UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MAYA BEAUDETTE,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-315H-17-0634-I-1

DATE: July 15, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Maya Beaudette, Las Vegas, Nevada, pro se.

Michael L. Gurnee, Esquire, Centennial, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her probationary termination appeal for lack of jurisdiction. The 

administrative judge also dismissed the appellant’s Veterans Employment 

Opportunities Act of 1998 (VEOA), Uniformed Services Employment and 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. 

§§ 4301-4335), equal employment opportunity (EEO) reprisal, discrimination, 

and other prohibited personnel practice claims for lack of jurisdiction.

¶2 On review, the appellant reargues that she is a career tenured employee with 

Board appeal rights and submits argument and evidence challenging the merits of 

her termination. Petition for Review (PFR) File, Tab 2 at 11-14, 16-42. She 

further claims that the Board has jurisdiction over her VEOA appeal concerning 

her nonselection for positions because she exhausted her administrative remedies 

with the Department of Labor (DOL), as reflected in four DOL closure letters, 

which she submits for the first time on review. PFR File, Tab 1 at 4-5, Tab 4 

at 4-11. She also alleges that she is a “whistle blower,” discusses matters related 

to her EEO complaint, and alleges that the agency “did not honor [the] union 

agreement.”

2

PFR File, Tab 1 at 5, Tab 2 at 4-5, 11.

¶3 Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

 

2

For the first time on review, the appellant also alleges that the agency terminated her

for partisan political reasons. PFR File, Tab 2 at 12; see 5 C.F.R. § 315.806(a)-(b) 

(providing for limited Board jurisdiction over such claims). However, her allegation 

that her termination was due to her affiliation with a group that is “pro Muslim, Pro 

immigrant anti Neo-Nazi” [sic] is insufficient to meet her jurisdictional burden. 

PFR File, Tab 2 at 12. To show that the Board has jurisdiction because an agency 

terminated an appointee for partisan political reasons, an appellant must provide 

supporting facts to show that the allegation is not merely a pro forma pleading. Smirne

v. Department of Army, 115 M.S.P.R. 51, ¶ 8 (2010). The appellant has not alleged any 

specific facts concerning her claim and thus has not met her jurisdictional burden.
3

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED to 

address the appellant’s claim of Board jurisdiction over her VEOA and 

whistleblower reprisal claims, we AFFIRM the initial decision.

¶4 As to the appellant’s VEOA claim concerning her nonselection for agency 

vacancies, it is undisputed that she is a 10-point preference eligible. Initial 

Appeal File (IAF), Tab 6 at 15, Tab 7 at 27. The administrative judge dismissed 

her claim for lack of jurisdiction because she failed to allege that she exhausted

her administrative remedies with DOL.

3

 IAF, Tab 10, Initial Decision (ID) at 8; 

see Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 13 (2012) 

(explaining that, to establish Board jurisdiction over a VEOA appeal, the 

appellant must show that he exhausted his remedy with DOL, among other 

requirements). We find that the DOL closure letters, which are dated after the 

issuance of the initial decision, are new and material evidence under 5 C.F.R. 

§ 1201.115(d). By submitting DOL’s letters stating the results of its investigation 

into complaints asserting the appellant’s veterans preference rights were violated, 

she has satisfied the exhaustion requirement. See Gingery, 119 M.S.P.R. 43, 

¶ 15.

¶5 We nevertheless deny corrective action. DOL declined to investigate the 

VEOA complaints because they were not filed with DOL within the 60-day filing 

deadline. PFR File, Tab 4 at 4-11; see 5 U.S.C. § 3330a(a)(2)(A) (explaining that 

a VEOA complaint must be filed within the 60 days following the alleged 

violation). The 60-day filing deadline is subject to equitable tolling, which, if 

 

3

The appellant filed a separate VEOA claim concerning a different nonselection.

