UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EARL MARTIN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-3443-15-0156-I-1

DATE: September 30, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Davis, Montrose, New York, for the appellant.

Kathleen J. Tulloch, Esquire, Brooklyn, New York, 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 

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). 

¶2 In this appeal, the appellant claimed that the agency committed harmful 

procedural error and engaged in prohibited personnel practices when it failed to 

select him for promotion to a Maintenance Worker position at the agency’s 

hospital in Montrose, New York. Initial Appeal File (IAF), Tab, Tab 1. With his 

appeal, the appellant provided a partial copy of a complaint he filed with the 

Office of Special Counsel (OSC) about the same selection process. Id. at 9-19. 

The administrative judge issued an acknowledgment order, along with two 

separate jurisdictional orders, in which he informed the appellant that the Board 

lacks jurisdiction over such nonselections for promotion and set forth the 

appellant’s burden to establish jurisdiction over his appeal by, among other 

things, making nonfrivolous allegations that the agency’s decision was either 

made in retaliation for protected whistleblowing, was the product of 

discrimination based on uniformed service, or was made in violation of his 

veterans’ preference rights. IAF, Tabs 2, 4-5. The appellant did not respond by 

the latest of the dates set forth for his responses in the administrative judge’s 

orders, and the administrative judge subsequently dismissed the appeal for lack of 

jurisdiction based on the written record. IAF, Tab 10, Initial Decision (ID). On 

the day after the issuance of the initial decision, the appellant faxed a letter to the 
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regional office in which he argued the merits of his nonselection claim, but he 

failed to address the jurisdictional issue. 2

 IAF, Tab 12. 

¶3 In his timely-filed petition for review, the appellant asserts that OSC 

dismissed his complaint because his union had unilaterally filed a grievance 

under the parties’ negotiated procedure. Petition for Review (PFR) File, Tab 1 

at 3. Although the appellant includes the first page of a letter in which OSC 

acknowledges receipt of his complaint, id. at 8, he fails to offer any support for 

his assertion that OSC has closed its investigation into his complaint. He argues 

that “the administrative judge acted pre-maturely” in dismissing the appeal for 

lack of jurisdiction and accuses her of bias. Id. at 2-4. The appellant also 

contends that the Board has jurisdiction over the appeal as a mixed case 

regardless of whether the action is otherwise appealable to the Board because he 

raised the matter of discrimination. 3

 Id. at 3. He resubmits the three-page letter 

he submitted after the administrative judge issued the initial decision. Id. at 9-11. 

The appellant does not challenge the administrative judge’s findings that he failed 

to establish jurisdiction under either the Veterans Employment Opportunities Act 

of 1998 or the Uniformed Services Employment and Reemployment Rights Act of 

1994 (codified at 38 U.S.C. §§ 4301-4333). See ID at 3-5. 

¶4 The Board has jurisdiction over an individual right of action (IRA) appeal if 

the appellant has exhausted his administrative remedies before OSC and makes 

 2 The administrative judge returned this submission to the appellant. IAF, Tab 13. 

3 The Board lacks jurisdiction over the appellant’s claims that the agency discriminated 

against him because such allegations do not provide the Board with an independent 

source of jurisdiction. Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶¶ 8-12 

(2005); see Perlmutter v. Department of the Air Force, 41 M.S.P.R. 38, 39 (1989) 

(finding that the appellant failed to meet his burden of proof to establish Board 

jurisdiction over his performance rating and that the Board could not hear his 

discrimination complaint absent an otherwise appealable action). Nor is this appeal a 

mixed case because the appellant’s nonselection for promotion is not otherwise 

appealable to the Board and a mixed case involves both an appealable matter and a 

claim of discrimination. See Conforto v. Merit Systems Protection Board, 713 F.3d 

1111, 1118 (Fed. Cir. 2013) (citing 5 U.S.C. § 7702(a)(1)).
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nonfrivolous allegations that: (1) he engaged in whistleblowing activity by 

making a protected disclosure, and (2) the disclosure was a contributing factor in 

the agency’s decision to take or fail to take a personnel action. Yunus v. 

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). An

appellant has not exhausted his OSC remedy unless he filed a complaint with

OSC and either OSC notified him that it was terminating its investigation of his 

allegations or 120 calendar days have passed since he first sought corrective 

action. 5 U.S.C. § 1214(a)(3); Simnitt v. Department of Veterans Affairs, 

113 M.S.P.R. 313, ¶ 8 (2010). 

¶5 The appellant apparently filed his OSC complaint contemporaneously with 

his Board appeal. See ID at 5; see also IAF, Tab 1 at 16. Therefore, we agree 

with the administrative judge that, at the time he dismissed this IRA appeal, the 

appellant had not exhausted his OSC remedy and that the Board lacked 

jurisdiction over this IRA appeal. We therefore affirm the initial decision in that 

regard. 

¶6 With his petition for review, the appellant submitted a letter from OSC,

which indicates that it had received the appellant’s complaint as of April 9, 2015,

PFR File, Tab 1 at 8, and it is therefore clear that 120 calendar days have passed 

since the appellant first sought corrective action with OSC and he may now file 

an IRA appeal, 5 U.S.C. § 1214(a)(3); Simnitt, 113 M.S.P.R. 313, ¶ 8. 

Additionally, because the nonselection at issue is not otherwise appealable to the 

Board, the choice to use the negotiated grievance procedure does not appear to 

constitute an election of remedies under 5 U.S.C. § 7121(g) that would bar the 

filing of a subsequent IRA appeal. Edwards v. Department of the Air Force, 

120 M.S.P.R. 307, ¶ 12 (2013). Nevertheless, even though the Board’s practice is

generally to adjudicate an appeal that was premature when it was filed but 

becomes ripe while pending with the Board, e.g., Jundt v. Department of Veterans 

Affairs, 113 M.S.P.R. 688, ¶ 7 (2010), for the following reasons, we decline to 

forward the appeal to the field office for further adjudication. 
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¶7 Although the appellant complains that the agency committed a prohibited 

personnel practice regarding the selection process for the position at issue, he 

never specifically alleges that the agency declined to select him for promotion in 

reprisal for an alleged protected disclosure. See IAF, Tab 1; PFR File, Tab 1. 

Instead, he asserts that his complaint itself “represents a disclosure matter” and 

makes his IRA appeal appropriate for consideration by OSC and within the 

Board’s jurisdiction. PFR File, Tab 1 at 2. However, if his complaint is also his 

disclosure, then it cannot have been the reason for the agency’s decision not to 

select him for promotion because, under that scenario, the agency took the 

personnel action before the appellant even made his alleged protected disclosure. 

See, e.g., Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 21 

(2011); Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 12 (2007), aff’d, 

278 F. App’x 1009 (Fed. Cir. 2008). Moreover, because the appellant has not 

shown that he raised a whistleblowing claim before OSC, he has not exhausted 

OSC proceedings as to any whistleblowing allegation he may have made in this 

Board appeal. See, e.g., Finston v. Health Care Financing Administration, 

83 M.S.P.R. 100, ¶¶ 9-10 (1999). 

¶8 Accordingly, we find that the administrative judge correctly dismissed the 

appellant’s appeal for lack of jurisdiction. 

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).
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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 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 an appeal to the 

United States 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 
7

court. 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