NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

LORI D. MCLAUGHLIN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2022-1589

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-1221-22-0007-W-1.

______________________ 

Decided: April 7, 2023

______________________ 

LORI D. MCLAUGHLIN, Whitsett, NC, pro se. 

 JEFFREY GAUGER, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by ALLISON JANE BOYLE, 

KATHERINE MICHELLE SMITH. 

 ______________________ 

Before REYNA, BRYSON, and TARANTO, Circuit Judges.

PER CURIAM. 

Case: 22-1589 Document: 47 Page: 1 Filed: 04/07/2023
2 MCLAUGHLIN v. MSPB

Appellant Lori McLaughlin challenges a decision by 

the Merit Systems Protection Board dismissing her Individual Right of Action appeal for lack of jurisdiction. We 

affirm because McLaughlin’s disclosures (1) describe, at 

most, trivial violations or minor miscues and (2) fall within 

an exception to the MSPB’s jurisdiction because the disclosures were part and parcel of McLaughlin’s exercise of her 

Title VII rights. 

BACKGROUND

McLaughlin’s District Court Cases

McLaughlin is employed as a criminal investigator at 

the Department of Justice, Bureau of Alcohol, Tobacco, 

Firearms and Explosives (“ATF”). McLaughlin v. Dep’t of 

Just., No. DC-1221-22-0007-W-1, 2022 WL 199470 (Jan.

21, 2022) (“Decision”).

On August 16, 2017, McLaughlin filed suit in the Middle District of North Carolina, alleging employment discrimination and retaliation by ATF management officials

in violation of Title VII of the Civil Rights Act of 1964. 

McLaughlin v. Garland, No. 21-1399, 2022 WL 17336570, 

at *1 (4th Cir. Nov. 30, 2022). On October 26, 2017, the 

defendant filed a motion requesting a 30-day extension to 

respond to McLaughlin’s complaint. McLaughlin v. Sessions, No. 17-cv-759 (M.D.N.C.), ECF No. 8. The motion 

stated that counsel was not able to confer with McLaughlin 

about the extension request, “in part, [because] it is unclear 

whether Plaintiff has retained counsel.” Id. at ¶ 5. The 

court granted the motion the next day. McLaughlin, No. 

17-cv-759 (M.D.N.C.), ECF No. 9. 

On October 31, McLaughlin filed a “motion in opposition to” the defendant’s motion to extend. McLaughlin, No. 

17-cv-759 (M.D.N.C.), ECF No. 10. She asserted that the 

defendant was “intentionally delaying the litigation process” and “ha[d] failed to proffer any steps or actions taken 

Case: 22-1589 Document: 47 Page: 2 Filed: 04/07/2023
MCLAUGHLIN v. MSPB 3

to ascertain the answer to the Defendant’s question regarding the Plaintiff’s legal representation.” Id. at 1, 5.

On March 21, 2018, the district court dismissed the 

complaint for ineffective service. McLaughlin, No. 17-cv759 (M.D.N.C.), ECF No. 22. McLaughlin moved for reconsideration. McLaughlin, No. 17-cv-759 (M.D.N.C.), ECF 

No. 29. In her motion briefing, she stated: 

[T]he Plaintiff (pro se) has and will continue to accuse the Defendant of misrepresenting facts and 

misleading the court regarding the Defendant’s 

Motion to Extend Time to Respond to the Complaint. The Defendant clearly violated the Federal 

Rules of Civil Procedure [“FRCP”], as the Defendant failed to even attempt to contact the Plaintiff 

(pro se) regarding their motion.

McLaughlin, No. 17-cv-759 (M.D.N.C.), ECF No. 31, at 2. 

On June 8, 2018, the district court denied McLaughlin’s 

motion for reconsideration. McLaughlin, No. 17-cv-759 

(M.D.N.C.), ECF No. 32.

