Mitskog v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARNE K. MITSKOG,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2359
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-14-1035-W-1.
______________________
Decided: March 13, 2017
______________________
MARNE K. MITSKOG, West Fargo, ND, pro se.
CALVIN M. MORROW, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
2 MITSKOG v. MSPB
Before DYK, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
Marne K. Mitskog petitions for review of a decision by
the Merit Systems Protection Board (“Board”) dismissing
her Individual Right of Action (“IRA”) appeal under the
Whistleblower Protection Act (“WPA”) for lack of jurisdic-
tion. We affirm.
BACKGROUND
Mitskog was a Trial Attorney in the Office of Con-
sumer Litigation of the Department of Justice from 2010
to 2011. Mitskog filed complaints with the Department’s
Office of Inspector General (“OIG”) alleging that her
supervisor, Ann Ravel, was improperly diverting funds
designated by Congress for the prosecution of healthcare-
fraud cases to non-healthcare-fraud cases. Mitskog also
sent letters to Members of Congress and the State Bar of
California detailing her allegations against Ravel. The
record does not indicate the outcome, if any, resulting
from Mitskog’s complaints.
In 2012, Mitskog was hired by the Federal Election
Commission (“FEC”) as an attorney in the agency’s En-
forcement Division. Little more than a year later, on June
21, 2013, President Barack Obama nominated Ravel to
serve as an FEC Commissioner. Shortly thereafter,
Mitskog sent Ravel a series of emails in which she threat-
ened to “blow up [Ravel’s] nomination” and referenced the
diversion of funds that was the subject of Mitskog’s com-
plaints to OIG and others. Ravel forwarded these emails
to FEC officials, who ultimately removed Mitskog from
her position for “conduct unbecoming a federal employee.”
S.A. 58. Mitskog’s removal from the FEC became effective
on December 28, 2013.
On January 17, 2014, Mitskog filed a whistleblower
complaint with the Office of Special Counsel (“OSC”)
alleging that her removal from the FEC constituted
MITSKOG v. MSPB 3
reprisal for her disclosures to OIG, Members of Congress
and the State Bar of California. Mitskog later supple-
mented her OSC complaint with copies of emails between
her and FEC officials regarding her removal. OSC termi-
nated its investigation of Mitskog’s complaint on July 28,
2014, and advised Mitskog that she was entitled “to seek
corrective action from the . . . Board.” S.A. 44.
Mitskog proceeded to file an IRA appeal with the
Board, which determined that Mitskog had failed to
exhaust her administrative remedies with OSC, and that
in certain respects she had failed to nonfrivolously allege
that she had engaged in protected activity. The Board
therefore dismissed her appeal for lack of jurisdiction.
Mitskog petitioned our court for review. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review jurisdictional determinations by the Board
de novo. See Serrao v. MSPB, 95 F.3d 1569, 1573 (Fed.
Cir. 1996). To establish the Board’s jurisdiction over an
IRA appeal, the employee bears the burden of proving
exhaustion of administrative remedies before OSC. See 5
U.S.C. § 1214(a)(3). “In assessing whether an employee
has exhausted . . . OSC remedies, we look to [the employ-
ee’s] OSC complaint, as well as written correspondence
concerning [the employee’s] allegations.” McCarthy v.
MSPB, 809 F.3d 1365, 1374 (Fed. Cir. 2016). “We require
that the employee articulate with reasonable clarity and
precision [before the OSC] the basis for [the employee’s]
request for corrective action under the WPA to allow OSC
to effectively pursue an investigation.” Id. (internal quota-
tion marks omitted).
The record before us demonstrates that the infor-
mation Mitskog provided to OSC falls short of meeting
this standard. Her claims of retaliation based on disclo-
sures made to Members of Congress and the State Bar of
California were conclusory and not presented to OSC with
4 MITSKOG v. MSPB
sufficient specificity. Mitskog also argues that the Board
erred by failing to consider her status as a “perceived
whistleblower” and that the nature of her disclosures—
protected or not—are irrelevant under this doctrine. See
Montgomery v. MSPB, 382 F. App’x 942, 947 (Fed. Cir.
2010) (“The perceived whistleblower doctrine prevents a
supervisor from taking retaliatory action against an
employee, even if the employee’s disclosure is later found
unprotected, so long as the retaliation was taken in
response to the disclosure.”). But this theory was not
mentioned in Mitskog’s submission to OSC. The record of
her OSC submission reflects only her statement to FEC
officials that she had “federal whistleblower status.” S.A.
97. This unilateral assertion is insufficient to demonstrate
that agency officials perceived her to be a whistleblower.
With respect to Mitskog’s allegation of whistleblower
retaliation based on her disclosures to OIG, Mitskog
broadly asserted in her initial OSC complaint the exist-
ence of “[t]wo instances (civil cases) that [she] reasonably
believed were evidence . . . [of] fraudulent[] diver[sion].”
S.A. 73. Although this allegation alludes to Mitskog’s
complaint to OIG, it lacks the precision necessary to have
“allow[ed] OSC to effectively pursue an investigation.”
McCarthy, 809 F.3d at 1374. Mitskog’s supplemental
filings to OSC did not add any additional specificity to
this claim. Thus, Mitskog failed to exhaust administrative
remedies with respect to her OIG disclosures.
The Board’s dismissal of Mitskog’s appeal for lack of
jurisdiction is
AFFIRMED
COSTS
No costs.