Mardic Johnson v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARDIC JOHNSON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2136
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-20-0201-W-3.
______________________
Decided: September 26, 2022
______________________
MARDIC J OHNSON, Lawrenceville, GA, pro se.
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by T RISTAN L. L EAVITT ,
K ATHERINE M ICHELLE SMITH .
______________________
Before N EWMAN, STOLL , and CUNNINGHAM , Circuit
Judges.
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JOHNSON v. MSPB 2
P ER CURIAM .
Mardic Johnson appeals an administrative judge’s de-
cision to dismiss her appeal before the Merit Systems Pro-
tection Board. App. 1–9. For the reasons below, we affirm-
in-part and vacate-in-part the administrative judge’s deci-
sion and remand for further proceedings.
I. BACKGROUND
Ms. Johnson was employed as an education technician
with the Centers for Disease Control University in Atlanta,
Georgia, until she retired on June 30, 2019. App. 1–2. She
served as a federal government employee for 34 years.
Suppl. App. 16. Although this appeal dates to 2019, it is
important to turn back the clock another decade to under-
stand the relevant background.
In 2008, Ms. Johnson submitted two administrative
complaints.1 She first submitted a complaint with the Of-
fice of Special Counsel alleging “manipulation [of a] job an-
nouncement in order to provide advantage or preference in
promotion to another employee.” Suppl. App. 41. OSC
closed Ms. Johnson’s complaint the following year. Suppl.
App. 56. Two months after filing her OSC complaint, Ms.
Johnson filed a complaint with the Department of Health
and Human Services alleging that she was the target of
“discrimination on the basis of reprisal for prior protected
EEO activity.” EEOC Decision No. 0120092999, 2011 WL
2433190, at *1. HHS dismissed Ms. Johnson’s complaint
1 Ms. Johnson and the administrative judge stated
that Ms. Johnson filed her Office of Special Counsel com-
plaint in 2007 and her Equal Employment Opportunity
Commission complaint in 2009. See App. 1–2; Suppl. App.
41. She filed both complaints in 2008, however. See App.
132; EEOC Decision No. 0120092999, 2011 WL 2433190,
at *1 (June 8, 2011). Throughout this opinion, we refer to
each complaint as having been filed in 2008.
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JOHNSON v. MSPB 3
for failure to state a claim. Id. Ms. Johnson appealed to
the EEOC, and the EEOC affirmed HHS’s decision in 2011.
Id. at *1, 3.
Later, in 2018, Ms. Johnson filed a grievance with the
director of CDC University, Ron Lake, over her experience
with a coworker, Tonya Freeman, whom Ms. Johnson al-
leges engaged in threatening and intimidating behavior.
App. 142; Suppl. App. 57, 60. Mr. Lake did not reassign
Ms. Johnson based on her grievance, and Ms. Johnson did
not elevate her grievance to Mr. Lake’s supervisor. App.
142–43; Suppl. App. 57.
Then, in August 2019, following her retirement, Ms.
Johnson filed a new complaint with OSC claiming that she
was the victim of retaliation and other mistreatment.
Suppl. App. 27–36. Two months later, OSC informed Ms.
Johnson that it was closing her complaint and that she had
a right to file an individual right of action (“IRA”) appeal
with the Board. Suppl. App. 23–26.
Ms. Johnson exercised that right. Suppl. App. 15–22.
She completed MSPB Form 185 and answered question 18
to indicate that she was filing an IRA appeal. Suppl. App.
15, 18. She wrote “no choice but to retire” next to the words
“involuntary retirement” on the preceding page. Suppl.
App. 17. Ms. Johnson indicated that she identified “the
most recent incidents” and chose to do so after retiring be-
cause of “fear of continued mistreatment/retaliation.”
Suppl. App. 36. She also stated that she retired because of
“stressful conditions at the CDC.” Id.
Ms. Johnson alleges that she had the following nega-
tive experiences: (1) the CDC canceled her health insur-
ance during a furlough in 2018, Suppl. App. 34; (2) Ms.
Freeman subjected her to allegedly threatening and hostile
behavior, Suppl. App. 46–47, 53, 57–58; (3) Mr. Lake de-
nied Ms. Johnson’s request to be reassigned after Ms. Free-
man’s alleged behavior, Suppl. App. 60; (4) the CDC
incorrectly told Ms. Johnson that she did not qualify for a
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JOHNSON v. MSPB 4
new position within the CDC, which further interfered
with her preparation for the job interview, Suppl. App.
