Tracye D. Garvin v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRACYE D. GARVIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-1083
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-17-0550-W-1.
______________________
Decided: June 11, 2018
______________________
T RACYE D. G ARVIN, Lanham, MD, pro se.
T REYER AUSTIN M ASON-G ALE , Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by K ATHERINE M.
SMITH .
______________________
Before L OURIE, CHEN, and STOLL , Circuit Judges.

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GARVIN v. MSPB 2
P ER CURIAM .
Tracye D. Garvin (“Garvin”) petitions for review of the
final order of the Merit Systems Protection Board (“the
Board” or “MSPB”) dismissing her Individual Right of
Action (“IRA”) appeal under 5 U.S.C. § 1221(a) for lack of
jurisdiction. See Garvin v. Dep’t. of Transp., No. DC-1221-
17-0550-W-1, 2017 WL 3872692 (M.S.P.B. Aug. 30, 2017)
(Resp’t App. (“R.A.”) 1–27). Because the Board correctly
concluded that it lacked jurisdiction over Garvin’s appeal,
we affirm.
BACKGROUND
Garvin is employed as an Administrative Staff Assis-
tant with the Department of Transportation (“DOT”),
National Highway Traffic Safety Administration, Office of
Civil Rights (the “Agency”), in Washington, DC. R.A. 2.
On April 12, 2016, Garvin requested that the Office of
Inspector General (“OIG”) at DOT conduct a “Retaliation
Whistleblower Act Investigation” regarding her supervi-
sor, Regina Morgan (“Morgan”). Id. On May 12, 2016,
DOT OIG determined it did not have authority over
Garvin’s complaint and referred her to the Office of Spe-
cial Counsel (“OSC”). Id. On May 31, 2016, Garvin filed
a complaint with OSC (“Initial OSC Complaint”) alleging
that the Agency, specifically Morgan, had retaliated
against her for whistleblowing and violations of 5 U.S.C.
§ 2302(b)(4), (b)(8), (b)(9), and (b)(12). Id.; R.A. 41. On
October 21, 2016, Garvin requested to amend her initial
OSC complaint to include “continued retaliation and
managerial abuse” by Morgan (“Amended OSC Com-
plaint”). R.A. 47.
Before the OSC, Garvin alleged that her supervisor
retaliated against her for disclosing the following actions
to several managerial officials: (D1) Morgan, or someone
acting on her behalf, contacted Garvin’s doctor via a
March 21, 2016 letter claiming to have video from various
dates in January 2016, of Garvin using her injured right

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GARVIN v. MSPB 3
hand; (D2) Garvin’s worker’s compensation benefits were
stopped in January 2016; (D3) Morgan failed to
acknowledge or refused medical documentation between
January and March 2016; (D4) Morgan attempted to note
Garvin as absent without leave (“AWOL”) in the Agency’s
time system; (D5) Morgan attempted to have Garvin take
on responsibilities of an EO Specialist; (D6) Morgan
denied Garvin’s request to return to work on March 14,
2016, for four hours a day with medical limitations; (D7)
Morgan required Garvin to use annual leave and refused
worker’s compensation pay; (D8) Morgan, or someone on
her behalf, contacted Garvin’s doctor and inquired about
Garvin’s medical situation between November 2015 and
March 2016; (D9) Morgan requested that Garvin sign a
release of medical information; (D10) Morgan falsely
accused Garvin of inappropriately leaving documents
containing personal identifying information in her trash
can; (D11) Morgan stated that Garvin lacked etiquette
and abused personal phone calls without providing evi-
dence; (D12) Morgan presented worker’s compensation
staff with a different reason for medical injury; (D13)
Morgan required Garvin to sign in and out while not
requiring others to do so; (D14) Morgan required Garvin
to attend mandatory conflict resolution training despite
Garvin’s claim that it is not part of her duties or responsi-
bilities; and (D15) Morgan violated federal laws, rules,
policies, practices, and procedures in her and other staff
members’ improper time and attendance practices, includ-
ing teleworking.
Garvin also alleged that Morgan retaliated against
her for engaging in the following activities: (A1) becoming
a bargaining unit employee in August 2015; (A2) filing
union grievances in November and December 2015 con-
cerning Morgan’s requirement for Garvin to sign in and
out of work; (A3) filing an Equal Employment Opportuni-
ty (“EEO”) complaint in December 2015; (A4) filing a
complaint with the Agency’s OIG in April 2016; and (A5)

