Chandrika Jemison v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHANDRIKA JEMISON, DOCKET NUMBER

Appellant, AT-1221-24-0568-W-1

v.

DEPARTMENT OF THE ARMY, DATE: May 14, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chandrika Jemison , Oxford, Alabama, pro se.

George R. Worman, Jr. , Esquire, and Justin Gifford , Esquire,

Anniston, Alabama, 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 for lack of jurisdiction.

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. Except as expressly MODIFIED to find that the appellant’s vague

claims of agency wrongdoing do not constitute a nonfrivolous allegation of

jurisdiction, we AFFIRM the initial decision.

BACKGROUND

The appellant is a GS-7 Supply Technician at the agency’s Anniston Army

Depot. Initial Appeal File (IAF), Tab 1 at 1. On March 12, 2024, the appellant

filed an Office of Special Counsel (OSC) complaint, OSC File

No. MA-24-001693, alleging that the agency violated her veterans’ preference

rights and retaliated against her for disclosing that the agency violated “rules and

regulations.” IAF, Tab 10 at 4-13. OSC issued the appellant two preliminary

determination letters, dated April 12 and May 2, 2024, advising the appellant that

it could not conclude that her allegations evidenced violations of 5 U.S.C.

§§ 2302(b)(4), (b)(9)(A)(ii), or (b)(11). IAF, Tab 2 at 2-3, Tab 3 at 2-4.

Subsequently, on May 13, 2024, the appellant filed this IRA appeal, and the

administrative judge issued a jurisdictional order, setting forth the applicable

standard for establishing jurisdiction over an IRA appeal and providing the

appellant with an opportunity to present evidence or argument establishing Board

jurisdiction. IAF, Tabs 1, 5. The appellant responded to the jurisdictional order,

alleging that, in retaliation for disclosing that the agency was not “following

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protocols” and was engaging in “unauthorized behaviors,” the agency issued her a

memorandum of instruction. 2 IAF, Tab 7 at 4. Because the appellant also

referenced a second OSC complaint in her jurisdictional response, the

administrative judge issued an order requesting additional information about her

whistleblower reprisal claims. IAF, Tab 8. The appellant responded to the order,

submitting, among other things, a letter from OSC referencing a second

complaint, OSC File No. MA-24-002407. IAF, Tab 11 at 4.

Without holding a hearing, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction. IAF, Tab 16, Initial

Decision (ID). First, the administrative judge found that the appellant alleged in

OSC File No. MA-24-001693 that the agency violated her veterans’ preference

rights, which was not within the Board’s IRA jurisdiction. ID at 3-4. Next,

regarding OSC File No. MA-24-002407, the administrative judge found that the

appellant did not prove she exhausted her administrative remedies because the

appellant had not submitted a close-out letter from OSC and 120 days had not yet

elapsed from the filing date. ID at 4.

The appellant has filed a petition for review explaining that, in OSC File

No. MA-24-001693, she alleged that the agency retaliated against her by issuing

her a memorandum of instruction “to coerce fraudulent actions to documentation

which violates rules and regulations,” while in OSC File No. MA-24-002407, she

alleged that the agency obstructed her ability to compete for positions and

violated veterans’ preference rights. Petition for Review (PFR) File, Tab 1

at 4-5. The appellant also attaches letters from OSC dated after the initial

decision was issued, specifically, a third preliminary determination letter in OSC

File No. MA-24-001693 analyzing a possible violation of 5 U.S.C. § 2302(b)(8)

and a close-out letter in OSC File No. MA-24-002407. Id. at 10-14. The agency

2

Although the appellant’s response to the jurisdictional order was untimely filed, the

administrative judge nevertheless considered it. IAF, Tab 16, Initial Decision at 2-4.

