NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

WANDA CURTIS-HUNTER,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2023-1426

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH-0752-22-0244-I-1.

______________________ 

Decided: November 21, 2023 

______________________ 

WANDA CURTIS-HUNTER, Baltimore, MD, pro se. 

 KELLY WINSHIP, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by ALLISON JANE BOYLE, 

KATHERINE MICHELLE SMITH. 

 ______________________ 

Before MOORE, Chief Judge, REYNA and HUGHES, Circuit 

Judges.

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2 CURTIS-HUNTER v. MSPB

PER CURIAM.

Wanda Curtis-Hunter appeals a decision of the Merit 

Systems Protection Board dismissing her Individual Right 

of Action (IRA) appeal for lack of jurisdiction. We affirm. 

BACKGROUND

Ms. Curtis-Hunter is a health technician with the Department of Veterans Affairs (VA). In 2019, Ms. CurtisHunter filed an Equal Employment Opportunity (EEO) 

complaint against the VA alleging a senior employee, Scott 

Guthland, discriminated against her by hacking her computer and telephone in response to Ms. Curtis-Hunter reporting to management he accessed her medical file. S. 

Appx. 20, 24. The VA issued a decision concluding Ms. Curtis-Hunter failed to prove she was subjected to the alleged 

discrimination. S. Appx. 25. Ms. Curtis-Hunter, through 

counsel, appealed the decision. The EEO Commission affirmed the VA’s decision. S. Appx. 26. 

In March 2022, Ms. Curtis-Hunter filed a Prohibited 

Personnel Practices complaint with the Office of Special 

Counsel (OSC) alleging retaliation for whistleblowing and 

protected activity, discrimination for non-job-related conduct, and improper accessing of medical records. S. Appx. 

30–31. Specifically, Ms. Curtis-Hunter alleged Mr. Guthland improperly accessed her medical records in 2019, harassed her through actions including hacking her telephone 

and car, and the VA inappropriately withheld her pay. S. 

Appx 42–43. The OSC Disclosure Unit sent a closure letter 

stating they were unable to determine there was a substantial likelihood Ms. Curtis-Hunter’s allegations constituted 

agency wrongdoing that could be referred for investigation. 

S. Appx. 43. The OSC also sent a closure letter explaining 

that the OSC is not the proper forum for Ms. CurtisHunter’s allegations and directing her to the appropriate 

forums. S. Appx. 45–46. 

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CURTIS-HUNTER v. MSPB 3

In June 2022, Ms. Curtis-Hunter filed an IRA appeal 

with the Board alleging Mr. Guthland hacked her car and

stalked her and the VA improperly decreased her pay. S. 

Appx. 55–56. She also requested a hearing. One month 

later, the Board sent Ms. Curtis-Hunter an Order to Show 

Cause to establish the Board’s jurisdiction over her case. 

S. Appx. 58–66. After receiving Ms. Curtis-Hunter’s response, the Board dismissed the appeal for lack of jurisdiction without a hearing because she failed to make any nonfrivolous allegations she suffered a personnel action as a 

result of making a protected disclosure. S. Appx. 9. Ms. 

Curtis-Hunter appeals. We have jurisdiction under 5 

U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).

DISCUSSION

In reviewing a final decision of the Board, we must 

“hold unlawful and set aside any agency action, findings, 

or conclusions found to be (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, rule, 

or regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c). Whether the 

Board lacks jurisdiction is a question of law we review de 

novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. 

Cir. 1995). 

I 

The Board has jurisdiction over an IRA appeal if the 

appellant has exhausted her administrative remedies before the OSC and makes a non-frivolous allegation that

(1) she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in 

a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), 

(C), or (D); and (2) the protected disclosure or activity was 

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

to take a personnel action. 5 U.S.C. § 1221. An allegation 

is non-frivolous if the appellant “alleged sufficient factual 

matter, accepted as true, to state a claim that is plausible 

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4 CURTIS-HUNTER v. MSPB

on its face.” Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 

1369 (Fed. Cir. 2020). 

The Board determined that Ms. Curtis-Hunter failed to 

make a non-frivolous allegation that she made any protected disclosures or engaged in any protected action, and

failed to make a non-frivolous allegation that she suffered 

a personnel action as a result of either. S. Appx. 7, 9. On 

appeal, Ms. Curtis-Hunter argues the Board failed to consider her submitted evidence of a salary decrease, harassment, retaliation, and stalking in determining whether it 

had jurisdiction. We do not agree. 

