NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

MARDIC JOHNSON,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2021-2136

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-1221-20-0201-W-3.

______________________ 

Decided: September 26, 2022

______________________ 

MARDIC JOHNSON, Lawrenceville, GA, pro se. 

 STEPHEN FUNG, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by TRISTAN L. LEAVITT, 

KATHERINE MICHELLE SMITH. 

 ______________________ 

Before NEWMAN, STOLL, and CUNNINGHAM, Circuit 

Judges. 

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2 JOHNSON v. MSPB

PER CURIAM.

Mardic Johnson appeals an administrative judge’s decision to dismiss her appeal before the Merit Systems Protection Board. App. 1–9. For the reasons below, we affirmin-part and vacate-in-part the administrative judge’s decision and remand for further proceedings.

I. BACKGROUND

Ms. Johnson was employed as an education technician 

with the Centers for Disease Control University in Atlanta, 

Georgia, until she retired on June 30, 2019. App. 1–2. She 

served as a federal government employee for 34 years. 

Suppl. App. 16. Although this appeal dates to 2019, it is 

important to turn back the clock another decade to understand the relevant background.

In 2008, Ms. Johnson submitted two administrative 

complaints.1 She first submitted a complaint with the Office of Special Counsel alleging “manipulation [of a] job announcement in order to provide advantage or preference in 

promotion to another employee.” Suppl. App. 41. OSC 

closed Ms. Johnson’s complaint the following year. Suppl. 

App. 56. Two months after filing her OSC complaint, Ms. 

Johnson filed a complaint with the Department of Health 

and Human Services alleging that she was the target of 

“discrimination on the basis of reprisal for prior protected 

EEO activity.” EEOC Decision No. 0120092999, 2011 WL 

2433190, at *1. HHS dismissed Ms. Johnson’s complaint 

1 Ms. Johnson and the administrative judge stated 

that Ms. Johnson filed her Office of Special Counsel complaint in 2007 and her Equal Employment Opportunity 

Commission complaint in 2009. See App. 1–2; Suppl. App. 

41. She filed both complaints in 2008, however. See App. 

132; EEOC Decision No. 0120092999, 2011 WL 2433190, 

at *1 (June 8, 2011). Throughout this opinion, we refer to 

each complaint as having been filed in 2008.

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JOHNSON v. MSPB 3

for failure to state a claim. Id. Ms. Johnson appealed to 

the EEOC, and the EEOC affirmed HHS’s decision in 2011. 

Id. at *1, 3.

Later, in 2018, Ms. Johnson filed a grievance with the 

director of CDC University, Ron Lake, over her experience 

with a coworker, Tonya Freeman, whom Ms. Johnson alleges engaged in threatening and intimidating behavior. 

App. 142; Suppl. App. 57, 60. Mr. Lake did not reassign 

Ms. Johnson based on her grievance, and Ms. Johnson did 

not elevate her grievance to Mr. Lake’s supervisor. App. 

142–43; Suppl. App. 57. 

Then, in August 2019, following her retirement, Ms. 

Johnson filed a new complaint with OSC claiming that she 

was the victim of retaliation and other mistreatment. 

Suppl. App. 27–36. Two months later, OSC informed Ms. 

Johnson that it was closing her complaint and that she had 

a right to file an individual right of action (“IRA”) appeal 

with the Board. Suppl. App. 23–26. 

Ms. Johnson exercised that right. Suppl. App. 15–22. 

She completed MSPB Form 185 and answered question 18

to indicate that she was filing an IRA appeal. Suppl. App. 

15, 18. She wrote “no choice but to retire” next to the words 

“involuntary retirement” on the preceding page. Suppl. 

App. 17. Ms. Johnson indicated that she identified “the 

most recent incidents” and chose to do so after retiring because of “fear of continued mistreatment/retaliation.” 

Suppl. App. 36. She also stated that she retired because of 

“stressful conditions at the CDC.” Id.

Ms. Johnson alleges that she had the following negative experiences: (1) the CDC canceled her health insurance during a furlough in 2018, Suppl. App. 34; (2) Ms. 

Freeman subjected her to allegedly threatening and hostile 

behavior, Suppl. App. 46–47, 53, 57–58; (3) Mr. Lake denied Ms. Johnson’s request to be reassigned after Ms. Freeman’s alleged behavior, Suppl. App. 60; (4) the CDC

incorrectly told Ms. Johnson that she did not qualify for a 

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4 JOHNSON v. MSPB

new position within the CDC, which further interfered 

with her preparation for the job interview, Suppl. App. 

