William H. Weber, Petitioner, v. U.S. Merit Systems Protection Board, Respondent, 945 F.2d 417 (Fed. Cir. 1991)

Weber appealed to the MSPB asking for review of his annual performance appraisal. The MSPB dismissed his appeal for lack of jurisdiction, as Weber had not first requested review from the Special Counsel. We affirm.

OPINION

Weber works as a Tool and Parts Attendant, WG-6, for the Department of the Navy. For the one year period ending July 31, 1990, he received a performance appraisal rating of "fully successful."¹  Weber felt that his rating was kept lower than it should be, in response to his whistleblowing activities.

Weber appealed to the MSPB to review his appraisal rating. The Administrative Judge (AJ) issued an order to Weber to show cause why his appeal should not be dismissed for lack of appellate jurisdiction. Weber apparently responded²  with argument that 5 C.F.R. § 1201.3(b) allowed an appeal based on an allegation that the action complained of was in response to his whistleblowing.

The AJ dismissed Weber's appeal for lack of jurisdiction. The AJ based her decision on the lack of evidence or argument that Weber had submitted his action to the Special Counsel prior to appealing to the MSPB.

An appraisal rating is appealable to the MSPB as an individual right of action, based on an allegation of whistleblowing, only after the employee seeks corrective action from the Special Counsel. See, 5 U.S.C. § 1214(a) (3) (1988); 5 C.F.R. § 1209.2(b) (1) (1991).³  Weber must pursue his appeal first to the Special Counsel.