UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

87 M.S.P.R. 297 

ROLAND E. LUECHT, JR., 

Appellant, 

v. 

DEPARTMENT OF THE NAVY, 

Agency. 

DOCKET NUMBER 

AT-1221-00-0156-W-1 

DATE: November 15, 2000 

Roland E. Luecht, Jr., Pensacola, Florida, pro se. 

David P. Knight, Pensacola, Florida, for the agency. 

BEFORE 

Beth S. Slavet, Acting Chairman 

Susanne T. Marshall, Member 

OPINION AND ORDER 

¶1 The appellant has submitted a timely petition for review of an initial decision 

that dismissed his individual right of action (IRA) appeal for lack of jurisdiction. 

For the reasons set forth below, we GRANT the petition for review, VACATE the 

initial decision, and REMAND the appeal for further adjudication. 

BACKGROUND 

¶2 According to the appellant's statements and submissions, which the agency 

does not refute, he was demoted from his GS-11 Supervisory Health Systems 

Specialist position to a GS-6 Contact Representative position in 1998. 

Subsequently, he attempted to return to his GS-11 position or a similar one, but 
2

the agency did not promote him. He also received certain discipline, filed equal 

employment opportunity (EEO) complaints, and applied for Office of Workers' 

Compensation Programs (OWCP) benefits. More recently, he received an 

October 25, 1999 notice of proposed suspension and a January 13, 2000 decision 

to remove him. Initial Appeal File (IAF), Tab 9. According to the agency, the 

proposed suspension was never effected because the appellant was on leave since 

its issuance. IAF, Tab 6. The appellant states that he resigned effective 

January 13, 2000, to accept discontinued service retirement. IAF, Tab 9. 

Apparently, the removal was never effected. 

¶3 On November 23, 1999, the appellant filed an IRA appeal. On his appeal 

form, he identified the agency actions as “Constructive Suspension, Removal, 

Change to lower grade, et al.” He also stated that the agency failed to retrain 

him, retain his grade, and promote him. The appellant submitted a letter from the 

Office of Special Counsel (OSC) informing him that it had terminated its 

investigation of his complaint. IAF, Tab 1. The administrative judge informed 

him of the burden of proof to establish Board jurisdiction in an IRA appeal and 

ordered him to submit evidence and argument in a specific form to establish such 

jurisdiction. IAF, Tab 4. On January 11, 2000, the administrative judge rejected 

the appellant's submission for failure to follow his instructions and afforded him 

until January 18 to comply with the November 30 order. IAF, Tab 8. The 

appellant responded on January 18. IAF, Tab 9. The administrative judge issued 

another show cause order informing the appellant that his submission was still not 

in compliance with the November 30 order, and provided him with another 

opportunity to respond. IAF, Tab 10. The appellant responded again. IAF, Tab 

12. The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction without affording the appellant his requested hearing. IAF, 

Tab 13. 

¶4 On petition for review, the appellant asserts that he complied with the 

administrative judge’s order, that any failure to comply is a result of his mental 
3

incapacity, and that the administrative judge did not address his stay request.1

 

The appellant has also submitted numerous documents with his petition for 

review, some of which are a part of the record below. Petition For Review (PFR) 

File, Tab 1. To the extent that they are newly submitted, the appellant has not 

shown that they were previously unavailable despite his due diligence and that 

they are material. For these reasons, we have not considered his newly submitted 

evidence. 5 C.F.R. § 1201.115; Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 

214 (1980). The agency has timely responded in opposition to the petition for 

review. PFR File, Tab 3. 

ANALYSIS 

¶5 To establish Board jurisdiction over an IRA appeal, 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 the OSC, and proceedings 

before the OSC were exhausted. Geyer v. Department of Justice, 63 M.S.P.R. 13, 

16-17 (1994). In order to be entitled to a jurisdictional hearing, an appellant need 

not prove the facts alleged but must make a nonfrivolous allegation of facts that, 

if proven, would establish that the matter is within the Board’s jurisdiction. 

Juffer v. U.S. Information Agency, 80 M.S.P.R. 81, 86-87 (1998). Conclusory, 

 

1

 The appellant indicated in the portion of his appeal form pertaining specifically to 

claims of whistleblowing that he had previously requested a stay, which had been 

denied. He did not identify any particular action that he sought to stay or follow the 

instructions given on the appeal form. IAF, Tab 1. The administrative judge 

acknowledged the statement in his November 30, 1999 order, explaining that the 

appellant had requested and been denied a stay of his demotion and that no provision 

for a second stay request exists. IAF, Tab 4. Because the appellant did not further 

pursue a stay, we find no error in the administrative judge's disposition of the stay 

request. 
4

vague, or unsupported allegations are insufficient to meet this standard. 