32–33; (5) Ms. Johnson discovered that a decision related
to her previous appeal to the EEOC could be found on
Google,2 Suppl. App. 35, 67; (6) Ms. Johnson was instructed
to manage Microsoft desktop courses that were previously
managed at the GS-11 level despite her being a GS-7
graded employee, Suppl. App. 35; (7) Ms. Johnson’s depart-
ment underwent restructuring so that certain courses that
she used to manage would only be managed by GS-9,
GS-11, and GS-12 graded employees, Suppl. App. 36;
(8) Ms. Johnson suffered from computer problems, which
she believes were the result of tampering, for three months,
Suppl. App. 43; and (9) human resources personnel gave
her incorrect guidance on how to submit her retirement pa-
perwork, resulting in her not receiving her pension for sev-
eral months, Suppl. App. 43–44, 125–26.
Soon after Ms. Johnson filed her appeal, the adminis-
trative judge issued two orders: one directing Ms. Johnson
to provide evidence of Board jurisdiction over her IRA ap-
peal and another directing Ms. Johnson to provide evidence
of Board jurisdiction over her “involuntary retirement”
claim. App. 44–57. Ms. Johnson filed two responses in
January 2020. Suppl. App. 41–81.
Nevertheless, the administrative judge dismissed the
appeal. App. 1–9. In so doing, the administrative judge
only analyzed Ms. Johnson’s IRA appeal without address-
ing the “involuntary retirement” claim that the adminis-
trative judge had previously identified. App. 1. The
2 Although Ms. Johnson referred to this document as
her 2009 (sic) OSC complaint, a review of the URL submit-
ted with her filings shows that it is a denial of reconsider-
ation related to her EEOC complaint. Suppl. App. 67;
EEOC Decision No. 0520120086 (Feb. 28, 2012), available
at https://www.eeoc.gov/decisions/0520120086.txt.
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JOHNSON v. MSPB 5
administrative judge wrote that the Board has jurisdiction
over an IRA appeal if two conditions are met. App. 3 (citing
Linder v. Dep’t of Just., 122 M.S.P.R. 14, ¶ 6 (M.S.P.B.
2014)). First, the appellant must have exhausted all her
administrative remedies before OSC. Id. Second, the ap-
pellant must non-frivolously allege (1) that she has made
protected whistleblowing disclosures or engaged in such
protected activity and (2) that those disclosures or pro-
tected activities were a contributing factor in the agency’s
decision to take or fail to take a personnel action. Id. The
administrative judge concluded that only Ms. Johnson’s
2008 OSC complaint constituted a protected disclosure.
App. 5–6. The administrative judge then found that the
Board lacked jurisdiction because Ms. Johnson failed to
non-frivolously allege that the 2008 OSC complaint was a
contributing factor to any of the alleged personnel actions
that caused her negative experiences. App. 9.
Ms. Johnson appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II. D ISCUSSION
Ms. Johnson appeals the administrative judge’s deci-
sion that the Board did not have jurisdiction. Our review
is similarly limited to examining whether the Board has
jurisdiction over Ms. Johnson’s appeal—it is not for us to
decide if judgment is properly entered in Ms. Johnson’s fa-
vor.
“Whether the Board has jurisdiction over an appeal is
a question of law we review de novo.” Hessami v. Merit Sys.
Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020). In other
words, we do not defer to the administrative judge’s legal
conclusions. By contrast, we review the Board’s underlying
factual findings for whether they are supported by substan-
tial evidence. Bryant v. Merit Sys. Prot. Bd., 878 F.3d 1320,
1325 (Fed. Cir. 2017).
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JOHNSON v. MSPB 6
A. The IRA Appeal
We first turn to the administrative judge’s conclusion
that the Board lacks jurisdiction over Ms. Johnson’s IRA
appeal. We have explained that for an appellant to estab-
lish Board jurisdiction over an IRA appeal under 5 U.S.C.
§ 1221:
[I]t suffices that an appellant exhaust his remedies
before the Office of Special Counsel and present
‘non-frivolous allegations’ that (1) he made a pro-
tected disclosure under 5 U.S.C. §§ 2302(b)(8) or
2302(b)(9)(A)(i), (B), (C), or (D) and that (2) the dis-
closure was a contributing factor in the agency’s de-
cision to take or fail to take a personnel action as
defined by 5 U.S.C. § 2302(a).
Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed.
Cir. 2016) (citing 5 U.S.C. § 1221(e)(1)).
Like the administrative judge, we focus on whether Ms.
Johnson’s allegations are sufficient to show Board jurisdic-
tion over her IRA appeal. We conclude that they are insuf-
ficient.
1. Protected Disclosure
The administrative judge concluded that only Ms.
Johnson’s 2008 OSC complaint is a protected disclosure
that can form the basis for an IRA appeal. App. 5–6. Ms.
Johnson now argues that her grievance could also consti-
tute a protected disclosure because it was not filed with the
EEOC. See Pet’r’s Reply Br. 5. We disagree.
As noted, an IRA appellant must non-frivolously allege
that she has made a protected disclosure under 5 U.S.C.
§§ 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C.
§ 1221(e)(1). Section 1221(e)(1) does not refer to
§ 2302(b)(9)(A)(ii). Therefore, if an IRA appeal is based on
§ 2302(b)(9)(A)(ii)—i.e., it is based on an appellant making
a disclosure by “the exercise of any appeal, complaint, or
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JOHNSON v. MSPB 7
grievance right granted by any law, rule, or regulation . . .
other than with regard to remedying a violation of”
§ 2302(b)(8)—then the Board does not have jurisdiction. In
relevant part, § 2302(b)(8) prohibits an agency from taking
or failing to take a personnel action with respect to an em-
ployee or applicant for employment for making a disclosure
of “(i) any violation of any law, rule, or regulation[;] 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).
Ms. Johnson’s grievance was about how Ms. Freeman’s
allegedly threatening behavior was a “perceived . . . abuse
of authority.” Pet’r’s Br. 7; Suppl. App. 34. Her grievance
did not seek to remedy a situation where an agency took or
failed to take a personnel action against an individual for
disclosure of “(i) any violation of any law, rule, or regula-
tion[;] 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). Here,
Ms. Johnson filed a grievance “other than with regard to
remedying a violation of” § 2302(b)(8). Because Ms. John-
son’s grievance constituted a disclosure under
§ 2302(b)(9)(A)(ii), it cannot form the basis for Board juris-
diction under § 1221(e)(1).
Ms. Johnson seems to argue that her grievance is a pro-
tected disclosure under § 2302(b)(9)(A)(i) because she “did
not file a formal grievance under the negotiated grievance
procedure with” the EEOC. Pet’r’s Reply Br. 5. This argu-
ment does not change the analysis. It does not matter that
Ms. Johnson did not file her grievance with the EEOC—
§ 2302(b)(9)(A)(ii) extends to “any . . . grievance right
granted by any law, rule, or regulation.” 5 U.S.C.
§ 2302(b)(9)(A)(ii) (emphasis added).
2. Contributing Factor
Having concluded that Ms. Johnson’s 2008 OSC com-
plaint was her only protected disclosure, we must now
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JOHNSON v. MSPB 8
determine whether she has non-frivolously alleged that
“the disclosure was a contributing factor in the agency’s de-
cision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a).” Cahill, 821 F.3d at 1373. In so do-
ing, our inquiry, like the Board’s, is “limited to evaluating
whether the appellant has alleged sufficient factual mat-
ter, accepted as true, to state a claim that is plausible on
its face.” Hessami, 979 F.3d at 1364.
One way of establishing that a disclosure was a “con-
tributing factor” is with the “knowledge/timing” test under
§ 1221(e)(1). Kewley v. Dep’t of Health & Hum. Servs., 153
F.3d 1357, 1361–62 (Fed. Cir. 1998). To meet this test, an
appellant must present evidence that “(A) the official tak-
ing the personnel action knew of the disclosure or protected
activity; and (B) the personnel action occurred within a pe-
riod of time such that a reasonable person could conclude
that the disclosure or protected activity was a contributing
factor in the personnel action.” 5 U.S.C. § 1221(e)(1). The
administrative judge held that Ms. Johnson’s allegations
were insufficient to satisfy either prong of the test. App.
