UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NICHOLAS ALEXANDER 

HARRISON,

Appellant,

v.

SMALL BUSINESS 

ADMINISTRATION,

Agency.

DOCKET NUMBER

DC-1221-18-0302-W-1

DATE: April 23, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Nicholas Alexander Harrison, Washington, D.C., pro se.

Claudine Landry, Esquire, and Sherrie Abramowitz, Esquire, Washington, 

D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision that

dismissed his individual right of action (IRA) appeal for lack of Board

jurisdiction. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

On September 26, 2017, the appellant applied for a Veterans Affairs

Specialist position with the agency. Initial Appeal File (IAF), Tab 4 at 9. The

appellant then applied for a Business Opportunity Specialist position with the

agency on October 25, 2017. IAF, Tab 6 at 36. The appellant filed a complaint

with the Office of Special Counsel (OSC) on November 21, 2017, alleging that

the agency did not select him for either of these positions in reprisal for previous

whistleblowing disclosures.2 IAF, Tab 1 at 6-7, 10. OSC informed the appellant

on January 31, 2018, that the investigation into his complaint was closed without

further action and that he could file an IRA appeal with the Board. Id. at 10-11.

The agency informed the appellant on January 31, 2018, that it did not select him

for the Business Opportunity Specialist position and informed him on

February 27, 2018, that it did not select him for the Veterans Affairs Specialist

2

 In the initial decision, the administrative judge stated that the record does not reflect

when the appellant filed his complaint with OSC. IAF, Tab 7, Initial Decision at 4.

However, the appellant indicated that he filed his complaint with OSC on November 21,

2017. IAF, Tab 1 at 6. Any error by the administrative judge regarding this fact did

not prejudice the appellant’s substantive rights nor did it create any grounds to depart

from the conclusions in the initial decision. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial

to a party’s substantive rights provides no basis for reversal of an initial decision).

2
position. IAF, Tab 6 at 25-26. The appellant filed his Board appeal on

February 5, 2018. IAF, Tab 1. After the parties responded to the jurisdictional

order, the administrative judge issued an initial decision dismissing this appeal

for lack of jurisdiction, as the appellant failed to demonstrate exhaustion of his

administrative remedies with OSC prior to filing his IRA appeal with the Board.

IAF, Tab 4, Tab 6, Tab 7, Initial Decision (ID) at 1-6. 

In the absence of an action directly appealable to the Board, only

allegations of protected disclosures of information or protected activity, along

with personnel actions, that an appellant first raises and exhausts with OSC may

be considered by the Board in an IRA appeal. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 8 (2011); see 5 U.S.C. §§ 1214(a)(3), 2302(b)(8),

(b)(9). This requirement is met when an appellant has provided OSC with a

sufficient basis to pursue an investigation that might lead to corrective action.

Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. 

As the administrative judge found in the initial decision, the appellant

could not have provided OSC with a sufficient basis to pursue an investigation

into his allegation that the nonselections were in reprisal for his prior

whistleblowing, as he had yet to even learn that he was not selected for the

positions when he filed his complaint with OSC. ID at 3-6. Due to the

appellant’s premature complaint to OSC, he failed to exhaust his administrative

remedies. 

On review, the appellant claims to have learned of his nonselection for the

Veterans Affairs Specialist position before the agency sent him notice on

February 27, 2018. Petition for Review (PFR) File, Tab 1 at 5. However, the

appellant does not provide the date that he supposedly gained this knowledge.

Relatedly, the appellant asserts that due to the length of time that passed after he

applied for the positions and the lack of response from the agency, it was

reasonable to assume that he was not selected for either position when he filed his

complaint with OSC. PFR File, Tab 1 at 5-6, Tab 4 at 5. The appellant did not

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raise this argument below in response to the administrative judge’s jurisdictional

order. IAF, Tab 4 at 4-10. The Board will generally not consider an argument

raised for the first time in a petition for review absent a showing that it is based

on new and material evidence not previously available despite the party’s due

diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

There has been no showing of these circumstances; thus, we need not consider the

appellant’s argument.

Notwithstanding, the evidence does not support the appellant’s contention,

as the agency contacted him in between the dates that he applied for each position

and November 21, 2017, to advise him that the hiring managers for each position

were further considering his applications. IAF, Tab 6 at 33-34. The amount of

time between the appellant’s applications and the communications from the

agency was not so excessive to support the finding that the appellant reasonably

inferred that the agency did not select him prior to November 21, 2017, the date

that he filed his complaint with OSC. IAF, Tab 1 at 6. On November 28, 2017,

the agency also scheduled an interview with the appellant for the Business

Opportunity Specialist position. IAF, Tab 6 at 28. Contrary to the appellant’s

assertion on review, there was no reasonableness standard for the administrative

judge to apply when assessing the amount of time between the appellant’s

application and notice from the agency regarding the status of his application.

PFR File, Tab 4 at 5. 

On review, the appellant contends that he must be allowed to challenge his

nonselections as the nonselections have now occurred. PFR File, Tab 1 at 6. In

the initial decision, the administrative judge observed that, because the appellant

has now learned of his nonselections for the positions in question, he may file a

new complaint with OSC and pursue a new IRA appeal if OSC does not pursue

corrective action. ID at 6. In fact, the appellant filed a second IRA appeal

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regarding these claims after he exhausted his administrative remedies with OSC. 3

In an April 20, 2018 initial decision, an administrative judge dismissed that

appeal for lack of jurisdiction because the appellant failed to nonfrivolously

allege that he made disclosures protected by the whistleblower protection statutes.

Harrison v. Small Business Administration, MSPB Docket No. DC-1221-18-0400-

W-1, Initial Decision (Apr. 20, 2018). The appellant has not filed a petition for

review of that initial decision, and thus, it is the final decision of the Board. See

5 C.F.R. § 1201.113 (stating that an initial decision issued by an administrative

judge becomes the Board’s final decision 35 days after issuance if no petition for

review is filed).

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum. 

3

See Bump v. Department of the Interior, 64 M.S.P.R. 326, 331-33 (1994) (holding that

a jurisdictional dismissal of a prior IRA appeal for failure to exhaust administrative

remedies with OSC did not bar a second IRA appeal of the same claim after OSC

remedies were exhausted). 

4

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

5
Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

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were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

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Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

5

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

8
If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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