Evelyn Courtney v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EVELYN COURTNEY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1348
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-23-0417-W-1.
______________________
Decided: October 31, 2025
______________________
EVELYN COURTNEY , Fresno, CA, pro se.
K AREY L AUREN H ART , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before T ARANTO, STOLL , and CUNNINGHAM , Circuit
Judges.
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COURTNEY v. MSPB 2
P ER CURIAM .
Evelyn Courtney petitions for review of a Merit Sys-
tems Protection Board (“Board”) final order, which denied
her petition for review and affirmed the administrative
judge’s initial decision dismissing the appeal for lack of ju-
risdiction. Courtney v. Dep’t of the Treasury, No. SF-1221-
23-0417-W-1, 2024 WL 4751396, at *1 (M.S.P.B. Nov. 8,
2024) (“Final Order”); Courtney v. Dep’t of the Treasury,
No. SF-1221-23-0417-W-1, 2023 WL 4999244 (M.S.P.B.
Aug. 2, 2023) (S. App’x 8–28) (“Initial Decision”).1 For the
reasons discussed below, we affirm.
I. BACKGROUND
On March 28, 2022, Ms. Courtney was appointed as a
Tax Examining Technician in the United States Depart-
ment of the Treasury, Internal Revenue Service (“IRS”).
Initial Decision at 8; S. App’x 64. The appointment was
subject to a one-year probationary period beginning on the
same date. Initial Decision at 8; S. App’x 64.
On March 2, 2023, Ms. Courtney submitted a griev-
ance. Initial Decision at 9; S. App’x 82. Ms. Courtney al-
leged that the “[l]ead worker . . . prepares negative
remarks on [her] case messages and provides the most
cryptic of advice” and “withholds vital information so that
[she] cannot perform [her] job duties properly.”
S. App’x 82; Initial Decision at 9. Ms. Courtney also de-
scribed her belief that the lead worker was “deliberately
sabotaging [her] work here at the IRS.” S. App’x 82; see
Initial Decision at 9. As a remedy, Ms. Courtney requested
1 We refer to the supplemental appendix filed with
the government’s informal response brief, ECF No. 18, as
“S. App’x” throughout this opinion. Citations in this opin-
ion are to the version included in the government’s appen-
dix. For example, Initial Decision at 1 is found at
S. App’x 8.
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COURTNEY v. MSPB 3
that the IRS train her and not “allow managers and leads
to withhold information that is directly relevant to [her] job
duties.” S. App’x 82; see Initial Decision at 9.
Ms. Courtney’s department manager terminated her,
effective March 24, 2023. Initial Decision at 9;
S. App’x 61–63. On April 18, 2023, Ms. Courtney appealed
to challenge her termination. See Initial Decision at 11.
While her appeal was pending, she filed a complaint with
the Office of Special Counsel (“OSC”), alleging that her ter-
mination was in reprisal for filing a grievance on March 2,
2023. Id.; S. App’x 70–80. OSC concluded that the IRS did
not terminate Ms. Courtney for reprisal. Initial Decision
at 11–12; S. App’x 79–81. On June 2, 2023, the adminis-
trative judge dismissed the appeal challenging Ms. Court-
ney’s termination based on lack of jurisdiction over a
termination occurring during the probationary period. See
generally Courtney v. Dep’t of the Treasury, No. SF-315H-
23-0324-I-1, 2023 WL 3793038 (M.S.P.B. June 2, 2023).
However, the administrative judge indicated that
Ms. Courtney could file an Individual Right of Action
(“IRA”) appeal covering any whistleblowing claim after ex-
hausting her remedies with OSC. Id.; see Initial Decision
at 11.
On June 4, 2023, Ms. Courtney filed an IRA appeal
with the Board. S. App’x 98–100. After the IRA appeal
was filed, the Board requested additional information to
determine whether it had jurisdiction over the appeal.
S. App’x 87–96. In response to the “whistleblower jurisdic-
tion order,” id., Ms. Courtney repeated allegations that she
previously submitted when she filed her March 2, 2023
grievance. See S. App’x 65–68. Ms. Courtney also made
new disclosures of injury, touching, cursing, and other im-
proper conduct from coworkers and supervisors. Initial De-
cision at 10–11; S. App’x 65–68.
