Coleman v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: June 10, 2026
• Docket: 25-2031
• Status: Unpublished

Opinion

Case: 25-2031 Document: 32 Page: 1 Filed: 06/10/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

RICHARD W. COLEMAN, JR., Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2025-2031 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-22-0109-W-1. ______________________

Decided: June 10, 2026 ______________________

RICHARD WALTER COLEMAN, JR., Fredericksburg, VA, pro se.

CONSTANCE E. TRAVANTY, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, SCHALL, and TARANTO, Circuit Judges. Case: 25-2031 Document: 32 Page: 2 Filed: 06/10/2026

PER CURIAM. DECISION Richard W. Coleman, Jr. petitions for review of the Au- gust 14, 2024 Final Order of the Merit System Protection Board (“Board”), Docket No. DC-1221-22-0109-W-1. In the Final Order, the Board dismissed Mr. Coleman’s December 3, 2021 individual right of action (IRA) appeal for lack of jurisdiction. S.A. 1–19. 1 Because the Board properly de- termined that it lacked jurisdiction over Mr. Coleman’s ap- peal, we affirm. BACKGROUND I The pertinent facts are undisputed. In 2008, Mr. Cole- man was hired as a Supervisory Explosives Specialist in the Hazardous Devices Branch (hereinafter referred to as “the Bomb Squad”) of the Pentagon Force Protective Agency (PFPA or “agency”). S.A. 2. The PFPA is a compo- nent of the Department of Defense. Mr. Coleman’s position was within the National Security Personnel Systems and included a 25% hazardous duty pay (HDP) supplement. Id.; see 5 U.S.C. § 5545(d)(2); 5 C.F.R. § 550.904. On January 23, 2015, Mr. Coleman and other Bomb Squad employees attended a meeting with agency manag- ers and Human Resources (HR) officials. S.A. 2. At the meeting, the Bomb Squad employees were informed that they had been erroneously receiving the HDP supplement and that the supplement would be discontinued. Id. The HDP supplement was discontinued the following day, Jan- uary 24, 2015. Id. During a subsequent meeting with the HR Director on April 24, 2015, the Bomb Squad employees,

1 “S.A.” refers to the Supplemental Appendix at- tached to the Respondent’s Brief. Case: 25-2031 Document: 32 Page: 3 Filed: 06/10/2026

COLEMAN v. MSPB 3

including Mr. Coleman, were provided with a written mem- orandum explaining the basis for the January 2015 deci- sion. S.A. 3. The memorandum also informed Mr. Coleman that he was no longer eligible for HDP and that his position description had been updated to remove references to HDP. S.A. 106–07; S.A. 159. Thereafter, in July 2015, Mr. Cole- man received a new position description that did not in- clude a reference to HDP. S.A. 108. Beginning in February 2015, via a series of protected disclosures (eleven in all), Mr. Coleman repeatedly chal- lenged the decision to discontinue HDP. S.A. 50–89. The first of the disclosures was on February 2, 2015. S.A. 50– 51. The last of the disclosures was on February 12, 2018. S.A. 78. On October 19, 2017, Mr. Coleman filed a complaint with the Office of Special Counsel (OSC) under the Whis- tleblower Protection Enhancement Act of 2012 (WPEA) (amending 5 U.S.C. § 2302). In his complaint he alleged that, in reprisal for his protected disclosures concerning the termination of his HDP, the agency continued to deny him HDP and had reassigned him. S.A. 127–38. On No- vember 18, 2021, OSC issued a letter indicating that, alt- hough the matter remained open, OSC did not intend to seek corrective action on Mr. Coleman’s behalf. See S.A. 96. Mr. Coleman was informed that, therefore, he could file an individual right of action (IRA) appeal with the Board, because 120 days had passed since he first sought corrective action from OSC. Id. II On December 3, 2021, Mr. Coleman filed an IRA appeal with the Board in which he alleged that in reprisal for his various protected disclosures concerning his contention that the termination of his HDP was illegal, the agency re- fused to reinstate his HDP. S.A. 160–64. In a subsequent jurisdictional submission, he also alleged that he was sub- jected to an illegal reassignment when the agency removed Case: 25-2031 Document: 32 Page: 4 Filed: 06/10/2026

