Phillip v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAMIAN C.A. PHILLIP,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1002
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-15-0642-W-1.
______________________
Decided: March 11, 2016
______________________
DAMIAN C.A. PHILLIP, Newport News, VA, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before REYNA, WALLACH, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
2 PHILLIP v. MSPB
Damian C.A. Phillip appeals from the final order of
the Merit Systems Protection Board dismissing his appeal
for lack of jurisdiction. Because the Board did not err in
finding that it lacked jurisdiction, we affirm.
I
The Department of Veterans Affairs appointed
Mr. Phillip to the position of Education Specialist effective
December 15, 2013. The appointment was career-
conditional requiring Mr. Phillip to satisfactorily complete
a one-year probationary period. Mr. Phillip was termi-
nated during this probationary period for “poor perfor-
mance, poor customer service, and failure to complete
assigned tasks.” R.A. 17.
After Mr. Phillip exhausted his administrative reme-
dies before the Office of Special Counsel (OSC), he ap-
pealed to the Board. The administrative judge found that
the Board lacked jurisdiction over Mr. Phillip’s removal
because he was terminated during his probationary
period and he failed to make a nonfrivolous allegation of
discrimination based on partisan political activity or
marital status. See 5 C.F.R. §§ 315.805, 315.806(b).
Further, the administrative judge found that the Board
lacked jurisdiction over Mr. Phillip’s individual right of
action appeal (IRA) because he failed to articulate a
nonfrivolous allegation that he engaged in whistleblowing
activity by making protected disclosures or that his dis-
closures were contributing factors in the agency decision
to remove him. Therefore, the administrative judge
dismissed the appeal for lack of jurisdiction. This decision
became the final decision of the Board on July 31, 2015.
Mr. Phillip appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We may only hold unlawful and set aside any agency
action, findings, or conclusions found to be “(1) arbitrary,
PHILLIP v. MSPB 3
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
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 to adjudi-
cate an appeal is a question of law, which we review de
novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). We are bound by the Board’s factual
findings on which a jurisdictional determination is based
unless those findings are not supported by substantial
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
The Board does not have jurisdiction to hear an ap-
peal from a termination that occurred during a probation-
ary period unless the employee alleges the termination
was based on partisan political reasons or marital status.
See Pervez v. Dep’t of Navy, 193 F.3d 1371, 1375 (Fed. Cir.
1999). Here, substantial evidence supports the Board’s
findings that Mr. Phillip was terminated during his one-
year probationary period and that he failed to allege that
his termination was based on partisan political reasons or
marital status. Therefore, the Board did not err in dis-
missing Mr. Phillip’s appeal from his removal for lack of
jurisdiction.
Additionally, the Board does not have jurisdiction
over an IRA appeal under 5 U.S.C. § 1221 unless the
petitioner has exhausted his administrative remedies
before OSC and makes a non-frivolous allegation of an
adverse personnel action based on a protected disclosure.
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1311 (Fed. Cir.
2010). A protected disclosure is “any disclosure of infor-
mation by an employee or applicant which the employee
or applicant reasonably believes evidences . . . a violation
of any law, rule, or regulation or gross mismanagement, a
gross waste of funds, an abuse of authority, or a substan-
tial and specific danger to public health or safety.” 5
U.S.C. § 2302(b)(8). “Gross mismanagement is a man-
4 PHILLIP v. MSPB
agement action or inaction which creates a substantial
risk of significant adverse impact to an agency’s ability to
accomplish its mission.” Wen Chiann Yeh v. Merit Sys.
Prot. Bd., 527 Fed.Appx. 896, 900 (Fed. Cir. 2013). “An
abuse of authority is comprised of an arbitrary and capri-
cious exercise of power by a Federal official or employee
that adversely affects the rights of any person or results
in personal gain or advantage to the official or preferred
other persons.” Id.
Here, Mr. Phillip alleges that he was wrongfully ter-
minated based on events fabricated by his supervisor
because they had “philosophical differences.” R.A. 21.
Mr. Phillip also alleges that “possible unscrupulous
practices” were occurring in the office. Id. at 21–22.
Specifically, Mr. Phillip alleged that an individual coun-
seled him although the individual was not listed on VA
Form 0750 as his Rater, and also that “the Administrative
Officer (AO), was sharing information discussed with or
sent to her by me with my two colleagues.” Id. at 21.
The administrative judge determined that Mr. Phillip
satisfied the exhaustion requirement but failed to make
non-frivolous allegations that he made a protected disclo-
sure under 5 U.S.C. § 2302(b)(8). We agree. Mr. Phillip’s
vague allegations do not amount to a nonfrivolous allega-
tion of an adverse personnel action based on a protected
disclosure because the allegations do not contain infor-
mation which he reasonably believed evidenced a viola-
tion of law, rule or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substan-
tial and specific danger to public health or safety. See 5
U.S.C. § 2302(b)(8); Johnston v. Merit. Sys. Prot. Bd., 518
F.3d 905, 910 (Fed. Cir. 2008) (“vague, conclusory or
facially insufficient allegations” do not provide the Board
with jurisdiction). Therefore, the Board did not err in
dismissing Mr. Phillip’s IRA appeal for lack of jurisdic-
tion.
PHILLIP v. MSPB 5
Because the Board properly dismissed Mr. Phillip’s
appeal for lack of jurisdiction, we affirm.
AFFIRMED
No costs.