UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NATAKI DAMALI MACMURRAY,

Appellant,

v.

OFC OF NATIONAL DRUG

CONTROL POLICY,

Agency.

DOCKET NUMBER

DC-3443-14-0183-I-1

DATE: August 7, 2014

THIS ORDER IS NONPRECEDENTIAL1

Nataki Damali MacMurray, Hyattsville, Maryland, pro se.

Jeffrey J. Teitz, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the regional 

office for further adjudication in accordance with this Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant filed an appeal in which she 2 challenged the agency’s 

decision not to select her for the position of Senior Policy Analyst (Prevention 

Branch Chief), GS-15. Initial Appeal File (IAF), Tab 1. Because it appeared that 

the Board may not have jurisdiction over her nonselection, the administrative 

judge issued an acknowledgement order that specifically advised the appellant of 

the jurisdictional requirements with regard to her nonselection for promotion. 

IAF, Tab 2. In a response dated December 19, 2013, the appellant alleged that 

“the agency’s decision of non-selection was made in retaliation for whistleblowing.” IAF, Tab 3. The appellant asserted that “I invoke whistle-blower 

protections for reporting a violation of my civil rights in the workplace to the 

department of EEOC offices in December 2007.” Id. The appellant asserted 

further that, since reporting the civil rights violation in 2007, she has 

“experienced differential treatment in various matters from my supervisor who 

was the subject of my reporting.” The appellant specifically identified the 

personnel actions she asserts were taken against her in reprisal and she stated that 

she was “requesting the MSPB consider my appeal under its jurisdiction to review 

my case of non-selection in retaliation for whistle-blowing.” Id. The agency 

addressed the appellant’s whistleblower claim in its January 3, 2014 response, 

IAF, Tab 5. 

¶3 Despite the clear import of the pleadings, the administrative judge failed to

acknowledge the appellant’s whistleblower claim and provide the appropriate 

Burgess 3 notice informing her of what she needed to do to establish Board 

jurisdiction over her whistleblower claim. Rather, on March 28, 2014, the 

 2 We note that, while the administrative judge consistently referred to the appellant as a 

male, the agency’s submissions indicate that the appellant is a female. IAF, Tab 5.

3 An appellant must receive explicit information on what is required to establish an 

appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d 

641, 643-44 (Fed. Cir. 1985).
3

administrative judge issued an initial decision that dismissed the appeal finding 

that the Board does not have jurisdiction over her nonselection claim. IAF, 

Tab 6, Initial Decision (ID). In the decision, the administrative judge set forth 

the burden of proof regarding an individual right of action (IRA) appeal and 

found that the appellant did not provide any evidence showing that she exhausted 

her remedies with the Office of Special Counsel (OSC). ID at 2-3. However, the 

administrative judge also noted that he failed to provide the appellant any notice 

explaining the elements necessary to prove the Board’s jurisdiction over an IRA 

appeal and, instead, advised her that, if she has exhausted her rights with OSC, 

“[s]he is welcome to submit such evidence to the Board in a petition for review of 

this initial decision.” ID at 3 n.1.

¶4 An initial decision must identify all material issues of fact and law, 

summarize the evidence, resolve issues of credibility, and include the 

administrative judge’s conclusions of law and his legal reasoning, as well as the 

authorities on which that reasoning rests. Spithaler v. Office of Personnel 

Management, 1 M.S.P.R. 587, 589 (1980). Further, the Board has jurisdiction 

over an IRA appeal if the appellant has exhausted her administrative remedies 

before OSC and makes nonfrivolous allegations that: (1) she 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). The question of whether the appellant has made a nonfrivolous 

allegation is determined based on the written record, without holding a 

jurisdictional hearing. Spencer v. Department of the Navy, 327 F.3d 1354, 1356 

(Fed. Cir. 2003); Wells v. Department of Homeland Security, 102 M.S.P.R. 36, 

¶ 5 (2006). 

¶5 Here, with regard to the jurisdictional question, the administrative judge 

failed to identify all material issues of fact and law, include his conclusions of 

law and his legal reasoning, or identify the authorities on which that reasoning 
4

rested. See Spithaler, 1 M.S.P.R. at 589. This was error. See, e.g., Wells,

102 M.S.P.R. 36, ¶ 9. Moreover, the written record, as developed to date, does 

not provide sufficient bases for determining whether the appellant has established 

all of the elements of Board jurisdiction over her IRA appeal. Specifically, the 

appellant, who is pro se, clearly raised an IRA claim below and the agency 

responded to the appellant’s allegations. IAF, Tabs 3, 5. However, the agency’s 

response did not set forth the burdens and elements of proof for establishing this 

affirmative defense and thus, its response was insufficient to inform the appellant 

of what she needed to allege regarding jurisdiction. See Guzman v. Department 

of Veterans Affairs, 114 M.S.P.R. 566, ¶18 (2010). Further, rather than providing 

the appellant with the proper Burgess notice, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction on the basis of her 

nonselection claim and invited her to submit evidence of exhaustion before OSC 

for a first time on review to support her IRA claim. While under some 

circumstances the Board might be able to adjudicate a whistleblower complaint 

without remand, here, the administrative judge invited the appellant to submit 

evidence of exhaustion, but he failed to advise the appellant to submit any 

additional evidence or argument relevant to her claim. ID at 3 n.1. Moreover, 

because the administrative judge was aware that he had failed to provide the 

appellant with the proper Burgess notice for an IRA appeal, he should have 

corrected that error prior to issuing his initial decision. Accordingly, we remand 

this appeal to the Washington Regional Office for further processing. On remand 

the administrative judge must provide proper Burgess notice regarding the 

burdens and elements of proof for establishing a whistleblower protection claim.
5

ORDER

For the reasons discussed above, we REMAND this case to the Washington 

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board