DiGiorgio v. Department of the Navy, 84 M.S.P.R. 6, 12 (1999). 

¶6 The administrative judge ordered the appellant to submit a list of his 

disclosures; identify the type of wrongdoing, i.e., violation of law, rule, or 

regulation, gross mismanagement, gross waste of funds, abuse of authority, or 

substantial and specific danger to public health or safety; state why he believed 

that the disclosure fell into that category; and attach copies of his written 

communications. He also ordered him to submit a similar list of the personnel 

actions at issue and a statement describing when and how he brought the alleged 

disclosures and personnel actions to the OSC. He further instructed the appellant 

to attach copies of all documents provided to the OSC. IAF, Tab 4. At the 

January 11, 2000 prehearing conference and in his subsequent January 19 order, 

the administrative judge suggested that the appellant attach the relevant 

supporting documents to the appropriate list of allegations under each 

jurisdictional element. IAF, Tab 10. 

¶7 Our review of the record shows that with the appellant's January 18, 2000 

submission, he included lists entitled as follows: "Summary of Events;" 

"Communications;" "Personnel Actions;" and "OSC Correspondence." The list of 

disclosures ("Communications") did not characterize the type of wrongdoing 

disclosed or state why he believed the disclosure to be protected. IAF, Tab 9. 

Likewise, his second attempt still did not completely comply with the 

administrative judge's instructions. IAF, Tab 12. The appellant submitted 

numerous documents on January 18 but did not separate them according to the 

jurisdictional element they were intended to support or otherwise indicate what 

they were in support of. The administrative judge failed to address these lists or 

the accompanying documents, other than to describe them as “woefully 

inadequate” to show jurisdiction. Initial Decision (ID) at 2. 

¶8 We note with approval that the administrative judge’s show cause order was 

extremely informative, explaining the necessary jurisdictional elements of an IRA 
5

appeal. IAF, Tab 4. IRA appeals, with multiple interrelated issues frequently 

supported by numerous documents, are often more complicated than the typical 

adverse action appeal before the Board. The appellant would have been wise to 

follow the administrative judge’s instructions because one whose submissions 

lack clarity risks being found to have failed to meet his burden of proof. We find, 

however, that dismissal of an IRA appeal without attempting to discern whether 

the appellant's submissions constitute a nonfrivolous allegation of jurisdiction is 

not appropriate. See, e.g., Lee v. Department of Labor, 76 M.S.P.R. 142, 145 

(1997) (the administrative judge failed to give proper consideration to the 

appellant's response to the jurisdictional issue). 

The appellant has made a nonfrivolous allegation that he made disclosures 

protected under 5 U.S.C. § 2302(b)(8).

¶9 Among his list of disclosures, the appellant has included EEO complaints, 

Board appeals, and a grievance. IAF, Tab 9, Communications list. The filing of 

an EEO complaint in which an employee alleged discriminatory treatment by an 

agency in violation of Title VII of the Civil Rights Act of 1964 does not 

constitute a whistleblowing disclosure within the meaning of 5 U.S.C. 

§ 2302(b)(8), but instead, is a non-whistleblowing disclosure under section 

2302(b)(9)(A). Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1574-75 

(Fed. Cir. 1996). Likewise, filing appeals with the Board and grievances are 

activities protected under (b)(9) and not as whistleblowing under (b)(8). See Orr 

v. Department of the Treasury, 83 M.S.P.R. 117, 122 (1999), aff'd, No. 99-3457, 

slip op. (Fed. Cir. Apr. 10, 2000) (NP). Thus, we will not consider any further 

the appellant’s allegations that the agency retaliated against him for engaging in 

(b)(9) activity. 

¶10 Nonetheless, the fact that an individual has engaged in an activity protected 

under (b)(9) does not in and of itself disqualify the individual from seeking 

corrective action under 5 U.S.C. § 2302(b)(8), if he made disclosures based upon 
6

the same operative facts outside of his (b)(9) activity. See Ellison v. Merit 

Systems Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993). The essential 

difference between the protections of sections 2302(b)(8) and 2302(b)(9) is the 

difference between reprisal based on disclosure of information and reprisal based 

on the exercise of a right to complain. Serrao, 95 F.3d at 1575. 

