Davis v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3061
RONALD A. DAVIS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Ronald A. Davis, of Baltimore, Maryland, pro se.
Raymond W. Angelo, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3061
RONALD A. DAVIS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in PH1221070017-W-1.
__________________________
DECIDED: May 16, 2008
__________________________
Before DYK and PROST, Circuit Judges, and HOCHBERG, District Judge. ∗
PER CURIAM.
Ronald A. Davis appeals a final decision of the Merit Systems Protection Board
(“Board”) dismissing his individual right of action (“IRA”) that alleged reprisal for
disclosures protected under the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C.
§ 2302(b)(8), as insufficient to establish board jurisdiction. See Davis v. Dep’t of Def.,
106 M.S.P.R. 560 (2007). Because we agree that Mr. Davis has not established
jurisdiction, we affirm.
BACKGROUND
Mr. Davis is a teller with the Defense Finance and Accounting Service, Defense
∗
Honorable Faith S. Hochberg, District Judge, United States District Court
for the District of New Jersey, sitting by designation.
Military Pay Office in Fort Meade, Maryland. On August 19, 2005, Mr. Davis filed a
complaint with the Office of Special Counsel (“OSC”) alleging that his supervisor
committed prohibited personnel practices including: (1) giving Mr. Davis a lower
performance rating and not selecting him for a promotion because Mr. Davis refused to
perform an illegal task, and (2) refusing to promote Mr. Davis in retaliation for Mr. Davis
filing a grievance concerning his performance rating. 1 After Mr. Davis appealed to the
Board, the administrative judge informed Mr. Davis that the Board lacks jurisdiction over
a direct appeal of these personnel practices but would have jurisdiction over such
personnel practices in the context of an IRA appeal containing a sufficient claim under
the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8). The Board
dismissed Mr. Davis’s appeal for lack of jurisdiction, Davis v. Dep’t of Def., 103
M.S.P.R. 516, 522-23 (2006), and, on March 6, 2006, Mr. Davis filed a new complaint
with OSC that incorporated the original August 19, 2005 complaint, added a claim that
he was denied a cash award, and specifically alleged reprisal for whistleblowing.
After Mr. Davis filed an IRA appeal with the Board, the administrative judge
dismissed Mr. Davis’s appeal for lack of jurisdiction. Mr. Davis petitioned for review,
and the Board issued a final decision affirming the dismissal for lack of jurisdiction
based upon its own jurisdictional analysis. Davis v. Dep’t of Def., 106 M.S.P.R. 560,
561 (2007). In evaluating whether it had jurisdiction, the Board assumed that Mr.
Davis’s complaints constituted disclosures protected by the WPA. Id. at 564. Then, the
Board compared the dates of the complained-about personnel actions to the first
1
According to the record, the August 19, 2005 complaint was the first
complaint or grievance actually filed by Mr. Davis.
2008-3061 2
disclosure by Mr. Davis (on August 19, 2005) and determined that “the personnel
actions complained about by the appellant predate his protected disclosures.” Id. at
565. Because “there is no way that the disclosures could have in any way contributed
to the personnel actions complained about by the appellant,” the Board concluded that
Mr. Davis failed to establish jurisdiction. Id. at 565-66. Mr. Davis timely appealed to this
court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s jurisdiction is limited to those matters prescribed by the applicable
laws, rules, and regulations. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008). The Board has jurisdiction over an IRA that alleges retaliation for
“whistleblowing” activities only when an employee exhausts administrative remedies
before OSC and makes a non-frivolous allegation that: (1) a “protected” disclosure was
made, as specified by 5 U.S.C. § 2302(b)(8), and (2) “the disclosure was a contributing
factor in the personnel action.” Meuwissen v. Dep’t of Interior, 234 F.3d 9, 12 (Fed. Cir.
2000). The appellant has the burden of establishing the Board’s jurisdiction. 5 C.F.R.
§ 1201.56(a)(2)(i). Whether the Board has jurisdiction is a question of law that this court
reviews without deference, but we are bound by the Board’s underlying factual findings
“unless those findings are not supported by substantial evidence.” Bolton v. Merit Sys.
Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
On appeal, Mr. Davis challenges the Board’s determination that it lacked
jurisdiction, presenting arguments directed to each prong of the jurisdictional test.
Regarding the first prong, the administrative judge found that Mr. Davis’s disclosures
were not “protected” under the WPA, but the Board modified this finding and assumed
2008-3061 3
(for the purposes of the decision) that Mr. Davis’s disclosures were, in fact, protected. 2
Davis, 106 M.S.P.R. at 564-65. Because we also make this assumption (for the
purposes of appeal), we see no need to address Mr. Davis’s arguments aimed at
proving this point. Regarding the second prong, Mr. Davis provides two arguments to
contest the Board’s determination that the disclosure “could not have in any way
contributed to the personnel actions” raised by Mr. Davis because those personnel
actions “predate[d]” the disclosure. Id. at 565.
