UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KEVIN J. WOODLAND,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-3443-16-0124-I-1

DATE: September 19, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robert Mika, Bremerton, Washington, for the appellant.

Matthew D. Dunand, Bremerton, Washington, 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 for lack of jurisdiction his appeal regarding a performance appraisal 

and a nonselection for promotion. 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 regulation 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a WG-5210-10 Rigger, filed this appeal alleging that the 

agency did not select him for a promotion and scored him lower on his 

2015 performance appraisal in retaliation for his equal employment opportunity 

(EEO) activity and due to discrimination based on age and disability. Initial 

Appeal File (IAF), Tab 1 at 4, 6. The administrative judge issued the parties a 

jurisdictional show cause order. IAF, Tab 2 at 2-5. The appellant filed a 

response consisting of an email exchange that appeared to address the merits of 

the case without addressing the jurisdictional issues. IAF, Tab 3. The agency 

filed a motion to dismiss for lack of jurisdiction, asserting that the challenged 

actions are not within the Board’s adverse action jurisdiction. IAF, Tab 6. The 

administrative judge dismissed the appeal for lack of jurisdiction without holding 

a hearing. IAF, Tab 7, Initial Decision (ID). The administrative judge found that 

the appellant failed to nonfrivolously allege that he had been subjected to an 

appealable adverse action. ID at 2-3. She further found that the appellant failed 

to establish jurisdiction over this matter as an individual right of action (IRA) 

appeal because he did not first exhaust his remedies with the Office of Special 
3

Counsel (OSC) regarding any reprisal claim or make a nonfrivolous allegation 

that he made a protected disclosure or engaged in protected activity within the 

meaning of 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B)-(D). ID at 3-4.

¶3 The appellant has filed a petition for review, stating that he has new 

information that a less qualified worker was promoted, which he claims is further 

evidence supporting his retaliation claim. Petition for Review (PFR) File, Tab 1 

at 2. He asserts that he should not have to go first to OSC because this is a 

“mixed case.” Id. He also states that an employee may pursue a whistleblower 

reprisal claim in an IRA appeal with the Board in connection with types of 

personnel actions that are not directly appealable to the Board. Id. at 2-3.

¶4 As stated in the initial decision, the Board’s jurisdiction is limited to those 

matters over which it has been given jurisdiction by law, rule, or regulation. 

ID at 2 (citing Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. 

Cir. 1985)). Neither a nonselection for a promotion nor a performance rating is 

an appealable adverse action pursuant to 5 U.S.C. chapter 75. 2

 5 U.S.C. §§ 7512, 

7513(d). The Board lacks jurisdiction to consider the appellant’s claims of 

discrimination and retaliation for EEO activity in connection with these

nonappealable actions. See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, 

¶¶ 8-9 (2005); see also Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) 

(holding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an 

independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871‐73 (D.C. Cir. 

1982). Because the appellant has not alleged that he was subjected to an action 

that is appealable to the Board, his appeal is not a mixed-case appeal. See

Lethridge, 99 M.S.P.R. 675, ¶ 9 (explaining that a mixed-case appeal involves an 

action that is appealable to the Board and an allegation that the appealable action 

 2 The appellant did not make any allegations that would implicate the Board’s 

jurisdiction over such matters pursuant to 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 Becker v. Department of Veterans Affairs, 

107 M.S.P.R. 327, ¶¶ 5, 9-13 (2007).
4

is based on prohibited discrimination) (citing 5 C.F.R. § 1201.115(a)(1); 

29 C.F.R. § 1614.302(a)(2)). Thus, we find no basis for finding jurisdiction 

pursuant to 5 U.S.C. chapter 75 or as a mixed-case appeal. The appellant’s

alleged new evidence, PFR File, Tab 1 at 2, is immaterial to the jurisdictional 

issue.

¶5 We further find that the administrative judge correctly concluded that the 

Board lacks jurisdiction over this matter as an IRA appeal because the appellant 

failed to demonstrate that he first exhausted his remedies with OSC regarding any 

reprisal claims. ID at 2-3. The appellant admitted on his initial appeal form that 

he had not filed a complaint with OSC. IAF, Tab 1. On review, he has not 

asserted any error in the administrative judge’s factual finding that he did not file 

a complaint with OSC. PFR File, Tab 1; ID at 3. Rather, he merely asserts that 

he should not have to exhaust with OSC because he is alleging retaliation for 

EEO activity. PFR File, Tab 1 at 2. It is well settled, however, that an individual 

must first exhaust his administrative remedies with OSC before bringing an IRA 

appeal to the Board. 5 U.S.C. §§ 1214(a)(3), 1221; Corthell v. Department of 

Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016); see Yunus v. Department of 

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Because the appellant 

did not file a complaint with OSC, the Board cannot assert jurisdiction over this 

matter as an IRA appeal. 3

¶6 For the foregoing reasons, we find that the administrative judge properly 

dismissed this appeal for lack of jurisdiction without holding a hearing.

 3 Because we find that the appellant failed to exhaust his remedies with OSC regarding 

any reprisal claim, we do not reach the issue of whether he has alleged that he made any 

disclosure or engaged in any activity that would be protected by 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i) or (B)-(D).
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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.

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 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 U.S. Court of Appeals for the Federal Circuit is 
6

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 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.

______________________________

Jennifer Everling

Acting Clerk of the Board