Christopher R. Chin-Young v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTOPHER R. CHIN-YOUNG,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1590
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-17-0013-W-1.
______________________
Decided: November 14, 2023
______________________
CHRISTOPHER CHIN-Y OUNG, Tallahassee, FL, pro se.
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before D YK, CHEN, and STOLL , Circuit Judges.
P ER CURIAM .
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CHIN- YOUNG v. MSPB 2
Christopher Chin-Young (petitioner), appearing pro se,
petitions for review of the Merit Systems Protection Board
(MSPB or Board) dismissing his appeal for lack of jurisdic-
tion. We affirm.
BACKGROUND
I
On June 26, 2014, petitioner, an employee of the Army,
was issued orders to deploy to Camp Atterbury, Indiana
and Kabul, Afghanistan and was scheduled to serve a 14-
month tour as an Advisor to the International Security As-
sistance Force (ISAF). The ISAF was a NATO-led security
mission in Afghanistan, established by the United Nations
Security Council. Petitioner arrived in Afghanistan on
July 3, 2014, and reported to work.
On August 11, 2014, petitioner sent an email to six in-
dividuals, including Air Force Colonel Andrew Gale, asking
for information related to a contract with DRS Technolo-
gies, a contractor, and how a contracting officer’s repre-
sentative (COR) “c[ould] unilaterally award (incentive)
fixed fees without a technical assessment.” S.A. 42. Later
that same day, petitioner sent a follow-up email alleging
that he collected “some evidence of fraud.” S.A. 42. On
August 12, 2014, one of the recipients of petitioner’s emails
responded requesting documentation to support peti-
tioner’s allegations of fraud. S.A. 44. It appears that peti-
tioner did not respond to the email or provide evidence of
the alleged fraud.
On August 23, 2014, Dr. Catherine Warner, who peti-
tioner alleges is an employee of the Department of Defense,
recommended that petitioner be redeployed to the United
States because petitioner “demonstrated an inability to ad-
just to the changing environment of the NATO ISAF to
RSM transition, has caused Senior Leaders to question his
ability to perform Ministerial Advising and guardian angel
duties, and has been a negative influence to other team
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CHIN- YOUNG v. MSPB 3
members.” S.A. 8–9. On August 28, 2014, Petitioner was
ordered to redeploy to the United States. That same day,
petitioner wrote an email to an Army official claiming he
was targeted by Dr. Warner for, among other things, “illu-
minating the discrepancies and irregularities with [the]
C4ISR contract with DRS (prime) and relaying to them ac-
counts of fraudulent reporting and improper contract
claims.” S.A. 55.
II
On February 10, 2015, Petitioner filed a complaint with
the Office of Special Counsel (OSC) listing the Department
of Defense (DOD) as the responding agency. S.A. 110–14.
Petitioner’s complaint alleged “Fraudulent Hire of Cathe-
rine Warner” using “Direct-Hire Authority.” S.A. 113–114.
Petitioner later clarified that he alleged Dr. Warner was
also improperly promoted and unlawfully kept in her posi-
tion past the set term limit. On August 26, 2015, OCS no-
tified petitioner that it was closing its inquiry into the
February 10th complaint. OSC found petitioner’s allega-
tion that the DOD unlawfully appointed Dr. Warner to
Senior Executive Status to “have no basis for further in-
quiry.” S.A. 103–104. OSC also determined it could not
address the improper promotion and unlawful employment
past the term limit allegations because “the information
[petitioner] initially provided only clearly presented an al-
legation involving [Dr.] Warner’s DHA appointment.” S.A.
104.
Petitioner filed a second complaint with OSC on or
around March 31, 2016, again listing the “unlawful hiring
and placement actions” from his previous complaint to
OSC. S.A. 97–98, 100. In addition, petitioner alleged re-
taliation by Dr. Warner for petitioner’s Whistleblower Pro-
tection Act disclosures.
On August 16, 2016, OSC advised petitioner of its pre-
liminary decision to close its investigation. OSC found that
petitioner’s allegations regarding Dr. Warner’s
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CHIN- YOUNG v. MSPB 4
employment were addressed in petitioner’s earlier com-
plaint. OSC concluded that petitioner did not provide any
new evidence and information, and the original allegations
were too vague and speculative to justify conducting an in-
vestigation. OSC determined petitioner’s Whistleblower
Protection Act (WPA) allegations did not constitute WPA
violations because the alleged disclosures were not pro-
tected disclosures.