McLaughlin filed a second Title VII case on March 11, 

2020. McLaughlin v. Barr, No. 20-cv-230 (M.D.N.C.), ECF 

No. 1. Her complaint alleged, among other things, retaliation resulting from her first Title VII case. Id.; see also 

McLaughlin, No. 21-1399, 2022 WL 17336570, at *1. She 

alleged that in her first Title VII lawsuit: 

Lori McLaughlin . . . highlighted unethical conduct

committed by DOJ attorneys inside the civil action 

lawsuit. In fact . . . Lori McLaughlin filed a court 

motion accusing DOJ attorneys of misrepresenting 

facts and intentionally misleading the court regarding the Defendant’s Motion to Extend Time to 

Respond to the Complaint. . . . As a result, ATF 

notified . . . Lori McLaughlin that she was temporarily reassigned . . . . 

Case: 22-1589 Document: 47 Page: 3 Filed: 04/07/2023
4 MCLAUGHLIN v. MSPB

McLaughlin, No. 20-cv-230 (M.D.N.C.), ECF No. 1 at ¶¶ 8, 

10. The district court dismissed McLaughlin’s complaint 

in this second case as time-barred for failure to exhaust her 

administrative remedies, and the Fourth Circuit affirmed 

on appeal. McLaughlin, No. 21-1399, 2022 WL 17336570, 

at *1, *3. 

McLaughlin’s IRA Appeal

On September 26, 2021, McLaughlin filed an individual right of action (“IRA”) appeal with the Merit Systems 

Protection Board (“MSPB”). Decision at 1. She alleged that 

ATF “removed her from a ‘field’ criminal investigator position in reprisal for her protected whistleblowing activity.” 

Id. As she did in her second district court case, McLaughlin 

alleged that her removal was retaliation for the statements 

she made in her first district court case concerning the motion to extend. Id. at 2.

The MSPB issued a show cause order, requesting evidence and argument on whether it had jurisdiction. Id. After receiving arguments from McLaughlin and the 

government, the MSPB determined that it lacked jurisdiction. Id. at 3.

The MSPB found that the statements made in 

McLaughlin’s first Title VII case concerning the motion to 

extend were not “whistleblowing activity” that could give 

the MSPB jurisdiction. Id. at 7–8. The MSPB explained 

that case law “mak[es] clear that an allegation that an 

agency violated a law, rule or regulation raised in the context of a grievance, appeal or complaint [including a Title 

VII complaint] as defined by section 2302(b)(9) does not 

constitute protected whistleblowing activity within the 

meaning of section 2302(b)(8) in the absence of a claim of 

fraud, waste, abuse or unnecessary Government expenditures.” Id. at 8–9 (discussing, inter alia, Young v. Merit 

Sys. Prot. Bd., 961 F.3d 1323, 1328 (Fed. Cir. 2020), Serrao 

v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1576–77 (Fed. Cir. 

1996), and Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 

Case: 22-1589 Document: 47 Page: 4 Filed: 04/07/2023
MCLAUGHLIN v. MSPB 5

(Fed. Cir. 1992)). According to the MSPB, allowing claims 

like McLaughlin’s would: 

effectively mak[e] all allegations of discrimination 

or retaliation under Title VII raised in the context 

of a complaint, as well as any disclosure of a related 

statutory or regulatory violation raised in the same 

complaint, actionable whistleblowing activity in an 

IRA under section 2302(b)(8)(A)(i) regardless of 

whether the employee had the option to pursue a 

remedy in a forum expressly designed by Congress 

or the agency to investigate and provide remedial 

relief. 

Id. at 8. The MSPB found that “the appellant simply 

claims that a DOJ attorney failed to properly comply with 

a procedural rule governing the filing of a motion for an 

extension of time in the context of her Title VII complaint 

in district court and [the Whistleblower Protection Act 

(“WPA”)] was never intended to protect employees from 

these types of claims.” Id. at 8. Thus, the MSPB dismissed 

the IRA appeal for lack of jurisdiction.1 

McLaughlin appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(9). 

STANDARD OF REVIEW

We review MSPB decisions for whether they are “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; (2) obtained without 

1 The MSPB also dismissed McLaughlin’s IRA appeal on alternative grounds, which we need not reach to 

conclude that the MSPB lacked jurisdiction. See Decision 

at 8–9 (finding that McLaughlin (1) “failed to provide the 

requisite contextual facts and/or documentation” and (2) 

“failed to prove that her alleged disclosure was a contributing factor to the removal action”). 

