NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

HAMDY ALEX ABOU-HUSSEIN,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2014-3001

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT1221110850-W-1.

______________________ 

Decided: March 6, 2014 

______________________ 

HAMDY ALEX ABOU-HUSSEIN, of Hendersonville, North 

Carolina, pro se. 

CALVIN M. MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With him on the brief was BRYAN G.

POLISUK, General Counsel.

______________________ 

Before LOURIE, BRYSON, and HUGHES, Circuit Judges.
2 ABOU-HUSSEIN v. MSPB

PER CURIAM. 

Alex Abou-Hussein appeals a final decision by the 

Merit Systems Protection Board dismissing his Individual 

Right of Action appeal for lack of jurisdiction. Because 

Mr. Abou-Hussein failed to prove that he exhausted his 

administrative remedies before the United States Office of 

Special Counsel, we affirm. 

I.

Mr. Abou-Hussein worked as a project engineer at the 

Department of the Navy’s Space and Naval Warfare 

(SPAWAR) systems center. After allegedly disclosing 

contract fraud by several SPAWAR officials, Mr. AbouHussein filed a whistleblower reprisal complaint at the 

United States Office of Special Counsel (OSC). See Whistleblower Protection Act of 1989, Pub. L. No. 101-12, § 4, 

103 Stat. 16, 32 (current version at 5 U.S.C. §§ 2302(b)(8), 

(b)(9) (2012)). In his complaint, Mr. Abou-Hussein alleged 

that he had suffered various reprisals for blowing the 

whistle, including poor performance evaluations, denial of 

pay increases, a change in duties and responsibilities, a 

hostile work environment, placement on absent without 

leave status, inability to review his personnel records, an 

unwarranted criminal investigation, a referral for psychiatric evaluation, death threats, and false allegations of 

espionage, terrorism, substance abuse, and mental illness. 

OSC denied Mr. Abou-Hussein’s claim for relief, and he

filed an Individual Right of Action (IRA) appeal at the 

Merit Systems Protection Board. See Whistleblower 

Protection Act § 3, 103 Stat. at 29–31 (current version at 5 

U.S.C. § 1221 (2012)). 

The Navy moved to dismiss Mr. Abou-Hussein’s IRA 

appeal for lack of jurisdiction. The Board then ordered 

Mr. Abou-Hussein to file a jurisdictional statement accompanied by evidence. After he responded to the Board’s 

order, the evidence before the Board included the following: (1) a 2009 closure letter from OSC regarding an 
ABOU-HUSSEIN v. MSPB 3

earlier whistleblower complaint filed by Mr. AbouHussein; (2) a 2011 notification of Board appeal rights 

from OSC regarding the complaint at issue here; (3) a 

letter from Senator Claire McCaskill, Chairman, Subcommittee on Contracting Oversight, to the Honorable 

Gordon S. Heddell, Inspector General for the Department 

of Defense; (4) a 2011 sworn affidavit detailing the events 

surrounding Mr. Abou-Hussein’s allegations; and (5) an 

undated Chronological Statement also detailing the 

events surrounding Mr. Abou-Hussein’s allegations.

After reviewing these materials, the Board stated that 

it was “unable to discern whether any of the disclosures 

alleged by the appellant in the instant appeal were raised 

before OSC.” App. to Resp. Br. 7. Thus, the Board found 

that Mr. Abou-Hussein “failed to prove that he exhausted 

his OSC administrative remedies” and dismissed his

appeal for lack of jurisdiction in a Final Order. Id.

Mr. Abou-Hussein now asks us to vacate the Board’s 

Final Order and to order a jurisdictional hearing. We 

have jurisdiction under 28 U.S.C. § 1295(a)(9). 

II.

We must affirm final Board decisions unless they are 

(1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without 

following the procedures required by law; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2012); 

Addison v. Dep’t of Health & Human Servs., 945 F.2d 

1184, 1186 (Fed. Cir. 1991). We review the Board’s factual findings for substantial evidence, defined as “such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Hathaway v. Merit 

Sys. Prot. Bd., 981 F.2d 1237, 1240 (Fed. Cir. 1992) (quoting Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.

