Delon Johns v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DELON JOHNS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1809
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3443-23-0039-I-1.
______________________
Decided: March 6, 2025
______________________
D ELON JOHNS, Hemet, CA, 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 M ICHELLE SMITH .
______________________
Case: 24-1809 Document: 41 Page: 1 Filed: 03/06/2025

-- 1 of 6 --

JOHNS v. MSPB 2
Before TARANTO and H UGHES, Circuit Judges, and
BARNETT , Judge.1
PER CURIAM.
After receiving a negative performance appraisal from
his supervisor at the U.S. Department of Veterans Affairs
(VA), Delon Johns appealed to the Merit Systems Protec-
tion Board (Board). As part of his appeal, Mr. Johns noted
that he had filed a whistleblower complaint with the U.S.
Office of Special Counsel (OSC). Because a negative per-
formance appraisal is not an “action” within the Board’s ju-
risdiction under 5 U.S.C. § 7512, the assigned Board
administrative judge ordered Mr. Johns to demonstrate
that his appeal was within the Board’s jurisdiction and,
specifically, to demonstrate that he had exhausted his ad-
ministrative remedies with OSC if he was invoking an in-
dividual right of action as the vehicle for Board
adjudication of his whistleblower allegation, see 5 U.S.C.
§ 1214(a)(3). Eventually, the administrative judge con-
cluded that Mr. Johns had not shown OSC exhaustion and,
on that basis, dismissed the appeal for lack of jurisdiction.
The full Board affirmed that initial decision, which became
the Board’s decision. We now affirm the Board’s decision.
I
On October 18, 2022, while working as a police officer
for VA, Mr. Johns received a negative performance ap-
praisal. Johns v. Department of Veterans Affairs, No. SF-
3443-23-0039-I-1, 2022 WL 17409972, at 2 (M.S.P.B. Nov.
28, 2022) (Initial Decision).2 Mr. Johns filed an appeal
1 Honorable Mark A. Barnett, Chief Judge, United
States Court of International Trade, sitting by designation.
2 For the Initial Decision, we cite the page numbers
on the administrative judge’s opinion in the Supplemental
Appendix submitted by the Respondent (“S. Appx.”). See
S. Appx. 10–22.
Case: 24-1809 Document: 41 Page: 2 Filed: 03/06/2025

-- 2 of 6 --

JOHNS v. MSPB 3
before the Board on October 25, 2022, arguing that he had
not received a “fair, impartial, and unbiased performance
appraisal.” Id. at 2; S. Appx. 76, 78. With his appeal, he
submitted his 2020–2021 performance appraisal, a written
counseling memorandum he received from his supervisor,
and copies of discrimination complaints he filed with VA.
He referred to an OSC complaint he had filed on June 1,
2022, but he did not attach it.
On October 28, 2022, the assigned administrative
judge ordered Mr. Johns to file evidence demonstrating
that his appeal was within the Board’s jurisdiction. Initial
Decision, at 2. The administrative judge noted that “[t]he
agency actions . . . challeng[ed] in this appeal”—i.e., Mr.
Johns’ performance appraisal and written counseling
memorandum—“do not appear on their face to be an ad-
verse action over which the Board has jurisdiction.”
S. Appx. 55; see 5 U.S.C. § 7512 (listing agency actions
within Board jurisdiction); see also id. §§ 7701(a), 7513(d).
The administrative judge further explained that, although
the Board has jurisdiction over individual-right-of-action
appeals relating to whistleblowing and other protected ac-
tivity, Mr. Johns needed to demonstrate by a preponder-
ance of the evidence that he had exhausted his
administrative remedies with OSC in order to establish ju-
risdiction on that basis. S. Appx. 55–56; see 5 U.S.C.
§§ 1214(a)(3), 1221(a).
Mr. Johns filed responses on November 1 and 2, 2022,
attaching his 2021–2022 performance appraisal, written
counseling memoranda (including the one previously sub-
mitted), and a letter from the VA Office of General Counsel
denying his administrative tort claim for lost wages. Ini-
tial Decision, at 2; S. Appx. 23–53. His responses did not
include any evidence relating to his OSC complaint. Mr.
Johns also raised arguments that his negative performance
appraisal was, in part, due to his complaints that he had
been denied pay for lunch duty and overtime.
Case: 24-1809 Document: 41 Page: 3 Filed: 03/06/2025