32–33; (5) Ms. Johnson discovered that a decision related 

to her previous appeal to the EEOC could be found on 

Google,2 Suppl. App. 35, 67; (6) Ms. Johnson was instructed 

to manage Microsoft desktop courses that were previously 

managed at the GS-11 level despite her being a GS-7 

graded employee, Suppl. App. 35; (7) Ms. Johnson’s department underwent restructuring so that certain courses that 

she used to manage would only be managed by GS-9, 

GS-11, and GS-12 graded employees, Suppl. App. 36; 

(8) Ms. Johnson suffered from computer problems, which 

she believes were the result of tampering, for three months, 

Suppl. App. 43; and (9) human resources personnel gave 

her incorrect guidance on how to submit her retirement paperwork, resulting in her not receiving her pension for several months, Suppl. App. 43–44, 125–26.

Soon after Ms. Johnson filed her appeal, the administrative judge issued two orders: one directing Ms. Johnson 

to provide evidence of Board jurisdiction over her IRA appeal and another directing Ms. Johnson to provide evidence 

of Board jurisdiction over her “involuntary retirement” 

claim. App. 44–57. Ms. Johnson filed two responses in 

January 2020. Suppl. App. 41–81.

Nevertheless, the administrative judge dismissed the

appeal. App. 1–9. In so doing, the administrative judge

only analyzed Ms. Johnson’s IRA appeal without addressing the “involuntary retirement” claim that the administrative judge had previously identified. App. 1. The 

2 Although Ms. Johnson referred to this document as 

her 2009 (sic) OSC complaint, a review of the URL submitted with her filings shows that it is a denial of reconsideration related to her EEOC complaint. Suppl. App. 67; 

EEOC Decision No. 0520120086 (Feb. 28, 2012), available 

at https://www.eeoc.gov/decisions/0520120086.txt. 

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JOHNSON v. MSPB 5

administrative judge wrote that the Board has jurisdiction 

over an IRA appeal if two conditions are met. App. 3 (citing 

Linder v. Dep’t of Just., 122 M.S.P.R. 14, ¶ 6 (M.S.P.B. 

2014)). First, the appellant must have exhausted all her 

administrative remedies before OSC. Id. Second, the appellant must non-frivolously allege (1) that she has made 

protected whistleblowing disclosures or engaged in such 

protected activity and (2) that those disclosures or protected activities were a contributing factor in the agency’s 

decision to take or fail to take a personnel action. Id. The 

administrative judge concluded that only Ms. Johnson’s 

2008 OSC complaint constituted a protected disclosure. 

App. 5–6. The administrative judge then found that the 

Board lacked jurisdiction because Ms. Johnson failed to 

non-frivolously allege that the 2008 OSC complaint was a 

contributing factor to any of the alleged personnel actions 

that caused her negative experiences. App. 9.

Ms. Johnson appealed. We have jurisdiction under 28 

U.S.C. § 1295(a)(9).

II. DISCUSSION

Ms. Johnson appeals the administrative judge’s decision that the Board did not have jurisdiction. Our review 

is similarly limited to examining whether the Board has 

jurisdiction over Ms. Johnson’s appeal—it is not for us to 

decide if judgment is properly entered in Ms. Johnson’s favor.

“Whether the Board has jurisdiction over an appeal is 

a question of law we review de novo.” Hessami v. Merit Sys. 

Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020). In other 

words, we do not defer to the administrative judge’s legal 

conclusions. By contrast, we review the Board’s underlying 

factual findings for whether they are supported by substantial evidence. Bryant v. Merit Sys. Prot. Bd., 878 F.3d 1320, 

1325 (Fed. Cir. 2017).

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6 JOHNSON v. MSPB

A. The IRA Appeal

We first turn to the administrative judge’s conclusion 

that the Board lacks jurisdiction over Ms. Johnson’s IRA 

appeal. We have explained that for an appellant to establish Board jurisdiction over an IRA appeal under 5 U.S.C. 

§ 1221: 

[I]t suffices that an appellant exhaust his remedies 

before the Office of Special Counsel and present 

‘non-frivolous allegations’ that (1) he made a protected disclosure under 5 U.S.C. §§ 2302(b)(8) or 

2302(b)(9)(A)(i), (B), (C), or (D) and that (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as 

defined by 5 U.S.C. § 2302(a).

Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. 

Cir. 2016) (citing 5 U.S.C. § 1221(e)(1)). 

Like the administrative judge, we focus on whether Ms. 

Johnson’s allegations are sufficient to show Board jurisdiction over her IRA appeal. We conclude that they are insufficient. 

1. Protected Disclosure

The administrative judge concluded that only Ms. 

Johnson’s 2008 OSC complaint is a protected disclosure 

that can form the basis for an IRA appeal. App. 5–6. Ms. 

Johnson now argues that her grievance could also constitute a protected disclosure because it was not filed with the 

EEOC. See Pet’r’s Reply Br. 5. We disagree. 

As noted, an IRA appellant must non-frivolously allege 

that she has made a protected disclosure under 5 U.S.C. 

§§ 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. 

§ 1221(e)(1). Section 1221(e)(1) does not refer to

§ 2302(b)(9)(A)(ii). Therefore, if an IRA appeal is based on 

§ 2302(b)(9)(A)(ii)—i.e., it is based on an appellant making 

a disclosure by “the exercise of any appeal, complaint, or 

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JOHNSON v. MSPB 7

grievance right granted by any law, rule, or regulation . . . 

other than with regard to remedying a violation of” 

§ 2302(b)(8)—then the Board does not have jurisdiction. In 

relevant part, § 2302(b)(8) prohibits an agency from taking 

or failing to take a personnel action with respect to an employee or applicant for employment for making a disclosure 

of “(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 . . . .” 5 U.S.C. § 2302(b)(8)(A). 

Ms. Johnson’s grievance was about how Ms. Freeman’s 

allegedly threatening behavior was a “perceived . . . abuse 

of authority.” Pet’r’s Br. 7; Suppl. App. 34. Her grievance 

did not seek to remedy a situation where an agency took or 

failed to take a personnel action against an individual for 

disclosure of “(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 . . . .” 5 U.S.C. § 2302(b)(8). Here, 

Ms. Johnson filed a grievance “other than with regard to 

remedying a violation of” § 2302(b)(8). Because Ms. Johnson’s grievance constituted a disclosure under 

§ 2302(b)(9)(A)(ii), it cannot form the basis for Board jurisdiction under § 1221(e)(1). 

Ms. Johnson seems to argue that her grievance is a protected disclosure under § 2302(b)(9)(A)(i) because she “did 

not file a formal grievance under the negotiated grievance 

procedure with” the EEOC. Pet’r’s Reply Br. 5. This argument does not change the analysis. It does not matter that

Ms. Johnson did not file her grievance with the EEOC—

§ 2302(b)(9)(A)(ii) extends to “any . . . grievance right 

granted by any law, rule, or regulation.” 5 U.S.C. 

§ 2302(b)(9)(A)(ii) (emphasis added).

2. Contributing Factor

Having concluded that Ms. Johnson’s 2008 OSC complaint was her only protected disclosure, we must now 

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8 JOHNSON v. MSPB

determine whether she has non-frivolously alleged that 

“the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined 

by 5 U.S.C. § 2302(a).” Cahill, 821 F.3d at 1373. In so doing, our inquiry, like the Board’s, is “limited to evaluating 

whether the appellant has alleged sufficient factual matter, accepted as true, to state a claim that is plausible on 

its face.” Hessami, 979 F.3d at 1364.

One way of establishing that a disclosure was a “contributing factor” is with the “knowledge/timing” test under 

§ 1221(e)(1). Kewley v. Dep’t of Health & Hum. Servs., 153 

F.3d 1357, 1361–62 (Fed. Cir. 1998). To meet this test, an 

appellant must present evidence that “(A) the official taking the personnel action knew of the disclosure or protected 

activity; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude 

that the disclosure or protected activity was a contributing 

factor in the personnel action.” 5 U.S.C. § 1221(e)(1). The 

administrative judge held that Ms. Johnson’s allegations 

were insufficient to satisfy either prong of the test. App. 

6–7. Specifically, the administrative judge (1) concluded 

that Ms. Johnson did not allege that the agency personnel 

involved in the alleged retaliation were aware of her 2008 

OSC complaint and (2) noted that each allegedly retaliatory action occurred “way beyond” the period that would 

satisfy the knowledge/timing test. Id. at 7.

