination and favoritism in hiring; (3) a
March 22, 2015 unfair labor practice complaint alleging
abuses in the hiring system; (4) an August 31, 2015 class
action lawsuit filed in the U.S. District Court for the
Northern District of California alleging unfairness in the
criteria for rank advancement; (5) a September 15, 2015
matter he reported to the Office of Inspector General; and
(6) an October 15, 2015 grievance he filed alleging that
the agency had unfairly evaluated his work performance.
Resp’t’s App. 6–7.
The Board found that Mr. Nuri had exhausted his
administrative remedies with the OSC for all six disclo-
sures. The Board went on to conclude, however, that it
did not have jurisdiction over Mr. Nuri’s individual right
of action for two distinct reasons. First, the Board con-
cluded that Mr. Nuri had not “engaged in whistleblowing
activity,” Yunnus, 242 F.3d at 1371, by making disclo-
sures 2, 3, 4, and 6 because those disclosures were not
“appeal[s], complaint[s], or grievance[s]” that sought to
“remedy a [whistleblower reprisal],” 5 U.S.C.
§ 2302(b)(9)(A)(i). Resp’t’s App. 24. Second, the Board
6 NURI v. MSPB
concluded that Mr. Nuri had failed to show that disclo-
sures 1 and 5 were “contributing factor[s] in the agency’s
decision to” remove Mr. Nuri. Yunnus, 242 F.3d at 1371.
Id. Accordingly, the Board concluded that it did not have
jurisdiction to review Mr. Nuri’s whistleblower reprisal
individual right of action.
Mr. Nuri, in his briefing, does not challenge any of
these factual findings. He does not, for example, argue or
provide any evidence that his Equal Employment Oppor-
tunity complaint, his unfair labor practice complaint, his
class-action lawsuit, or his grievance sought to remedy a
whistleblower reprisal. Similarly, Mr. Nuri does not
provide any evidence that the matters he reported to the
Office of Inspector General contributed in any way to his
removal. Further, because Mr. Nuri did not provide a
copy of his 2015 Office of Inspector General complaint to
the Board or to this court, we cannot determine if the
complaint was a contributing factor in the Army’s decision
to not renew Mr. Nuri’s appointment. Further, as the
Board noted, Mr. Nuri fails to challenge the administra-
tive judge’s finding that it is likely that Mr. Nuri’s 2008
disclosure was too remote in time to have impacted his
removal in 2015. Resp’t’s App. 27. Accordingly, none of
Mr. Nuri’s disclosures could have formed the basis for his
whistleblower reprisal individual right of action.
In sum, the Board properly concluded that the MSPB
lacked jurisdiction over Mr. Nuri’s case. Accordingly, the
decision of the MSPB is affirmed.
AFFIRMED
COSTS
The parties shall bear their own costs.