Shawanda R. Murry v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SHAWANDA R. MURRY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2010-3117
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT1221100381-W-1.
__________________________
Decided: December 13, 2010
__________________________
SHAWANDA R. M URRY, of Ocala, Florida, pro se.
JEFFREY D. K LINGMAN , Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. D AVIDSON , Director, and STEVEN J.
G ILLINGHAM, Assistant Director.
__________________________

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MURRY v. JUSTICE 2
Before LINN , CLEVENGER, and PROST, Circuit Judges.
PER C URIAM.
Shawanda R. Murry (“Murry”) appeals the final judg-
ment of the Merit Systems Protection Board (“MSPB” or
“Board”), which dismissed her individual right of action
(“IRA”) for lack of jurisdiction and because her claims
were barred by res judicata. Murry v. Dep’t of Justice, No.
AT1221100381-W-1 (MSPB Mar. 19, 2010) (“MSPB IRA
Appeal”). Because the Board’s decision was not in error,
this court affirms.
BACKGROUND
Murry worked as a Cook Supervisor with the Federal
Bureau of Prisons, Coleman, Florida (the “Agency”). In
January 2003, Murry suffered a compensable injury to
her shoulder and was unable to perform the full range of
duties after that time. On November 12, 2003, Dr. Chris-
topher Manseau described his treatment of Murry’s injury
and noted that Murry had permanent lifting restrictions.
By letter dated March 31, 2004, the Agency proposed
Murry’s removal for being medically unable to perform
the duties of her position. On August 16, 2004, the
Agency sustained the proposal, finding that removal was
warranted to promote the efficiency of the service.
Murry’s removal was effective August 21, 2004.
Murry has filed related appeals with the MSPB and
other tribunals. First, Murry filed several appeals with
the Equal Employment Opportunity Commission
(“EEOC”) in which she alleged that she had been sub-
jected to harassment and retaliation. See Murry v. Gon-
zales, No. 5:04-498, 2006 WL 2506963, at *1 (M.D. Fla.
Aug. 28, 2006). After a hearing, the EEOC administrative
judge determined that Murry did not suffer any discrimi-
nation in retaliation for her EEOC complaint. Id. at *7.

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MURRY v. JUSTICE 3
Murry also filed a claim pursuant to Title VII of the Civil
Rights Act of 1964 in the United States District Court for
the Middle District of Florida. Id. The court granted
summary judgment to the Government, finding that
Murry had not satisfied her burden of establishing a
prima facie case of unlawful retaliation or that the Attor-
ney General’s legitimate nondiscriminatory reasons for its
actions were pretextual. Id. at *14. The Eleventh Circuit
Court of Appeals affirmed that decision. Murry v. Attor-
ney Gen. of the United States, 233 Fed. App’x 911 (11th
Cir. 2007). Second, Murry filed an appeal with the MSPB
asserting that her removal constituted discrimination and
reprisal for filing her appeal with the EEOC. Murry v.
Dep’t of Justice, No. AT-0752060219-I-1, at 4 (MSPB Apr.
13, 2006) (“MSPB Removal Appeal”). The administrative
judge issued an initial decision sustaining Murry’s re-
moval and Murry did not petition for review to the full
Board or to this court. Finally, Murry filed this IRA
appeal with the MSPB requesting relief under the Whis-
tleblower Protection Act (“WPA”), 5 U.S.C. §§ 1221(e),
2302(b)(8). In this appeal, Murry alleged that her re-
moval was in retaliation for filing complaints with the
EEOC. The administrative judge dismissed the appeal
for lack of jurisdiction and res judicata. MSPB IRA
Appeal, at 3. Murry filed a timely appeal with this court
on September 10, 2010. This court has jurisdiction under
28 U.S.C. § 1295(a)(9).
D ISCUSSION
This court’s review of a decision of the Board is lim-
ited by statute. Under 5 U.S.C. § 7703(c), this court is
bound by a decision of the Board unless we find it arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.
See, e.g., Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321

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MURRY v. JUSTICE 4
(Fed. Cir. 1999). The jurisdiction of the Board is a legal
question that this court reviews without deference.
Campion v. Merit Sys. Prot. Bd., 326 F.3d 1201, 1212
(Fed. Cir. 2003).
To establish a case of reprisal for whistleblowing in an
IRA under 5 U.S.C. § 1221(e)(1), “an employee must
demonstrate by a preponderance of the evidence that [her]
disclosure is covered by [5 U.S.C. §] 2302(b)(8) and that it
was a contributing factor in the personnel action.” Ellison
v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).
Complaints with the EEOC do not constitute protected
whistleblower activity under § 2302(b)(8) and cannot
support MSPB jurisdiction in an IRA appeal. Spruill v.
Merit Sys. Prot. Bd., 978 F.2d 679, 689-92 (Fed. Cir.
1993). The administrative judge in this case properly
found that it did not have jurisdiction over Murry’s appeal
because her allegations of reprisal for filing complaints
with the EEOC “do not arise from the prohibited acts
enumerated in 5 U.S.C. § 2302(b)(8).” MSPB IRA Appeal,
at 3.
In addition to a lack of jurisdiction, the MSPB found
that Murry’s whistleblower claim was barred for res
judicata based on the previously filed MSPB Removal
Appeal. Id. at 2. The Department of Justice, in response
to Murry’s appeal, concedes that this finding by the Board
was erroneous. Appellee Br. at 8-9. The Board cannot
make a decision on merits issues when it is without
jurisdiction to hear and decide a case. Schmittling v.
Dep’t of Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) (“If it
lacks jurisdiction, the Board is without authority to decide
the issues presented by a petitioner. The [Board] has only
the jurisdiction conferred on it by Congress. This jurisdic-
tion, provided by statute, creates the power of the [Board]
to hear and decide a case, i.e., the Board’s subject matter
jurisdiction.” (citations and internal quotation marks

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MURRY v. JUSTICE 5
omitted)). Thus, the Board lacked jurisdiction here to
render any judgment on Murry’s whistleblower claim.
However, this error by the Board was harmless. Id.
(“Without jurisdiction, the Board’s decision on the merits
of a petition is a nullity.”).
For the foregoing reasons, the Board’s decision in
dismissing Murry’s appeal for lack of jurisdiction is af-
firmed.
AFFIRMED
COSTS
Each party shall bear its own costs.

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