NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT DONNELL DONALDSON,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent, 

AND

DEPARTMENT OF HOMELAND SECURITY,

Intervenor.

______________________ 

2012-3161

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC1221120087-W-1.

______________________ 

Decided: July 11, 2013

______________________ 

ROBERT DONNELL DONALDSON, of Landover, Maryland, 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 
2 DONALDSON v. MSPB

JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 

 JOSHUA E. KURLAND, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With 

him on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

SCOTT D. AUSTIN, Assistant Director. 

______________________ 

Before LOURIE, SCHALL, and PROST, Circuit Judges.

PER CURIAM. 

DECISION

Robert Donnell Donaldson petitions for review of the 

final decision of the Merit Systems Protection Board 

(“Board”) that denied Mr. Donaldson’s petition for review 

of the decision of an administrative judge (“AJ”). The AJ

dismissed for lack of jurisdiction Mr. Donaldson’s claim 

for relief under the Whistleblower Protection Act of 1989, 

Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered 

sections of 5 U.S.C.) (“WPA”). See Donaldson v. Dep’t of 

Homeland Sec., No. DC-1221-12-0087-W-1 (M.S.P.B. June 

21, 2012) (“Final Decision”). We affirm. 

DISCUSSION

I.

Mr. Donaldson is a disabled veteran who, in response 

to a vacancy announcement posted in February of 2011, 

applied for a position as a Marine Transportation Specialist with the Coast Guard.1 After interviewing two candi1 This vacancy announcement was a re-posting of 

one of the positions at issue in prior appeal 2012-3106, 

reported at Donaldson v. Department of Homeland Securi-

 
DONALDSON v. MSPB 3

dates (but not Mr. Donaldson), the Department of Homeland Security (the “agency”) offered the position to a 

retired Coast Guard Lieutenant Commander, who accepted the position. 

II.

Mr. Donaldson appealed his non-selection to the 

Board and requested a decision on the written record. On 

October 3, 2011, the AJ assigned to the case issued a close 

of record order that (1) allowed the parties to provide 

additional information until the record closed a month 

later, and (2) informed Mr. Donaldson of what was required to prove that the agency had violated his veterans’ 

preference rights. On October 13, 2011, the agency submitted a narrative response to Mr. Donaldson’s claims, as 

well as certain supporting documentation. In response, 

Mr. Donaldson filed a closing submission in which he 

alleged that, with the non-selection, the agency not only 

had violated his veterans’ preference rights under the 

Veterans Employment Opportunities Act of 1998, 5 U.S.C. 

§§ 3330a–3330c (“VEOA”) (as he had already alleged) but 

that it also had retaliated against him for allegedly protected whistleblowing activity.2 Mr. Donaldson stated 

that he had raised these latter allegations (the “Whistleblower Claims”) with the Office of Special Counsel. The 

AJ then docketed a separate individual right of action 

appeal under the WPA to address the Whistleblower 

Claims. 

On November 4, 2011, the AJ issued a jurisdictional 

show cause order that explained to Mr. Donaldson his

jurisdictional burden with respect to the Whistleblower 

Claims and that required him to set forth his arguments 

ty, 495 F. App’x 53 (Fed. Cir. Oct. 4, 2012), cert. denied, 

___ S.Ct. ___, 2013 WL 673877 (June 24, 2013).

2 Mr. Donaldson’s original claims (the “VEOA 

Claims”) are at issue in our appeal No. 2012-3160. 

 
4 DONALDSON v. MSPB

regarding jurisdiction. In response, Mr. Donaldson stated, in relevant part:

• The agency took retaliation against the appellant for filing a complaint to competent 

authority (the Merit System [sic] Protection 

Board . . . , the Department of Labor, the 

Office of Special Counsel)

* * * 

• In the appellants [sic] submission(s) to the 

Office of Special Counsel, the appellant 

specifically mentioned and OSC addressed 

5 U.S.C. § 2302. 

Intervenor App. 67. 

The agency responded by arguing that Mr. Donaldson’s allegation that “the Agency retaliated against 

him for filing appeals to the MSPB . . . does not constitute 

protected disclosures.” Resp’t App. 45. After considering 

the parties’ submissions, the AJ dismissed for lack of 

jurisdiction. See Donaldson v. Dep’t of Homeland Sec., 

No. DC-1221-12-0087-W-1 (Dec. 16, 2011) (“Initial Decision”). First, the AJ set forth the applicable law requiring 

a party seeking review of whistleblower claims to establish jurisdiction before the Board by demonstrating exhaustion of administrative remedies and by making nonfrivolous allegations that (1) he or she engaged in protected whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8)3 and that (2) the 

3 The version of this section effective from October 

14, 2008, to December 27, 2012, states: 

Any employee who has authority to take, direct 

others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . take or fail to take, or threaten to take 

or fail to take, a personnel action with respect to 

 
DONALDSON v. MSPB 5

disclosure was a contributing factor in an agency’s decision to take or fail to take a personnel action. See Initial 

