UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

COLLEEN A. FABRICK,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

CH-1221-15-0703-W-1

DATE: January 6, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Colleen A. Fabrick, Chicago, Illinois, pro se.

Russ Eisenstein, Esquire, and Pamela D. Langston-Cox, Esquire, Chicago, 

Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal for lack of Board 

jurisdiction. Generally, we grant petitions such as this one only when: the initial 

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

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

on an 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. See 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. However, 

for the reasons set forth below, we MODIFY the initial decision to find that the 

appellant failed to make a nonfrivolous allegation of a protected disclosure under 

5 U.S.C. § 2302(b)(8), and AFFIRM the dismissal of the appeal for lack of Board 

jurisdiction.

BACKGROUND

¶2 The appellant is a Human Resources Assistant (Labor Relations), GS-0203-

07, at the agency’s Internal Revenue Service (IRS) Human Capital Office in 

Chicago, Illinois. Initial Appeal File (IAF), Tab 11 at 30. In March 2012, she 

received a temporary promotion to the position of Human Resources Specialist, 

GS-0201-09. Id. at 46. That promotion ended in June 2012. Id. at 45. In 2013, 

the appellant filed an equal employment opportunity (EEO) complaint alleging 

age and race discrimination. Id. at 25-29.

¶3 In September 2014, the appellant was detailed for 60 days to the Leadership 

Succession, Readiness and Development (LEADS) group. Id. at 32-35. The 

detail was briefly extended, but ended on December 28, 2014. Id. In early 2015,

an opportunity for a temporary part-time promotion became available in the 

agency’s Executive Misconduct Unit (EMU). Id. at 12-13. Although she applied 

for the opportunity, the appellant was not selected. Id.; IAF, Tab 1 at 1, Tab 4 
3

at 11. The Associate Director of the Labor/Employee Relations (LER) office

explained that she did not recommend the appellant for the opportunity because 

she previously had been given such an opportunity, whereas the se lectee had not. 

IAF, Tab 11 at 12-13. In March 2015, management in LEADS asked the 

appellant to serve a second detail there. Id. at 13-16. However, the appellant’s 

immediate supervisor in consultation with her second-level supervisor determined 

that the appellant would not be released for the detail because there were staffing 

and workload concerns within her permanent group. Id.

¶4 The appellant filed a complaint with the Office of Special Counsel (OSC) 

on March 24, 2015, alleging that she had made two protected disclosures to the 

Treasury Inspector General for Tax Administration (TIGTA) in August 2013 and 

had subsequently been denied a temporary promotion and a second detail to 

LEADS. IAF, Tab 4 at 4-12. On July 27, 2015, OSC informed her that it had

terminated its inquiry into her complaint, Case No. MA-15-3028, and apprised 

her of her Board appeal rights. Id. at 26.

¶5 On April 1, 2015, the appellant filed a motion to amend her ongoing EEO 

complaint to include the denial of the temporary promotion to the EMU. IAF, 

Tab 11 at 25-29. On July 2, 2015, an Equal Employment Opportunity 

Commission administrative judge denied the appellant’s motion to amend her 

complaint and ordered the agency to advise her of the right to file a new 

complaint concerning the temporary promotion. Id. at 29. The agency informed 

the appellant of her rights, and she filed another EEO complaint on August 19, 

2015. Id. at 17-25.

¶6 On September 24, 2015, the appellant filed this appeal. IAF, Tab 1. The 

administrative judge issued an order informing the parties of the jurisdictional 

issues and directing the appellant to submit evidence and argument to establish 

the Board’s jurisdiction over her appeal. IAF, Tab 3. In response, the appellant 

identified two disclosures that she believed were protected under 5 U.S.C. 
4

§ 2302(b)(8). She identified these disclosures in her OSC complaint, and they 

were listed in OSC’s close-out letter. IAF, Tab 4 at 9, 26.

