Hill v. Merit Systems Protection Board , 495 F. App'x 77 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
REGINALD HILL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3093
__________________________
Petition for review of the Merit Systems Protection
Board in MSPB Docket No. AT1221110409-W-1.
____________________________
Decided: October 9, 2012
____________________________
REGINALD HILL, of West Palm Beach, Florida, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
HILL v. VA 2
Before RADER, Chief Judge, LOURIE, Circuit Judge, and
DANIEL * , Chief District Judge.
PER CURIAM.
Reginald Hill appeals from the final decision of the
Merit Systems Protection Board (“the Board”) that dis-
missed his Individual Right of Action (“IRA”) appeal for
lack of jurisdiction. See Hill v. Dep’t of Veterans Affairs,
No. AT1221110409-W-1 (M.S.P.B. June 8, 2011) (“Initial
Decision”); Hill v. Dep’t of Veterans Affairs, No.
AT1221110409-W-1 (M.S.P.B. Feb. 23, 2012) (“Final
Order”). Because the Board did not err in dismissing
Hill’s appeal, we affirm.
BACKGROUND
This case relates to a complaint that Hill filed with
the Office of Special Counsel (“OSC”) in August, 2010. 1
At that time, the Department of Veterans Affairs (“VA”)
employed Hill at a medical facility. In his OSC complaint,
Hill alleged discrimination, in particular, that other
employees were given unauthorized preferences over Hill,
that the VA obstructed his right to compete for employ-
ment, and that the VA failed to afford him preference as a
veteran. At the same time, Hill contacted the Equal
Employment Opportunity Commission and raised related
* Honorable Wiley Y. Daniel, Chief District Judge,
United States District Court for the District of Colorado,
sitting by designation.
1 In dismissing Hill’s appeal, the Board declined to
consider Hill’s OSC complaints filed in 2006 and 2007
because Hill did not provide any evidence that he met the
statutory requirement of exhausting his remedies before
the OSC under 5 U.S.C. § 1214(a)(3). Because that de-
termination was not in error, we will not address those
complaints. Moreover, we note that any appeal regarding
those complaints would be untimely. See 5 U.S.C.
§ 1214(a)(3)(A).
3 HILL v. VA
discrimination claims based on his race, color, sex, age,
and veterans’ status.
In November, 2010, the OSC informed Hill that it had
made a preliminary determination to close its investiga-
tion into Hill’s allegations. According to the OSC, Hill’s
complaint did not allege whistleblower violations, but
alleged only violations of 5 U.S.C. § 2302(b)(1), (b)(4),
(b)(6), and (b)(11), which relate to other purported viola-
tions of law recited above. After the time for Hill to
provide comments lapsed, the OSC closed its investigation
in December, 2010.
Hill thereafter appealed to Board. The administrative
judge (“AJ”) assigned to the appeal issued an initial
decision dismissing Hill’s appeal for lack of jurisdiction.
Initial Decision, at 9–10. In particular, the AJ concluded
that Hill’s complaint did not invoke the whistleblower
protections codified in 5 U.S.C. § 2302(b)(8) because it did
not allege that Hill made a protected disclosure and was
too vague and unspecific.
Hill petitioned the full Board, which denied his peti-
tion. Final Order, at 4. The Board concluded that none of
the evidence in the record showed that Hill made a pro-
tected disclosure under 5 U.S.C. § 2302(b)(8). In particu-
lar, the Board explained that Hill’s OSC complaint “never
mention[ed] whistleblowing, protected disclosure, section
2303(b)(8), or retaliation for whistleblowing.” Id. at 4.
Instead, the Board concluded that the OSC complaint
alleged that the VA gave other employees unauthorized
preference, which was consistent with how the OSC
characterized Hill’s complaint, and that the Board accord-
ingly lacked jurisdiction over Hill’s appeal.
Hill timely appealed to this court. We have jurisdic-
tion pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C.
§ 1295(a)(9).
HILL v. VA 4
DISCUSSION
While the scope of our review in an appeal from a
Board decision is limited, see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003), the scope of the
Board’s jurisdiction is a question of law that we review
without deference, Kelley v. Merit Sys. Prot. Bd., 241 F.3d
1368, 1369 (Fed. Cir. 2001). Under 5 U.S.C. § 1214(a)(3),
an employee is required to “seek corrective action from
the Special Counsel before seeking corrective action from
the Board,” and the Board may only consider the disclo-
sures and personnel actions raised before the OSC, see
Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1035–36 (Fed.
Cir. 1993). “[T]he Board has jurisdiction over an IRA
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),
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 Veter-
ans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
Hill argues that he raised nonfrivolous allegations
that he made a protected disclosure and that the disclo-
sure was a contributing factor in the VA’s decision to take
or not take the personnel actions listed in his OSC com-
plaint. Hill argues that the jurisdictional inquiry carries
a “significantly lower” burden than other pleading re-
quirements and that the Board erred in concluding that
his allegations in his IRA appeal were insufficient to
establish jurisdiction.
The government responds that Hill did not allege any
facts in his complaint to support a claim of reprisal for
whistleblowing. To support its argument, the government
points to OSC’s letter to Hill that did not mention a
5 HILL v. VA
whistleblowing reprisal claim in discussing Hill’s dis-
crimination-related allegations. Thus, argues the gov-
ernment, the Broad’s dismissal of Hill’s appeal for lack of
jurisdiction should be affirmed.
We agree that the Board properly dismissed Hill’s ap-
peal for lack of jurisdiction. The Board correctly con-
cluded that Hill failed to show that he even alleged that
he made a protected disclosure at the OSC. The record
indicates that Hill only raised allegations of unlawful
discrimination, 5 U.S.C. § 2302(b)(1), obstruction of his
ability to compete for employment, id. § 2302(b)(4),
unlawful preferences, id. § 2302(b)(6), and violating a
veterans’ preference, id. § 2302(b)(11). Nothing in the
record indicates that Hill engaged in whistleblowing
activity by making a protected disclosure. Nor is there
any indication that such a disclosure was a contributing
factor in the VA’s decision to take or not take any of the
personnel actions identified by Hill. Thus, the Board
properly dismissed Hill’s claim for lack of jurisdiction.
We have considered Hill’s remaining arguments and
conclude that they are without merit. For the foregoing
reasons, the decision of the Board is
AFFIRMED
COSTS
No costs.