NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

REGINALD HILL, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2012-3093 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in MSPB Docket No. AT1221110409-W-1. 

____________________________ 

Decided: October 9, 2012 

____________________________ 

REGINALD HILL, of West Palm Beach, Florida, 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 were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 
HILL v. VA 2

Before RADER, Chief Judge, LOURIE, Circuit Judge, and 

DANIEL*, Chief District Judge. 

PER CURIAM. 

Reginald Hill appeals from the final decision of the 

Merit Systems Protection Board (“the Board”) that dismissed his Individual Right of Action (“IRA”) appeal for 

lack of jurisdiction. See Hill v. Dep’t of Veterans Affairs, 

No. AT1221110409-W-1 (M.S.P.B. June 8, 2011) (“Initial 

Decision”); Hill v. Dep’t of Veterans Affairs, No. 

AT1221110409-W-1 (M.S.P.B. Feb. 23, 2012) (“Final 

Order”). Because the Board did not err in dismissing 

Hill’s appeal, we affirm. 

BACKGROUND

This case relates to a complaint that Hill filed with 

the Office of Special Counsel (“OSC”) in August, 2010.1 

At that time, the Department of Veterans Affairs (“VA”) 

employed Hill at a medical facility. In his OSC complaint, 

Hill alleged discrimination, in particular, that other 

employees were given unauthorized preferences over Hill, 

that the VA obstructed his right to compete for employment, and that the VA failed to afford him preference as a 

veteran. At the same time, Hill contacted the Equal 

Employment Opportunity Commission and raised related 

 * Honorable Wiley Y. Daniel, Chief District Judge, 

United States District Court for the District of Colorado, 

sitting by designation. 

1 In dismissing Hill’s appeal, the Board declined to 

consider Hill’s OSC complaints filed in 2006 and 2007 

because Hill did not provide any evidence that he met the 

statutory requirement of exhausting his remedies before 

the OSC under 5 U.S.C. § 1214(a)(3). Because that determination was not in error, we will not address those 

complaints. Moreover, we note that any appeal regarding 

those complaints would be untimely. See 5 U.S.C. 

§ 1214(a)(3)(A). 
3 HILL v. VA

discrimination claims based on his race, color, sex, age, 

and veterans’ status. 

In November, 2010, the OSC informed Hill that it had 

made a preliminary determination to close its investigation into Hill’s allegations. According to the OSC, Hill’s 

complaint did not allege whistleblower violations, but 

alleged only violations of 5 U.S.C. § 2302(b)(1), (b)(4), 

(b)(6), and (b)(11), which relate to other purported violations of law recited above. After the time for Hill to 

provide comments lapsed, the OSC closed its investigation 

in December, 2010. 

Hill thereafter appealed to Board. The administrative 

judge (“AJ”) assigned to the appeal issued an initial 

decision dismissing Hill’s appeal for lack of jurisdiction. 

Initial Decision, at 9–10. In particular, the AJ concluded 

that Hill’s complaint did not invoke the whistleblower 

protections codified in 5 U.S.C. § 2302(b)(8) because it did 

not allege that Hill made a protected disclosure and was 

too vague and unspecific. 

Hill petitioned the full Board, which denied his petition. Final Order, at 4. The Board concluded that none of 

the evidence in the record showed that Hill made a protected disclosure under 5 U.S.C. § 2302(b)(8). In particular, the Board explained that Hill’s OSC complaint “never 

mention[ed] whistleblowing, protected disclosure, section 

2303(b)(8), or retaliation for whistleblowing.” Id. at 4. 

Instead, the Board concluded that the OSC complaint 

alleged that the VA gave other employees unauthorized 

preference, which was consistent with how the OSC 

characterized Hill’s complaint, and that the Board accordingly lacked jurisdiction over Hill’s appeal. 

Hill timely appealed to this court. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. 

§ 1295(a)(9). 
HILL v. VA 4

DISCUSSION

While the scope of our review in an appeal from a 

Board decision is limited, see Briggs v. Merit Sys. Prot. 

Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003), the scope of the 

Board’s jurisdiction is a question of law that we review 

without deference, Kelley v. Merit Sys. Prot. Bd., 241 F.3d 

1368, 1369 (Fed. Cir. 2001). Under 5 U.S.C. § 1214(a)(3), 

an employee is required to “seek corrective action from 

the Special Counsel before seeking corrective action from 

the Board,” and the Board may only consider the disclosures and personnel actions raised before the OSC, see

Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1035–36 (Fed. 

Cir. 1993). “[T]he Board has jurisdiction over an IRA 

appeal if the appellant has exhausted his administrative 

remedies before the OSC and makes ‘non-frivolous allegations’ that (1) he engaged in whistleblowing activity by 

making a protected disclosure under 5 U.S.C. § 2302(b)(8), 

and (2) the disclosure 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).” Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 

Hill argues that he raised nonfrivolous allegations 

that he made a protected disclosure and that the disclosure was a contributing factor in the VA’s decision to take 

or not take the personnel actions listed in his OSC complaint. Hill argues that the jurisdictional inquiry carries 

a “significantly lower” burden than other pleading requirements and that the Board erred in concluding that 

his allegations in his IRA appeal were insufficient to 

establish jurisdiction. 

The government responds that Hill did not allege any 

facts in his complaint to support a claim of reprisal for 

whistleblowing. To support its argument, the government 

points to OSC’s letter to Hill that did not mention a 
5 HILL v. VA

whistleblowing reprisal claim in discussing Hill’s discrimination-related allegations. Thus, argues the government, the Broad’s dismissal of Hill’s appeal for lack of 

jurisdiction should be affirmed. 

We agree that the Board properly dismissed Hill’s appeal for lack of jurisdiction. The Board correctly concluded that Hill failed to show that he even alleged that 

he made a protected disclosure at the OSC. The record 

indicates that Hill only raised allegations of unlawful 

discrimination, 5 U.S.C. § 2302(b)(1), obstruction of his 

ability to compete for employment, id. § 2302(b)(4), 

unlawful preferences, id. § 2302(b)(6), and violating a 

veterans’ preference, id. § 2302(b)(11). Nothing in the 

record indicates that Hill engaged in whistleblowing 

activity by making a protected disclosure. Nor is there 

any indication that such a disclosure was a contributing 

factor in the VA’s decision to take or not take any of the 

personnel actions identified by Hill. Thus, the Board 

properly dismissed Hill’s claim for lack of jurisdiction. 

We have considered Hill’s remaining arguments and 

conclude that they are without merit. For the foregoing 

reasons, the decision of the Board is 

AFFIRMED 

COSTS

No costs.