¶7 The appellant’s alleged protected disclosures are two complaints she lodged 

in August 2013 with the TIGTA. The appellant initially contacted TIGTA 

regarding a “‘suspicious crash’ possibly fraud” of the IRS Employee Suggestion 

Program website, which she alleged occurred briefly after she submitted a 

suggestion regarding labor and employee relations training for new managers. Id. 

at 1. The appellant claimed that she never received a response or decision from 

the agency regarding her suggestion, though “portions of [her] suggestion appear 

to have been implemented.” Id. The TIGTA complaint information form 

attached to her jurisdictional response states that she “reported that she did not 

receive a monetary award after the IRS implemented a suggestion she submitted 

to the IRS as part of the Employee Suggestion Program and the President’s 

Securing Americans’ Value and Efficiency (SAVE) Award program.” Id. at 31, 

41. The appellant filed a second complaint with TIGTA on August 27, 2013, 

alleging “illegal threats” and “serious abuse” by the Associate Director of the 

LER office on four occasions since she began working for the IRS in 2007. Id. 

at 1, 9, 55-57.

¶8 A TIGTA Special Agent in Chicago, Illinois, received both of the 

appellant’s complaints. Id. at 2. TIGTA decided not to investigate either of the 

complaints and informed the appellant of its decision. IAF, Tab 11 at 11. The 

Special Agent did not contact any IRS manager or employee, other than the 

appellant, regarding the complaints. Id. Instead, “[c]onsistent with TIGTA’s 

procedures, the complaints were forwarded to the IRS Employee Conduct and 

Compliance Office (ECCO) for informational purposes only.” Id.

¶9 In her response to the Board’s jurisdictional order, the appellant identified

the following personnel actions as those she believed were taken in retaliation for 

protected disclosures: (1) the agency’s failure to select her for the temporary 

promotion in the EMU in January 2015; and (2) the agency’s denial of a second 
5

detail opportunity in LEADS around May 2015. IAF, Tab 4 at 2; see 5 U.S.C. 

§ 2302(a)(2)(A). She reported these actions to OSC in her complaint. IAF, Tab 4

at 8, 18, 22.

¶10 The administrative judge issued an initial decision dismissing the appeal for 

lack of Board jurisdiction without holding a hearing, finding that the appellant 

failed to make a nonfrivolous allegation of the Board’s jurisdiction. 2 IAF, 

Tab 14, Initial Decision (ID) at 2, 11. The administrative judge did not determine 

whether the appellant’s alleged protected disclosures met the statutory definition 

and found instead that she had failed to nonfrivolously allege that her disclosures 

contributed to the agency’s decision not to temporarily promote or detail her. ID 

at 8-9. The administrative judge noted that the appellant’s September 2014 

LEADS detail took place more than a year after her alleged protected disclosures 

to TIGTA, and so “[i]t belies logic” that the agency’s subsequent refusal to 

release her for second LEADS detail was retaliatory, given that it approved her 

for the first detail. ID at 9. The administrative judge found that the unrebutted 

evidence showed that her supervisors had no knowledge of her alleged protected 

disclosures until October 2015, after she filed her Board appeal. ID at 9; see IAF, 

Tab 11 at 11, 13-14, 16. The administrative judge thus concluded that, because 

the appellant did not show that her disclosures could have contribut ed to her 

supervisors’ decisions not to afford her either the temporary promotion or the 

detail opportunity, the appellant failed to meet her jurisdictional burden. ID 

at 9-10.

¶11 The administrative judge additionally determined that the appellant failed to 

establish the Board’s jurisdiction over her nonselection pursuant to 

section 2302(b)(9), because the underlying allegations in her 2013 EEO complaint 

focused on title VII claims of race and age discrimination, and she did not 

 

2

The initial decision we have cited is a revised initial decision, which corrected the 

finality date in the initial decision. Compare IAF, Tab 14, Initial Decision at 11, with

IAF, Tab 12 at 11.
6

characterize her complaint as a protected disclosure in her filing with OSC. ID 

at 10-11. Here, the administrative judge noted that the EEO complaints she had 

filed were ongoing and “best-suited for resolution through the Equal Employment 

Opportunity . . . process, which is where they currently are.” Id. The appellant 

filed this petition for review.3 Petition for Review (PFR) File, Tab 1.