Decision at 4 (citing Yunus v. Dep’t of Veterans Affairs, 

242 F.3d 1367, 1371 (Fed. Cir. 2001)). 

The AJ found that Mr. Donaldson’s Whistleblower 

Claims were to the effect that the agency had failed to 

select him based on (1) the filing of an earlier appeal with 

the Board from an earlier non-selection and (2) the filing 

of complaints related to the non-selection with the Department of Labor and the Office of Special Counsel under 

the VEOA and the Uniformed Services Employment and 

Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301–35

(“USERRA”). Initial Decision at 6. The AJ concluded 

that filing a Board appeal is not a protected disclosure 

under 5 U.S.C. § 2302(b)(8), but rather falls under 

any employee or applicant for employment because of (A) any disclosure of information by an 

employee or applicant which the employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation, or (ii) gross 

mismanagement, a gross waste of funds, an abuse 

of authority, or a substantial and specific danger 

to public health or safety, if such disclosure is not 

specifically prohibited by law and if such information is not specifically required by Executive 

order to be kept secret in the interest of national 

defense or the conduct of foreign affairs; or (B)

any disclosure to the Special Counsel, or to the 

Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the 

employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste 

of funds, an abuse of authority, or a substantial 

and specific danger to public health or safety. 

 
6 DONALDSON v. MSPB

5 U.S.C. § 2302(b)(9),4 which protects an employee from 

retaliation for exercising appeal, complaint, or grievance 

rights, but does not provide an independent basis for 

Board jurisdiction. Initial Decision at 6–7. At the same 

time, the AJ concluded that complaints under the VEOA 

and the USERRA also are covered under § 2302(b)(9), and 

thus do not provide an independent basis for Board jurisdiction. Initial Decision at 7. Because Mr. Donaldson had 

failed to establish that he had engaged in protected 

whistleblowing activity by making a protected disclosure, 

the AJ dismissed for lack of jurisdiction. 

Mr. Donaldson petitioned the Board for review. In the 

Final Decision, the Board denied the petition. Final 

Decision at 3. Specifically, the Board found that Mr. 

Donaldson’s “activities of filing appeals with the Board 

and complaints with the Department of Labor are activities that are protected by § 2302(b)(9)(A),” and that Mr. 

Donaldson failed to make a non-frivolous allegation that 

4 The version of this section effective from October 

14, 2008, to December 27, 2012, states: 

Any employee who has authority to take, direct 

others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . take or fail to take, or threaten to take 

or fail to take, any personnel action against any 

employee or applicant for employment because of

(A) the exercise of any appeal, complaint, or 

grievance right granted by any law, rule, or regulation; (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right 

referred to in subparagraph (A); (C) cooperating 

with or disclosing information to the Inspector 

General of an agency, or the Special Counsel, in 

accordance with applicable provisions of law; or 

(D) for refusing to obey an order that would require the individual to violate a law.

 
DONALDSON v. MSPB 7

these activities constituted protected disclosures under 

§ 2302(b)(8). Final Decision at 2 (citing Serrao v. Merit 

Sys. Prot. Bd., 95 F.3d 1569, 1575–76 (Fed. Cir. 1996)). 

Finding that Mr. Donaldson had not engaged in protected 

whistleblowing activity by making a protected disclosure, 

the Board declined to address the second prong under 

Yunus—whether Mr. Donaldson alleged that a protected 

disclosure was a contributing factor in his non-selection. 

Final Decision at 2. The Board found that it lacked 

jurisdiction over claims under § 2302(b)(9) in the absence 

of an otherwise appealable action. Final Decision at 3. 

With the petition for review denied, the Initial Decision became the final decision of the Board. See id. at 3. 

This appeal followed. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9).

III. 

Our scope of review in an appeal from a decision of 

the Board is limited. Specifically, we must affirm the 

Board’s decision unless we find it to be (1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence. 5 U.S.C. § 

7703(c); Kewley v. Dep’t of Health & Human Servs., 153 

F.3d 1357, 1361 (Fed. Cir. 1998). An appellant before the 

Board has the burden to establish jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2). 

Whether the Board has jurisdiction to adjudicate an 

appeal is a question of law, which we review de novo. See 

Johnson v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. 

Cir. 2008).

IV. 

Mr. Donaldson argues that the Whistleblower Claims 

constituted allegations under either § 2302(b)(8) or 

§ 2302(b)(9), and that, by docketing a separate appeal for 

the Whistleblower Claims, the AJ created a jurisdictional 

issue that did not exist prior to bifurcation. We disagree. 
8 DONALDSON v. MSPB

The Board’s jurisdiction is not plenary. Rather, it is 

limited to actions designated as appealable to the Board 

“under any law, rule, or regulation.” See Prewitt v. Merit 

Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998) (citing 5 

U.S.C. § 7701(a)). “An agency’s failure to select an applicant for a vacant position is generally not appealable to 

the Board.” Prewitt, 133 F.3d at 886. Certain exceptions 

to this general rule, however, do exist. 

