Case: 19-1997 Document: 39 Page: 1 Filed: 03/23/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LORI D. MCLAUGHLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2019-1997
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-19-0114-W-1.
______________________
Decided: March 23, 2021
______________________
KEVIN OWEN, Gilbert Employment Law, P.C., Silver
Spring, MD, for petitioner.
STEPHEN FUNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by TRISTAN LEAVITT,
KATHERINE MICHELLE SMITH.
______________________
Before NEWMAN, BRYSON, and O’MALLEY, Circuit Judges.
Case: 19-1997 Document: 39 Page: 2 Filed: 03/23/2021
2 MCLAUGHLIN v. MSPB
Opinion for the court filed PER CURIAM.
Opinion concurring in part and dissenting in part filed by
Circuit Judge NEWMAN.
PER CURIAM.
Lori D. McLaughlin appeals from a final decision of the
Merit Systems Protection Board (“Board”) 1 dismissing her
whistleblower Individual Right of Action (“IRA”) appeal for
lack of jurisdiction and failure to exhaust certain claims.
See McLaughlin v. Dep’t of Just., No. DC-1221-19-0114-W-
1, 2019 WL 1516865 (Apr. 1, 2019). Because the adminis-
trative judge (“AJ”) did not consider all of McLaughlin’s
timely-filed pleadings and did not apply the correct law to
all aspects of his analysis, we vacate the Board’s decision.
We remand for the Board to reconsider whether McLaugh-
lin has asserted claims that fall within the jurisdiction of
the Board, based on the complete record and in light of all
applicable legal standards.
I.
McLaughlin has been a federal employee for over thirty
years. Relevant to this appeal, she has served with the De-
partment of Justice, Bureau of Alcohol, Tobacco, Firearms
and Explosives (“Agency”) as a Special Agent in the
Greensboro Field Office.
On November 5, 2018, McLaughlin filed an IRA appeal
with the Board. She alleged that she had engaged in sev-
eral acts of whistleblowing and that the Agency had taken
multiple personnel actions in reprisal. A week later, on
November 13, 2018, the AJ issued an order directing
McLaughlin to file evidence and argument in support of the
1 The administrative judge issued an initial decision
on April 1, 2019. Neither party petitioned the Board for
review. The initial decision thus became the final decision
of the Board on May 6, 2019.
Case: 19-1997 Document: 39 Page: 3 Filed: 03/23/2021
MCLAUGHLIN v. MSPB 3
Board’s jurisdiction. McLaughlin responded to the order
on November 30, 2018. The Agency filed its response to the
order on December 17, 2018, arguing that McLaughlin had
failed to exhaust certain claims and had otherwise failed to
make nonfrivolous allegations in support of her claims.
A few days after the Agency filed its response, on De-
cember 22, 2018, the government entered into a partial
shutdown that caused the Board to cease operations and
suspend filing deadlines. Filing deadlines were extended
by the length of the shutdown. Several weeks later, on Jan-
uary 28, 2019, the Board resumed operations. That same
day, McLaughlin, through newly obtained counsel, filed a
reply to the Agency’s response to the AJ’s jurisdiction or-
der.
The AJ issued an initial decision dismissing McLaugh-
lin’s appeal for lack of jurisdiction on April 1, 2019. He did
not consider McLaughlin’s January 28, 2019 reply, finding
it was untimely filed without a showing of good cause. The
initial decision became the final decision of the Board on
May 6, 2019.
McLaughlin appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
II.
In appeals from the Board, we are required to “review
the record and hold unlawful and set aside any agency ac-
tion, findings, or conclusions found to be . . . (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence . . . .” 5 U.S.C.
§ 7703(c). We review whether the Board has jurisdiction
over a case, a question of law, de novo. Palmer v. Merit Sys.
Prot. Bd., 550 F.3d 1380, 1382 (Fed. Cir. 2008).
