NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

WALTER ESSEX,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3177

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-1221-15-0205-W-1.

______________________ 

Decided: December 9, 2015

______________________ 

WALTER ESSEX, Sherman, TX, pro se.

LINDSEY SCHRECKENGOST, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before REYNA, SCHALL, and CHEN, Circuit Judges.

PER CURIAM. 

Mr. Walter Essex appeals from a final order of the 
2 ESSEX v. MSPB

United States Merit Systems Protection Board (the 

“Board”) dismissing his complaint for lack of subjectmatter jurisdiction. We affirm. 

BACKGROUND

 Mr. Essex is an employee at the Sam Rayburn 

Memorial Veterans Center in Bonham, Texas. He is a 

disabled veteran with a service-connected disability 

rating of 50%. In 2012, he applied for a promotion to 

“Addiction Therapist” at either the seventh or ninth 

paygrade in the federal General Schedule payscale, but 

was not selected. 

 In 2014, Mr. Essex first filed a complaint with the 

Equal Employment Opportunity Commission and later 

with the Board. At the Board, he challenged the denial of 

the promotion to Addiction Therapist on grounds that the 

hiring authorities failed to take into account his veterans’ 

preference status. He further alleged retaliation against 

him for engaging in whistleblowing and other protected 

activities. 

On January 28, 2015, an administrative law judge at 

the Board issued a show-cause order, requesting Mr. 

Essex to file evidence and argument to establish the 

Board’s jurisdiction. The order advised Mr. Essex that to 

establish jurisdiction, he must, among other things, 

demonstrate exhaustion of remedies before the Office of 

Special Counsel (the “OSC”). On June 11, 2015, the 

Board issued its final order, dismissing the case for want 

of subject-matter jurisdiction because Mr. Essex failed to 

provide evidence that he filed a complaint with the OSC. 

Mr. Essex appeals the dismissal of his case. He 

submits documents in support of his contentions that he 

proceeded before the Board in a timely fashion and exhausted his remedies. Included are documents associated 

with the proceedings at the Board, correspondence about 
ESSEX v. MSPB 3

a settlement, and a handwritten letter addressing the 

appeal. Mr. Essex also raises for the first time claims 

concerning various civil rights violations. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

We must affirm the Board’s decision unless it is “(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). The petitioner bears the burden of 

establishing error in the Board’s decision. Vassallo v. 

Dep’t of Def., 797 F.3d 1327, 1330 (Fed. Cir. 2015). 

The Board’s jurisdiction is limited by statute. 5 

U.S.C. § 7701(a)(1). The aggrieved employee has the 

burden of establishing the Board’s jurisdiction by a preponderance of the evidence, and the Board’s jurisdiction is 

a question of law that we review de novo. Miller v. Merit 

Sys. Prot. Bd., No. 2015-3054, 2015 U.S. App. LEXIS 

13712, at *10 (Fed. Cir. Aug. 6, 2015) (citations omitted).

We find no error in the Board’s decision. Under the 

Whistleblower Protection Act, an aggrieved employee 

must first file an individual rights action with the OSC. 5 

U.S.C. § 1214(a)(3). The employee has the burden of 

showing that he exhausted his remedies with the OSC 

before seeking review by the Board. Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1377-78 (Fed. 

Cir. 2001). 

Mr. Essex failed to meet his burden of establishing 

that he had exhausted his administrative remedies. In 

his letter addressing his appeal, Mr. Essex cites “schemes, 

lies, and manipulations” because, among other things, the 

Board is “not quite sure what they are processing.” Mr. 

Essex purports to attach a letter from the OSC appeal 

that acknowledges he exhausted his remedies and directs 
4 ESSEX v. MSPB

him to further appeal to the Board. Nothing in the record, however, establishes that a complaint was filed with 

the OSC. Without evidence that Mr. Essex submitted a 

complaint with the OSC, the Board lacks jurisdiction to 

adjudicate Mr. Essex’s claims. 5 U.S.C. § 1214(a)(3). 

CONCLUSION

Because the Board properly dismissed Mr. Essex’s

complaint for lack of jurisdiction, we affirm. 

AFFIRMED 

COSTS

No costs.