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GARVIN v. MSPB 4
answering interrogatories in October 2015 for a col-
league’s EEO complaint against Morgan.
On March 9, 2017, OSC made a preliminary determi-
nation based on Garvin’s Initial OSC Complaint to close
its investigation but provided her with an opportunity to
respond to its findings. R.A. 62–67. Garvin responded to
OSC’s preliminary determination stating that she be-
lieved OSC failed to address all of her claims in her Initial
and Amended OSC Complaints and requested that OSC
conduct an investigation into the issues that were not
originally considered. In addition to her response, Garvin
provided a copy of her Amended OSC Complaint.
On March 31, 2017, OSC notified Garvin of its deci-
sion to cease its investigation into her claims of retalia-
tion but informed her that she had a right to file an IRA
appeal at the MSPB. R.A. 73–77. OSC also informed
Garvin that it had no record of having received her
Amended OSC Complaint until she included it with her
OSC response. R.A. 73. OSC explained that the Amend-
ed OSC Complaint did not alter its determinations to
close the investigation and that new allegations contained
therein would have to be filed as a new complaint to the
extent they contained new claims of personnel actions.
R.A. 73–74.
On May 30, 2017, Garvin filed an IRA appeal at the
MSPB. Garvin’s IRA appeal essentially summarized her
Initial and Amended OSC Complaints and her reply to
OSC’s final determination, and argued that OSC had
failed to thoroughly analyze her complaints. The MSPB
administrative judge (“AJ”) issued an order instructing
Garvin to submit evidence and argument establishing
that her claims fell within the Board’s jurisdiction.
After considering Garvin’s response and the Agency’s
request to dismiss the appeal, the AJ issued an initial
decision dismissing the appeal for lack of jurisdiction.
The AJ determined that Garvin did not make any no-

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GARVIN v. MSPB 5
frivolous allegations of fact that, if proven, would estab-
lish the Board’s jurisdiction over her appeal and/or failed
to administratively exhaust her remedies with OSC.
Specifically, the AJ found that Garvin failed to adminis-
tratively exhaust or make a nonfrivolous claim of a pro-
hibited personnel practice under 5 U.S.C. § 2302(b)(4) and
(b)(12). With respect to 5 U.S.C. § 2302(b)(8) and (b)(9),
the AJ determined that Garvin failed to nonfrivolously
allege an abuse of authority or gross mismanagement by
Morgan with respect to D1–D14; a violation of law, rule,
or regulation (D15); or a protected activity with respect to
A1–A3. The AJ further held that although Garvin non-
frivolously alleged that she engaged in protected activities
with respect to A4 and A5 under 5 U.S.C. §§ 1221(a),
2302(b)(9)(B)–(C), she had not nonfrivolously alleged that
the protected activities were a contributing factor in the
Agency’s action. Neither party filed a petition for review
by the full Board, and the AJ’s decision became the final
decision of the Board on October 4, 2017.
Garvin timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review a determination of
the Board’s jurisdiction de novo as a question of law, and
review underlying factual findings for substantial evi-
dence. See Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1334 (Fed. Cir. 2008). A finding is supported by substan-
tial evidence if a reasonable mind might accept the evi-
dence to support the finding. Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). The MSPB has jurisdic-
tion over an IRA appeal if a petitioner has exhausted all