“The Whistleblower Protection Act allows a federal em-
ployee to seek corrective action from the Board for any
Case: 19-1997 Document: 39 Page: 4 Filed: 03/23/2021
4 MCLAUGHLIN v. MSPB
personnel action, as defined in the Act, that the employee
reasonably believes was taken in retaliation for any act of
whistleblowing, as defined in section 2302(b)(8) of Title 5,
or for any act set forth in section 2302(b)(9)(A)(i), (B), (C),
or (D) of Title 5.” Young v. Merit Sys. Prot. Bd., 961 F.3d
1323, 1328 (Fed. Cir. 2020). To establish the Board’s juris-
diction over an IRA appeal, “it suffices that an appellant
exhaust his remedies before the Office of Special Counsel
and present ‘non-frivolous allegations’” of an act of whistle-
blowing and a personnel action, as defined by 5 U.S.C.
§ 2302(a), taken in reprisal. Cahill v. Merit Sys. Prot. Bd.,
821 F.3d 1370, 1373 (Fed. Cir. 2016). A “non-frivolous” al-
legation is one that, “if proven, can establish the Board’s
jurisdiction insofar as that element is concerned.” Id. (in-
ternal quotation marks omitted). This is a relatively low
bar for appellants to satisfy.
McLaughlin argues that we should reverse the Board’s
finding of no jurisdiction because the AJ improperly and
erroneously made factual findings during his analysis. She
also contends that the AJ abused his discretion by not con-
sidering her January 28, 2019 reply. The Board, rather
than substantively defend its decision, agrees that the AJ
should have considered the reply. McLaughlin also asserts
that the AJ applied the wrong law when considering the
sufficiency of her allegations. Again, the Board concedes
that the AJ’s analysis was, in part, inconsistent with both
the law governing Equal Employment Opportunity retali-
ation claims and that governing whistleblower retaliation
claims. Appellee’s Br. 16 n.6. In light of these concessions,
the Board asks that we vacate the decision and remand for
the AJ to consider the jurisdictional question anew. The
Board affirmatively “takes no position on whether the pe-
titioner’s allegations, considered in the absence of the Jan-
uary 28, 2019 pleading, were sufficient to establish
jurisdiction,” Appellee’s Br. 12 n.4, and takes no position
on how McLaughlin’s reply might impact that analysis. We
agree with the Board that the proper course in these
Case: 19-1997 Document: 39 Page: 5 Filed: 03/23/2021
MCLAUGHLIN v. MSPB 5
circumstances is to remand for a do-over on the jurisdic-
tional question.
The Agency’s December 17, 2018 filing, which was re-
sponsive to the AJ’s jurisdiction order, was a motion to dis-
miss. Indeed, the Board treated it as such. The Board’s
regulations allow ten days to respond to such motions. See
5 C.F.R. § 1201.55(b). Given the intervening government
shutdown and corresponding extension of deadlines,
McLaughlin’s January 28, 2019 reply, which responded to
the Agency’s motion, was, therefore, timely filed and
should have been considered by the AJ. The AJ’s failure to
consider the reply was inconsistent with the procedures re-
quired by regulation. And the AJ’s legal analysis was ad-
mittedly flawed in at least certain respects.
McLaughlin suggests that, rather than remand for the
Board to correct its mistakes and consider the complete rec-
ord again, we should assess the Board’s jurisdiction on ap-
peal. As a court of review, we decline to do so. It is for the
Board, in the first instance, to consider whether McLaugh-
lin has established by a preponderance of the evidence, in
light of all correct legal standards, that the Board has ju-
risdiction over one or more of her claims.
III. CONCLUSION
The AJ erred by failing to consider McLaughlin’s Jan-
uary 28, 2019 reply, which was responsive to the Agency’s
motion to dismiss. And, the AJ erred in his application of
the law. We therefore vacate the Board’s decision and re-
mand for the Board to fully reconsider its jurisdiction on
the complete record and in light of all appropriate legal
standards.
VACATED AND REMANDED
COSTS
No costs.
Case: 19-1997 Document: 39 Page: 6 Filed: 03/23/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LORI D. MCLAUGHLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2019-1997
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-19-0114-W-1.
