McCloud v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: July 11, 2025
• Docket: 24-2376
• Status: Unpublished

Opinion

Case: 24-2376 Document: 26 Page: 1 Filed: 07/11/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

CONTESSA MCCLOUD, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-2376 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-1221-22-0314-W-1. ______________________

Decided: July 11, 2025 ______________________

CONTESSA MCCLOUD, Geneva, AL, 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 ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________ Case: 24-2376 Document: 26 Page: 2 Filed: 07/11/2025

Before LOURIE and PROST, Circuit Judges, and BUMB, Chief District Judge. 1 PER CURIAM. Contessa McCloud petitions for review of the final or- der of the Merit Systems Protection Board (“the Board”) denying her petition for review and affirming the dismissal of her individual right of action (“IRA”) appeal for lack of jurisdiction. McCloud v. Dep’t of Veterans Affs., No. AT- 1221-22-0314-W-1, 2024 WL 3690748 (M.S.P.B. Aug. 6, 2024) (“Final Order”); see also McCloud v. Dep’t of Veterans Affs., No. AT-1221-22-0314-W-1, 2022 WL 2193217 (M.S.P.B. June 16, 2022) (“Initial Decision”), R.A. 12–33. 2 For the following reasons, we affirm. BACKGROUND At all relevant times, McCloud was employed as a Res- piratory Therapist at the Department of Veterans Affairs Health Care System in Montgomery, Alabama. Final Or- der, at *1. On February 26, 2022, McCloud filed a whistle- blower complaint with the Office of Special Counsel (“OSC”), alleging that, in reprisal for filing Equal Employ- ment Opportunity (“EEO”) complaints of discrimination, agency officials denied her request for a reasonable accom- modation, issued her a written counseling, and subjected her to a hostile work environment. Id.; see R.A. 50–53. Af- ter OSC closed out the complaint, McCloud filed an indi- vidual right of action (“IRA”) appeal at the Board. R.A. 92–120.

1 Honorable Renée M. Bumb, Chief Judge, United States District Court for the District of New Jersey, sitting by designation. 2 “R.A.” refers to the appendix filed with Respond- ent’s brief. Case: 24-2376 Document: 26 Page: 3 Filed: 07/11/2025

MCCLOUD v. MSPB 3

In an initial decision, the administrative judge (“AJ”) found that McCloud had failed to exhaust her administra- tive remedies before OSC. Initial Decision, R.A. 18–22. The AJ further explained that, even if McCloud had ex- hausted those remedies, long-standing precedent held that retaliation for filing an EEO complaint for discrimination is not redressable in an IRA appeal. Id., R.A. 22–25. Therefore, the AJ dismissed the appeal because the Board did not have jurisdiction over McCloud’s claim. Id., R.A. 25. McCloud petitioned for Board review of the initial de- cision. The Board modified the AJ’s decision as to the ex- haustion requirement—finding that McCloud had sufficiently exhausted her administrative remedies—but otherwise affirmed the determination that the Board lacked jurisdiction. Final Order, at *2–3. The Board there- fore denied McCloud’s petition for review. Id. at *1. McCloud timely petitioned for review in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION We review the Board’s jurisdictional determinations de novo and any findings of fact underlying such determina- tions for substantial evidence. Jones v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024). Under the Whistleblower Protection Act, a federal em- ployee may seek corrective action from the Board “with re- spect to any personnel action taken, or proposed to be taken, against such employee . . . as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D).” 5 U.S.C. § 1221(a). Sec- tion 2302(b)(8) prohibits taking or failing to take any per- sonnel action because of any disclosure of information that the employee “reasonably believes evidences . . . (i) any vi- olation of any law, rule, or regulation, or (ii) gross misman- agement, a gross waste of funds, an abuse of authority, or Case: 24-2376 Document: 26 Page: 4 Filed: 07/11/2025

a substantial and specific danger to public health or safety.” Section 2302(b)(9)(A)(i) prohibits taking or failing to take any personnel action because of an employee’s “ex- ercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation . . . with regard to remedy- ing a violation of [section 2302(b)(8)].” But the Board lacks jurisdiction when the employee seeks corrective action for a prohibited personnel practice described in section 2302(b)(9)(A)(ii), which concerns “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation . . . other than with regard to remedying a violation of [section 2302(b)(8)].” See Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1329 (Fed. Cir. 2020). “Retaliation for filing those other types of com- plaints is remediable through different mechanisms, and not by an IRA appeal to the Board.” Id. (collecting cases). McCloud seeks corrective action based on alleged retal- iation taken in response to her filing of EEO complaints. But allegations of retaliation based on EEO complaints fall within the scope of section 2302(b)(9)(A)(ii), and therefore outside the Board’s jurisdiction. Young, 961 F.3d at 1329; see Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 692 (Fed. Cir. 1992) (explaining that employees cannot maintain simultaneous Board and EEOC jurisdiction to resolve the same alleged violations); cf. Abutalib v. Merit Sys. Prot. Bd., 127 F.4th 373, 381 (Fed. Cir. 2025) (“The fact that the Board does not have jurisdiction over retaliation for EEO activities does not mean that the Board lacks jurisdiction over claims of retaliation for true whistleblowing disclo- sures just because those disclosures may have been made in the course of EEO proceedings.”). Here, the Board cor- rectly concluded that it does not have authority to resolve McCloud’s IRA appeal because her EEO complaints form- ing the basis of her appeal do not concern remedying any violation of section 2302(b)(8) and, therefore, are not within the purview of section 2302(b)(9)(A)(i). Case: 24-2376 Document: 26 Page: 5 Filed: 07/11/2025

MCCLOUD v. MSPB 5

CONCLUSION We have considered McCloud’s remaining arguments and find them unpersuasive. 3 For the foregoing reasons, the Board’s dismissal of McCloud’s IRA appeal for lack of jurisdiction is affirmed. AFFIRMED COSTS The parties shall bear their own costs.

3 On July 2, 2025, we received from McCloud an un- timely Memorandum in Lieu of Oral Argument. Although untimely, we have considered the substance of the filing and conclude that it does not affect our decision in this case.