On October 6, 2016, petitioner filed an Individual Right
of Action (IRA) appeal with the MSPB. Petitioner alleged
that he disclosed “contract fraud etc made on 14 August
2014 to PM/KO, leaders, IG – two weeks later Dr. Warner
issued a memo of negative suitability determination and
recommendation for immediate redeployment[;] Curtail-
ment of ISAF assignment; & const [sic] suspension.” S.A.
26.
In response to the Board’s Order on Jurisdiction and
Proof Requirements, petitioner submitted a “Statement of
Facts,” alleging that “[o]n or about 12 August 2014, [peti-
tioner] discovered contract anomalies including fraud,
waste, and abuse with the prime DoD contract for ICT
products and services [provided] to GiROA MOI ICT.” S.A.
116. Petitioner further alleged he made these disclosures
to various officials and that he was reassigned by Dr.
Warner in retaliation. Id. Petitioner’s appeal to the Board
listed the DOD as the responding agency. S.A. 25. The
Board designated the Army as the proper agency since pe-
titioner was an Army employee.
Ultimately, the Board determined that it lacked juris-
diction over petitioner’s WPA claims because petitioner
failed to exhaust such claims with the OSC. Petitioner pe-
titions for review.
We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A).
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CHIN- YOUNG v. MSPB 5
D ISCUSSION
I
“We must affirm the Board’s decision unless we find it
to be arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; obtained without proce-
dures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence.” Cam-
pion v. M.S.P.B., 326 F.3d 1210, 1212 (Fed. Cir. 2003) (first
citing 5 U.S.C. § 7703(c); and then citing Kewley v. Dep’t of
Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998)). “Whether the Board has jurisdiction to adjudicate
an appeal is a question of law that we review de novo,”
Campion, 326 F.3d at 1212, but we review the Board’s un-
derlying factual findings for substantial evidence. Bolton
v. M.S.P.B., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The pe-
titioner has the burden of establishing the Board’s jurisdic-
tion by a preponderance of the evidence. See Campion, 326
F.3d at 1212–13.
[I]n order to establish the Board’s jurisdiction over
[an] IRA appeal, [the petitioner] had to show by
preponderant evidence that (1) he engaged in whis-
tleblowing activity by making a disclosure pro-
tected by 5 U.S.C. § 2302(b)(8); (2) the agency took
or threatened to take a “personnel action” against
him as defined in 5 U.S.C. § 2302(a)(2)(A); (3) he
sought corrective action from OSC; and (4) he ex-
hausted corrective action proceedings before OSC.
Serrao v. M.S.P.B., 95 F.3d 1569, 1574 (Fed. Cir. 1996).
“For the exhaustion remedy to serve its intended purpose,
. . . the employee must inform the Special Counsel of the
precise ground of his charge of whistleblowing.” Ward v.
M.S.P.B., 981 F.2d 521, 526 (Fed. Cir. 1992); see also El-
lison v. M.S.P.B., 7 F.3d 1031, 1037 (Fed. Cir. 1993) (noting
“the need for an employee to articulate with reasonable
clarity and precision the basis for his request for corrective
action under the WPA”).
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CHIN- YOUNG v. MSPB 6
We agree with the Board that petitioner failed to pre-
sent his whistleblower claims based on his disclosures of
contract fraud to the OSC. His first complaint to OSC did
not allege contract fraud—it only alleged that Dr. Warner
was improperly hired, exceeded the term limit of her posi-
tion, and was improperly promoted. While petitioner’s sec-
ond complaint to OSC made vague mentions of contract
irregularities, it did not mention contract fraud.
The Board did not err in deciding that petitioner failed
to inform OSC with the required particularity and clarity
of the basis for his request for corrective action based on
fraud under the WPA and that the Board lacked jurisdic-
tion.1
II
Petitioner also argues that the Board erred in substi-
tuting the Department of the Army as the responding
agency and that correcting this error would somehow cure
the jurisdictional defect. Petitioner contends that the DOD
is the proper agency because Dr. Warner, who petitioner
contends retaliated against him, was an employee of the
DOD.
The Board determined the Department of the Army
was the proper agency because it was petitioner’s em-
ployer. Petitioner does not now contest the Board’s deter-
mination that he was an employee of the Department of the
Army and that the Army would be responsible for
1 We note that in a related case petitioner alleged
that he made protected disclosures of “fraud, waste, and
abuse of funds.” Chin-Young v. Dep’t of the Army, No. 2023-
1510, 2023 WL 6135788, at *4 (Fed. Cir. Sept. 20, 2023).
In that case, we held that “the Board did not err by con-
cluding there was no whistleblower retaliation” based on
these disclosures. Id. at *3.
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CHIN- YOUNG v. MSPB 7
corrective action. The Board correctly determined that the
Army was the proper responding agency.
AFFIRMED
COSTS
No Costs.
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