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GARVIN v. MSPB 6
administrative remedies and makes nonfrivolous allega-
tions that the petitioner made a protected disclosure or
engaged in a protected activity that was a contributing
factor to the personnel action taken or proposed. Piccolo
v. Merit Sys. Prot. Bd., 869 F.3d 1369, 1371 (Fed. Cir.
2017). As the appellant before the Board, Garvin bore the
burden of establishing the Board’s jurisdiction by a pre-
ponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A).
Garvin argues that the Board erred in determining
that it lacked jurisdiction over her claims. Garvin alleges
violations of 5 U.S.C. § 2302(b)(2), (b)(4)–(6), (b)(8), (b)(9),
and (b)(12) on appeal. Garvin contends that she exhaust-
ed her administrative remedies for all claims. Garvin
further argues that she “show[ed] a nexus between her
prior protected activities” and Morgan’s “prohibited
personnel practice violations” based on a “close time-
frame.” Pet’r Br. 4.
The government responds that the Board properly
dismissed Garvin’s appeal for lack of jurisdiction. The
government contends that the Board lacks jurisdiction
over claims under § 2302(b)(2), (b)(4)–(6), and (b)(12),
pursuant to 5 U.S.C. § 1221, the only basis for jurisdiction
Garvin identified before the MSPB. The government
argues that the Board properly dismissed her remaining
claims for failure to nonfrivolously allege that her disclo-
sures and activities were protected and/or a contributing
factor to the Agency’s actions.
We agree with the government that the Board lacked
jurisdiction over claims pursuant to § 2302(b)(2), (b)(4)–
(6), and (b)(12) in this case. Garvin invoked the Board’s
jurisdiction pursuant to 5 U.S.C. § 1221(a), which grants
the Board jurisdiction over appeals from “an employee . . .
with respect to any personnel action taken, or proposed to
be taken, against such employee . . . as a result of a pro-
hibited personnel practice described in section 2302(b)(8)
or section 2302(b)(9)(A)(i), (B), (C), or (D).” Thus, the

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GARVIN v. MSPB 7
Board could only order corrective action for violations of
§ 2302(b)(8) and (b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C.
§ 1221(e)(1); see also Hicks v. Merit Sys. Prot. Bd., 819
F.3d 1318, 1320 (Fed. Cir. 2016).
To the extent that Garvin seeks to rely on a basis for
Board jurisdiction other than § 1221, her failure to raise
the issue before the Board precludes her from doing so in
the first instance on appeal. See Wallace v. Dep’t of Air
Force, 879 F.2d 829, 832 (Fed. Cir. 1989) (“Ordinarily,
appellate courts refuse to consider issues not raised before
an administrative agency.”). Moreover, the Supreme
Court’s decision in Securities & Exchange Commission v.
Chenery Corp., 318 U.S. 80 (1943), does not preclude our
affirmance on this alternative purely legal jurisdictional
ground. See Grabis v. Office of Pers. Mgmt., 424 F.3d
1265, 1270 (Fed. Cir. 2005) (“Chenery does not apply if
there is no room for the agency to exercise discretion in
deciding the legal issue under review.”).
We also agree with the government that the AJ did
not err in determining that Garvin failed to nonfrivolously
allege that her disclosures were protected. Section
2302(b)(8)(A) protects non-prohibited disclosures of infor-
mation by an employee which the employee “reasonably
believes evidences”: “(i) any violation of any law, rule, or
regulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety.” To determine whether
an employee had a reasonable belief that her disclosures
were protected, we ask: “could a disinterested observer
with knowledge of the essential facts known to and readi-
ly ascertainable by the employee reasonably conclude that
the actions of the government evidence” one of the catego-
ries of wrongdoing listed in § 2302(b)(8)(A)? Lachance v.
White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
Before the Board, Garvin alleged that her D1–D14
disclosures evidenced an abuse of authority or gross

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GARVIN v. MSPB 8
mismanagement. The Board has defined an “abuse of
authority” as an “arbitrary or capricious exercise of power
by a federal official or employee that adversely affects the
rights of any person or that results in personal gain or
advantage to himself or to preferred other persons,”
Ramos v. Dep’t of Treasury, 72 M.S.P.R. 235, 241 (1996)
(internal quotation marks omitted), and “gross misman-
agement” as “a management action or inaction that
creates a substantial risk of significant adverse impact
upon the agency’s ability to accomplish its mission,”
Embree v. Dep’t of the Treasury, 70 M.S.P.R. 79, 85 (1996).
To establish gross mismanagement, “an employee must
disclose such serious errors by the agency that a conclu-
sion the agency erred is not debatable among reasonable
people,” and the matter that is the subject of the disclo-
sure must be “significant.” White v. Dep’t of Air Force, 391
F.3d 1377, 1382 (Fed. Cir. 2004).
Substantial evidence supports the AJ’s findings that a
disinterested observer could not reasonably conclude that
Morgan’s alleged actions per Garvin’s D1–D14 disclosures
were an arbitrary and capricious exercise of power to
negatively affect Garvin’s rights or result in personal gain
or advantage to Morgan or someone else, or created a
substantial risk of significant adverse impact upon the
Agency’s ability to accomplish its mission. Garvin has not
pointed us to any evidence in the record that calls the AJ’s
findings into question or identified a legal error. We thus
agree that the Board lacked jurisdiction over these claims.
Similarly, we find no error in the AJ’s determination
that Garvin has not nonfrivolously alleged a violation of a
law, rule, or regulation. Garvin has not identified a law,
rule, or regulation that she alleges was violated, or identi-
fied, with any specificity, who allegedly submitted false
attendance records or failed to provide telework product
and when the alleged violation occurred. We thus agree
with the AJ that her conclusory and vague D15 disclosure
is insufficient to support jurisdiction. Cf. Johnston v.

