Cathy Mitchell v. Department of the Treasury

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CATHY ALEXANDRA MITCHELL, DOCKET NUMBER

Appellant, SF-1221-24-0504-W-1

v.

DEPARTMENT OF THE TREASURY, DATE: May 1, 2026

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Cathy Alexandra Mitchell , Kirkland, Washington, pro se.

Emily Urban , Richard Ian Anstruther , and Timothy E. Heinlein ,

San Francisco, California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

REMAND ORDER

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

dismissed the appellant’s individual right of action (IRA) appeal for lack of

jurisdiction. For the reasons discussed below, we GRANT the petition for review,

VACATE the initial decision, and REMAND the case to the Western Regional

Office for further adjudication in accordance with this Remand Order.

1

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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).

2

BACKGROUND

The appellant was hired to a competitive service position as a GS-12

Legal Administrative Specialist with the Internal Revenue Service (IRS), effective

April 24, 2023, and in that role was responsible for examining estate and gift tax

returns for completeness and accuracy, and as needed, adjustment or potential

criminal referral. Initial Appeal File (IAF), Tab 1 at 13-15, Tab 42 at 98-101. The

Standard Form 50 documenting her appointment identified that her position was

subject to completion of a 1-year probationary period. IAF, Tab 1 at 14. By letter

dated March 4, 2024, the agency terminated the appellant during her probationary

period based on inappropriate conduct and failure to follow management

directives. IAF, Tab 42 at 21-24.

On May 19, 2024, the appellant filed the instant Board appeal and identified

the challenged action as her termination while serving in a probationary period and

attached a copy of her termination letter. IAF, Tab 1 at 2, 7-10. She requested a

hearing on her appeal. Id. at 1. The appellant also identified in Box 18 of her

appeal form that she was filing an IRA appeal and disclosed that she had filed her

complaint with the Office of Special Counsel (OSC) on February 19, 2024, and

received a close-out letter on March 15, 2024. Id. at 3. With her appeal, the

appellant provided copies of OSC’s close-out letter and her original complaint to

OSC. Id. at 6, 17-26. The administrative judge issued an order that apprised the

appellant of her burden of proving Board jurisdiction over her appeal as an IRA.

IAF, Tab 3. After the appellant filed numerous pleadings, IAF, Tabs 16-19, 21-34,

36-40, 43-62, 64-66, 68-70, 72, 74, 76-77, and the agency moved to dismiss the

appeal for lack of jurisdiction, IAF, Tabs 42, 71, the administrative judge issued an

initial decision based on the written record and without holding the appellant’s

requested hearing, dismissing the appeal for lack of jurisdiction, IAF, Tab 78,

Initial Decision (ID) at 1, 12.

The appellant has timely filed a petition for review of the initial decision and

a supplement to the petition for review. Petition for Review (PFR) File, Tabs 8-9.

3

The agency has filed a response in opposition to the petition for review, and the

appellant has filed a reply and included additional attachments. PFR File, Tabs 12,

17-18.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that she made protected whistleblowing

disclosures and the administrative judge erred by determining otherwise.

PFR File, Tab 8 at 8-20. She also argues that she requested to withdraw her Board

appeal eight or more times and the administrative judge erred by denying her

repeated requests. Id. at 6-7, 15-18.

The administrative judge properly denied the appellant’s requests to withdraw her

appeal.

The appellant argues on review that the administrative judge erred by

denying her repeated requests to withdraw her appeal, noting that she made

“8+ attempts to withdraw the case,” all of which were denied. PFR File, Tab 8 at 6

(citing IAF, Tabs 34, 64, 68-70, 72, 74). In the initial decision, the administrative

judge acknowledged and denied each of the requests to withdraw the appeal that the

appellant has identified, concluding that none of the requests were clear,

unequivocal, and final. ID at 2-3; IAF, Tabs 63, 67, 73. The appellant challenges

the administrative judge’s findings, arguing that her requests were clear and

unequivocal and so they should have been granted. PFR File, Tab 8 at 15-16.

