Opinion

Shirley Muhleisen v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 30, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHIRLEY MUHLEISEN, DOCKET NUMBER

Appellant, DE-0353-16-0067-B-2

DEPARTMENT OF VETERANS DATE: March 30, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shirley Muhleisen , Marrero, Louisiana, pro se.

Johnston B. Walker and LaTasha C. Clark , Jackson, Mississippi,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the remand initial decision,

which denied her request for corrective action regarding an alleged denial of

restoration, along with associated discrimination and reprisal. Generally, we

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

With her initial appeal in this matter, the appellant alleged that she was

denied restoration, but she also alluded to some sort of discrimination or reprisal.

The administrative judge found that the appellant was not entitled to corrective

action regarding her restoration claim because she did not prove at least one

element of her burden, i.e., that she was absent due to a compensable injury.

Muhleisen v. Department of Veterans Affairs, MSPB Docket No. DE-0353-16-

0067-I-1, Initial Appeal File, Tab 39, Initial Decision. On review, the Board

affirmed that finding but remanded for the administrative judge to address the

possible discrimination and reprisal claims in the first instance, because the

appellant had yet to receive proper notice for the same. Muhleisen v. Department

of Veterans Affairs, MSPB Docket No. DE-0353-16-0067-I-1, Remand Order

(Mar. 2, 2023). The Board instructed the administrative judge to incorporate his

prior findings concerning the merits of the appellant’s restoration claim, provide

the appellant notice regarding discrimination and reprisal, determine whether any

such claims are live or viable, and proceed accordingly. Id., ¶¶ 25-26 n.8. On

remand, the administrative judge developed the record and held the requested

hearing. In a remand initial decision, he implicitly incorporated his prior findings

regarding the appellant’s burden of proof on the merits of her restoration claim.

He did so while further finding that the appellant could not present a valid

discrimination or reprisal claim remediable by the Board because she was

effectively challenging nonappealable nonselections, rather than a denial of

restoration, since the appellant was not absent due to a compensable injury when

she sought positions with the agency. Muhleisen v. Department of Veterans

Affairs, MSPB Docket No. DE-0353-16-0067-B-2, Remand File, Tab 48, Remand

Initial Decision (RID) at 8-11. In the alternative, even if such claims were viable

in this context, the administrative judge found that the appellant did not meet her

burden of proving either. 2 Id. at 11-16.

On petition for review, the appellant presents a number of arguments that

are seemingly unrelated to the restoration matter at issue in the instant appeal.

For example, she argues about the nature of her separation from the agency in or

around 1999, her leave and retirement benefits, and the legitimacy of other

decisions in other appeals she previously pursued with the Board and courts.

E.g., Muhleisen v. Department of Veterans Affairs, MSPB Docket No. DE-0353-

16-0067-B-2, Remand Petition for Review File, Tab 1 at 3-5. Some of her other

arguments include an assertion that the administrative judge ignored some

unidentified evidence, id. at 4, 6, 28, an assertion that he erred in how he handled

the hearing on remand, id. at 26, and an argument that one agency witness was

not credible, id. at 26-27. We have considered these arguments but find that they

do not warrant a different outcome.

Although the remand initial decision accurately recounts the analytical frameworks for

claims of discrimination and whistleblower reprisal, it does not clearly explain how the

administrative judge applied those frameworks to reach his conclusion. RID at 5-8,

11-16. Nevertheless, in the absence of any argument to the contrary, we have construed

the remand initial decision as finding that the appellant did not prove that any protected

characteristic was a motivating factor in any of the contested actions or that she

engaged in protected whistleblowing that was a contributing factor in any of the

contested actions.

In her petition, the appellant also suggests that the administrative judge

may have been biased against her. Id. at 3-4, 27. She has not, however, provided

a detailed explanation of the claim, nor has she overcome the presumption of

honesty and integrity that accompanies administrative adjudicators. See

Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 29 (2015)

(recognizing this presumption and explaining that an administrative judge’s

conduct during the course of a proceeding warrants a new adjudication only if his

comments or actions evidence a deep-seated favoritism or antagonism that would

make fair judgment impossible).

In sum, we affirm the remand initial decision. The appellant has not

proven her restoration claim or any associated claim of discrimination or reprisal.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.