Tiffany Harris v. Merit Systems Protection Board

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIFFANY HARRIS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1659
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3443-21-0506-I-1.
______________________
Before LOURIE, CUNNINGHAM, and STARK , Circuit Judges.
PER C URIAM.
O R D E R
In response to this court’s show cause order, the Merit
Systems Protection Board urges summary affirmance. Tif-
fany Harris requests transfer to the Supreme Court.
I.
Ms. Harris was employed by the Department of Veter-
ans Affairs as an Advanced Medical Support Assistant. In
April 2020, Ms. Harris filed an Equal Employment Oppor-
tunity (“EEO”) complaint alleging she was retaliated
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HARRIS v. MSPB 2
against based on prior EEO activity. Specifically, Ms. Har-
ris alleged that she was subject to a 5-day suspension,
counseling, denial of telework, being put in absent without
leave status, and being subject to mistreatment by cowork-
ers. On January 29, 2021, the Department issued a final
agency decision (FAD) denying her complaint. She ap-
pealed that decision to the Equal Employment Opportunity
Commission, which affirmed the agency’s decision.
The Department removed Ms. Harris on July 12, 2021.
She filed an appeal at the Board challenging her removal
in part as unlawful retaliation for protected EEO activity.
The Board ultimately sustained the agency’s removal deci-
sion. Ms. Harris then filed a complaint in the United
States District Court for the Northern District of Alabama
challenging the Board’s decision as well as asserting un-
lawful discrimination based on the alleged reprisals raised
in her EEO complaint. See Harris v. Dep’t of Vet. Affs., No.
22-cv-00828-CLM (N.D. Ala.). That case is still pending.
Several days after filing her removal appeal, Ms. Har-
ris filed a separate appeal at the Board challenging the
FAD. The administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. Specifically,
the administrative judge found that Ms. Harris was not
challenging her removal or another action appealable to
the Board and that the Board lacked independent author-
ity to review a FAD. The Board affirmed that decision. Ms.
Harris then filed this petition for review.
II.
Before we can address whether summary affirmance is
appropriate, we must decide whether this court has juris-
diction over this case. This court has jurisdiction to review
a final decision from the Board except in “[c]ases of discrim-
ination subject to the provisions of [5 U.S.C. §] 7702,”
which are instead brought in district court. 5 U.S.C.
§ 7703(b)(1)(A), (b)(2); Perry v. Merit Sys. Prot. Bd., 582
U.S. 420, 437 (2017). For a “[c]ase[] of discrimination [to
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HARRIS v. MSPB 3
be] subject to the provisions of section 7702,” the employee
must (1) “complain of a personnel action serious enough to
appeal to the [Board]” and (2) allege “that the personnel
action was based on discrimination.” Id. at 432 (cleaned
up). The personnel actions that are serious enough to ap-
peal to the Board are generally limited to “a removal,” “a
suspension for more than 14 days,” “a reduction in grade,”
“a reduction in pay,” and “a furlough of 30 days or less.”
5 U.S.C. § 7512; see Kloeckner v. Solis, 568 U.S. 41, 44 &
n.1 (2012).
We agree with the Board that we have jurisdiction, as
this is not a “[c]ase[] of discrimination.” The Board here
reasonably concluded that Ms. Harris’s underlying appeal
was intended to challenge her FAD and not her re-
moval. And our review of the FAD further leads us to agree
that her appeal failed to raise a nonfrivolous allegation of
Board jurisdiction, as the reprisal activity identified in the
FAD cannot plausibly be read as one of the limited person-
nel actions serious enough to appeal to the Board identified
in 5 U.S.C. § 7512. See Perry, 582 U.S. at 431 (holding that
a “nonfrivolous” allegation under § 7702 channels judicial
review to district court); cf. Granado v. Dep't of Just., 721
F.2d 804, 807 (Fed. Cir. 1983) (dismissing petition for re-
view for lack of jurisdiction where the allegation of Board
jurisdiction was not found to be frivolous). It follows, we
find, that this petition is not a “[c]ase[] of discrimination,”
but instead falls within this court’s jurisdiction under
§ 7703(b)(1)(A).
We further agree that summary affirmance is appro-
priate here because there are “no substantial question[s]
regarding the outcome” of Ms. Harris’s appeal. Joshua v.
United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (citation
omitted). The Board was clearly correct that prohibited
personnel practices under 5 U.S.C. § 2302(b), including
claims of prohibited discrimination and retaliation, are not
an independent source of Board jurisdiction, see Schmidt v.
Dep’t of Interior, 153 F.3d 1348, 1356 (Fed. Cir. 1998), and
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HARRIS v. MSPB 4
that the appellant failed to challenge any personnel action
within its jurisdiction.
Accordingly,
IT IS O RDERED THAT:
(1) The Merit Systems Protection Board’s decision is
summarily affirmed.
(2) Each side shall bear its own costs.
August 21, 2024
Date
FOR THE C OURT
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