McCarthy v. Merit Systems Protection Board , 809 F.3d 1365 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
ROBERT J. MCCARTHY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3072
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-09-0725-W-1, DA-1221-10-0078-W-
1.
______________________
Decided: January 14, 2016
______________________
PAULA NAOMI DINERSTEIN, Public Employees for Envi-
ronmental Responsibility, Washington, DC, argued for
petitioner.
MICHAEL ANTON CARNEY, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before PROST, Chief Judge, LOURIE and WALLACH, Circuit
Judges.
2 MCCARTHY v. MSPB
PROST, Chief Judge.
Robert McCarthy, who was formerly employed as a
supervisory attorney for the United States International
Boundary and Water Commission (the “Commission” or
the “USIBWC”), appeals from a denial by the Merit Sys-
tems Protection Board (“Board”) of his motion to reopen
his appeal. For the reasons discussed below, this court
affirms.
BACKGROUND
A
The circumstances giving rise to this appeal are
summarized in part in our decision McCarthy v. Interna-
tional Boundary and Water Commission: U.S. and Mexico,
497 F. App’x 4 (Fed. Cir. 2012) (unpublished). We provide
facts relevant to the issues here below.
USIBWC Commissioner Bill Ruth hired McCarthy as
a full-time, supervisory attorney for the Commission
beginning January 18, 2009. Between June and July,
2009, McCarthy prepared four legal memoranda (two on
June 19, one on July 14, and one on July 20) challenging
certain activities at the Commission as “gross misman-
agement” and contrary to existing law. McCarthy’s
memoranda also attacked certain officers as lacking “core
competencies.”
On July 28, 2009, McCarthy submitted a report titled
“Disclosures of Alleged Fraud, Waste and Abuse” to the
State Department Office of Inspector General (“OIG”), as
well as other federal agencies. The report stated, “I have
previously made the Commissioner aware of the matters
disclosed herein, and I have provided legal advice with
respect thereto.” J.A. 171. It specifically identified both
June 19 memoranda, but did not identify the July memo-
randa. That same day, McCarthy sent an email to the
USIBWC’s Commissioner Ruth informing him that he had
MCCARTHY v. MSPB 3
“report[ed] allegations of fraud, waste and abuse (and
suspected criminal activity).” J.A. 182.
On July 31, 2009, Commissioner Ruth terminated
McCarthy’s employment. In support of his decision,
Commissioner Ruth cited McCarthy’s
continued failure to support me or other members
of the executive staff in a constructive and collegi-
al manner as evidenced in [his] memoranda of
June 19, 2009, ‘Legal Requirements for Infor-
mation Management’, June 19, 2009, ‘Legal Re-
quirements for Separation of Budget and Finance
Responsibilities’, July 14, 2009, ‘Opinion on the
Draft Internal Audit Program Directive and Man-
ual’, and July 20, 2009, ‘Comments on Proposed
Directive Management System’ . . . .
J.A. 183.
B
On August 1, 2009, McCarthy filed a complaint with
the Office of Special Counsel (“OSC”), alleging whistle-
blower retaliation. His complaint identified his report to
OIG, but not the legal memoranda, as protected activity.
At the time, this was consistent with existing precedent,
which held that reports made in the course of an employ-
ee’s normal duties and reports made to a supervisor about
a supervisor’s conduct were not protected under the
Whistleblower Protection Act of 1989, Pub. L. No. 101-12,
103 Stat. 16 (codified at various sections of 5 U.S.C.)
(“WPA”). See Huffman v. Office of Pers. Mgmt., 263 F.3d
1341, 1344 (Fed. Cir. 2001). On August 21, McCarthy
submitted an additional “Statement in Support of Com-
plaint for Reprisal, Appeal and Stay Request” to the OSC
which discussed his whistleblowing complaint in more
detail. This statement did not explicitly identify the legal
memoranda, but discussed similar topics. Compare J.A.
4 MCCARTHY v. MSPB
209–23 (August 21 statement), with J.A. 152–81 (legal
memoranda).