Case: 22-1589 Document: 47 Page: 5 Filed: 04/07/2023
6 MCLAUGHLIN v. MSPB

procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c). “We review whether the MSPB has jurisdiction over an appeal de novo.” Coradeschi v. DHS, 439 

F.3d 1329, 1331 (Fed. Cir. 2006). 

DISCUSSION

McLaughlin argues that the MSPB erroneously dismissed her IRA appeal for lack of jurisdiction. We conclude 

that the MSPB lacked jurisdiction. 

I.

First, McLaughlin argues that the MPSB had jurisdiction because she “alleged an abuse of authority” or “violations of [a] law, rule, or regulation.” Op. Br. at 7, 10–14. 

We disagree. 

Under 5 U.S.C. § 1221(a), the MSPB has jurisdiction 

over IRA actions in certain retaliation cases. “[A] federal 

employee [may] seek corrective action from the [MSPB] for 

any personnel action . . . that the employee reasonably believes was taken in retaliation for any act of whistleblowing. . . .” Young, 961 F.3d at 1328. Section 2302(b)(8)(A)

defines “whistleblowing” as: 

[A]ny disclosure of information by an employee or 

applicant which the employee or applicant reasonably believes evidences— 

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, 

an abuse of authority, or a substantial and specific 

danger to public health or safety,

if such disclosure is not specifically prohibited by 

law and if such information is not specifically required by Executive order to be kept secret in the 

interest of national defense or the conduct of foreign affairs.

Case: 22-1589 Document: 47 Page: 6 Filed: 04/07/2023
MCLAUGHLIN v. MSPB 7

We have explained that the MSPB lacks jurisdiction 

over “disclosures of trivial violations” because they “do not 

constitute protected disclosures.” Langer v. Dep’t of Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). This is because 

the aim of the WPA “is to encourage reporting of a genuine 

violation of law rather than minor or inadvertent miscues 

occurring in the conscientious carrying out of a federal official or employee’s assigned duties.” Id. (citation omitted).

For example, in Herman we held that the MSPB had 

no jurisdiction over the alleged disclosure of trivial violations of an agency directive concerning confidentiality. 

Herman v. Dep’t of Just., 193 F.3d 1375, 1380–82 (Fed. Cir. 

1999) (The WPA “was intended to root out real wrongdoing.” (quoting Frederick v. Dep’t of Just., 73 F.3d 349, 353 

(Fed. Cir. 1996))). In Drake, we explained that allegations 

of “deliberate and intentional consumption of alcohol during working hours” in violation of a law, rule, or regulation

were non-trivial. Drake v. Agency for Int’l Dev., 543 F.3d 

1377, 1381–82 (Fed. Cir. 2008) (“Unlike Herman and 

Langer, Mr. Drake reported intoxication which he could 

reasonably believe constituted a genuine violation of a law, 

rule, or regulation.”); see also El v. Merit Sys. Prot. Bd., 663 

F. App’x 921, 925 (Fed. Cir. 2016) (A letter that “simply 

complained that every travel claim Mr. El had ever submitted had taken more than one month to be processed and 

reimbursed . . . did not allege any gross mismanagement or 

a gross waste of funds.” (citation omitted)).

Here, McLaughlin alleges that she disclosed that the 

government violated the FRCP by failing to meet and confer with her before requesting an extension of the deadline 

to respond to her district court complaint. These allegations, at most, describe a “trivial violation” or a “minor or 

inadvertent miscue” that does not fall within the statutory 

definition of “whistleblowing” to give the MSPB jurisdiction. Langer, 265 F.3d at 1266. The WPA was not intended 

to give rise to whistleblower lawsuits for allegations concerning a minor procedural misstep that occurred during a 

Case: 22-1589 Document: 47 Page: 7 Filed: 04/07/2023
8 MCLAUGHLIN v. MSPB

litigation. See Herman, 193 F.3d at 1380–82. Indeed, 

McLaughlin does not even assert that the district court 

found a FRCP violation or that the alleged violation had 

any bearing on the merits of the district court case. See, 

e.g., Op. Br. at 13 (conceding that McLaughlin’s “disclosures were made in motions practice unrelated to the substance of the claim before the [district] court”). Thus, the 

MSPB lacked jurisdiction.

