The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THARWAT YOUSSIF, DOCKET NUMBER
Appellant, PH-3443-25-0802-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: June 22, 2026
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tharwat Youssif , Allentown, Pennsylvania, pro se.
Valerie Neris , Jose Calvo , and Joshua Norris Rose , Esquire, Washington,
D.C., 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 his appeal alleging a denial of a within -grade increase (WIGI) and
involuntary reassignment 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 or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 supplement the administrative judge’s analysis, we AFFIRM the
initial decision.
The appellant joined the agency as a Food Safety Inspector in January
2023. Initial Appeal File (IAF), Tab 1 at 2, Tab 7 at 8. In December 2024, the
agency reassigned him to a new duty station, contrary to the appellant’s wishes.
IAF, Tab 5 at 5. In January 2025, the appellant was scheduled to receive a WIGI,
but the agency delayed processing the same. IAF, Tab 1 at 2.
On March 5, 2025, the appellant filed this appeal, contesting the
reassignment and the delayed WIGI. IAF, Tabs 1, 2, 5. The appellant seemed to
assert that one or both matters were the product of reprisal for his equal
employment opportunity (EEO) activity and workplace violence complaints. IAF,
Tab 2 at 1, Tab 5 at 3. Just a couple of days after he filed this appeal, the agency
retroactively processed the appellant his WIGI. IAF, Tab 7 at 8.
After warning of the Board’s jurisdictional limitations, the administrative
judge dismissed the appeal. IAF, Tab 11, Initial Decision (ID). She reasoned
that the appellant did not present nonfrivolous allegations consistent with the
limited circumstances over which the Board has jurisdiction in cases of a denied
WIGI. ID at 4-5. She further reasoned that the appellant’s involuntary
reassignment was not appealable because it did not result in a reduction in pay or
grade. ID at 5-6.
3
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that the administrative judge erred in relying on the
absence of a reduction in pay or grade, because he did suffer a reduction in pay.
Id. The appellant also reasserts his claim of reprisal. Id.
The Board does not have jurisdiction over the appellant’s claims as an individual
right of action (IRA) appeal.
As mentioned previously, the appellant has alleged that he was retaliated
against for engaging in protected activities, such as EEO and workplace violence
complaints, in violation of 5 U.S.C. § 2302(b)(9). PFR File, Tab 1 at 4. The
administrative judge did not examine this argument because the appellant asserted
that he was not raising a whistleblower retaliation claim. ID at 5-6 (citing IAF,
Tab 8 at 6). We modify the initial decision to do so anyways.
In theory, the appellant’s EEO complaints and workplace violence
complaints might qualify as whistleblowing activities that are both protected
under 5 U.S.C. § 2302(b)(9)(C) 2 and cognizable in an IRA appeal. See Holman v.
Department of the Army, 2025 MSPB 2, ¶¶ 12-13. However, to establish Board
jurisdiction over an IRA appeal, including a claim under section 2302(b)(9)(C),
an appellant’s burden includes proving that he exhausted his administrative
remedies with the U.S. Office of Special Counsel (OSC) before seeking
corrective action with the Board. See Cooper v. Department of Veterans Affairs ,
2023 MSPB 24, ¶ 5 (citing 5 U.S.C. § 1214(a)(3)). Although the administrative
judge did not explain this limitation to the appellant, the agency did. IAF, Tab 7
at 5; see Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008)
(explaining that an agency’s pleadings can cure an administrative judge’s failure
to provide proper notice of an appellant’s jurisdictional burden). The agency
2
Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to take a
personnel action against an employee in reprisal for “cooperating with or disclosing
information to the Inspector General (or any other component responsible for internal
investigation or review) of an agency, or the Special Counsel, in accordance with
applicable provisions of law.” Reese v. Department of the Navy, 2025 MSPB 1, ¶ 36.
4
informed him that he needed to show that he timely exhausted his remedies with
OSC under 5 U.S.C. § 1214(a)(3) and 5 C.F.R. § 1209.2(b)(1) before the Board
can address a potential IRA appeal. Id. The appellant acknowledged this
information from the agency even though he disputed its accuracy. IAF, Tab 8
at 4.
The record shows that the appellant has not met this prerequisite to Board
jurisdiction in an IRA appeal. He has not proven that he exhausted his
administrative remedies with OSC. In his initial appeal form, the appellant wrote
“NOT APPLICABLE” next to both the date he filed with OSC and the date OSC
terminated its investigation of his claim. IAF, Tab 1 at 3. Furthermore, he
asserted that “[m]y claims are based on reprisal for EEO activity . . . and
therefore do not require OSC involvement.” IAF, Tab 8 at 6. Thus, we find that
the Board lacks jurisdiction over his claims as a potential IRA appeal.
The appellant has not otherwise established jurisdiction over the delayed WIGI or
his reassignment.
As the administrative judge correctly recognized, there are limited other
circumstances in which an appellant can establish jurisdiction over a denied
WIGI, none of which are present here. ID at 2-3. The appellant has not asserted
otherwise on review. Therefore, we affirm the initial decision in this regard.
Regarding the contested reassignment, the administrative judge correctly
recognized that this is not directly appealable under chapter 75 absent a reduction
in pay or grade. ID at 5 (citing Sazinski v. Department of Housing and Urban
Development, 73 M.S.P.R. 682, 685 (1997); Aliota v. Department of Veterans
Affairs, 60 M.S.P.R. 491, 495 (1994); Spicer v. Department of Defense,
59 M.S.P.R. 359, 362 (1993)) (emphasis omitted). However, as recognized by the
appellant, the administrative judge overlooked the fact that his pay was reduced
due to a change in his locality pay as he moved from one duty station to another.
PFR File, Tab 1 at 4; IAF, Tab 5 at 5. Nevertheless, this does not require a
different result.
5
Under longstanding Board precedent, an appellant has a chapter 75 right of
appeal to the Board from a reduction in pay. Campbell v. Department of Veterans
Affairs, 93 M.S.P.R. 70, ¶ 6 (2002) (citing 5 U.S.C. §§ 7512(4), 7513(d)).
However, “pay” is defined as “the rate of basic pay fixed by law or administrative
action for the position held by an employee.” Id. (quoting 5 U.S.C. § 7511(a)(4)).
For purposes of determining whether an employee has suffered a reduction in
pay, locality pay is not considered part of an employee’s basic pay. Id. We
therefore modify the initial decision to reflect that the Board does not have
jurisdiction over the appellant’s claim of involuntary reassignment due to a
reduction in pay because the reduction was due entirely to a change in locality
pay.
In conclusion, the appellant has not met his jurisdictional burden regarding
the delayed WIGI or his reassignment. Therefore, his appeal must be dismissed.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
6
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).
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.
7
(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:
8
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).
4
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.
9
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
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.