the HDP from his position description in reprisal for his alleged protected disclosures 6, 8, 10, and 11. S.A. 64, 70, 77, 79. On December 30, 2022, the administrative judge (AJ) to whom Mr. Coleman’s appeal was assigned issued an in- itial decision dismissing the appeal for lack of jurisdiction. See S.A. 20–37. The AJ found, inter alia, that Mr. Coleman failed to non-frivolously allege that any of his alleged pro- tected disclosures were a contributing factor in the denial of his HDP because the decision to terminate his HDP was made prior to any of the protected disclosures. S.A. 29; see also S.A. 23–24. The AJ also found that Mr. Coleman failed to non-frivolously allege that he had made a protected dis- closure under 5 U.S.C. § 2302(b)(8). S.A. 25–29. Following the AJ’s initial decision, Mr. Coleman petitioned the Board for review. See S.A. 41. On August 14, 2024, the Board issued its Final Order, affirming the AJ’s initial decision, as modified to clarify the basis for concluding that Mr. Coleman failed to meet his jurisdictional burden. S.A. 1–19. The Board found that Mr. Coleman failed to non-frivolously allege that his al- leged protected disclosures were a contributing factor in the discontinuation of his HDP because all the alleged pro- tected disclosures post-dated the discontinuation of his HDP. S.A. 8–9. The Board also addressed Mr. Coleman’s claim that, in reprisal for disclosures 6, 8, 10, and 11, he was subjected to an “illegal reassignment” based on the April 24, 2015 decision to issue him a new position descrip- tion. S.A. 12–13; see also S.A. 64, 70, 77, 79. The Board found that Mr. Coleman failed to non-frivolously allege that these disclosures were contributing factors because each of them came after his reassignment on April 24, 2015. See S.A. 12–13; S.A. 62, 68, 74, 78. Having found that Mr. Coleman had failed to non-frivolously allege that any of his disclosures was a contributing factor in the agency’s personnel action, the Board did not address the AJ’s alternate finding that Mr. Coleman had failed to non- Case: 25-2031 Document: 32 Page: 5 Filed: 06/10/2026

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frivolously allege that he made a protected disclosure. S.A. 13 n.6. Finally, the Board rejected Mr. Coleman’s “continuing reprisal” argument that the agency’s failure to resume pay- ment of the HDP after its initial January 23, 2015 decision to deny HDP, effective January 24, 2015, gave rise to a sep- arate retaliatory personnel action for each payday that he did not receive the HDP supplement. See S.A. 8–11. The Board reasoned that the January 23, 2015 decision was a single discrete act, and the fact that the effects of that de- cision were reflected in subsequent paychecks did not transform the discrete action into a continuing personnel action. This appeal followed. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION I “Our review of a decision of the [B]oard is circum- scribed by statute.” Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318, 1319 (Fed. Cir. 2016). “We must affirm the Board’s decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) ob- tained without procedures required by law, rule, or regula- tion having been followed; or (3) unsupported by substantial evidence.” Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363, 1366 (Fed. Cir. 2014). Substantial ev- idence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (ci- tation and internal quotation marks omitted). “Whether the [B]oard ha[s] jurisdiction to adjudicate a case is a question of law, which we review de novo.” Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). “[T]he Board has jurisdiction over an IRA appeal if the ap- pellant has exhausted his administrative remedies before the OSC and makes non-frivolous allegations that (1) he Case: 25-2031 Document: 32 Page: 6 Filed: 06/10/2026

engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclo- sure was a contributing factor in the agency’s decision to take or fail to take a personnel action.” Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (in- ternal quotation marks omitted). A protected disclosure under § 2302(b)(8) is one that the employee “reasonably be- lieves evidences (i) any violation of any law, rule, or regu- lation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C § 2302(b)(8)(A). “A pe- titioner bears the burden of establishing that the Board has jurisdiction by a preponderance of evidence.” McCarthy v. Merit Sys. Prot. Bd., 809 F.3d 1365, 1373 (Fed. Cir. 2016). II As noted, an appellant must demonstrate that he made a protected disclosure and that “the disclosure was a con- tributing factor in the agency’s decision to take or fail to take a personnel action.” Yunus, 242 F.3d at 1371; see also, e.g., El v. Merit Sys. Prot. Bd., 663 F. App’x 921, 925 (Fed. Cir. 2016); Davis v. Merit Sys. Prot. Bd., 278 F. App’x 1009, 1012–13 (Fed. Cir. 2008). Because all of Mr. Coleman’s protected disclosures were made after the January 24, 2015 discontinuance of his HDP, the personnel action he protests, the Board did not err in concluding that none of them was a contributing factor in the personnel action. On appeal Mr. Coleman argues that the instant case involves “the agency’s repeated, post-disclosure decisions to continue denying a statutory entitlement” after learning through his continuing protected disclosures that the ter- mination of HDP was unlawful. Pet’r’s Br. 16. According to Mr. Coleman, “[t]he agency’s continued refusal to rein- state HDP after receiving Appellant’s disclosures . . . is in- dependently actionable.” Pet’r’s Br. 16–17. The Board also did not err in rejecting Mr. Coleman’s theory of continuing reprisals. Subsequent consequences Case: 25-2031 Document: 32 Page: 7 Filed: 06/10/2026

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of a discrete act of reprisal do not constitute separate acts of reprisal so as to render the original violation continuing under the WPEA. See Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 667 (Fed. Cir. 1998) (addressing the prior Whis- tleblower Protection Act of 1989 and holding that the con- tinued monetary effects of a denial of a pay increase in 1988 were not separate continuing violations beyond the 1988 discrete act); Hamley v. Dep’t of the Interior, 122 M.S.P.R. 290, 294 (2015) (finding that the appellant’s continued per- formance of changed duties after the June 30, 2012 discrete act did not give rise to separate acts of continuing reprisal). We have considered Mr. Coleman’s additional argu- ments and have found them to be without merit. CONCLUSION For the forgoing reasons, we affirm the Final Order of the Board dismissing Mr. Coleman’s IRA appeal for lack of jurisdiction. AFFIRMED COSTS No costs.