First, Mr. Davis asserts that the Board incorrectly concluded that the personnel
actions predated the disclosure. The parties appear to agree that the disclosure is the
first complaint that Mr. Davis filed with OSC on August 19, 2005, and Mr. Davis points to
three personnel actions: (1) a performance rating, (2) the denial of a promotion, and (3)
the denial of unspecified cash awards. With regard to the first and third personnel
actions, Mr. Davis fails to present any allegation or evidence to establish that either of
these personnel actions occurred after his August 19, 2005 disclosure. 3 With regard to
the promotion, the Board made a factual finding that “uncontradicted evidence”
2
Mr. Davis also alleges error in other aspects of the administrative judge’s
initial decision. That initial decision, however, was modified by the Board and we review
the Board’s final decision. Accordingly, we do not address Mr. Davis’s arguments
alleging error in the initial decision by the administrative judge.
3
With regard to the cash awards, Mr. Davis simply requested “any awards
which came due during this time period, more specifically during the period of June
2005 to August 2005 where I made payments to deceased soldiers next of kin for the
new benefits authorized during this time.” Most of this time period is clearly prior to Mr.
Davis’s August 19, 2005 disclosure, and, while the time period admittedly includes
twelve days following the disclosure, Mr. Davis fails to identify, describe, or otherwise
provide a non-frivolous allegation that he was denied any awards during that twelve-day
period. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993)
(“[S]ubstantive details establishing jurisdiction must be alleged in the complaint.”).
2008-3061 4
supported the administrative judge’s finding that Mr. Davis’s supervisor selected another
individual for the promotion at issue on August 10, 2005, which predated Mr. Davis’s
disclosure on August 19, 2005. Id. (identifying a document, signed and dated by the
supervisor on August 10, 2005, that contained a referral list on which the supervisor
indicated his selection for the promotion at issue). 4
In an attempt to show error in the Board’s finding, Mr. Davis asserts that: (1) an
appellant need only allege that the personnel action occurred on a later date; (2) the
personnel action was “continuing” until the other individual was actually appointed to the
position (on October 31, 2005); and (3) the Board’s finding was flawed because it
denied Mr. Davis’s request for additional discovery regarding the selection date. Like
the Board, we reject these arguments. First, “[n]on-frivolous allegations cannot be
supported by unsubstantia[ted] speculation in a pleading submitted by [a] petitioner” and
require support from “affidavits or other evidence.” Marcino v. U.S. Postal Serv., 344
F.3d 1199, 1204 (Fed. Cir. 2003). Second, we fail to see how the actual appointment
date undermines the fact that Mr. Davis was effectively denied the promotion on the
August 10th selection date. Third, the Board’s decisions regarding discovery are
reviewed for abuse of discretion, Barrett v. Social Sec. Admin., 309 F.3d 781, 786 (Fed.
Cir. 2002), and we perceive no abuse of discretion in this case. In sum, none of Mr.
Davis’s arguments cause us to question the Board’s finding that the personnel action
occurred on August 10, 2005. See Bolton, 154 F.3d at 1316 (stating that this court is
4
The fact that the document indicates an effective date of October 31,
2005, does nothing to undermine the conclusion that the actual appointment took place
on August 10, 2005, prior to the alleged protected disclosure.
2008-3061 5
bound by the Board’s factual findings “unless those findings are not supported by
substantial evidence”).
Mr. Davis also argues that even if the personnel actions did predate his August
19, 2005 complaint, he still satisfied the second prong because a “reasonable person”
could find the disclosure to be a contributing factor in the personnel action. We,
however, agree with the Board that no reasonable person could conclude that a
disclosure was a contributing factor in a personnel action that has already occurred.
See Horton v. Dep’t of the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995) (holding that a
protected disclosure that occurred the day after the initiation of a proposed removal
could not have been a contributing factor in the proposed removal). Moreover, while
Mr. Davis attempts to establish that his supervisor considered Mr. Davis to be a
whistleblower prior to the personnel actions, the Board’s jurisdiction requires an
appellant to non-frivolously assert that his protected disclosure was a contributing factor
in the personnel action. Meuwissen, 234 F.3d at 12.
CONCLUSION
Accordingly, we agree with the Board’s conclusion that Mr. Davis failed to make
a non-frivolous allegation that the disclosure was a contributing factor in the personnel
actions, and we affirm the Board’s conclusion that it lacked jurisdiction.
COSTS
Each party shall bear its own costs.
2008-3061 6