NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SHIRLEY A. VARNADO,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2014-3107

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-13-0039-I-1.

______________________ 

Decided: March 6, 2015

______________________ 

SHIRLEY A. VARNADO, Davie, FL, pro se. 

KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 
2 VARNADO v. MSPB

Before PROST, Chief Judge, TARANTO, Circuit Judge, 

and FOGEL, District Judge.*

PER CURIAM.

The Merit Systems Protection Board dismissed all of 

Shirley Varnado’s claims as either filed too late or outside 

the Board’s jurisdiction. We affirm the Board’s decision, 

with one exception. As to Ms. Varnado’s claim regarding 

the denial of a within-grade increase in pay, we vacate the 

Board’s decision and remand to the Board for further 

consideration of whether Ms. Varnado was properly 

informed of how to establish jurisdiction over that claim 

and for any further appropriate proceedings. 

BACKGROUND 

Ms. Varnado joined the Drug Enforcement Agency 

(DEA) in 1987. She was removed from her job on September 20, 2007, for unacceptable performance. Thereafter, she alleges, the DEA’s unfavorable employment 

references prevented her from obtaining and keeping 

another job. In particular, Ms. Varnado states that she 

was offered a job and began work at the Florida Department of Children and Family Services, only to lose that 

job weeks later when the DEA communicated its negative 

reference. On October 10, 2012, after the Florida agency 

provided her a copy of the DEA’s reference, Ms. Varnado 

filed an appeal with the Board. 

In the form she submitted to the Board, Ms. Varnado

indicated that she was appealing several DEA actions, 

including her removal, the agency’s failure to reinstate 

her, the denial of a within-grade pay increase (which 

occurred in early 2007), a negative suitability determina-

* Honorable Jeremy Fogel, District Judge, United 

States District Court for the Northern District of California, sitting by designation.

 
VARNADO v. MSPB 3

tion, and the giving of a negative employment reference to 

the Florida agency more than two years after the removal, 

in alleged violation of a DEA regulation. Ms. Varnado 

alleged misconduct on the part of those who placed her on 

a performance-improvement plan, denied her a salary 

increase, and removed her from service; that the bases for 

those actions were false and contrived; and that DEA 

should not have provided “false, fraudulent, forged, and 

misleading” documents to potential employers. R.A. 25.

Recognizing that it had been more than five years 

since Ms. Varnado was removed from service in 2007, the 

administrative judge informed Ms. Varnado that her 

“appeal appeared to be untimely” and “directed [her] to 

file evidence and argument to establish either that her 

appeal was timely filed or that there was good cause for 

the late filing.” R.A. 2. Ms. Varnado responded that her 

appeal was timely because, in May 2007, she had filed a 

complaint of discrimination with the DEA, the agency had 

never issued a final decision on that complaint, and a 

Board regulation therefore allowed her to file an appeal 

with the Board at any time. See 5 C.F.R. § 1201.154(b)(2). 

The administrative judge determined that, although Ms. 

Varnado had filed a discrimination complaint on May 14, 

2007, before she was removed, she was collaterally estopped from asserting that the complaint related to her 

removal because a district court had determined otherwise in a lawsuit she brought involving that complaint. 

R.A. 3 & n.3; Varnado v. Mukasey, No. 08-61331-CIV, 

2010 WL 2196263, at *2 (S.D. Fla. June 1, 2010). The 

administrative judge therefore determined that Ms. 

Varnado’s appeal was “4 years, 11 months, and 19 days 

late” and then found that Ms. Varnado had not shown 

good cause for filing so late. R.A. 4. The administrative 

judge dismissed Ms. Varnado’s appeal without addressing 

other claims. 

On Ms. Varnado’s petition for review, the Board affirmed the administrative judge’s decision regarding her 
4 VARNADO v. MSPB

removal, and it found no Board jurisdiction over Ms. 