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GARVIN v. MSPB 9
Merit Sys. Prot. Bd., 518 F.3d 905, 910 (Fed. Cir. 2008)
(“[Petitioner]’s disclosures are not the sort of vague,
conclusory or facially insufficient allegations of govern-
ment wrong-doing that fail to provide an adequate juris-
dictional predicate under the WPA.”).
We next address Garvin’s allegedly protected action
claims. Section 2302(b)(9) prohibits an employee with the
requisite authority from:
tak[ing] or fail[ing] to take, or threaten[ing] to
take or fail to take, any personnel action against
any employee or applicant for employment be-
cause of--
(A) the exercise of any appeal, complaint,
or grievance right granted by any law,
rule, or regulation--
(i) with regard to remedying a vio-
lation of paragraph (8); or
(ii) other than with regard to rem-
edying a violation of paragraph
(8);
(B) testifying for or otherwise lawfully as-
sisting any individual in the exercise of
any right referred to in subparagraph
(A)(i) or (ii);
(C) cooperating with or disclosing infor-
mation to the Inspector General (or any
other component responsible for internal
investigation or review) of an agency, or
the Special Counsel, in accordance with
applicable provisions of law; or
(D) refusing to obey an order that would
require the individual to violate a law,
rule, or regulation[.]

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GARVIN v. MSPB 10
We agree with the government that the AJ did not err
in determining that Garvin’s allegations based on her
union membership (A1), filing of union grievances (A2),
and filing of an EEO complaint (A3) failed to nonfrivolous-
ly allege a protected activity. As the AJ stated, “member-
ship in a union is not an activity protected pursuant to
section 2302(b)(9).” R.A. 18. We also agree with the AJ
that the substance of the A2 and A3 actions alleged fall
under § 2302(b)(9)(A)(ii), and thus the Board lacked
jurisdiction over them in this IRA appeal. See 5 U.S.C.
§ 1221 (not including § 2302(b)(9)(A)(ii) in the grant of
MSPB IRA jurisdiction).
Additionally, substantial evidence supports the AJ’s
finding that Garvin failed to nonfrivolously allege that the
A4 and A5 activities were a contributing factor to the
Agency’s actions. “An employee may demonstrate that
the disclosure or protected activity was a ‘contributing
factor’ through circumstantial evidence that ‘the official
taking the personnel action knew of the disclosure’ and
the ‘action occurred within a period of time such that a
reasonable person could conclude’ the disclosure contrib-
uted to the action.” Piccolo, 869 F.3d at 1371 (quoting 5
U.S.C. § 1221(e)(1)). Garvin does not specifically allege
that Morgan was aware of her involvement in her co-
worker’s EEO complaint or her OIG complaint. Although
Garvin alleges a “close timeframe” between her protected
activities and Morgan’s allegedly prohibited personnel
practices, Pet’r Br. 4, “closeness in timing, in and of itself,
is not sufficient as a nonfrivolous allegation that the
protected [activity] was a contributing factor to the ad-
verse personnel action.” Kerrigan v. Merit Sys. Prot. Bd.,
833 F.3d 1349, 1354 (Fed. Cir. 2016), cert. denied, 137 S.
Ct. 2180 (2017).
We have considered Garvin’s remaining arguments
and find them unpersuasive.

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GARVIN v. MSPB 11
CONCLUSION
For the foregoing reasons, we affirm the Board’s deci-
sion dismissing Garvin’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.

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