Walter Essex v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WALTER ESSEX,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3177
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-15-0205-W-1.
______________________
Decided: December 9, 2015
______________________
WALTER ESSEX , Sherman, TX, pro se.
L INDSEY SCHRECKENGOST , Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.
______________________
Before REYNA, SCHALL , and CHEN, Circuit Judges.
P ER CURIAM .
Mr. Walter Essex appeals from a final order of the

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ESSEX v. MSPB 2
United States Merit Systems Protection Board (the
“Board”) dismissing his complaint for lack of subject-
matter jurisdiction. We affirm.
BACKGROUND
Mr. Essex is an employee at the Sam Rayburn
Memorial Veterans Center in Bonham, Texas. He is a
disabled veteran with a service-connected disability
rating of 50%. In 2012, he applied for a promotion to
“Addiction Therapist” at either the seventh or ninth
paygrade in the federal General Schedule payscale, but
was not selected.
In 2014, Mr. Essex first filed a complaint with the
Equal Employment Opportunity Commission and later
with the Board. At the Board, he challenged the denial of
the promotion to Addiction Therapist on grounds that the
hiring authorities failed to take into account his veterans’
preference status. He further alleged retaliation against
him for engaging in whistleblowing and other protected
activities.
On January 28, 2015, an administrative law judge at
the Board issued a show-cause order, requesting Mr.
Essex to file evidence and argument to establish the
Board’s jurisdiction. The order advised Mr. Essex that to
establish jurisdiction, he must, among other things,
demonstrate exhaustion of remedies before the Office of
Special Counsel (the “OSC”). On June 11, 2015, the
Board issued its final order, dismissing the case for want
of subject-matter jurisdiction because Mr. Essex failed to
provide evidence that he filed a complaint with the OSC.
Mr. Essex appeals the dismissal of his case. He
submits documents in support of his contentions that he
proceeded before the Board in a timely fashion and ex-
hausted his remedies. Included are documents associated
with the proceedings at the Board, correspondence about

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ESSEX v. MSPB 3
a settlement, and a handwritten letter addressing the
appeal. Mr. Essex also raises for the first time claims
concerning various civil rights violations.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). The petitioner bears the burden of
establishing error in the Board’s decision. Vassallo v.
Dep’t of Def., 797 F.3d 1327, 1330 (Fed. Cir. 2015).
The Board’s jurisdiction is limited by statute. 5
U.S.C. § 7701(a)(1). The aggrieved employee has the
burden of establishing the Board’s jurisdiction by a pre-
ponderance of the evidence, and the Board’s jurisdiction is
a question of law that we review de novo. Miller v. Merit
Sys. Prot. Bd., No. 2015-3054, 2015 U.S. App. LEXIS
13712, at *10 (Fed. Cir. Aug. 6, 2015) (citations omitted).
We find no error in the Board’s decision. Under the
Whistleblower Protection Act, an aggrieved employee
must first file an individual rights action with the OSC. 5
U.S.C. § 1214(a)(3). The employee has the burden of
showing that he exhausted his remedies with the OSC
before seeking review by the Board. Briley v. Nat’l Ar-
chives & Records Admin., 236 F.3d 1373, 1377-78 (Fed.
Cir. 2001).
Mr. Essex failed to meet his burden of establishing
that he had exhausted his administrative remedies. In
his letter addressing his appeal, Mr. Essex cites “schemes,
lies, and manipulations” because, among other things, the
Board is “not quite sure what they are processing.” Mr.
Essex purports to attach a letter from the OSC appeal
that acknowledges he exhausted his remedies and directs

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ESSEX v. MSPB 4
him to further appeal to the Board. Nothing in the rec-
ord, however, establishes that a complaint was filed with
the OSC. Without evidence that Mr. Essex submitted a
complaint with the OSC, the Board lacks jurisdiction to
adjudicate Mr. Essex’s claims. 5 U.S.C. § 1214(a)(3).
CONCLUSION
Because the Board properly dismissed Mr. Essex’s
complaint for lack of jurisdiction, we affirm.
AFFIRMED
COSTS
No costs.

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