Abou-Hussein v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HAMDY ALEX ABOU-HUSSEIN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3001
______________________
Petition for review of the Merit Systems Protection
Board in No. AT1221110850-W-1.
______________________
Decided: March 6, 2014
______________________
HAMDY ALEX ABOU-HUSSEIN, of Hendersonville, North
Carolina, 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 was BRYAN G.
POLISUK, General Counsel.
______________________
Before LOURIE, BRYSON, and HUGHES, Circuit Judges.
2 ABOU-HUSSEIN v. MSPB
PER CURIAM.
Alex Abou-Hussein appeals a final decision by the
Merit Systems Protection Board dismissing his Individual
Right of Action appeal for lack of jurisdiction. Because
Mr. Abou-Hussein failed to prove that he exhausted his
administrative remedies before the United States Office of
Special Counsel, we affirm.
I.
Mr. Abou-Hussein worked as a project engineer at the
Department of the Navy’s Space and Naval Warfare
(SPAWAR) systems center. After allegedly disclosing
contract fraud by several SPAWAR officials, Mr. Abou-
Hussein filed a whistleblower reprisal complaint at the
United States Office of Special Counsel (OSC). See Whis-
tleblower Protection Act of 1989, Pub. L. No. 101-12, § 4,
103 Stat. 16, 32 (current version at 5 U.S.C. §§ 2302(b)(8),
(b)(9) (2012)). In his complaint, Mr. Abou-Hussein alleged
that he had suffered various reprisals for blowing the
whistle, including poor performance evaluations, denial of
pay increases, a change in duties and responsibilities, a
hostile work environment, placement on absent without
leave status, inability to review his personnel records, an
unwarranted criminal investigation, a referral for psychi-
atric evaluation, death threats, and false allegations of
espionage, terrorism, substance abuse, and mental illness.
OSC denied Mr. Abou-Hussein’s claim for relief, and he
filed an Individual Right of Action (IRA) appeal at the
Merit Systems Protection Board. See Whistleblower
Protection Act § 3, 103 Stat. at 29–31 (current version at 5
U.S.C. § 1221 (2012)).
The Navy moved to dismiss Mr. Abou-Hussein’s IRA
appeal for lack of jurisdiction. The Board then ordered
Mr. Abou-Hussein to file a jurisdictional statement ac-
companied by evidence. After he responded to the Board’s
order, the evidence before the Board included the follow-
ing: (1) a 2009 closure letter from OSC regarding an
ABOU-HUSSEIN v. MSPB 3
earlier whistleblower complaint filed by Mr. Abou-
Hussein; (2) a 2011 notification of Board appeal rights
from OSC regarding the complaint at issue here; (3) a
letter from Senator Claire McCaskill, Chairman, Sub-
committee on Contracting Oversight, to the Honorable
Gordon S. Heddell, Inspector General for the Department
of Defense; (4) a 2011 sworn affidavit detailing the events
surrounding Mr. Abou-Hussein’s allegations; and (5) an
undated Chronological Statement also detailing the
events surrounding Mr. Abou-Hussein’s allegations.
After reviewing these materials, the Board stated that
it was “unable to discern whether any of the disclosures
alleged by the appellant in the instant appeal were raised
before OSC.” App. to Resp. Br. 7. Thus, the Board found
that Mr. Abou-Hussein “failed to prove that he exhausted
his OSC administrative remedies” and dismissed his
appeal for lack of jurisdiction in a Final Order. Id.Mr. Abou-Hussein now asks us to vacate the Board’s
Final Order and to order a jurisdictional hearing. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II.
We must affirm final Board decisions unless they are
(1) arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law; (2) obtained without
following the procedures required by law; or (3) unsup-
ported by substantial evidence. 5 U.S.C. § 7703(c) (2012);
Addison v. Dep’t of Health & Human Servs., 945 F.2d
1184, 1186 (Fed. Cir. 1991). We review the Board’s factu-
al findings for substantial evidence, defined as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Hathaway v. Merit
Sys. Prot. Bd., 981 F.2d 1237, 1240 (Fed. Cir. 1992) (quot-
ing Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.
