NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

PETER J. MAY,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2023-1709

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-3443-16-0303-I-1.

______________________ 

Decided: September 10, 2024

______________________ 

PETER J. MAY, Rockville Centre, NY, pro se. 

 STEPHEN FUNG, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by ALLISON JANE BOYLE,

KATHERINE MICHELLE SMITH. 

 ______________________ 

Before PROST, HUGHES, and CUNNINGHAM, Circuit Judges.

PER CURIAM. 

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2 MAY v. MSPB

Peter J. May has appealed the Merit Systems Protection Board’s (“Board”) final order denying his petition for 

review and affirming the administrative judge’s (“AJ”) December 16, 2016 initial decision to dismiss Mr. May’s appeal for lack of jurisdiction. May v. DOJ, No. NY-3443-16-

0303-I-1, 2023 WL 491098 (M.S.P.B. Jan. 26, 2023). For 

the following reasons, we affirm.

BACKGROUND

Mr. May was a Special Agent, Criminal Investigator, 

Series 1811, Pay Grade 13, Step 9 at the Drug Enforcement 

Administration (“Agency”) and applied for the position of 

Group Supervisor, GS-1811-14, New York Field Division on 

February 26, 2013. S.A. 30–31.1 Mr. May was not selected 

for the position. On June 26, 2013, Mr. May was issued a 

Memorandum of Counseling (“MOC”) by his supervisor as 

a disciplinary violation. And, as a result of the MOC, Mr. 

May was involuntarily reassigned from the John F. Kennedy Airport Group to a position on the Strike Force located in Manhattan, New York. S.A. 30.

In December 2013, Mr. May filed a formal complaint 

against the Agency, alleging that he was discriminated 

against based on his race (white) and sex (male) when he 

was not selected for the Group Supervisor position, was issued the MOC, and was involuntarily reassigned to another employment location. S.A. 9.

On August 5, 2016, the Equal Employment Opportunity Commission (“EEOC”) AJ determined that there 

were no genuine issues of material fact in dispute and, finding the complaint appropriate for summary judgment, entered judgment in favor of the Agency. See S.A. 29, 38. The 

Agency thereafter issued a Final Agency Decision agreeing 

1 “S.A.” refers to the supplemental appendix included with the Board’s informal brief.

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MAY v. MSPB 3

with the EEOC AJ’s decision that Mr. May was not subjected to discrimination. S.A. 9.

On September 2, 2016, Mr. May filed an appeal with 

the Board wherein he claimed that the Agency “committed 

Title VII discrimination, violated the Whistleblower Protection Enhancement Act of 2012 [“WPA”], violated his constitutional right to equal protection and engaged in other 

prohibited personnel practices, such as nepotism, cronyism 

and favoritism by failing to promote him and directing his 

reassignment.” S.A. 8 (cleaned up). The Board AJ found 

that Mr. May “did not establish Board jurisdiction over his 

appeal under any law, rule, or regulation,” and dismissed 

the appeal for lack of jurisdiction. S.A. 13.

On January 16, 2017, Mr. May petitioned for Board review of the Board AJ’s initial decision, alleging Agency violations such as “intentional Agency disparate treatment 

based upon race, selective enforcement of the Agency’s 

standard of conduct, nepotism, cronyism, favoritism, 

USERRA[2] violations and whistleblower retaliation.” S.A. 

78. On January 26, 2023, the Board issued a final order 

affirming the Board AJ’s initial decision dismissing Mr. 

May’s appeal for lack of jurisdiction. Mr. May now petitions this court for review of the Board’s decision. 

DISCUSSION

I 

We initially determine if we have jurisdiction over 

Mr. May’s appeal. Although our court generally has jurisdiction over an appeal from a final order or final decision of 

the Board, see 28 U.S.C. § 1295(a)(9), we do not have jurisdiction over such appeals if they involve a “mixed case,” see, 

e.g., Perry v. MSPB, 582 U.S. 420, 422–23 (2017). Because 

2 “USERRA” refers to the Uniformed Services Employment and Reemployment Rights Act.

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4 MAY v. MSPB

Mr. May appears to believe that his case before the Board 

was a mixed case, we briefly explain why that was not so—

and why this court does indeed have jurisdiction over his 

appeal.