ANALYSIS

¶12 An appellant bears the burden of proving the Board’s jurisdiction over her

appeal by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(A). To 

establish the Board’s jurisdiction over an IRA appeal, an appellant must have 

exhausted her administrative remedies before the OSC and make nonfrivolous 

allegations of the following: (1) she made a protected disclosure described under 

5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity 

was a contributing factor in the agency’s decision to take or fail to take a 

personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 

1221; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 

¶13 A protected disclosure for purposes of whistleblowing is one that the 

appellant reasonably believed evidenced gross mismanagement, a gross waste of 

funds, an abuse of authority, a substantial and specific danger to public health or 

safety, or any violation of a law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A). 

 

3

The appellant appended to her petition for review several documents that are not 

already in the record. The documents she included are information and correspondence 

pertaining to her TIGTA complaints and to the functions of the EMU. PFR File, Tab 1 

at 8-23. Under 5 C.F.R. § 1201.115(d), 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. Avansino v. 

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). All of the 

documents included predate the October 30, 2015 close of the record in the proceeding 

before the administrative judge. IAF, Tab 8. The appellant has not shown these 

documents were unavailable to her before the close of the record despite her due 

diligence, and so we will not consider them.
7

The disclosure must have been specific and detailed, not a vague allegation of 

wrongdoing regarding broad or imprecise matters. Rzucidlo v. Department of the 

Army, 101 M.S.P.R. 616, ¶ 13 (2006). In other words, conclusory, vague, or 

unsupported allegations are insufficient to support a nonfrivolous allegation of 

jurisdiction in an IRA appeal. Ontivero v. Department of Homeland Security, 

117 M.S.P.R. 600, ¶ 15 (2012). Conversely, nonfrivolous allegations of Board 

jurisdiction are allegations of fact that, if proven, could establish that the Board 

has jurisdiction over the appeal. See 5 C.F.R. § 1201.4(s). An allegation 

generally will be considered nonfrivolous when, under oath or penalty of perjury, 

an individual makes an allegation that is more than conclusory, plausible on its 

face, and material to the legal issues in the appeal. Id.

¶14 The administrative judge found that the appellant had exhausted her 

remedies with OSC. ID at 8. The administrative judge rendered no decision 

regarding the appellant’s alleged protected disclosures—the TIGTA complaints—

except to opine that her allegations regarding those disclosures might be 

deficient. ID at 9. Instead, she concluded that the Board lacks jurisdiction over 

the appeal based on her finding that the appellant failed to nonfrivolously allege 

that the complaints contributed to the agency’s failure to temporarily promote her 

and to detail her to LEADS for a second time. ID at 8-10. The administrative 

judge relied upon agency-submitted declarations from the appellant’s supervisors 

stating that they were unaware of her TIGTA complaints prior to her filing of this 

appeal. ID at 9; see IAF, Tab 11 at 11, 13-14, 16.

¶15 On review, the appellant argues that because the LER Associate Director 

had administrative oversight over the EMU, “any reasonable person” would 

conclude that the Associate Director and her assistant (the appellant’s first-level 

supervisor) “had knowledge either direct or indirect of [her] hostile work 

environment claims.” PFR File, Tab 1 at 3. She asserts that the agency simply 

withheld evidence that would rebut the supervisors’ declarations. Id. at 4.
8

¶16 At this stage of the proceedings, the appellant’s burden is only to make 

nonfrivolous allegations. Jessup v. Department of Homeland Security,

107 M.S.P.R. 1, ¶ 10 (2007). Although the appellant has not presented any 

evidence supporting her assertion that the LER Associate Director’s oversight 

over the EMU extended to the ECCO, where the TIGTA complaints were 

forwarded, IAF, Tab 11 at 11, the agency’s evidence regarding the supervisors’ 

knowledge or lack thereof merely contradicts the appellant’s allegations. In 

determining whether an appellant has made a nonfrivolous jurisdictional 

allegation, the administrative judge may consider the agency’s documentary 

submissions; however, to the extent that the agency’s evidence constitutes mere 

factual contradiction of the appellant’s otherwise adequate prima facie showing of 

jurisdiction, the administrative judge may not weigh evidence and resolve 

conflicting assertions of the parties, and the agency’s evidence may not be 

dispositive. Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 11 

(2014); Inman v. Department of Veterans Affairs, 112 M.S.P.R. 280, ¶¶ 7, 11 

(2009). The administrative judge thus should not have considered the agency’s 

declarations as dispositive. Accordingly, we vacate the findings as to whether the 

appellant nonfrivolously alleged that her disclosures contributed to the agency’s 

alleged failure to take certain personnel actions.