6–7. Specifically, the administrative judge (1) concluded
that Ms. Johnson did not allege that the agency personnel
involved in the alleged retaliation were aware of her 2008
OSC complaint and (2) noted that each allegedly retalia-
tory action occurred “way beyond” the period that would
satisfy the knowledge/timing test. Id. at 7.
We agree with the administrative judge that Ms. John-
son’s allegations fail the knowledge/timing test. Ms. John-
son does not challenge the administrative judge’s finding
that the relevant personnel actions were remote in time
from the 2008 OSC complaint. Pet’r’s Reply Br. 9. And we
agree that, because each relevant action occurred about a
decade after Ms. Johnson filed that complaint, substantial
evidence supports the administrative judge’s finding that a
reasonable person would not “conclude that the disclosure
or protected activity was a contributing factor” to the rele-
vant actions. 5 U.S.C. § 1221(e)(1). Accordingly, Ms.
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JOHNSON v. MSPB 9
Johnson fails to meet the requirements of the
knowledge/timing test.
Even if Ms. Johnson seeks to show that the 2008 OSC
complaint was a “contributing factor” without relying on
the knowledge/timing test, she must still make non-frivo-
lous allegations. Specifically, Ms. Johnson must make non-
frivolous allegations that “the disclosure was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action.” Cahill, 821 F.3d at 1373. Such non-
frivolous allegations might address, for example, the
strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was person-
ally directed at Mr. Lake, and whether Mr. Lake had a de-
sire or motive to retaliate against Ms. Johnson. Among
other things, a non-frivolous allegation must be more than
conclusory; in other words, it must consist of more than a
general assertion of what Ms. Johnson must show. See 5
C.F.R. § 1201.4(s).
We agree with the administrative judge that Ms. John-
son has not made such non-frivolous allegations. See App.
6–9. Ms. Johnson alleges that Mr. Lake was aware of the
complaint and “delegate[d] the retaliation” to Tonya Free-
man, Tameka Jones, and unnamed human resources per-
sonnel. Suppl. App. 56; see Pet’r’s Reply Br. 9. But this
allegation is conclusory—Ms. Johnson does not explain
why or how Mr. Lake would have delegated retaliatory ac-
tions to those individuals.
Ms. Johnson also submitted to the administrative
judge an email showing that Mr. Lake denied Ms. Johnson
her requested reassignment. Suppl. App. 60. As the Board
notes, we could read this email as an allegation that Mr.
Lake denied Ms. Johnson’s requested reassignment as a
form of retaliation. See Suppl. App. 7–8; Resp’t’s Br. 23–24.
But even if we were to so construe this email, there is no
explanation of whether or why Mr. Lake would be moti-
vated to take this action as a form of retaliation. Because
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JOHNSON v. MSPB 10
Ms. Johnson only makes conclusory allegations that the
2008 OSC complaint was a contributing factor to any al-
leged retaliation, she has failed to put forward non-frivo-
lous allegations sufficient to show Board jurisdiction over
her IRA appeal. Accordingly, we affirm the administrative
judge’s dismissal of Ms. Johnson’s IRA appeal.
B. The “Involuntary Retirement” Claim
In addition to her IRA appeal, Ms. Johnson also alleged
that she involuntarily retired and that amounted to con-
structive removal. See Suppl. App. 17 (Ms. Johnson writ-
ing “no choice but to retire” on MSPB appeal form); App. 53
(Board order on jurisdiction stating that Ms. Johnson
“claims an involuntary retirement or resignation”); Suppl.
App. 50 (Ms. Johnson’s submission of proof of jurisdiction
with respect to “involuntary retirement”). Ms. Johnson
now argues that the administrative judge “has not identi-
fied if [the Board] has jurisdiction over the claim of con-
structive removal/involuntary retirement.” Pet’r’s Reply
Br. 8; see also Pet’r’s Br. 5, 12–13. We agree.
Employee removal actions are appealable to the Board.
Rosario-Fabregas v. Merit Sys. Prot. Bd., 833 F.3d 1342,
1345 (Fed. Cir. 2016); see 5 U.S.C. §§ 7512, 7513(a), (d),
7701(a). By contrast, a “decision to resign or retire is pre-
sumed to be voluntary,” and an “employee who voluntarily
resigns or retires has no right to appeal to the MSPB.”
Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340–41 (Fed. Cir.