Ms. Curtis-Hunter claims her salary was reduced by

several thousand dollars starting in 2016. See S. Appx. 56, 

69. In response to the Board’s Order to Show Cause, she 

submitted evidence of her pay and grade for 2009–2022 

(omitting 2011, 2015, 2018, 2020, and 2021).1 S. Appx. 71–

83. Ms. Curtis-Hunter contended her reduction in pay was 

part of the alleged retaliation for her EEO complaint or her 

disclosure to the OSC.2 S. Appx. 54, 56, 69. The Board 

1 Ms. Curtis-Hunter submitted similar evidence 

with her Memorandum in Lieu of Oral Argument, but we 

may not consider new evidence that was not before the 

Board. Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245 n.6 (Fed. 

Cir. 1991). We also note that in her Memorandum, Ms. 

Curtis-Hunter appears to now argue not that her pay was 

decreased in retaliation, but that in 2016 her “within-grade 

salary increase” was mistakenly omitted. Memorandum at 

1. As noted in the OSC closure letter of May 18, 2022, such 

claims are properly addressed to the Office of Personnel 

Management. S. Appx. 45–46. 2 Because Ms. Curtis-Hunter submitted this evidence in response to the Board’s Order to Show Cause regarding jurisdiction, we treat it as integral to her claim and 

therefore considered in determining whether she made

non-frivolous allegations to the Board. 

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CURTIS-HUNTER v. MSPB 5

correctly determined that the evidence provided by Ms. 

Curtis-Hunter did not support, but instead refuted her allegation that she experienced reduction in pay or grade. Id. 

The documentation submitted to the Board shows that 

since 2009 Ms. Curtis-Hunter’s pay and grade were consistently increased.3 S. Appx. 8, 71–83. 

With regards to Ms. Curtis-Hunter’s other allegations 

of retaliation, the Board concluded that the allegations 

were insufficient to show she was subjected to any agency 

personnel action. S. Appx. 9. We agree. Ms. Curtis-Hunter 

alleged that she was subjected to hacking of her cell phone 

and car, harassment, and stalking. None of these allegations constitute a personnel action under 5 U.S.C. 

§ 2302(a)(2)(A). In any event, Ms. Curtis-Hunter’s allegations are conclusory and unsupported by the evidence. See

5 C.F.R. § 1201.4(s)(1). For example, Ms. Curtis-Hunter 

alleged that her cell phone was hacked by Mr. Guthland. 

S. Appx. 69. In support of her allegation Ms. Curtis-Hunter 

provided to the Board a copy of a Complaint Referral Form 

she submitted to the Internet Crime Complaint Center (S. 

Appx. 84–85) and a hand-written note she submitted to TMobile (S. Appx. 93). This evidence only demonstrates Ms. 

Curtis-Hunter’s subjective belief her cell phone was hacked 

and does not substantiate her allegation. Ms. CurtisHunter failed to provide any non-frivolous allegations of 

3 While the Board analyzed Ms. Curtis-Hunter’s 

claim as an IRA appeal, reduction in pay is also a separate 

claim directly appealable to the Board. See Kloeckner v. 

Solis, 568 U.S. 41, 44 n.1 (2012) (quoting 5 U.S.C. § 7512). 

Ms. Curtis-Hunter’s evidence cannot support Board jurisdiction under this statute for the same reasons. 

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6 CURTIS-HUNTER v. MSPB

personnel actions taken, or not taken, by the agency.4 Accordingly, we affirm the Board’s dismissal for lack of jurisdiction.

II

Ms. Curtis-Hunter also argues the Board erred by failing to provide a hearing. We have held that a claimant is 

entitled to a hearing only if she first makes non-frivolous 

allegations. Garcia v. Dep’t of Homeland Sec., 437 F.3d 

1322, 1344 (Fed. Cir. 2006) (en banc); Hessami, 979 F.3d at

1371–72. Because Ms. Curtis-Hunter did not make any 

non-frivolous allegations, the Board’s dismissal without a 

hearing was appropriate. 

CONCLUSION

We have considered Ms. Curtis-Hunter’s remaining arguments and find them unpersuasive. For the foregoing 

reasons, we affirm the Board’s dismissal for lack of jurisdiction.

AFFIRMED

COSTS

No costs. 

4 The government suggests the Board used the 

wrong standard in its jurisdictional analysis of protected 

activity. Government Informal Response Br. at 13 n.4. Because we agree with the Board’s conclusion that there was 

not a non-frivolous allegation of an adverse personnel action, we need not determine if any of Ms. Curtis-Hunter’s

alleged disclosures satisfy 5 U.S.C. § 2302(b)(8) or alleged 

activities fall within 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or 

(D). 

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