¶17 We need not remand the appeal, however, because the record does not 

support a finding that the appellant met the first prong of the jurisdictional 

standard. The appellant identified two alleged protected disclosures in her 

jurisdictional response, and OSC addressed these disclosures in its close-out 

letter. IAF, Tab 4 at 1-3, 26. According to the appellant, both disclosures 

occurred in August 2013, and both were made in complaints submitted to the 

same TIGTA agent in Chicago, Illinois. Id. at 2, Tab 11 at 11. TIGTA has 

independent authority to determine whether to investigate complaints it receives, 

and it decided not to investigate either of the appellant’s complaints. IAF, Tab 4 

at 1-2, Tab 11 at 11.
9

¶18 The appellant’s first complaint pertains to a “suspicious crash” of the 

agency’s website for the collection of employee suggestions shortly after she 

submitted a suggestion to the SAVE Award program pertaining to the curriculum 

used in the training of new agency managers. IAF, Tab 4 at 1, 31, 41, 50. The 

appellant submitted her suggestion in 2010. Id. at 50. In the aftermath of the 

crash, she asserted, “portions of [her] suggestion appear to have been 

implemented,” but she never received a response or decision regarding her 

suggestion. Id. at 1. The appellant’s second TIGTA complaint alleged “illegal 

threats, serious abuse and demonstrated prohibited personnel practices” by the 

LER Associate Director on four occasions from the time she began working for 

the IRS in 2007 through May 2013. Id. at 1, 56.

¶19 A protected disclosure is one that an employee reasonably believed 

evidenced gross mismanagement, a gross waste of funds, an abuse of authority, a 

substantial and specific danger to public health or safety, or any violation of a 

law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A). An appellant need not prove 

that the matter she disclosed established any of these conditions. Applewhite v. 

Equal Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 12 (2003). 

Instead, she must have nonfrivolously alleged that the matter she disclosed was 

one that a reasonable person in her position would believe evidenced any of the se 

conditions. Id. The test for determining whether or not her belief was reasonable 

is to inquire whether a disinterested observer with knowledge of the essential 

facts she knew or could readily ascertain could reasonably conclude that the 

agency’s actions evidenced one of the conditions set forth in the statute. Id. 

¶20 We conclude that the appellant could not have reasonably believed that the 

actions she was reporting to TIGTA evidenced any of these conditions. She did 

not allege that the disclosed actions violated any law, rule, or regulation, nor did 

she assert that they constituted a substantial and specific danger to public health 

or safety, or a gross waste of funds. Her disclosures appear to have been 

allegations of either gross mismanagement or abuse of authority. Gross 
10

mismanagement means a management action or inaction that creates a substantial 

risk of significant adverse impact upon the agency’s ability to accomplish its 

mission. White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994). An 

abuse of authority occurs when a Federal official or employee arbitrarily or 

capriciously exercises power and adversely affected anyone’s rights or causes 

personal gain or advantage to himself or to someone he prefers. Webb v. 

Department of the Interior, 122 M.S.P.R. 248, ¶ 10 n.3 (2015).

¶21 As for her first alleged protected disclosure, the appellant failed to offer any 

evidence that her allegation of a suspicious computer crash and possible fraud 

were anything other than mere speculation. A disinterested observer with 

knowledge of the essential facts that the appellant knew or could readily ascertain 

could not reasonably conclude that agency personnel caused or allowed to occur

such a systems failure so that the appellant’s submission to the SAVE Award 

program would be lost in order to avoid paying the award she would have 

otherwise won in that Government-wide competition. The appellant offered no 

evidence that the relevant computer system crashed during the relevant 

timeframe. Her allegations regarding such a crash have evolved over time. Other 

than to allege that her SAVE Award suggestion was stolen, she did not speculate

in her TIGTA complaint as to why she did not receive an award for her 

suggestion or suggest that the agency’s Employee Suggestion Program website 

failed while her suggestion was pending. IAF, Tab 4 at 31, 41, 50. In her OSC 

complaint, she explained that she recalled that a computer crash “supposedly 

occurred exactly during the timeframe I submitted a very valuable suggestion to 

the proper platform” after she heard about other systems problems at the agency 

in the summer of 2013. Id. at 9. In her jurisdictional response for this appeal, 

she stated that such a system crash “supposedly” occurred, and that “to ensure the 

truth,” it was incumbent on TIGTA to investigate what had occurred “in light of

what appears to be many other ‘suspicious’ IRS computer crashes.” Id. at 1-2. 

