Peter J. May v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER J. MAY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1709
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-3443-16-0303-I-1.
______________________
Decided: September 10, 2024
______________________
P ETER J. MAY , Rockville Centre, NY, pro se.
STEPHEN F UNG, 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 P ROST , HUGHES , and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
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MAY v. MSPB 2
Peter J. May has appealed the Merit Systems Protec-
tion Board’s (“Board”) final order denying his petition for
review and affirming the administrative judge’s (“AJ”) De-
cember 16, 2016 initial decision to dismiss Mr. May’s ap-
peal for lack of jurisdiction. May v. DOJ, No. NY-3443-16-
0303-I-1, 2023 WL 491098 (M.S.P.B. Jan. 26, 2023). For
the following reasons, we affirm.
BACKGROUND
Mr. May was a Special Agent, Criminal Investigator,
Series 1811, Pay Grade 13, Step 9 at the Drug Enforcement
Administration (“Agency”) and applied for the position of
Group Supervisor, GS-1811-14, New York Field Division on
February 26, 2013. S.A. 30–31.1 Mr. May was not selected
for the position. On June 26, 2013, Mr. May was issued a
Memorandum of Counseling (“MOC”) by his supervisor as
a disciplinary violation. And, as a result of the MOC, Mr.
May was involuntarily reassigned from the John F. Ken-
nedy Airport Group to a position on the Strike Force lo-
cated in Manhattan, New York. S.A. 30.
In December 2013, Mr. May filed a formal complaint
against the Agency, alleging that he was discriminated
against based on his race (white) and sex (male) when he
was not selected for the Group Supervisor position, was is-
sued the MOC, and was involuntarily reassigned to an-
other employment location. S.A. 9.
On August 5, 2016, the Equal Employment Oppor-
tunity Commission (“EEOC”) AJ determined that there
were no genuine issues of material fact in dispute and, find-
ing the complaint appropriate for summary judgment, en-
tered judgment in favor of the Agency. See S.A. 29, 38. The
Agency thereafter issued a Final Agency Decision agreeing
1 “S.A.” refers to the supplemental appendix in-
cluded with the Board’s informal brief.
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MAY v. MSPB 3
with the EEOC AJ’s decision that Mr. May was not sub-
jected to discrimination. S.A. 9.
On September 2, 2016, Mr. May filed an appeal with
the Board wherein he claimed that the Agency “committed
Title VII discrimination, violated the Whistleblower Pro-
tection Enhancement Act of 2012 [“WPA”], violated his con-
stitutional right to equal protection and engaged in other
prohibited personnel practices, such as nepotism, cronyism
and favoritism by failing to promote him and directing his
reassignment.” S.A. 8 (cleaned up). The Board AJ found
that Mr. May “did not establish Board jurisdiction over his
appeal under any law, rule, or regulation,” and dismissed
the appeal for lack of jurisdiction. S.A. 13.
On January 16, 2017, Mr. May petitioned for Board re-
view of the Board AJ’s initial decision, alleging Agency vi-
olations such as “intentional Agency disparate treatment
based upon race, selective enforcement of the Agency’s
standard of conduct, nepotism, cronyism, favoritism,
USERRA[2] violations and whistleblower retaliation.” S.A.
78. On January 26, 2023, the Board issued a final order
affirming the Board AJ’s initial decision dismissing Mr.
May’s appeal for lack of jurisdiction. Mr. May now peti-
tions this court for review of the Board’s decision.
D ISCUSSION
I
We initially determine if we have jurisdiction over
Mr. May’s appeal. Although our court generally has juris-
diction over an appeal from a final order or final decision of
the Board, see 28 U.S.C. § 1295(a)(9), we do not have juris-
diction over such appeals if they involve a “mixed case,” see,
e.g., Perry v. MSPB, 582 U.S. 420, 422–23 (2017). Because
2 “USERRA” refers to the Uniformed Services Em-
ployment and Reemployment Rights Act.
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MAY v. MSPB 4
Mr. May appears to believe that his case before the Board
was a mixed case, we briefly explain why that was not so—
and why this court does indeed have jurisdiction over his
appeal.
