Robert M. Miller v. Federal Deposit Insurance Corporation ( 2014 )


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  •                          UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    
    2014 MSPB 83
    Docket No. SF-1221-13-0574-W-2
    Robert M. Miller,
    Appellant,
    v.
    Federal Deposit Insurance Corporation,
    Agency.
    November 6, 2014
    Robert M. Miller, San Francisco, California, pro se.
    Thomas J. Sarisky, Arlington, Virginia, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice Chairman
    Mark A. Robbins, Member
    OPINION AND ORDER
    ¶1         The appellant has filed a petition for review of an initial decision that
    dismissed his individual right of action (IRA) appeal for lack of jurisdiction
    because, among other things, his claim of reprisal for disclosing information
    during an internal grievance process was not a matter that could be adjudicated in
    this IRA appeal, regardless of whether the pertinent provisions of the
    Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No.
    112-199, 126 Stat. 1465, applied retroactively. For the following reasons, we
    2
    DENY the petition for review, AFFIRM the initial decision as modified, and
    DISMISS this appeal for lack of jurisdiction.
    BACKGROUND
    ¶2         In Miller v. Federal Deposit Insurance Corporation, MSPB Docket
    No. SF-3443-12-0301-I-1, Final Order (June 26, 2013), the Board forwarded the
    appellant’s petition for review to the Western Regional Office for docketing as an
    IRA appeal, and this appeal followed. See Miller v. Federal Deposit Insurance
    Corporation, MSPB Docket No. SF-1221-13-0574-W-1, Initial Appeal File (W-1
    IAF), Tab 1. As explained in more detail below, all of the material events in this
    matter occurred before the relevant provisions of the WPEA took effect on
    December 27, 2012. See WPEA § 202. An IRA appeal is authorized by statute
    only in certain reprisal cases as designated in 5 U.S.C. § 1221(a). Prior to the
    WPEA, an eligible individual’s entitlement to seek corrective action from the
    Board in an IRA appeal was limited to covered personnel actions taken or
    proposed to be taken as a result of a prohibited personnel practice (PPP)
    described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for whistleblowing.
    See 5 U.S.C. § 1221(a) (2011); see also 5 C.F.R. § 1209.4(b) (defining
    “whistleblowing”). The WPEA extended the IRA appeal right in section 1221(a)
    to include not only PPPs described in 5 U.S.C. § 2302(b)(8) but also PPPs
    described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D), as amended by the
    WPEA. WPEA § 101(b)(1)(A). The administrative judge dismissed this appeal
    without prejudice to refiling pending the Board’s decision in Hooker v.
    Department of Veterans Affairs, 120 M.S.P.R. 629 (2014), regarding whether the
    expanded IRA appeal provisions in the WPEA should be applied retroactively.
    See W-1 IAF, Tab 8, Initial Decision.
    ¶3         After this appeal was refiled, the administrative judge issued an order to
    show cause explaining that, in Hooker, 120 M.S.P.R. 629, ¶¶ 8-15, the Board
    3
    determined that the new IRA appeal right in section 101(b)(1)(A) of the WPEA
    pertaining to the PPPs described in 5 U.S.C. § 2302(b)(9)(B) did not apply
    retroactively to a Board appeal that was pending when the WPEA was enacted. 1
    Miller v. Federal Deposit Insurance Corporation, MSPB Docket No. SF-1221-
    13-0574-W-2, Initial Appeal File (W-2 IAF), Tab 3. The administrative judge
    noted that the analysis in Hooker “appears equally applicable” to a claim based
    on the PPPs described in 5 U.S.C. § 2302(b)(9)(A).                 
    Id. at 3
    n.2.     The
    administrative judge therefore ordered the appellant to show cause why his appeal
    should not be dismissed for lack of jurisdiction. 
    Id. at 4.
