Carol H. Howard v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CAROL H. HOWARD,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2023-2206
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-15-0609-B-1.
______________________
Decided: December 6, 2024
______________________
CAROL H. HOWARD, Apple Valley, CA, pro se.
DANIEL HOFFMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE
NIOSI.
______________________
Before MOORE, Chief Judge, REYNA and TARANTO, Circuit
Judges.
Case: 23-2206 Document: 33 Page: 1 Filed: 12/06/2024

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HOWARD v. DOJ 2
PER CURIAM.
Pro se appellant Carol H. Howard appeals a final
decision of the Merit Systems Protection Board denying her
request for corrective action. For the following reasons, we
affirm the Board’s decision.
BACKGROUND
Ms. Howard was a Correctional Treatment Specialist
for the Federal Bureau of Prisons (“BOP” or “agency”) at
the Federal Correctional Complex in Victorville, California.
SAppx2; SAppx11.1 In this position, Ms. Howard had to
meet certain physical standards, such as performing self-
defense movements. SAppx65–66. In 2009, Ms. Howard
was injured on the job and received work-related
accommodations. SAppx65–66. In July 2014, the agency
proposed her removal for physical inability to perform her
work duties due to her work-related injury. SAppx65–68.
In September 2014, the BOP removed Ms. Howard.
SAppx69–72. According to Ms. Howard, she would have
reached retirement eligibility from the agency in 2015.
Appellant Informal Br. 3.
While her proposed removal was pending, Ms. Howard
filed a whistleblower reprisal complaint before the Office of
Special Counsel (“OSC”), alleging she was wrongfully
removed in retaliation for whistleblowing. SAppx76. In
her OSC complaint, Ms. Howard alleged that she made six
protected disclosures to the agency which resulted in her
removal from the agency.2 SAppx4. The OSC closed Ms.
1 “SAppx” refers to the supplemental appendix
accompanying the appellee’s responding brief.
2 An employee may bring a claim under the
Whistleblower Protection Act, showing that she made a
“protected disclosure,” which is the disclosure of
information that she reasonably believes “evidences (i) a
violation of law, rule, or regulation, or (ii) gross
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HOWARD v. DOJ 3
Howard’s complaint, finding no proof of improper
whistleblowing reprisal. SAppx2.
Ms. Howard then filed an individual right of action
(“IRA”) appeal with the Merit Systems Protection Board
(“MSPB” or “Board”). SAppx85. This IRA appeal
ultimately gave rise to the appeal before this court.
SAppx2.
In the IRA appeal, the administrative judge (“AJ”)
denied Ms. Howard’s request for corrective action.
SAppx97–98. Ms. Howard petitioned for review of the AJ’s
initial decision. On review, the Board vacated the AJ’s
initial decision and remanded for further adjudication.
SAppx7. The Board determined that the AJ failed to
address six disclosures Ms. Howard identified in her OSC
complaint as allegedly motivating her removal. The Board
ordered the AJ to address the following disclosures on
remand:
1. The lack of a RESOLVE program,3 allegedly
in violation of the agency’s guidelines;
2. That all full-time psychology services were
vacated at the camp and staff were called
into work on an as-needed basis, allegedly to
save costs so that the executive staff could
receive bonuses;
3. That an inmate was not treated
appropriately by the Chief of Psychology
mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety.” Chambers v. Dep’t of Interior, 515 F.3d
1362, 1367 (Fed. Cir. 2008) (quoting 5
U.S.C. § 2303(b)(8)(a)).
3 The RESOLVE program assists inmates in dealing
with trauma that predates their incarceration. SAppx51.
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HOWARD v. DOJ 4
after she alleged she had been threatened by
other inmates;
4. Reprisal for allegations of discrimination
that Ms. Howard raised in 2014 on behalf of
herself and others in her role as a union
representative, and reprisal for her own
equal employment opportunity (EEO)
complaints;
5. That a particular employee had a degree in
philosophy, not psychology, but was
permitted to practice on inmates, which was
illegal and harmful; and
6. That the agency hired unlicensed
psychologists to practice on inmates.
SAppx3–5.
On remand, and without holding an additional
hearing, the AJ denied Ms. Howard’s request for corrective
action. SAppx9 (“Remand Decision”). The AJ determined
that Ms. Howard failed to prove by preponderant evidence
that her six disclosures were protected under the law. See
SAppx21–26. The AJ then found that, assuming Ms.