Cir. 1990)) (internal quotation marks omitted). Whether
the Board has jurisdiction over an appeal is a question of
4 ABOU-HUSSEIN v. MSPB
law that this court reviews de novo. Johnston v. Merit
Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008).
To establish the Board’s jurisdiction over an IRA ap-
peal, a petitioner must make nonfrivolous allegations that
he engaged in whistleblowing activity by making a pro-
tected disclosure and that, because of the protected disclo-
sure, the agency took or failed to take a “personnel action”
as defined by 5 U.S.C. § 2302(a). Schmittling v. Dep’t of
the Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000). A peti-
tioner must also establish that he sought corrective action
from OSC and that he exhausted his available adminis-
trative remedies at OSC. Schmittling, 219 F.3d at 1336;
see also 5 U.S.C. § 1214(a)(3) (2012).
The Board determines whether a petitioner has ex-
hausted the available remedies at OSC based only on
information submitted to OSC prior to closure of his case.
See Willis v. Dep’t of Agric., 141 F.3d 1139, 1144 (Fed. Cir.
1998); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036
(Fed. Cir. 1993). Accordingly, a petitioner has exhausted
the available remedies at OSC only if he has informed
OSC of the precise ground of his whistleblowing claim and
provided OSC with a sufficient basis to investigate the
claim. Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526
(Fed. Cir. 1992). In other words, the materials an em-
ployee submits to OSC must “articulate with reasonable
clarity and precision the basis for his request for correc-
tive action.” Ellison, 7 F.3d at 1037. A petitioner must
prove before the Board that he submitted such materials
to OSC. See id.Here, the Board correctly concluded that neither the
2009 closure letter nor the 2011 notification of Board
appeal rights identifies any of Mr. Abou-Hussein’s alleged
disclosures.
Similarly, Mr. Abou-Hussein cannot rely on Senator
McCaskill’s letter to establish jurisdiction. Nothing in the
record establishes that Mr. Abou-Hussein submitted the
ABOU-HUSSEIN v. MSPB 5
letter to OSC. Moreover, the letter does not adequately
explain how the Navy allegedly took or failed to take a
personnel action because of the disclosures referred to in
Senator McCaskill’s letter.
The Board also considered Mr. Abou-Hussein’s 2011
affidavit. Because this date occurred well after OSC
closed Mr. Abou-Hussein’s case, OSC never considered the
affidavit. Moreover, Mr. Abou-Hussein’s affidavit did not
identify any specific disclosures he allegedly made to OSC
or personnel actions allegedly brought to OSC’s attention.
In relevant part, it merely stated, “May 2, 2008, Hussein
reported to the Office of Special Counsel (OSC), Disclo-
sure Unit, allegations of fraud, waste, abuse, gross mis-
management, and abuse of authority by SPAWAR senior
employees for D048 violations.” App. to Resp. Br. 82.
Finally, the Board considered Mr. Abou-Hussein’s un-
dated Chronological Statement. The record does not
establish that this statement was ever submitted to OSC.
Although Mr. Abou-Hussein claims to have submitted the
statement, id. at 48, his claim is unsupported. Thus, we
agree with the Board that he “has not submitted any
evidence to support his bare assertion” that he submitted
the Chronological Statement to OSC. Id. at 7.
Finally, Mr. Abou-Hussein claims that Garcia v. Dep’t
of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006)
(en banc) entitled him to a jurisdictional hearing on
exhaustion. Apart from the fact that Garcia addresses
adverse action claims rather than the IRA appeal here,
nothing in that case or any of our precedent suggests that
a jurisdictional hearing is required on the issue of OSC
exhaustion. Rather, exhaustion is determined based on
the complaint or other written materials submitted to
OSC. As the Board explained to Mr. Abou-Hussein, “[t]he
test of the sufficiency of [a] claim of whistleblowing to
OSC is the statement . . . made in the complaint request-
6 ABOU-HUSSEIN v. MSPB
ing corrective action or in other submissions to OSC.”
App. to Resp. Br. 43.
For these reasons, we agree with the Board that Mr.
Abou-Hussein failed to prove that he exhausted his ad-
ministrative remedies at OSC. Accordingly, the Board
properly dismissed the case for lack of jurisdiction.
AFFIRMED
COSTS
No costs.