    ¶4         After the appellant responded to the order, W-2 IAF, Tab 4, the
    administrative judge issued an initial decision that dismissed the IRA appeal for
    lack of jurisdiction, W-2 IAF, Tab 6, Initial Decision (ID). The administrative
    judge found that, under long-standing precedent of the Board and the U.S. Court
    of Appeals for the Federal Circuit, the alleged reprisal for the appellant’s
    grievance activity and for disclosing information as a part of that process could
    be a PPP as described in 5 U.S.C. § 2302(b)(9) but not as described in 5 U.S.C.
    § 2302(b)(8). See ID at 6. The administrative judge further found that all the
    material events in this case occurred prior to the effective date of the WPEA and
    that, following Hooker, the extension of IRA appeal rights in the WPEA was not
    to be given retroactive effect to reprisal claims based on certain activity described
    in 5 U.S.C. § 2302(b)(9).       See ID at 6-8.      The administrative judge further
    concluded that, even if these WPEA provisions applied retroactively, the
    1
    As amended by the WPEA, 5 U.S.C. § 2302(b)(9)(B) states that it is a PPP to take or
    fail to take, or threaten to take or fail to take, any personnel action against any
    employee because of “testifying for or otherwise lawfully assisting any individual in the
    exercise of any right referred to in subparagraph (A)(i) or (ii).” Subparagraphs (A)(i)
    and (ii) refer to the exercise of any appeal, complaint, or grievance right granted by any
    law, rule, or regulation—(i) with regard to remedying a violation of paragraph (8), or
    (ii) other than with regard to remedying a violation of paragraph (8).
    4
    appellant’s claims would be covered under 5 U.S.C. § 2302(b)(9)(A)(ii), as
    amended by the WPEA, and as such would still not be among the enumerated
    grounds for an IRA appeal. See ID at 8 (citing Mudd v. Department of Veterans
    Affairs, 120 M.S.P.R. 365, ¶ 7 (2013)). 2 The administrative judge also found
    that, to the extent that the appellant was raising allegations of reprisal for
    separate whistleblowing disclosures that occurred outside of the context of the
    internal grievance process, the appellant failed to prove that he had exhausted his
    administrative remedy with the Office of Special Counsel (OSC) regarding such
    claims and thus, by law, they could not be a basis for Board jurisdiction over this
    IRA appeal. ID at 4-5.
    ¶5         The appellant has filed a petition for review, the agency has filed a
    response, and the appellant has filed a reply. See Petition for Review (PFR) File,
    Tabs 1, 3-4.    On review, the appellant challenges the administrative judge’s
    jurisdictional analysis.   PFR File, Tab 1 at 8-14.      He further argues that the
    administrative judge improperly denied his motion to compel discovery and his
    motion to strike certain information from the record.         
    Id. at 8,
    14.   He also
    includes an agency draft anti-harassment policy that may have been disseminated
    to employees after the close of the record below. See 
    id. at 11-12,
    17-26.
    2
    As an additional basis for finding a lack of jurisdiction over the appellant’s (b)(9)
    claims, the administrative judge found that, under pre-WPEA law, the appellant was an
    employee of a government corporation rather than an “agency” as defined at 5 U.S.C.
    § 2302(a)(2)(C)(i) (2011), and thus was excluded from coverage under 5 U.S.C. § 2302
    except for a claim arising under subsection (b)(8), ID at 6 & n.8 (citing Snead v.
    Pension Benefit Guaranty Corporation, 74 M.S.P.R. 501, 502-03 (1997); Dockery v.
    Federal Deposit Insurance Corporation, 64 M.S.P.R. 458, 460-62 (1994)). The WPEA
    amended 5 U.S.C. § 2302(a)(2)(C)(i) to add language regarding section
    2302(b)(9)(A)(i), (B), (C), and (D). See WPEA § 101(b)(1)(B). Because we find that
    the Board lacks jurisdiction for the reasons set forth in this Opinion and Order, we do
    not reach the administrative judge’s alternative analysis.
