Barbara Schwarz, Petitioner, v. Merit Systems Protection Board, Respondent, 108 F.3d 1392 (Fed. Cir. 1997)

ORDER

The Merit Systems Protection Board moves for summary affirmance of its decision dismissing Barbara Schwarz's appeal for lack of jurisdiction. Schwarz opposes. Schwarz submits documents entitled "Motion To The Court To Grant To Me, Appellant and Petitioner Barbara Schwarz To File Only The Original Of My Motions To The Court Because I Am Too Indigent To Mail More Copies," "Motion To Protest That This Court Prefers Respondent Instead Of Being Impartial," and "Motion To The Court To Order MSPB To Mail Me Finally A Copy Of The Certified List Which They Filed To This Court October 15, 1996."^* 

On May 20, 1996, the Administrative Judge dismissed Schwarz's appeal for lack of jurisdiction, stating:

Referencing the Freedom of Information Act (FOIA), the appellant seeks a Merit Systems Protection Board (Board) order compelling the Office of Special Counsel (OSC) to reveal the address of her husband, who she believes is wrongfully incarcerated at an unknown/undisclosed Federal prison. See Appeal File, Tabs 1 and 3. She also requests that the Board order OSC to investigate the allegedly unlawful incarceration of her husband. See id. For the reasons discussed below, I DISMISS the appeal for lack of jurisdiction.

From her submissions it is apparent that the appellant misunderstands both OSC's and the Board's roles. OSC's primary role is to protect Federal employees, former Federal employees, and applicants for Federal employment. See Appeal File, Tabs 1 and 3. Rather, she mistakenly believes that OSC is an organization with far-reaching power to investigate and correct any alleged violation of Federal law, rule, or regulation. See id.

Moreover, respecting the Board, I note that its jurisdiction is limited to those actions which are made appealable to it by Federal law, rule, or regulation. [citations omitted] With respect to inactions by OSC of the type alleged by the appellant, no law, rule, or regulation grants the Board a power of review.... [I]n the instant case, because the appellant is not a Federal employee, former Federal employee, or applicant for Federal employment, her appeal is not an IRA appeal within the Board's jurisdiction. [citation omitted] Further, I note that she has not raised any personnel action cognizable under the IRA-appeal procedures. [citation omitted] Accordingly, I find it appropriate to dismiss her appeal as outside the Board's jurisdiction.

The Board moves for summary affirmance.

Summary disposition of a case "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). In the present case, it is clear that summary disposition is warranted. The Merit Systems Protection Board does not have jurisdiction over a petitioner who is not a federal employee, a former federal employee, or an applicant for federal employment. See 5 U.S.C. §§ 2302(a), 7511. Further, there is no law, rule, or regulation that would compel OSC to engage in the investigation desired by Schwarz.

Accordingly,

IT IS ORDERED THAT:

(1) The Board's motion for summary affirmance is granted.

(2) Schwarz's various requests for relief are moot.

(3) Each side shall bear its own costs.