NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

THASHA A. BOYD,

Petitioner,

v.

DEPARTMENT OF LABOR,

Respondent.

______________________ 

2014-3022

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. AT1221120456-W-1 and AT1221120665-W1.

______________________ 

Decided: April 11, 2014

______________________ 

THASHA A. BOYD of Kennesaw, Georgia, pro se.

ANTONIA R. SOARES, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were STUART F. DELERY, Assistant Attorney 

General, BRYANT G. SNEE, Acting Director, and DEBORAH 

A. BYNUM, Assistant Director.

______________________ 
2 BOYD v. LABOR

Before DYK, PROST, and REYNA, Circuit Judges.

PER CURIAM. 

Thasha A. Boyd appeals from a final order of the Merit Systems Protection Board (“Board”) denying her petition for review of the Board’s August 3, 2012 and October 

19, 2012 initial decisions dismissing her appeals under 

the Whistleblower Protection Act. Boyd v. Dep’t of Labor, 

Nos. AT1221120456-W-1, AT1221120665-W-1 (M.S.P.B. 

Sept. 17, 2013) (“Final Order”). For the reasons that 

follow, we affirm.

BACKGROUND

Ms. Boyd was previously employed as a GS-12 Immigration Program Analyst in the Department of Labor’s 

Atlanta National Processing Center, Office of Foreign 

Labor Certification (“OFLC”). 

On May 3, 2010, Ms. Boyd submitted an anonymous 

letter to GAO FraudNet requesting that an investigation 

be conducted into the operations of the OFLC. In her 

letter, she made several allegations of questionable hiring 

and compensation practices, as well as general misconduct and poor production standards by OFLC employees 

and contract staff. On April 4, 2011, she wrote a second 

anonymous letter to GAO FraudNet with similar allegations.

Throughout her tenure with OFLC, Ms. Boyd was involved in several interpersonal disputes with other employees and contract staff. For example, in November 

2011, a contract employee named Kathleen Kurth filed a 

complaint against Ms. Boyd, alleging that she had intentionally bumped into Ms. Kurth’s shoulder when Ms. 

Kurth had discovered Ms. Boyd going through documents 

on her desk. Ms. Boyd filed a cross-complaint that Ms. 

Kurth had harassed her by hitting her on the arm when 

she was trying to leave Ms. Kurth’s cubicle. On February 

16, 2012, the Department of Labor (“Labor”) proposed to 
BOYD v. LABOR 3

suspend Ms. Boyd for ten days based on the physical 

altercation with Ms. Kurth. Shortly thereafter, Ms. Boyd

filed a complaint with the United States Office of Special 

Counsel (“OSC”), seeking corrective action under the 

Whistleblower Protection Act, 5 U.S.C. § 2302 et seq.

(“WPA”), alleging that her earlier disclosures to GAO 

FraudNet were contributing factors in various personnel 

actions, including the proposed ten-day suspension. 

After exhausting the OSC process, Ms. Boyd filed an 

Individual Right of Action (“IRA”) appeal under the WPA. 

While that appeal was pending, Labor issued a decision 

implementing the proposed suspension effective April 12, 

2012. One day before the suspension was to take effect, 

on April 11, 2012, Ms. Boyd resigned from her position at 

the agency. She then sought corrective action from the 

OSC again, alleging that Labor’s final decision letter 

imposing the suspension constituted a new adverse personnel action. OSC did not pursue her claim, so she filed 

a second IRA appeal with the Board.

In the first IRA appeal, the administrative judge determined that the Board had jurisdiction to hear Ms. 

Boyd’s appeal because she made detailed, non-frivolous 

allegations that she had made protected disclosures, that 

Labor had taken prohibited personnel actions against her, 

and that management had known of her protected disclosures. Boyd v. Dep’t of Labor, No. AT1221120456-W-1 

(M.S.P.B. Aug. 3, 2012) (“Initial Decision I”) at 3-5. After 

finding that the Board had jurisdiction, the administrative judge held a hearing on the merits of Ms. Boyd’s 

claim. At the hearing, Ms. Boyd declined to testify, but 

instead submitted a written statement. Several other 

witnesses were called to testify about whether or not the 

agency was aware of Ms. Boyd’s protected disclosures. 

Ultimately, the administrative judge concluded that Ms. 

