N OTE : This disposition is nonprecedential.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

______________________

P ETER B ROIDA , Arlington, VA, argued for petitioner.

J EFFREY G AUGER , Office of General Counsel, United States M erit Systems Protection Board, Washington, DC, argued for respondent. Also represented by A LLISON J ANE B OYLE , K ATHERINE M ICHELLE S MITH

.

______________________
Before P ROST , C HEN , and C UNNINGHAM , Circuit Judges

. P ROST , Circuit Judge

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

John S. Edwards appeals from a Merit Systems Protection Board (“Board”) decision dismissing his individual right of action (“IRA”) appeal under the Whistleblo wer Protection Act for lack of jurisdiction. W e affirm.

B ACKGROUND

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 discr iminating against Black employees. In July 2015, h e 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 alleg ations 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. A ccording 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 appropri ately 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

. W e 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: 07/07/2023EDWARDS 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 ).

D ISCUSSION “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, t he appellant must, among o ther things, makenonfrivolous 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.4 th at 1350

. Section 122 1(a) plainly exclude s activities under § 2302(b)(9)(A)(ii)

— “ the exercise of any appeal, complaint, or grievance right

. . . other than with regard to remedying a violation o f [ § 2302(b)(8)]”

— from IRA jurisdiction.
In this case, the Board determined it la cked 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 re taliation for reporting them “may not be raised in an IRA appeal[] because IRA appeals are limited to alleged violations of whistleblower protectionstatutes” 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. Edw ards 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: 07/07/2023EDWARDS v. MSPB 4

As an initial matter, Mr. Edwards agrees that Young and Spruill dictate that filing a formal EEO complaint cannot supply the Board w ith IRA jurisdiction because a formal EEO complaint falls under 5 U.S.C. § 2302(b)(9)(A)(ii). Oral Arg. at 0:27

– 4 5 , 10:21

– 29. 2 However, Mr. Edwards maintains that this case is different because h e 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 the ir substance. See Young , 961 F.3d at 1329

– 30; Spruill , 978 F.2d at 690

– 92. As Young

e xplains, 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 fall s 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 § 230 2(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 thesame 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: 07/07/2023EDWARDS v. MSPB 5

understanding of the interplay between § 2302(b)(8) and § 2302(b)(9)(A)(ii). Spruill counsels that appellants cannot

m aintain 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 69 1

– 9 2.

Mr. Edwards argues that this court’s recent Smolinski decision allows duplicative Board and EEOC proceedings to resolve alleged re taliat ion 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 abo ut another federal employee’s sexual harassment of Dr. Smolinski’s wife , who was not a federal employee

. See Smolinski , 23 F.4th at1351. 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 l ies exclusively with the EEOC. Case: 22-1967 Document: 32 Page: 5 Filed: 07/07/2023EDWARDS v. MSPB 6

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

AFFIRMED

C OSTS

No costs. Case: 22-1967 Document: 32 Page: 6 Filed: 07/07/2023