2001). But “the Board has jurisdiction ‘if the employee
proves, by a preponderance of the evidence, that his or her
action was involuntary and thus tantamount to a forced
enumerated adverse action.’” Rosario-Fabregas, 833 F.3d
at 1345–46 (brackets omitted) (quoting Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en
banc)). Parties have alleged involuntariness in many ways,
such as by showing agency threats of adverse action,
agency misinformation and deception, and the creation of
intolerable working conditions. Garcia, 437 F.3d at 1328
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JOHNSON v. MSPB 11
(collecting cases). In short, there is a body of precedent
about constructive termination claims.
The administrative judge’s decision does not engage
with this precedent or Ms. Johnson’s claim. See generally
App. 1–9. In its brief, the Board fails to explain how the
administrative judge addressed Ms. Johnson’s constructive
termination claim. Rather, the Board suggests that Ms.
Johnson’s constructive termination was but another ad-
verse personnel decision that is part of her IRA appeal. See
Resp’t’s Br. 20 n.8. This argument, like the administrative
judge’s decision, does not engage with whether Ms. John-
son has non-frivolously alleged a claim for constructive ter-
mination over which the Board has jurisdiction.
We decline to determine in the first instance whether
the Board has jurisdiction over Ms. Johnson’s constructive
termination claim. We have held that “the MSPB’s juris-
diction and the merits of an alleged involuntary separation
are ‘inextricably intertwined’” such that once “it is estab-
lished that a resignation or retirement is involuntary, the
MSPB not only has jurisdiction, ‘but also the employee
wins on the merits and is entitled to reinstatement.’”
Shoaf, 260 F.3d at 1341 (quoting Schultz v. U.S. Navy, 810
F.2d 1133, 1136 (Fed. Cir. 1987)). We do not have the views
of the administrative judge or the Board. We will not de-
cide such an issue for the first time on appeal. Therefore,
we vacate the administrative judge’s dismissal of Ms. John-
son’s appeal as to her constructive termination claim and
remand to the administrative judge to consider this claim.3
3 It appears that Ms. Johnson believes that she has
alleged other claims too. See, e.g., Pet’r’s Br. 17–18 (“The
Obstructing Competition (5 U.S.C. [§ ]2302(b)(4)[)] is a Pro-
hibited Personnel Practice. This PPP should be treated as
a separate claim . . . .”); Pet’r’s Reply Br. 7 (“For the intent
of clarity, the appellant claimed reprisal,
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JOHNSON v. MSPB 12
C. Ms. Johnson’s Motion
Finally, we address Ms. Johnson’s motion seeking
(1) partial summary judgment on her claim for “economic
loss due to agency error on application for immediate re-
tirement” and (2) sanctions against the Board for publish-
ing personally identifiable information. ECF No. 27 at 1.
We deny Ms. Johnson’s motion for partial summary
judgment because the scope of our review is limited to the
conclusions of the administrative judge’s decision. If Ms.
Johnson believes that she has stated a claim that entitles
her to judgment, then that is an issue to put before the ad-
ministrative judge first. See James v. Fed. Energy Regul.
Comm’n, 755 F.2d 154, 155–56 (Fed. Cir. 1985) (“A party
will, of course, not generally be heard on any issues raised
for the first time on appeal.”).
We also deny Ms. Johnson’s motion for sanctions. Ms.
Johnson asks us to sanction HHS for allegedly publishing
personally identifiable information in its filings during
Board proceedings. ECF No. 27 at 3. As Ms. Johnson’s
complaints are directed to HHS’s conduct before the admin-
istrative judge and implicate the Board’s rules about redac-
tion of personally identifiable information, the
administrative judge is best positioned to determine if
sanctions are warranted. Accord Motorola, Inc. v. Interdig-
ital Tech. Corp., 121 F.3d 1461, 1468 (Fed. Cir. 1997) (“The
trial judge is better able to assess the conduct of parties
appearing before it than is this court.”).
constructive/involuntary retirement, PPPs, promotion de-
nials, and other adverse actions to the OSC and on her
IRA.”). We express no opinion on whether Ms. Johnson has
alleged such claims and leave it for the administrative
judge to determine if it is proper to dismiss each of Ms.
Johnson’s claims.
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JOHNSON v. MSPB 13
III. CONCLUSION
Accordingly, we affirm-in-part and vacate-in-part the
decision of the administrative judge. We remand for fur-
ther proceedings consistent with this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
Costs to Appellant.
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