The administrative judge issued an initial decision on
April 9, 2010, concluding that McCarthy had not been
retaliated against. The Board affirmed the administra-
tive judge’s initial decision on August 5, 2011, and we
affirmed on October 15, 2012. McCarthy, 497 F. App’x at
16.
McCarthy petitioned for rehearing on November 29,
2012. Petition for Panel Rehearing, Rehearing En Banc,
McCarthy, 497 F. App’x 4 (No. 11-3239), ECF No. 2.
While McCarthy’s petition was still pending, Congress
enacted the Whistleblower Protection Enhancement Act of
2012 (“WPEA”), which became effective December 27,
2012. Pub. L. No. 112-199, 126 Stat. 1465-76 (codified as
amended in scattered sections of 5 U.S.C., 6 U.S.C. § 133,
31 U.S.C. § 1116, 50 U.S.C. § 401a). Both parties recog-
nize that, under the WPEA, McCarthy’s four legal memo-
randa could be protected disclosures. Compare Opening
Br. 31–32, with Responsive Br. 31; see 5 U.S.C. § 2302(f).
On June 26, 2013, the Board decided Day v. Department
of Homeland Security, No. DC-1221-12-0528-W-1, 2013
WL 3204514 (M.S.P.B. June 26, 2013), which held that
§ 101 of the WPEA could be applied retroactively to
pending cases. The parties do not dispute that the WPEA
could be applied retroactively here. Compare Opening Br.
14, 24–25, with Responsive Br. 28. McCarthy did not
raise the WPEA’s change in law while his petition for
rehearing was pending. 1
1 At oral argument, McCarthy explained that he did
not raise WPEA’s change in law while his petition was
pending because the Board had not yet decided Day.
Thus, in his view, it was unclear that the WPEA could be
retroactively applied to his case.
MCCARTHY v. MSPB 5
We denied McCarthy’s petition for rehearing on Feb-
ruary 13, 2013. McCarthy v. Int’l Boundary & Water
Comm’n: U.S. & Mex., No. 11-3239 (Fed. Cir. Feb. 13,
2013). McCarthy petitioned for certiorari to the Supreme
Court on May 13, 2013, which was denied on October 7,
2013. McCarthy v. Int’l Boundary & Water Comm’n: U.S.
& Mex., No. 12-1364 (Oct. 7, 2013).
On October 25, 2013, McCarthy filed a motion to reo-
pen his appeal with the Board, seeking reinstatement and
“other appropriate relief.” J.A. 132. After the Board did
not respond, on December 1, 2014, McCarthy petitioned
this court for a writ of mandamus directing the Board to
issue a decision. Petition for Writ of Mandamus, In re
McCarthy, No. 2015-118 (Fed. Cir. Dec. 1, 2014), ECF No.
1. While McCarthy’s mandamus petition was pending, on
January 8, 2015, the Clerk of the Board sent McCarthy a
letter informing him that the Board would not reopen his
case. We denied McCarthy’s mandamus petition on
January 29, 2015, electing to instead construe his petition
as a timely petition for review, which is the appeal now
before us.
DISCUSSION
A
This court’s review of decisions by the Board is lim-
ited. Under 28 U.S.C. § 1295(a)(9), we may only hear “an
appeal from a final order or final decision of the” Board.
28 U.S.C. § 1295(a)(9) (2012). A threshold question, then,
is whether the Clerk’s January 8 letter constitutes a “final
order or final decision” that may be reviewed by us.
Section 1201.113 of 5 C.F.R., titled “Finality of deci-
sion,” provides in relevant part:
The initial decision of the judge will become the
Board’s final decision 35 days after issuance. Ini-
tial decisions are not precedential.
6 MCCARTHY v. MSPB
(a) Exceptions. The initial decision will not be-
come the Board’s final decision if within the time
limit for filing specified in 1201.114 of this part,
any party files a petition for review or, if no peti-
tion for review is filed, files a request that the ini-
tial decision be vacated for the purpose of
accepting a settlement agreement into the record.