II. 

Under Section 1221(a), in addition to granting corrective action for retaliation based on whistleblowing, the 

MPSB also can grant corrective action for prohibited practices described in 5 U.S.C. § 2302(b)(9)(A)(i). See Young, 

961 F.3d at 1329 (discussing 5 U.S.C. § 1221(a)). “Section 2302(b)(9)(A)(i) covers retaliation for exercising any 

appeal, complaint, or grievance right relating to whistleblowing, i.e, retaliation for seeking to remedy a violation of 

section 2302(b)(8).” Id. (citing Hicks v. Merit Sys. Prot. Bd., 

819 F.3d 1318, 1320 (Fed. Cir. 2016) (emphasis added)). 

Section 1221(a) does not give the MSPB jurisdiction to 

grant corrective action for prohibited personnel practices 

described in 5 U.S.C. § 2302(b)(9)(A)(ii). Id. Section 

2302(b)(9)(A)(ii) “covers retaliation for exercising any appeal, complaint, or grievance right other than one seeking 

to remedy a violation of section 2302(b)(8).” Id. For example, the MSPB does not have jurisdiction over alleged retaliation for filing Equal Employment Opportunity (“EEO”)

and discrimination complaints. Id. (collecting cases). Individuals who believe that they were subjected to prohibited practices outside the MSPB’s jurisdiction must 

proceed before other tribunals. Id. 

McLaughlin argues that her case is different from 

Young and its predecessors because those cases involved 

“employee[s] alleging retaliation for exercising a right under Title VII.” Op. Br. at 8. She, on the other hand, “alleged a willful violation of the FRCP.” Id. She believes that 

Case: 22-1589 Document: 47 Page: 8 Filed: 04/07/2023
MCLAUGHLIN v. MSPB 9

the fact that her “disclosures” occurred in pleadings in her 

Title VII case is not controlling because that “case is only 

tangentially related” to her disclosures. Id. at 10. In essence, McLaughlin asserts that Section 2302(b)(9)(A)(ii) is 

inapplicable because she is not alleging retaliation for filing her Title VII complaint and her disclosures do not allege discrimination. We disagree.

To be sure, her IRA appeal is not based on the fact that 

she filed a Title VII complaint or that she alleged discrimination. But it is still based on her “exercising a right under Title VII.” Id. at 8. The statements that she claims led 

to retaliation were made during her Title VII lawsuit and 

were directly related to her attempt to remedy alleged Title 

VII violations.2 See Young, 961 F.3d at 1329 (“Allegations 

of retaliation for exercising a Title VII right . . . do not fall 

within the scope of section 2302(b)(8) of the Whistleblower 

Protection Act and are therefore not proper subjects for inclusion in an IRA appeal on that ground.” (citing Serrao, 95 

F.3d at 1575–76; Spruill, 978 F.2d at 689)). Thus, the 

MSPB did not have jurisdiction because McLaughlin’s allegations fall within Section 2302(b)(9)(A)(ii). 

McLaughlin argues that we should extend our case law 

to find jurisdiction in her case for two main reasons. Neither persuades us. 

First, she argues that Conejo supports a finding of jurisdiction. Op. Br. at 9–10 (discussing Conejo v. Merit Sys. 

Prot. Bd., No. 2021-1347, 2021 WL 3891099 (Fed. Cir. Sept. 

1, 2021)). We find that Conejo is distinguishable. 

2 We do not resolve whether there are other situations where disclosures made in a Title VII lawsuit may 

give rise to MSPB jurisdiction—for instance, where a disclosure was made in a Title VII lawsuit but is unrelated to 

the alleged discrimination. See Decision at 6–8; see also id. 

at 15 n.18. 

Case: 22-1589 Document: 47 Page: 9 Filed: 04/07/2023
10 MCLAUGHLIN v. MSPB

In Conejo, we found that the MSPB erred in finding no 

jurisdiction because “it improperly characterize[d] Mr. 

Conejo’s allegation regarding denial of promotion as limited to retaliation for EEO activity to the exclusion of whistleblowing activity.” Conejo, No. 2021-1347, 2021 WL 

3891099, at *3. We explained that “Mr. Conejo nowhere 

alleged that the agency’s actions were only in retaliation 

for the filing of his EEO complaint on September 27, 2017. 