¶11 The appellant lists as an example of his whistleblowing a False Claims Act 

qui tam questionnaire form that he completed and submitted to several attorneys.2

 

IAF, Tab 9, Communications list. The form contains allegations that Navy 

personnel, including Commander J. H. Groden, Lieutenant J. H. Hagerty, and a 

Dr. Westbrook, entered into a fraudulent “Resource Sharing” agreement. IAF, 

Tab 9. This qui tam form may contain an allegation of wrongdoing, but the 

appellant has not alleged that he disclosed it to anyone with any authority to act 

on it. Sending it to “several attorneys,” presumably the individuals named at the 

top of the document, is not a disclosure under 5 U.S.C. § 2302(b)(8) because they 

had no authority to investigate or correct the wrongdoing and there is no evidence 

that they or anyone else filed a qui tam action in court. See Price v. National 

Aeronautics & Space Administration, 83 M.S.P.R. 661, 663 (1999) (an employee 

does not make a protected disclosure when his alleged protected disclosure is 

made to persons without authority to remedy the alleged wrongdoing). 

¶12 The appellant states that on April 12 and 13, 1999, he met with the Navy 

Inspector General (IG) regarding "on-going fraud in R/S contracts at 

NAVHOSPNCLA." IAF, Tab 9, Communications list. This statement is not 

supported by any accompanying documents and on its own is lacking the detail 

necessary to constitute even a nonfrivolous allegation of a violation of law, rule, 

or regulation, gross mismanagement, gross waste of funds, abuse of authority, or 

 

2

 A qui tam action is one "brought under a statute that allows a private person to sue 

for a penalty, part of which the government or some specified public institution will 

receive." Black's Law Dictionary 1262 (7th ed. 1999). 
7

danger to public health or safety. See DiGiorgio, 84 M.S.P.R. at 12. However, 

we find that it is appropriate to read this statement in light of the appellant's other 

allegations in his qui tam form, given that the April 20, 1999 date of the qui tam

form and his contact with the IG were very close in time. On remand, however, 

in order to prove that he made a protected disclosure to the IG regarding 

fraudulent resource sharing agreements, the appellant will be required to produce 

preponderant evidence that he made such a disclosure and that it is the kind of 

disclosure protected under 5 U.S.C. § 2302(b) (8). 

¶13 The appellant also contends that he informed Command Evaluation Officer 

Don McCluskey about fraudulent training forms that the appellant certified as 

accurate. IAF, Tab 9, Communications list. In an August 27, 1999 chronology of 

adverse actions/events apparently submitted to the OSC, he states that he reported 

to McCluskey that "things [were] amiss" and that the "Director for Admin" called 

him into his office to demand an explanation. IAF, Tab 9. The appellant related 

that Groden and Hagerty lied about certain training that he was to have given 

them. The document that he purportedly sent to McCluskey is not in the record. 

In an August 28, 1999 "response to questions posed by OSC" and a September 17, 

1999 Disclosure of Information form to the OSC, the appellant makes a similar 

statement. While he did not identify the law, rule, or regulation that he believes 

was violated, such behavior on its face may be such a violation. See 18 U.S.C. 

§ 1001 (prohibition against making false statements in any matter within the 

jurisdiction of a federal agency). Thus, we find that these documents constitute a 

nonfrivolous allegation that he made a protected disclosure. 

¶14 The appellant contends that he informed various individuals about hiring and 

selection improprieties involving the replacement for him in his GS-11 

Supervisory Health Systems Specialist position by either Liz Meriweather or Rex 

Cason or both. IAF, Tab 9, Communications list. The appellant claimed in a 

September 15, 1998 letter to Captain Hufstader that Meriweather received 

preferential treatment in training and promotion to qualify her to take the 
8

appellant's position, which she eventually did while the appellant was detailed to 

another position. The appellant sent an August 25, 1999 e-mail message to 

Admiral Hinkel asserting that "the local mtf (sic) administration" was engaged in 

"shenanigans" regarding manipulation of the recruitment, hiring, and 

advancement of civilians and that veterans preference laws were being broken. In 

a September 15 e-mail message addressed to "BUMED," he claims that Groden 

selected "his old service buddy Rex Cason ... AS SOON AS HIS 18 MONTH 

OUT-OF-SERVICE PERIOD EXPIRED." (Emphasis in the original). The record 

contains a September 23, 1999 e-mail message from the appellant to Senator Bob 

Graham in which the appellant alleges that Cason is a friend of the person 

responsible for making the selection, that Cason claims to be a 30% disabled 

veteran but participates in triathlon training, and that the job description for the 

position was written by Cason's wife in 1997 with him in mind. Under 5 U.S.C. 