On August 2, 2023, the administrative judge dismissed
the IRA appeal for lack of jurisdiction. Initial Decision at 1.
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COURTNEY v. MSPB 4
The administrative judge determined that Ms. Courtney
had exhausted her complaint with OSC with respect to the
March 2, 2023 grievance, but not with respect to the new
disclosures and complaints listed in her jurisdictional
statement. Id. at 12. Specifically, the administrative judge
concluded that Ms. Courtney failed to “exhaust [before
OSC] any potential complaints related to her injury or be-
ing ‘chased’ by another employee, being touched by a
coworker, or that coworkers cursed at work.” Id. The ad-
ministrative judge further found that her March 2, 2023
grievance did not raise protected disclosures or qualify as
protected activity to support Board jurisdiction. Id. at 12–
13. Ms. Courtney petitioned for review of the initial deci-
sion to the Board. Final Order at *1. On November 8,
2024, the Board denied Ms. Courtney’s petition for review
and affirmed the administrative judge’s initial decision dis-
missing her IRA appeal for lack of jurisdiction. Id. at *1.
Ms. Courtney timely petitioned for review in this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. D ISCUSSION
We will set aside any action, findings, or conclusions of
the Board that are: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Brenner v. Dep’t
of Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021)
(quoting 5 U.S.C. § 7703(c)). “We review decisions of the
Board regarding its own jurisdiction without deference.”
Kahn v. Dep’t of Just., 528 F.3d 1336, 1341 (Fed. Cir.
2008).
To establish the Board’s jurisdiction over an IRA ap-
peal, the appellant must “show by preponderant evidence
that (1) [she] engaged in whistleblowing activity by making
a disclosure protected by 5 U.S.C. § 2302(b)(8); (2) the
agency took or threatened to take a ‘personnel action’
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COURTNEY v. MSPB 5
against [her] as defined in 5 U.S.C. § 2302(a)(2)(A); (3) [she]
sought corrective action from OSC; and (4) [she] exhausted
corrective action proceedings before OSC.” Serrao v. Merit
Sys. Prot. Bd., 95 F.3d 1569, 1574 (Fed. Cir. 1996). Fur-
thermore, the Board “lacks jurisdiction when the employee
seeks corrective action for a prohibited personnel practice
described in section 2302(b)(9)(A)(ii), which concerns ‘the
exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation . . . other than with
regard to remedying a violation of [section 2302(b)(8)].’”
Abutalib v. Merit Sys. Prot. Bd., 127 F.4th 373, 378
(Fed. Cir. 2025).
A.
Although Ms. Courtney has raised several potential al-
legations, Appellant’s Br. 1–2,2 the Board did not err in
finding that she had only exhausted her OSC remedies
with respect to her claim that the IRS retaliated against
her for filing the March 2, 2023 grievance. Initial Decision
at 12. “[I]f the personnel action challenged by the employee
is not otherwise directly appealable to the Board, the em-
ployee must first seek corrective action from the OSC.” El-
lison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1035 (Fed. Cir.
1993) (citing 5 U.S.C. §§ 1214(a)(3), 1221(a), (b)). “The
Board’s jurisdiction over an IRA appeal, assuming the em-
ployee does not have an independent right to appeal di-
rectly to the Board, is thus limited to those issues that have
been previously raised with OSC.” McCarthy v. Merit Sys.
Prot. Bd., 809 F.3d 1365, 1374 (Fed. Cir. 2016) (internal
quotation marks and citation omitted).
Even though Ms. Courtney raised several allegations
at the Board, “[t]he appellant’s submissions to OSC, the
emails with OSC, and the OSC closeout letter only refer to
the grievance.” Initial Decision at 12. Accordingly, the
2 We cite to the ECF page numbers.
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administrative judge concluded that “the appellant proved
administrative exhaustion with respect to the grievance
but not other complaints.” Id. Additionally, although
Ms. Courtney now raises a failure to follow proper proce-
dure under the Civil Service Reform Act and the union
agreement, neither of these alleged failures were discussed
in the grievance. Appellant’s Br. 2; S. App’x 82. See Young
v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328 (Fed. Cir.