“A mixed case is one in which a federal employee 

(1) complains of having suffered a serious adverse personnel action appealable to the [Board] and (2) attributes the 

adverse action, in whole or in part, to bias prohibited by 

federal antidiscrimination laws.” Harris v. SEC, 972 F.3d 

1307, 1317 (Fed. Cir. 2020). In this context, adverse personnel actions appealable to the Board include: “(1) a removal; (2) a suspension for more than 14 days; (3) a 

reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less.” 5 U.S.C. § 7512. Here, even as 

alleged, none of the agency actions at issue (MOC, non-promotion, and reassignment) were adverse personnel actions 

appealable to the Board. See id. Because the first requirement for mixed cases has not been met, Mr. May’s appeal

cannot be considered a mixed case.

Accordingly, because this appeal is from a final order

of the Board—and is not a mixed case—we have jurisdiction over Mr. May’s appeal. 

II

Having confirmed our own jurisdiction over this appeal, we now consider whether the Board correctly determined that it lacked jurisdiction over Mr. May’s appeal, 

which is a question of law that we review de novo. Coradeschi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1331 

(Fed. Cir. 2006). “The petitioner bears the burden of establishing error in the Board’s decision.” Harris v. Dep’t of 

Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).

Mr. May argues that the Board had jurisdiction because his case was a mixed case. Although the Board does 

have jurisdiction to review mixed cases, see 5 U.S.C. 

§ 7702(a)(1), as explained above, Mr. May’s case was not a 

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MAY v. MSPB 5

mixed case because he did not identify any adverse personnel action appealable to the Board. See S.A. 11 (“Since 

[Mr. May] has not set forth an appealable action over 

which the Board would have jurisdiction, he has failed to 

establish that the Board should assert jurisdiction over his 

Title VII and other claims.”). We therefore see no error in 

the Board’s determination that it lacked jurisdiction over 

Mr. May’s appeal as a mixed case. 

Mr. May also argues that the Board had jurisdiction 

because he alleged whistleblower reprisal.3 The Board

“has jurisdiction over an IRA[4] appeal if the appellant has 

exhausted his administrative remedies before the [Office of 

Special Counsel (“OSC”)] and makes non-frivolous allegations that (1) he engaged in whistleblowing activity by 

making a protected disclosure . . . and (2) the disclosure 

was a contributing factor in the agency’s decision to take or 

fail to take a personnel action.” Yunus v. Dep’t of Veterans 

Affs., 242 F.3d 1367, 1371 (Fed. Cir. 2001) (cleaned up). 

“The purpose of the requirement that an employee exhaust 

his or her remedies before the [OSC] before appealing to 

the Board is to give the [OSC] the opportunity to take 

3 Although Mr. May alleged “USERRA violations” in 

his petition for Board review, S.A. 78, he did not present 

this argument in his initial appeal to the Board, as noted 

by the Board AJ in her initial decision and the Board in its 

final order. S.A. 13 n.13 (Board AJ noting that Mr. May 

“has not raised a claim of a USERRA violation in his appeal”); S.A. 2 n.2 (Board noting that Mr. May “did not raise 

a claim of a USERRA violation in his appeal”). Any 

USERRA-related argument concerning Board jurisdiction 

is therefore not properly before us. 4 “IRA” refers to an individual right of action, which 

is an appeal of personnel actions taken by an agency 

against an employee as reprisal for protected whistleblowing-related activity. See 5 U.S.C. § 1221.

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6 MAY v. MSPB

corrective action before involving the Board in the case.” 

Ward v. MSPB, 981 F.2d 521, 526 (Fed. Cir. 1992). At the 

time Mr. May sought review of the January 26, 2023 final 

order of the Board, which affirmed the Board AJ’s December 16, 2016 initial decision, Mr. May had not filed a whistleblower claim with the OSC. S.A. 12. And though 

Mr. May “believes he cured the defect of failure to exhaust 

administrative remedies by filing a WPA complaint with 

the OSC” on June 26, 2023, Appellant’s Informal Br. 8, 

Mr. May had not exhausted his administrative remedies 

with the OSC before his Board appeal in this case. Mr. 

May’s “failure to do so deprived the Board of jurisdiction to 

hear his appeal.” Ellison v. MSPB, 7 F.3d 1031, 1037 (Fed. 

Cir. 1993). Thus, the Board correctly concluded that it did

not have jurisdiction over his appeal as an IRA appeal. 

CONCLUSION

We have considered Mr. May’s remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm.

AFFIRMED 

COSTS

No costs.

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