§ 2302(b)(6), an employee may not "grant any preference or advantage not 

authorized by law, rule, or regulation to any employee or applicant for 

employment for the purpose of improving or injuring the prospects of any 

particular person for employment." Also, an employee may not "take or fail to 

take any other personnel action if the taking or failure to take such action violates 

any law, rule, or regulation implementing, or directly concerning, the merit 

system principles contained in section 2301 ...." 5 U.S.C. § 2302(b)(11). The 

merit system principles at 5 U.S.C. § 2301 include "selection and advancement ... 

determined solely on the basis of relative ability, knowledge, and skills, after fair 

and open competition which assures that all receive equal opportunity." 5 U.S.C. 

§ 2301 (b)(1). The appellant's assertions regarding the selections of Meriweather 

and Cason constitute a nonfrivolous allegation of a disclosure of a violation of 

these statutory provisions. See Becker v. Department of Veterans Affairs, 76 

M.S.P.R. 292, 296-97 (1997). 

¶15 The appellant alleges that he has complained to numerous individuals and 

entities about harassment on the job and filed claims for OWCP benefits based on 
9

the alleged mistreatment. IAF, Tab 9, Communications list. The record contains 

a copy of an application for OWCP benefits in which the appellant alleges that he 

suffers from major depression brought on by the conflicts with his supervisor. In 

Heining v. General Services Administration, 61 M.S.P.R. 539 (1994), the Board 

found that harassing and intimidating behavior could constitute an abuse of 

authority, and in Special Counsel v. Costello, 75 M.S.P.R. 562, 586-87 (1997), 

rev'd on other grounds, 182 F.3d 1372 (Fed. Cir. 1999), the Board found that 

disclosures made in an OWCP claim of harassing and intimidating behavior were 

at least in part protected disclosures. Thus, these also constitute nonfrivolous 

allegations that he made protected disclosures sufficient to afford him an 

opportunity to prove these allegations at a hearing. 

The appellant has made nonfrivolous allegations that personnel actions were 

taken.

¶16 The appellant submitted a list of personnel actions, some of which predate 

his first purported whistleblowing, as described in his list of disclosures. IAF, 

Tab 9, Personnel Actions list. Others do not appear to meet the definition of 

"personnel action" at 5 U.S.C. § 2302(a)(2) because they do not fall within one of 

the eleven categories of actions described therein. Also, he asserts that his 

demotion in 1998 to the GS-6 Contact Representative position was the result of 

retaliation for whistleblowing. He previously filed an appeal with the Board 

alleging that he involuntarily accepted the demotion, and raised a whistleblowing 

claim in that appeal. The administrative judge dismissed the appeal for lack of 

jurisdiction, finding that the appellant voluntarily accepted the GS-6 position. 

Luecht v. Department of the Navy, MSPB Docket No. AT-0752-99-0382-I-1, 

Initial Decision, (June 16, 1999). The Board denied the appellant's petition for 

review for failure to meet the review criteria, and the initial decision became the 

Board's final decision. Luecht v. Department of the Navy, 86 M.S.P.R. 41 (2000) 

(Table). Thus, the appellant is collaterally estopped from asserting in this action 
10

that the demotion is a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii), an 

action under chapter 75 of Title V or other disciplinary or corrective action. See

Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988) (collateral 

estoppel, or issue preclusion, is appropriate when (1) an issue is identical to that 

involved in the prior action, (2) the issue was actually litigated in the prior 

action, (3) the determination on the issue in the prior action was necessary to the 

resulting judgment, and (4) the party precluded was fully represented in the prior 

action). 

