UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DESMOND K. NEWTON,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

AT-1221-22-0576-W-1

DATE: March 22, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gloria Newton, Oxford, Alabama, for the appellant.

April L. Pugh, Esquire, Anniston, Alabama, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his individual right of action (IRA) appeal for lack of jurisdiction . On

petition for review, the appellant argues that the administrative judge erroneously

failed to consider all of his submissions; reargues that the agency retaliated

against him or otherwise violated the law by failing to extend his temporary

promotion, failing to internally announce a position vacancy, and racially

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
discriminating against him; and submits additional evidence. 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 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 VACATE the administrative judge’s finding that the

appellant failed to nonfrivolously allege that the agency’s failure to internally

announce a position vacancy before selecting an external candidate constituted a

personnel action under 5 U.S.C. § 2302(a), we AFFIRM the initial decision. 

To establish jurisdiction in an IRA appeal, an appellant must, among other

things, nonfrivolously allege that he made a protected disclosure or engaged in

protected activity that 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). See Edwards

v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967, 2023 WL

4398002 (Fed Cir. July 7, 2023). In his initial appeal documents, the appellant

appeared to argue that the agency retaliated against him based on his mother’s

whistleblowing activity when it failed to internally announce a position vacancy

in 2018 before selecting an external candidate. Initial Appeal File (IAF), Tab 1

at 13, 17-19. The administrative judge considered this argument and properly

found that the agency’s issuance of a vacancy announcement is not a covered

personnel action. IAF, Tab 8, Initial Decision (ID) at 6 (citing Slake v.

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Department of the Treasury, 53 M.S.P.R. 207, 212-13 (1992) for the proposition

that the Board has stated that the issuance of a vacancy announcement is not itself

a personnel action). The administrative judge also found that, even if a

cognizable personnel action occurred here, the appellant failed to nonfrivolously

allege that his mother’s protected activity was a contributing factor in the

agency’s decision to not internally announce the position vacancy or to select an

external candidate for that vacancy. ID at 6. Based on our review of the record,

however, it is unclear to us whether the appellant is simply disputing the

particular way the agency issued/posted the vacancy announcement or the fact

that he was not selected for that position. IAF, Tab 1 at 9, 22-23; see Ormond v.

Department of Justice, 118 M.S.P.R. 337, ¶ 13 (2012) (stating that failure to

appoint is a personnel action). Given this ambiguity, we vacate the

administrative judge’s conclusion that this matter is not a covered personnel

action, but still affirm his finding that the appellant has failed to nonfrivolously

allege that his mother’s protected activity was a contributing factor to any

personnel action at issue in this case. ID at 6. 

Although the appellant challenged the administrative judge’s contributing

factor analysis and reasserted many other arguments that he made in his initial

appeal filing before the administrative judge, after a thorough review of the

record evidence, the initial decision, and the appellant’s claims, we discern no

reason to disturb the initial decision except as discussed above. Petition for

Review (PFR) File, Tab 1 at 5-28; see Yang v. U.S. Postal Service, 115 M.S.P.R.

112, ¶ 12 (2010) (stating that arguments that constitute mere disagreement with

the initial decision do not provide a basis to grant a petition for review); see also

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (declining to disturb

the administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

3
On review, the appellant contends that the administrative judge issued the

initial decision without considering all of his “timely” submissions or

“rebuttals.”2 PFR File, Tab 1 at 4-5. However, the appellant’s assertion is

without merit. The administrative judge’s August 29, 2022 jurisdictional order

required the appellant to submit a statement on jurisdiction within 10 calendar

days, allowed the agency 20 calendar days to submit a response, and informed the

parties that the record on jurisdiction would close on the date the agency’s

response was due. IAF, Tab 3 at 8. Here, the appellant did not submit a response

until September 28, 2022, the day after the initial decision was issued, and well

after the deadlines for the appellant’s statement on jurisdiction and the close of

the record on jurisdiction. IAF, Tabs 8-10. Although the appellant also asserts

that he spoke with an unspecified Board representative who told him “everything

needed at that time was in the Initial Appeal,” such a vague allegation does not

demonstrate that the appellant did not have to follow the specific filing

instructions clearly set out in the administrative judge’s jurisdictional order. PFR

File, Tab 1 at 5, Tab 5 at 6-11. Even assuming the administrative judge’s office

misadvised the appellant in any way, any such error did not prejudice the

appellant’s rights because, considering the appellant’s submission on review, we

find no basis for reversal. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

The appellant also submits documentation on review that was included in

the record below, is new, or contains new handwritten notes, to include the

following: an agency memorandum regarding expectations of leaders;

2

 The appellant also appears to suggest that the administrative judge erred by not

considering the merits of his appeal. PFR File, Tab 1 at 5. However, only after Board

jurisdiction in an IRA appeal is established is an appellant entitled to a hearing on the

merits. See Downing v. Department of Labor, 98 M.S.P.R. 64, ¶ 15 (2004), aff’d,

162 F. App’x 993 (Fed. Cir. 2006). 

4
performance evaluations; and vacancy announcements, referral notifications, and

email correspondence related to various positions he has previously applied for.

PFR File, Tab 1 at 32-68. Evidence that is already part of the record is not new

evidence that warrants granting review. Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980). The Board may consider evidence submitted for the

first time on petition for review if it implicates the Board’s jurisdiction and

warrants an outcome different from that in the initial decision. Schoenig v.

Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013); see Atkinson v. Department

of State, 107 M.S.P.R. 136, ¶¶ 11-12 (2007). However, the attached documents

do not implicate the Board’s jurisdiction or warrant a different outcome. See

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the

Board will not grant a petition for review based on new evidence absent a

showing that it is of sufficient weight to warrant an outcome different from that

of the initial decision). As a result, the appellant’s additional evidence does not

warrant further review. 

NOTICE OF APPEAL RIGHTS3

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 rule

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

3

 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.

5
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. 

(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. 

6
(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

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

Protection Board, 582 U.S. 420 (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: 

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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: 

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 section

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.4 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). 

4

 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. 

8
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 

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

9