“A mixed case is one in which a federal employee
(1) complains of having suffered a serious adverse person-
nel action appealable to the [Board] and (2) attributes the
adverse action, in whole or in part, to bias prohibited by
federal antidiscrimination laws.” Harris v. SEC, 972 F.3d
1307, 1317 (Fed. Cir. 2020). In this context, adverse per-
sonnel actions appealable to the Board include: “(1) a re-
moval; (2) a suspension for more than 14 days; (3) a
reduction in grade; (4) a reduction in pay; and (5) a fur-
lough of 30 days or less.” 5 U.S.C. § 7512. Here, even as
alleged, none of the agency actions at issue (MOC, non-pro-
motion, and reassignment) were adverse personnel actions
appealable to the Board. See id. Because the first require-
ment for mixed cases has not been met, Mr. May’s appeal
cannot be considered a mixed case.
Accordingly, because this appeal is from a final order
of the Board—and is not a mixed case—we have jurisdic-
tion over Mr. May’s appeal.
II
Having confirmed our own jurisdiction over this ap-
peal, we now consider whether the Board correctly deter-
mined that it lacked jurisdiction over Mr. May’s appeal,
which is a question of law that we review de novo. Corades-
chi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1331
(Fed. Cir. 2006). “The petitioner bears the burden of estab-
lishing error in the Board’s decision.” Harris v. Dep’t of
Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Mr. May argues that the Board had jurisdiction be-
cause his case was a mixed case. Although the Board does
have jurisdiction to review mixed cases, see 5 U.S.C.
§ 7702(a)(1), as explained above, Mr. May’s case was not a
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MAY v. MSPB 5
mixed case because he did not identify any adverse person-
nel action appealable to the Board. See S.A. 11 (“Since
[Mr. May] has not set forth an appealable action over
which the Board would have jurisdiction, he has failed to
establish that the Board should assert jurisdiction over his
Title VII and other claims.”). We therefore see no error in
the Board’s determination that it lacked jurisdiction over
Mr. May’s appeal as a mixed case.
Mr. May also argues that the Board had jurisdiction
because he alleged whistleblower reprisal.3 The Board
“has jurisdiction over an IRA[4] appeal if the appellant has
exhausted his administrative remedies before the [Office of
Special Counsel (“OSC”)] and makes non-frivolous allega-
tions that (1) he engaged in whistleblowing activity by
making a protected disclosure . . . and (2) the disclosure
was a contributing factor in the agency’s decision to take or
fail to take a personnel action.” Yunus v. Dep’t of Veterans
Affs., 242 F.3d 1367, 1371 (Fed. Cir. 2001) (cleaned up).
“The purpose of the requirement that an employee exhaust
his or her remedies before the [OSC] before appealing to
the Board is to give the [OSC] the opportunity to take
3 Although Mr. May alleged “USERRA violations” in
his petition for Board review, S.A. 78, he did not present
this argument in his initial appeal to the Board, as noted
by the Board AJ in her initial decision and the Board in its
final order. S.A. 13 n.13 (Board AJ noting that Mr. May
“has not raised a claim of a USERRA violation in his ap-
peal”); S.A. 2 n.2 (Board noting that Mr. May “did not raise
a claim of a USERRA violation in his appeal”). Any
USERRA-related argument concerning Board jurisdiction
is therefore not properly before us.
4 “IRA” refers to an individual right of action, which
is an appeal of personnel actions taken by an agency
against an employee as reprisal for protected whistleblow-
ing-related activity. See 5 U.S.C. § 1221.
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MAY v. MSPB 6
corrective action before involving the Board in the case.”
Ward v. MSPB, 981 F.2d 521, 526 (Fed. Cir. 1992). At the
time Mr. May sought review of the January 26, 2023 final
order of the Board, which affirmed the Board AJ’s Decem-
ber 16, 2016 initial decision, Mr. May had not filed a whis-
tleblower claim with the OSC. S.A. 12. And though
Mr. May “believes he cured the defect of failure to exhaust
administrative remedies by filing a WPA complaint with
the OSC” on June 26, 2023, Appellant’s Informal Br. 8,
Mr. May had not exhausted his administrative remedies
with the OSC before his Board appeal in this case. Mr.
May’s “failure to do so deprived the Board of jurisdiction to
hear his appeal.” Ellison v. MSPB, 7 F.3d 1031, 1037 (Fed.
Cir. 1993). Thus, the Board correctly concluded that it did
not have jurisdiction over his appeal as an IRA appeal.
CONCLUSION
We have considered Mr. May’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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