UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

IRVING L. FINSTON,

Appellant,

v.

DOCKET NUMBER

CH-3443-98-0562-I-1

HEALTH CARE FINANCING 

ADMINISTRATION,

Agency.

DATE: MAR 17 1999

Irving L. Finston, Evanston, Illinois, pro se.

Cynthia Soltes, Chicago, Illinois, for the agency. 

BEFORE

Ben L. Erdreich, Chairman

Beth S. Slavet, Vice Chair

Susanne T. Marshall, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the August 25, 1998 initial 

decision that dismissed his appeal for lack of jurisdiction. After full 

consideration, we DENY the appellant’s petition for review because it does not 

meet the criteria for review set forth at 5 C.F.R. § 1201.115. However, for the 

reasons set forth below, we REOPEN this case on our own motion under 5 C.F.R. 

§ 1201.118, and AFFIRM the initial decision AS MODIFIED by this Opinion and 

Order, still DISMISSING the appeal for lack of jurisdiction.
BACKGROUND

¶2 In his appeal to the Board, the appellant alleged that the agency's personnel 

department disregarded his telephone calls and letters requesting materials to 

respond to job announcement No. HS-014-7, which sought applicants for a GS-14 

Supervisory Health Insurance Specialist position. See Initial Appeal File (IAF), 

Tabs 1 and 3. In response to the administrative judge's show-cause order on 

jurisdiction, the appellant stated that he sent a February 3, 1998 letter to the 

Office of Special Counsel (OSC) disclosing that the agency had "refused to 

provide essential information relative to an advertised position despite [his] 

repeated requests," and that he "disclosed the mandate of the Merit Systems 

Protection Board to insure that there is free and open competition for positions in 

Government." See id., Tab 8.

¶3 The administrative judge found that the February 3, 1998 "disclosure date is 

after the dates on which the appellant alleged he requested and did not receive 

information and, indeed, is after the date the appellant asserted the job 

announcement closed (February 2, 1998)." Initial Decision at 2. She concluded, 

therefore, that "the agency's alleged failure to allow the appellant an opportunity 

to compete for the position could not have been in retaliation for the appellant's 

disclosure to [OSC]." Id. We reopen this appeal on our own motion to address 

the administrative judge's basis for her finding of no jurisdiction.

ANALYSIS

¶4 In Geyer v. Department of Justice, 63 M.S.P.R. 13 (1994), the Board set out 

the jurisdictional elements of an individual right of action (IRA) appeal, which are 

that an appellant must show by preponderant evidence that: He engaged in 

whistleblower activity by making a disclosure protected under 5 U.S.C. 

§ 2302(b)(8); the agency took or failed to take, or threatened to take or fail to 

take, a “personnel action” as defined in 5 U.S.C. § 2302(a)(2); and he raised the 

issue before OSC, and proceedings before OSC were exhausted. 63 M.S.P.R. at 
16-17. The Board stated in Geyer that if the appellant established Board 

jurisdiction over his appeal, "the administrative judge must then consider the 

merits of the appeal," namely, "whether the appellant has proven, by preponderant 

evidence, that a disclosure described in 5 U.S.C. § 2302(b)(8) was a contributing 

factor in the personnel action that was taken against him" and, if he makes such a 

showing, whether the agency could prove, by clear and convincing evidence, that 

it would have taken the same action absent the protected disclosure. 63 M.S.P.R. 

at 17 (emphasis added). 

¶5 There is nothing in 5 U.S.C. § 2302(b)(8) that requires an agency official to 

change a decision once he or she learns that a person has engaged in 

whistleblowing activity. See Dean v. Department of the Army, 57 M.S.P.R. 296, 

303 (1993). Consequently, if an agency takes an action before the appellant 

makes a disclosure, the Board may find that the disclosure was not a contributing 

factor in the action. See O'Shea v. Department of Transportation, 65 M.S.P.R. 

512, 515 (1994); Washington v. Department of Veterans Affairs, 49 M.S.P.R. 632, 

638 (1991). The administrative judge's finding that the agency could not have 

retaliated against the appellant because the disclosure to OSC was made after the 

job announcement closed is therefore a finding on contributing factor, that is, she 

concluded that the alleged protected disclosure could not have been a contributing 

factor in the agency's action based on the timing of the disclosure and the alleged 

personnel action. The administrative judge therefore dismissed the appeal as 

outside the Board's jurisdiction based on a merits finding. In this regard, she 

erred. However, the appeal is outside the Board's jurisdiction for the following 

reason.

¶6 The administrative judge's show-cause order provided the appellant with 

explicit information on what is required to establish an appealable jurisdictional 

issue in an IRA appeal. See IAF, Tab 6; see also Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). In determining whether 
the appellant's submissions set forth a nonfrivolous allegation of jurisdiction 

entitling him to a hearing, the Board may consider the agency’s documentary 

submissions; however, to the extent that the agency’s evidence constitutes mere 

factual contradiction of the appellant’s otherwise adequate prima facie showing of 

jurisdiction, the Board may not weigh evidence and resolve conflicting assertions 

of the parties and the agency’s evidence may not be dispositive. Ferdon v. U.S. 

Postal Service, 60 M.S.P.R. 325, 329 (1994).

