Cooper v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
NATHANIEL COOPER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3240
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DC1221110320-W-1.
___________________________
Decided: March 12, 2012
___________________________
NATHANIEL COOPER, of Charlotte, North Carolina, pro
se.
LINDSEY SCHRECKENGOST, Attorney, Office of the Gen-
eral Counsel, Merit Systems Protection Board, of Wash-
ington, D.C. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
COOPER v. MSPB 2
Before BRYSON, DYK, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Nathaniel Cooper petitions for review of a final order
of the Merit Systems Protection Board, which dismissed
his Individual Right of Action (“IRA”) for lack of jurisdic-
tion. We affirm.
BACKGROUND
Mr. Cooper resigned from his position as a Staff Ac-
countant at the Military District of Washington on June
28, 1993. On January 8, 2011, Mr. Cooper filed an appeal
with the Board labeled “Individual Right of Action: Whis-
tleblower Appeal.” As a former federal employee, Mr.
Cooper is entitled to file an IRA with the Merit Systems
Protection Board seeking correction of personnel action
taken in retaliation for whistleblowing. 5 U.S.C. § 1221.
Before an IRA may be brought, however, the claimant
must exhaust his administrative remedies before the
Office of Special Counsel (“OSC”). 5 U.S.C. § 1214(a)(3).
The administrative judge who was assigned to Mr.
Cooper’s case issued a show cause order, directing Mr.
Cooper to show that the Board had jurisdiction over his
claim. The order directed Mr. Cooper to file evidence and
argument detailing each alleged protected disclosure and
each personnel action being appealed. The order also
directed Mr. Cooper to include a copy of his OSC com-
plaint in order to establish that he had exhausted his
administrative remedies before the OSC.
In response to the order to show cause, Mr. Cooper
submitted a copy of the letter in which the OSC advised
3 COOPER v. MSPB
Mr. Cooper that it was closing its investigation, but he did
not submit a copy of his OSC complaint or any other
evidence that would show what disclosures and personnel
actions he raised before the OSC. Accordingly, the ad-
ministrative judge found that Mr. Cooper failed to show
that he had exhausted his administrative remedies.
The administrative judge also found that Mr. Cooper
failed to make nonfrivolous allegations that he engaged in
whistleblowing activity by making a disclosure protected
under 5 U.S.C. § 2302(b)(8), and that the disclosure was a
contributing factor in the agency's decision to take or fail
to take a personnel action against him, as defined by 5
U.S.C. § 2302(a). See Yunus v. Dep’t of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001). The administrative
judge found that Mr. Cooper “failed to describe the infor-
mation he disclosed or identify the individual or individu-
als to whom his disclosures were made.” Because of those
deficiencies, the administrative judge found that Mr.
Cooper failed to make a nonfrivolous allegation that he
engaged in protected whistleblowing activity. In addition,
the administrative judge found that Mr. Cooper failed to
make a nonfrivolous allegation that his disclosures were a
contributing factor in any agency personnel action. While
Mr. Cooper listed various agency actions to which he
objected, the administrative judge found that he “did not
identify the individual or individuals he considers respon-
sible for any of these actions or provide any evidence that
the responsible individuals knew of his disclosures and
that the personnel actions occurred within a period of
time such that a reasonable person could conclude that
the disclosures were a contributing factor in the personnel
action.” The administrative judge therefore concluded
that the Board lacked jurisdiction over Mr. Cooper’s
appeal.
COOPER v. MSPB 4
Mr. Cooper filed a petition for review, which the full
Board denied. In its opinion denying the petition for
review, the Board stated that it agreed with the adminis-
trative judge’s conclusion that Mr. Cooper had failed to
show that he had exhausted his OSC remedies. The
Board noted that Mr. Cooper had “neither submitted a
copy of his OSC complaint nor submitted other correspon-
dence that he exchanged with OSC enumerating the
alleged protected disclosures and personnel actions un-
derlying his OSC complaint.” The Board noted that the
“OSC closure letter submitted by the appellant merely
states that OSC was closing its file.” The Board did not
address the other jurisdictional issues on which the
administrative judge based her decision to dismiss the
IRA.
DISCUSSION
On appeal, Mr. Cooper has not shown that the admin-
istrative judge committed error in ruling that Mr. Cooper
failed to establish that he exhausted his administrative
remedies. Mr. Cooper did not submit his OSC complaint
to the administrative judge as directed, nor did he submit
any other evidence that would show what was contained
in his OSC complaint. Without the OSC complaint or
other information regarding his submissions to the OSC,
it is impossible to determine what disclosures he made to
the OSC and therefore whether he exhausted his admin-
istrative remedies. The letter from the OSC in which the
OSC advised Mr. Cooper that it was closing its investiga-
tion does not serve that purpose, because it did not iden-
tify the claims that he raised with the OSC. To
demonstrate exhaustion of his remedies, Mr. Cooper must
show not only that he made a complaint to OSC, but that
the disclosures and personnel actions alleged in that
complaint match the allegations made to the Board.
5 COOPER v. MSPB
Because Mr. Cooper failed to show that he exhausted his
administrative remedies, the administrative judge prop-
erly dismissed his IRA for lack of jurisdiction.
No costs.
AFFIRMED