Beaudette v. Department of Homeland Security, MSPB Docket No. SF-3330-18-0181-

I-1, Initial Decision at 2 (Apr. 23, 2018). The administrative judge issued an initial 

decision in that appeal, granting corrective action. Id. at 1, 10. 
4

applicable, may allow the Board to review the appeal. Gingery, 119 M.S.P.R. 43,

¶ 17. The appellant argued equitable tolling should apply because she relied on 

the agency’s determination that she was ineligible for the positions at issue . IAF, 

Tab 6 at 10. This argument goes to the merits of the appellant’s VEOA claim and 

does not explain why she did not meet the filing deadline. Similarly, the 

appellant’s assertion that she was unaware of her right to file a VEOA complaint, 

PFR File, Tab 4 at 4, is not a sufficient reason to equitably toll the filing 

deadline, Gingery, 119 M.S.P.R. 43, ¶¶ 17-18 (explaining that equitable tolling is 

applied sparingly, such as when the appellant has actively pursued his remedies 

by filing a defective pleading during the statutory period or been “induced or 

tricked” by an agency representative into filing late (quoting Irwin v. Department 

of Veterans Affairs, 498 U.S. 89, 96 (1990)). When an appellant files an untimely 

DOL complaint and equitable tolling does not apply, the request for corrective 

action must be denied for failure to meet the 60-day time limit. Gingery, 

119 M.S.P.R. 43, ¶ 16 n.3. We therefore deny the appellant’s request for 

corrective action under VEOA based on her failure to meet the time limit for 

filing a complaint with DOL.

¶6 Regarding the appellant’s whistleblower reprisal claim, PFR File Tab 1 at 5; 

IAF, Tab 6 at 8, 17, she has not raised it in connection with an otherwise 

appealable action because the Board lacks jurisdiction over her probationary 

termination for the reasons explained by the administrative judge in the initial 

decision, which we have affirmed above. ID at 3-6. Thus, for the Board to 

review that claim, the appellant must satisfy the jurisdictional requirements of an 

individual right of action (IRA) appeal. See Neice v. Department of Homeland 

Security, 105 M.S.P.R. 211, ¶¶ 13-14 (2007) (finding that, although the Board 

lacked jurisdiction over the appellant’s resignation as an otherwise appealable 

action, the Board would consider any whistleblower reprisal claims that satisfied

the jurisdictional requirements of an IRA appeal). To establish Board jurisdiction 

over an IRA appeal, the appellant must have exhausted her administrative 
5

remedies before the Office of Special Counsel and make nonfrivolous allegations 

of the following: (1) she made a protected disclosure described under 5 U.S.C. 

§ 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity 

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). 5 U.S.C. §§ 1214(a)(3),

1221(a); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). 

The appellant has not made that necessary showing.

¶7 However, the administrative judge did not notify the appellant of the 

jurisdictional requirements for an IRA appeal in any of his orders or the initial 

decision; the agency’s response did not cure that defect. The appellant must 

receive explicit information on what is required to establish Board jurisdiction 

before dismissing a claim for lack of jurisdiction.4 See Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Accordingly, we 

FORWARD the appellant’s whistleblowing allegation to the Board’s Western 

Regional Office for docketing as an IRA appeal and further adjudication in 

accordance with this Order.

¶8 The appellant has filed a union grievance over her termination; 

however, she asserted that the agency refused to arbitrate her claim. IAF, Tab 7 

at 5, 13; PFR File, Tab 2 at 5. The filing of that grievance may affect her right to 

pursue her whistleblower reprisal claim in another forum. See Savage v. 

Department of the Army, 122 M.S.P.R. 612, ¶¶ 17-18 (2015) (explaining that, if 

 

4

Even if the appellant establishes Board jurisdiction over her whistleblower reprisal 

claims, under these circumstances, it would not provide a basis for reviewing her EEO 

reprisal claims or allegations that the agency violated the applicable collective 

bargaining agreement. See Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, 

¶ 6 n.1 (2014) (finding that the Board does not have jurisdiction over the appellant’s 

claims of harmful procedural error and EEO retaliation in the context of an IRA

appeal); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (holding that 

prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source 

of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
6

made knowingly and voluntarily, an appellant’s election first to file, as applicable 

here, either a grievance or an OSC complaint, potentially followed by an IRA 

appeal, is a binding election of that remedy), clarified on other grounds by 

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016). 

Accordingly, upon docketing of the IRA appeal, the administrative judge should 

address this election of remedies issue.

NOTICE OF APPEAL RIGHTS5

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will ru le 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

 

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 
8

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 
9

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in s ection 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.6 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
10

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board