Cir. 1990)) (internal quotation marks omitted). Whether 

the Board has jurisdiction over an appeal is a question of 
4 ABOU-HUSSEIN v. MSPB

law that this court reviews de novo. Johnston v. Merit 

Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). 

To establish the Board’s jurisdiction over an IRA appeal, a petitioner must make nonfrivolous allegations that

he engaged in whistleblowing activity by making a protected disclosure and that, because of the protected disclosure, the agency took or failed to take a “personnel action” 

as defined by 5 U.S.C. § 2302(a). Schmittling v. Dep’t of 

the Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000). A petitioner must also establish that he sought corrective action 

from OSC and that he exhausted his available administrative remedies at OSC. Schmittling, 219 F.3d at 1336; 

see also 5 U.S.C. § 1214(a)(3) (2012).

The Board determines whether a petitioner has exhausted the available remedies at OSC based only on 

information submitted to OSC prior to closure of his case. 

See Willis v. Dep’t of Agric., 141 F.3d 1139, 1144 (Fed. Cir. 

1998); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 

(Fed. Cir. 1993). Accordingly, a petitioner has exhausted 

the available remedies at OSC only if he has informed 

OSC of the precise ground of his whistleblowing claim and 

provided OSC with a sufficient basis to investigate the 

claim. Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 

(Fed. Cir. 1992). In other words, the materials an employee submits to OSC must “articulate with reasonable 

clarity and precision the basis for his request for corrective action.” Ellison, 7 F.3d at 1037. A petitioner must 

prove before the Board that he submitted such materials 

to OSC. See id.

Here, the Board correctly concluded that neither the

2009 closure letter nor the 2011 notification of Board 

appeal rights identifies any of Mr. Abou-Hussein’s alleged 

disclosures.

Similarly, Mr. Abou-Hussein cannot rely on Senator 

McCaskill’s letter to establish jurisdiction. Nothing in the 

record establishes that Mr. Abou-Hussein submitted the 
ABOU-HUSSEIN v. MSPB 5

letter to OSC. Moreover, the letter does not adequately 

explain how the Navy allegedly took or failed to take a 

personnel action because of the disclosures referred to in 

Senator McCaskill’s letter. 

The Board also considered Mr. Abou-Hussein’s 2011 

affidavit. Because this date occurred well after OSC 

closed Mr. Abou-Hussein’s case, OSC never considered the 

affidavit. Moreover, Mr. Abou-Hussein’s affidavit did not 

identify any specific disclosures he allegedly made to OSC

or personnel actions allegedly brought to OSC’s attention. 

In relevant part, it merely stated, “May 2, 2008, Hussein 

reported to the Office of Special Counsel (OSC), Disclosure Unit, allegations of fraud, waste, abuse, gross mismanagement, and abuse of authority by SPAWAR senior 

employees for D048 violations.” App. to Resp. Br. 82. 

Finally, the Board considered Mr. Abou-Hussein’s undated Chronological Statement. The record does not 

establish that this statement was ever submitted to OSC. 

Although Mr. Abou-Hussein claims to have submitted the 

statement, id. at 48, his claim is unsupported. Thus, we 

agree with the Board that he “has not submitted any 

evidence to support his bare assertion” that he submitted 

the Chronological Statement to OSC. Id. at 7. 

Finally, Mr. Abou-Hussein claims that Garcia v. Dep’t 

of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) 

(en banc) entitled him to a jurisdictional hearing on 

exhaustion. Apart from the fact that Garcia addresses 

adverse action claims rather than the IRA appeal here, 

nothing in that case or any of our precedent suggests that 

a jurisdictional hearing is required on the issue of OSC 

exhaustion. Rather, exhaustion is determined based on 

the complaint or other written materials submitted to 

OSC. As the Board explained to Mr. Abou-Hussein, “[t]he 

test of the sufficiency of [a] claim of whistleblowing to 

OSC is the statement . . . made in the complaint request-
6 ABOU-HUSSEIN v. MSPB

ing corrective action or in other submissions to OSC.” 

App. to Resp. Br. 43.

For these reasons, we agree with the Board that Mr. 

Abou-Hussein failed to prove that he exhausted his administrative remedies at OSC. Accordingly, the Board 

properly dismissed the case for lack of jurisdiction.

AFFIRMED

COSTS

No costs.