Steele v. Merit System Protection Board

20 F. App'x 863
Court of Appeals for the Federal Circuit·Decided October 4, 2001·No. No. 01-3012·Published

Opinion

DECISION

PER CURIAM.

Vernetta Steele petitions for review of the final decision of the Merit Systems Protection Board (“Board”) dismissing her consolidated appeals, Nos. SF-3443-00-0097-1-1 and SF-1221-00-0126-W-1, for lack of jurisdiction. We affirm.

DISCUSSION

I.

Ms. Steele was employed as an Applications Clerk for the Immigration and Naturalization Service (“INS”) under a term appointment that was to end no later than December 31, 1999. Before the expiration of the appointment, Ms. Steele applied for, but did not receive, a promotion to the position of District Adjudication Officer. On November 11, 1999, Ms. Steele appealed the decision not to promote her to the Board, alleging, inter alia, prohibited discrimination on the basis of age, gender, and handicapping condition (Docket No. SF-3443-00-0097-I-1). Ms. Steele filed a second appeal with the Board on December 1,1999 (Docket No. SF-1221-00-0126W-l). In that appeal, she challenged the INS’ decision not to extend her term appointment despite receiving approval for the extension from the Office of Personnel Management (“OPM”). Ms. Steele repeated her earlier claim of discrimination and added an allegation that the decision not to extend her term appointment was in retaliation for her prior disclosure of purportedly unlawful activity to an Equal Employment Opportunity (“EEO”) counselor and the Office of Special Counsel (“OSC”). Ms. Steele also alleged that the action taken by the INS improperly punished her for filing workers’ compensation claims.

After consolidating the two appeals, an administrative judge (“AJ”) of the Board issued an initial decision dismissing the appeals for lack of jurisdiction. In her decision, the AJ pointed out that because the decisions not to promote Ms. Steele and not to extend her term were not “adverse actions,” the Board lacked jurisdiction to hear the claims of discrimination and reprisal. In addition, citing Geyer v. Department of Justice, 63 M.S.P.R. 13,16-17 (1994), the AJ rejected Ms. Steele’s alternative attempt to assert Board jurisdiction under the Whistleblower Protection Act of 1989 (“WPA”). See 5 U.S.C. § 2302(b). The AJ ruled that neither Ms. Steele’s complaint to the EEO counselor nor her letter to OSC constituted a “protected disclosure” under the WPA and that Ms. Steele’s failure to properly inform OSC of the precise ground for her whistle-[865] blowing claim precluded the Board’s assertion of jurisdiction. See 5 U.S.C. § 2302(b)(8).

The AJ’s initial decision became the final decision of the Board on August 20, 2000, when the Board denied Ms. Steele’s petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. Ms. Steele appeals the Board’s final decision to this court pursuant to 5 U.S.C. § 7703.

II.

The issue of “whether the Board has jurisdiction to adjudicate a particular appeal is a question of law that we review de novo.” Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). A petitioner such as Ms. Steele bears the burden of establishing that a specific law, rule, or regulation vests the Board with jurisdiction to adjudicate her appeal. 5 U.S.C. § 7701(a); 5 C.F.R. § 1201.56(a)(2)(i); Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574, 1577 (Fed.Cir.1995). For the reasons which follow we conclude that the Board properly held that it lacked jurisdiction to review the INS’ decisions not to promote Ms. Steele or to extend her term appointment.

Ms. Steele must demonstrate either that her non-selection and termination after her term expired were adverse actions per se appealable to the Board or that she met the requirements for filing an individual right of action (“IRA”) appeal under the WPA. The Board correctly held that a decision not to promote a term employee or to extend such an employee’s employment is not an adverse action that is per se appealable to the Board. See 5 C.F.R. § 316.303(b); Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.Cir.1998); Soehngen v. Department of Justice, 47 M.S.P.R. 169, 172 (1991), affd, 945 F.2d 418 (Fed.Cir.1991) (Table), cert, denied, 503 U.S. 939, 112 S.Ct. 1482, 117 L.Ed.2d 624 (1992).

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Steele v. Merit System Protection Board, 20 F. App'x 863 (Fed. Cir. 2001).

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