UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DONNETTE M. MCFARLIN,

Appellant,

v.

OFFICE OF SPECIAL COUNSEL,

Agency.

DOCKET NUMBER

SF-3443-14-0632-I-1

DATE: December 12, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Donnette M. McFarlin, Vista, California, pro se.

Pamela Gault, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Vice Chairman Wagner has recused herself from this case.

FINAL ORDER

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

dismissed her appeal of the Office of Special Counsel’s (OSC’s) purported 

inaction on a complaint. Generally, we grant petitions such as this one only 

when: the initial decision contains erroneous findings of material fact; the initial 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

decision is based on an erroneous interpretation of statute or 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, and based on the following points and authorities, 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 The appellant previously appealed the Office of Personnel Management’s 

(OPM’s) dismissal of her disability retirement application as incomplete. See

McFarlin v. Office of Personnel Management, MSPB Docket No. SF-844E-13-

0682-I-1 (OPM Appeal), Final Order (May 1, 2014). However, that appeal was 

dismissed as untimely. Id. at 5.

¶3 After the dismissal of her OPM appeal, the appellant reportedly filed a 

complaint with OSC, asserting that the Board abused its authority, defamed her 

character, exhibited bias, and issued a decision containing a false accusation. 2

 

Initial Appeal File (IAF), Tab 1 at 5-6. Subsequently, the appellant filed the 

instant Board appeal, this time naming OSC as the opposing party. Id. at 2. It 

 2 At least in part, the appellant’s claim is premised on the Board “publish[ing] [an] 

On-Line accusation that [she] applied to OPM for Death Benefits and a Death Lump 

Sum Payment.” Initial Appeal File, Tab 1 at 6. It is true that the initial decision in the 

appellant’s prior appeal referred to the case as relating to an application for lump-sum 

death benefits, when the application was actually one for disability retirement. See

OPM Appeal, Final Order at 2 n.2. However, we noted the error in the final order, 

finding that it did not affect the appellant’s substantive rights. Id. 
3

appears that the appellant sought to appeal OSC’s decision not to investigate. Id. 

at 5.

¶4 The administrative judge issued an acknowledgment order, advising that the 

appellant appeared to be challenging an action falling outside the Board’s limited 

jurisdiction. IAF, Tab 2 at 2. Accordingly, the judge instructed the appellant to 

file argument and evidence to establish the Board’s jurisdiction. Id. at 4. The 

order provided notice of how she could establish jurisdiction if she was trying to 

file an individual right of action under the Whistleblower Protection Act. Id. at 

2-4. The appellant failed to respond.

¶5 Without holding the requested hearing, IAF, Tab 1 at 3, the administrative 

judge dismissed the appeal for lack of jurisdiction, 3 IAF, Tab 4, Initial Decision 

(ID) at 1. The appellant has filed a petition for review. Petition for Review 

(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.

¶6 The Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In the absence of 

Board jurisdiction, a decision on the merits would be a nullity. Schmittling v. 

Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000). It is the appellant 

that bears the burden of proving, by a preponderance of the evidence, that the 

Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(a)(2)(i). An appellant 

is entitled to a jurisdictional hearing if she makes a nonfrivolous allegation of 

unresolved issues of fact that relate to the Board’s jurisdiction. Manning v. Merit 

Systems Protection Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984). 

¶7 In her petition, the appellant seems to suggest that the administrative judge 

erred in interpreting her appeal. See PFR File, Tab 1 at 4-5. It appears that the 

appellant is now challenging the prior Board decision in her OPM appeal, rather 

 3 The administrative judge noted that if the appellant was seeking to amend the record 

of an earlier appeal, she may submit a request for amendment to the Clerk of the Board 

as a Privacy Act Request, pursuant to 5 C.F.R. § 1205.21. ID at 2-3. 
4

than OSC’s refusal to investigate the matter. See id. at 3-5. Nevertheless, to the 

extent that the appellant’s petition can be construed as challenging OSC’s refusal 

to investigate, she has provided no cause to disturb the initial decision, which 

rightly found that this is not a matter within the Board’s jurisdiction. Weaver v. 

Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (mere disagreement with the 

presiding official’s findings and conclusions does not warrant full review of the 

record by the Board); see 5 U.S.C. § 1213 (detailing OSC’s process of reviewing 

disclosures, without providing any statutory right to appeal OSC’s action or 

inaction). 4

 

¶8 To the extent that the appellant’s petition can be construed as challenging

something other than OSC’s refusal to investigate, the appellant failed to bring 

the argument to the attention of the administrative judge below, when given the 

opportunity to respond to the acknowledgment order. See IAF, Tab 2 at 4 

(providing 10 calendar days for a responsive pleading). The Board generally will 

not consider an argument raised for the first time in a petition for review absent a 

showing that it is based on new and material evidence not previously available 

despite the party’s due diligence. Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). In addition, under 5 C.F.R. § 1201.115, the 

Board will not consider evidence submitted for the first time with the petition for 

review absent a showing that it was unavailable before the record was closed 

despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980). Therefore, we need not consider the appellant’s new arguments, 

see PFR File, Tab 1 at 3-5, or the appellant’s newly submitted evidence, see id. at 

7-8. The appellant failed to show that her arguments or evidence were previously 

unavailable. Moreover, to the extent that the appellant is requesting that we 

reopen our final order in her appeal against OPM, we decline to do so. See OPM 

 4 Despite the administrative judge’s notice below, IAF, Tab 2 at 2-4, the appellant has 

not raised a claim of whistleblower retaliation that implicates the appeal rights of 

5 U.S.C. § 1221. 
5

Appeal, Final Order at 6-7 (explaining the appellant’s right to appeal the Board’s 

decision in her OPM appeal to the U.S. Court of Appeals for the Federal Circuit); 

PFR File, Tab 1 at 8 (letter from the Clerk of the Board, rejecting the appellant’s 

prior request for reconsideration of her OPM appeal); see also Special Counsel v. 

Greiner, 119 M.S.P.R. 492, 496 (2013) (the Board will exercise its authority to 

reopen a final order pursuant to 5 C.F.R. § 1201.118 only in unusual or 

extraordinary circumstances; among the factors considered is the likelihood of 

reaching a new result based on the evidence and argument presented).

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. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 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 is available at the court's website, www.cafc.uscourts.gov. 
6

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.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the 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