Varnado’s claims that the agency violated its own policies, 

committed prohibited personnel practices, and violated 

the National Labor Relations Act when it provided negative references to potential employers. As to Ms. Varnado’s challenge to the February 2007 denial of a withingrade wage increase, the Board found that Ms. Varnado 

had presented no evidence that she had received an 

agency decision reconsidering the denial, which ordinarily

is a jurisdictional prerequisite to challenging the action 

before the Board. See Goines v. M.S.P.B., 258 F.3d 1289, 

1292 (Fed. Cir. 2001). Finally, the Board determined that 

the agency had not made a negative suitability determination. 

In this court, Ms. Varnado argues that the Board misapplied the doctrine of collateral estoppel and that, regardless, her claim was timely because she filed it within 

30 days of being terminated from the Florida agency and 

receiving a copy of DEA’s negative reference. Alternatively, Ms. Varnado argues that she established good cause 

for her late filing. Ms. Varnado also continues to press 

her claim for the denial of a within-grade pay increase, 

which she states “was never adjudicated,” Pet’r’s Br. at

47. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 

now affirm the Board’s decision as to all but the claim

regarding the within-grade pay increase. 

DISCUSSION

We must affirm the Board’s decision unless it is “(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); see also Terban v. Dep’t of Energy, 216 

F.3d 1021, 1024 (Fed. Cir. 2000). 
VARNADO v. MSPB 5

A. Removal 

Ms. Varnado was removed from service effective September 20, 2007, and her 2012 appeal obviously did not 

come within the normal thirty-day rule for appeal. 5 

C.F.R. § 1201.22(b)(1). She argues for timeliness, however, based on 5 C.F.R. § 1201.154, which governs cases 

“[w]here the appellant has been subject to an action 

appealable to the Board” and chooses to “file a timely 

formal complaint of discrimination with the agency.” In 

such a case, the appellant must file with the Board within 

30 days of receiving the agency’s final decision on the 

discrimination issue. 5 C.F.R. § 1201.154(b)(1). “If the 

agency has not resolved the matter or issued a final 

decision on the formal complaint within 120 days, the 

appellant may appeal the matter directly to the Board at

any time after the expiration of 120 calendar days.” 

§ 1201.154(b)(2). 

Ms. Varnado relies on the complaint of discrimination 

she filed with the DEA on May 14, 2007, nearly four 

months before the effective date of her removal. In 2010, 

however, a district court dismissed Ms. Varnado’s disparate-treatment claims under Title VII of the Civil Rights 

Act and the Age Discrimination in Employment Act. 

Varnado, 2010 WL 2196263, at *2. In so doing, the court 

determined that Ms. Varnado’s claims were barred because she failed to exhaust her administrative remedies, 

reasoning that she had not spoken with an Equal Employment Opportunity Counselor until early April 2007, 

which was beyond the permitted 45-day period after the 

acts of alleged discrimination. Id. The court specifically 

considered whether Ms. Varnado had amended her claim 

to include her September 2007 removal and determined 

that she had not. Id. Ms. Varnado’s ensuing appeal was 

dismissed for failure to prosecute. Varnado v. U.S. Att’y 

General, No. 11-10417-II (11th Cir. Oct. 18, 2011) (entry 

of dismissal). 
6 VARNADO v. MSPB

The Board properly determined that Ms. Varnado 

could not benefit from § 1201.154(b)(2) because the district-court judgment collaterally estopped her from asserting that her May 2007 discrimination complaint related to 

her removal. Collateral estoppel applies when: “(i) the 

issue previously adjudicated is identical with that now 

presented, (ii) that issue was ‘actually litigated’ in the 

prior case, (iii) the previous determination of that issue 

was necessary to the end-decision then made, and (iv) the 

party precluded was fully represented in the prior action.” 

Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239 (Fed. Cir. 

1988) (quoting earlier authority). The Board properly 

found all four criteria satisfied as to the district court’s 

determination that Ms. Varnado’s complaint did not cover 

the September 2007 removal; that is what allowed the 

district court to find the April 2007 contact too late. That 

the court never reached the merits of her discrimination 

claim is immaterial, and we have been shown nothing to 

meet the demanding standard for questioning the fairness 

of the district-court proceeding. Thus, the Board properly 

concluded that Ms. Varnado could not benefit from 5 

C.F.R. § 1201.154(b)(2), and the Board’s finding that Ms. 