As the administrative judge correctly observed, generally, an appellant’s

withdrawal of an appeal is an act of finality that removes the appeal from the

Board’s jurisdiction. Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010).

A voluntary withdrawal must be clear, decisive, and unequivocal, and in the

absence of unusual circumstances such as misinformation or new and material

evidence, the Board will not reinstate an appeal once it has been withdrawn. Id.;

Scarboro v. Department of the Navy, 55 M.S.P.R. 494, 496 (1992). Furthermore,

the voluntary withdrawal of an appeal generally precludes an appellant from filing

4

a subsequent appeal based on the same cause of action. See Lapedis v. Department

of Health and Human Services, 47 M.S.P.R. 337, 342, aff’d, 949 F.2d 403 (Fed. Cir.

1991) (Table).

We agree with the administrative judge that none of the appellant’s

withdrawal requests were clear, decisive, and unequivocal. For one of the

pleadings, although titled “withdrawal of appeal,” the language of the pleading

itself contained no withdrawal request or acknowledgement of the finality of

withdrawal. IAF, Tab 64. Some of the requests merely identified that the appellant

had already withdrawn the appeal or presumed such withdrawal without making

any such clear request to that effect. IAF, Tabs 68-69, 72. In other pleadings, the

appellant identified her request to withdraw the appeal as a request for “dismissal

without prejudice,” and indicated a desire to seek further review of the challenged

actions. IAF, Tabs 38, 74, 76. Finally, in one pleading, the appellant sought a

4-month stay of her appeal citing medical reasons, or alternatively, to dismiss her

appeal “without prejudice,” or barring that, to dismiss the appeal “completely.”

IAF, Tab 21. Using such conditional language and predicating her dismissal

request on the belief that she could refile her appeal suggests that the appellant did

not understand that withdrawal is an act of finality. See Rose v. U.S. Postal Service,

106 M.S.P.R. 611, ¶ 12 (2007) (finding that the appellant’s request to withdraw was

not unequivocal when he based his withdrawal on certain conditions); Brown v.

Department of the Navy, 102 M.S.P.R. 377, ¶ 10 (2006) (finding that a dismissal

with prejudice based on a withdrawal of an appeal is generally considered a final

decision, and relitigating such an appeal is barred by res judicata). Accordingly,

we conclude that the administrative judge did not err by denying the appellant’s

requests to withdraw her appeal.

Legal standard for an IRA appeal

To establish Board jurisdiction over an IRA appeal, an appellant must

exhaust her administrative remedies before OSC and make nonfrivolous allegations

that: (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or

5

engaged in protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was

a contributing factor in the agency’s decision to take or fail to take a personnel

action as defined by 5 U.S.C. § 2302(a)(2)(A). See Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶¶ 5, 10, 14. An appellant must prove by

preponderant evidence that she exhausted her administrative remedies by seeking

corrective action from OSC before seeking corrective action from the Board.

5 U.S.C. § 1214(a)(3); Chambers, 2022 MSPB 8, ¶¶ 10-11; 5 C.F.R.

§ 1201.57(c)(1).

The substantive requirements of exhaustion are met when an appellant has

provided OSC with sufficient basis to pursue an investigation. Chambers,

2022 MSPB 8, ¶ 10. “[T]he Board’s jurisdiction . . . is limited . . . to those issues

that were previously raised with OSC.” Id., ¶ 10 (quoting Miller v. Merit Systems

Protection Board, 626 F. App’x 261, 267 (Fed. Cir. 2015)). However, an appellant

may give a more detailed account of her whistleblowing activities before the Board

than she did to OSC. Id., ¶ 10 (citing Briley v. National Archives and Records

Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001)). Nevertheless, the test of

the sufficiency of an appellant’s charge of reprisal for whistleblowing to OSC is the

statement that she makes in the complaint requesting corrective action, not her post

hoc characterization of those statements. Ellison v. Merit Systems Protection

Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993); see Miller v. Federal Deposit Insurance

