Petition for Writ of Certiorari — Mitzi Baker, Petitioner v. Social Security Administration

Supreme Court briefAug 6, 2025

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APPENDIX TABLE OF CONTENTS

Opinions and Orders

Opinion, U.S. Court of Appeals for the

Federal Circuit (March 10, 2025)....................... la

Final Order, U.S. Merit Systems

Protection Board (July 17, 2024)................. 8a

App.la

OPINION, U.S. COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

(MARCH 10, 2025)

NOTE: This disposition is nonprecedential.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

MITZI BAKER,

Petitioner,

SOCIAL SECURITY ADMINISTRATION,

Respondent.

No. 2024-2179

Petition for review of the Merit Systems Protection

Board in No. CH-1221-18-0412-W-1

Before: PROST, LINN, and REYNA, Circuit Judges.

PER CURIAM.

Ms. Mitzi Baker appeals pro se a final order of the

Merit Systems Protection Board, which denied Ms.

Baker’s petition for review and affirmed the admin

istrative judge’s initial decision. For the following

reasons, we affirm.

App.2a

BACKGROUND

Since 2010, Ms. Baker worked as a case manager

in the U.S. Social Security Administration (“SSA”).

SAppxl, SAppx20.1 During the time relevant to this

appeal, Ms. Jamie Barton was Ms. Baker’s immediate

supervisor. SAppx2.

On April 17, 2017, Ms. Baker filed an individual

right of action (“IRA”) with the Merit Systems Protec

tion Board (‘MSPB” or “Board”) alleging that the SSA

retaliated against her for her various protected dis

closures. SAppx2, SAppx20, (“April 2017 IRA Claim”).

While the April 2017 IRA Claim was pending, Ms.

Barton issued Ms. Baker’s 2017 annual performance

appraisal, which was based on four categories: “Inter

personal Skills,” “Participation,” “Demonstrates Job

Knowledge,” and “Achieves Business Results.” SAppx34.

For the former two categories, Ms. Baker received a

“3” and for the latter two, she received a “5.” Id. This

resulted in an overall “Summary Appraisal” of

“Successful Contribution.” Id. Ms. Baker received the

same individual ratings and overall summary appraisal

in her 2016 annual performance appraisal. SAppx44.

Ms. Baker then filed a complaint with the Office

of Special Counsel (“OSC”), arguing that her 2017

annual performance appraisal was retaliation for her

April 2017 IRA Claim, a “protected activity.”2 SAppx561 “SAppx” refers to the supplemental appendix accompanying

the appellee’s responding brief.

2 A “protected activity” refers to an activity protected under the

Whistleblower Protection Action (“WPA”), as amended by the

Whistleblower Protection Enhancement Act, from employer retali

ation, including an employee’s “exercise of any appeal, complaint,

or grievance right granted by any law, rule, or regulation . . . with

App.3a

75. No party disputes that Ms. Baker’s April 2017 IRA

Claim constituted a protected activity. See Appellant

Br. 10; Appellee Br. 4. After review, OSC determined

that Ms. Baker did not provide sufficient information

or evidence to establish retaliation. SAppx69, SAppx77.

OSC closed Ms. Baker’s file but informed her that she

may seek corrective action from the MSPB. SAppx77—

78.

On June 1, 2018, Ms. Baker filed the instant

appeal before the MSPB, arguing that her rating of

“3” for the participation category was retaliation for

her April 2017 IRA Claim. SAppx47—55. Ms. Baker

requested that the SSA take corrective action. SAppx21.

In the Board’s initial decision, the administrative

judge (“AJ”) assigned to Ms. Baker’s case denied her

request for corrective action. SAppxl. The AJ noted

that Ms. Baker failed to show by preponderant evi

dence that her protected activity was a contributing

factor in Ms. Barton’s decision to issue her a “3” for

the participation category. SAppxl, SAppx7. The AJ

credited Ms. Barton’s testimony that she was unaware

of Ms. Baker’s April 2017 IRA Claim at the time of

evaluating Ms. Baker’s performance. SAppx6—7.

