Johnson v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EUGENE D. JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3104
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-14-0150-I-1.
______________________
Decided: November 12, 2014
______________________
EUGENE D. JOHNSON, of Spotsylvania, Virginia, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
was BRYAN G. POLISUK, General Counsel.
______________________
Before REYNA, LINN, and WALLACH, Circuit Judges.
2 JOHNSON v. MSPB
PER CURIAM.
Eugene D. Johnson (“Johnson”) appeals the decision
of the Merit Systems Protection Board (the “Board”),
dismissing his appeal for lack of jurisdiction. See Johnson
v. Dep’t of Health & Human Servs., No. DC-3443-14-0150-
I-1 (Merit Sys. Prot. Bd. Mar. 7, 2014) (“Opinion”). Be-
cause the Board did not err in concluding that it lacked
jurisdiction in this case, we affirm.
BACKGROUND
Johnson was a federal employee for many years and
retired from the government in 2009. In November 2013,
Johnson filed this appeal with the Board. Johnson’s
complaint alleges unspecified problems, harassment and
stress following a claimed involuntary transfer from the
Department of Health and Human Services (“HHS”) to
the U.S. General Services Administration (“GSA”) in
September of 2001, over thirteen years ago. He also
alleges that he was paid as a grade 13 at HHS but as a
grade 12 at GSA. According to Johnson, this transfer was
a result of his taking a stance against the wasteful acts of
government contractors, and therefore he is entitled to
the protections of the Whistleblower Protection Act of
1989 (Public Law 101-12). Johnson’s complaint, while
referencing the Whistleblower Protection Act, does not
purport to be an individual right of action but is presented
as an otherwise appealable action under Chapter 74 of
Title 5.
The generalized allegations of events that took place
long before Johnson retired from government service in
2009 led the Board to question whether it had jurisdiction
over Johnson’s appeal and whether the appeal was timely
filed. In an acknowledgement order, the Board ordered
Johnson to “file evidence and argument to show a basis
for the Board’s jurisdiction over [his] appeal and to prove
that his appeal is timely or that good cause exists for
waiving the filing deadline.” Johnson v. Dep’t of Health &
JOHNSON v. MSPB 3
Human Servs., No. DC-3343-14-0150-I-1, at 3 (Merit Sys.
Prot. Bd. Dec. 2, 2013) (“Acknowledgement Order”). The
Board gave Johnson fifteen days to respond and submit
any supplemental materials. Johnson filed two responses
with several pages of attachments. On February 24,
2014, after the administrative record closed, Johnson filed
additional documents.
The Board dismissed Johnson’s case for lack of juris-
diction. Despite the volume of material presented, the
Board found that Johnson had not articulated any basis
for the Board’s jurisdiction over the matter. The Board
also found that Johnson failed to explain the reason for
his “years-long delay,” but did not decide the appeal on
that basis. Opinion at 3. Johnson then appealed to this
court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) (2012).
DISCUSSION
The Board’s jurisdiction under Chapter 75 of Title 5
“is limited to adverse personnel actions expressly made
appealable to it by law, rule, or regulation.” Herman v.
Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999)
(citing 5 U.S.C. § 7701(a)). The burden of showing juris-
diction is on the petitioner. 5 C.F.R. § 1201.56(a)(2)(i).
Whether the Board has jurisdiction to review a particular
appeal is a question of law, which we review de novo.
Johnston v. Merit. Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008).
Johnson first argues that “a new legal argument” is
available that proves retribution against him by HHS for
whistleblowing. He argues that the Board erred by not
applying the Whistleblowing Protection Act of 1989. See 5
U.S.C. § 2302(b). Johnson also argues that his February
24, 2014 submission was not untimely because the Ad-
ministrative Law Judge had extended the filing date to
February 25, 2014, and that this filing would show a basis
for the Board’s jurisdiction.
4 JOHNSON v. MSPB
While Johnson continues to make general allegations
of improper treatment, he has yet to articulate any proper
basis to support the Board’s jurisdiction or to articulate
why his appeal is timely filed. It is not enough to make
general assertions of whistleblowing, or reprisals there-
from, without articulating any specific personnel action
taken, or any other basis for appeal to the Board. See
Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed.
Cir. 1993) (“The law, however, is well settled that the
mere recitation of a basis for jurisdiction by a party is not
sufficient. Rather, substantive details establishing juris-
diction must be alleged in the complaint.” (citations
omitted)). Moreover, it is neither the Board’s nor this
Court’s responsibility to wade through hundreds of pages
of materials in search of some unspecified wrongdoing
that allegedly began over a decade ago. See, e.g., United
States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014) (“[W]e
will not root through the hundreds of documents and
thousands of pages that make up the record here to make
[the appellant’s] case for him.”).
Regarding Johnson’s argument that his February 24,
2014 submission was timely filed and should have been
considered by the Board, we find no support in the record
for this proposition. The Board advised Johnson that he
had fifteen calendar days from December 2, 2013 to
submit additional materials. See Acknowledgement
Order at 3. No extensions were requested or granted by
the Board in this matter. Johnson’s claim that the Board
extended the filing date is unsubstantiated. Accordingly,
we affirm the Board’s decision to refuse to consider John-
son’s supplemental filing.
For the foregoing reasons, the Board’s determination
that it lacked jurisdiction over Johnson’s appeal is af-
firmed.
AFFIRMED
JOHNSON v. MSPB 5
COSTS
Each party shall bear its own costs.