Corporation, 122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F. App’x 261. An appellant

may demonstrate exhaustion through her initial OSC complaint or correspondence

with OSC. Chambers, 2022 MSPB 8, ¶ 11. Alternatively, exhaustion may be

proven through other sufficiently reliable evidence, such as an affidavit or

declaration attesting that the appellant raised with OSC the substance of the facts in

her Board appeal or an unrebutted certified statement to this effect on an

appellant’s initial appeal form. Id., ¶ 11 & n.7 (citing Delgado v. Merit Systems

Protection Board, 880 F.3d 913, 927 (7th Cir. 2016) (explaining that exhaustion

6

may be demonstrated through “sufficiently reliable evidence . . . such as the OSC’s

response letters, an affidavit or declaration attesting to the [OSC] complaint’s

substance, or a copy of [the] . . . complaint”), as amended on denial of reh’g and

reh’g en banc (7th Cir. 2018)).

We remand the appeal for further development of the record and for additional

jurisdictional findings.

In dismissing the appeal for lack of jurisdiction, the administrative judge

concluded that the appellant had failed to nonfrivolously allege that she made a

protected disclosure or engaged in a protected activity under 5 U.S.C.

§ 2302(b)(8) or (9)(A)(i), (B), (C), or (D). ID at 1-12. The administrative judge

observed that the appellant’s OSC complaint identified her alleged protected

activities as “Complaints to management, Antiharassment, eeo regarding

management and employee activity.” ID at 5 (quoting IAF, Tab 1 at 21) (grammar,

capitalization, and punctuation as in original). Focusing in on the appellant’s claim

of retaliation for her equal employment opportunity (EEO) activity, the

administrative judge observed that OSC’s close-out letter also referenced this

allegation as one of the matters it investigated in reviewing her complaint. ID at 6

(citing IAF, Tab 1 at 6). Continuing, the administrative judge noted that the record

included evidence that the appellant had filed two EEO complaints, on October 23,

2023, and March 26, 2024, respectively, that were processed jointly, and that in the

complaints, the appellant alleged that the agency had engaged in discrimination and

reprisal based on the appellant’s age, religion, disability, sex, race, parental status,

and prior EEO activity when it subjected her to a number of actions during the

period from April 2023 through her March 5, 2024 termination. ID at 7; IAF,

Tab 42 at 14-20.

Citing the Board’s decision in Bishop v. Department of Agriculture,

2022 MSPB 28, the administrative judge noted that because the appellant’s EEO

complaints concerned allegations of discrimination and reprisal rather than

remedying a violation of section 2302(b)(8), her allegation of reprisal for her prior

7

EEO activity fell within the scope of 5 U.S.C. § 2302(b)(9)(A)(ii), and therefore

was not within the scope of an IRA appeal. ID at 10-11 (citing Bishop, 2022 MSPB

28, ¶¶ 15-16 (explaining that the Board lacks jurisdiction in an IRA appeal over

claims of reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)).

Following the issuance of the initial decision in this case, however, the

Board issued decisions in Reese v. Department of the Navy, 2025 MSPB 1, and

Holman v. Department of the Army, 2025 MSPB 2. In Reese, 2025 MSPB 1,

¶¶ 44-52, the Board held that disclosures concerning alleged violations of Title VII

may constitute protected activity under 5 U.S.C. § 2302(b)(9)(C) if made to an

agency “component responsible for internal investigation or review.” In Holman,

2025 MSPB 2, ¶¶ 12-13, the Board found for the first time that an agency’s EEO

office is such a component, and therefore that speaking with an EEO counselor and

filing an EEO complaint both are protected activities under 5 U.S.C.

§ 2302(b)(9)(C). This is true irrespective of the subject matter of the EEO activity.

Id., ¶ 12; see Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8 (finding that,

under the language of 5 U.S.C. § 2302(b)(9)(C), disclosures to an agency’s

Inspector General or to the Special Counsel are protected regardless of their

content).