Ms. Baker then filed a petition for review with the

full Board, which the Board denied. SAppx20, SAppx81—

90. The Board also affirmed the AJ’s initial decision,

expanding the AJ’s analysis in one limited respect.

regard to remedying a violation of paragraph (8)” of the statutory

provision. 5 U.S.C. § 2302(b)(9)(A). Paragraph 8 protects from

employer reprisal “any disclosure of information by an employee”

that she “reasonably believes evidences (i) any violation of any

law, rule, or regulation, or (ii) gross mismanagement, a gross

waste of funds, an abuse of authority, or a substantial and specific

danger to public health or safety.” Id. § 2302(b)(8)(A)(i)—(ii).

App.4a

SAppx20. The Board noted that the AJ only considered

the “knowledge/timing” test when determining whether

Ms. Baker carried her burden to prove retaliation.3

SAppx22. The Board, however, explained that if a

party fails to satisfy the knowledge/timing test, the

Board will consider other evidence, such as evidence

pertaining to the strength or weakness of the agency’s

reasons for taking the personnel action. Id. The Board

then considered additional evidence but still found no

reason to disturb the AJ’s decision. SAppx23. Finally,

the Board considered and rejected Ms. Baker’s various

other arguments, such as bias and improper venue.

SAppx27.

Ms. Baker appeals. We have jurisdiction pursuant

to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).

DISCUSSION

This court’s review of Board decisions is limited.

See Rickel v. Dep’t of Navy, 31 F.4th 1358, 1363 (Fed.

Cir. 2022). This court may only set aside the Board’s

decision if it was “(1) arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule,

or regulation having been followed; or (3) unsupported

by substantial evidence.” 5 U.S.C. § 7703(c). The

court reviews the Board’s legal conclusions de novo and

3 The knowledge/timing test refers to one way an individual can

establish that her protected activity was a contributing factor in

the agency’s adverse personnel action. See 5 U.S.C. § 1221(e)(1).

Under this test, a party must show that the official taking the

personnel action knew of the disclosure, and that the personnel

action occurred within a period of time such that a reasonable

person could conclude that the disclosure or activity was a

contributing factor. Id.

App.5a

its findings of fact for substantial evidence. See McIntosh

v. Dep’t of Def., 53 F.4th 630, 638 (Fed. Cir. 2022).

Ms. Baker raises two general arguments. First,

she argues that the Board failed to consider another

protected disclosure she made to OSC, aside from her

April 2017 IRA Claim, when deciding her retaliation

claim. Appellant Br. 9, 17-18. Second, Ms. Baker chal

lenges the Board’s finding that her April 2017 IRA

Claim was not a contributing factor in the agency’s

evaluation of her performance. Id. at 18-24. We

address each argument in turn.

Ms. Baker argues that the Board erred when it

did not consider that she “engaged in protected activity

by filing an EEO [Equal Employment Opportunity]

complaint and a 2017 Board appeal.” Appellant Br. 10

(emphasis in original). We reject Ms. Baker’s argu

ment, which attempts to untimely expand the scope of

the protected activity on appeal. Assuming a com

plaint alleging EEO violations is a protected activity

under the WPA, generally, an individual has a right

to appeal directly to the Board only after she first

presented the claim to OSC.4 5 U.S.C. § 1214(a)(3).

The Board’s jurisdiction is thus generally limited to

issues previously raised before OSC. McCarthy v.

Merit Sys. Prot. Bd., 809 F.3d 1365, 1374 (Fed. Cir.

2016). Here, the record shows that the instant appeal

was focused solely on Ms. Baker’s April 2017 IRA

4 To the extent Ms. Baker is arguing on appeal that an EEO com

plaint is a protected activity under the WPA, Ms. Baker did not

present that argument to the Board and thus it is waived on

appeal. See Levshin v. Dep’t of Navy, 767 F.2d 826, 846 (Fed. Cir.

1985) (“The record before us does not indicate that this specific argu

ment was raised below, so that it may properly be considered on

appeal.”).