    5
    ANALYSIS
    The administrative judge properly concluded that the appellant exhausted his
    remedies with OSC regarding claims of reprisal for his grievance activities, but
    he did not seek corrective action from OSC regarding his claims of reprisal for
    disclosures or activities outside of the grievance process.
    ¶6         The first element of Board jurisdiction over an IRA appeal is exhaustion by
    the appellant of his administrative remedies before OSC.                   See 5 U.S.C.
    §§ 1214(a)(3),    1221(a);     see   also   Yunus     v.    Department      of   Veterans
    Affairs, 
    242 F.3d 1367
    , 1371 (Fed. Cir. 2001); Carney v. Department of Veterans
    Affairs, 121 M.S.P.R. 446, ¶ 4 (2014). Specifically, under 5 U.S.C. § 1214(a)(3),
    an employee is required to “seek corrective action from [OSC] before seeking
    corrective action from the Board” through an IRA appeal.                  To satisfy this
    requirement, an appellant must articulate to OSC the basis for his request for
    corrective action “with reasonable clarity and precision.”               Ellison v. Merit
    Systems Protection Board, 
    7 F.3d 1031
    , 1037 (Fed. Cir. 1993); see Ward v. Merit
    Systems Protection Board, 
    981 F.2d 521
    , 526 (Fed. Cir. 1992).                Although an
    appellant may add further detail to his claims before the Board, see Briley v.
    National Archives & Records Administration, 
    236 F.3d 1373
    , 1378 (Fed. Cir.
    2001), the appellant must first make a reasonably clear and precise claim with
    OSC, see, e.g., Mintzmyer v. Department of the Interior, 
    84 F.3d 419
    , 422 (Fed.
    Cir. 1996).
    ¶7         The     administrative   judge   found   that   the    appellant     exhausted   his
    administrative remedies with OSC regarding his claims of reprisal for disclosures
    made during steps 1, 2, and 3 of the grievance process. ID at 5. The record fully
    supports this finding.   See W-1 IAF, Tab 5 at 64-76 (OSC complaint), 13-21
    (step 1 grievance dated May 29, 2011), 22-40 (step 2 grievance dated July 22,
    6
    2011), 41-57 (step 3 grievance dated September 8, 2011). 3            For instance, the
    appellant’s OSC complaint specifically identifies these three grievances as the
    alleged disclosures at issue.      
    Id. at 68,
    70-72.     Further, he repeatedly made
    narrative assertions on his OSC complaint form that he made his disclosures in
    his grievances. See 
    id. at 67
    (“On May 29 th , I filed a grievance with the FDIC for
    violations of law, regulation, EEOC guidance, FDIC policies, and the collective
    bargaining agreement.”), 73 (“I filed a grievance for violation of law, regulation,
    guidance, and the collective bargaining agreement.”), 74 (“In the grievance, I
    accused [my first-line supervisor] and the FDIC generally of violating the law
    and my rights.”).     Thus, we find that the appellant satisfied the exhaustion
    requirement of 5 U.S.C. § 1214(a)(3) regarding his allegations concerning
    reprisal for his grievance activity and disclosures of information in that context.
    ¶8         In briefing the jurisdictional issue before the administrative judge, the
    appellant claimed that he also suffered reprisal for making certain disclosures
    outside of the grievance process. Specifically, he referenced his May 26, 2011
    email to the agency Ombudsman, W-2 IAF, Tab 4 at 10, 18-19, and his emails to
    the agency Acting Chairman and/or his Chief of Staff beginning on February 7,
    2012, concerning “FDIC Values, Cultural Change, [and] Merit Systems
    Principles,” W-1 IAF, Tab 5 at 8, 11, 58-63; W-2 IAF, Tab 4 at 10, 20-28. There
    is no evidence that the appellant informed OSC of these communications with the
    3
    Although the appellant’s OSC complaint misstated the date of his step 3 grievance as
    July 22, 2011, see W-1 IAF, Tab 5 at 72, it is clear from context that he was referring to
    disclosures made during his step 3 grievance, see 
    id. at 72-73,
    which was filed on
    September 8, 2011, 
    id. at 41,
    and was the subject of a hearing before a Deputy Director
    on September 21, 2011, 
    id. at 8,
    68. Although the appellant’s OSC complaint did not
    explicitly refer to either of these September dates, we find that his complaint was clear
    enough to inform OSC that he was seeking corrective action for disclosures made in his
    written step 3 grievance and during the hearing in that matter on September 21, 2011.