Varnado’s appeal of her removal was filed over four years 

late is supported by substantial evidence.1 

The Board also properly concluded that Ms. Varnado 

had not shown good cause for her filing delay. Good cause 

is broadly “committed to the Board’s discretion,” Mendoza 

v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)

(en banc), with the Board permitted to consider a range of 

1 Although Ms. Varnado seems to suggest otherwise, the dates on which she was removed from her Florida-agency job and learned of an allegedly negative DEA 

employment reference have no bearing on the starting of 

the clock for appeal of her September 2007 removal from 

federal employment. 

 
VARNADO v. MSPB 7

factors, see Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 

1582 (Fed. Cir. 1994). Here, the Board determined that 

the agency’s removal letter had apprised Ms. Varnado of 

her appeal rights and the relevant deadline and that Ms. 

Varnado had “not presented evidence of the existence of 

circumstances beyond her control that affected her ability 

to comply with the time limits or,” given her long delay, 

“shown due diligence in pursuing her appeal.” R.A. 15 (“A 

filing delay of 4 years and 11 months is not minimal, even 

when the appellant is pro se.”). These findings are supported by substantial evidence and are well within the 

Board’s discretion, given the removal letter, R.A. 81 

(letter of removal stating that Ms. Varnado “may appeal 

this action to the . . . Board . . . . no later than 30 calendar 

days after the effective date of [her] removal”), and the 

fact that Ms. Varnado did not file with the Board until 

more than two years after the district court’s dismissal, 

and one year after the appellate dismissal, of her disparate-treatment claims. We therefore affirm the Board’s 

dismissal of Ms. Varnado’s appeal of her 2007 removal 

from service. 

B. Within-Grade Pay Increase

Ms. Varnado continues to challenge the February 

2007 denial of a within-grade pay increase. R.A. 15 n.4; 

Pet’r’s Br. at 41. The hearing officer did not address this 

claim. R.A. 1–5. The Board rejected the claim, concluding that it lacked proof of jurisdiction because Ms. Varnado “presented no evidence that she received a 

reconsideration decision,” which is “a jurisdictional prerequisite for an appeal of a denial of” such a pay increase. 

R.A. 15 n.4. 

Under 5 U.S.C. § 5335(a), a federal employee who 

does not already receive the highest salary available to an 

employee of his or her grade is entitled, under certain 

circumstances, to regular increases in pay. An employee 

who is denied such an increase based on unacceptable 
8 VARNADO v. MSPB

performance may seek reconsideration of the decision, 

and if the decision remains unchanged, the employee may 

thereafter appeal to the Board. § 5335(c). We have held 

that the Board “has no jurisdiction over an appeal from 

the withholding of a within-grade increase unless the 

employee had sought reconsideration of that action by the 

agency in accordance with the agency’s requirements.” 

Goines, 258 F.3d at 1292. 

But no evidence has been presented to us indicating 

that Ms. Varnado was properly informed of how she could 

show jurisdiction over her wage-increase claim. Based on 

Burgess v. Merit Systems Protection Board, 758 F.2d 641 

(Fed. Cir. 1985), the Board routinely remands for further 

action by the administrative judge in situations where the 

petitioner has not received information regarding how to 

establish Board jurisdiction over his or her claim. Id. at 

643–44; e.g., Ney v. Dep’t of Commerce, 115 M.S.P.R. 204, 

209–10 (2010); Guzman v. Dep’t of Veterans Affairs, 114 

M.S.P.R. 566, 572–73 (2010) (“[B]ecause the administrative judge never informed the appellant of his burden and 

elements of proof for establishing such a claim, we must 

remand the appeal so that the appellant might receive 

such notice.”). On the record before us, we find it appropriate to remand this matter to the Board, particularly in 

light of Ms. Varnado’s pro se status. See Siman v. Dep’t of 

Air Force, 80 M.S.P.R. 306, 310–11 (1998); Boughton v. 

