Wine v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: May 21, 2020
• Docket: 20-1006
• Status: Unpublished

Opinion

Case: 20-1006 Document: 35 Page: 1 Filed: 05/21/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MITCHELL WINE, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2020-1006 ______________________

Petition for review of the Merit Systems Protection Board in No. DA-1221-19-0363-W-1. ______________________

Decided: May 21, 2020 ______________________

MITCHELL WINE, Mountain View, AR, pro se.

JEFFREY GAUGER, Office of the General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH. ______________________

Before PROST, Chief Judge, REYNA and HUGHES, Circuit Judges. Case: 20-1006 Document: 35 Page: 2 Filed: 05/21/2020

PER CURIAM. Mitch Wine petitions for review of the Merit Systems Protection Board’s dismissal of his individual right of ac- tion appeal for lack of jurisdiction. Because Mr. Wine did not make non-frivolous allegations of a “personnel action” taken against him, we affirm the Board’s decision. I The United States Fish and Wildlife Service (FWS) em- ployed Mr. Wine from 2003 to 2018. In February 2016, Mr. Wine filed a complaint (MA-16-2281) with the Office of Spe- cial Counsel (OSC), alleging that FWS supervisors retali- ated against him for making certain protected disclosures. In July 2016, OSC informed Mr. Wine that it had termi- nated its investigation of these allegations, and Mr. Wine filed an individual right of action (IRA) appeal with the Board. See Wine v. Dep’t of the Interior, No. DA-1221-16- 0513-W-2, 2017 MSPB LEXIS 5121 at *13 (M.S.P.B. De- cember 5, 2017) (2017 IRA Decision). In the fall of 2016, Mr. Wine filed a second OSC com- plaint (MA-17-0509, “Fall 2016 complaint”) detailing addi- tional disclosures. See id. at *14. Mr. Wine’s designated representative requested those claims be added to the pending IRA appeal, so OSC terminated its investigation in March 2017. See Wine v. Dep’t of the Interior, No. DA- 0752-18-0116-S-7, 2019 MSPB LEXIS 1869 at *3–4 (M.S.P.B. May 31, 2019) (finding that OSC had closed the 2016 complaint, exhausting those issues, and that an IRA appeal based on that complaint would be untimely). The Board appears to have partly considered that second com- plaint in Mr. Wine’s IRA appeal, but found certain allega- tions not exhausted before OSC. 2017 IRA Decision at *18–19, *20 n.2, *43 n.6, *51 n.9, *92 n.12. Ultimately, the Board denied Mr. Wine’s request for corrective action because it found that FWS would have taken the same ac- tions absent his whistleblowing. Id. at *97. Case: 20-1006 Document: 35 Page: 3 Filed: 05/21/2020

WINE v. MSPB 3

In December 2017, FWS removed Mr. Wine and he ap- pealed the removal. Mr. Wine eventually entered into a settlement agreement with FWS, which the Board ap- proved as the final resolution of the appeal in April 2018. Wine v. Dep’t of the Interior, No. DA-0752-18-0116-I-1, 2018 MSPB LEXIS 1541 (M.S.P.B. April 30, 2018). In January 2018, while that appeal was pending, Mr. Wine contacted OSC seeking “reconsideration” of his Fall 2016 (MA-17-0509) complaint. S.A. 44. 1 Mr. Wine believed this was necessary to cure his failure to exhaust allegations in his original IRA appeal. Id. OSC purportedly agreed to reevaluate the complaint, but Mr. Wine, dissatisfied with a perceived lack of follow-up or action, in June 2019, filed the IRA appeal petitioned here. Id. See Wine v. Office of Special Counsel, No. DA-1221-19-0363-W-1, 2019 MSPB LEXIS 2747 (M.S.P.B. July 29, 2019) (Decision). He alleges that OSC retaliated against him in violation of 5 U.S.C. § 2302 by failing to complete an investigation of the Fall 2016 complaint and by failing to “reconsider” that com- plaint in 2018. S.A. 44. II In the petitioned IRA appeal, OSC moved for a juris- dictional determination, arguing that the Board lacked ju- risdiction because Mr. Wine “failed to nonfrivolously allege: (1) that OSC subjected him to an appealable action; or (2) that OSC subjected him to a covered personnel action in retaliation for his protected whistleblowing activity.” De- cision at *2–3. The Administrative Judge ordered Mr. Wine to show cause why the IRA appeal should not be dis- missed for lack of jurisdiction, directing Mr. Wine to ex- plain in particular how “OSC’s investigations or

1 “S.A.” refers to the pages of the respondent’s sup- plemental appendix attached to the respondent’s brief. Case: 20-1006 Document: 35 Page: 4 Filed: 05/21/2020

