UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL N. OHNSTAD,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-315H-15-0101-I-1

DATE: July 24, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael N. Ohnstad, Barstow, California, pro se.

Loren L. Baker, Esquire, Barstow, California, 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 his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

regulation or the erroneous application of the law to the facts of the case; the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

BACKGROUND

¶2 The appellant was terminated from his Maintenance Worker position during 

his probationary period, effective October 14, 2014. See Initial Appeal File 

(IAF), Tab 7 at 5, Tab 9, Subtab 4a. The appellant filed a Board appeal and 

requested a hearing. IAF, Tab 1, Tab 4 at 2. During the pendency of the appeal, 

it appeared that the appellant was also alleging reprisal for whistleblowing 

activity, a violation of his veterans’ preference rights pursuant to the Veterans 

Employment Opportunities Act of 1998 (VEOA), and a violation of the 

Uniformed Services Employment and Reemployment Rights Act of 1994 

(codified at 38 U.S.C. §§ 4301-4333) (USERRA). See, e.g., IAF, Tabs 1, 4-5, 

11. In response to the administrative judge’s jurisdictional orders, the appellant 

submitted correspondence that he received from the Office of Special Counsel

(OSC), and he clarified that he was not claiming a violation of VEOA or 

USERRA. See IAF, Tab 17 at 65-68. 

¶3 The administrative judge issued an initial decision, which dismissed the 

appeal for lack of jurisdiction without holding the appellant’s requested hearing. 

IAF, Tab 19, Initial Decision (ID). In pertinent part, the administrative judge 
3

found that: (1) the Board lacks jurisdiction over the appeal under chapter 75 

because the appellant was not an employee pursuant to 5 U.S.C.

§ 7511(a)(1)(A)(i) or (ii), and he failed to nonfrivolously allege that his 

termination during his probationary period was based on partisan political reasons 

or marital status; (2) the Board also lacks jurisdiction over the appeal as an 

individual right of action (IRA) appeal because the appellant has not proven by 

preponderant evidence that he exhausted his administrative remedies with OSC; 

(3) the appellant withdrew his USERRA and VEOA claims; and (4) the Board 

lacks jurisdiction over the appellant’s remaining contentions, including that the 

agency committed harmful procedural error, and that he was subjected to 

discrimination, prohibited personnel practices, and violations of law. ID at 4-10. 

The appellant has filed a petition for review. Petition for Review (PFR) File, 

Tab 2. The agency did not file a response.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The appellant appears to argue on review that the administrative judge erred 

in his conclusion on the administrative exhaustion issue, he alleges fraud, waste, 

and abuse by agency management, and he includes a copy of OSC’s December 30, 

2014 correspondence. PFR File, Tab 2 at 2-3. 2

 The appellant also appears to 

contend that the administrative judge erred by not issuing subpoenas on his 

behalf. PFR File, Tab 2. For the following reasons, the appellant’s petition for 

review does not warrant a different outcome. 

The administrative judge correctly found that the Board lacks jurisdiction over 

this case as an IRA appeal.

¶5 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 made a disclosure described under 5 U.S.C. § 2302(b)(8), 

 2 OSC’s December 30, 2014 letter is not new evidence because it was already in the 

record below. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980); see 

also IAF, Tab 17 at 68; ID at 7-8. 
4

or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), 

(C), or (D); and (2) the disclosure or protected activity was a contributing factor 

in the agency’s decision to take or fail to take a personnel action as defined 

by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department 

of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 

¶6 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective 

action from OSC before seeking corrective action from the Board, and the 

Board’s jurisdiction is limited to the issues raised before OSC. Briley v. National 

Archives and Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001). 

The appellant bears the burden of showing that he sought corrective action from 

OSC and that he exhausted his administrative remedies there. Id. To meet his 

burden to show administrative exhaustion, the appellant must provide OSC a 

sufficient basis to pursue an investigation which might have led to corrective 

action. Id. In other words, the appellant must articulate with reasonable clarity 

and precision before OSC the basis for his complaint of reprisal for 

whistleblowing activity. Id.; Coufal v. Department of Justice, 98 M.S.P.R. 31, 

¶ 14 (2004). An appellant may demonstrate exhaustion through his initial OSC 

complaint, evidence that he amended the original complaint, including but not 

limited to OSC’s determination letter and other letters from OSC referencing any 

amended allegations, and the appellant’s written responses to OSC referencing 

the amended allegations. Mason v. Department of Homeland 

Security, 116 M.S.P.R. 135, ¶ 8 (2011).