As previously noted, the appellant identified as one of her protected

activities in her original OSC complaint “Complaints to . . . eeo,” and OSC

identified the same in its close out letter. IAF, Tab 1 at 6, 21. Thus, consistent with

Reese and Holman, the appellant’s claim that she engaged in protected activity

8

based on her October 23, 2023 EEO complaint could constitute protected activity

under 5 U.S.C. § 2302(b)(9)(C). 2

The Board requires its administrative judges to apprise appellants of the

applicable burdens of proving a particular affirmative defense, as well as the kind

of evidence required to meet those burdens, and absent such notice, the Board

typically remands the appeal so the administrative judge can afford such notice and

an opportunity to submit evidence and argument under the proper standard. Alarid

v. Department of the Army, 122 M.S.P.R. 600, ¶ 7 (2015); Erkins v. U.S. Postal

Service, 108 M.S.P.R. 367, ¶ 8 (2008). Because the administrative judge did not

have the benefit of Reese and Holman, he did not provide the parties with notice of

their respective burdens of proof regarding the appellant’s potential whistleblower

retaliation claim under 5 U.S.C. § 2302(b)(9)(C), and so the appeal must be

remanded to provide such notice.

The other element of an appellant’s jurisdictional burden in an IRA appeal

requires that she nonfrivolously allege that her disclosure or protected activity was

a contributing factor in the agency’s decision to take or fail to take a personnel

action as defined by 5 U.S.C. § 2302(a)(2)(A). See Chambers, 2022 MSPB 8, ¶ 14.

In her OSC complaint, the appellant identified the following as her allegedly

retaliatory personnel actions:

Failure to provide required performance evaluation provided to

others similarly situated

Pattern of workplace mobbing, coordinated harassment

Physical intimidation/assault

Verbal assaults

2

Because the appellant’s second EEO complaint was filed on March 26, 2024, after she

had already been terminated by the agency, that complaint could not have been a

contributing factor in the agency’s decision to take any of her alleged personnel actions

and therefore could not support a finding of jurisdiction over her IRA appeal. See Davis

v. Department of Defense, 106 M.S.P.R. 560, ¶ 12 (2007) (“Because the personnel actions

complained about by the appellant predate his protected disclosures, there is no way that

the disclosures could have in any way contributed to the personnel actions complained

about by the appellant.”), aff’d, 278 F. App’x 1009 (Fed. Cir. 2008).

9

IAF, Tab 1 at 21. OSC’s close-out letter identified the same claims. Id. at 6.

Because the administrative judge determined that the appellant had failed to

nonfrivolously allege that she made any protected disclosures or engaged in any

protected activities, he did not make any findings regarding her personnel actions. 3

ID at 5-6.

A decision concerning a performance appraisal may constitute a covered

personnel action for purposes of IRA jurisdiction. 5 U.S.C. § 2302(a)(2)(A)(viii);

Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 16 (2013) (clarifying that a

“performance appraisal” constitutes a personnel action for the purposes of an IRA

appeal, irrespective of whether the appraisal was tangibly lower than the prior

year). In one of her responses to the IRA jurisdiction order, the appellant provided

some additional context for this claim, identifying that she was not provided with a

performance evaluation during the entirety of her 11-month tenure with the agency,

which she alleges was required. IAF, Tab 33 at 13-14 (“No termination allowed

without providing mandatory performance evaluations. Zero provided in

11 months . . . . failure to provide any mandated evaluation of Appellant in

11 months (0/6 provided)”) (grammar, capitalization, and punctuation as in

original).

Additionally, the definition of “personnel action” also includes

“any . . . significant change in duties, responsibilities, or working conditions.”

