Flynn v. Merit Sys. Prot. Bd. & U.S. Dep't of the Army
Decision Date | 08 January 2019 |
Docket Number | No. 17-70617,17-70617 |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Parties | KATHRYN A. FLYNN, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD and UNITED STATES DEPARTMENT OF THE ARMY, Respondents. |
NOT FOR PUBLICATION
MEMORANDUM*On Petition for Review of an Order of the Merits Systems Protection Board
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Dr. Kathryn A. Flynn, proceeding pro se, petitions for review of the Merit Systems Protection Board's ("MSPB") final order in her action alleging that the Department of the Army ("the agency") took disciplinary action and ultimatelyfailed to renew her employment in violation of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). We have jurisdiction under 5 U.S.C. § 7703(b)(1)(B). We review de novo questions of the MSPB's jurisdiction, Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th Cir. 2016), and will set aside the MSPB's actions, findings, or conclusions only if they are "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence," 5 U.S.C. § 7703(c). We affirm.
To the extent that Dr. Flynn's claims are based on personnel actions allegedly taken because she filed an Equal Employment Opportunity complaint, the MSPB properly concluded that it lacked jurisdiction to consider the claims. See 5 U.S.C. § 1221(a); Daniels, 832 F.3d at 1051 ( ). Moreover, Dr. Flynn did not raise this argument before the Office of Special Counsel ("OSC") and therefore failed to exhaust it. See id. at 1051 ( ).
Substantial evidence supports the MSPB's determination that the agency proved by "clear and convincing evidence that it would have taken the samepersonnel action in the absence of" the protected disclosures. 5 U.S.C. § 1221(e)(1); see Duggan v. Dep't of Defense, 883 F.3d 842, 846-47 (9th Cir. 2018) ( ).
Dr. Flynn has not demonstrated an abuse of discretion by the administrative judge in denying any of her discovery requests or requests to compel depositions. See Duggan, 883 F.3d. at 848 (standard of review).
The record does not support Dr. Flynn's contention that the administrative judge was biased against her.
The MSPB's motion to dismiss the MSPB as a party to this appeal (Dkt. No. 10) is GRANTED. See Johnen v. U.S. Merits Sys. Prot. Bd., 882 F.3d 1171, 1174 (9th Cir. 2018) (() .
Maurice M. Carter's motion for leave to...
To continue reading
Request your trial