    We modify the initial decision to the extent that the administrative judge found
    otherwise. See ID at 5 n.7.
    7
    agency Ombudsman, Chairman, or Chief of Staff, and these communications are
    not mentioned in his OSC complaint. See W-1 IAF, Tab 5 at 64-76. In contrast,
    his OSC complaint described in detail his grievance activity, which was the core
    of the complaint. See supra ¶ 7.
    ¶9          On review, the appellant does not argue that he raised with OSC his
    communications with the Ombudsman, Chairman, or Chief of Staff. Instead, he
    asserts that he generally “made reasonable attempts” to exhaust with OSC and
    that “[i]t simply does not matter whether [he] notified the OSC that he had also
    made disclosures outside the grievance process” because OSC had already
    determined that it would terminate an investigation into his allegations.    PFR
    File, Tab 1 at 14. He further speculates that, if OSC had chosen to interview him,
    it could have determined whether there were disclosures outside of the grievance
    process, other types of personnel actions, or other covered disclosures. PFR File,
    Tab 4 at 12-13. We find these arguments unavailing.
    ¶10         Seeking corrective action with OSC is an important statutory prerequisite
    to an IRA appeal before the Board. See 5 U.S.C. § 1214(a)(3); see also Serrao v.
    Merit Systems Protection Board, 
    95 F.3d 1569
    , 1578 (Fed. Cir. 1996); 
    Ward, 981 F.2d at 526
    .     The appellant’s allegations regarding alleged disclosures
    outside the grievance process are not merely a more detailed account of the
    claims he presented to OSC; rather, they are new allegations of protected activity
    separate from the grievance activity that was the core of the retaliation claim
    described in his submissions to OSC. See supra ¶ 7; cf. 
    Briley, 236 F.3d at 1378
    .
    As such, he has not proven that he sought corrective action with OSC regarding
    these claims, and the Board lacks jurisdiction to review them in this IRA appeal.
    See 
    Serrao, 95 F.3d at 1575-78
    (finding that the Board did not have jurisdiction
    over a potential claim of reprisal as a result of a PPP described in 5 U.S.C.
    § 2302(b)(8) because the employee did not articulate such a claim with
    reasonable clarity and precision when seeking corrective action from OSC for
    8
    reprisal for the exercise of grievance rights); see also 
    Mintzmyer, 84 F.3d at 422
          (finding that an appellant’s allegation in her OSC complaint that she was
    “subjected to constructive discharge by harassing and retaliatory behavior” was
    not sufficiently clear or precise to constitute exhaustion of her administrative
    remedies regarding four alleged retaliatory actions that she specified for the first
    time to the Board in her IRA appeal).
    The appellant’s allegations of reprisal for grievance activity are properly
    considered as allegations of PPPs under 5 U.S.C. § 2302(b)(9), rather than
    subsection (b)(8).
    ¶11         It is well-settled that reprisal for filing a grievance is protected by 5 U.S.C.
    § 2302(b)(9), not section 2302(b)(8).      
    Serrao, 95 F.3d at 1574-76
    ; Mason v.
    Department of Homeland Security, 116 M.S.P.R. 135, ¶ 22 n.6 (2011); Fisher v.
    Department of Defense, 47 M.S.P.R. 585, 587-88 (1991).           The U.S. Court of
    Appeals for the Federal Circuit has emphasized that the Board must avoid
    blurring the deliberate and substantive distinction established by Congress
    between whistleblowing disclosures protected under subsection (b)(8) and the
    exercise of grievance rights protected under subsection (b)(9)(A).            
