Opinion

Cynthia Almond v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 7, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CYNTHIA ALMOND, DOCKET NUMBER

Appellant, AT-1221-25-1858-W-1

DEPARTMENT OF DEFENSE, DATE: May 7, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Benjamin Reid , Macon, Georgia, for the appellant.

Owen J. Hoover , New Cumberland, Pennsylvania, 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 initial decision, which

dismissed her individual right of action (IRA) appeal without prejudice to

refiling. 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 on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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). We FORWARD this matter to the Atlanta

Regional Office for docketing and adjudication as a refiled appeal.

On March 7, 2025, the appellant filed a whistleblower reprisal complaint

with the Office of Special Counsel (OSC), which OSC closed without seeking

corrective action. Initial Appeal File (IAF), Tab 1 at 3, 11. The appellant timely

filed the instant IRA appeal alleging retaliation for whistleblowing. Id. at 2.

Because the appellant alleged that an equal employment opportunity (EEO)

complaint she filed with the agency’s EEO office was a contributing factor in the

agency’s decision to take personnel actions against her, the administrative judge

notified the parties of her intent to dismiss the appeal without prejudice to

refiling, pending the Board’s reconsideration decision or the U.S. Court of

Appeals for the D.C. Circuit’s decision in Reese v. Department of the Navy,

2025 MSPB 1. IAF, Tab 8, Tab 9 at 4. After the appellant responded, the

administrative judge issued an initial decision dismissing the appeal for 6 months

without prejudice to refiling. IAF, Tab 10, Initial Decision (ID) at 1, 3. She

stated that the Board would automatically refile the appeal on or around

January 29, 2026. ID at 2.

The appellant has filed a petition for review arguing that the administrative

judge abused her discretion in dismissing the appeal because it delayed the

adjudication of her appeal. Petition for Review (PFR) File, Tab 1 at 4, 7. She

also argues the merits of her appeal. Id. at 5-6. The agency has responded, and

the appellant has replied. PFR File, Tabs 3-4.

An administrative judge has wide discretion to dismiss an appeal without

prejudice in the interests of fairness, due process, and administrative efficiency,

and she may order such a dismissal at the request of one or both parties, or to

avoid a lengthy or indefinite continuance. Thomas v. Department of the Treasury,

115 M.S.P.R. 224, ¶ 7 (2010). Here, the appellant alleged that she disclosed to

the agency’s EEO office that agency management violated Federal merit

principles and agency promotion regulations and engaged in substantial waste,

gross mismanagement, and an abuse of authority, and that these disclosures

constituted protected activity under 5 U.S.C. § 2302(b)(9)(C). IAF, Tab 9 at 5-6.

She further alleged that she suffered retaliatory personnel actions as a result of

that activity. Id. at 6. 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 a covered entity. In Holman v.

Department of the Army, 2025 MSPB 2, ¶¶ 12-13, the Board expanded that

holding and held that communications with an agency’s EEO office, whether

formal or informal, constitute protected activity within the definition 5 U.S.C.

§ 2302(b)(9)(C). Thus, we agree with the administrative judge that Reese and

Holman apply to the appellant’s claim. ID at 2. As the administrative judge

correctly explained, at the time she issued the initial decision, there was a

reconsideration request pending before the Board and a request for judicial

review pending before the D.C. Circuit in Reese, and the outcome of those cases

could have impacted the adjudication of the appellant’s claim. ID at 2.

Therefore, we discern no abuse of discretion in the administrative judge’s

decision to dismiss the appeal without prejudice to refiling on that basis. 2 The

After the initial decision was issued in this appeal, the employee in Reese withdrew

her petition for judicial review before the D.C. Circuit, the Member issued a lack of

quorum order, and the original Reese decision became the Board’s final decision, which

the Government did not appeal further to the U.S. Court of Appeals for the Federal

appellant’s remaining arguments as to the merits of her appeal are irrelevant to

the issue of whether the administrative judge erred in dismissing the appeal

without prejudice to refiling. See Gingery v. Department of the Treasury,

111 M.S.P.R. 134, ¶ 11 (2009).

Because the 6-month dismissal period has now elapsed and the appeal has

not been refiled, we FORWARD the appeal to the Atlanta Regional Office for

docketing and adjudication as a refiled appeal.

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

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

should contact that forum for more information.

Circuit. Reese v. Department of the Navy, No. 25-1102, 2025 WL 2793121 (D.C. Cir.

Sep. 30, 2025); Reese v. Department of the Navy, MSPB Docket No. DC-1221-21-0203-

R-1, Order at 1 (Nov. 19, 2025). Thus, the basis for the dismissal without prejudice has

since been resolved.

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.

(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).

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.

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