Even if the appellant had shown that a systems failure occurred, she has not made 
11

a nonfrivolous allegation that she reasonably believed such a failure created a 

substantial risk of significant adverse impact upon the agency’s ability to 

accomplish its mission, or that someone intentionally caused it to block her 

submission for the SAVE Award program. To the contrary, the evidence she 

submitted shows that her entry was received and considered, but did not merit an 

award. Id. at 48.

¶22 As for her second alleged protected disclosure, we likewise cannot find that

the appellant reasonably believed that the four incidents she disclosed evidenced 

a substantial risk of significant adverse impact upon the agency’s ability to 

accomplish its mission. As for whether the incident represented an abuse of 

authority, the Board has found that supervisory bullying and intimidation may be

abuse of authority, Special Counsel v. Costello, 75 M.S.P.R. 562, 580 (1997), 

rev’d on other grounds, 182 F.3d 1372 (Fed. Cir. 1999), and that there is no 

de minimis standard for abuse of authority, D’Elia v. Department of the Treasury, 

60 M.S.P.R. 226, 232 (1993), overruled on other grounds by Thomas v. 

Department of the Treasury, 77 M.S.P.R. 224 (1998), overruled in part on other 

grounds by Ganski v. Department of the Treasury, 86 M.S.P.R. 32 (2000).

¶23 Nevertheless, nothing the appellant disclosed would lead a disinterested 

observer with knowledge of the essential facts that she knew or could readily 

ascertain to reasonably conclude that the LER Associate Director engaged in such

an arbitrary or capricious exercise of power. Only two of the four alleged 

incidents directly involved the appellant’s encounters with the LER Associate 

Director. In one such incident, the LER Associate Director allegedly told the 

appellant that she was “unreliable and unable to perform her job correctly” during 

a staff meeting related to a “furlough project.” IAF, Tab 4 at 66. In an email 

message to TIGTA supporting her complaint, however, the appellant described 

the LER Associate Director complimenting one of her coworkers for reliably 

completing an assigned project. Id. at 100. In another of the incidents, which 

occurred when the appellant met the LER Associate Director during her first 
12

week of work, the Associate Director opined that the appellant’s sandals were not 

appropriate office attire. Id. at 69. The appellant explained that she had been 

wearing the sandals for medical reasons. Id. It is difficult to see how a 

reasonable person would construe the LER Associate Director’s comment under 

the circumstances as anything other than an attempt to inform a new employee

about appropriate office attire. The other two allegations are briefly described in 

the appellant’s email correspondence with TIGTA. Id. at 99-101. One such

incident pertains to a “snide comment” made by a person other than the LER 

Associate Director suggesting that the appellant would be absent from work 

because she was “going before Congress to testify” rather than absent because of 

upcoming medical leave. Id. at 100. The other allegation is the appellant’s 

general observation regarding the Associate Director’s demeanor and 

mannerisms.

4

 Id. at 99-101. Even if the LER Associate Director spoke in a “loud 

threatening (bullying) tone [that] can be heard all throughout [the] workspace,” as 

the appellant alleged, id. at 101, she failed to make a specific and detailed 

allegation of wrongdoing, see Rzucidlo, 101 M.S.P.R. 616, ¶ 13; cf., e.g., Murphy 

v. Department of the Treasury, 86 M.S.P.R. 131, ¶ 7 (2000) (holding that a 

supervisor who engaged in “threats, swearing, [and] physical acts of aggression”

to intimidate the appellant and other staff members into following the 

supervisor’s requests without question was abusing his authority). We thus find 

that the appellant failed to make a nonfrivolous allegation of having made a 

protected disclosure under 5 U.S.C. § 2302(b)(8).