    Serrao, 95 F.3d at 1576
    (citing 
    Ellison, 7 F.3d at 1035
    ). Thus, the court has held that an
    appellant cannot meet the jurisdictional requirements in an IRA appeal merely by
    inserting section 2302(b)(8) allegations into an agency grievance. 
    Id. ¶12 Notwithstanding
    this clear precedent, the appellant cites Bump v.
    Department of the Interior, 64 M.S.P.R. 326 (1994), for the proposition that “it
    simply does not matter that the protected disclosures were made within the
    grievance process when they otherwise establish the type of fraud, waste or abuse
    that the WPA was intended to reach.” PFR File, Tab 4 at 12; accord PFR File,
    Tab 1 at 12-13. This is a misinterpretation of Bump and the relevant law. In
    Bump, the Board recognized that an employee may make a number of related
    disclosures based upon the same operative facts.       Bump, 64 M.S.P.R. at 332.
    Mr. Bump had made certain disclosures to OSC that could qualify as protected
    9
    disclosures under 5 U.S.C. § 2302(b)(8). 
    Id. at 3
    31. The Board found that he
    was not disqualified from pursing an IRA appeal based on reprisal for making
    those disclosures to OSC merely because he also may have raised them as part of
    a grievance. 
    Id. at 3
    31-32. That is not the situation here. As set forth above, the
    issue in this appeal is limited to alleged reprisal only as a result of the appellant’s
    grievance activity and disclosures of information in that context. Thus, Bump is
    distinguishable, see 
    Serrao, 95 F.3d at 1576
    n.6, and the appellant’s exhausted
    claims are properly considered as allegations of PPPs under 5 U.S.C.
    § 2302(b)(9), see, e.g., 
    Serrao, 95 F.3d at 1574-76
    ; Mason, 116 M.S.P.R. 135,
    ¶ 22 n.6; Fisher, 47 M.S.P.R. at 587-88.
    The provisions of the WPEA authorizing an IRA appeal based on an allegation of
    reprisal as a result of a PPP under 5 U.S.C. § 2302(b)(9)(A)(i) do not apply to
    this case.
    ¶13         Under the law in effect at the time of the events at issue in this appeal, an
    eligible individual’s entitlement to seek corrective action from the Board in an
    IRA appeal was limited to covered personnel actions taken or proposed to be
    taken as a result of a PPP described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for
    whistleblowing.    See 5 U.S.C. § 1221(a) (2011).        Because the appellant only
    sought corrective action from OSC regarding allegations of reprisal as a result of
    PPPs as described in 5 U.S.C. § 2302(b)(9), the Board lacks IRA jurisdiction over
    those claims under the law in effect at the time of the events at issue. See 
    Serrao, 95 F.3d at 1574-76
    .
    ¶14         We now turn to the impact of the WPEA, if any, on the appellant’s appeal.
    The WPEA was signed into law on November 27, 2012, and it had an effective
    date of December 27, 2012. King v. Department of the Air Force, 119 M.S.P.R.
    663, ¶ 3 (2013). With exceptions not applicable here, under 5 U.S.C. § 1221(a),
    as amended by section 101(b)(1)(A) of the WPEA, an employee may seek
    corrective action from the Board concerning any personnel action taken, or
    proposed to be taken, against him as a result of a PPP described in section
    10
    2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 4            Amended section
    2302(b)(9)(A) provides that any employee who has authority to take, direct others
    to take, recommend, or approve any personnel action shall not, with respect to
    such authority, take or fail to take, or threaten to take or fail to take, any
    personnel action against any employee because of:
    (A) the exercise of any appeal, complaint, or grievance right granted
    by any law, rule, or regulation—
    (i) with regard to remedying a violation of paragraph (8); or
    (ii) other than with regard to remedying a violation of paragraph
    (8).