(b) Petition for review denied. If the Board denies
all petitions for review, the initial decision will be-
come final when the Board issues its last decision
denying a petition for review.
(c) Petition for review granted or case reopened. If
the Board grants a petition for review or a cross
petition for review, or reopens or dismisses a case,
the decision of the Board is final if it disposes of
the entire action.
The reviewability of Clerk letters from the Board is
not an entirely new question to us. In Haines v. Merit
Systems Protection Board, 44 F.3d 998, 1000 (Fed. Cir.
1995), we found that a pro forma letter from the Clerk
denying repetitive motions to reopen was not a “final
order or final decision” under 5 C.F.R. § 1201.113, and
thus not reviewable. We reasoned that “the letter was
merely an administrative response by the Clerk to
Haines’s third informal letter request that the Board
reopen her appeal and reconsider its final decision on its
own motion. The Clerk had been delegated the authority
to make such responses by the Board and was performing
only a ministerial function in this regard.” Id.
While we need not decide the reviewability of Clerk
letters generally, we conclude that, at least in the circum-
stances of this case, where a Clerk letter denies a first
motion to reopen, Haines does not apply. As we previous-
ly noted, Haines appears to have involved repetitive
motions to reopen. In re McCarthy, No. 15-118, slip op. at
2 (Fed. Cir. Jan. 29, 2015). Because of this, the situation
MCCARTHY v. MSPB 7
only required an “administrative response” which could be
dispensed by a “ministerial function.” Haines, 44 F.3d at
1000. By contrast, McCarthy’s motion to reopen had not
been previously considered by the Board as it involved an
intervening change in law. In effect, then, the Clerk
letter announcing the Board’s denial of his motion an-
nounced a substantive decision which had a real impact
on McCarthy’s interests. The nature of this decision is
akin to a “final order or final decision,” not an “adminis-
trative response,” and should be construed as such. This
court’s jurisdiction should not turn on the manner in
which the Board chooses to announce its decision, and it
would elevate form over substance to hold otherwise.
The Board’s arguments to the contrary are unavail-
ing. While it is true that existing statutes and regula-
tions do not specifically state that a Clerk letter is a “final
order or final decision,” see, e.g., 5 U.S.C. § 7701(e)(1)(B),
5 C.F.R. §§ 1201.113, 1201.117(c), they also do not prohib-
it it from being so. Indeed, they are silent as to the form
these documents may or may not take. Id. Thus, charac-
terizing a Clerk letter as a “final order or decision” does
not conflict with existing law.
Accordingly, we are not deprived of jurisdiction simply
because the Board issued its denial of McCarthy’s motion
to reopen in letter form.
B
This case presents a second jurisdictional hurdle: even
if the Clerk letter in this case qualifies as a “final order or
decision,” we may not hear this case if the Board’s deci-
sion on McCarthy’s motion to reopen a case is not itself
reviewable. In past cases, we have acknowledged that is
an open question. See, e.g., Zamot v. Merit Sys. Prot. Bd.,
332 F.3d 1374, 1378 (Fed. Cir. 2003) (noting that whether
we have the authority to review a Board decision regard-
ing reopening is “an issue the court has left open”); Nelson
v. FDIC, 83 F.3d 1375, 1377 (Fed. Cir. 1996) (“Assuming,
8 MCCARTHY v. MSPB
without deciding, that we may review the Board’s decision
not to reopen an appeal on its own motion . . . for an abuse
of discretion, we discern no such abuse . . . .”).
“Congress rarely intends to prevent courts from en-
forcing its directives to federal agencies” and there exists
a “strong presumption favoring judicial review of adminis-
trative action.” Mach Mining, LLC v. EEOC, 135 S. Ct.
1645, 1651 (2015). Nevertheless, before review may be
had, “a party must first clear the hurdle of § 701(a).”
Heckler v. Chaney, 470 U.S. 821, 828 (1985). Sec-
tion 701(a)(2) of the Administrative Procedures Act
(“APA”) precludes judicial review where “agency action is
committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(2). This is a “very narrow exception” that applies
in “those rare instances where ‘statutes are drawn in such
broad terms that in a given case there is no law to apply.’”