5 U.S.C. § 2302(a)(2)(A)(xii). In Skarada v. Department of Veterans Affairs,

2022 MSPB 17, ¶¶ 15-16, the Board held that although “significant change” should

be interpreted broadly to include harassment and discrimination that could have a

3

The administrative judge did find, however, that the appellant had not shown that she

exhausted her claim of a retaliatory termination, noting that her termination occurred

after she filed her OSC complaint, that there was little evidence to adequately support a

conclusion that she amended her complaint to include her termination as one of the issues

to be investigated, and that there was no mention of her termination in OSC’s March 15,

2024 close-out letter. ID at 6. Because we are remanding the appeal for the appellant to

supplement the record on exhaustion, the appellant may also supplement the record with

any evidence that she exhausted this claim with OSC.

10

chilling effect on whistleblowing or otherwise undermine the merit system, only

agency actions that, individually or collectively, have practical consequences for

an appellant constitute a personnel action covered by section 2302(a)(2)(A)(xii).

To this end, the agency actions must have practical and significant effects on the

overall nature and quality of the appellant’s working conditions, duties, or

responsibilities. Id. A number of agency actions may amount to a covered

“significant change” personnel action collectively, even if they are not covered

personnel actions individually. Skarada, 2022 MSPB 17, ¶ 18.

In identifying the appellant’s burden of proving Board jurisdiction over her

IRA appeal, the administrative judge did not identify the Board’s decision in

Skarada or provide the appellant with notice on how to make a nonfrivolous

allegation that the actions she identified in her OSC complaint may have

collectively amounted to a personnel action. As the administrative judge observed,

after filing her initial appeal, the appellant provided numerous pleadings in

response to the administrative judge’s initial IRA jurisdiction order, and those

pleadings addressed a range of issues. ID at 2; IAF, Tabs 16-19, 21-34, 36-40,

43-62, 64-66, 68-70, 72, 74, 76-77. In his original IRA jurisdiction order, the

administrative judge instructed the appellant to provide specific information

regarding her disclosures or activities and alleged personnel actions, including

by submitting her original OSC complaint and any amendments thereto. IAF,

Tab 3 at 7-8. The appellant’s numerous pleadings did not follow the format

required by the administrative judge and did not indicate whether the appellant had

amended her complaint with OSC or provide evidence of any communications with

OSC.

Nevertheless, in response to the appellant’s pleadings, the administrative

judge did not issue a supplemental jurisdiction order, conduct a status conference to

clarify expectations or provide the appellant with additional guidance regarding her

burden of proof, or issue a show cause order informing the appellant that her IRA

appeal may be dismissed for lack of jurisdiction absent additional evidence that she

11

met her jurisdictional burden. Indeed, there were no additional substantive orders

issued addressing the question of jurisdiction over the appeal following the initial

IRA jurisdiction order; the only additional orders issued before the issuance of the

initial decision addressed the appellant’s repeated requests to dismiss the appeal,

with the final order denying the dismissal request and setting the close of record

date on the issue of jurisdiction, without more. IAF, Tabs 63, 67, 73. In the

subsequent initial decision, the administrative judge acknowledged the appellant’s

claims alleging additional retaliatory actions by the agency but determined that

there was “little in the record to suggest” that the appellant amended her original

OSC complaint to exhaust such claims and did not otherwise make specific findings

addressing which, if any, allegedly retaliatory personnel actions the appellant had

exhausted with OSC. ID at 5-6.

As previously noted, the U.S. Court of Appeals for the Federal Circuit and

the Board have held that an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue, and absent such notice the

Board will remand the appeal to provide the appellant with notice of her

jurisdictional burden and an opportunity to establish jurisdiction. Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Smyth v.

