UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOCELYN LISA DOYLE,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

PH-3443-17-0116-I-1

DATE: November 15, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jocelyn Lisa Doyle, Boonsboro, Maryland, pro se.

Julie Rebecca Zimmer, Esquire, 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 for lack of jurisdiction her appeal of her nonselection for a Lead Dental 

Assistant position in the agency’s Martinsburg, West Virginia facility. On 

petition for review, the appellant renews her argument that, in failing to select her 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

for the position, the agency applied employment practices that violated basic 

requirements set forth in 5 C.F.R. § 300.103, and thus she is entitled to a hearing 

regarding her nonselection. Petition for Review (PFR) File, Tab 1 at 4, Tab 5 

at 4-8.2 She further alleges that the agency violated her rights under the 

Uniformed Services Employment and Reemployment Rights Act (USERRA) and 

seeks to file an individual right of action (IRA) appeal, alleging that she has new 

evidence that management has retaliated against her for whistleblowing. PFR 

File, Tab 1 at 4-5, Tab 5 at 8-10. 

¶2 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 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 ma terial 

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

with respect to her claims that the agency violated a requirement of 5 C.F.R. 

 

2

The appellant makes additional arguments regarding her nonselection that we do not 

consider because she first raised the arguments in her reply to the agency’s opposition 

to her petition for review and has not shown that they are based on new and material 

evidence not previously available despite her due diligence. PFR File, Tab 5 at 4 -8; see 

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (stating that the 

Board will not consider an argument raised for the first time in a petition for review 

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

despite the party’s due diligence). Moreover, her arguments are not relevant to the 

issue of whether the Board has jurisdiction over her employment practices claim. 
3

§ 300.103 or USERRA.3 Accordingly, 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). We FORWARD the appellant’s claims of whistleblower reprisal 

to the Board’s Northeastern Regional Office to docket as a new IRA appeal.

¶3 The administrative judge provided the appellant with an opportunity to 

identify her claims regarding the nonselection as retaliation for whistleblowing, 

but she did not do so, instead advancing the above-referenced employment 

practices claim. Initial Appeal File (IAF), Tab 2 at 4-5, Tab 5 at 3-4. On review, 

the appellant has clarified that she is alleging that her nonselection and a 

subsequent removal from her duties as a Dental Assistant were taken in reprisal 

for whistleblowing, and she seeks to file an IRA appeal. 4 PFR File, Tab 1 at 4-5, 

Tab 5 at 8-10. The appellant also filed a separate IRA appeal with the Board’s 

Northeastern Regional Office that contained related claims of reprisal. Doyle v. 

Department of Veterans Affairs, MSPB Docket No. PH-1221-18-0012-W-3, 

Initial Decision (June 29, 2019). Following a court ordered remand in that 

matter, Doyle v. Department of Veterans Affairs, 855 F. App’x 753 (Fed. Cir. 

2021), the administrative judge granted the appellant’s request for corrective 

action as to the agency’s decision to convene the Administrative Investigation 

Board to investigate the appellant, her temporary reassignment to the mailroom 

and library, and her reassignment to the Advanced Medical Support Assistant 

position. Doyle v. Department of Veterans Affairs, MSPB Docket No. PH-1221-

18-0012-M-1, Remand Initial Decision (Dec. 14, 2021). The remand initial 

 

3 Although the appellant alleges on review that the agency violated USERRA, we find 

that the administrative judge properly concluded that the appellant is not a veteran, and 

she has not indicated that she is a member of a uniformed service, performed duty in a 

uniformed service, or has an obligation to perform such a duty. See Initial Appeal File, 

Tab 12 at 53,Tab 31, Initial Decision at 2, 4; see also 38 U.S.C. § 4311(a).

4

The appellant first alluded to these allegations in her prehearing statement, filed 

below. IAF, Tab 19 at 14-16, 23-25. However, we find that these allegations were not 

sufficiently clear for the administrative judge to conclude that the appellant was r aising 

a claim of retaliation for whistleblowing.
4

decision became the final decision of the Board when neither party filed a petition 

for review. In forwarding the claims of whistleblower reprisal raised by the 

appellant in the instant matter for docketing as a new IRA appeal, the Board 

makes no finding on the preclusive effect of the court decision or remand initial 

decision on the forwarded claims. 

NOTICE OF APPEAL RIGHTS5

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 

 

5

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

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

§ 7703(b)(1)(A). 

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 
6

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 

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 
7

(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 

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.6 The 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 Federa l 

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. 

 

6

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

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. 

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