2020). We likewise see no reversible error in the Board’s
conclusion that administrative exhaustion was limited to
the aforementioned grievance.
B.
The Board did not err in finding that Ms. Courtney’s
grievance did not raise a protected disclosure and could not
be classified as a protected activity over which it had juris-
diction. Initial Decision at 12–13. “In order for the Board
to have jurisdiction over an IRA appeal” over whistleblow-
ing charges, Ms. Courtney must show by a preponderance
of the evidence “that [she] engaged in whistleblower activ-
ity by making a disclosure protected under the [statute],
i.e., [she] disclosed information that [she] reasonably be-
lieved evidenced ‘a violation of law, rule, or regulation,’ 5
U.S.C. § 2302(b)(8)(A)(i), or ‘gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to public health and safety,’ 5 U.S.C.
§ 2302(b)(8)(A)(ii).” Herman v. Dep’t of Just., 193 F.3d
1375, 1378 (Fed. Cir. 1999) (emphasis omitted). Ms. Court-
ney did not raise any protected disclosures in her griev-
ance.
First, Ms. Courtney’s grievance does not contain alle-
gations of a “violation of any law, rule, or regulation.” 5
U.S.C. § 2302(b)(8)(A)(i); S. App’x 82. Second, her state-
ments do not arise to the level of disclosing “gross misman-
agement, 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)(ii). Ms. Courtney’s
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grievance only contains allegations of insufficient training,
which constitute a “[m]ere difference[ ] of opinion between
an employee and [her] agency superiors as to the proper
approach to a particular problem or the most appropriate
course of action” not arising “to the level of gross misman-
agement.” White v. Dep’t of the Air Force, 391 F.3d 1377,
1381 (Fed. Cir. 2004); see S. App’x 82. Moreover,
Ms. Courtney’s allegations contain disagreements with the
method of training and feedback she received from her su-
pervisors. S. App’x 82. In the past, we have adopted defi-
nitions of “abuse of authority” as “an arbitrary or capricious
exercise of power by a federal official or employee that ad-
versely affects the rights of any person” or is “inconsistent
with the mission of the executive agency concerned.” Smo-
linski v. Merit Sys. Prot. Bd., 23 F.4th 1345, 1351–52
(Fed. Cir. 2022) (adopting definitions from Wheeler v. Dep’t
of Veterans Affs., 88 M.S.P.R. 236, 241 (2001) and 41 U.S.C.
§ 4712(g)(1)). These disagreements with the method of
training and feedback do not amount to an abuse of author-
ity.
Additionally, Ms. Courtney’s act of filing the grievance
is not a protected activity. Even though filing a grievance
may be protected activity, the Board lacks jurisdiction in
IRA appeals concerning grievances unless the grievance
“seek[s] to remedy a violation of [5 U.S.C. §] 2302(b)(8).”
Young, 961 F.3d at 1329; Abutalib, 127 F.4th at 378. As
discussed earlier, the subject matter of the grievance does
not seek to remedy a violation of 5 U.S.C. § 2302(b)(8).
Thus, Ms. Courtney’s act of filing the grievance does not
establish the Board’s jurisdiction.
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III. CONCLUSION
We have considered Ms. Courtney’s remaining argu-
ments3 and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.
3 For example, Ms. Courtney argues that the Board
did not consider that “the new director had never met [her]
prior to terminating [her] employment” and that she had
submitted a “zip file containing falsified job evals about
[her] to the previous director.” Appellant’s Br. 2 (cleaned
up). However, Ms. Courtney does not explain how consid-
eration of these additional circumstances would establish
Board jurisdiction, as none of these issues were specifically
discussed in her grievance. S. App’x 82; see Young,
961 F.3d at 1328 (“A party cannot establish jurisdiction
through general assertions, but must provide substantive
details.”).
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