______________________
NEWMAN, Circuit Judge, concurring in part, dissenting in
part.
This case raises a recurring issue of whistleblower pro-
tection, viz., the role of the Merit Systems Protection
Board. Here the MSPB held that it did not have “jurisdic-
tion” of this Individual Right of Action appeal, stating that
Ms. McLaughlin’s complaint was inadequate to establish
MSPB jurisdiction. 1
1 McLaughlin v. Dep’t of Justice, No. DC-1221-19-
0114-W-1, 2019 WL 1516865 (Apr. 1, 2019) (“MSPB Op.”).
Case: 19-1997 Document: 39 Page: 7 Filed: 03/23/2021
2 MCLAUGHLIN v. MSPB
Ms. McLaughlin’s complaint included over 170 pages of
documentation. She submitted another hundred pages of
documents with the Reply that, as my colleagues agree, the
administrative judge wrongly refused to consider. The
complaint indisputably met the jurisdictional require-
ments. The complaint included: a copy of Ms. McLaugh-
lin’s Equal Employment Opportunity (“EEO”) filing
asserting sex discrimination and harassment; a copy of her
report to the Office of Professional Responsibility and Se-
curity Operations concerning specified integrity and mis-
conduct violations; a copy of her civil action in the U.S.
District Court for the Middle District of North Carolina al-
leging sex and race discrimination and retaliation; a copy
of her communications to the EEO Commission concerning
violations of the Privacy Act of 1974, 5 U.S.C. § 552a; a copy
of her communications with Senator Grassley’s office; and
copies of reports to various agency officials concerning in-
competence and wrongdoing of agency employees.
The administrative judge (“AJ”) dismissed Ms.
McLaughlin’s appeal for “lack of jurisdiction,” stating that
she had “failed to allege facts to support a finding that she
made a protected whistleblower disclosure under the WPA
[Whistleblower Protection Act] and/or WPEA [Whistle-
blower Protection Enhancement Act].” MSPB Op. at 26.
The AJ illustrated this purported deficiency by pointing to
Ms. McLaughlin’s report to a district court that “a DOJ at-
torney” had not properly reported and responded to a Pri-
vacy Act violation; the AJ stated that because Ms.
McLaughlin did not name the DOJ attorney in that com-
plaint and did not “identify how and to whom” the DOJ at-
torney should have reported the Privacy Act violation, and
did not in the complaint “identify the law, rule, regulation
or policy that creates an obligation” to report the violation,
her allegation of wrongdoing was “vague and conclusory.”
Id. The AJ stated that all of her allegations of wrongdoing
were not “legitimate, provable or sufficiently detailed.” Id.
The AJ ruled that, for these reasons, all of her allegations
Case: 19-1997 Document: 39 Page: 8 Filed: 03/23/2021
MCLAUGHLIN v. MSPB 3
were “frivolous.” See, e.g., id. at 17, 18, 20, 21. The AJ
dismissed McLaughlin’s IRA Appeal for “lack of jurisdic-
tion.” Id. at 26.
The MSPB in its brief on this appeal acknowledges that
the AJ may have erred, and requests a remand so that he
may reconsider his “jurisdictional” ruling. Ms. McLaughlin
asks this court to resolve any question of jurisdiction, and
to remand with instructions that the MSPB consider the
merits of her IRA appeal. However, my colleagues decline
to decide jurisdiction and decline to require that the re-
mand go directly to the merits. This court has a full record
on which to decide jurisdiction, and the issue is fully
briefed and argued. We should decide the question of ju-
risdiction.
