UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WALTER ESSEX,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-1221-15-0205-W-1

DATE: June 11, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL∗

Walter Essex, Sherman, Texas, pro se.

Kenneth S. Carroll, Esquire, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

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

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 ∗ A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the 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. See

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, and based on the 

following points and authorities, 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). 

BACKGROUND

¶2 On September 8, 2014, the appellant filed a Board appeal alleging that, in 

June 2012, the agency improperly failed to select him for one of three vacancies 

for a position as an Addiction Therapist, failed to consider his status as a “50% 

service disabled veteran,” and the agency’s actions constituted discrimination 

based on his race and violated his rights under the “whistleblower act.” MSPB 

Docket No. DA-3443-14-0649-I-1, Initial Decision at 2 (Jan. 26, 2015). On 

January 23, 2015, the administrative judge docketed this IRA appeal to separately 

address the appellant’s allegation raised in his prior case that his nonselection for 

the Addiction Therapist position was in retaliation for his whistleblowing or other 

protected activity. MSPB Docket No. DA-1221-15-0205-W-1, Initial Appeal File

(IAF), Tab 11, Initial Decision (ID) at 2. The administrative judge then issued an 

order on jurisdiction in which she informed the appellant that, to establish Board 

jurisdiction over his IRA appeal, he had to demonstrate, among other things, that 

he had exhausted his whistleblowing claims before the Office of Special Counsel 

(OSC) and she ordered him to submit proof of his exhaustion within 10 days.
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IAF, Tab 3. In response, the appellant submitted several pleadings, none of 

which addressed whether he exhausted his administrative remedies before OSC. 

IAF, Tabs 7-10. Without holding the appellant’s requested hearing, the 

administrative judge dismissed the appeal for lack of jurisdiction, finding that the 

appellant failed to demonstrate that he exhausted his administrative remedies 

before OSC concerning his June 2012 nonselection. ID.

¶3 The appellant has filed a petition for review in which he asserts that he has 

exhausted his administrative remedies before OSC but does not describe when or

how he brought his disclosure and personnel action to the attention of OSC and 

does not attach copies of any documents he provided to, or received from, OSC. 

Petition for Review (PFR) File, Tab 1 at 4, Tab 6 at 3. The agency has filed a 

response in opposition to the appellant’s petition and he has filed a reply. PFR 

File, Tabs 4, 6.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his

administrative remedies with OSC before seeking corrective action from the 

Board in an IRA appeal. Mason v. Department of Homeland Security, 

116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not 

exhausted his OSC remedy unless he has filed a complaint with OSC and either 

OSC has notified him that it was terminating its investigation of his allegations or 

120 calendar days have passed since he first sought corrective action. Simnitt v. 

Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). The appellant 

must inform OSC of the precise ground of his charge of whistleblowing, giving 

OSC a sufficient basis to pursue an investigation that might lead to corrective 

action. Mason, 116 M.S.P.R. 135, ¶ 8. To establish Board jurisdiction, the 

appellant must prove exhaustion with OSC, not just present nonfrivolous 

allegations of exhaustion. Id., ¶ 9. To establish that he has exhausted his OSC 

remedy, the appellant must show what specific claims he presented to OSC by 
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providing his OSC complaint, any amendments to the complaint, OSC’s

correspondence discussing the claims, and/or his responses to OSC’s

correspondence discussing the claims. See Baldwin v. Department of Veterans 

Affairs, 113 M.S.P.R. 469, ¶ 8 (2010).

¶5 The Board may consider only those disclosures of information and 

personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R. 

135, ¶ 8. If an appellant has exhausted his administrative remedies before OSC,

he can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging 

that he made a protected disclosure and that the disclosure was a contributing 

factor in the agency’s decision to take a personnel action. Peterson v. 

Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). Once an appellant 

establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the 

merits of his claim. Id.

¶6 In the instant case, the administrative judge properly found that the 

appellant failed to prove that he exhausted his administrative remedies before 

OSC because the record below contains no evidence establishing that the 

appellant alleged before OSC that his nonselection for the Addiction Therapist 

position was in reprisal for protected whistleblowing activity. ID. Although the 

appellant asserts on review that he has exhausted his administrative remedies with 

OSC, he fails to provide information regarding any aspect of his complaint or any 

evidence that he indeed filed a complaint, e.g., a copy of the complaint or any 

response from OSC. Thus, we find that the administrative judge correctly 

determined that the Board lacks jurisdiction over his appeal because the appellant

failed to show that he raised before OSC the same issues claimed in his appeal. 

See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 21 (2007) (the Board 

may consider only those charges of whistleblowing that the appellant raised 

before OSC); see also Schmittling v. Department of the Army, 92 M.S.P.R. 572, 

¶ 26 (2002) (an appellant has not exhausted his remedy when he has not raised 

before OSC the personnel action that he is appealing to the Board). 
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¶7 We note, however, that on March 3, 2015, the appellant filed another 

appeal, currently pending before the Dallas Regional Office, in which he 

submitted a March 31, 2015 determination letter from OSC regarding his claim of

nonselection for the Addiction Therapist position. See MSPB Docket No. 

DA-1221-15-0257-W-1. To the extent that it appears that the appellant may have

now exhausted his administrative remedies with OSC, we would ordinarily 

remand this appeal for a determination on jurisdiction, and, if appropriate, a 

hearing on the merits. See, e.g., Hawkins v. Department of Commerce,

98 M.S.P.R. 107, ¶¶ 7–8 (2004) (remanding an IRA appeal that became ripe while 

pending on petition for review). However, we find remand unnecessary because 

the controlling issue in this appeal, whether the appellant has made a 

nonfriovolous allegation of Board jurisdiction over his IRA appeal, will be 

determined in the appellant’s pending appeal. See Kinler v. General Services 

Administration, 44 M.S.P.R. 262, 263 (1990) (finding that the Board may, in the

interest of judicial efficiency, dismiss an appeal due to the pendency of another 

appeal before the Board, so long as the identity of the issues exists and the 

controlling issues in the dismissed appeal will be determined in the other appeal).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 
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(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

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

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States 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, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

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

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

the 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
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Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board