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filed a response to the petition for review, and the appellant filed a reply. 3 PFR

File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

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

show that she has exhausted 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 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 under 5 U.S.C. § 2302(a). McCray v. Department of

the Army, 2023 MSPB 10, ¶ 11; see Smolinski v. Merit Systems Protection Board ,

23 F.4th 1345, 1350 (Fed. Cir. 2022). A protected disclosure is one which the

employee “reasonably believes evidences: (i) any violation of any law, rule, or

regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of

3

The appellant also filed a motion to disqualify the agency counsel, alleging that

agency attorneys from another duty location were involved in her case without her

knowledge, and this involvement raises ethical concerns and creates conflicts of

interest. PFR File, Tab 5 at 4. The appellant has also filed a motion for leave

requesting to amend her appeal to “introduce new evidence, new legal interpretations,

and update [her] argument with case laws and regulations, which governs the conduct of

Army lawyers and jurisdictions.” PFR File, Tab 8 at 4. Generally, a party may choose

any representative and other parties may challenge that designation on the ground that it

“involves a conflict of interests or a conflict of position.” 5 C.F.R. § 1201.31(b).

Besides her conclusory assertion, the appellant has not established that the agency’s

conduct raises ethical issues or that its choice of representative creates a conflict of

interest or position. There is generally no issue with an agency assigning an attorney

from a duty station other than that of the appellant’s to represent the agency before the

Board. Additionally, the appellant has not explained how arguments related to the

agency’s selection of representatives impact the outcome of this appeal. Accordingly,

we deny the appellant’s motion to disqualify and her motion for leave related to the

same. We lastly note that the appellant has filed one additional motion, this time

seeking permission to submit new evidence regarding the agency’s motives. PFR File,

Tab 11. This motion is denied because, inter alia, the agency’s motives have little

bearing on our disposition in this appeal.

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authority, or a substantial and specific danger to public health or safety.”

5 U.S.C. § 2302(b)(8).

Although the appellant raised a claim of whistleblower reprisal, she did not

establish a nonfrivolous allegation of jurisdiction.

The administrative judge found that the Board lacked jurisdiction over this

appeal because the appellant alleged in OSC File No. MA-24-001693 that the

agency violated her veterans’ preference rights and otherwise obstructed her

ability to compete for positions, which is not within the Board’s IRA jurisdiction.

ID at 3-4. However, the appellant also alleged in OSC File No. MA-24-001693

that the agency issued her a memorandum of instruction in retaliation for

disclosing violations of “rules and regulations,” specifically, for disclosing that

the agency had directed her to make an approved purchase with a form that she

did not complete. IAF, Tab 7 at 19-23, Tab 10 at 8-10; PFR File, Tab 1 at 10-11.

Nevertheless, although the appellant raised a potential violation of 5 U.S.C.

§ 2302(b)(8) before OSC, we find that her allegations are too vague and

conclusory to constitute a nonfrivolous allegation of Board jurisdiction.

The decision regarding whether the appellant has made a nonfrivolous

allegation of jurisdiction entitling her to a hearing must be based on whether the

employee alleged sufficient facts, accepted as true, to state a claim that is

plausible on its face. Hessami v. Merit Systems Protection Board, 979 F.3d 1362,

1367, 1369 (Fed. Cir. 2020). Although the nonfrivolous standard is a low

threshold, the allegations nevertheless must be more than vague assertions of

wrongdoing. Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 6;

Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016).

After reviewing the appellant’s submissions, we are unable to determine

the nature of the alleged wrongdoing by the agency. The appellant claims that the

agency violated an unspecified law, rule, or regulation by directing her to make

an approved purchase with a form that was completed by an individual besides

the appellant. IAF, Tab 7 at 19-23. However, the appellant has not provided any

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further information detailing how the agency’s actions constituted a violation of

law, rule, or regulation, instead merely concluding that the agency was “not

following protocols,” or that it violated rules and regulations. 4 Id. at 4; IAF,

Tab 10 at 8; PFR File, Tab 1 at 4-5. These pro forma and unsupported allegations

of wrongdoing, without more, do not constitute a nonfrivolous allegation of

jurisdiction. See El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015)

(stating that vague, conclusory, unsupported, and pro forma allegations of

wrongdoing do not meet the nonfrivolous pleading standard), aff’d, 663 F. App’x

921 (Fed. Cir. 2016).

