Miller v. Merit Systems Protection Board
626 F. App'x 261
Fed. Cir.2015Background
- Robert M. Miller, an FDIC economic analyst, received a Letter of Warning in 2011 after alleged harassing comments and pursued Step 1–3 grievance proceedings alleging investigative flaws and inadequate FDIC harassment policy/training.
- Miller sought relief including participation in a working group to revise FDIC harassment procedures, an audit for promotion, promotion, and expungement; grievances were denied.
- Miller separately emailed the FDIC Internal Ombudsman and Acting Chairman Gruenberg about alleged procedural failures but did not include those communications in his OSC complaint.
- Miller filed an OSC complaint alleging retaliation based on disclosures made in the grievance process; OSC declined to pursue and closed the file.
- Miller appealed to the MSPB asserting an Individual Right of Action (IRA). The Board and Administrative Judge dismissed for lack of jurisdiction, concluding Miller’s grievance disclosures were governed by 5 U.S.C. § 2302(b)(9) (grievance/complaint rights) not § 2302(b)(8) (whistleblowing), and that WPEA expansions were not retroactive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller exhausted OSC remedies for disclosures to the Internal Ombudsman and Acting Chairman Gruenberg | Miller: OSC should be deemed to have had or would have had those disclosures; exhaustion requirement was not met due to OSC conduct | Gov: Statutory exhaustion is required; Miller never presented those disclosures to OSC and pro se status doesn't excuse it | Held: Miller failed to exhaust; disclosures not raised before OSC, so cannot establish Board jurisdiction |
| Whether disclosures made solely in grievance proceedings can be treated as § 2302(b)(8) whistleblowing | Miller: Some grievance disclosures sought correction of agency policy and thus qualify as § 2302(b)(8) protected whistleblowing | Gov: Disclosures made in the context of grievance proceedings are properly treated as § 2302(b)(9) and cannot be transformed into § 2302(b)(8) for jurisdictional purposes | Held: Disclosures made solely during grievance proceedings are § 2302(b)(9), not § 2302(b)(8); Board lacks IRA jurisdiction under pre‑WPEA law |
| Effect of WPEA amendments (expanding Board jurisdiction to § 2302(b)(9)(A)(i)) given Miller’s pre‑WPEA disclosures | Miller did not contest the Board’s nonretroactivity holding | Gov: WPEA is not retroactive; pre‑WPEA jurisdictional rules govern | Held: Court assumed WPEA not retroactive (as Miller did not challenge); Board dismissal affirmed on other grounds |
| Whether Board erred as a matter of law in dismissing for lack of jurisdiction | Miller: Board mischaracterized the nature of his disclosures and thus wrongly dismissed | Gov: Board correctly applied precedent distinguishing § 2302(b)(8) vs § 2302(b)(9) and exhaustion rules | Held: No error; dismissal for lack of jurisdiction affirmed |
Key Cases Cited
- Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569 (Fed. Cir. 1996) (disclosures made solely in grievance proceedings cannot serve as § 2302(b)(8) basis for Board IRA jurisdiction)
- Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 (Fed. Cir. 1992) (statutory distinction between whistleblowing reprisals and reprisals for exercising grievance/complaint rights)
- Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031 (Fed. Cir. 1993) (employee must articulate claims with reasonable clarity to OSC; grievance filing does not automatically preclude separate § 2302(b)(8) claims)
- Briley v. National Archives & Records Admin., 236 F.3d 1373 (Fed. Cir. 2001) (Board jurisdiction limited to issues previously raised with OSC; OSC complaint must give OSC a sufficient basis to investigate)