Standley v. MSPB
17-2082
| Fed. Cir. | Nov 13, 2017Background
- Petitioner Vaughn Standley filed a second OSC complaint (Dec 2015) alleging retaliation by DOE for a Sept 23, 2015 letter and other protected activity; OSC closed the file after a preliminary determination.
- The OSC treated many of Standley’s disclosures as policy disagreements (SABRS3), not protected whistleblowing, and declined further action.
- Standley raised additional allegations in his response to OSC’s preliminary determination (including retaliation for filing a grievance, prior OSC complaint, and an MSPB IRA appeal) that OSC had not previously investigated.
- Instead of filing a new OSC complaint as OSC advised, Standley filed an IRA appeal with the MSPB; the administrative judge dismissed most claims for lack of jurisdiction.
- The AJ deferred to OSC’s conclusions about issues OSC had considered and found Standley failed to exhaust OSC remedies or to non-frivolously allege protected disclosures for the remaining claims.
- The Federal Circuit affirmed, holding MSPB lacked jurisdiction because Standley failed to give OSC sufficient, timely detail to permit investigation (exhaustion required by 5 U.S.C. §1214(a)(3)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over IRA claims when OSC was not given sufficient detail to investigate | Standley: AJ improperly required precise details of each disclosure; his OSC submissions and letter sufficed to exhaust remedies | Government: OSC never had a sufficient, timely basis to investigate new allegations raised only in Stanley’s response; exhaustion not met | Court: No jurisdiction; exhaustion inadequate because core allegations were not presented to OSC in the complaint period |
| Whether copying OSC on the Sept. 23, 2015 letter constituted a protected disclosure under §2302(b)(9)(C) | Standley: copying OSC on the letter was a protected disclosure and led to retaliation | OSC/DOE: The letter concerned policy (SABRS3) not a violation of law; OSC concluded it was a policy dispute | Court: Not sufficiently alleged to OSC with precision; AJ appropriately found it a policy dispute and lacked jurisdiction |
| Whether retaliation for filing a grievance / prior OSC complaint / prior IRA appeal is actionable | Standley: those are protected activities under §2302(b)(9)(A)(i) and caused adverse action | Government: These allegations were first raised late in response to preliminary determination and were not in the OSC complaint; OSC could not investigate them | Court: Claims not exhausted before OSC; dismissal for lack of jurisdiction affirmed |
| Whether Briley controls to find exhaustion despite less detail in OSC filings | Standley: Briley supports finding the OSC complaint contained the core of his retaliation claim | Government: Briley is distinguishable; Standley’s OSC filings lacked the core allegations necessary to investigate | Court: Briley distinguishable; here the OSC filings did not contain the core of the claim, so exhaustion failed |
Key Cases Cited
- Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905 (Fed. Cir.) (standard of review for MSPB jurisdictional legal questions)
- Harris v. Department of Veterans Affairs, 142 F.3d 1463 (Fed. Cir.) (petitioner bears burden to show MSPB error)
- Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569 (Fed. Cir.) (exhaustion judged by OSC complaint, not later MSPB characterization)
- Ward v. Merit Sys. Prot. Bd., 981 F.2d 521 (Fed. Cir.) (employee must inform OSC of the precise ground for a WPA claim)
- Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031 (Fed. Cir.) (sufficiency of OSC complaint controls exhaustion analysis)
- Briley v. National Archives & Records Administration, 236 F.3d 1373 (Fed. Cir.) (an OSC complaint containing the core of the claim can satisfy exhaustion even if later expanded before the AJ)