Nuri v. Merit Systems Protection Board
695 F. App'x 550
| Fed. Cir. | 2017Background
- Nuri, a Department of the Army employee on a term appointment ending October 27, 2015, faced performance concerns in 2015.
- The Army advised him of issues in April 2015 and notified him the term appointment would not be renewed beyond its expiration.
- OSC informed Nuri in 2015 that it closed its investigation but suggested he could pursue MSPB review.
- MSPB administrative judge ruled lack of jurisdiction over the challenged removal as a non-adverse action and dismissed the whistleblower claim for lack of protected disclosures.
- Board affirmed, and the court reviews MSPB jurisdiction de novo while factual findings are reviewed for substantial evidence.
- Nuri argues MSPB had jurisdiction and due process rights, plus jurisdiction over whistleblower reprisal, which the court addresses and rejects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB had jurisdiction over non-renewal as removal | Nuri contends MSPB jurisdiction exists for removal. | Army argues non-renewal upon expiration is an excluded action, not an adverse action. | MSPB lacked jurisdiction; non-renewal is not an adverse action. |
| Whether due process claims survive lack of property interest | Nuri asserts constitutional due process rights in continued employment. | No property right in continued employment on a limited term/at-will basis. | No due process claim; no property interest in continued employment. |
| Whether MSPB has jurisdiction over whistleblower reprisal IRAs | Nuri exhausted OSC remedies and asserted protected disclosures contributed to removal. | Disclosures 2,3,4,6 not protected activities; 1 and 5 not shown as contributing factors. | MSPB lacked jurisdiction; disclosures did not establish contributing factors or protected activity. |
Key Cases Cited
- Reddick v. Federal Deposit Insurance Corp., 809 F.3d 1253 (Fed. Cir. 2016) (non-renewal at expiration not an adverse action; excluded action)
- Stone v. Federal Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999) (due process requires a property right in continued employment)
- Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (jurisdiction for whistleblower reprisal requires exhausted remedies and non-frivolous allegations)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir. 1998) (standard of review for jurisdiction questions is de novo)
- Nuri v. Dep’t of the Army, unreported () (this decision court-specific; included for context in opinion analysis)