Boyd had failed to prove by preponderant evidence that 

her protected disclosures were a contributing factor in the 

personnel actions taken by the agency. Id. at 11. 
4 BOYD v. LABOR

After the decision was issued in Ms. Boyd’s first IRA 

appeal, the administrative judge dismissed her second 

IRA appeal on collateral estoppel grounds. Specifically, 

the administrative judge found that the first appeal had 

resolved the issues of whether management was aware of 

Ms. Boyd’s anonymous protected disclosures (it was not) 

and whether management perceived Ms. Boyd to be a 

whistleblower (it did not). Because both of those issues 

were also necessary to finding in Ms. Boyd’s favor in the 

second appeal, Ms. Boyd could not establish by a preponderance of the evidence that her protected disclosures had 

been a contributing factor in the personnel actions taken 

against her. Boyd v. Dep’t of Labor, No. AT1221120665-

W-1 (M.S.P.B. Oct. 19, 2012) (“Initial Decision II”) at 8. 

Ms. Boyd then filed a petition for review of both decisions with the Board. The Board affirmed the administrative judge’s decision in the first IRA appeal and denied 

Ms. Boyd’s request for corrective action. Final Order at 7-

11. The Board also vacated the administrative judge’s 

decision that the second IRA appeal was barred by collateral estoppel because the initial decision in the first IRA 

appeal was not final when the second IRA appeal was 

docketed. Id. at 6-7. However, the Board nevertheless 

found that dismissal of the second IRA appeal was appropriate for reasons of adjudicatory efficiency. Id. 

Ms. Boyd timely appealed the Board’s final order. We 

have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of Board decisions is limited by statute. 

Under 5 U.S.C. § 7703(c), we may only reverse a Board 

decision if we find the decision to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required 

by law; or (3) unsupported by substantial evidence. Ward 

v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011). 
BOYD v. LABOR 5

To establish a prima facie case of whistleblower retaliation, an employee must prove by a preponderance of the 

evidence that she made a protected disclosure under 5 

U.S.C. § 2302(b)(8), that she was subject to an adverse 

personnel action, and that the protected disclosure was a 

contributing factor in the adverse action. See Johnston v. 

Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). If 

she does so, the burden then shifts to the agency to establish by clear and convincing evidence that it would have 

taken the same personnel action in the absence of the 

disclosure. Yunus v. Dep’t of Veterans Affairs, 242 F.3d 

1367, 1371 (Fed. Cir. 2001). 

Ms. Boyd challenges the Board’s decision on several 

grounds, none of which is persuasive.1

First, Ms. Boyd raises numerous challenges to the 

administrative judge’s factual findings, as affirmed by the 

Board. For example, she argues that the administrative 

judge erred in evaluating the testimony of one of the 

witnesses, Mr. Michael Holston. Ms. Boyd claimed that 

Mr. Holston had previously made statements that Ms. 

Boyd was “taking away the contractor’s jobs”—a statement she thinks indicates that he knew about her protected disclosures to GAO FraudNet. Initial Decision I at 

10. At the hearing, however, Mr. Holston denied ever 

having made such a statement. The administrative judge 

found Mr. Holston’s testimony to be credible and that 

there was therefore no support for Ms. Boyd’s position 

that her anonymous disclosures contributed to the personnel actions taken against her. Id. On appeal, Ms. 

Boyd argues that this credibility determination was 

1 Ms. Boyd filed virtually identical informal briefs 

in both this case and No. 2014-3015, which relates to her 

involuntary resignation claim. We have attempted to 

determine which of her arguments relates to each appeal 

and have addressed them in the corresponding opinions. 

 
6 BOYD v. LABOR

erroneous because Mr. Holston perjured himself and 

because Ms. Boyd was not given an opportunity to crossexamine him about those statements. Pet’r Br. Continuation 2-4. However, there is simply nothing in the record 

to suggest that Mr. Holston perjured himself, and Ms. 

Boyd was present at the hearing and was entitled to 

cross-examine him, but chose not to do so. Thus, we 

cannot conclude that the administrative judge incorrectly 

decided the facts on this basis. 