Rather, he identified fifty-three instances of allegedly ‘protected disclosures’ as giving rise to the purportedly retaliatory agency actions.” Id. The disclosures were related to 

improper “use of government funds, nepotism in hiring, 

and retaliatory actions against other agency employees.” 

Id. at *1.

Here, McLaughlin is not alleging retaliation for any 

whistleblower activity; she is alleging retaliation for statements made in her Title VII case and directly related to her 

exercise of Title VII rights. Unlike in Conejo, none of her 

“disclosures” fell outside that context. See also Young, 961 

F.3d at 1329 (“Section 2302(b)(9)(A)(i) covers retaliation for 

exercising any appeal, complaint, or grievance right relating to whistleblowing . . . .” (emphasis added)).

Second, McLaughlin argues that precluding jurisdiction in her situation would “mean that employees are prohibited from having whistleblower appeals and EEO 

complaints processing simultaneously, which Congress did 

not intend.” Reply Br. at 1. We disagree. The MSPB lacks 

jurisdiction here because McLaughlin is alleging “retaliation for exercising a Title VII right.” Young, 961 F.3d at 

1329. In other words, based on the facts alleged, McLaughlin is in the wrong forum. Id. McLaughlin is not generally 

precluded from filing whistleblower appeals in the MSPB, 

provided that she can allege other facts that satisfy the 

MSPB’s jurisdictional requirements. Id. 

Notably, McLaughlin does not dispute that “the WPA 

was not intended to duplicate EEO rights.” Reply Br. at 2. 

Case: 22-1589 Document: 47 Page: 10 Filed: 04/07/2023
MCLAUGHLIN v. MSPB 11

Nor does she dispute that she could seek redress for retaliation based on the alleged FRCP violation before the district court.3 Indeed, McLaughlin filed a second Title VII 

case, in which she alleged retaliation based on the very 

same statements she relies on in her IRA appeal. See 

McLaughlin, No. 20-cv-230 (M.D.N.C.), ECF No. 1 at ¶¶ 8,

10; McLaughlin, No. 21-1399, 2022 WL 17336570, at *1 

(4th Cir. Nov. 30, 2022) (explaining that McLaughlin “alleged that the reassignment was in retaliation for her EEO 

activities in January 2018 (which led up to the filing of this 

complaint)”); Decision at 2 (explaining that McLaughlin’s 

allegations stem from a motion filed in May 2018 in her 

first Title VII case). McLaughlin thus appears to be impermissibly seeking a second bite at the apple before a potentially more favorable tribunal. See Spruill, 978 F.2d at 692 

(“[I]nvestigative and remedial measures are available to 

Spruill through the EEOC. The OSC policy of avoiding duplication of effort by referring discrimination matters to the 

EEOC conserves governmental resources and avoids potentially conflicting procedures or outcomes.”).

In sum, the MSPB correctly found that it lacked jurisdiction over McLaughlin’s IRA appeal. McLaughlin’s allegations are outside the MSPB’s jurisdiction because (1) her 

allegations amount to “disclosures of trivial violations” and 

(2) she alleged “retaliation for exercising . . . [a] right other 

than one seeking to remedy a violation of section 

2302(b)(8).” Langer, 265 F.3d at 1266; Young, 961 F.3d at 

1329. 

3 See Op. Br. at 7–10; see also Reply Br. at 2–3; Resp. 

Br. at 29 (“Ms. McLaughlin’s allegation that the government deliberately failed to comply with a procedural rule 

in defending against her EEO suit is a claim that could be 

raised through the EEO process and therefore is not protected whistleblowing activity under (b)(8).”). 

Case: 22-1589 Document: 47 Page: 11 Filed: 04/07/2023
12 MCLAUGHLIN v. MSPB

CONCLUSION

The MSPB correctly dismissed McLaughlin’s IRA appeal for lack of jurisdiction. We have considered McLaughlin’s remaining arguments and find them unpersuasive. 

We affirm. 

AFFIRMED

COSTS

No costs.

Case: 22-1589 Document: 47 Page: 12 Filed: 04/07/2023