Citizens to Preserve Overton Park, Inc., 401 U.S. 402, 410
(1971) (quoting S. Rep. No. 79-752, at 26 (1945)); see also
Heckler, 470 U.S. at 830 (“[R]eview is not to be had if the
statute is drawn so that a court would have no meaning-
ful standard against which to judge the agency’s exercise
of discretion.”). In addition, § 701(a)(2) more likely ap-
plies if an “agency decision not to enforce often involves a
complicated balancing of a number of factors which are
peculiarly within its expertise.” Heckler, 470 U.S. at 831.
The only statutory acknowledgement of the Board’s
authority to reopen cases appears in 5 U.S.C. § 7701(e)(1),
which provides:
(e)(1) Except as provided in section 7702 of this ti-
tle, any decision under subsection (b) of this sec-
tion shall be final unless—
(A) a party to the appeal or the Director petitions
the Board for review within 30 days after the re-
ceipt of the decision; or
MCCARTHY v. MSPB 9
(B) the Board reopens and reconsiders a case on
its own motion.
The Board, for good cause shown, may extend the
30-day period referred to in subparagraph (A) of
this paragraph. One member of the Board may
grant a petition or otherwise direct that a decision
be reviewed by the full Board. The preceding sen-
tence shall not apply if, by law, a decision of an
administrative law judge is required to be acted
upon by the Board.
The Board argues that the “broad and standard-less
language” of § 7701(e)(1)(B) is sufficient to bring cases
such as this, where the Board denies a motion to reopen,
within the prohibition of § 701(a)(2). Specifically, the
Board notes that this statute neither authorizes motions
to reopen, nor does it lay out a standard by which such
motions should be judged. It contrasts this to statutes
governing motions to reopen in other contexts, such as 49
U.S.C. § 10327(g), 2 which sets forth the Interstate Com-
2 Section 10327(g) of 49 U.S.C. provides:
(g)(1) The Commission may, at any time on its
own initiative because of material error, new evi-
dence, or substantially changed circumstances—
(A) reopen a proceeding;
(B) grant rehearing, reargument, or reconsidera-
tion of an action of the Commission; and
(C) change an action of the Commission.
An interested party may petition to reopen and
reconsider an action of the Commission under this
paragraph under regulations of the Commission.
(2) The Commission may grant a rehearing, rear-
gument, or reconsideration of an action of the
10 MCCARTHY v. MSPB
merce Commission’s authority to reopen prior decisions
and which the Supreme Court has found reviewable in
certain circumstances. Interstate Commerce Comm’n v.
Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284 (1987).
The Board’s reliance on § 7701(e)(1)(B) is misplaced.
Section 7701(e), the broader provision in which
§ 7701(e)(1)(B) appears, is a provision which sets forth
conditions under which a decision of the Board can be
considered final. Its reference to “the Board reopens” is
simply that—a reference to reopening such that it can set
forth how reopening impacts a decision’s status (e.g., final
or not final). Unlike 49 U.S.C. § 10327(g) (the Interstate
Commerce Commission provision cited by the Board), this
is not a provision focused on reopening procedures, nor
the Board’s authority to act in this way. Therefore, it
makes sense that § 7701(e)(1)(B) would not fully set forth
legal standards or address motion practice—this was not
the purpose of this provision and an attempt to do so
Commission that was taken by a division desig-
nated by the Commission if it finds that—
(A) the action involves a matter of general trans-
portation importance; or
(B) the action would be affected materially be-
cause of clear and convincing new evidence or
changed circumstances.
An interested party may petition for rehearing,
reargument, or reconsideration of an action of the
Commission under this paragraph under regula-
tions of the Commission. The Commission may
stay an action pending a final determination un-
der this paragraph. The Commission shall com-
plete reconsideration and take final action by the
120th day after the petition is granted.
MCCARTHY v. MSPB 11
could render the remainder of the provision confusing.