Department of the Interior, 85 M.S.P.R. 552, ¶ 5 (2000); see Roach v. Department

of the Army, 86 M.S.P.R. 4, ¶¶ 14-15, 19 (2000) (remanding an IRA appeal because

the administrative judge failed to inform the appellant of the Board’s jurisdictional

requirements prior to dismissing the appeal for lack of jurisdiction). The record is

insufficiently developed to determine whether the appellant proved exhaustion and

nonfrivolously alleged that she was subjected to a covered personnel action in

retaliation for a protected disclosure or activity. For example, the record is unclear

regarding the basis for the appellant’s allegations of a “[p]attern of workplace

mobbing, coordinated harassment,” [p]hysical intimidation/assault,” and “[v]erbal

assaults.” IAF, Tab 1 at 6, 21; cf. Skarada, 2022 MSPB 17, ¶ 18 (concluding that

the appellant’s allegations that agency personnel harassed him, subjected him to a

12

hostile work environment, subjected him to multiple investigations, accused him of

“fabricating data” and of a Privacy Act violation, refused his request for a review of

his position for possible upgrade, yelled at him, and failed to provide him the

support and guidance needed to successfully perform his duties amounted to a

nonfrivolous allegation of a significant change in his working conditions).

Additionally, concerning the contributing factor element of the appellant’s

jurisdictional burden, on her initial appeal form the appellant identified that her

first-level supervisor who issued the termination decision was aware of her prior

EEO activity. IAF, Tab 1 at 2, Tab 42 at 24. The record also contains copies of

emails the appellant sent to her second-level supervisor indicating that he had

spoken with the EEO counselor about her EEO complaint. IAF, Tab 33 at 10,

Tab 42 at 25. What is unclear based on the record, however, is when any of the

allegedly retaliatory personnel actions occurred, and whether these agency officials

who were aware of the appellant’s EEO activity were the same officials responsible

for the allegedly retaliatory personnel actions.

Based on the foregoing, we remand the appeal for the administrative judge to

provide the appellant with jurisdictional notice regarding her potential

whistleblower retaliation claim under 5 U.S.C. § 2302(b)(9)(C) in connection with

her EEO complaint, and on remand the administrative judge should provide the

appellant with an opportunity to supplement the record regarding her allegedly

retaliatory personnel actions, including by providing any additional

correspondence she may have had with OSC regarding her claims or any

amendments she made to her OSC complaint. See Covarrubias v. Social Security

Administration, 113 M.S.P.R. 583, ¶ 19 (acknowledging that it was not possible to

rule out the possibility that the appellant made additional allegations before OSC

that were not identified in the initial complaint, based on the existing record, and

providing the appellant with the opportunity to submit copies of any additional

correspondences she may have had with OSC on remand), overruled on other

13

grounds by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5

(2014).

On remand the administrative judge should provide the appellant with notice of her

potential regulatory right to challenge her termination with the Board.

As previously noted, with her appeal form, the appellant provided a copy of

her probationary termination notice. IAF, Tab 1 at 21-24. Additionally, on her

initial appeal form the appellant identified that she had filed a whistleblowing

complaint with OSC, provided a copy of her OSC complaint as an attachment, and

referenced allegations that her termination was in retaliation for protected

whistleblowing activity. IAF, Tab 1 at 2-3, 6. Despite this, there is at least some

indication in the record that the appellant may not have intended to pursue her

appeal as an IRA appeal. For example, in one of her requests to withdraw her

appeal, in apparently addressing either the agency’s response to one of her

pleadings or one of the administrative judge’s orders denying her prior requests to

withdraw, the appellant stated that “[a]s for the ‘underlying merits,’ as Appellant

stated this is not a whistleblower matter and Appellant has not proven – nor

attempted to prove – such.” IAF, Tab 64 at 4. Additionally, in one of her

pleadings, the appellant appears to suggest that her termination may have been due

to prohibited considerations under sections 315.805 and 315.806. 4 IAF, Tab 33

at 14 (“Agency decision based on unlawful discrimination, including perceived

disability, age, and marital status, political affiliation, and retaliation for prior

equal employment opportunity (EEO) activity beginning May 2023 . . . .”)

(emphasis added); see 5 C.F.R. § 315.806 (rescinded by 90 Fed. Reg. 26729)

(stating that an individual serving in a probationary period “may appeal . . . a

4

The regulatory right of an employee in the competitive service to appeal a termination to

the Board on these grounds was rendered inoperative and without effect for actions taken

on or after April 24, 2025, and has now been formally rescinded as directed by Executive

Order 14284. See Strengthening Probationary Periods in the Federal Service ,

90 Fed. Reg. 26727 (June 24, 2025). However, the appellant was terminated before

April 24, 2025, so the regulations in effect at the time remain applicable. IAF, Tab 42

at 21.