¶7 As discussed by the administrative judge in the initial decision, the record 

contains an October 16, 2014 letter to the appellant from the OSC Disclosure 

Unit, the appellant’s November 17, 2014 letter to OSC, and a December 30, 2014 

letter to the appellant from the OSC Complaints Examining Unit. IAF, Tab 5, 
5

Exhibit E, Tab 17 at 67-68; see ID at 7-8.

3

 Based on the limited evidence in the 

record, we are not persuaded that the appellant met his burden to show that he 

exhausted his administrative remedies with OSC. Importantly, the appellant has 

not proven that he provided OSC with sufficient factual information, such as his 

protected disclosures, the date he made these alleged disclosures, and/or why he 

believed that his disclosures were a contributing factor in the termination

decision, so that OSC could investigate a claim of reprisal for whistleblowing 

activity. Additionally, it does not appear that OSC construed the appellant’s 

submissions as making a claim of reprisal for whistleblowing activity because 

neither letter referenced the relevant statutory provisions or provided him with 

Board appeal rights for an IRA appeal. See IAF, Tab 17 at 67-68. 

¶8 Under these circumstances, we discern no error with the administrative 

judge’s conclusion that the appellant failed to establish that he raised before OSC 

any purportedly protected disclosures of information for which the agency 

retaliated against him by terminating his employment. See ID at 8 (citing 

Mason, 116 M.S.P.R. 135, ¶ 8).

4

 Because the appellant did not exhaust his 

administrative remedies with OSC, we need not address the remaining 

jurisdictional requirements for his IRA appeal. See Miller v. Federal Deposit 

Insurance Corporation, 122 M.S.P.R. 3, ¶ 10 (2014) (exhaustion of 

 3 It does not appear that the appellant included in the record below his initial OSC 

complaint, OSC’s preliminary determination letter, or his response to OSC’s 

preliminary determination letter. See IAF, Tab 17 at 68.

4 Although not raised by the appellant, we considered whether his initial 

correspondence to OSC, as described in OSC’s October 16, 2014 letter, or his 

complaints to the Marine Corps Logistics Base Barstow Command Inspector General or 

the Inspector General of the Marine Corps could constitute protected disclosures

pursuant to 5 U.S.C. § 2302(b)(8)(B)(i) or (ii). See, e.g., IAF, Tab 17 at 67, 74-76, 

81-83. Because it appears that the appellant did not initiate contact with any of these 

entities until after his termination, any purported disclosures therein could not have 

been a contributing factor in the agency’s decision to terminate him. See Kukoyi v. 

Department of Veterans Affairs, 111 M.S.P.R. 404, ¶ 11 (2009), overruled on other 

grounds by Mason, 116 M.S.P.R. 135, ¶ 26 n.7. 
6

administrative remedies before OSC is a jurisdictional prerequisite to raising an 

IRA appeal before the Board); see also supra ¶ 5.

The administrative judge correctly determined that the Board lacks jurisdiction 

over this matter as an appeal under chapter 75, and that the appellant withdrew 

his VEOA and USERRA claims. 

¶9 The appellant does not challenge the administrative judge’s finding that the 

Board lacks jurisdiction over his appeal under chapter 75, and we discern no basis 

for disturbing this well-reasoned finding on review. See Crosby v. U.S. Postal 

Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the 

administrative judge’s findings where she considered the evidence as a whole, 

drew appropriate inferences, and made reasoned conclusions). Furthermore, he 

does not contest the administrative judge’s findings that he withdrew his 

USERRA and VEOA claims, and he fails to otherwise raise a basis under which 

the Board could have jurisdiction over his appeal. 

¶10 Finally, because the administrative judge properly dismissed the appeal for 

lack of jurisdiction, there was no need for him to issue subpoenas on the 

appellant’s behalf. See Nortz v. Department of Veterans Affairs, 47 M.S.P.R. 

526, 531-33 (1991) (where the Board did not have jurisdiction over the appeal, 

the administrative judge did not err in denying the appellant’s request for 

discovery and for the issuance of subpoenas).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to 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 
7

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 

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 
8

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