Given this context, it would not be reasonable to infer an
intent to “commit to agency discretion by law” from
§ 7701(e)(1)(B)’s passing reference to “the Board reopens.”
See Barlow v. Collins, 397 U.S. 159, 166–67 (1970)
(“[J]udicial review of a final agency action by an aggrieved
person will not be cut of [sic] unless there is persuasive
reason to believe that such was the purpose of Con-
gress.”); Abbott Labs. v. Gardner, 387 U.S. 136, 141
(1967), abrogated by Califano v. Sanders, 430 U.S. 99
(1977) (“[O]nly upon a showing of ‘clear and convincing
evidence’ of a contrary legislative intent should the courts
restrict access to judicial review.”). We decline to do so
here.
We also do not think that the fact that Congress has
otherwise been silent as to the Board’s authority to reo-
pen a case is sufficient to pull this case within the realm
of § 701(a)(2). The mere absence of a statute spelling out
the details of how an agency should carry out a particular
action does not mean that that action has been wholly
committed to agency discretion. Indeed, the Supreme
Court has found agency decisions—including decisions to
not reopen a case—reviewable under the APA, even in the
absence of specific statutory directives. See, e.g., Dunlop
v. Bachowski, 421 U.S. 560, 573 (1975), overruled on other
grounds by Local No. 82, Furniture & Piano Moving,
Furniture Store Drivers, Helpers, Warehousemen & Pack-
ers v. Crowley, 467 U.S. 526, 549–50 (1984) (Secretary of
Labor’s decision to file certain civil actions was judicially
reviewable in absence of statutory prohibition); Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 158
(1970) (ruling by Comptroller was judicially reviewable in
absence of statutory indication that review was preclud-
ed); see also INS v. Rios-Pineda, 471 U.S. 444, 451 (1985)
(refusal to reopen suspension proceeding reviewable
despite absence of statutory mechanism for reopening).
12 MCCARTHY v. MSPB
What remains, then, is the “strong presumption favor-
ing judicial review of administrative action.” Mach Min-
ing, LLC, 135 S. Ct. at 1651. In the specific facts before
us here, where the Board issued a decision on a motion to
reopen that is premised on a change in law, we find that
review is appropriate under 5 U.S.C. § 706(2)(A). The
Supreme Court has held:
Though the agency’s discretion is unfettered at
the outset, if it announces and follows—by rule or
by settled course of adjudication—a general policy
by which its exercise of discretion will be gov-
erned, an irrational departure from that policy (as
opposed to an avowed alteration of it) could con-
stitute action that must be overturned as ‘arbi-
trary, capricious, [or] an abuse of discretion’
within the meaning of the Administrative Proce-
dure Act, 5 U.S.C. § 706(2)(A).
INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996). This is
precisely the case here: the Board has established a
practice of entertaining motions to reopen which, alt-
hough not codified in statute, are governed by regulations
and substantially settled case law. See, e.g., 5 C.F.R.
§§ 1201.117, 1201.118; Anthony v. Office of Pers. Mgmt.,
70 M.S.P.R. 214, 219 (1996); Moss v. Dep’t of the Air
Force, No. CH-1221-97-0313-B-1, 1999 WL 398739
(M.S.P.B. June 11, 1999), aff’d sub nom. Moss v. Dep’t of
the Air Force, 230 F.3d 1372 (Fed. Cir. 1999). Most nota-
bly, the Board has held that reopening “may be appropri-
ate where there is clear and material legal error, and a
conflict between the holding of the decision and a control-
ling precedent or statute, either because of an oversight or
a change in the controlling law between the date of the
original decision and the reopening request.” Olson v.
Dep’t of Agric., No. CH-3443-00-0857-I-1, 2002 WL
1289867 (M.S.P.B. June 3, 2002).
MCCARTHY v. MSPB 13
Accordingly, we hold that, at least in the case of a
Board decision on a motion to reopen that is premised on
a change in law, we have jurisdiction to review, generally
applying the “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” standard under
5 U.S.C. § 706(2)(A). Whether we have jurisdiction to
review decisions on motions to reopen that are premised
on other grounds, or the Board’s decision to reopen a case
sua sponte, are issues we need not reach, and we decline
to do so here.
