Wanda Curtis-Hunter v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WANDA CURTIS-HUNTER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1426
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-22-0244-I-1.
______________________
Decided: November 21, 2023
______________________
WANDA CURTIS -H UNTER, Baltimore, MD, pro se.
K ELLY WINSHIP , Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before M OORE, Chief Judge, REYNA and H UGHES , Circuit
Judges.
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CURTIS- HUNTER v. MSPB 2
P ER CURIAM .
Wanda Curtis-Hunter appeals a decision of the Merit
Systems Protection Board dismissing her Individual Right
of Action (IRA) appeal for lack of jurisdiction. We affirm.
BACKGROUND
Ms. Curtis-Hunter is a health technician with the De-
partment of Veterans Affairs (VA). In 2019, Ms. Curtis-
Hunter filed an Equal Employment Opportunity (EEO)
complaint against the VA alleging a senior employee, Scott
Guthland, discriminated against her by hacking her com-
puter and telephone in response to Ms. Curtis-Hunter re-
porting to management he accessed her medical file. S.
Appx. 20, 24. The VA issued a decision concluding Ms. Cur-
tis-Hunter failed to prove she was subjected to the alleged
discrimination. S. Appx. 25. Ms. Curtis-Hunter, through
counsel, appealed the decision. The EEO Commission af-
firmed the VA’s decision. S. Appx. 26.
In March 2022, Ms. Curtis-Hunter filed a Prohibited
Personnel Practices complaint with the Office of Special
Counsel (OSC) alleging retaliation for whistleblowing and
protected activity, discrimination for non-job-related con-
duct, and improper accessing of medical records. S. Appx.
30–31. Specifically, Ms. Curtis-Hunter alleged Mr. Guth-
land improperly accessed her medical records in 2019, har-
assed her through actions including hacking her telephone
and car, and the VA inappropriately withheld her pay. S.
Appx 42–43. The OSC Disclosure Unit sent a closure letter
stating they were unable to determine there was a substan-
tial likelihood Ms. Curtis-Hunter’s allegations constituted
agency wrongdoing that could be referred for investigation.
S. Appx. 43. The OSC also sent a closure letter explaining
that the OSC is not the proper forum for Ms. Curtis-
Hunter’s allegations and directing her to the appropriate
forums. S. Appx. 45–46.
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CURTIS- HUNTER v. MSPB 3
In June 2022, Ms. Curtis-Hunter filed an IRA appeal
with the Board alleging Mr. Guthland hacked her car and
stalked her and the VA improperly decreased her pay. S.
Appx. 55–56. She also requested a hearing. One month
later, the Board sent Ms. Curtis-Hunter an Order to Show
Cause to establish the Board’s jurisdiction over her case.
S. Appx. 58–66. After receiving Ms. Curtis-Hunter’s re-
sponse, the Board dismissed the appeal for lack of jurisdic-
tion without a hearing because she failed to make any non-
frivolous allegations she suffered a personnel action as a
result of making a protected disclosure. S. Appx. 9. Ms.
Curtis-Hunter appeals. We have jurisdiction under 5
U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
In reviewing a final decision of the Board, we must
“hold unlawful and set aside any agency action, findings,
or conclusions found to be (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.” 5 U.S.C. § 7703(c). Whether the
Board lacks jurisdiction is a question of law we review de
novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.
Cir. 1995).
I
The Board has jurisdiction over an IRA appeal if the
appellant has exhausted her administrative remedies be-
fore the OSC and makes a non-frivolous allegation that
(1) she engaged in whistleblowing activity by making a pro-
tected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the protected disclosure or activity was
a contributing factor in the agency’s decision to take or fail
to take a personnel action. 5 U.S.C. § 1221. An allegation
is non-frivolous if the appellant “alleged sufficient factual
matter, accepted as true, to state a claim that is plausible
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CURTIS- HUNTER v. MSPB 4
on its face.” Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362,
1369 (Fed. Cir. 2020).
The Board determined that Ms. Curtis-Hunter failed to
make a non-frivolous allegation that she made any pro-
tected disclosures or engaged in any protected action, and
failed to make a non-frivolous allegation that she suffered
a personnel action as a result of either. S. Appx. 7, 9. On
appeal, Ms. Curtis-Hunter argues the Board failed to con-
sider her submitted evidence of a salary decrease, harass-
ment, retaliation, and stalking in determining whether it
had jurisdiction. We do not agree.