We agree with the administrative judge that Ms. Johnson’s allegations fail the knowledge/timing test. Ms. Johnson does not challenge the administrative judge’s finding 

that the relevant personnel actions were remote in time 

from the 2008 OSC complaint. Pet’r’s Reply Br. 9. And we 

agree that, because each relevant action occurred about a 

decade after Ms. Johnson filed that complaint, substantial 

evidence supports the administrative judge’s finding that a 

reasonable person would not “conclude that the disclosure 

or protected activity was a contributing factor” to the relevant actions. 5 U.S.C. § 1221(e)(1). Accordingly, Ms. 

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JOHNSON v. MSPB 9

Johnson fails to meet the requirements of the 

knowledge/timing test. 

Even if Ms. Johnson seeks to show that the 2008 OSC 

complaint was a “contributing factor” without relying on 

the knowledge/timing test, she must still make non-frivolous allegations. Specifically, Ms. Johnson must make nonfrivolous allegations that “the disclosure was a contributing factor in the agency’s decision to take or fail to take 

a personnel action.” Cahill, 821 F.3d at 1373. Such nonfrivolous allegations might address, for example, the 

strength or weakness of the agency’s reasons for taking the 

personnel action, whether the whistleblowing was personally directed at Mr. Lake, and whether Mr. Lake had a desire or motive to retaliate against Ms. Johnson. Among 

other things, a non-frivolous allegation must be more than 

conclusory; in other words, it must consist of more than a 

general assertion of what Ms. Johnson must show. See 5 

C.F.R. § 1201.4(s). 

We agree with the administrative judge that Ms. Johnson has not made such non-frivolous allegations. See App. 

6–9. Ms. Johnson alleges that Mr. Lake was aware of the 

complaint and “delegate[d] the retaliation” to Tonya Freeman, Tameka Jones, and unnamed human resources personnel. Suppl. App. 56; see Pet’r’s Reply Br. 9. But this 

allegation is conclusory—Ms. Johnson does not explain 

why or how Mr. Lake would have delegated retaliatory actions to those individuals. 

Ms. Johnson also submitted to the administrative 

judge an email showing that Mr. Lake denied Ms. Johnson 

her requested reassignment. Suppl. App. 60. As the Board

notes, we could read this email as an allegation that Mr. 

Lake denied Ms. Johnson’s requested reassignment as a 

form of retaliation. See Suppl. App. 7–8; Resp’t’s Br. 23–24. 

But even if we were to so construe this email, there is no 

explanation of whether or why Mr. Lake would be motivated to take this action as a form of retaliation. Because 

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10 JOHNSON v. MSPB

Ms. Johnson only makes conclusory allegations that the 

2008 OSC complaint was a contributing factor to any alleged retaliation, she has failed to put forward non-frivolous allegations sufficient to show Board jurisdiction over 

her IRA appeal. Accordingly, we affirm the administrative 

judge’s dismissal of Ms. Johnson’s IRA appeal.

B. The “Involuntary Retirement” Claim

In addition to her IRA appeal, Ms. Johnson also alleged 

that she involuntarily retired and that amounted to constructive removal. See Suppl. App. 17 (Ms. Johnson writing “no choice but to retire” on MSPB appeal form); App. 53 

(Board order on jurisdiction stating that Ms. Johnson 

“claims an involuntary retirement or resignation”); Suppl. 

App. 50 (Ms. Johnson’s submission of proof of jurisdiction 

with respect to “involuntary retirement”). Ms. Johnson 

now argues that the administrative judge “has not identified if [the Board] has jurisdiction over the claim of constructive removal/involuntary retirement.” Pet’r’s Reply 

Br. 8; see also Pet’r’s Br. 5, 12–13. We agree.

Employee removal actions are appealable to the Board. 

Rosario-Fabregas v. Merit Sys. Prot. Bd., 833 F.3d 1342, 

1345 (Fed. Cir. 2016); see 5 U.S.C. §§ 7512, 7513(a), (d), 

7701(a). By contrast, a “decision to resign or retire is presumed to be voluntary,” and an “employee who voluntarily 

resigns or retires has no right to appeal to the MSPB.” 

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340–41 (Fed. Cir. 

