UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

THASHA A. BOYD,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0731-13-7162-I-1

DATE: November 21, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thasha A. Boyd, Kennesaw, Georgia, pro se.

Megan Erb, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed this individual right of action (IRA) appeal regarding her preappointment background investigation for lack of jurisdiction. Generally, we 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

grant petitions such as these only when: 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 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. See 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, and based on the following 

points and authorities, 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 applied for several vacancies with the Department of 

Homeland Security (DHS), and was tentatively selected for a position in late 

2012, pending a background investigation. Boyd v. Office of Personnel 

Management, MSPB Docket No. AT-0731-13-7162-I-1 (Boyd I), Initial Appeal 

File (IAF-I), Tab 1 at 5, 12; Boyd v. Department of Homeland Security, MSPB

Docket No, AT-1221-13-3375-W-1, Initial Appeal File (IAF-III), Tab 4 at 20-21, 

Tab 6 at 20-21. DHS rescinded its tentative offer in April 2013. IAF-I, Tab 1

at 12. DHS indicated that while there was an immediate need to fill the position 

in order to meet mission requirements, the agency was unable to determine how 

long it would take to complete its investigation into the appellant’s background. 

Id. Subsequently, the appellant filed an IRA appeal with the Board alleging that 

this rescission was the result of whistleblower disclosures she made in May 2010 
3

and April 2011, while employed at the Department of Labor (DOL).

2

 Id. 

at 5, 9-10. 

¶3 The appeal was docketed as three separate cases against the Office of 

Personnel Management (OPM), DOL, and DHS, the three parties named by the 

appellant. See IAF-I (claim against OPM); Boyd v. Department of Labor, MSPB 

Docket No. AT-3443-13-7178-I-1 (Boyd II), Initial Appeal File (IAF-II) (claim 

against DOL); IAF-III (claim against DHS). We refer here to the appellant’s IRA 

claims against OPM and DOL as Boyd I and Boyd II, respectively. 

¶4 For the appellant’s claims against OPM and DOL, the administrative judge 

issued show cause orders to the appellant to submit argument and evidence 

constituting nonfrivolous allegations falling within the Board’s jurisdiction. 

IAF-I, Tab 3; IAF-II, Tab 3. The appellant submitted responses for each. IAF-I,

Tab 4; IAF-II, Tab 5. Nevertheless, the administrative judge dismissed both 

cases for lack of jurisdiction. IAF-I, Tab 11, Initial Decision (ID-I); IAF-II,

Tab 10, Initial Decision (ID II). The appellant has filed petitions for review. 

Boyd I, MSPB Docket No. AT-0731-13-7162-I-1, Petition for Review (PFR-I) 

File, Tab 1 (claim against OPM); Boyd II, MSPB Docket No. AT-3443-13-7178-I1, Petition for Review (PFR-II) File, Tab 1 (claim against DOL). In this Order, 

we address the appellant’s claims against OPM in Boyd I. 

¶5 The Board has jurisdiction over an IRA appeal if the appellant exhausts her 

administrative remedies before the Office of Special Counsel (OSC)

3 and makes 

 2 The appellant resigned from her DOL position in April 2012. In three prior Board 

appeals, she alleged that DOL constructively removed her and engaged in whistleblower 

retaliation. The Board dismissed the constructive removal appeal. Boyd v. Department 

of Labor, MSPB Docket No. AT-0752-12-0513-I-1, Final Order at 3-8 (Sept. 17, 2013). 

The Board reviewed her whistleblower retaliation claims, found that she failed to meet 

her burden of proof as to one and dismissed the other based upon judicial efficiency. 

Boyd v. Department of Labor, MSPB Docket Nos. AT-1221-12-0456-W-1 & 

AT-1221-12-0665-W-1, Final Order at 4, 7-11 (Sept. 17, 2013). The U.S. Court of 

Appeals for the Federal Circuit affirmed those decisions. Boyd v. Department of Labor, 

561 F. App’x 973 (Fed. Cir. 2014) (Table); Boyd v. Department of Labor, 561 F. App’x 

978 (Fed. Cir. 2014) (Table). 
4

nonfrivolous allegations that: (1) she made a disclosure described under 5 U.S.C. 

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

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity 

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). 5 U.S.C. §§ 1214(a)(3), 

1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. 

Cir. 2001). For the first element, engaging in whistleblowing activity by making 

a protected disclosure, the Board has found that an individual who is perceived 

as a whistleblower is still entitled to the protections of the Whistleblower 

Protection Act (WPA), 4 even if she has not made protected disclosures. King v. 

Department of Army, 116 M.S.P.R. 689, ¶ 6 (2011). 

¶6 The appellant’s response to the administrative judge’s show cause order 

suggested that OPM was aware of her prior whistleblowing concerning DOL and, 

as a result, retaliated by issuing a “fallacious, biased, and subjective” background 

investigation as it relates to the DHS position she sought. IAF-I, Tab 4 at 6-9. 

She also alleged that the background check OPM conducted was unnecessary and 

unwarranted because she previously held a security clearance. Id. at 4. The 

appellant then alleged that OPM erred in permitting the one person it contacted at 

DOL for an interview to opt out of providing one. Id. at 5. 

