NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHRYN A. FLYNN, 

Petitioner, 

 v. 

UNITED STATES DEPARTMENT OF 

THE ARMY, 

Respondent.

No. 18-73009 

MSPB No. SF-1221-18-0406-W-1 

MEMORANDUM*

On Petition for Review of an Order of the

Merit Systems Protection Board

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Dr. Kathryn A. Flynn petitions pro se for review of the Merit Systems 

Protection Board’s (“MSPB”) final order in her administrative action against the 

Department of the Army (“the agency”) alleging violations of the Whistleblower 

Protection Enhancement Act of 2012, 5 U.S.C. § 2302(b)(8), arising out of the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 18-73009 

agency’s disciplinary decisions and ultimate failure to renew her employment. We 

have jurisdiction under 5 U.S.C. § 7703(b)(1)(B). We review de novo questions of 

the MSPB’s jurisdiction, Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th 

Cir. 2016), and we affirm.

The MSPB properly dismissed for lack of jurisdiction Flynn’s claims related 

to her filing an Equal Employment Opportunity Commission (“EEOC”) complaint

and reporting sexual harassment because such complaints fall within the province 

of the EEOC. See Daniels, 832 F.3d at 1051 (explaining that the MSPB 

jurisdiction is limited to whistleblower disclosures) (citing 5 U.S.C. § 1221(a)); see 

also Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 692 n.17 (Fed. Cir. 1992) (noting 

that “the EEOC framework specifically provides for employees who suffer reprisal 

for the filing of [an] EEOC complaint”). 

The MSPB properly dismissed for lack of jurisdiction Flynn’s claims related 

to the agency’s alleged lack of transparency because Flynn failed to allege nonfrivolous allegations of protected whistleblower activity under Section 2302(b)(8) 

of the Whistleblower Protection Act (“WPA”). See 5 C.F.R.

§ 1201.4(s) (for purposes of MSPB jurisdiction, a non-frivolous allegation is “more 

than conclusory,” “plausible on its face,” and “material to the legal issues in the 

appeal”); see also 5 U.S.C. § 2302(b)(8)(A) (under the WPA, an employee must
 3 18-73009 

“reasonably believe[]” that the disclosure relates to an activity prohibited under the

statute); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 890 (9th Cir. 

2004) (to determine whether a disclosure relates to a prohibited activity under the

WPA, courts examine whether a “‘disinterested observer with knowledge of the 

essential facts . . . reasonably [would] conclude that a disclosure” evidences

activity prohibited under the statute (quoting Lachance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999))).

The MSPB properly dismissed Dr. Flynn’s remaining claims related to the 

agency’s mismanagement and abuse of government contracts as barred under the 

doctrine of res judicata because Flynn could have raised these claims in her prior 

MSPB complaint, MSPB No. SF-1221-14-0620-W-1, which was adjudicated in a 

final decision on the merits. See Bldg. Materials & Constr. Teamsters Local No. 

216 v. Granite Rock Co., 851 F.2d 1190, 1195 (9th Cir. 1988) (res judicata bars 

relitigation of an administrative determination by a federal agency “when the 

agency’s determinations have been made in a proceeding complying with 

standards of due process and when the findings are supported by substantial 

evidence in the administrative record” (citation and internal quotation marks 

omitted)); see also Carson v. Dep’t of Energy, 398 F.3d 1369, 1375-76 (Fed. Cir.

2005) (concluding that employee’s MSPB petition was barred by a prior MSPB 

petition under the doctrine of res judicata). 
 4 18-73009 

The MSPB did not abuse its discretion by denying Flynn’s motion to compel 

discovery. See Duggan v. Dep’t of Defense, 883 F.3d 842, 847-48 (9th Cir. 2018)

(setting forth standard of review for denial of discovery requests in administrative 

proceedings); see also Langer v. Dep’t of Treasury, 265 F.3d 1259, 1265 (Fed. Cir. 

2001) (explaining that “the admissibility of evidence is within the sound discretion 

of the [MSPB]”). 

We reject as unsupported by the record Flynn’s contention that the MSPB 

did not properly conduct a de novo review of her petition and erroneously relied on 

the Office of Special Counsel’s determination in her prior petition. 

AFFIRMED.