Kathryn Flynn v. United States Dept of the Army

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2020
• Docket: 18-73009
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KATHRYN A. FLYNN, No. 18-73009

Petitioner, MSPB No. SF-1221-18-0406-W-1

v. MEMORANDUM* UNITED STATES DEPARTMENT OF THE ARMY,

Respondent.

On Petition for Review of an Order of the Merit Systems Protection Board

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Dr. Kathryn A. Flynn petitions pro se for review of the Merit Systems

Protection Board’s (“MSPB”) final order in her administrative action against the

Department of the Army (“the agency”) alleging violations of the Whistleblower

Protection Enhancement Act of 2012, 5 U.S.C. § 2302(b)(8), arising out of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). agency’s disciplinary decisions and ultimate failure to renew her employment. We

have jurisdiction under 5 U.S.C. § 7703(b)(1)(B). We review de novo questions of

the MSPB’s jurisdiction, Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th

Cir. 2016), and we affirm.

The MSPB properly dismissed for lack of jurisdiction Flynn’s claims related

to her filing an Equal Employment Opportunity Commission (“EEOC”) complaint

and reporting sexual harassment because such complaints fall within the province

of the EEOC. See Daniels, 832 F.3d at 1051 (explaining that the MSPB

jurisdiction is limited to whistleblower disclosures) (citing 5 U.S.C. § 1221(a)); see

also Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 692 n.17 (Fed. Cir. 1992) (noting

that “the EEOC framework specifically provides for employees who suffer reprisal

for the filing of [an] EEOC complaint”).

The MSPB properly dismissed for lack of jurisdiction Flynn’s claims related

to the agency’s alleged lack of transparency because Flynn failed to allege non-

frivolous allegations of protected whistleblower activity under Section 2302(b)(8)

of the Whistleblower Protection Act (“WPA”). See 5 C.F.R.

§ 1201.4(s) (for purposes of MSPB jurisdiction, a non-frivolous allegation is “more

than conclusory,” “plausible on its face,” and “material to the legal issues in the

appeal”); see also 5 U.S.C. § 2302(b)(8)(A) (under the WPA, an employee must

2 18-73009 “reasonably believe[]” that the disclosure relates to an activity prohibited under the

statute); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 890 (9th Cir.

2004) (to determine whether a disclosure relates to a prohibited activity under the

WPA, courts examine whether a “‘disinterested observer with knowledge of the

essential facts . . . reasonably [would] conclude that a disclosure” evidences

activity prohibited under the statute (quoting Lachance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999))).

The MSPB properly dismissed Dr. Flynn’s remaining claims related to the

agency’s mismanagement and abuse of government contracts as barred under the

doctrine of res judicata because Flynn could have raised these claims in her prior

MSPB complaint, MSPB No. SF-1221-14-0620-W-1, which was adjudicated in a

final decision on the merits. See Bldg. Materials & Constr. Teamsters Local No.

216 v. Granite Rock Co., 851 F.2d 1190, 1195 (9th Cir. 1988) (res judicata bars

relitigation of an administrative determination by a federal agency “when the

agency’s determinations have been made in a proceeding complying with

standards of due process and when the findings are supported by substantial

evidence in the administrative record” (citation and internal quotation marks

omitted)); see also Carson v. Dep’t of Energy, 398 F.3d 1369, 1375-76 (Fed. Cir.

2005) (concluding that employee’s MSPB petition was barred by a prior MSPB

petition under the doctrine of res judicata).

3 18-73009 The MSPB did not abuse its discretion by denying Flynn’s motion to compel

discovery. See Duggan v. Dep’t of Defense, 883 F.3d 842, 847-48 (9th Cir. 2018)

(setting forth standard of review for denial of discovery requests in administrative

proceedings); see also Langer v. Dep’t of Treasury, 265 F.3d 1259, 1265 (Fed. Cir.

2001) (explaining that “the admissibility of evidence is within the sound discretion

of the [MSPB]”).

We reject as unsupported by the record Flynn’s contention that the MSPB

did not properly conduct a de novo review of her petition and erroneously relied on

the Office of Special Counsel’s determination in her prior petition.

AFFIRMED.

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