NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

JOHN S. EDWARDS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2022-1967

______________________

Petition for review of the Merit Systems Protection 

Board in No. DC-1221-16-0227-W-1.

______________________

Decided: July 7, 2023

______________________

PETER BROIDA, Arlington, VA, argued for petitioner.

 JEFFREY GAUGER, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

argued for respondent. Also represented by ALLISON JANE 

BOYLE, KATHERINE MICHELLE SMITH.

______________________

Before PROST, CHEN, and CUNNINGHAM, Circuit Judges.

PROST, Circuit Judge.

Case: 22-1967 Document: 32 Page: 1 Filed: 07/07/2023
2 EDWARDS v. MSPB

John S. Edwards appeals from a Merit Systems Protection Board (“Board”) decision dismissing his individual 

right of action (“IRA”) appeal under the Whistleblower Protection Act for lack of jurisdiction. We affirm.

BACKGROUND

Mr. Edwards worked at the Department of Labor 

(“DOL”) as a director in the Office of Information Systems 

and Technology (“OIST”). Mr. Edwards alleged that two 

OIST supervisors were discriminating against Black employees. In July 2015, he informed those supervisors of his 

observations. App’x 83.1 Mr. Edwards then filed, on October 16, 2015, an informal complaint with DOL’s Equal Employment Opportunity (“EEO”) Office detailing his 

allegations of racial discrimination. App’x 34–37. On October 27, 2015, one of the supervisors Mr. Edwards accused 

of discrimination reassigned him to a position with diminished responsibilities. App’x 86. According to Mr. Edwards, this supervisor stated that she was reassigning him 

“because of [his] EEO complaint.” Id. A few days later, Mr. 

Edwards filed another complaint, this time with the Office 

of Special Counsel (“OSC”). App’x 38–59. This complaint 

repeated Mr. Edwards’s allegations of discrimination in 

OIST and also alleged retaliation against him for “report[ing those] EEO violations.” App’x 42. The OSC closed 

the investigation after it determined that Mr. Edwards’s 

allegations “are more appropriately resolved” through the 

Equal Employment Opportunity Commission (“EEOC”). 

App’x 67, 69. 

Mr. Edwards then filed an IRA appeal with the Board, 

which the Board dismissed for lack of jurisdiction. Mr. Edwards appeals. We have jurisdiction under 28 U.S.C.

§ 1295(a)(9). See Young v. MSPB, 961 F.3d 1323, 1327–28 

1 “App’x” refers to the appendix attached to Mr. Edwards’s principal brief.

Case: 22-1967 Document: 32 Page: 2 Filed: 07/07/2023
EDWARDS v. MSPB 3

(Fed. Cir. 2020) (holding that IRA appeals do not constitute 

“mixed cases” under Perry v. MSPB, 582 U.S. 420 (2017), 

even where the underlying allegations relate to retaliation 

for exercising a Title VII right). 

DISCUSSION

“We review de novo whether the Board has jurisdiction 

over an appeal.” Smolinski v. MSPB, 23 F.4th 1345, 1350 

(Fed. Cir. 2022). For the Board to have jurisdiction over an 

IRA appeal, the appellant must, among other things, make 

nonfrivolous allegations that he made 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) or (b)(9)(B)–(D). 5 

U.S.C. § 1221(a); Smolinski, 23 F.4th at 1350. Section 

1221(a) plainly excludes activities under 

§ 2302(b)(9)(A)(ii)—“the exercise of any appeal, complaint, 

or grievance right . . . other than with regard to remedying 

a violation of [§ 2302(b)(8)]”—from IRA jurisdiction. 

In this case, the Board determined it lacked jurisdiction because Mr. Edwards’s alleged protected activity falls 

under 5 U.S.C. § 2302(b)(9)(A)(ii). The Board reasoned 

that—under Young and Spruill—Mr. Edwards’s allegations of EEO violations and retaliation for reporting them 

“may not be raised in an IRA appeal[] because IRA appeals 

are limited to alleged violations of whistleblower protection 

statutes” and reporting EEO violations “[is] a nonwhistleblowing” activity. Edwards v. DOL, No. DC-1221-16-0227-

W-1, 2022 WL 1438663, at *4 (M.S.P.B. May 5, 2022) (first 

citing Spruill v. MSPB, 978 F.2d 679, 680–81, 690–92 (Fed. 

Cir. 1992); then quoting Serrao v. MSPB, 95 F.3d 1569, 

1575 (Fed. Cir. 1996); and then citing Young, 961 F.3d at

1327–28). 