The AJ erred in law when he “conflated the require-
ments for establishing jurisdiction with those required to
prevail on the merits of a WPA claim.” Johnston v. MSPB,
518 F.3d 905, 910 (Fed. Cir. 2008); see Spencer v. Dep’t of
the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003) (“This court
for more than ten years … has tried to get the Board to
clearly separate the issue of jurisdiction from that of the
merits of a petitioner’s case.”). It appears that this error
continues to arise; it is our responsibility to correct it, for
“[a]t the jurisdictional stage, the appellant only is bur-
dened with making a non-frivolous allegation that he rea-
sonably believed that his disclosure evidenced one of the
circumstances described in 5 U.S.C. § 2302(b)(8).” Bradley
v. Dep’t of Homeland Sec., 2016 M.S.P.B. 30, ¶ 7 (2016) (cit-
ing Schoenig v. Dep’t of Justice, 120 M.S.P.R. 318, ¶ 8
(2013)). “A non-frivolous allegation of jurisdiction is an al-
legation of fact which, if proven, could establish a prima
facie case that the Board has jurisdiction in the matter.”
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1339 (Fed.
Cir. 2006) (citing Smith v. Dep’t of Energy, 89 M.S.P.R. 430,
434 (2001)).
Case: 19-1997 Document: 39 Page: 9 Filed: 03/23/2021
4 MCLAUGHLIN v. MSPB
When the contents of the complaint non-frivolously
support jurisdiction, jurisdiction is established, and the
matter devolves to determination of the merits of the com-
plaint. See Reid v. MSPB, 508 F.3d 674, 678 (Fed. Cir.
2007) (“[W]hether [a whistleblower’s] allegation can be
proven is a question on the merits that does not properly
form a part of the [MSPB’s] jurisdictional inquiry”); Piccolo
v. MSPB, 869 F.3d 1369, 1370 (Fed. Cir. 2017) (”This court
has made clear that the MSPB must separate the issue of
jurisdiction from that of the merits of a petitioner’s case.”)
(internal quotation marks omitted).
Ms. McLaughlin’s complaint contains extensive docu-
mentation that establish the fundamentals of a whistle-
blower’s cause of action. See Cahill v. MSPB, 821 F.3d
1370, 1373 (Fed. Cir. 2016) (at the complaint stage, the ap-
pellant met his burden without identifying which manage-
ment officials were responsible for the reprisal).
In its brief on this appeal, the MSPB acknowledges
that the administrative judge erred in refusing to accept
Ms. McLaughlin’s filing after the government shutdown,
stating that “it is typically the MSPB’s practice to allow re-
buttal to new evidence or argument submitted by the other
party just before the record closed,” citing 5
C.F.R.§ 1201.59(c)(2). MSPB Br. 14. The MSPB also con-
fesses error of law, stating: “Respondent concedes that the
administrative judge’s analysis pertaining to conflicting
motivations between EEO retaliation and whistleblower
retaliation appears to be inconsistent with the law in either
area.” MSPB Br. 16 n.6, citing Savage v. Dep’t of the Army,
122 M.S.P.R. 612, 634-35 (2015), for the holding that an
appellant need only prove that EEO retaliation was a mo-
tivating factor in a personnel action, and Bradley, 123
M.S.P.R. at 555-56 (holding that an appellant must make
a nonfrivolous allegation that whistleblower reprisal was
“one factor” that affected a personnel action).
Case: 19-1997 Document: 39 Page: 10 Filed: 03/23/2021
MCLAUGHLIN v. MSPB 5
It is apparent that jurisdiction is now recognized by the
MSPB, despite its request for remand to determine juris-
diction. Precedent establishes that: “Where it is clear . . .
that the Board has jurisdiction over a case,” it is unneces-
sary to remand for a jurisdictional redetermination. Yunus
v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001). Here, it is apparent that the AJ’s negation of MSPB
jurisdiction is not in accordance with law. That decision
warrants reversal. See Lindahl v. Office of Pers. Mgmt.,
470 U.S. 768, 774 n.5 (1985) (the MSPB’s decision must be
reversed “if it was arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law,” quoting 5
U.S.C. § 7703(c)).
The question of “jurisdiction” is squarely presented for
review. We should decide it, whereby this remand would
go directly to the merits of the IRA appeal. From my col-
leagues’ indecisive action, and the further delay that ac-
companies it, I respectfully dissent.