Richard W. Coleman, Jr. v. Merit Systems Protection Board

Whether the Federal Circuit and the Merit Sys­ tems Protection Board erred in dismissing an Individ­ ual Right of Action appeal for lack of jurisdiction where the employee’s disclosures raised a nonfrivolous allegation that the agency continued to rely on a position description containing a duplicated electronic signature—described by the agency itself as “sloppy work” yet never corrected—and that such continued reliance, together with the refusal to correct material inaccuracies in the document, evidenced a potential violation of 18 U. S. C. § 1001(a)(3) or an abuse of au­ thority under 5 U. S. C. § 2302(b)(8).

Whether repeated post-disclosure refusals by a federal agency to reinstate hazardous duty pay or to correct a defective official position description consti­ tute independent “failures to take” a personnel action under the plain meaning of 5 U. S. C. §§2302(a)(2)(A)(ix) and (b)(8), sufficient to support Merit Systems Protection Board jurisdiction over an Individual Right of Action appeal.

Whether the MSPB’s dismissal of an IRA ap­ peal for failure to nonfrivolously allege that protected disclosures were a contributing factor may stand when the disclosures concern the agency’s systematic refusal to correct a position description that is factu­ ally contradictory on its face regarding hazardous du­ ties (including CBRN and explosives exposure re­ quirements) and that serves as the basis for the ongo­ ing denial of hazardous duty pay under 5 U. S. C. § 5545(d) and 5 C. F. R., pt. 550, subpt. I.