UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOSEPH M. SCOVITCH,

Appellant,

v.

NATIONAL ARCHIVES AND 

RECORDS ADMIN,

Agency.

DOCKET NUMBER

DC-3443-15-1049-I-1

DATE: February 25, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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. 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, 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 In 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 (IAF), Tab 1, Tab 7 at 13. On his appeal form, the appellant 

indicated 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 regarding 

the Holocaust in Italy. IAF, Tab 1 at 3. The 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 with 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 appellant 
3

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

appellant had filed a complaint with OSC’s Disclosure Unit. IAF, Tab 14. 

¶4 Thereafter, 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 jurisdiction over the appellant’s claims 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 administrative 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 illegal, 

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 before OSC and makes nonfrivolous 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. National 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 disturb that well-reasoned finding on review. PFR File, 

Tabs 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 14. 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. Accordingly, 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 regulation. Maddox v. Merit Systems Protection 
5

Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Thus, it follows that the Board does not 

have jurisdiction over all 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 title 5 grants the Board jurisdiction 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 for 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 no 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 consider the merits of those claims.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final 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 was unnecessary if the initial decision provided notice of the 

jurisdictional issue and the appellant was afforded 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. § 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), 

(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 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 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 you this right. It is found in 

title 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 “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 
7

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 regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The 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