prosecutorial decisions were personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A).” Decision at *3. Mr. Wine argued that OSC’s failure to investigate qual- ified as a personnel action under § 2302(a)(2)(A)(xii) be- cause it “effectuated a ‘significant change in working conditions’ for [Mr. Wine] by allowing FWS managers to dismiss harassment grievances against themselves and in- terfere with [Mr. Wine’s] Workers’ Compensation claim to have it denied unlawfully.” Decision at *4 (quoting S.A. 45, itself quoting § 2302(a)(2)(A)(xii)). Mr. Wine argued that OSC’s actions were a prohibited personnel practice in vio- lation of § 2302(b)(12) because, in his view, OSC had an ob- ligation to investigate his claims under 5 U.S.C. § 1214(a), and not doing so would violate his due process rights. De- cision at *4–5. The Administrative Judge rejected these arguments, holding that the Board has no authority to enforce OSC’s statutory requirements to investigate allegations of whis- tleblower reprisal. Decision at *5–6 (citing Wren v. Merit Sys. Prot. Bd., 681 F.2d 867, 871–72, (D.C. Cir. 1982); Mil- ler v. Dep’t of Homeland Sec., 111 M.S.P.R. 325, 332–33 (2009)). The Administrative Judge explained that “[OSC’s] investigations and decisions are not personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A), even though they may be of interest to [Mr. Wine] and to his ca- reer with FWS.” Decision at *6. Mr. Wine did not petition for appeal to the full Board. The Administrative Judge’s initial decision became the Board’s final decision and Mr. Wine timely petitioned this Court for review. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9). III We set aside a final Board decision only if it is arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures Case: 20-1006 Document: 35 Page: 5 Filed: 05/21/2020

WINE v. MSPB 5

required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). We review the Board’s determination that it lacks jurisdiction without deference. Id. However, we review the underlying factual findings on which a jurisdictional deter- mination is based for substantial evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The petitioner, Mr. Wine, bears the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. Stoyanov v. Dep’t of Navy, 474 F.3d 1377, 1379 (Fed. Cir. 2007). We find no error in the Board’s dismissal for lack of ju- risdiction. “The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted ju- risdiction by law, rule, or regulation.” Id. To establish the Board’s jurisdiction over an IRA appeal, petitioners must identify non-frivolous allegations that (1) they engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. §§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D); and (2) the protected 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). Id. at 1379–80; see 5 U.S.C. § 1221(a). “[N]ot every agency action is a ‘person- nel action’ under the WPA.” King v. Dep’t of Health & Hu- man Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998). We agree with the Board that Mr. Wine has not sufficiently alleged a “personnel action as defined by 5 U.S.C. § 2302(a).” Stoyanov, 474 F.3d at 1380. Mr. Wine alleged that OSC took a personnel action un- der the “catch-all” provision, 5 U.S.C. § 2302(a)(2)(A)(xii), by failing to investigate his complaint. See S.A. 45. To es- tablish a personnel action under this provision, Mr. Wine would have to identify a “significant change in duties, re- sponsibilities, or working conditions” caused by OSC’s al- legedly improper inaction. § 2302(a)(2)(A)(xii). The circumstances here preclude any reasonable allegation Case: 20-1006 Document: 35 Page: 6 Filed: 05/21/2020

that OSC’s failure to investigate created a “significant change” in Mr. Wine’s working conditions. Because Mr. Wine did not work for OSC, OSC had no direct authority to change Mr. Wine’s working conditions. Claims that OSC’s actions can cause a “significant change” in Mr. Wine’s working conditions—when he was employed by FWS, not OSC—rest on a dubious foundation. Moreover, OSC’s alleged failure to investigate logically cannot have changed Mr. Wine’s working conditions. Any hostile working conditions Mr. Wine experienced at FWS must have existed before he even complained to OSC, else he would have had no grounds for a complaint. Thus, ei- ther OSC has not yet been given adequate notice of Mr. Wine’s allegations, or any failure to act by OSC only maintained the status quo. OSC’s hypothetical ability to improve the status quo by investigating Mr. Wine’s allega- tions and recommending corrective action does not give the Board jurisdiction over an IRA appeal involving OSC. Cf. Wren v. Merit Sys. Prot. Bd., 681 F.2d 867, 871–72 (D.C. Cir. 1982) (holding that the Board has no authority to en- force OSC’s statutory requirement to investigate whistle- blower reprisals). The Whistleblower Protection Act offers Mr. Wine the opportunity to resolve any allegations he believes were not adequately investigated by OSC through filing an IRA ap- peal directed to FWS’s actions. Mr. Wine invoked that right for the Fall 2016 complaint already, as discussed in the 2017 IRA Decision. See Section I, supra. If any allega- tions were not exhausted before that IRA appeal—thereby depriving the Board of jurisdiction over those allegations in that appeal—the lack of jurisdiction was not for OSC’s failure to investigate or take action, but for Mr. Wine’s fail- ure to make those allegations to OSC with adequate Case: 20-1006 Document: 35 Page: 7 Filed: 05/21/2020

WINE v. MSPB 7

specificity. 2 After all, the OSC need not act for aggrieved persons to have exhausted their remedies before OSC. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993) (“[I]f no action has been taken by the OSC within 120 days . . . [an] employee [may] seek corrective action from the Board.”) (citing 5 U.S.C. § 1214(a)(3)(B)). Any IRA ap- peal Mr. Wine may still have lies against FWS, not OSC. Establishing Board jurisdiction in such an appeal may re- quire a new OSC complaint specifically making the unex- hausted allegations, if Mr. Wine has a basis for such a complaint despite having already been separated from FWS. Because the Board did not err in finding that Mr. Wine failed to identify a qualifying personnel action that OSC had taken against him, we affirm the Board’s dismissal of his appeal. AFFIRMED No costs.

2 In that appeal, the Administrative Judge also found that—assuming Mr. Wine had exhausted the allega- tions made here—those allegations were “discrete, unre- lated events, which taken together, do not constitute impermissible alterations in the terms and conditions of his employment.” Wine, 2017 MSPB LEXIS 5121 at *51. So, even if Mr. Wine’s allegations were properly raised against OSC, they would still not yield non-frivolous alle- gations of a personnel action under § 2302(a)(2)(A)(xii).