UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CHRISTOPHER R. CHIN-YOUNG,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

AT-0752-11-0699-I-2

DATE: September 1, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Christopher R. Chin-Young, Alpharetta, Georgia, pro se.

William P. Vines, Esquire, Atlanta, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed for lack of jurisdiction his appeal of a reassignment. For the reasons 

discussed below, we GRANT the appellant’s petition for review, MODIFY the 

initial decision, and DISMISS the appeal for lack of jurisdiction on different 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

grounds. Except as expressly MODIFIED by this Final Order to correct the 

administrative judge’s analysis concerning exhaustion, we AFFIRM the initial 

decision. 

¶2 On June 7, 2011, the appellant filed an appeal of an April 2009 

reassignment from one position to another position at the same grade and pay. 

Chin Young v. Department of Transportation, MSPB Docket No. AT-0752-11-

0699-I-1, Initial Appeal File (I-1 IAF), Tab 1. The administrative judge 

dismissed the appeal without prejudice on September 29, 2011, pending 

resolution of the appellant’s equal employment opportunity (EEO) complaint 

concerning the same matter. I-1 IAF, Tab 6.

¶3 When the EEO process finally concluded, the appellant timely refiled his 

appeal on January 14, 2014. Chin Young v. Department of Transportation, MSPB 

Docket No. AT-0752-11-0699-I-2, Initial Appeal File (I-2 IAF), Tab 1. He 

asserted for the first time that his reassignment constituted reprisal for 

whistleblowing. I-2 IAF, Tab 3 at 1. The administrative judge issued an order 

apprising the appellant of the jurisdictional requirements in an individual right of 

action (IRA) appeal and ordering him to submit evidence and argument on the 

jurisdictional issue. I-2 IAF, Tab 4. After affording the parties the opportunity to 

respond, the administrative judge dismissed the appeal for lack of IRA 

jurisdiction without a hearing on the basis that the appellant did not prove that he 

exhausted his administrative remedies before the Office of Special Counsel 

(OSC). I-2 IAF, Tab 11, Initial Decision (ID) at 3. He also found that the Board 

otherwise lacked jurisdiction over the appellant’s reassignment. Id. 

¶4 The Board has jurisdiction over an IRA appeal if the appellant has 

exhausted his administrative remedies before OSC and makes nonfrivolous 

allegations that: (1) he engaged in whistleblowing activity by making a protected 

disclosure; and (2) the disclosure was a contributing factor in the agency’s 

decision to take or fail to take a personnel action. Yunus v. Department of 

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To satisfy the exhaustion 
3

requirement of 5 U.S.C. § 1214(a)(3), an appellant must inform OSC of the 

precise ground of his charge of whistleblowing, giving OSC a sufficient basis to 

pursue an investigation which might lead to corrective action. Ward v. Merit 

Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).

¶5 The administrative judge correctly found that an appellant’s interactions 

with OSC’s Disclosure Unit do not satisfy the exhaustion requirement. See

Clemente v. Department of Homeland Security, 101 M.S.P.R. 519, ¶ 13 (2006);

ID at 3. He was mistaken, however, in finding that the appellant’s 

communications in this case were with the Disclosure Unit. ID at 3. In his 

response to the administrative judge’s jurisdictional order, the appellant 

submitted a copy of his initial complaint to OSC. I-2 IAF, Tab 5 at 7-12. He also 

submitted a copy of a letter from an attorney in the Complaints Examining Unit 

setting forth OSC’s preliminary conclusions, id. at 4-5, and a brief closure letter, 

id. at 6. Because the administrative judge’s findings of fact are contradicted by 

record evidence, we modify the initial decision.

¶6 However, we find that the record is sufficiently developed to permit us to 

resolve the initial jurisdictional issue without a remand. In his OSC complaint, 

the appellant alleged that he was displaced from his position and reassigned to 

make room for an unqualified individual who was a personal friend of the 

relevant manager. Id. at 10. He did not claim that he made a protected disclosure 

or that that the agency took reprisal against him for protected whistleblowing. 

Similarly, in its correspondence, OSC characterizes the appellant’s allegations as 

potential violations of 5 U.S.C. § 2302(b)(4)-(b)(6). Id. at 4-5. While OSC’s 

opinions and conclusions are not binding on the Board,

2 considering the content 

of the appellant’s OSC complaint, we agree with OSC’s conclusion that the 

appellant alleged that the agency committed prohibited personnel practices but 

did not allege reprisal for whistleblowing. Therefore, the appellant has not shown 

 2 Because an IRA appeal is a de novo action, OSC’s statements and findings cannot be 

dispositive. Smith v. Department of Agriculture, 64 M.S.P.R. 46, 55 (1994).
4

that he exhausted his administrative remedies before OSC and the Board lacks 

IRA jurisdiction over this appeal. See Finston v. Health Care Financing 

Administration, 83 M.S.P.R. 100, ¶¶ 9-10 (1999).

¶7 Similarly, because, as the administrative judge correctly found, the Board 

lacks jurisdiction over reassignments that do not involve a reduction in pay or 

grade, the appellant has not otherwise established jurisdiction over his 

reassignment. See Lopez v. Department of the Navy, 108 M.S.P.R. 384, ¶ 18 

(2008).

¶8 Finally, the appellant has submitted a number of documents with his 

petition for review. Most of these documents already are part of the record. 

Petition for Review (PFR) File, Tab 1 at 4-6, 11-29. Evidence that is already a 

part of the record is not new. Meier v. Department of the Interior, 3 M.S.P.R. 

247, 256 (1980). Some of the documents that the appellant submits on review are 

not in the record below. PFR File, Tab 1 at 7-10. However, with one exception, 

they all predate the close of the record below. Under 5 C.F.R. § 1201.115, the 

Board will not consider evidence submitted for the first time with the petition for 

review absent a showing that it was unavailable before the record was closed 

despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980). The appellant has not made such a showing. In any event, none 

of the documents shed any light on the question of whether the appellant 

exhausted his administrative remedies. Because they are neither new nor 

material, we have not relied upon them. See Ellis v. U.S. Postal Service, 

121 M.S.P.R. 570, ¶¶ 6-7 (2014).

¶9 Accordingly, we dismiss the appeal for lack of jurisdiction.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 
5

request review of this final decision by the United States Court of Appeals for the 

Federal Circuit.

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

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). 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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

for the Federal Circuit or any court of appeals of competent jurisdiction. The 

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

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) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States Court of Appeals for the Federal 

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular 

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is 
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contained within the court's Rules of Practice, and Forms 5, 6, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board