Howard made protected disclosures, the agency showed by
clear and convincing evidence that it would have taken the
same action absent the disclosures. SAppx26. Ms. Howard
petitioned for review of the AJ’s Remand Decision.
Back on review, the Board affirmed-in-part the AJ’s
Remand Decision, concluding that Ms. Howard failed to
meet her burden of proving she made protected disclosures.
SAppx48–49 (“Final Decision”). The Board narrowly
vacated the AJ’s Remand Decision concerning the AJ’s
alternative finding that the agency would have taken the
same action in the absence of a disclosure. SAppx47. The
Board explained that the AJ cannot proceed to that inquiry
unless it first finds that the appellant established that she
made a protected disclosure. SAppx50.
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HOWARD v. DOJ 5
Ms. Howard appeals the Board’s Final Decision.
STANDARD OF REVIEW
Our review of Board decisions is limited. 5 U.S.C.
§ 7703(c). We set aside a Board decision only when it is
“(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” Id.
DISCUSSION
On appeal, Ms. Howard alleges that the Board’s Final
Decision is arbitrary and capricious because it did not
consider certain facts relating to her time of employment.
Appellant Informal Br. 2. Ms. Howard also argues that the
Board legally erred by failing to rely on certain laws. Id.
For the following reasons, we affirm the Board’s Final
Decision.
Turning first to Ms. Howard’s factual challenge, Ms.
Howard alleges that the Board wrongfully overlooked that:
1. Her injury was work-related;
2. She was terminated in retaliation for protected
disclosures of “sexual abuse of staff and inmates,
denial of veterans benefits, racism, sexism, etc.” and
that her termination occurred after 19 years and 10
months of “outstanding” job performance and 10
months shy of her retirement;
3. & 4., She received yearly outstanding job
performance ratings, including one four months
prior to her termination;4
4 Ms. Howard’s third and fourth points were
repetitive and are thus grouped together here.
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HOWARD v. DOJ 6
5. An agency policy allowed transfers of “executive
staff” whose safety was of concern but terminated
“regular staff” who had the same concern;
6. A BOP attorney stated that the “Black Warden” was
assigned to the “Black staff” to deflect any
complaints of racism.
Appellant Informal Br. 2.
Ms. Howard’s factual challenge fails. Ms. Howard does
not explain, nor do we discern, how such facts relate to the
Board’s Final Decision. The Board determined that Ms.
Howard’s disclosures to the agency did not qualify as
protected disclosures under the law. These new facts
raised on appeal do not relate to Ms. Howard’s alleged
protected disclosures concerning agency practices and
programs and also alleged discrimination based on her role
as a union representative. To the extent Ms. Howard seeks
to raise new whistleblower claims on appeal, such claims
are barred as waived. Kachanis v. Dep’t of Treasury, 212
F.3d 1289, 1293 (Fed. Cir. 2000) (“[A]ppellants may not
raise issues on appeal for the first time.”).5
Turning to Ms. Howard’s legal challenge, Ms. Howard
argues the Board applied the wrong law and lists several
statutes and cases that the Board should have applied
instead. Appellant Informal Br. 2 (referencing 5 U.S.C.
§§ 2302, 1214, and 1221, two Federal Circuit cases and two
MSPB cases). This argument fails. The statutes Ms.
Howard lists were cited and applied in the Board’s Final
Decision. See SAppx24; SAppx49. Additionally, the cases
5 Additionally, although regrettable timing, Ms.
Howard’s removal months shy of her alleged retirement
does not, without more, call into question the validity of the
Board’s Final Decision.
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HOWARD v. DOJ 7
that Ms. Howard lists were not discussed by the Board
because they do not apply to the facts of Ms. Howard’s case.
For example, Ms. Howard references Carr v. Social
Security Administration, where the issue was whether the
agency sufficiently showed that it would have removed the
appellant absent her protected disclosures. 185 F.3d 1318,
1322 (Fed. Cir. 1999). Here, the Board did not reach this
issue because Ms. Howard failed to show that she made
any protected disclosures to begin with. SAppx48;
SAppx50. Thus, Carr is inapposite to the facts of this case
and the Board did not need to discuss it. We fail to see any
legal error in the Board’s Final Decision.
CONCLUSION
We have considered Ms. Howard’s remaining
arguments and find them unpersuasive. For the foregoing
reasons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
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