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Yost v. Department of Health and Human Services

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Dennis A. Yost petitions for a review of a dismissal by the Merit Systems Protection Board (“MSPB” or “Board”) of his Individual Right of Action. The administrative judge’s initial decision, Yost v. Dep’t of Health and Human Servs., No. CH-1221-99-0517-W-1 (July 19, 1999), became the final decision of the Board on February 23, 2000. Yost v. Dep’t of Health and Human Servs., 85 M.S.P.R. 273 (Feb. 23, 2000). The administrative judge dismissed Yost’s appeal for lack of jurisdiction, finding that Yost failed to make a non-frivolous allegation of either a protected disclosure or an adverse action within the meaning of the Whistleblower Protection Act (“WPA”). The Board affirmed, as modified, the initial decision, finding that although the administrative judge had failed to advise Yost of his jurisdictional burden, the error was not prejudicial because Yost was put on notice of his jurisdictional burden by the agency’s motion to dismiss. We affirm.

BACKGROUND

This appeal stems from the fact that, while employed by the agency, Yost wanted to engage in outside employment to provide computer services to a local Indian tribe. The agency refused Yost’s request to engage in outside employment. After filing a complaint with the Office of Special Counsel, *fn1 Yost appealed to the Board, alleging that the agency took six personnel actions against him because of protected disclosures. According to the administrative judge, the alleged protected disclosures included: showing his supervisors the Standards of Ethical Conduct for government employees; telling his supervisors that he could find no law or regulation that would prohibit his engaging in the requested outside employment; and telling other agency officials his opinion that no law or regulation prohibited his outside employment.

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