¶7 In his February 3, 1998 letter to OSC, the appellant stated that, before job 

announcement H2-014-97 closed on February 2, 1998, he contacted the agency 

four times to request information on applying for the GS-14 position, but had 

received no materials. See IAF, Tab 3. He further stated that he called an agency 

personnel official on February 3 and was told by her that she would check with 

her supervisor to see if he could submit a late application for consideration. Id., 

Tab 1. In his February 3 letter to OSC, the appellant claimed that these alleged 

actions "inadvertently or deliberately denied [him] the opportunity to submit an 

application for the position." Id. 

¶8 The appellant also submitted an April 7, 1998 letter to him from OSC 

informing him that it had investigated his complaint under 5 U.S.C. § 2302(b)(4). 

Id. Section 2302(b)(4) states that it is a prohibited personnel practice to "deceive 

or willfully obstruct any person with respect to such person's right to compete for 

employment." OSC notified the appellant in its April 7 letter that it had found no 

evidence to support his allegation that the agency personnel office willfully 

obstructed his right to compete for the Health Insurance Specialist position. See

IAF, Tab 1. In response, the appellant sent an April 13, 1998 letter to OSC 

claiming that he submitted sufficient evidence to show that the agency "wilfully 

[sic] obstructed [his] right to compete for the position." Id. OSC responded by 

informing the appellant that his April 13 letter gave them no basis on which to 

reverse the April 7, 1998 finding. See id.
¶9 None of the arguments or evidence submitted by the appellant shows that he 

claimed before OSC that he made a protected disclosure under 5 U.S.C. 

§ 2302(b)(8), and that the agency had taken, failed to take, or threatened to take 

the purported personnel action because of a protected disclosure made under 

section 2302(b)(8). The appellant's submissions to OSC never mention 

whistleblowing, protected disclosure, section 2302(b)(8), or retaliation for 

whistleblowing. Rather, the appellant's letters to OSC show that he filed a 

complaint with OSC under 5 U.S.C. § 2302(b)(9) asking OSC to investigate an 

alleged violation of 5 U.S.C. § 2302(b)(4). See IAF, Tabs 1 and 3. Moreover, 

OSC's report to the appellant states that OSC treated his complaint as an alleged 

violation of section 2302(b)(4); it does not state that OSC was investigating any 

allegation of retaliation for whistleblowing under section 2302(b)(8). See id., 

Tab 1. Thus, we find that the appellant's February 3, 1998 complaint to OSC did 

not give OSC a sufficient basis on which to pursue an investigation into any 

whistleblowing claim he is making in this IRA appeal which might have led OSC 

to pursue corrective action on the appellant's behalf under section 2302(b)(8). 

See Thomas v. Department of the Treasury, 77 M.S.P.R. 224, 237-38 (1998).

¶10 Because the appellant has not shown that he raised a whistleblowing claim 

before OSC, he has not exhausted OSC proceedings with respect to any 

whistleblowing allegation he may have made in this appeal. For this reason, we 

find that the Board lacks jurisdiction over this appeal.*See Geyer, 63 M.S.P.R. 

* Based on this finding, we need not decide whether the agency's alleged actions in not 

sending the appellant application materials or not sending him complete materials constitute 

personnel actions under 5 U.S.C. § 2302(b)(a)(2)(A). Nor do we reach the issue of whether 

the appellant's complaint to OSC may rise to the level of a section 2302(b)(8) disclosure. See 

generally Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993){ TA 

\l "Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993)" \c 1 }{ TA 

\l "Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993)" \c 1 }

("The facts underlying a section 2302(b)(9) disclosure can serve as the basis for a section 

2302(b)(8) disclosure only if they establish the type of fraud, waste, or abuse that the 
at 16-17; cf. Thomas, 77 M.S.P.R. at 238 (the appellant had exhausted OSC 

proceedings because he "suppl[ied] OSC with sufficient information to enable the 

Special Counsel to conduct an investigation to determine whether the agency 

retaliated against him for disclosing an abuse of authority," even though he used a 

different label for his disclosures in his OSC complaint). Further, although the 

appellant asked the administrative judge to review this case under 5 U.S.C. 

§ 2302(b)(4), see IAF, Tab 5, the Board has no authority to review alleged 

violations of section 2302(b)(4) absent an action that is appealable to us under 

another law, rule, or regulation. See generally Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).

ORDER

¶11 This is the final order of the Merit Systems Protection Board in this appeal. 

5 C.F.R. § 1201.113(c).

NOTICE TO THE APPELLANT REGARDING

FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review the Board’s final decision in your appeal if the court 

has jurisdiction. See 5 U.S.C. § 7703(a)(1). 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

[Whistleblower Protection Act] was intended to reach." (citation omitted)); Thomas, 77 

M.S.P.R. at 232-33 (relying on Ellison, the Board found that "an individual's challenge to an 

agency's selection process as 'unfair and inequitable to the employee because the agency

considered nonmerit factors in denying him a promotion opportunity' is not the 'type of fraud, 

waste, or abuse that the WPA was intended to reach,'" and thus were not whistleblowing 

disclosures under section 2302(b)(8)).
The court must receive your request for review no later than 60 calendar days 

after receipt of this order by your representative, if you have one, or receipt by 

you personally, whichever receipt occurs first. See 5 U.S.C. § 7703(b)(1).

FOR THE BOARD:

Washington, D.C.

______________________________

Robert E. Taylor

Clerk of the Board