2001). But “the Board has jurisdiction ‘if the employee 

proves, by a preponderance of the evidence, that his or her 

action was involuntary and thus tantamount to a forced 

enumerated adverse action.’” Rosario-Fabregas, 833 F.3d 

at 1345–46 (brackets omitted) (quoting Garcia v. Dep’t of 

Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en 

banc)). Parties have alleged involuntariness in many ways, 

such as by showing agency threats of adverse action, 

agency misinformation and deception, and the creation of 

intolerable working conditions. Garcia, 437 F.3d at 1328 

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JOHNSON v. MSPB 11

(collecting cases). In short, there is a body of precedent 

about constructive termination claims. 

The administrative judge’s decision does not engage 

with this precedent or Ms. Johnson’s claim. See generally 

App. 1–9. In its brief, the Board fails to explain how the 

administrative judge addressed Ms. Johnson’s constructive 

termination claim. Rather, the Board suggests that Ms. 

Johnson’s constructive termination was but another adverse personnel decision that is part of her IRA appeal. See

Resp’t’s Br. 20 n.8. This argument, like the administrative 

judge’s decision, does not engage with whether Ms. Johnson has non-frivolously alleged a claim for constructive termination over which the Board has jurisdiction. 

We decline to determine in the first instance whether 

the Board has jurisdiction over Ms. Johnson’s constructive 

termination claim. We have held that “the MSPB’s jurisdiction and the merits of an alleged involuntary separation 

are ‘inextricably intertwined’” such that once “it is established that a resignation or retirement is involuntary, the 

MSPB not only has jurisdiction, ‘but also the employee 

wins on the merits and is entitled to reinstatement.’” 

Shoaf, 260 F.3d at 1341 (quoting Schultz v. U.S. Navy, 810 

F.2d 1133, 1136 (Fed. Cir. 1987)). We do not have the views 

of the administrative judge or the Board. We will not decide such an issue for the first time on appeal. Therefore, 

we vacate the administrative judge’s dismissal of Ms. Johnson’s appeal as to her constructive termination claim and 

remand to the administrative judge to consider this claim.3

3 It appears that Ms. Johnson believes that she has 

alleged other claims too. See, e.g., Pet’r’s Br. 17–18 (“The 

Obstructing Competition (5 U.S.C. [§ ]2302(b)(4)[)] is a Prohibited Personnel Practice. This PPP should be treated as 

a separate claim . . . .”); Pet’r’s Reply Br. 7 (“For the intent 

of clarity, the appellant claimed reprisal, 

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12 JOHNSON v. MSPB

C. Ms. Johnson’s Motion

Finally, we address Ms. Johnson’s motion seeking 

(1) partial summary judgment on her claim for “economic 

loss due to agency error on application for immediate retirement” and (2) sanctions against the Board for publishing personally identifiable information. ECF No. 27 at 1. 

We deny Ms. Johnson’s motion for partial summary 

judgment because the scope of our review is limited to the 

conclusions of the administrative judge’s decision. If Ms. 

Johnson believes that she has stated a claim that entitles 

her to judgment, then that is an issue to put before the administrative judge first. See James v. Fed. Energy Regul. 

Comm’n, 755 F.2d 154, 155–56 (Fed. Cir. 1985) (“A party 

will, of course, not generally be heard on any issues raised 

for the first time on appeal.”).

We also deny Ms. Johnson’s motion for sanctions. Ms. 

Johnson asks us to sanction HHS for allegedly publishing 

personally identifiable information in its filings during 

Board proceedings. ECF No. 27 at 3. As Ms. Johnson’s 

complaints are directed to HHS’s conduct before the administrative judge and implicate the Board’s rules about redaction of personally identifiable information, the 

administrative judge is best positioned to determine if 

sanctions are warranted. Accord Motorola, Inc. v. Interdigital Tech. Corp., 121 F.3d 1461, 1468 (Fed. Cir. 1997) (“The 

trial judge is better able to assess the conduct of parties 

appearing before it than is this court.”).

constructive/involuntary retirement, PPPs, promotion denials, and other adverse actions to the OSC and on her 

IRA.”). We express no opinion on whether Ms. Johnson has 

alleged such claims and leave it for the administrative 

judge to determine if it is proper to dismiss each of Ms. 

Johnson’s claims.

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JOHNSON v. MSPB 13

III. CONCLUSION

Accordingly, we affirm-in-part and vacate-in-part the 

decision of the administrative judge. We remand for further proceedings consistent with this opinion.

AFFIRMED-IN-PART, VACATED-IN-PART, AND 

REMANDED

COSTS

Costs to Appellant. 

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