Nelson v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: February 7, 2025
• Docket: 24-1671
• Status: Unpublished

Opinion

Case: 24-1671 Document: 20 Page: 1 Filed: 02/07/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

RENEE NELSON, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1671 ______________________

Petition for review of the Merit Systems Protection Board in No. PH-1221-16-0453-W-1. ______________________

Decided: February 7, 2025 ______________________

RENEE NELSON, Silver Spring, MD, pro se.

ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before DYK, PROST, and HUGHES, Circuit Judges. PER CURIAM. Case: 24-1671 Document: 20 Page: 2 Filed: 02/07/2025

Petitioner Renee Nelson appeals the Merit Systems Protection Board’s final order dismissing her whistle- blower Individual Right of Action appeal for lack of juris- diction. Because the Board correctly concluded that she failed to nonfrivolously allege that the Department of the Army took a personnel action against her in reprisal for her protected whistleblowing activity, we affirm. I Ms. Nelson is a Program Analyst at the Department of the Army’s National Museum of Health and Medicine. S.A. 2. 1 On March 11, 2014, she sent Major General Joseph Caravalho Jr., Commanding General of the U.S. Army Medical Research and Material Command, a letter alleging she was subject to discrimination and harassment by her supervisors and department contractors as “the only Afri- can American GS12 Civilian female within the NMHM.” S.A. 3, 67. She complained she “was slowly being stripped of [her] Public Program duties and that those duties were slowing being transferred to ARP contractors.” S.A. 67. She reported that on February 24, 2014, her supervisor filed an official verbal reprimand against her and shared her offi- cial personnel record with a contractor without her con- sent. S.A. 68. She concluded that “[she] wish[ed] to file an official complaint against [NMHM] and [the] referenced in- dividuals for their participation in the continued discrimi- nation, harassment, and alienation.” S.A. 70. In response to Ms. Nelson’s letter, the agency launched an Army Regulation 15-6 (AR 15-6) investigation that cul- minated in a memorandum finding “insufficient evidence” of “unlawful discrimination and improper behavior which created reprimands or hostile work environment for [her].” S.A. 21. The memorandum instead found Ms. Nelson “had

1 References to S.A. refer to the Supplemental Appen-

dix filed with the agency’s brief. Case: 24-1671 Document: 20 Page: 3 Filed: 02/07/2025

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a negative impact on the work environment” and her “con- sistent disruptive behavior and the attendant complaints that it generated appear to have created the impression by her that there is a conspiracy against her.” Id. In April 2015, Ms. Nelson filed a complaint with the Office of Special Counsel. OSC found that she appeared to have disclosed one instance of protected whistleblowing un- der 5 U.S.C. § 2302(b)(8)—her disclosure in her March 2014 letter that her personnel file had been shared with a contractor without her consent—that would violate the Pri- vacy Act, 5 U.S.C. § 552a, which prohibits nonconsensual disclosure of a record of a person’s employment history. See S.A. 97. OSC terminated its investigation on June 28, 2016. On August 31, 2016, Ms. Nelson filed a whistleblower Individual Right of Action (IRA) appeal with the Merit Sys- tem Protection Board alleging that the agency conducted an “[i]llegal AR15-6 [i]nvestigation under 5 U.S.C. § 2302(b)(8).” S.A. 17; 89. She referred to the OSC finding that she appeared to have disclosed a violation of the Pri- vacy Act and alleged that the agency conducted an AR 15- 6 investigation that was “used as a retaliatory tool . . . to falsely label [her] as being disruptive . . . .” S.A. 97 (empha- sis omitted). On September 16, 2016, the Board’s adminis- trative judge issued an Order on Jurisdiction and Proof Requirements informing her of the jurisdictional standards relevant to an IRA appeal, see S.A. 73–77, and ordering her “to file a statement, accompanied by evidence, listing,” among other things, her alleged protected disclosures, the agency’s alleged retaliatory actions, and the relevant dates, within 15 calendar days. S.A. 78. Ms. Nelson filed a response to the Order on Septem- ber 27, 2016. Instead of listing allegations supporting her whistleblower reprisal claim as requested, she “fil[ed] a copy of the original written statement submitted to the [MSPB’s] Washington Regional Office Appeals Board in Case: 24-1671 Document: 20 Page: 4 Filed: 02/07/2025