    Under 5 U.S.C. § 1221(e)(1), as amended by the WPEA, and subject to the
    provisions of section 1221(e)(2), in any case involving an alleged PPP as
    described under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or
    (D), “the Board shall order such corrective action as the Board considers
    appropriate if the employee . . . has demonstrated that a disclosure or protected
    activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C),
    or (D) was a contributing factor in the personnel action which was taken or is to
    be taken.”
    ¶15          In Hooker, 120 M.S.P.R. 629, ¶¶ 11-15, the Board used the analytical
    framework set forth in Landsgraf v. USI Film Products, 
    511 U.S. 244
    (1994), to
    determine that the retroactive application of the new IRA appeal right in section
    101(b)(1)(A) of the WPEA, as it pertains to the personnel actions taken as a result
    of a PPP, as set forth at 5 U.S.C. § 2302(b)(9)(B), would be impermissible
    because it would increase a party’s liability for past conduct as compared to
    4
    Section 2302(b)(9)(C) involves cooperating with or disclosing information to the
    Inspector General of an agency, or the Special Counsel, in accordance with applicable
    provisions of law. Section 2302(b)(9)(D) involves refusing to obey an order that would
    require the individual to violate a law. Neither of these subsections is implicated in this
    matter.
    11
    pre-WPEA liability. The same rationale is applicable here. Indeed, as in Hooker,
    the WPEA created a new Board appeal right in IRA appeals for employees who
    allege that a personnel action has been taken as a result of a PPP described in
    section 2302(b)(9)(A)(i), and it includes a new provision directing the Board to
    order such corrective action as the Board considers appropriate when such
    protected activity is a contributing factor in a personnel action.                  See
    Hooker, 120 M.S.P.R. 629, ¶ 15. Therefore, consistent with Hooker, we decline
    to apply in this case the new IRA appeal right in section 101(b)(1)(A) of the
    WPEA as it pertains to the PPPs described at 5 U.S.C. § 2302(b)(9)(A)(i) because
    doing so would increase a party’s liability for past conduct as compared to pre-
    WPEA liability. 5 Thus, even assuming that the appellant made a nonfrivolous
    allegation that he engaged in activity that would now be considered protected
    under 5 U.S.C. § 2302(b)(9)(A)(i), the appellant cannot bring an IRA appeal on
    that basis regarding events that occurred before the effective date of the WPEA. 6
    We discern no error with the administrative judge’s decision to deny the
    appellant’s motion to compel discovery and motion to strike certain information
    from the record.
    ¶16         The appellant asks the Board to overturn the administrative judge’s
    decision on his request to “have information that was prejudicial to this case
    5
    The Board appeal in Hooker was pending when the WPEA was enacted. See Hooker,
    120 M.S.P.R. 629, ¶ 10. Here, however, the relevant events occurred before the WPEA
    was enacted and its effective date, but the appeal was docketed after the effective date
    of the WPEA. See, e.g., W-1 IAF, Tab 5 at 13-21 (May 29, 2011 step 1 grievance),
    22-40 (July 22, 2011 step 2 grievance), 41-57 (September 8, 2011 step 3 grievance),
    64-76 (the appellant’s March 2012 OSC complaint), 77-78 (OSC’s correspondence to
    the appellant). This difference in chronology does not warrant a different disposition.
    See Hooker, 120 M.S.P.R. 629, ¶ 11 (citing 
    Landsgraf, 511 U.S. at 280
    ).
    6
    In light of this finding, we need not reach the issue of whether the appellant’s claim
    should be considered as a claim covered by 5 U.S.C. § 2302(b)(9)(A)(ii) rather than
    subsection (b)(9)(A)(i).
