Contessa McCloud v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CONTESSA MCCLOUD,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2376
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-22-0314-W-1.
______________________
Decided: July 11, 2025
______________________
CONTESSA MCCLOUD, Geneva, AL, pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Case: 24-2376 Document: 26 Page: 1 Filed: 07/11/2025

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MCCLOUD v. MSPB 2
Before L OURIE and P ROST , Circuit Judges, and BUMB,
Chief District Judge.1
P ER CURIAM .
Contessa McCloud petitions for review of the final or-
der of the Merit Systems Protection Board (“the Board”)
denying her petition for review and affirming the dismissal
of her individual right of action (“IRA”) appeal for lack of
jurisdiction. McCloud v. Dep’t of Veterans Affs., No. AT-
1221-22-0314-W-1, 2024 WL 3690748 (M.S.P.B. Aug. 6,
2024) (“Final Order”); see also McCloud v. Dep’t of Veterans
Affs., No. AT-1221-22-0314-W-1, 2022 WL 2193217
(M.S.P.B. June 16, 2022) (“Initial Decision”), R.A. 12–33.2
For the following reasons, we affirm.
BACKGROUND
At all relevant times, McCloud was employed as a Res-
piratory Therapist at the Department of Veterans Affairs
Health Care System in Montgomery, Alabama. Final Or-
der, at *1. On February 26, 2022, McCloud filed a whistle-
blower complaint with the Office of Special Counsel
(“OSC”), alleging that, in reprisal for filing Equal Employ-
ment Opportunity (“EEO”) complaints of discrimination,
agency officials denied her request for a reasonable accom-
modation, issued her a written counseling, and subjected
her to a hostile work environment. Id.; see R.A. 50–53. Af-
ter OSC closed out the complaint, McCloud filed an indi-
vidual right of action (“IRA”) appeal at the Board.
R.A. 92–120.
1 Honorable Renée M. Bumb, Chief Judge, United
States District Court for the District of New Jersey, sitting
by designation.
2 “R.A.” refers to the appendix filed with Respond-
ent’s brief.
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MCCLOUD v. MSPB 3
In an initial decision, the administrative judge (“AJ”)
found that McCloud had failed to exhaust her administra-
tive remedies before OSC. Initial Decision, R.A. 18–22.
The AJ further explained that, even if McCloud had ex-
hausted those remedies, long-standing precedent held that
retaliation for filing an EEO complaint for discrimination
is not redressable in an IRA appeal. Id., R.A. 22–25.
Therefore, the AJ dismissed the appeal because the Board
did not have jurisdiction over McCloud’s claim. Id.,
R.A. 25.
McCloud petitioned for Board review of the initial de-
cision. The Board modified the AJ’s decision as to the ex-
haustion requirement—finding that McCloud had
sufficiently exhausted her administrative remedies—but
otherwise affirmed the determination that the Board
lacked jurisdiction. Final Order, at *2–3. The Board there-
fore denied McCloud’s petition for review. Id. at *1.
McCloud timely petitioned for review in this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We review the Board’s jurisdictional determinations de
novo and any findings of fact underlying such determina-
tions for substantial evidence. Jones v. Merit Sys. Prot.
Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024).
Under the Whistleblower Protection Act, a federal em-
ployee may seek corrective action from the Board “with re-
spect to any personnel action taken, or proposed to be
taken, against such employee . . . as a result of a prohibited
personnel practice described in section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D).” 5 U.S.C. § 1221(a). Sec-
tion 2302(b)(8) prohibits taking or failing to take any per-
sonnel action because of any disclosure of information that
the employee “reasonably believes evidences . . . (i) any vi-
olation of any law, rule, or regulation, or (ii) gross misman-
agement, a gross waste of funds, an abuse of authority, or
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MCCLOUD v. MSPB 4
a substantial and specific danger to public health or
safety.” Section 2302(b)(9)(A)(i) prohibits taking or failing
to take any personnel action because of an employee’s “ex-
ercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation . . . with regard to remedy-
ing a violation of [section 2302(b)(8)].”
But 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)].” See
Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1329 (Fed.
Cir. 2020). “Retaliation for filing those other types of com-
plaints is remediable through different mechanisms, and
not by an IRA appeal to the Board.” Id. (collecting cases).
McCloud seeks corrective action based on alleged retal-
iation taken in response to her filing of EEO complaints.
But allegations of retaliation based on EEO complaints fall
within the scope of section 2302(b)(9)(A)(ii), and therefore
outside the Board’s jurisdiction. Young, 961 F.3d at 1329;
see Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 692 (Fed.
Cir. 1992) (explaining that employees cannot maintain
simultaneous Board and EEOC jurisdiction to resolve the
same alleged violations); cf. Abutalib v. Merit Sys. Prot.
Bd., 127 F.4th 373, 381 (Fed. Cir. 2025) (“The fact that the
Board does not have jurisdiction over retaliation for EEO
activities does not mean that the Board lacks jurisdiction
over claims of retaliation for true whistleblowing disclo-
sures just because those disclosures may have been made
in the course of EEO proceedings.”). Here, the Board cor-
rectly concluded that it does not have authority to resolve
McCloud’s IRA appeal because her EEO complaints form-
ing the basis of her appeal do not concern remedying any
violation of section 2302(b)(8) and, therefore, are not within
the purview of section 2302(b)(9)(A)(i).
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CONCLUSION
We have considered McCloud’s remaining arguments
and find them unpersuasive.3 For the foregoing reasons,
the Board’s dismissal of McCloud’s IRA appeal for lack of
jurisdiction is affirmed.
AFFIRMED
COSTS
The parties shall bear their own costs.
3 On July 2, 2025, we received from McCloud an un-
timely Memorandum in Lieu of Oral Argument. Although
untimely, we have considered the substance of the filing
and conclude that it does not affect our decision in this case.
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