NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3167 

HOMI N. AMIRMOKRI, 

Petitioner, 

v. 

DEPARTMENT OF ENERGY, 

Respondent. 

Morris E. Fischer, Law Office of Morris E. Fischer, of Bethesda, Maryland, 

argued for petitioner. 

Christopher A. Bowen, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

respondent. With him on the brief were Jeanne E. Davidson, Director, Todd M. Hughes, 

Assistant Director. Of counsel was Claudia Burke, Trial Attorney. 

 Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit

2008-3167 

HOMI N. AMIRMOKRI, 

 Petitioner, 

v. 

DEPARTMENT OF ENERGY, 

 Respondent. 

Petition for review of the Merit Systems Protection Board 

in DC1221070864-W-1. 

___________________________ 

DECIDED: February 17, 2009 

___________________________ 

Before RADER, BRYSON, and MOORE, Circuit Judges. 

PER CURIAM. 

DECISION 

Homi N. Amirmokri petitions for review of a final decision of the Merit Systems 

Protection Board denying his request for corrective action following an agency 

reprimand. We affirm the decision of the Board. 

BACKGROUND 

Mr. Amirmokri is a nuclear engineer who works at the Department of Energy’s 

Office of Nuclear Energy in Germantown, Maryland. On the morning of October 27, 
2006, he was involved in an altercation in that office’s cafeteria. After the altercation, 

the Deputy Director of Nuclear Operations removed Mr. Amirmokri from the premises 

and issued him a letter of reprimand for inappropriate behavior. The letter stated that 

Mr. Amirmokri was being reprimanded for approaching another individual in a manner 

that caused the individual to perceive a physical threat. 

On March 20, 2007, Mr. Amirmokri filed a complaint with the Department of 

Energy’s Equal Employment Opportunity Office (“EEO”) alleging that his removal from 

the office and his reprimand were the result of discrimination on the basis of national 

origin as well as retaliation for whistleblowing activities. Then, on August 15, 2007, Mr. 

Amirmokri filed an Individual Right of Action complaint with the Merit Systems Protection 

Board. That complaint alleged that his removal from the office and the issuance of a 

letter of reprimand were in retaliation for his prior whistleblowing activities. An 

administrative judge of the Merit Systems Protection Board held a hearing to evaluate 

that claim. 

On November 15, 2007, the administrative judge issued an initial decision 

denying Mr. Amirmokri’s claim that he had been retaliated against for whistleblowing. 

The administrative judge first determined that Mr. Amirmokri had made nonfrivolous 

allegations that he had engaged in protected whistleblowing activity in 2003 and 2004 

and that his protected disclosures were a contributing factor in the agency’s disciplinary 

action. The administrative judge then determined that despite Mr. Amirmokri’s 

reasonable belief that his whistleblowing activity had been a contributing factor in his 

having been disciplined, the agency had demonstrated, by clear and convincing 

evidence, that it would have taken the same disciplinary actions in the absence of Mr. 

2008-3167 2 
Amirmokri’s protected activities. The administrative judge reached that conclusion 

because the agency’s actions were supported by “five written statements by agency 

employees and contractors who observed the October 27, 2006, incident in the 

cafeteria.” The administrative judge explained that the witness statements were “strong 

evidence of the appellant’s misconduct.” The judge also found that Mr. Amirmokri’s 

supervisor had “little or no motive to retaliate” for Mr. Amirmokri’s whistleblowing 

activity, as the supervisor “was not shown to have suffered any adverse consequences 

because of the activity when it occurred or at any time since then.” The administrative 

judge’s decision became the Board’s final decision on December 20, 2007. On 

February 20, 2008, Mr. Amirmokri filed the instant petition for review of that final 

decision. 

On April 8, 2008, the EEO issued its Final Agency Decision, finding that Mr. 

Amirmokri had failed to establish by a preponderance of evidence that he had been 

subject to either discrimination based on national origin. With respect to the allegation 

that he was subject to retaliation due to his whistleblowing activity, the agency noted 

that “whistle-blowing activity is not protected under Title VII.” 