On appeal, Mr. Edwards argues that Young and 

Spruill are distinguishable or otherwise do not govern the 

outcome of this case. We disagree. 

Case: 22-1967 Document: 32 Page: 3 Filed: 07/07/2023
4 EDWARDS v. MSPB

As an initial matter, Mr. Edwards agrees that Young

and Spruill dictate that filing a formal EEO complaint cannot supply the Board with IRA jurisdiction because a formal EEO complaint falls under 5 U.S.C. § 2302(b)(9)(A)(ii). 

Oral Arg. at 0:27–45, 10:21–29.2 However, Mr. Edwards 

maintains that this case is different because he filed an informal EEO complaint. See Pet’r’s Br. 15–16. We are not 

persuaded. Although the appellants in Young and Spruill

did file formal EEO complaints, we did not elevate the form 

of such complaints over their substance. See Young, 961 

F.3d at 1329–30; Spruill, 978 F.2d at 690–92. As Young

explains, it’s an appellant’s “exercis[e of] a Title VII right” 

that pushes a case into the realm of § 2302(b)(9)(A)(ii) and 

thus deprives the Board of IRA jurisdiction. Young, 

961 F.3d at 1329. And there’s no dispute here that Mr. Edwards exercised Title VII rights when he filed his informal 

EEO complaint alleging racial discrimination in OIST. 

Mr. Edwards also asserts that his verbal complaints to 

his supervisors permit his allegations of retaliation for reporting racial discrimination to proceed through the Board

via an IRA appeal. According to Mr. Edwards, even if his 

informal EEO complaint falls under § 2302(b)(9)(A)(ii), his 

disclosure of the same allegations to his supervisors falls

under § 2302(b)(8). Pet’r’s Br. 18–22; see also Oral Arg. at 

8:00–32 (Mr. Edwards’s counsel arguing that “there is 

some duplication”). But Mr. Edwards’s disclosures to his 

supervisors were of the same substance as his EEO complaint. Per Young, this EEO complaint falls under 

§ 2302(b)(9)(A)(ii)—i.e., is “other than with regard to remedying a violation of” § 2302(b)(8). We don’t see how claims 

of retaliation by the same actors for disclosing verbally the 

same alleged violation later memorialized in an EEO complaint can proceed separately. Spruill reinforces this 

2 No. 22-1967, https://oralarguments.cafc.uscourts

.gov/default.aspx?fl=22-1967_06092023.mp3.

Case: 22-1967 Document: 32 Page: 4 Filed: 07/07/2023
EDWARDS v. MSPB 5

understanding of the interplay between § 2302(b)(8) and 

§ 2302(b)(9)(A)(ii). Spruill counsels that appellants cannot 

maintain simultaneous Board and EEOC jurisdiction to resolve the same alleged violations. Otherwise, the Board 

and EEOC would “duplicat[e]” effort to resolve the same 

dispute and thereby waste “governmental resources” and 

potentially generate “conflicting procedures or outcomes.” 

Spruill, 978 F.2d at 691–92. 

Mr. Edwards argues that this court’s recent Smolinski

decision allows duplicative Board and EEOC proceedings 

to resolve alleged retaliation for disclosing Title VII violations. Pet’r’s Br. 16–22. Not so. Smolinski is not instructive here because it did not involve the exercise of a Title 

VII right. In Smolinski, Dr. Smolinski, a federal employee, 

alleged retaliation for testifying about another federal employee’s sexual harassment of Dr. Smolinski’s wife, who 

was not a federal employee. See Smolinski, 23 F.4th at 

1351. And while sexual harassment is a form of sex discrimination that Title VII covers, Title VII protection did 

not play a role in Smolinski because the alleged discrimination wasn’t of one federal employee against another; it 

was of one federal employee against a non-employee. See

Oral Arg. at 18:51–20:10; cf. 5 U.S.C. § 2302(b)(1) (prohibiting employees from discriminating “against any employee

or applicant for employment” (emphasis added)). Thus, the 

IRA jurisdiction under § 2302(b)(8) in Smolinski was based 

on allegations of “abuses of authority,” not based on allegations that would have also fallen under Title VII or 

§ 2302(b)(1). 

Since Mr. Edwards seeks review of claims of retaliation 

for coming forward with allegations of Title VII violations, 

the Board lacks IRA jurisdiction, and jurisdiction instead 

lies exclusively with the EEOC. 

Case: 22-1967 Document: 32 Page: 5 Filed: 07/07/2023
6 EDWARDS v. MSPB

CONCLUSION

We have considered Mr. Edwards’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

COSTS

No costs.

Case: 22-1967 Document: 32 Page: 6 Filed: 07/07/2023