¶17 The appellant filed several other appeals which were within the Board's 

jurisdiction under the Uniformed Services Employment and Reemployment 

Rights Act of 1994, Pub. L. No. 103-353, 1994 U.S.C.C.A.N. (108 Stat.) 3149 

(USERRA). The decisions in those appeals have no preclusive effect on this IRA 

appeal because the only issue before the Board was whether the action taken was 

the result of discrimination based on the appellant's prior military service. See

Bodus v. Department of the Air Force, 82 M.S.P.R. 508, 514-17 (1999) (the 

Board's jurisdiction under USERRA does not include claims outside the USERRA 

complaint); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995) (res 

judicata precludes parties from relitigating issues that were, or could have been, 

raised in the prior action, and is applicable if: (1) the prior judgment was 

rendered by a forum with competent jurisdiction; (2) the prior judgment was a 

final judgment on the merits; and (3) the same cause of action and the same 

parties or their privies were involved in both cases). 

¶18 As stated above, the appellant listed the following personnel actions on his 

initial appeal form: Constructive suspension, removal, and failure to retrain, to 

retain his grade, and to promote him. His list of personnel actions included also a 

letter of caution, a reprimand, placement on leave without pay, a proposed 

suspension, and a removal decision. IAF, Tab 9. Thus, he has made a 

nonfrivolous allegation that personnel actions were taken. 
11

The appellant has made a nonfrivolous allegation that he exhausted his remedy 

with the OSC.

¶19 The third jurisdictional element of an IRA appeal is exhaustion of the remedy 

with the OSC by showing that the appellant informed it of the particular 

disclosures and personnel actions raised in his IRA appeal with enough 

specificity to allow the OSC to investigate. See Coons v. Department of the 

Treasury, 85 M.S.P.R. 631, ¶ 17 (2000). The appellant's initial IRA appeal was 

accompanied by a termination letter from the OSC showing that he had filed a 

request for corrective action. Along with his list of correspondence with the 

OSC, the appellant has submitted supporting documents, including the August 27, 

1999 chronology, the August 28 responses to questions posed by the OSC, his 

September 17 disclosure of information form, and a September 22, 1999 letter to 

the OSC, which contain descriptions of disclosures and personnel actions raised 

in this appeal. IAF, Tab 9. We find that the appellant has made a nonfrivolous 

allegation that he exhausted his remedy with the OSC in regard to the matters 

addressed in those documents. According to his list of correspondence with the 

OSC, the last such communication occurred on September 27, 1999. That date 

and the dates of the documents referenced above predate the October 25, 1999 

proposed suspension and the January 13, 2000 decision to remove him because of 

his physical inability to perform the duties of his job. Because the appellant has 

not alleged that he informed the OSC of these personnel actions, the Board lacks 

jurisdiction over them in this IRA appeal.3

 

3

 The Board may have jurisdiction over the removal as an otherwise appealable action, 

even if it never became effective because the appellant resigned to accept discontinued 

service retirement before the effective date. See Lewis v. Environmental Protection 

Agency, 82 M.S.P.R. 269, ¶ 11 (1999) (the Board has jurisdiction over a removal appeal 

of an employee who retires when faced with a removal decision regardless of whether 

he retires on or before the effective date of the removal). The administrative judge 

shall docket another appeal, and afford the parties an opportunity to address the Board’s 

jurisdiction over that action, and determine whether such appeals should be joined.. 
12

¶20 In conclusion, we find that the appellant has made nonfrivolous allegations 

of fact that, if proven, would establish jurisdiction over this appeal, and he is 

entitled to a hearing. We emphasize to him, however, that this decision does not 

find jurisdiction. Rather, on remand he must prove by a preponderance of the 

evidence that he made protected disclosures; that such disclosures were ones that 

a reasonable person would believe informed the recipient of a violation of law, 

rule, or regulation, gross mismanagement, gross waste of funds, abuse of 

authority, or substantial and specific danger to public health or safety; that 

personnel actions were taken; and that he informed the OSC of the specific 

disclosures and personnel actions that are the subject of this IRA appeal with 

enough specificity to allow the OSC to investigate. See Keefer v. Department of 

Agriculture, 82 M.S.P.R. 687, 692-94 (1999). If he meets this burden of proof on 

jurisdiction, he must further prove that his whistleblowing was a contributing 

factor in the agency's decisions in regard to the personnel actions. At that time, 

the burden will shift to provide the agency opportunity to prove by clear and 

convincing evidence that it would have taken the same actions in the absence of 

whistleblowing. 

ORDER 

¶21 Accordingly, we REMAND this IRA appeal for further adjudication, 

including a hearing, after which the administrative judge shall determine whether 

the Board has jurisdiction over the appeal. If he finds jurisdiction, then he shall 

adjudicate the merits of the appeal. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Robert E. Taylor 

Clerk of the Board