Second, Ms. Boyd argues that the Board committed 

several legal errors. For example, she alleges that the 

administrative judge failed to apply the correct legal 

standard for making credibility determinations. Id. at 6-

7. Ms. Boyd made similar allegations in her other appeal, 

No. 2014-3015, also issued today. There, we laid out the 

standard for credibility determinations, and concluded 

that the administrative judge properly applied that 

standard. The same is true here. In the first initial

decision, the administrative judge noted that there was no 

evidence contradicting the witnesses’ testimony, that 

their testimony was not inherently improbable, that they 

testified in a “confident and forthright manner,” and that 

there was no reason to question their testimony based on 

their opportunity and capacity to observe the events in 

question, their character, or any prior inconsistent statements. Initial Decision I at 9. At the same time, appellant’s hearsay written statement was entitled to little 

probative weight because she was available to testify at 

the hearing but chose not to and there was no evidence in 

the record corroborating her statements. Id. Moreover, 

because the administrative judge’s credibility determinations were based on a full consideration of all of the 

proper factors, the Board did not err in deferring to those 

determinations. Thus, neither the administrative judge 

nor the Board committed legal error in crediting the 

testimony of the hearing witnesses over Ms. Boyd’s out-ofcourt hearsay statement.
BOYD v. LABOR 7

Next, Ms. Boyd argues that the administrative judge 

arbitrarily and capriciously used the doctrine of collateral 

estoppel to prevent her from introducing new evidence in 

her second IRA appeal. Pet’r Br. Continuation 18-19. We 

disagree. As an initial matter, the Board vacated the 

administrative judge’s collateral estoppel decision, so it is 

no longer in effect and cannot form the basis for her 

appeal. See Final Order at 7. Instead, the Board affirmed the dismissal of Ms. Boyd’s second IRA appeal on 

the grounds of adjudicatory efficiency. Id. Ms. Boyd has 

not argued that the Board made any legal error in dismissing her second appeal on that basis, but regardless, 

we conclude that it did not. The Board has often ruled 

that it is appropriate to dismiss a second appeal on the 

grounds of adjudicatory efficiency when it raises claims 

already decided in an initial decision in an earlier appeal. 

See Zgonc v. Dep’t of Defense, 103 M.S.P.R. 666, 669

(2006). Thus, the only real question is whether the two 

appeals in fact raise the same claims. The question in 

both appeals was whether Ms. Boyd’s protected disclosures in her two anonymous letters to GAO FraudNet 

were “contributing factors” to the agency’s personnel 

actions against her. The only difference between the two 

appeals is the personnel action in question: the first 

appeal relates to the proposal of the ten-day suspension 

(among other things), while the second appeal relates to 

the actual imposition of that same suspension. However, 

nothing in Ms. Boyd’s allegations suggests that the agency’s knowledge of her protected disclosures changed in 

any way between the February 16, 2012 proposal of her 

suspension and the April 11, 2012 finalization of that 

action. Thus, the administrative judge was correct that 

the first appeal effectively resolved the claims at issue in 

the second appeal, and the Board did not err in dismissing 

the second appeal for reasons of adjudicatory efficiency. 

Finally, Ms. Boyd argues that she suffered several 

due process violations and harmful procedural errors that 
8 BOYD v. LABOR

were not adequately addressed by the Board. The Board 

disposed of those allegations by noting that they may not 

be heard in the context of an IRA appeal. Final Order at 

11 (citing Marren v. Dep’t of Justice, 51 M.S.P.R. 632, 638-

39 (1991)). However, Ms. Boyd says this was a misunderstanding of her claim, which was that certain due process 

violations themselves constituted adverse personnel 

actions for purposes of her WPA claim. See Pet’r Br. 1, 

Pet’r Br. Continuation 15-16. But in light of the finding 

that Ms. Boyd had not established that the agency even 

knew about her protected disclosures, there was no need 

for either the administrative judge or the Board to independently consider every allegedly retaliatory personnel 

action. Thus, the Board did not err in failing to discuss 

Ms. Boyd’s due process allegations. 

We have considered Ms. Boyd’s remaining arguments 

and find them unpersuasive. We find no reason to conclude that the Board’s findings were unsupported by 

substantial evidence or were not in accordance with law.

CONCLUSION

For the foregoing reasons, we conclude that the Board 

correctly denied Ms. Boyd’s petition for review and affirmed the dismissal of both of her IRA appeals. Accordingly, we affirm.

AFFIRMED

COSTS

Each party shall bear its own costs.