Under one such exception, a potential employee can 

seek Board review of allegations that he or she was not 

selected based on a disclosure protected under 

§ 2302(b)(8). See id. (citing 5 U.S.C. § 1221(a)). Under 

another exception, a potential employee can petition the 

Board to review allegations that a non-selection violated

the VEOA or the USERRA. See Ruffin v. Dept. of Treasury, 89 M.S.P.R. 396, 400–01 (2001). In cases involving 

both of these exceptions, the Board will docket a separate 

individual right of action appeal for the claims under 

§ 2302(b)(8). See Wooten v. Dep’t of Veterans Affairs, 96 

M.S.P.R. 671, 675 n.* (2004). 

Under the law effective at the time of Mr. Donaldson’s 

claims, generic retaliation claims under § 2303(b)(9)—

asserting that an agency retaliated based on the filing of 

an appeal, complaint, or grievance—did not constitute an 

exception to the general lack of Board jurisdiction for 

claims based on a non-selection.5 Instead, remedies for 

such claims were limited to filing a request for corrective 

action with the Office of Special Counsel, as Mr. Don5 Although the parties did not address the issue, we 

note that Congress amended 5 U.S.C. § 1221(a), effective 

December 27, 2012, to provide an individual right of 

action under §§ 2302(b)(9)(A)(i), (B), (C), and (D). See

Whistleblower Protection Enhancement Act of 2012, Pub. 

L. No. 112-199, 126 Stat. 1465, 1465 (2012). Prior to that 

effective date, § 1221(a) only provided an individual right 

of action under § 2302(b)(8). 

 
DONALDSON v. MSPB 9

aldson did here. See Shaver v. Dep’t of the Air Force, 106 

M.S.P.R. 601, 605 n.3 (2007) (citing 5 U.S.C. § 1214).

The question of Board jurisdiction over the Whistleblower Claims at issue here thus turns on whether those 

claims fall under § 2302(b)(8) or § 2302(b)(9). If under the 

former, the Whistleblower Claims (removed into a separate appeal by the AJ) could properly stand alone as a 

separate individual right of action appeal. See Wooten, 96 

M.S.P.R. at 675 n.*. If under the latter, for reasons 

discussed above, the Board could not exercise jurisdiction, 

whether or not the AJ had separated those claims into 

their own appeal apart from the VEOA claims. See 

Schoenrogge v. Dep’t of Justice, 410 F. App’x 314, 318

(Fed. Cir. 2010) (noting that the Board “correctly explained that [it] does not have jurisdiction to consider an 

agency’s alleged violation of prohibited personnel practices [in a VEOA action]”); Ruffin, 89 M.S.P.R. at 400–01 

(discussing the lack of authority to review claims of prohibited discrimination in USERRA and VEOA cases). 

We see no error in the Board’s conclusion that Mr. 

Donaldson’s Whistleblower Claims fall under § 2302(b)(9), 

and therefore, under the law applicable to this appeal, do 

not support jurisdiction. See Final Decision at 2–3. As 

set forth above, in response to the show cause order, Mr. 

Donaldson clearly alleged that the agency failed to select 

him in retaliation for filing a Board appeal as well as 

filing complaints with the Department of Labor and Office 

of Special Counsel. Mr. Donaldson relies only on these 

activities and does not allege a separate protected disclosure, such as the disclosure of information under 

§ 2302(b)(8). 

This court has previously noted that, in “enacting sections 2302(b)(8) and 2302(b)(9)(A), Congress purposefully 

drew a distinction between ‘reprisal based on disclosure of 

information and reprisal based upon exercising a right to 

complain.’ The former is covered in section 2302(b)(8), the 

latter in section 2302(b)(9)(A).” Serrao, 95 F.3d at 1575

(quoting Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 690
10 DONALDSON v. MSPB

(Fed. Cir. 1992)) (internal citations omitted); see also

Luecht v. Dep’t of the Navy, 87 M.S.P.R. 297, 302 (2000) 

(noting that “filing appeals with the [MSPB] and grievances are activities protected under (b)(9) and not as 

whistleblowing under (b)(8)”). For these reasons, the 

Board did not err in finding no jurisdiction over the 

Whistleblower Claims under the applicable law. We have 

considered the other arguments raised by Mr. Donaldson 

and do not find them persuasive.

Because the Board properly found no jurisdiction over 

the Whistleblower Claims, we need not address the merits 

of those claims. In addition, we do not address the merits 

of Mr. Donaldson’s arguments related to the VEOA 

Claims, which are at issue in the companion appeal, No. 

2012-3160, and addressed in our decision in that appeal.

V.

Because the final decision of the Board in this case is 

supported by substantial evidence and is free of legal 

error, it is affirmed. 

AFFIRMED

COSTS

No costs.