UNITED STATES OP AMERICA

MERIT SYSTEMS PROTECTION BOARD

JO A, BOOKER,

Appellant,

v.

U.S. POSTAL SERVICE,

Agency .

DOCKET NUMBER

DA34439 110596

DATE? APR 0 6 1992

A' Booker , Dallas, Texas, pro se.

Darrell L. Junoman. Dallas, Texas, for the agency.

BEFORE

Daniel R. Levinson, Chairman

Antonio C. Amador, Vice Chairman

Jessica L. Parks, Member

OPINION AND ORDER

For the reasons discussed below, we find that the

appellant's petition for review does not aieet 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.

§ 1201,117, however, and AFFIRM the initial decision as

MODIFIED by this Opinion and Order, still DISMISSING the

appellant's appeal for lack of jurisdiction.
BACKGROUND

The appellant, after she had been restored to duty as an

employee partially recovered from a compensable injury,

appealed the circumstances of her restoration to duty with the

agency. The administrative judge dismissed the appeal for

lack of jurisdiction. He found that, with regard to partially

recovered employees, the Board had jurisdiction only where

there was an allegation that the agency was denying

restoration arbitrarily and capriciously.

The administrative judge also found that the Board lacked

jurisdiction over the appellant's allegations of handicap

discrimination and reprisal for having complained to the

agency's Inspector General (IG) prior to her receipt of

workers' compensation benefits because allegations of

prohibited personnel practices under 5 U,S.C. § 2302(b)(1)

and (b) (9) were not an independent source of Board

jurisdiction.

In her petition for review, the appellant does not

address the jurisdictional issue, but argues the merits of her

appeal.

ANALYSIS

The Board agrees with and adopts the administrative

judge's finding that the Board lacks jurisdiction over the
appellant's restoration appeal* and her allegations of

prohibited personnel practices under 5 U»S.C. § 2302(b)(l)

and (b)(9). See Wren v. Department of the Army, 2 M.S.P.R. l,

2 (1980) , aff'd sub nom. Wren v. Merit Systems Protection

Board, 681 F.2d 867, 871-73 (D.C. Cir. 1982).

A claim of reprisal for having complained to the IG may

be pursued before the Board in an individual right of action

(IRA) appeal under the Whistleblower Protection Act if the

complaint to the IG constitutes a disclosure under 5 U.S.C.

§ 2302(b)(8). If the complaint to the IG is not a disclosure

protected under § 2302 (b) (8), however,., retaliation for the

complaint is prohibited under § 2302(b)(9), violations of

which are not an independent source of Board jurisdiction.

See Special Counsel v. Hathaway, 49 M.S.P.R. 595, 612 (1991).

We need not decide whether § 2302(b) (8) or (b) (9) is

applicable to the disclosure at issue in this appeal because,

in any event, the Board lacks jurisdiction over the appeal.

In Slack v. United States Postal Service, 48 M.S.P.R. 617, 620-

21 (1991), the Board held that Postal Service employees, such

The Board construes the appellant's references, in her

petition for appeal and petition for review, to the agency's

failure to restore her in 1984 as an example of the alleged

retaliation for her whistleblowing, and not as a late filed

appeal of that action. If the appellant was attempting to

appeal the 1984 action, she must file a petition for appeal

with the regional office accompanied by a statement showing

good cause for the delay in filing, See 5 C.F.R.

§ 1201.22(c)-
4

as the appellant, could not appeal alleged violations of

§ 2302(b)(8) directly to the Board under the IRA provisions of

$

the Whistleblower Protection Act, 5 U.S.C. § 1221; rather,

they may raise whistleblowing only as an affirmative defense

to an otherwise appealable action. Since there is no

otherwise appealable action here, the Board is without

jurisdiction to hear the appellant's affirmative defenses.

See Wren, 2 M.S.P.R. at 2.

ORDER

This is the final order of the Merit Systems Protection

Board in this appeal. See 5 C.F.R. § 12.pl. 113 (c) .

NOTICE T0_^APPELLANT

You have the right to request the United States Court of

Appeals for the Federal Circuit to review the Board's final

decision isi your appeal if the court has jurisdiction. See

5 UsS.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

The court must receive your request for review no later than

30 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,

E. Taylor

Clerk of the Board