2022 MSPB 44
MSPB2022Background:
- Appellant was a nonappropriated fund (NAF) Supervisory Services Program Specialist at Yokota AFB, Japan.
- Agency proposed removal for on-the-job misconduct but ultimately imposed a 28-day suspension (Sept. 2018).
- Appellant filed an OSC complaint alleging the action was retaliation for protected whistleblowing; OSC closed its inquiry and advised he could appeal to the MSPB.
- Appellant filed an individual right of action (IRA) appeal with the Board; the agency moved to dismiss for lack of jurisdiction based on his NAF status.
- The administrative judge dismissed the appeal for lack of jurisdiction, relying on the Board’s AAFES decision and the Federal Circuit’s Clark decision; the Board denied the petition for review.
- On review the appellant argued for the first time that 10 U.S.C. § 1587 or OSC’s advice conferred Board jurisdiction; the Board rejected these arguments.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over an IRA appeal by a NAF employee | NAF status should not bar an IRA appeal; OSC advised appeal rights; 10 U.S.C. § 1587 protects NAF employees | NAF employees are excluded from the Title 5 "employee" definition, so MSPB lacks jurisdiction under AAFES/Clark | Board lacks jurisdiction; affirmed dismissal |
| Whether WPEA and subsequent statutory amendments changed MSPB jurisdiction for NAF employees | WPEA and later statutes expand whistleblower protections and thus may allow NAF appeals | WPEA and later amendments did not alter 5 U.S.C. § 2105(c)'s exclusion of NAF employees from Board jurisdiction | WPEA and later statutes did not change the AAFES/Clark holdings; jurisdiction still lacking |
| Whether 10 U.S.C. § 1587 creates a right to appeal to MSPB for NAF employees | § 1587 prohibits reprisal and required DoD regs; thus MSPB review is available | § 1587 does not provide or refer to MSPB appeal rights; DoD directives do not grant Board jurisdiction | § 1587 does not confer MSPB appeal rights to NAF employees |
| Whether OSC’s notice of Board appeal rights confers MSPB jurisdiction | OSC telling appellant he could appeal to the Board creates MSPB jurisdiction | Provision of appeal rights by an agency or OSC does not confer jurisdiction where none exists | Board jurisdiction cannot be created by agency/OSC notice; jurisdiction lacking |
Key Cases Cited
- Clark v. Merit Systems Protection Board, 361 F.3d 647 (Fed. Cir. 2004) (affirming that NAF employees lack IRA appeal rights to MSPB)
- Clark v. Army & Air Force Exchange Service, 57 M.S.P.R. 43 (1993) (Board decision holding NAF employees excluded from WPA IRA appeals)
- Taylor v. Department of the Navy, 1 M.S.P.R. 591 (1980) (Title 5 adverse action procedures are laws administered by OPM; NAF employees excluded)
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (MSPB jurisdiction is limited to that granted by law)