-- 3 of 6 --

JOHNS v. MSPB 4
VA moved to dismiss Mr. Johns’ appeal for lack of ju-
risdiction on November 17, 2022, arguing that Mr. Johns
“had failed to allege that he had been subject to an adverse
action and had failed to meet his burden of proof that the
Board had jurisdiction for any other reason.” Initial Deci-
sion, at 2. The administrative judge agreed and issued an
initial decision dismissing Mr. Johns’ appeal for lack of ju-
risdiction on November 28, 2022. Id. at 1.
The administrative judge explained that Mr. Johns had
failed to demonstrate that the Board had jurisdiction over
his claims in three respects. Id. at 4–6. First, “[n]one of
the agency’s actions, or alleged actions, are ‘adverse ac-
tions’ over which the Board has jurisdiction” under 5 U.S.C.
§ 7512. Id. at 4. Mr. Johns’ performance appraisals and
written counseling memoranda did not “involve[] suspen-
sions of more than 14 days or a removal,” see 5 U.S.C.
§ 7512(1)–(2), and his allegations regarding lunch duty and
overtime pay did not involve a “reduction in pay” because
“pay” refers to basic pay, not overtime or other forms of pre-
mium pay, see id. § 7512(4); id. § 7511(a)(4) (defining
“pay”); Nigg v. Merit Systems Protection Board, 321 F.3d
1381, 1385 (Fed. Cir. 2003). Initial Decision, at 4–5. Sec-
ond, for his individual-right-of-action appeal, Mr. Johns
“failed to submit any credible record evidence that he ex-
hausted his administrative remedies with OSC.” Id. at 6.
Third, although Mr. Johns “appear[ed] to be alleging that
he ha[d] been subject to discrimination from the agency,”
such allegations were “beyond the Board’s jurisdiction” in
the absence of an otherwise-appealable action. Id.; see Gar-
cia v. Department of Homeland Security, 437 F.3d 1322,
1342–43 (Fed. Cir. 2006) (en banc).
Mr. Johns petitioned the full Board for review of the
initial decision, arguing that “the agency engaged in har-
assment, discrimination, and retaliation.” Johns v. Depart-
ment of Veterans Affairs, No. SF-3443-23-0039-I-1, 2024
WL 1854444, at *1 (M.S.P.B. Apr. 26, 2024) (Final Deci-
sion). The Board, reasoning that such allegations “d[id] not
Case: 24-1809 Document: 41 Page: 4 Filed: 03/06/2025

-- 4 of 6 --

JOHNS v. MSPB 5
provide a basis to disturb the administrative judge’s con-
clusion that the Board lacks jurisdiction over the matter,”
affirmed the initial decision on April 26, 2024. Id. at *1–2.
Mr. Johns appealed. He waived further pursuit of his
discrimination claims. We have jurisdiction to review the
final decision of the Board under 28 U.S.C. § 1295(a)(9).
See also 5 U.S.C. § 7703(b)(1)(A).
II
We decide de novo whether an appeal submitted to the
Board was within its jurisdiction. Forest v. Merit Systems
Protection Board, 47 F.3d 409, 410 (Fed. Cir. 1995). The
factual underpinnings of the Board’s determination that it
lacked jurisdiction are reviewable for substantial-evidence
support. Bolton v. Merit Systems Protection Board, 154
F.3d 1313, 1316 (Fed. Cir. 1998). The only aspect of the
Board decision Mr. Johns challenges in this court is the rul-
ing that the Board lacked jurisdiction in this matter under
its individual-right-of-action authority.
For the Board to have jurisdiction over an individual-
right-of-action whistleblower appeal under 5 U.S.C.
§§ 1221(a) and 2302(b)(8)–(9), the employee must demon-
strate by a preponderance of the evidence that he has ex-
hausted his administrative remedies with OSC. 5 U.S.C.
§ 1214(a)(3); see Young v. Merit Systems Protection Board,
961 F.3d 1323, 1328 (Fed. Cir. 2020); Garcia, 437 F.3d at
1344. The Board concluded that Mr. Johns had not made
that showing. We discern no error in that conclusion.
Mr. Johns argues that the Board “failed to look at dis-
missal letters from OSC” in deciding that it did not have
jurisdiction over his individual-right-of-action appeal.
Johns Informal Br. at 2. But there was no such failure,
because Mr. Johns did not submit evidence showing the
content of the OSC complaint he asserted he had filed. Alt-
hough Mr. Johns alleged in his appeal form that he had
filed a whistleblowing complaint with OSC on June 1, 2022,
Case: 24-1809 Document: 41 Page: 5 Filed: 03/06/2025

-- 5 of 6 --

JOHNS v. MSPB 6
S. Appx. 77, he did not submit a copy of that complaint or
any other information relating to that complaint.
We note that the Supplemental Appendix the Board
has supplied to this court in this appeal includes a dismis-
sal letter from OSC filed by Mr. Johns in a different Board
matter, Docket No. SF-1221-23-0257-W-1. See S. Appx.
96–98. Mr. Johns does not contend, and there is no indica-
tion in the record before us, that he submitted this dismis-
sal letter to the Board in the proceedings underlying this
appeal (i.e., Docket No. SF-3443-23-0039-I-1). Indeed, the
letter is dated March 2023 and states that it is responding
to a complaint he filed with OSC in December 2022 (not to
the June 2022 OSC complaint he alleged in the present
matter), which was after the administrative judge ruled in
the present matter. Id. The December 2022 OSC com-
plaint is the subject of Board Docket No. SF-1221-23-0257-
W-1.
Accordingly, substantial evidence supports the admin-
istrative judge’s finding in the present matter that Mr.
Johns “failed to submit any credible record evidence that
he exhausted his administrative remedies with OSC.” Ini-
tial Decision, at 6. The Board therefore did not err in ruling
that it lacked jurisdiction over Mr. Johns’ individual-right-
of-action appeal. Id.
III
We have considered the remainder of Mr. Johns’ argu-
ments and find them unpersuasive. For the reasons dis-
cussed above, we affirm the Board’s dismissal for lack of
jurisdiction.
The parties shall bear their own costs.
AFFIRMED
Case: 24-1809 Document: 41 Page: 6 Filed: 03/06/2025

-- 6 of 6 --