On April 21, 2008, Mr. Amirmokri filed suit against the Department of Energy in 

the United States District Court for the District of Maryland. Amirmokri v. Department of 

Energy, No. 09-cv-00994. In his complaint, Mr. Amirmokri alleged the same two claims 

that he had brought before the EEO. In the first count, Mr. Amirmokri alleged that his 

removal from the building and his letter of reprimand were the result of national origin 

discrimination. The second count alleged that the agency removed him from the 

building and reprimanded him in retaliation for prior whistleblowing activities. 

2008-3167 3 
DISCUSSION 

The government contends that the Merit Systems Protection Board lacked 

subject matter jurisdiction over this appeal and that we should therefore dismiss the 

petition. The government’s argument is that when Mr. Amirmokri began the EEO 

process with the agency, he immediately became barred from filing an appeal to the 

Board by 29 C.F.R. § 1614.302. That regulation provides, in pertinent part, as follows: 

(a) Definitions – 

(1) Mixed case complaint. A mixed case complaint is a complaint of 

employment discrimination filed with a federal agency based on race, 

color, religion, sex, national origin, age or handicap related to or stemming 

from an action that can be appealed to the Merit Systems Protection 

Board (MSPB). The complaint may contain only an allegation of 

employment discrimination or it may contain additional allegations that the 

MSPB has jurisdiction to address. 

(2) Mixed case appeals. A mixed case appeal is an appeal filed with the 

MSPB that alleges that an appealable agency action was effected, in 

whole or in part, because of discrimination on the bases of race, color, 

religion, sex, national origin, handicap or age. 

In his original complaint to the EEO, Mr. Amirmokri alleged discrimination on the 

basis of national origin and a violation of the Whistleblower Protection Act. The alleged 

act of discrimination was related to an action that could be appealed to the Merit 

Systems Protection Board, which has jurisdiction over whistleblowing claims under 5 

U.S.C. § 1214(a)(3), 5 U.S.C. § 1221, and 5 C.F.R. § 1209.2. Mr. Amirmokri’s 

complaint to the EEO was thus a “mixed case complaint.” Mr. Amirmokri’s appeal to the 

Board, by contrast, alleged solely a retaliation claim for whistleblowing activities and 

made no mention of discrimination. As such, his appeal to the Board was not a “mixed 

case appeal” under 29 C.F.R. § 1614.302(a). 

2008-3167 4 
The effect of filing mixed actions is discussed in 29 C.F.R. § 1614.302(b). That 

section provides as follows, in pertinent part: 

(b) Election. An aggrieved person may initially file a mixed case complaint 

with an agency pursuant to this part or an appeal on the same matter with 

the MSPB pursuant to 5 CFR 1201.151, but not both. An agency shall 

inform every employee who is the subject of an action that is appealable 

to the MSPB and who has either orally or in writing raised the issue of 

discrimination during the processing of the action of the right to file either a 

mixed case complaint with the agency or to file a mixed case appeal with 

the MSPB. The person shall be advised that he or she may not initially file 

both a mixed case complaint and an appeal on the same matter and that 

whichever is filed first shall be considered an election to proceed in that 

forum. 

 

The first sentence of section 1614.302(b) makes clear that a claimant may not file both 

a mixed case complaint and an appeal pursuant to 5 C.F.R. § 1201.151, which applies 

to allegations that a personnel action was “based, in whole or in part, on prohibited 

discrimination.” 5 C.F.R. § 1201.151. As Mr. Amirmokri’s claim to the Board did not 

allege discrimination, the first sentence of section 1614.302(b) does not prohibit his 

simultaneous pursuit of those two claims. While the second sentence of section 

1614.302(b) explicitly prohibits the filing of both a mixed case complaint and a mixed 

case appeal, Mr. Amirmokri did not file a mixed case appeal and is thus not barred by 

that prohibition. Finally, the third sentence of section 1614.302(b) simply reiterates the 

rule from the opening sentence that a claimant may not initially file both a mixed case 

complaint and an appeal “on the same matter.” Therefore, nothing in section 

1614.302(b) barred Mr. Amirmokri from filing an appeal with the Board, even though he 

had previously filed a claim with the EEO. 