¶24 Because the appellant failed to meet the first prong of the jurisdictional 

standard, there is no need to issue a formal finding regarding whether the 

appellant nonfrivolously alleged that the agency took or failed to take a personnel 

 

4

To the extent that the appellant’s OSC complaint describes additional incidents, IAF, 

Tab 4 at 7-8, she has not alleged reprisal for disclosing these matters to OSC. The 

record also includes a document that appears to have been prepared for the appellant’s 

EEO complaint, wherein she described various incidents. Id. at 82-90.
13

action as defined by the statute, though we note that the actions she alleged on 

their face would fall within the statutory definition. See 5 U.S.C. § 2302(a), 

(2)(A)(ii), (iv), (xii). There is also no need to address issues the appellant raises 

that might go to whether the agency would have met its burden to prove by clear 

and convincing evidence that it would have declined to take the same personnel 

action in the absence of any protected disclosure. 5 U.S.C. § 1221(e); Whitmore 

v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012); see PFR File, 

Tab 1 at 1.

¶25 The appellant also asserts on review that her 2013 EEO complaint 

constitutes a protected whistleblowing disclosure or activity. PFR File, Tab 1 

at 2, 5. The administrative judge found that the appellant did not claim that her 

EEO complaint was a protected disclosure, and in any event, she did not exhaust 

her administrative remedies with OSC for that complaint. ID at 4 n.2, 10; see 

Cassidy v. Department of Justice, 118 M.S.P.R. 74, ¶ 5 (2012) (finding that an 

employee seeking corrective action for whistleblower reprisal under 5 U.S.C. 

§ 1221 is required to seek corrective action from OSC before appealing to the 

Board). Here, the appellant raises a new argument for the first time on review. 

The Board generally will not consider an argument raised for the first time absent 

a showing that it is based on new and material evidence not previously available 

despite the party’s due diligence. Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The appellant has not made 

such a showing. To the extent that the appellant is reasserting issues she raised 

before the administrative judge, we find that she has not established error. 

Although attachments to her jurisdictional pleading reference her EEO 

complaints, she did not specifically allege that her 2013 complaint was one of her 

protected disclosures. IAF, Tab 4 at 1-3. The appellant discussed her EEO 

complaint with OSC and opined that the agency had not processed it to her 

satisfaction, but she did not assert therein that she considered her complaint to be 

one of her protected disclosures, nor did OSC treat it as such. Id. at 9, 22, 26. 
14

¶26 Likewise, the appellant’s possible claim–that her filing the EEO complaint 

constituted whistleblowing activity and that the agency retaliated against her for 

that activity–is unavailing under the circumstances. Reprisal for filing an EEO 

complaint is a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) and 

(b)(9), not 5 U.S.C. § 2302(b)(8). See Mahaffey v. Department of Agriculture, 

105 M.S.P.R. 347, ¶ 20 n.8 (2007) (clarifying that a claim of retaliation for filing 

an EEO complaint may be pursued under either 5 U.S.C. §§ 2302(b)(1) or 

2302(b)(9)). The Whistleblower Protection Enhancement Act of 2012 extended 

the Board’s jurisdiction over IRA (whistleblower) appeals to claims of reprisal 

for filing complaints seeking to remedy whistleblower reprisal under 5 U.S.C. 

§ 2302(b)(8), but not to other types of complaints, filed by the appellant on his or 

her own behalf, that do not concern remedying a violation of subparagraph (b)(8). 

5 U.S.C. §§ 1221(a), 2302(b)(9)(A); Mudd v. Department of Veterans Affairs, 

120 M.S.P.R. 365, ¶ 7 (2013). In any event, as stated above, the administrative 

judge correctly found that the appellant failed to exhaust her administrative 

remedies at OSC as to her EEO complaint. ID at 10. Accordingly, we affirm the 

administrative judge’s findings regarding these issues. ID at 10-11. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request review of this final decision by the U.S. Court of Appeals for the Federal 

Circuit.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed . 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
15

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

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, and 11. Additional 

information about other 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. 

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
16

Merit Systems Protection Board neither endorses the services provided b y any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board