N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

______________________

ROBERT DONNELL DONAL DSON, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

,

AND

DEPARTMENT OF HOMELA ND SECURITY, Intervenor

.

______________________

2012

- 3161

______________________ Petition for review of the Merit Systems Protection Board in No. DC1221120087 -W- 1.

______________________

Decided: July 11, 2013

______________________

R OBERT D ONNELL D ONALDSON , of Landover, Mar yland, pro se.

C ALVIN M. M ORROW , Attorney, Office of the Ge neral Counsel, Merit Systems Protection Board, of Was hington, DC, for respondent. With him on the brief wereDONALDSON v. MSPB 2

J AMES M. E ISENMANN , General Counsel, and K EISHA D AWN B ELL , Deputy General Counsel.

J OSHUA E. K URLAND , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for intervenor. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Director, and S COTT D. A USTIN , Assistant Director.

______________________

Before L OURIE , S CHALL , and P ROST , Circuit Judges.

P ER C URIAM

. D ECISION

Robert D onnel l Donald son 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 dismiss ed for lack of jurisdiction Mr. Donaldson ’s cla im 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.) (“ WP A”). 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

. D ISCUSSION

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 Specia list with the Coast Guard. 1 After interviewing two cand i1 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 Secur i-DONALDSON v. MSPB 3

date s (but not Mr. Donaldson), the Department of Hom eland Security (the “agency”) offered the position to a retired Coast Guard Lieutenant Commander , who accep ted the position

. I I.
Mr. Donaldson appealed his non

- selection to the Board and requested a decision on the written record. O n October 3, 2011, the AJ assigned to the case issued a c lose of r ecord o rder that (1) allowed the parties to provide additional information until the record closed a month later , and (2) informed Mr. Donaldson of what was r equired to prove that the agency had violated his veterans’ preference rights. On October 13, 2011, the agency su bmitted a narrative response to Mr. Donaldson’s claims

, as well as certain sup porting documentation . In response, Mr. Donal dson 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) b ut that it also had retaliate d against him for allegedly pr otected whistleblowing activity. 2 Mr. Donaldson s tated that he had raised these latter allegations (the “Whistl eblower Claims”) with the Office of Special Counsel. The AJ then docketed a separate i ndividual r ight of a ction

a ppeal under the WPA to address the Whistleblower Claims

. On November 4, 2011, the AJ issued a jurisdictional show cause order that explain ed to Mr. Donaldson his jurisdictional burden with respect to the Whistleblower Claims and that require d 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

.DONALDSON v. MSPB 4

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

• The agency took retaliation against the a ppellant for filing a complaint to competent authority (the Merit System [sic] Protection Board . . . , the D epartment 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.

Interveno r App. 67

. The agency responded by arguing that Mr. Do naldson’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, t he AJ dismissed for lack of jurisdictio n. See Donaldson v. Dep’t of Homeland Sec.

, No. DC

- 1221

- 12

- 0087 -W- 1 (Dec. 16, 2011) (“ Initial Dec ision ” ). First, the AJ set forth the applicable law requiring a party seeking review of whistleblower claims to esta blish jurisdiction before the Board by demonstrating e xhaustion of administrative remedies and by making non

frivolous allegations that (1) he or she engaged in protec ted whistleblowing activity by making a protected discl osure 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 pe rsonnel action, shall not, with respect to such a uthority . . . take or f ail to take, or threaten to take or fail to take, a personnel action with respect toDONALDSON v. MSPB 5

disclosure was a contributing factor in an agency’s dec ision 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)).

T he 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 th e non -selection with the D epartment of Labor and the Office of Sp ecial Counsel under the VEOA a nd 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 b ecause of (A) any disclosure of information by an employee or applicant which the employee or a pplicant reasonably believes evide nces (i) a viol ation 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 info rmation 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 e mployee designated by the head of the agency to r eceive such disclosures, of information which the employee or applicant reasonably believes ev idences (i) a violation of any law, rule, or regul ation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.DONALDSON v. MSPB 6

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 juri sdiction. Initial Decision at 7. Because Mr. Donaldson had failed to establish t hat 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 activ ities that are protected by § 2302(b)(9)(A),” and that Mr. Donaldson failed to make a non

- frivolous all egation 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 pe rsonnel action, shall not, with respect to such a uthority . . . 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, com plaint, or grievance right granted by any law, rule, or reg ulation; (B) testifying for or otherwise lawfully a ssisting any individual in the exercise of any right referred to in subparagraph (A); (C) cooperating with or disclosing information to the Inspec tor 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 r equire the individual to violate a law.DONALDSON v. MSPB 7

these activities constituted protected disclosure s 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 lack ed 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 Dec ision 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 u nless 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 pr eponderance 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.DONALDSON v. MSPB 8

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 appl icant 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 Tr easury , 89 M.S.P.R. 396, 400

– 01 (2001). In cases involving both of these exceptions , the Board will docket a separat e 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)

. U nder the law effective at the time of Mr. Donaldson’s claims, g eneric retaliation claims un der § 2303(b)(9)

— asserting that an agency retaliated based on the filing of an appeal, complaint, or grievance —d id not constitute an exception to the gen eral 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. Do n5 Although the parties did not address the issue, we note that Cong ress 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). P rior 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 F orce , 106 M.S.P.R. 601, 605 n.3 (2007) (citing 5 U.S.C. § 1214).
The question of Board jurisdiction over the Whistl eblower Claims at issue here thus turns on wh ether those claims fall under § 2302(b)(8) or § 230 2(b)(9). If under the former, the Whistleblower Claims ( removed into a sep arate 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 e xplained that [it] does not ha ve jurisdiction to consider an agency’s alleged violation of prohibited personnel practi ces [in a VEOA action]”) ; Ruffin , 89 M.S.P.R. at 40 0–01 (discussing the lack of authority to review claims of pr ohibited 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 th erefore , 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 s how c ause o rder, Mr. Donaldson clearly alleged that the agency failed to select him in retaliation for filing a Board appeal as well as filing c omplaints with the Department of Labor and Office of Special Counsel. Mr. Donaldson relies only on these activities and does not allege a separate protect ed discl osure, such as the disclosure of information under § 2302(b)(8)

. This court has previously noted that , in “enacting se ctions 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, 690DONALDSON v. MSPB 10

(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 grie vances 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

an d 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 Claim s, 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

C OSTS

No costs.