[her] request for an [IRA] appeal, accompanied by the com- plaint evidence supplied to the OSC” and attached over 400 pages of materials. S.A. 64. On July 20, 2017, the administrative judge dismissed Ms. Nelson’s IRA appeal for lack of jurisdiction on two ba- ses: (1) she had failed to make a nonfrivolous allegation that her claimed activity was protected under the Whistle- blower Protection Act, and (2) she had failed to identify any personnel action for which that protected activity might have been a contributing factor. Regarding Ms. Nelson’s alleged whistleblowing activ- ity, the administrative judge noted that “allegations of dis- crimination, whether raised within grievance or equal employment opportunity (EEO) processes or elsewhere, do not constitute protected whistleblowing activity under 5 U.S.C. § 2302(b)(8).” S.A. 19–20. The administrative judge further found Ms. Nelson’s “personal complaints and grievances about how she was treated by the agency, her opinion that she is being underutilized or unfairly criti- cized, and disagreements over agency policy decisions” were not protected disclosures as a matter of law. S.A. 20. Regarding personnel action, the administrative judge found “it remain[ed] unclear what personnel actions [she] allege[d] were taken by the agency in retaliation for her whistleblowing activity.” S.A. 20–21. The administrative judge found that some events Ms. Nelson detailed in her appeal could not have constituted reprisal because they predated her whistleblowing activity. S.A. 20. The admin- istrative judge further concluded the AR 15-6 investigation did not constitute a personnel action because she had not alleged it was used as pretext for gathering information to retaliate against her. Ms. Nelson timely filed an administrative petition for review (PFR) by the full Board, attaching over 500 pages of purported evidence. To clarify her claims, Ms. Nelson pre- sented a timeline of events. On March 12, 2024, the Board Case: 24-1671 Document: 20 Page: 5 Filed: 02/07/2025

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issued a Final Order denying the PFR and affirming the administrative judge’s Initial Decision except as expressly modified to find that Ms. Nelson had made a nonfrivolous allegation of making a single protected disclosure. S.A. 2. The Board affirmed the administrative judge’s dismissal for lack of subject matter jurisdiction despite finding Ms. Nelson had alleged an instance of whistleblowing ac- tivity because it agreed with the administrative judge that Ms. Nelson did not identify any retaliatory personnel ac- tion to which the agency subjected her after her March 2014 letter. S.A. 7. Ms. Nelson timely appealed the Board’s final decision to this Court. We have jurisdiction to review a final deci- sion of the Board under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(B). II We must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Higgins v. Dep’t of Veterans Affs., 955 F.3d 1347, 1353 (Fed. Cir. 2020). “Whether the Board has jurisdiction over a particular matter is a question of law that this court reviews de novo.” Kerrigan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1353 (Fed. Cir. 2016). “[T]he Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the OSC and makes ‘non-frivolous allega- tions’ that (1) [s]he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure 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).” Yunus v. Dep’t of Veter- ans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Although pro se litigants are held to a less stringent pleading Case: 24-1671 Document: 20 Page: 6 Filed: 02/07/2025

standard, see Haines v. Kerner, 404 U.S. 519, 520 (1972), they are not exempt from satisfying jurisdictional require- ments. See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995). While the Board correctly found that Ms. Nelson had nonfrivolously alleged one instance in which she made a protected disclosure, the Board correctly dismissed Ms. Nelson’s IRA appeal for lack of subject matter jurisdic- tion because she failed to nonfrivolously allege that the agency took a “personnel action” against her as defined by 5 U.S.C. § 2302(a)(2) in reprisal for her disclosure. “A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. An allegation generally will be considered nonfrivolous when . . . an indi- vidual makes an allegation that: (1) is more than conclu- sory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal.” 5 C.F.R. § 1201.4(s). “Any doubt or ambiguity as to whether the appellant has made a non- frivolous allegation . . . should be resolved in favor of” a finding that jurisdiction exists. Huffman v. Off. of Pers. Mgmt., 92 M.S.P.R. 429, ¶ 13 (2002). A protected disclosure is “any disclosure of information by an employee . . . which the employee reasonably be- lieves evidences” a “violation of any law, rule, or regula- tion.” 5 U.S.C. § 2302(b)(8)(A)(i). The statutory definition of “disclosure” excludes “a communication concerning pol- icy decisions that lawfully exercise discretionary author- ity.” 5 U.S.C. § 2302(a)(2)(D). “Allegations of retaliation for exercising a Title VII right . . . do not fall within the scope of section 2302(b)(8) of the Whistleblower Protection Act and are therefore not proper subjects for inclusion in an IRA appeal.” Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1329 (Fed. Cir. 2020). Case: 24-1671 Document: 20 Page: 7 Filed: 02/07/2025