14

termination not required by statute which he or she alleges was based on partisan

political reasons or marital status”). Neither the agency’s jurisdictional pleading

nor the initial decision included any additional information regarding this potential

claim. See Parker v. Department of Housing and Urban Development ,

106 M.S.P.R. 329, ¶ 8 (2007) (explaining that the agency’s pleading or an initial

decision can cure defective jurisdictional notice).

Under the regulations in effect at the time, although a probationary employee

had no statutory right to appeal a removal to the Board, she did have a regulatory

right of appeal if she made a nonfrivolous allegation that she was terminated

because of discrimination based on marital status or for partisan political reasons,

or because of conditions arising before appointment to the position in question.

Hunter v. Department of Justice, 73 M.S.P.R. 290, 293 (1997); 5 C.F.R.

§§ 315.805-.806 (2024) The only order on jurisdiction in the record provided the

appellant with notice of the requirements for establishing jurisdiction over her

appeal as an IRA, and none of the other orders identified any potential regulatory

right to appeal her termination or informed the appellant of her burden of proof to

establish Board jurisdiction under 5 C.F.R. §§ 315.805 and 315.806. IAF, Tab 3.

As previously noted, an appellant must receive explicit information on what is

required to establish an appealable jurisdictional issue. Burgess, 758 F.2d

at 643-44. Accordingly, on remand, the administrative judge should also provide

the appellant with notice of her potential regulatory right to challenge her

termination under 5 C.F.R. §§ 315.805 and 315.806 because of discrimination

based on marital status or for partisan political reasons, or because she was

terminated for pre-appointment reasons. If the appellant elects to challenge her

termination on that basis, that request should be separately docketed as a new

appeal.

In addition to establishing jurisdiction over this appeal under

5 C.F.R. §§ 315.805 and 315.806, the appellant must establish that such an appeal

is timely. An appeal of an otherwise appealable action must be filed within 30 days

15

of the effective date of the action. 5 C.F.R. § 1201.22(b). Here, the appellant was

terminated effective March 5, 2024, but she did not file her Board appeal until

May 19, 2024. IAF, Tab 1 at 1, Tab 42 at 21-24. On remand, to the extent the

appellant indicates an intention to pursue her appeal on this basis after receiving

notice of the jurisdictional requirements for such an appeal, the appellant must

show that her appeal was timely filed or that good cause exists to excuse any

untimeliness. To establish good cause for the untimely filing of an appeal, a party

must show that she exercised due diligence or ordinary prudence under the

particular circumstances of the case. Alonzo v. Department of the Air Force ,

4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good

cause, the Board will consider the length of the delay, the reasonableness of her

excuse and her showing of due diligence, whether she is proceeding pro se, and

whether she has presented evidence of the existence of circumstances beyond her

control that affected her ability to comply with the time limits or of unavoidable

casualty or misfortune which similarly shows a causal relationship to her inability

to timely file her petition. Moorman v. Department of the Army, 68 M.S.P.R. 60,

62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

16

ORDER 5

For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

5

On review, the appellant has requested that her appeal be recaptioned as “John Doe” and

that she be permitted to proceed pseudonymously in her appeal. PFR File, Tab 8 at 6-9 &

n.4, 13, 21; PFR File, Tab 10. We deny that request. See Pinegar v. Federal Election

Commission, 105 M.S.P.R. 677, ¶ 10 (2007) (identifying the factors the Board considers

in determining whether to grant a request for anonymity); Ortiz v. Department of Justice,

103 M.S.P.R. 621, ¶ 10 (2006) (same). On remand, the appellant may request that the

administrative judge limit the submission of information to the record that the appellant

believes to be harmful.