Ronald L. Spencer v. Department of the Navy, No. 02-3344 (Fed. Cir. May 6, 2003).

• The Merit Systems Protection Board may only provide a hearing for an appellant after the Board has determined it has jurisdiction over the appeal.
• The Board may not conduct jurisdiction hearings as all Board hearings are on the merits of an appeal.

The appellant filed an individual right of action appeal (IRA) with the Merit Systems Protection Board (MSPB) claiming that his agency reprised against him for whistleblowing. An MSPB administrative judge conducted a hearing but dismissed his appeal for lack of jurisdiction based on a finding that the appellant failed to show that his disclosures were protected under the Whistleblowers Protection Act. The full Board in Washington, D.C., denied his petition for review and the appellant sought review of the matter by the Federal Circuit.

The court upheld the Board's dismissal of the appeal but used the case to tell the Board, Board practitioners, and the Department of Justice, that the Board lacks authority to conduct jurisdictional hearings. Stated another way, an appellant is not entitled to a hearing on a threshold issue of jurisdiction in an appeal. The court further stated that the Board can only conduct a hearing if it first finds that it has jurisdiction over an appeal. Jurisdiction is determined based on a review of the written record and a finding by the Board that the appellant has made a non-frivolous allegation of jurisdiction. The appellant must establish the elements of his or her claim by a preponderance of the evidence. The court concluded that the failure of an appellant to state such a claim has the consequence of a judgment on merits of the appeal rather than a dismissal for lack of jurisdiction.

The court complained that it has been trying to get the Board to accept these holdings for ten years. If the Board acts as the court wishes, agency representatives (and appellant representatives as well) should be forewarned not to expect "jurisdictional" hearings in the belief that they can prepare for a "merits" hearing that might follow at a later date. The bottom line is that it is imperative for all parties to ensure that the written record includes sufficient information for the judge to decide any jurisdictional issues in a case.