Another subsection of section 1614.302, 29 C.F.R. § 1614.302(d), establishes 

the procedures applicable when a claimant initially files a mixed case complaint with the 

2008-3167 5 
EEO, as Mr. Amirmokri has done in this case. We recently outlined the operation of that 

provision within the regulatory framework. See Toyama v. Merit Sys. Prot. Bd., 481 

F.3d 1361 (Fed. Cir. 2007). As we explained in Toyama: 

The EEOC’s regulations specify that parties with mixed cases may elect to 

proceed under either the MSPB’s procedures or the EEOC’s procedures, 

but not both. 29 C.F.R. § 1614.302(b); 5 C.F.R. § 1201.154. Under the 

EEOC’s regulations, separate procedures apply to a party presenting a 

mixed case complaint, as compared to a pure discrimination complaint. 

29 C.F.R. § 1614.302(a). Specifically, the EEOC’s procedures dictate that 

after the agency issues its final decision on a mixed case complaint, 

aggrieved parties may appeal to the MSPB or may file a civil action in 

district court. 29 C.F.R. § 1614.302(d). . . . 

By contrast, pure discrimination complaints follow the general 

EEOC procedures contained in subpart A. Those general procedures 

permit appeal of the agency’s final decision only to the EEOC’s OFO or 

filing a civil action in district court. 29 C.F.R. § 1614.110(a). 

Parties proceeding with a mixed case appeal to the MSPB have 

thirty days from the Board’s final decision to petition the EEOC for 

consideration or to file a civil action in the district court. 5 C.F.R. § 

1201.157. Alternately, such parties may appeal directly to this court if 

willing to waive discrimination issues. Id.

Toyama, 481 F.3d at 1365. These separate procedures apply to the mixed case 

complaint that Mr. Amirmokri filed with the EEO. After the agency issues its decision on 

a mixed case complaint, or 120 days after the date of the EEO filing if a final decision is 

not issued within that time, the complainant may appeal to the Merit Systems Protection 

Board or file a civil action in district court. 29 C.F.R. § 1614.302(d). The complainant 

may not both appeal to the Board and file a civil action. Id.

Mr. Amirmokri did not wait until either the EEO had issued a final decision or 120 

days had elapsed. Instead, while the EEO proceeding was still pending, he filed an 

appeal with the Board that did not include his discrimination claims. If that filing had 

raised issues of prohibited discrimination, it would have been a mixed case appeal, and 

the Board would have dismissed the appeal without prejudice under 5 C.F.R. 

2008-3167 6 
2008-3167 7 

§ 1201.154(c). However, because Mr. Amirmokri did not allege discrimination in his 

complaint before the Board, that section was inapplicable. Accordingly, there is nothing 

in the regulations to which we have been directed that limits the Board’s jurisdiction over 

Mr. Amirmokri’s action or our jurisdiction over his petition for review. We therefore turn 

to the merits of Mr. Amirmokri’s claim.1

 

Substantial evidence supports the Board’s conclusion that the agency would 

have taken disciplinary action against Mr. Amirmokri even if he had never engaged in 

any whistleblowing activity. The Board rested its conclusion that Mr. Amirmokri had 

acted in an inappropriately threatening manner on the oral testimony of two witnesses to 

the incident in the cafeteria, the written testimony of two additional witnesses to the 

incident, and the oral testimony of Mr. Amirmokri’s supervisor, all of which supported 

that conclusion. To the degree that the Board’s conclusions were based on credibility 

determinations, they are “virtually unreviewable” by this court. Gibson v. Dep’t of the 

Army, 160 F.3d 722, 725 (Fed. Cir. 1998). In addition, the Board’s determination that 

the Deputy Director of Nuclear Operations had little or no motive to retaliate was amply 

supported by evidence that the supervisor had suffered no adverse consequences from 

Mr. Amirmokri’s protected disclosures. We therefore uphold the Board’s decision 

denying Mr. Amirmokri’s request for corrective action in this case. 

 

1

 Mr. Amirmokri’s pending action in the district court, which he filed after he 

filed his petition in this court, is not pertinent to our conclusion that we have jurisdiction 

to consider his whistleblowing retaliation claim.