    12
    removed from the record,” and he states that he did not have a sufficient
    opportunity to conduct discovery. PFR File, Tab 1 at 14. Although unclear, it
    appears that the appellant is challenging the administrative judge’s June 6, 2014
    order that denied his: (1) motion for reconsideration of the order denying his
    motion to compel in his prior Board appeal, Miller v. Federal Deposit Insurance
    Corporation, MSPB Docket No. SF-3443-12-0301-I-1; and (2) objection to the
    order to show cause that made reference to his grieving his letter of warning
    (LOW). See W-2 IAF, Tab 5 at 1-2 (June 6, 2014 order); see also W-2 IAF,
    Tab 4 at 4-6 (the appellant objected to any further reference to a “LOW
    grievance”), 14-15 (the appellant requested reconsideration of the decision to
    deny his motion to compel in his prior Board appeal).
    ¶17         We discern no error with the administrative judge’s decisions in this
    regard. As the administrative judge noted, the Board found in its final order in
    the prior Board appeal that the administrative judge did not abuse his discretion
    in denying the appellant’s motions to compel.         See W-1 IAF, Tab 1 at 4.
    Moreover, we agree with the administrative judge that the appellant’s May 29,
    2011 grievance “[w]ithout question” referenced the LOW. W-2 IAF, Tab 5 at 2;
    see W-1 IAF, Tab 5 at 18, 21. Accordingly, we see no basis upon which to strike
    the administrative judge’s reference to the appellant’s grieving the LOW in the
    show cause order.
    The appellant’s “new” evidence on review does not warrant a different outcome.
    ¶18         We have considered the draft anti-harassment policy that the appellant
    includes with his petition for review. See PFR File, Tab 1 at 17-26. We find,
    even if we viewed the draft policy as “new” evidence, it is not of sufficient
    weight to warrant an outcome different from that of the initial decision because it
    does not change our determination that the Board lacks jurisdiction over the
    appeal   for   the   reasons   set   forth   above.     See   Russo   v.   Veterans
    Administration, 3 M.S.P.R. 345, 349 (1980).
    13
    ORDER
    ¶19         This is the final decision of the Merit Systems Protection Board in this
    appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
    § 1201.113(c)).
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the United
    States Court of Appeals for the Federal Circuit.
    The court must receive your request for review no later than 60 calendar
    days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
    27, 2012). If you choose to file, be very careful to file on time. The court has
    held that normally it does not have the authority to waive this statutory deadline
    and that filings that do not comply with the deadline must be dismissed. See
    Pinat v. Office of Personnel Management, 
    931 F.2d 1544
    (Fed. Cir. 1991).
    If you want to request review of the Board’s decision concerning your
    claims   of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
    (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
    the Board’s disposition of any other claims of prohibited personnel practices, you
    may request the United States Court of Appeals for the Federal Circuit or any
    court of appeals of competent jurisdiction to review this final decision. The court
    of appeals must receive your petition for review within 60 days after the date of
    this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
    choose to file, be very careful to file on time. You may choose to request review
    of the Board’s decision in the United States Court of Appeals for the Federal
    Circuit or any other court of appeals of competent jurisdiction, but not both.
    Once you choose to seek review in one court of appeals, you may be precluded
    from seeking review in any other court.
    14
    If you need further information about your right to appeal this decision to
    court, you should refer to the federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
    Dec. 27, 2012). You may read this law as well as other sections of the United
    States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode/htm.
    Additional information about the United States Court of Appeals for the Federal
    Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
    relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
    contained within the court's Rules of Practice, and Forms 5, 6, and 11.
    Additional information about other courts of appeals can be found at their
    respective           websites,          which         can        be        accessed
    through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    If you are interested in securing pro bono representation for an appeal to
    the United States Court of Appeals for the Federal Circuit, you may visit our
    website at http://www.mspb.gov/probono for a list of attorneys who have
    expressed interest in providing pro bono representation for Merit Systems
    Protection Board appellants before the Federal Circuit.         The Merit Systems
    15
    Protection Board neither endorses the services provided by any attorney nor
    warrants that any attorney will accept representation in a given case.
    FOR THE BOARD:
    ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.