Ms. Curtis-Hunter claims her salary was reduced by
several thousand dollars starting in 2016. See S. Appx. 56,
69. In response to the Board’s Order to Show Cause, she
submitted evidence of her pay and grade for 2009–2022
(omitting 2011, 2015, 2018, 2020, and 2021).1 S. Appx. 71–
83. Ms. Curtis-Hunter contended her reduction in pay was
part of the alleged retaliation for her EEO complaint or her
disclosure to the OSC.2 S. Appx. 54, 56, 69. The Board
1 Ms. Curtis-Hunter submitted similar evidence
with her Memorandum in Lieu of Oral Argument, but we
may not consider new evidence that was not before the
Board. Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245 n.6 (Fed.
Cir. 1991). We also note that in her Memorandum, Ms.
Curtis-Hunter appears to now argue not that her pay was
decreased in retaliation, but that in 2016 her “within-grade
salary increase” was mistakenly omitted. Memorandum at
1. As noted in the OSC closure letter of May 18, 2022, such
claims are properly addressed to the Office of Personnel
Management. S. Appx. 45–46.
2 Because Ms. Curtis-Hunter submitted this evi-
dence in response to the Board’s Order to Show Cause re-
garding jurisdiction, we treat it as integral to her claim and
therefore considered in determining whether she made
non-frivolous allegations to the Board.
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CURTIS- HUNTER v. MSPB 5
correctly determined that the evidence provided by Ms.
Curtis-Hunter did not support, but instead refuted her al-
legation that she experienced reduction in pay or grade. Id.
The documentation submitted to the Board shows that
since 2009 Ms. Curtis-Hunter’s pay and grade were con-
sistently increased.3 S. Appx. 8, 71–83.
With regards to Ms. Curtis-Hunter’s other allegations
of retaliation, the Board concluded that the allegations
were insufficient to show she was subjected to any agency
personnel action. S. Appx. 9. We agree. Ms. Curtis-Hunter
alleged that she was subjected to hacking of her cell phone
and car, harassment, and stalking. None of these allega-
tions constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A). In any event, Ms. Curtis-Hunter’s allega-
tions are conclusory and unsupported by the evidence. See
5 C.F.R. § 1201.4(s)(1). For example, Ms. Curtis-Hunter
alleged that her cell phone was hacked by Mr. Guthland.
S. Appx. 69. In support of her allegation Ms. Curtis-Hunter
provided to the Board a copy of a Complaint Referral Form
she submitted to the Internet Crime Complaint Center (S.
Appx. 84–85) and a hand-written note she submitted to T-
Mobile (S. Appx. 93). This evidence only demonstrates Ms.
Curtis-Hunter’s subjective belief her cell phone was hacked
and does not substantiate her allegation. Ms. Curtis-
Hunter failed to provide any non-frivolous allegations of
3 While the Board analyzed Ms. Curtis-Hunter’s
claim as an IRA appeal, reduction in pay is also a separate
claim directly appealable to the Board. See Kloeckner v.
Solis, 568 U.S. 41, 44 n.1 (2012) (quoting 5 U.S.C. § 7512).
Ms. Curtis-Hunter’s evidence cannot support Board juris-
diction under this statute for the same reasons.
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CURTIS- HUNTER v. MSPB 6
personnel actions taken, or not taken, by the agency.4 Ac-
cordingly, we affirm the Board’s dismissal for lack of juris-
diction.
II
Ms. Curtis-Hunter also argues the Board erred by fail-
ing to provide a hearing. We have held that a claimant is
entitled to a hearing only if she first makes non-frivolous
allegations. Garcia v. Dep’t of Homeland Sec., 437 F.3d
1322, 1344 (Fed. Cir. 2006) (en banc); Hessami, 979 F.3d at
1371–72. Because Ms. Curtis-Hunter did not make any
non-frivolous allegations, the Board’s dismissal without a
hearing was appropriate.
CONCLUSION
We have considered Ms. Curtis-Hunter’s remaining ar-
guments and find them unpersuasive. For the foregoing
reasons, we affirm the Board’s dismissal for lack of juris-
diction.
AFFIRMED
COSTS
No costs.
4 The government suggests the Board used the
wrong standard in its jurisdictional analysis of protected
activity. Government Informal Response Br. at 13 n.4. Be-
cause we agree with the Board’s conclusion that there was
not a non-frivolous allegation of an adverse personnel ac-
tion, we need not determine if any of Ms. Curtis-Hunter’s
alleged disclosures satisfy 5 U.S.C. § 2302(b)(8) or alleged
activities fall within 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D).
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