UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TYRONE D. SCOTT,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-0752-16-0596-I-1

DATE: July 27, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Tyrone D. Scott, Biloxi, Mississippi, pro se.

Inam Rabbani, APO, AP, 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 his removal appeal for lack of jurisdiction. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). However, we FORWARD the appellant’s claims of whistleblower 

retaliation to the Western Regional Office for docketing as a new individual right 

of action (IRA) appeal.

¶2 The agency imposed the appellant’s removal due to the expiration of his 

overseas tour and his failure to remain eligible for its Priority Placement 

Program. Initial Appeal File (IAF), Tab 16 at 125-26. On the day that the agency 

issued its decision, the appellant filed a complaint with the Office of Special 

Counsel (OSC) regarding, among other things, the removal action. IAF, Tab 3

at 8-31. Subsequently, he sent an email to OSC requesting to withdraw his 

complaint and OSC confirmed the withdrawal. Id. at 32, 65. He then filed the 

instant appeal challenging his removal. IAF, Tab 1. The administrative judge 

dismissed the appeal for lack of jurisdiction because she found that the appellant 

made a binding election when he filed his OSC complaint. IAF, Tab 53, Initial 

Decision (ID). 

¶3 The appellant has filed a petition for review, the agency has responded in 

opposition to the petition, and the appellant has replied. Petition for Review 

(PFR) File, Tabs 1, 4-5. On September 23, 2016, after the record closed on 

review, the appellant submitted a motion in which he sought leave from the Board 
3

to file an additional pleading. PFR File, Tab 6. The Board issued an order 

granting the appellant’s motion and permitting him the opportunity to submit 

specific documentation. PFR File, Tab 8. The appellant filed the document 

specified in the Board’s order, and the agency submitted a response to the order 

furnished by the appellant.2 PFR File, Tabs 9-10. 

¶4 By statute, an appellant who has been subjected to an action appealable to 

the Board, and who alleges that he has been affected by a prohibited personnel 

practice in retaliation for whistleblowing under 5 U.S.C. § 2302(b)(8) or in 

retaliation for other protected activity under 5 U.S.C. § 2302(b)(9), may elect 

one, and only one, of the following remedies: (1) an appeal to the Board under 

5 U.S.C. § 7701; (2) a grievance filed under the provisions of a negotiated 

grievance procedure; or (3) a complaint following the procedures for seeking 

corrective action from OSC under 5 U.S.C. chapter 12, subchapters II and III. 

5 U.S.C. § 7121(g); see Corthell v. Department of Homeland Security, 

123 M.S.P.R. 417, ¶ 15 (2016); 5 C.F.R. § 1209.2(d)(1). The remedy that the 

aggrieved employee seeks first is deemed an election of that procedure and 

precludes pursuing the matter in either of the other two forums. Edwards v. 

Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013). In determining the 

appellant’s election, the administrative judge must consider whether any election 

was knowing and informed. 5 U.S.C. § 7121(d), (g); see Agoranos v. Department 

of Justice, 119 M.S.P.R. 498, ¶ 16 (2013). 

¶5 We agree that, despite his assertions to the contrary, the appellant failed to

show nonreceipt of the first and fourth pages of the comprehensive notice of 

 

2

The appellant filed several subsequent motions for leave to file an additional pleading. 

PFR File, Tabs 13, 16, 18, 22, 27. Because the Board is forwarding the appellant’s 

claims of whistleblower retaliation to the regional office for docketing as a new IRA 

appeal, we find the additional evidence and argument he sought leave to submit, as 

described by the appellant in these motions, to be immaterial to the outcome of this 

appeal. Accordingly, the appellant’s motions for leave to submit additional evidence 

and argument on review are denied. 
4

rights, included with the removal decision, which explained the binding nature of 

an initial election of remedies. ID at 5-6. Thus, we also agree that he did not 

show that his election to file an OSC complaint was not knowing and informed. 

Id. Accordingly, we affirm the administrative judge’s decision to dismiss this 

appeal for lack of jurisdiction.

¶6 However, we forward the appellant’s claims of whistleblower retaliation for 

docketing as an IRA appeal. On September 27, 2016, the appellant submitted a 

previously unavailable OSC closeout letter, dated September 22, 2016, which 

addressed his allegations regarding several agency actions, including his removal. 

PFR File, Tab 9 at 34-36. As the appellant may now have become entitled to 

bring an IRA appeal, we forward his whistleblower retaliation claims to the 

Board’s Western Regional Office for docketing and adjudication as a new IRA 

appeal as to the matters raised therein. 5 U.S.C. §§ 1214(a)(3), 1221(a); 5 C.F.R. 

§ 1209.5(a). After docketing the appeal, the administrative judge should apprise 

the appellant of the jurisdictional requirements for filing an IRA appeal. Graves 

v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016).

NOTICE OF APPEAL RIGHTS3

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 

 

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, th e 

Board cannot advise which option is most appropriate in any matter.
5

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. 

(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. ____ , 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: 
7

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.4The 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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board