UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN DOE,

Appellant,

v.

AGENCY FOR INTERNATIONAL 

DEVELOPMENT,

Agency.

DOCKET NUMBER

DC-0752-16-0587-I-1

DATE: October 25, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

John Doe, pro se.

Sara Ryan, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her termination appeal for lack of jurisdiction. Generally, we grant 

petitions such as this one only in the following circumstances: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b).

¶2 As the administrative judge found in the initial decision, the agency 

terminated the appellant from her Foreign Service Limited Officer position 

effective August 19, 2015. Initial Appeal File (IAF), Tab 6, Initial Decision (ID) 

at 1. After receiving a final agency decision on her equal employment 

opportunity (EEO) complaint, the appellant filed a Board appeal and requested a 

hearing. ID at 2; IAF, Tab 1. She made allegations of harassment, delays in the 

EEO process, and retaliation for EEO activity. IAF, Tab 1 at 5. The 

administrative judge informed the appellant that the Board may not have 

jurisdiction over her appeal because she was a member of the Foreign Service. 

IAF, Tab 5. He issued an order directing her to show cause why the appeal 

should not be dismissed for lack of jurisdiction, but she did not respond. Id.

¶3 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. ID at 2, 4. 

Specifically, he found that, pursuant to 5 U.S.C. § 7511(b)(6), the Board lacks the 

authority to review her termination because the appellant was a member of the 

Foreign Service. ID at 2-3.
3

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. She does not dispute that the Board lacks jurisdiction over her appeal 

and admits that the appeal should not have been filed. Id. Instead, she requests 

that the Board not issue a decision, citing privacy concerns. Id. She includes a 

letter from the agency, which she purportedly did not receive until after issuance 

of the initial decision, explaining that the agency inadvertently included Board 

appeal rights in the final agency decision on her EEO complaint. Id. at 8.2 The 

agency has not filed a response.

¶5 For the reasons contained in the initial decision, we agree with the 

administrative judge’s finding that the Board lacks jurisdiction over the appeal

because the appellant was a member of the Foreign Service. ID at 2-3; see Ang v. 

Department of State, 103 M.S.P.R. 324, ¶¶ 8-9 (2006) (finding that the appellant 

failed to establish jurisdiction over his appeal under 5 U.S.C. chapter 75 because 

he was a member of the Foreign Service). Moreover, we deny the appellant’s 

privacy-related request because her identity has been protected by allowing her to

proceed anonymously as John Doe. 3 

 

2 Assuming that the agency letter was unavailable prior to the close of the record below 

despite the appellant’s due diligence, we find that it does not affect the outcome of the 

appeal. PFR File, Tab 1 at 4, 7; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 

214 (1980) (stating that the Board generally will not consider evidence submitted for 

the first time with the petition for review absent a showing that it was unavailable 

before the record was closed despite the party’s due diligence); see also Russo v. 

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally 

will not grant a petition for review based on new evidence absent a showing that it is of 

sufficient weight to warrant an outcome different from that of the initial decision).

3

The Board no longer uses Jane Doe and John Doe, universally using the generic “John 

Doe” for all appeals when anonymity is granted. Doe v. Pension Benefit Guaranty 

Corporation, 117 M.S.P.R. 579 n.1 (2012). Further, with the exception of the Board’s 

decision in this matter, which is available on the Board’s website, the case file from this 

appeal is protected by the Privacy Act of 1974 and is not available to the public through 

e-Appeal Online or the Board’s website. While MSPB’s adjudication records may be 

requested under the Freedom of Information Act (FOIA), all records are reviewed in 

accordance with the FOIA and may be withheld from release if warranted by a FOIA 

exemption.
4

¶6 Accordingly, we find that the administrative judge properly dismissed the 

appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
5

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
6

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
7

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 5The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
8

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board