Further, even if the appellant’s allegations were sufficiently detailed to

constitute a nonfrivolous allegation, the appellant has not alleged that the agency

took or threatened to take a personnel action covered under 5 U.S.C. § 2302(a).

The only personnel action cited by the appellant is a memorandum of instruction

directing her to process the approved purchase. IAF, Tab 7 at 4, 24-25, Tab 10

at 9; PFR File, Tab 1 at 4-5. However, a memorandum of instruction is not

considered a personnel action under 5 U.S.C. § 2302(a). Cf. Special Counsel v.

Spears, 75 M.S.P.R. 639, 670 (1997) (finding that an oral counseling is not a

covered personnel action because there is no memorialization of it in the

employee’s Official Personnel File). Furthermore, to the extent that the appellant

alleges that the memorandum constitutes a threatened personnel action because it

warned her that continued failure to follow written instructions “may be grounds

for disciplinary measures, up to and including removal or termination,” such

language is conditional in nature and constitutes a mere reminder that future

conduct might result in disciplinary action rather than a specific threat of future

4

While an appellant need not provide a legal citation or title of the specific law, rule, or

regulation that the agency purportedly violated, the provision must be identifiable.

Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001); Ayers v.

Department of the Army, 123 M.S.P.R. 11, ¶ 24 (2015). The appellant has not identified

a law, rule, or regulation and we are unaware of a general provision that would preclude

one employee from preparing a purchase form for another employee’s action.

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discipline. IAF, Tab 7 at 25, Tab 10 at 9; cf. Campo v. Department of the Army,

93 M.S.P.R. 1, ¶¶ 7-8 (2002) (finding that a counseling memorandum constituted

a threatened personnel action because it warned of specific future charges and

discipline if the behavior continued); see Koch v. Securities and Exchange

Commission, 48 F. App’x 778, 787 (Fed. Cir. 2002) (explaining that general

statements regarding possible adverse consequences of failing to follow agency

directives or to otherwise meet expectations do not necessarily constitute

actionable threatened personnel actions). Accordingly, the appellant did not

establish a nonfrivolous allegation that the agency took or threatened to take a

personnel action covered under 5 U.S.C. § 2302(a).

The appellant has not otherwise established jurisdiction over this appeal.

In both OSC File Nos. MA-24-001693 and MA-24-002407, the appellant

claimed that the agency violated her veterans’ preference rights and obstructed

her ability to compete for positions in violation of 5 U.S.C. § 2302(b)(4). IAF,

Tab 10 at 7-8; PFR File, Tab 1 at 5. As the administrative judge correctly found,

these claims are outside the scope of an IRA appeal. ID at 3-4; see McCray,

2023 MSPB 10, ¶ 11 (setting forth the jurisdictional standard for an IRA appeal) .

Therefore, these claims do not establish Board jurisdiction over the appellant’s

IRA appeal. 5

5

Although the Board has jurisdiction over alleged violations of veterans’ preference

rights under the Veterans Employment Opportunities Act of 1998 (VEOA), it cannot

adjudicate such claims within the context of an IRA appeal. Compare McCray,

2023 MSPB 10, ¶ 11 (setting forth the jurisdictional standard in an IRA appeal), with

Slater v. U.S. Postal Service, 112 M.S.P.R. 28, ¶ 5 (2009) (setting forth the

jurisdictional standard in a VEOA appeal). The appellant has filed several VEOA

appeals with the Board, including MSPB Docket Nos. AT-3330-24-0326-I-1 and

AT-3330-24-0591-I-1, which have been adjudicated separately from this appeal.

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NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.

(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).

6

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.

9

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

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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

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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. 7 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:

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

7

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.

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

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

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

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.