UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBIN L. ROYAL-BIRD,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

CH-3443-16-0170-I-1

DATE: December 20, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robin L. Royal-Bird, Indianapolis, Indiana, pro se.

Cynthia C. Cummings, Esquire, Indianapolis, Indiana, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her 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 erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

¶2 The appellant is employed as a Military Pay Technician. Initial Appeal File 

(IAF), Tab 1 at 16. In December 2015, she was reassigned, without any change in 

duty station, pay, or grade. Id. at 10-13, 16-17. The appellant filed the instant 

appeal, alleging that this action was reprisal for filing a complaint against 

management officials and participating as an equal employment opportunity 

(EEO) representative. Id. at 5. 

¶3 The administrative judge ordered the appellant to meet her jurisdictional 

burden. IAF, Tabs 2-3. Although she failed to submit a timely response, the 

appellant later responded to a show cause order with argument and evidence 

suggesting that she was improperly reassigned and subjected to a hostile work 

environment. Compare IAF, Tab 6, with IAF, Tabs 7-8. 

¶4 Without holding the requested hearing, the administrative judge dismissed 

the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). First, he 

found that the appellant failed to nonfrivolously allege that she was subjected to 

an appealable adverse action. ID at 3-4. Next, to the extent that her appeal could 

be construed as an individual right of action (IRA) appeal, he found that the 

appellant failed to show that she exhausted her administrative remedies with the 

Office of Special Counsel (OSC). ID at 4-5. The administrative judge also noted 

that reprisal for engaging in EEO activity is not an independent basis for finding 
3

jurisdiction over an IRA appeal. ID at 5. The appellant has filed a petition for 

review. Petition for Review (PFR) File, Tab 1. The agency has filed an 

untimely2response and the appellant has replied. PFR File, Tabs 5-6. 

¶5 In her petition for review, the appellant does not clearly articulate any error 

in the administrative judge’s decision. Instead, she submitted a number of 

unexplained documents and reasserts that the agency committed a number of 

improprieties. PFR File, Tab 1. She generally attributes the alleged 

improprieties to discrimination, EEO reprisal, and whistleblowing. Id. at 28-34. 

¶6 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In the absence of a reduction 

in pay or grade, the appellant’s reassignment and purported hostile work 

environment are not appealable adverse actions under 5 U.S.C. chapter 75. 

5 U.S.C. §§ 7512, 7513(d). The Board also lacks jurisdiction over the appellant’s 

claims of discrimination and EEO reprisal in connection with nonappealable 

actions. See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶¶ 8-9 (2005); 

see also 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). 

Thus, we agree with the administrative judge’s conclusion that the appellant 

failed to present nonfrivolous allegations of Board jurisdiction pursuant to 

5 U.S.C. chapter 75. ID at 3-4; see generally Ferdon v. U.S. Postal Service, 

60 M.S.P.R. 325, 329 (1994) (recognizing that an appellant is entitled to a 

jurisdictional hearing if she makes a nonfrivolous allegation that the Board has 

jurisdiction over her appeal). 

¶7 We also agree with the administrative judge that the appellant failed to meet 

her jurisdictional burden over this matter as an IRA appeal. ID at 4-5. To 

 

2 We find it unnecessary to rule on the agency’s motion to accept its untimely response. 

PFR File, Tab 5 at 4-10. 
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establish the Board’s jurisdiction over an IRA appeal, an appellant must have 

exhausted her administrative remedies before the OSC and make nonfrivolous 

allegations of the following: (1) she engaged in whistleblowing by making a 

protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in other protected 

activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the 

disclosure or activity was a contributing factor in the agency’s decision t o take or 

fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. 

§§ 1214(a)(3), 1221; Yunus v. Department of Veterans Affairs, 

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

¶8 In accordance with the aforementioned exhaustion element, an employee is 

required to seek corrective action from the OSC before seeking corrective action 

from the Board, and the Board may only consider charges that the appellant raised 

before OSC. Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 

(2010). An appellant must inform OSC of the precise ground of her charge, 

giving OSC a sufficient basis to pursue an investigation which might lead to 

corrective action. Id. 

