McCarthy v. Merit Systems Protection Board, 2016 U.S. App. LEXIS 560

Robert McCarthy was hired as a supervisory attorney at the U.S. International Boundary and Water Commission in January 2009 and authored four legal memoranda in June–July 2009 critical of Commission practices and personnel.
On July 28, 2009 McCarthy reported alleged fraud, waste, and abuse to the State Department OIG and other agencies; he informed his Commissioner by email the same day. Commissioner Ruth terminated McCarthy on July 31, 2009, citing the memoranda and related conduct.
McCarthy filed a whistleblower complaint with the Office of Special Counsel (OSC) in August 2009; his OSC filings identified the July 28 OIG report but did not explicitly identify the four legal memoranda as protected disclosures.
The Merit Systems Protection Board (MSPB) and this court initially denied relief; McCarthy later sought reopening based on the Whistleblower Protection Enhancement Act of 2012 (WPEA), which broadened what qualifies as a protected disclosure.
The MSPB Clerk issued a January 8, 2015 letter denying McCarthy’s motion to reopen; McCarthy sought review, arguing the WPEA made his memoranda protected disclosures and that the Board should have reopened his case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the MSPB Clerk’s letter denying a first motion to reopen is a reviewable “final decision”	McCarthy: The Clerk letter is a substantive final decision denying reopening and is reviewable.	MSPB: Clerk letters are ministerial and not "final decisions" under regulations.	Court: Clerk letter here was a substantive final decision and is reviewable (form should not defeat jurisdiction).
Whether the court can review MSPB denials of motions to reopen premised on a change in law	McCarthy: Board denial of reopening based on change in law is reviewable under APA §706(2)(A).	MSPB: Reopening is committed to agency discretion; §7701(e)(1)(B) lacks standards, so review is precluded by APA §701(a)(2).	Court: Reviewable when denial is premised on change in law; apply arbitrary-and-capricious standard under §706(2)(A).
Whether McCarthy exhausted OSC remedies for the four legal memoranda (jurisdictional prerequisite under 5 U.S.C. §1214)	McCarthy: His August 21 OSC submission discussed the same subjects as the memoranda and sufficed to exhaust OSC remedies.	MSPB: OSC filings identified only the July 28 OIG report (and a July 29 disclosure) and did not provide OSC a sufficient basis to investigate the four memoranda.	Court: McCarthy failed to exhaust OSC remedies as to the memoranda; Board lacked jurisdiction to adjudicate those disclosures; denial of reopening affirmed.

Haines v. Merit Systems Protection Board, 44 F.3d 998 (Fed. Cir. 1995) (Clerk letters denying repetitive motions were ministerial and not final decisions)
Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (APA §701(a)(2) bars review where action is committed to agency discretion)
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (U.S. 2015) (strong presumption favoring judicial review of agency action)
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (§701(a)(2) is narrow; courts need standards to review agency action)
INS v. Yueh-Shaio Yang, 519 U.S. 26 (U.S. 1996) (agency departure from announced policy may be arbitrary and capricious)
Dunlop v. Bachowski, 421 U.S. 560 (U.S. 1975) (agency enforcement decisions reviewable absent statutory prohibition)
Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150 (U.S. 1970) (agency decisions reviewable where statute does not preclude review)
Interstate Commerce Comm’n v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (U.S. 1987) (statute governing reopening with standards can inform reviewability)
Serrao v. Merit Systems Protection Board, 95 F.3d 1569 (Fed. Cir. 1996) (plaintiff bears burden to prove Board jurisdiction by a preponderance)