C
Having found the Board’s denial of McCarthy’s motion
to reopen reviewable under the APA, we next consider
whether the Board erred in denying McCarthy’s motion.
We conclude that it did not.
As an initial matter, we note that the Board did not
specify in its January 8 letter the bases under which it
denied McCarthy’s motion to reopen. This potentially
raises concerns under Chenery, which generally prohibits
courts from upholding agency decisions on grounds other
than those actually relied upon by the agency. See SEC v.
Chenery Corp., 318 U.S. 80, 95 (1943) (“[A]n administra-
tive order cannot be upheld unless the grounds upon
which the agency acted in exercising its powers were
those upon which its action can be sustained.”) However,
even under Chenery we may, in appropriate circumstanc-
es, “affirm the agency on grounds other than those relied
upon in rendering its decision, when upholding the agen-
cy’s decision does not depend upon making a determina-
tion of fact not previously made by the agency.” In re
Comiskey, 554 F.3d 967, 974 (Fed. Cir. 2009) (quoting
Killip v. Office of Pers. Mgmt., 991 F.2d 1564, 1568–69
(Fed. Cir. 1993)) (internal quotation marks omitted); see
also Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir.
1998) (quoting Koyo Seiko Co. v. United States, 95 F.3d
1094, 1099–1102 (Fed. Cir. 1996)) (“[T]he [Chenery]
14 MCCARTHY v. MSPB
doctrine does not prohibit a reviewing court from affirm-
ing an agency decision on a ground different from the one
used by the agency if the new ground is not one that calls
for ‘a determination or judgment which an administrative
agency alone is authorized to make.’”). Because, as we
explain below, we can affirm the Board’s decision on
precisely such grounds—a lack of jurisdiction based on
application of a statute (5 U.S.C. § 1214) to undisputed
facts (McCarthy did not identify the legal memoranda in
his submissions to the OSC)—there is no Chenery concern
here.
The Board’s jurisdiction is not plenary, but is limited
by statute. 5 U.S.C. § 7701(a). A petitioner bears the
burden of establishing that the Board has jurisdiction by
a preponderance of evidence. Serrao v. Merit Sys. Prot.
Bd., 95 F.3d 1569, 1573 (Fed. Cir. 1996) (citing 5 C.F.R.
§ 1201.56(a)(2)).
McCarthy’s case is an individual right of action
(“IRA”) appeal, which the Board has jurisdiction to hear
under 5 U.S.C. § 1214. However, before an aggrieved
employee can file an IRA appeal, he must first seek
corrective action from the OSC. 5 U.S.C. § 1214(a)(3)
(“Except in a case in which an employee, former employee,
or applicant for employment has the right to appeal
directly to the Merit Systems Protection Board under any
law, rule, or regulation, any such employee, former em-
ployee, or applicant shall seek corrective action from the
Special Counsel before seeking corrective action from the
Board.”).
In assessing whether an employee has exhausted his
OSC remedies, we look to his OSC complaint, as well as
written correspondence concerning his allegations. Ser-
rao, 95 F.3d at 1577; Benton-Flores v. Dep’t of Def., No.
DC-1221-13-0522-W-1, 2014 WL 3748419 (M.S.P.B. July
31, 2014). “We require that the employee ‘articulate with
reasonable clarity and precision [before the OSC] the
MCCARTHY v. MSPB 15
basis for his request for corrective action under the WPA’
to allow OSC to effectively pursue an investigation.”
Miller v. Merit Sys. Prot. Bd., No. 2015-3054, 2015 WL
4681015, at *6 (Fed. Cir. Aug. 6, 2015) (quoting Serrao, 95
F.3d at 1577); see also Knollenberg v. Merit Sys. Prot. Bd.,
953 F.2d 623, 626 (Fed. Cir. 1992) (requiring a “sufficient
basis to pursue an investigation which might have led to
corrective action”). “The Board’s jurisdiction over an IRA
appeal, assuming the employee does not have an inde-
pendent right to appeal directly to the Board, is thus
limited to those issues that have been previously raised
with OSC.” Miller, 2015 WL 4681015, at *6.