 3 The administrative judge did not address this jurisdictional requirement in his initial 

decisions, see ID-I at 4-7; ID-II at 4-7, but the appellant’s appeal included letters from 

OSC indicating that she had filed a complaint and that OSC was closing its inquiry, 

IAF-I, Tab 1 at 13-15. Therefore, we find that the appellant exhausted her claims 

before OSC.

4 The Whistleblower Protection Enhancement Act of 2012 (WPEA), which amended the 

WPA, became effective on December 27, 2012, before the appeal was filed in this case. 

As discussed below, the changes enacted by the WPEA do not affect the outcome of this 

appeal.
5

¶7 In her petition for review of Boyd I, the appellant presents further

arguments for her claim of whistleblower retaliation.

5

 PFR-I File, Tab 1 at 5. 

The appellant first argues that the administrative judge erred in concluding that 

OPM’s background investigation painted her in a positive light. Id. at 5, 7-8.

Next, the appellant argues that despite the judge’s assertion to the contrary, she 

did present evidence that OPM knew of her alleged whistleblowing. Id. at 5. 

Finally, she argues that the judge erred in finding that the Board has no 

jurisdiction over how OPM conducted its background investigation. Id. 

¶8 As detailed above, to establish jurisdiction in an IRA appeal as a 

whistleblower an appellant must present a nonfrivolous allegation that she 

engaged in a protected disclosure or that she was perceived as a whistleblower. 

King, 116 M.S.P.R. 689, ¶¶ 6, 8. In her initial appeals, the appellant did not 

identify specific disclosures, but she did reference prior claims she had before the 

Board regarding her alleged whistleblowing. IAF-I, Tab 1 at 5 & n.3; IAF-II, Tab 

1 at 5 & n.3. She also alleged that OPM perceived her as a whistleblower because 

she had informed DHS that she was engaged in litigation with DOL over 

disclosures of fraud, waste, and abuse. IAF-I, Tab 4 at 6, 31-36. She speculated 

that OPM would have learned of this, id. at 6, but provided no supportive 

evidence. To the contrary, her evidence of OPM’s background investigation 

contains no reference to these materials and no mention of whistleblowing. Id. at 

20-21. Nevertheless, in a prior case, the Board confirmed that the appellant had 

 5 Among the allegations in her appeal, the appellant suggested that DHS had refused to 

complete a suitability determination. IAF-I, Tab 1 at 8-9. As a result, the 

administrative judge’s dismissal included a finding that the appellant had failed to 

demonstrate the existence of a suitability action. ID-I at 3-4. However, the appellant’s 

petition for review withdraws the allegation, clarifying that her appeal should not have 

been construed as one regarding a suitability determination. PFR-I, Tab 1 at 5. 

Therefore, we do not consider this allegation further.
6

made protected disclosures. 6

 See Boyd, Docket Nos. AT-1221-12-0456-W-1 & 

AT-1221-12-0665-W-1, Final Order at 7 (Sept. 17, 2013). 

¶9 Although the Board found her disclosures protected in a previous appeal, 

the appellant also must satisfy the second jurisdictional element, a nonfrivolous 

allegation that the disclosures were a contributing factor in an agency’s decision 

to take or fail to take a personnel action. King, 116 M.S.P.R. 689, ¶¶ 6, 9. Here, 

the appellant failed to present any evidence of OPM engaging in a “personnel 

action” as it relates to the DHS position for which she applied. See 5 U.S.C. 

§ 2302(a)(2)(A). While DHS’s nonselection of the appellant for its vacancy was 

a personnel action, see King, 116 M.S.P.R. 689, ¶ 10, OPM’s background 

investigation was not. In reaching this conclusion, we note that Congress took 

such investigations into consideration when it recently amended the WPA by 

enacting the WPEA. Specifically, the legislative history of the WPEA indicates 

that, although Congress was aware that retaliatory investigations were not 

expressly referenced as a personnel action under the WPA, it declined to insert a 

provision concerning such investigations in light of the Administration’s concern 

“that legitimate and important agency inquiries—including . . . routine 

background investigations for initial employment . . . —not be chilled by fear of 

challenge and litigation.” S. Rep. No. 112-743, at 21 (2012). Because there is no 

indication in the statute or its legislative history that routine OPM background 

investigations are personnel actions under the WPA, the administrative judge 

correctly dismissed the appellant’s appeal in Boyd I for lack of jurisdiction. 

¶10 Based upon the above, we find that the appellant has failed to meet her 

burden of presenting nonfrivolous allegations of Board jurisdiction in her IRA 

 6 The protected disclosures were letters that were sent to the Government 

Accountability Office, requesting an investigation into the operations of the Office of 

Foreign Labor Certification as it related to a lack of production standards, frequent 

breaks, pay inequality, questionable hiring practices, misuse of government equipment, 

and poor training. Boyd, Docket Nos. AT-1221-12-0456-W-1 & AT-1221-12-0665-W1, Final Order at 3, n.4 (Sept. 17, 2013).
7

appeal against OPM. Accordingly, the initial decision dismissing the appeal in 

MSPB Docket No. AT-0731-13-7162-I-1 is AFFIRMED.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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 United States 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 United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek 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 as well as other sections of the United 
8

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information about the United States 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 can be accessed 

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

If you are interested in securing pro bono representation for an appeal to 

the United States Court of Appeals for the Federal Circuit, you may visit our 

website at http://www.mspb.gov/probono for a list of attorneys who have 

expressed interest in providing 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.

______________________________

William D. Spencer

Clerk of the Board