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A The Board properly found that Ms. Nelson had made only one nonfrivolous allegation of a Privacy Act violation. The Privacy Act prohibits nonconsensual disclosure of a record of a person’s employment history unless an excep- tion applies. See 5 U.S.C. § 552a(a)(4), (b). Ms. Nelson stated in her March 2014 letter that her supervisor had im- properly shared her employment file containing a copy of an official reprimand with a contractor without her con- sent. The Board noted that “neither below nor on review has the appellant clearly explained what protected disclo- sures or activities she is claiming or what personnel actions she is alleging.” S.A. 4. The Board nonetheless “generously” construed Ms. Nelson’s allegation that “her supervisor sent a copy of her official personnel record to a contractor” to be a “nonfrivolous allegation that she reasonably believed the agency violated [the Privacy Act].” S.A. 6–7. The Board properly concluded that the other disclo- sures in Ms. Nelson’s March 2014 letter concerned behav- iors that are not whistleblowing activity as a matter of law. Ms. Nelson’s disagreements with her supervisor about what her job duties should be are not protected activity be- cause assignments are policy decisions within the supervi- sor’s lawful discretion. See 5 U.S.C. § 2302(a)(2)(D). “Discussion and even disagreement with supervisors over job-related activities is a normal part of most occupations” and therefore are not protected disclosures. Willis v. Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998), superseded by statute on other grounds, Whistleblower Protection En- hancement Act of 2012, Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1465–66. Ms. Nelson’s complaints of mis- treatment due to her sex and race and her related claims of retaliation for EEO activity are properly addressed through the EEO remedial scheme, not an IRA appeal. See, e.g., Young, 961 F.3d at 1329 (“Retaliation for filing [EEO] Case: 24-1671 Document: 20 Page: 8 Filed: 02/07/2025

complaints is remediable through different mechanisms, and not by an IRA appeal to the Board.”). Ms. Nelson further alleges she disclosed “[g]overnment [p]rocurement [f]raud” as another instance of a protected disclosure. Pet. Inf. Br. at 4. However, she did not allege procurement fraud before the administrative judge. While she claimed to have reported “[a]gency contractor fraud” in her PFR, she did not provide any detail supporting this claim. S.A. 43. This bare conclusory allegation is frivolous. See 5 C.F.R. § 1201.4(s). B Though Ms. Nelson nonfrivolously alleged that she made a protected disclosure, the Board correctly concluded that it lacked subject matter jurisdiction because Ms. Nel- son did not nonfrivolously allege that the agency took a per- sonnel action against her as defined by 5 U.S.C. § 2302(a)(2) in reprisal for her protected disclosure. Ms. Nelson identified a single personnel action in her initial appeal to the Board: the agency investigation that concluded she was a disruptive employee. See S.A. 89, 97. This investigation was initiated to investigate the allega- tions raised in Ms. Nelson’s March 2014 letter. Moreover, an alleged retaliatory investigation that does not result in a “significant change in working conditions” does not con- stitute a personnel action under the WPA. Sisstek v. Dep’t of Veterans Affs., 955 F.3d 948, 956 (Fed. Cir. 2020). The Board correctly concluded that neither the initiation nor result of the investigation into Ms. Nelson was retaliatory personnel action, since Ms. Nelson did not point to any post-investigation event that significantly changed her working conditions. To the extent Ms. Nelson contends the agency engaged in a new personnel action when it did not reverse her prior reassignment after the investigation, we have rejected such a theory of continued violation as grounds for establishing jurisdiction under the WPEA. See Case: 24-1671 Document: 20 Page: 9 Filed: 02/07/2025

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Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 667 (Fed. Cir.1998). Many of the other events Ms. Nelson recites as alleged personnel action predate her March 2014 letter. These events cannot have occurred in retaliation for her whistle- blowing because they occurred before her protected disclo- sure in her March 2014 letter. Ms. Nelson also alleged several new personnel actions for the first time in her PFR, including “violating her pri- vacy rights, sabotaging her EEO complaint, and interfering with her workers’ compensation claim.” S.A. 8. The Board correctly found her arguments and assertions lacking in the detail necessary to determine whether these actions “could constitute the kind of personnel action covered un- der the whistleblower statute.” Id. Further, her vague and conclusory allegations were insufficient to discern whether the events “occurred after the appellant’s March 2014 dis- closure, and therefore could have been taken in reprisal for the disclosure.” Id. IV We have considered the remainder of Ms. Nelson’s ar- guments and find them unpersuasive. Because Ms. Nel- son’s claims are outside the jurisdiction of the Merit Systems Protection Board, we affirm. AFFIRMED COSTS No costs.