Applying these principles here, we find that McCarthy
has not sufficiently exhausted his OSC remedies with
respect to the legal memoranda. McCarthy’s OSC com-
plaint only identifies his July 28 report to the OIG and a
July 29 disclosure to Congressman Reyes. It makes no
mention of his legal memoranda. Given this, the OSC’s
“basis to pursue an investigation” was only these two
disclosures and the circumstances surrounding them,
such as whom these disclosures were made to, the Com-
mission’s awareness of these disclosures, and how they
related to the events that led to McCarthy’s termination.
This did not provide the OSC with a “sufficient basis to
pursue an investigation” with respect to McCarthy’s legal
memoranda—these were different disclosures, made to
different people, at different times.
Moreover, the case that McCarthy presented to the
OSC in 2009 substantially differs from the case he pre-
sents now. In 2009, McCarthy’s legal memoranda were
not considered protected disclosures under the WPA;
thus, the OSC would have had no basis to investigate the
legal memoranda and develop findings related to these
disclosures. What McCarthy presents now is in essence a
different case, and the OSC has not had an opportunity to
“effectively pursue an investigation” with respect to these
16 MCCARTHY v. MSPB
circumstances. Thus, McCarthy has failed to satisfy
§ 1214(a)(3)’s exhaustion requirement.
McCarthy nonetheless argues that he has exhausted
his OSC remedies because his August 21 statement
discussed the substance of his legal memoranda. J.A.
206–27. We disagree. As discussed, this submission was
provided and subsequently evaluated against the back-
drop of the WPA: the legal memoranda were not protected
disclosures and the OSC would have had no basis to
“effectively pursue an investigation” with respect to them.
Next, McCarthy argues that “the Board and this court
have already considered the import of the legal memoran-
da.” Reply Br. 15. It is not clear to us that McCarthy’s
selective excerpts show that the Board or this court has
done so. Regardless, the consideration that the Board or
this court would give to the legal memoranda on appellate
review is not necessarily the same consideration that the
OSC would give in the first instance, and cannot be
substituted for it.
McCarthy also argues that the exhaustion require-
ment only applies to the content of whistleblowing disclo-
sures, and that existing case law does not require that he
correctly affix legal labels to these facts. We agree that
the focus of the exhaustion requirement is on substance;
however, McCarthy has not satisfied this requirement
here. Neither his OSC complaint nor his August 21
statement identifies the legal memoranda with sufficient
specificity or context to allow the OSC to effectively
investigate his claims. Unlike Briley v. National Archives
& Records Administration, 236 F.3d 1373, 1378 (Fed. Cir.
2001), cited by McCarthy, this is not simply a case where
McCarthy is presenting a “more detailed account of [his]
whistleblowing activities” to the Board than he did to the
OSC, but otherwise made submissions to the OSC that
“contain[ed] the core of [his] retaliation claim” and “gave
the OSC sufficient basis to pursue an investigation.”
MCCARTHY v. MSPB 17
Instead, the core substance of McCarthy’s complaint has
shifted from a single disclosure to the OIG (which, at best,
was at least in part cumulative of a nebulous collection of
previous disclosures) to four distinct legal memoranda
provided to specific individuals at specific times.
We find, then, that McCarthy has not exhausted his
OSC remedies with respect to the legal memoranda. This
rendered the Board without jurisdiction to hear his case
under 5 U.S.C. § 1214.
The Board did not err in dismissing McCarthy’s ap-
peal and we affirm the Board’s decision. We note that
McCarthy remains free to pursue a complaint with the
OSC with respect to his four legal memoranda, as there is
no statutory time limit for filing a request for corrective
action with the OSC. Augustine v. Dep’t of Justice, 50
M.S.P.R. 648, 652 (1991).
AFFIRMED
COSTS
Each party shall bear their own costs.