December 1995, DOE withdraws

Last Updated 05/22/01




Joseph P. Carson, Appellant,



DOCKET NUMBER: AT-1221-95-1197-W-1

DATE: December 7, 1995

Joseph P. Carson, Knoxville, Tennessee, pro se.(1)

Isiah Smith. Jr., Esquire, Washington, D.C., for the agency.


Stuart A. Miller

Administrative Judge


On September 7, 19953, the appellant sought to appeal to the Board from a Letter of Reprimand issued to him by the agency on March 31, 1995. The appellant currently occupies the position of Nuclear Safety Assessor, GS-14, in Oak Ridge, Tennessee. Because the appellant claimed that this action was taken in retaliation for his alleged whistleblowing activities, he filed a complaint with the Office of Special Counsel (OSC). By letter dated July 5, 1995, OSC notified the appellant that it was terminating its investigation of his complaint and advised him that he could file an appeal with the Board. Appeal File, Tab 1. The appellant's appeal was timely filed. See 5 C.F.R. 1209.5(a)(1). As explained below, however, this appeal is DISMISSED.

During a status conference on November 29, 1995, the agency stated its intent to cancel the Letter of Reprimand and thus, moot the appeal. See Appeal File, Tab 11. Subsequently, on December 6, 1995, the Board received evidence that the agency canceled the Letter of Reprimand. See Appeal File, Tab 13.

The Board has held that the Whistleblower Protection Act is remedial, intended to improve protections for Federal employees, and should be construed to effectuate that purpose. See Mulherin V. Department of the Air Force, 45 M.S.P.R. 289, 291 (1990) (citing section 2(b) of the Act and West v. Department of Energy, 24 M.S.P.R. 99, 103 (1984)). Thus, when, as here, an agency completely rescinds the appealed action, the appellant is returned to the status quo ante and the Board is divested of jurisdiction. Id.

Based on the above, I must find that the Board lacks jurisdiction over the appellant's appeal and the appeal must be DISMISSED. Id.


The appeal is DISMISSED.



Administrative Judge


The date that this initial decision becomes final, which is set forth below, is the last day that the administrative judge may vacate the initial decision in order to accept a settlement agreement into the record. See 5 C.F.R. 1201.112(a) (5)


This initial decision will become final on January 11, 1996, unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is the last day on which you can file a petition for review with the Board. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period.


You may request Board review of this initial decision by filing a petition for review. Your petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file your petition with:

The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Room 806

Washington, DC 20419

If you file a petition for review, the Board will obtain the record in your case from the Administrative Judge and you should not submit anything to the Board that is already part of the record. Your petition must be postmarked or hand-delivered no later than the date this initial decision becomes final. If you fail to provide a statement with your petition that you have either mailed or hand-delivered a copy of your petition to the agency, your petition will be rejected and returned to you.


If you are dissatisfied with the Board's final decision, you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before this decision becomes final. To be timely, your petition must be received by the court no later than 30 calendar days after the date this initial decision becomes final.


The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations.

1. From the initial filing of the appeal until December 4, 1995, the appellant was represented by Robert Seldon and Joanne Royce, Esquires, of the Government Accountability program in Washington, D.C.. On December 4, 1995, the appellant notified the Board that he would be proceeding pro se from that date forward. See Appeal File, Tab 12.


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Questions or comments? Contact Joseph P. Carson, P.E.