¶9 Below, the appellant failed to show that she sought corrective action with 

OSC prior to coming before the Board. ID at 5; see IAF, Tabs 1, 7-8. However, 

the appellant has submitted a closeout letter from OSC for the first time with her 

petition for review, which we now consider. PFR File, Tab 1 at 37-39; compare 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (recognizing that the 

Board generally will not consider evidence submitted for the first time with the 

petition for review absent a showing that it was unavailable before the record was 

closed despite the party’s due diligence), with Atkinson v. Department of State, 

107 M.S.P.R. 136, ¶ 12 (2007) (accepting evidence, which the appellant 

submitted for the first time on review although he could have submitted it below, 

that he exhausted his remedies before OSC); Hawkins v. Department of 

Commerce, 98 M.S.P.R. 107, ¶¶ 7-8 (2004) (remanding an IRA appeal that 

became ripe while pending on petition for review because OSC terminated its 
5

inquiry and informed the appellant of his Board appeal rights). Even with this 

new evidence, we find that the appellant has failed to meet her 

jurisdictional burden. 

¶10 An appellant must show what specific claims she presented to OSC by 

providing her OSC complaint, any amendments to the complaint, OSC’s 

correspondence discussing the claims, and/or her responses to OSC’s 

correspondence discussing the claims. Baldwin, 113 M.S.P.R. 469, ¶ 8. Here, the 

appellant presented OSC’s closeout letter, but no other clear argument or 

evidence concerning the exhaustion requirement. 3 OSC’s letter indicates that the 

appellant alleged that she was moved to a new department and subjected to a 

hostile work environment. PFR File, Tab 1 at 38. It further suggests that the 

appellant attributed these actions to her filing a series of EEO complaints against 

management and her serving as an EEO representative for others. Id. However, 

it does not include other relevant details, such as the nature of the appellant’s 

EEO activity, the individuals involved in that activity, or the individuals 

responsible for the purported reprisal. Cf. Swanson v. General Services 

Administration, 110 M.S.P.R. 278, ¶ 8 (2008) (finding that an appellant satisfied 

the exhaustion requirement when, with reasonable clarity and precision, he 

informed OSC of the content of his disclosure, the individual to whom it was 

made, the nature of the personnel actions allegedly taken in retaliation, and the 

individuals responsible for taking those actions). Therefore, the appellant has 

failed to prove what matters she may have exhausted with OSC and whether those 

matters fall within the Board’s jurisdiction over IRA appeals. See, e.g., Mudd v. 

Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that 

 

3 Aside from the OSC closeout letter, the appellant submitted a number of other 

documents with her petition for review. E.g., PFR File, Tab 1 at 2-26. However, the 

appellant has failed to explain the documents and it is not apparent whether or how they 

relate to her jurisdictional burden. See Luecht v. Department of the Navy, 87 M.S.P.R. 

297, ¶ 8 (2000) (recognizing that a party whose submissions lack clarity risks being 

found to have failed to meet his or her burden of proof). 
6

the Whistleblower Protection Enhancement Act of 2012 extended the Board’s 

jurisdiction over IRA appeals to claims of reprisal for filing complaints seeking 

to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8), but not to other 

types of complaints); see also 5 U.S.C. § 2302(b)(9)(B)(extending the Board’s 

jurisdiction over IRA appeals to claims of reprisal for “testifying for or otherwise 

lawfully assisting any individual in the exercise of any right referred to in 

subparagraph (A)(i) or (ii)”). We find, because the appellant failed to meet her 

jurisdictional burden, the administrative judge properly dismissed her appeal. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 
7

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law and other sections of the United States 

Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information 

about other courts of appeals can be found at their respective websites, which c an 

be accessed through the link below: 

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

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 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board