Dep’t of Agr., 94 M.S.P.R. 347, 350 (2003). 

We draw no conclusions about whether Ms. Varnado 

was actually notified about how to establish jurisdiction, 

about the issue of whether a reconsideration request was 

made, denied, or ignored, or about whether Ms. Varnado 

timely presented the wage-increase claim. We note that 

Ms. Varnado states that she sought reconsideration and 

at least implies that it was denied. Pet’r’s Br. at 18. She 

also has submitted certain allegedly relevant documents. 

E.g., Pet’r’s App. at Ex. 1 and Ex. 28. Moreover, even if 

she did not receive a reconsideration decision, the Board 
VARNADO v. MSPB 9

has elsewhere indicated that jurisdiction may rest on an 

unreasonable refusal to act on a request for reconsideration. Jack v. Dep’t of Commerce, 77 M.S.P.R. 332, 335

(2005). The government has not addressed Ms. Varnado’s 

wage-increase claim in its brief in this court. Therefore, 

we think it appropriate to remand this claim to the Board.

C. Remaining Claims

Ms. Varnado challenges the agency’s provision of negative references to other employers. Pet’r’s Br. at 4–6, 13, 

21– 24, 38–40. She does so on various grounds, such as 

alleged violation of agency policies. But the Board properly rejected Ms. Varnado’s claims as beyond the Board’s 

jurisdiction because the negative references themselves 

are not appealable, and there is no basis for treating the 

references as contributing to an appealable (and appealed) adverse action that is within the Board’s jurisdiction, such as removal. R.A. 16 (citing Shifflett v. Dep't of 

Navy, 83 M.S.P.R. 472, 474–75 (1999); Davis v. Dep’t of 

Defense, 105 M.S.P.R. 604, 611 (2007)); see Saunders v. 

Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985) 

(“Section 2302(b) [defining prohibited personnel actions] 

is not an independent source of appellate jurisdiction and 

does not itself authorize an appeal.”).2

This conclusion applies to Ms. Varnado’s various formulations: defamation, Pet’r’s Br. at 38–40; tortious 

2 In certain circumstances, such as “when the appellant claims retaliation for whistleblowing in violation 

of 5 U.S.C. § 2302(b)(8),” Davis, 105 M.S.P.R. at 611, the 

appellant may “seek corrective action from the Merit 

Systems Protection Board,” 5 U.S.C. § 1221(a). Although, 

in her brief to us, Ms. Varnado states that the negative 

references were made in retaliation for whistleblowing, 

see Pet’r’s Br. at 5, we see no evidence of such claims in 

her initial filing to the Board. See R.A. 21–30. 

 
10 VARNADO v. MSPB

interference with her Florida-agency employment contract, id. at 49; violation of the Privacy Act (citing 5 

U.S.C. § 552), Pet’r’s Br. at 41. The Board lacks jurisdiction over any such claims. See 5 C.F.R. § 1201.3 (outlining the Board’s appellate jurisdiction); see also Cook v. 

Merit Sys. Prot. Bd., 70 F.3d 1289, at *1 (Fed. Cir. 1995) 

(unpublished table decision) (“The Board does not have 

jurisdiction over actions involving state agencies or tort 

claims.”). The same is true of Ms. Varnado’s apparent 

challenge to the absence of the DEA Director’s signature 

on her Standard Form 50. R.A. 16.

The Board dismissed Ms. Varnado’s claim that the 

agency violated the National Labor Relations Act, determined that no negative suitability determination occurred, and did not independently address Ms. Varnado’s 

apparent appeal of a failure to reinstate her to employment (if this is different from her appeal of her removal). 

Ms. Varnado addresses none of these issues on appeal.

CONCLUSION

For the foregoing reasons, we vacate the Board’s decision dismissing Ms. Varnado’s appeal of the denial of a

within-grade pay increase and remand on that issue. We 

affirm the Board’s dismissal in all other respects.

No costs.

AFFIRMED IN PART, VACATED AND REMANDED

IN PART