UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JOSEPH M. SCOVITCH, Appellant,

v.
NATIONAL ARCHIVES AN D RECORDS ADMIN, Agency. DOCKET NUMBER DC

- 3443

- 15

- 1049

- I

- 1

DATE: February 25, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph M. Scovitch , College Park, Maryland, pro se. Hannah Bergman , College Park, Maryland, 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 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 erroneous interpretation of statute or

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).2

regulation or the err oneous 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 err or 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 t itle 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).

BACKGROUND ¶2 I n August 2015, approximately 6 years after retiring from service with the agency, the appellant, a former Archives Technician, filed a Board appeal. Initial Appeal File (IA F) , Tab 1, Tab 7 at 13. On his appeal form, the appellant
indicat ed that he was appealing the failure of the agency ’ s Office of the Inspector General (OIG) to act on a complaint that he filed in November 2011, which , according to the appellant, pertained to missing and inaccurate records r egarding the Holocaust in Italy. IAF, Tab 1 at 3. T he appellant further indicated that , although he was retired, he wanted the Board to consider him a whistleblower and
also indicated that he had not filed a complaint w ith the Office of Special Counsel (OSC). Id . at 3

- 4. ¶3 The administrative judge issued an order on jurisdiction , in which she informed the appellant of the elements and burdens of proof for establishing Board jurisdiction over an individual right of action ( IRA ) appeal, including the requirement to establish that he exhausted his administrative remedies before
OSC . IAF, Tab 9 at 2

- 6

. In response, among other filings, the appellant3

submitted a September 10, 2015 email from OSC, which indicated that the

appe llant had filed a complaint with OSC ’ s Disclosure Unit. IAF, Tab 1 4

. ¶4 The reafter, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial Decision (ID). She found that the Board lacked ju risdiction over the appellant ’ s claim s as a direct appeal to the
Board . ID at 2. She further found that the Board lacked jurisdiction over the appellant ’ s claim as an IRA appeal, because the appellant had failed to
demonstrate that he exhausted his admin istrative remedies with OSC by seeking corrective action from OSC ’ s Complaints Examining Unit regarding a complaint of reprisal or retaliation for whistleblowing . ID at 4. ¶5 The appellant has filed a petition for review of the initial decision, in which, among other things, he argues that the agency is committing i llegal, criminal, and fraudulent actions regarding data and materials pertaining to the
Holocaust . Petition for Review (PFR) File, Tab 1 at 3

- 5. The agency has filed a response to the petition for review, and the appellant has filed a reply. 2 PFR File, Tabs 3

- 4. ANALYSIS The Board lacks jurisdiction over the appellant ’ s claims as an IRA appeal. ¶6 The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies b efore OSC and makes non frivolous allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8), or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the
agency ’ s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Linder v. Department of
Justice , 122 M.S.P.R. 14 , ¶ 6 (2014); Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). As to the exhaustion requirement,

2 It appears that the appellant erroneously electronically filed his reply as a cross petition for review. PFR File, Tab 4 at 3.4

the Board may only consider those disclosures of information and personnel actions that the appellant raised before OSC. Coufal v. Department of
Justice , 98 M.S.P.R. 31 , ¶¶ 14, 18 (2004). The appellant bears the burden of demonstrating by preponderant evidence that he sought corrective action from OSC and exhausted his administrative remedies there. Briley v. Nationa l Archives & Records Administration , 236 F.3d 1373 , 1377 (Fed. Cir. 2001); 5 C.F.R. § 1201.57 (c)(1). ¶7 On review, the appellant does not challenge the administrative judge ’ s finding that the Board lacks jurisdiction over his claims as an IRA appeal , and we
discern no basis to distu rb that well

- reasoned finding on review . PFR File,
Tab s 1 , 4

. In response to the administrative judge ’ s jurisdictional order, the appellant filed an email indicating that he had filed a complaint with OSC ’ s Disclosure Unit. IAF, Tab 1 4. However, unlike OSC ’ s Complaints Examining Unit, the Disclosure Unit does not review allegations of prohibited personnel practices, and making a disclosure to the Disclosure Unit does not satisfy the exhaustion requirement under 5 U.S.C. § 1214 (a)(3). Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 16 (2011); Sabbagh v. Department of the Army , 110 M.S.P.R. 13 , ¶¶ 10

- 15 (2008). There is no indication that the appellant ever filed a complaint with OSC ’ s Complaints Examining Unit, or otherwise sought corrective action from OSC regarding a prohibited personnel practice

. IAF, Tabs 10

- 15, 17. Ac cordingly, the administrative judge correctly found that
the Board lacks jurisdiction over the appellant ’ s claims as an IRA appeal. ID

at 4 ; see also Clemente v. Department of Homeland Security , 101 M.S.P.R. 519 , ¶ 13 (2006) (dismissing an appeal for lack of jurisdiction where the appellant
failed to demonstrate that he filed a complaint with OSC ’ s Complaints Examining Unit regarding potential prohibited personnel practices)

. The Board otherwise lacks jurisdiction over the appellant ’ s claims. ¶8 The Board ’ s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule or regulat ion. Maddox v. Merit Systems Protection5

Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Thus, it follows that the Board does not have jurisdiction over a ll matters that are alleged to be unfair or incorrect. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573 , 577 (1995). Having considered the appellant ’ s submissions below and on review, we agree with the administrative judge that the appellant has not raised any claim that , outside the context of a potential IRA appeal, would be within the Board ’ s authority to address. 3 ID at 2. ¶9 Chapter 75 of t itle 5 grants the Board jurisdi ction to hear appeals of certain enumerated adverse actions taken by an agency against an employee. 5 U.S.C. §§ 7512 , 7513(d). Such appealable adverse actions include a removal, a suspension f or more than 14 days, a reduction in pay or grade, and certain furloughs. 5 U.S.C. § 7512

. The administrative judge properly found that the appellant’s disclosures to the agency’s OIG did not constitute an appealable adverse action , ID at 2, and n o law, rule, or regulation otherwise grants the Board jurisdiction to review the appellant ’ s claims that the agency is committing illegal, criminal, and fraudulent actions regarding data and materials pertaining to the
Holocaust , PFR File, Tab 1 at 3

- 5, Tab 4 at 3. Accordingly , the Board lacks jurisdiction to conside r the merits of those claims.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this fi nal decision by the U.S. Court of Appeals for the Federal Circuit.

3 Any error by the administrative judge in failing to inform the appellant of the jurisdictional issue presented by his claim as a non

- IRA appeal was cured by the initial decision, which set forth the limited nature of the Board ’s jurisdiction . ID at 2; Fleming v. Department of Labor , 97 M.S.P.R. 341 , ¶ 9 (2004) (finding that , where an administrative judge failed to provide adequate notice of the jurisdictional issues in an appeal, remand wa s unnecessary if the initial decision provided notice of the jurisdictional issue and the appellant was affor ded the opportunity to argue the jurisdictional issue on review). On review, the appellant does not argue Board jurisdiction over his appeal.6

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. § 770 3 (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 b e 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), (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 U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive yo ur 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 U.S. 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 y ou this right. It is found in

t itle 5 of the U.S. 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 U.S. Code, at our website, http://www. mspb.gov/appeals/uscode.htm . 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 “ G uide for Pro Se Petitioners and Appellants, ” which is contained within the

court ’ s Rules of Practice , and Forms 5, 6, and 11. Additional information about7

other 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

. 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 rega rding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the ser vices 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