UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

87 M.S.P.R. 245 

JANET G. GAUGH, 

Appellant, 

v. 

SOCIAL SECURITY 

ADMINISTRATION, 

Agency. 

DOCKET NUMBER 

CH-3443-00-0280-I-1 

DATE: November 3, 2000 

Charles E. Clark, American Federation of Government Employees, Kansas 

City, Missouri, for the appellant. 

Lisa A. Thomas, Kansas City, Missouri, for the agency. 

BEFORE 

Beth S. Slavet, Acting Chairman 

Susanne T. Marshall, Member 

OPINION AND ORDER 

¶1 The appellant petitions for review of the initial decision, issued on 

February 15, 2000, that dismissed her appeal for lack of jurisdiction. For the 

reasons discussed below, we find that the petition does not meet the criteria for 

review set forth at 5 C.F.R. § 1201.115, and we therefore DENY it. We REOPEN 

this case on our own motion under 5 C.F.R. § 1201.118, however, and AFFIRM 

the initial decision as MODIFIED by this Opinion and Order. 
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BACKGROUND 

¶2 The appellant, a GS-9 Benefits Authorizer, filed a petition for appeal of the 

agency's failure to select her for the GS-7/9/11 position of Claims Authorizer. 

Initial Appeal File (IAF), Tab 1. The administrative judge issued an 

acknowledgment order that informed the appellant that, because her appeal raised 

a question regarding the Board's jurisdiction over the agency's failure to select 

her for a position, the Board may not have jurisdiction over her appeal, and 

provided her with the opportunity to file evidence and argument to prove Board 

jurisdiction. IAF, Tab 2. The appellant responded to the acknowledgment order. 

IAF, Tab 4. She stated that she had sought corrective action from the Office of 

Special Counsel (OSC) contending that the agency committed prohibited 

personnel practices in violation of 5 U.S.C. § 2302(b)(4), (5), and (6). Id. She 

also stated that, in her OSC complaint, she "cited waste and mismanagement of 

funds due to the time and effort expended by the hundreds of employees who 

applied [for the Claims Authorizer position]." Id. 

¶3 The administrative judge found that the appellant did not allege facts, which, 

if true, would establish the Board's jurisdiction over her appeal, and did not hold 

a hearing. IAF, Tab 6 (Initial Decision (ID) at 1). He found that the appellant's 

"complaint" of nonselection does not come within the Board's jurisdiction, and 

that the appellant failed to prove Board jurisdiction by preponderant evidence. 

Id. (ID at 2). He also found that because the Board lacked jurisdiction over the 

matter appealed, it did not have jurisdiction over the appellant's allegations of 

prohibited personnel practice raised in the appeal. Id. (ID at 3). 

¶4 The appellant has now petitioned for review. Petition for Review File (RF), 

Tab 3. The agency has responded in opposition to the petition. RF, Tab 4. 

ANALYSIS 

¶5 In her petition, the appellant reiterates that she filed a "Report of Possible 

Prohibited Personnel Practice or Other Prohibited Activity" with OSC, alleging 
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that the agency did not consider current agency employees for the Claims 

Authorizer position, and that she filed her Board appeal after OSC had closed its 

inquiry into the matter. She alleges that the Board has jurisdiction over her 

appeal as an individual right of action (IRA) appeal under the Whistleblower 

Protection Act (WPA). 

¶6 To establish Board jurisdiction over an IRA appeal under the WPA, 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. Geyer v. 

Department of Justice, 63 M.S.P.R. 13, 16-17 (1994). Thus, the Board's 

jurisdiction in IRA appeals is limited to whistleblower allegations under 

§ 2302(b)(8), and does not include any of the other prohibited personnel practices 

enumerated in § 2302(b). Further, the Board has jurisdiction over an IRA appeal 

only when the appeal has been preceded by a complaint alleging whistleblowing 

filed with OSC. 

¶7 The complaint that the appellant filed with OSC alleged that the agency 

committed a number of prohibited personnel practices, other than retaliation for 

whistleblowing, as follows: section 2302(b)(4), deceived or willfully obstructed 

any person with respect to such person's right to compete for employment; 

section 2302(b)(5), influenced any person to withdraw from competition for any 

position for the purpose of improving or injuring the prospects of any other 

person for employment; section 2302(b)(6), granted any preference or advantage 

not authorized by law, rule, or regulation to any employee or applicant for the 

purpose of improving or injuring the prospects of any particular person for 

employment; and section 2302(b)(9), take or fail to take a personnel action 

against an employee or applicant because of the exercise of any grievance right. 

IAF, Tab 1. The appellant's allegation that the agency committed prohibited 
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personnel practices in violation of 5 U.S.C. § 2302(b)(4), (5), (6), and (9) is not 

within the Board's jurisdiction as an IRA appeal. Cf. Spruill v. Merit Systems 

Protection Board, 978 F.2d 679, 686-92 (Fed. Cir. 1992) (IRA appeal properly 

dismissed for lack of subject-matter jurisdiction where appellant alleges a 

disclosure that does not fall under section 2302(b)(8)). 

¶8 As noted above, the appellant characterizes the complaint that she filed with 

OSC as also "cit[ing] waste and mismanagement of funds due to the time and 

effort expended by the hundreds of employees who applied [for the Claims 

Authorizer position]." IAF, Tab 4. Disclosure of waste of funds is protected 

under § 2302(b)(8). Gross waste of funds constitutes a more than debatable 

expenditure that is significantly out of proportion to the benefit reasonably 

expected to accrue to the government. Van Ee v. Environmental Protection 

Agency, 64 M.S.P.R. 693, 698 (1994). Contrary to the appellant's 

characterization of the content of her OSC complaint, a reading of the complaint 

does not allow the inference that it alleges that she disclosed a gross waste of 

funds or that the agency retaliated against her for such. IAF, Tab 1. The 

appellant stated only that "[a]pproximately 250 other employees of the Mid 

America Program Service Center also applied for these positions." Id. OSC 

properly did not infer an allegation of "waste and mismanagement of funds" or an 

allegation of retaliation for such from the appellant's complaint. See Thomas v. 

Department of the Treasury, 77 M.S.P.R. 224, 236 (1998) (as the agency 

responsible for investigating and prosecuting cases involving retaliation for 

whistleblowing disclosures under the Whistleblower Protection Act, OSC can be 

expected to know what section (b)(8) wrongdoing might be implicated by a 

particular set of factual allegations), overruled on other grounds by Ganski v. 

Department of the Interior, 86 M.S.P.R. 32, 37 (2000). The appellant's complaint 

simply did not give OSC sufficient basis to pursue an investigation into 

whistleblowing. See Knollenberg v. Merit Systems Protection Board, 953 F.2d 

623, 626 (Fed. Cir. 1992). Thus, the appellant did not raise the issue of 
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whistleblowing before OSC, and proceedings before OSC were not exhausted. 

Therefore, the appellant has not established that the Board has jurisdiction over 

her appeal as an IRA, and the administrative judge correctly dismissed the appeal 

for lack of jurisdiction. 

ORDER 

¶9 This is the final decision of the Merit Systems Protection Board in this appeal. 

Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING 

YOUR FURTHER REVIEW RIGHTS 

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

Federal Circuit to review this final decision. 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 

The court must receive your request for review no later than 60 calendar days 

after your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. If you choose 

to file, be very careful to file on time. The court has held that normally it does 

not have the authority to waive this statutory deadline and that filings that do not 

comply with the deadline must be dismissed. See Pinat v. Office of Personnel 

Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read 
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this law as well as review other related material at our web site, 

http://www.mspb.gov. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Robert E. Taylor 

Clerk of the Board