App.6a

Claim as the source of protected activity. Ms. Baker’s

letter to OSC, which initiated this appeal, only listed

her April 2017 IRA Claim as a “protected activity.” See

SAppx69-70. OSC, in turn, noted that it examined

Ms. Baker’s allegations for potential retaliation due

solely to her “protected activity (your MSPB appeal

[i.e., April 2017 IRA Claim]).” SAppx77. Thus, Ms.

Baker’s allegation of an EEO complaint as a protected

disclosure is not properly before this court.

Ms. Baker then argues that the Board erred in

determining that her April 2017 IRA Claim was not a

contributing factor in the agency’s performance

evaluation of Ms. Baker. We also reject this argument.

The Board’s decision is supported by substantial evi

dence. The Board relied on the testimony of Ms.

Barton that she did not have knowledge of Ms. Baker’s

April 2017 IRA Claim when completing Ms. Baker’s

performance evaluation. SAppx24—25. The Board also

relied on evidence other than knowledge or timing.

SAppx25. The Board noted that Ms. Barton testified

that she had no desire or motive to retaliate against

Ms. Baker. Id. The Board noted that Ms. Barton tes

tified that Ms. Baker’s performance rating was justi

fied because Ms. Baker did not consistently complete

additional work, i.e., work beyond what was required

of her, that would merit a higher rating. Id. Finally,

the Board noted that Ms. Baker received the same

ratings as in her 2016 performance appraisal, which

showed that Ms. Barton did not harbor a retaliatory

motive towards Ms. Baker. SAppx26. This is substan

tial evidence supporting the Board’s finding that Ms.

Baker’s April 2017 IRA Claim was not a contributing

factor to her performance rating.

App.7a

CONCLUSION

We have considered Ms. Baker’s remaining argu

ments and find them unpersuasive. For the foregoing

reasons, we affirm the Board’s decision.

AFFIRMED

COSTS

No costs.

App.8a

FINAL ORDER,

U.S. MERIT SYSTEMS PROTECTION BOARD

(JULY 17, 2024)

This Final Order Is Nonprecedential1

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MITZI BAKER,

Appellant,

SOCIAL SECURITY ADMINISTRATION,

Agency.

Docket Number: CH-1221-18-0412-W-1

Before: Cathy A. HARRIS, Vice Chairman,

Raymond A. LIMON, Member,

Henry J. KERNER, Member*.

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 prece

dential 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).

* Member Kerner did not participate in the adjudication of this

appeal.

App.9a

The appellant has filed a petition for review of the

initial decision, which denied her request for cor

rective action in her individual right of action (IRA)

appeal. 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 judge’s

rulings during either the course of the appeal or the

initial decision were not consistent with required pro

cedures 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 estab

lished any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition

for review. Except as expressly MODIFIED to supple

ment the analysis of the contributing factor criterion

as to the appellant’s whistleblower reprisal claim, we

AFFIRM the initial decision.

BACKGROUND

The essential undisputed facts as set forth in the

initial decision are as follows. The appellant has been

employed as a Case Manager in the agency’s National

Hearing Center in Chicago, Illinois, since 2010. Initial

Appeal File (IAF), Tab 104, Initial Decision (ID) at 2.

On April 17, 2017, the appellant filed a separate IRA

appeal with the Board alleging whistleblower reprisal.

App.lOa

Id. While the April 17, 2017 IRA appeal was pending

before the Board, on October 27, 2017, the appellant’s

first-level supervisor issued the appellant her 2017

annual performance appraisal in which she gave the

appellant an overall rating of successful contribution

and an average element score of four out of five. Id.

Regarding the particular performance elements, the

appellant received a rating of three for the elements

of interpersonal skills and participation and a rating

of five for the elements of demonstrates job knowledge

and achieves business results. Id.

The appellant filed a Board appeal alleging that

her supervisor’s decision to issue her a rating of three

in the participation element constituted reprisal for

her protected activity of filing the prior Board appeal

on April 17, 2017. IAF, Tab 1. After holding a hearing,

the administrative judge issued an initial decision,

denying the appellant’s request for corrective action

because she failed to prove by preponderant evidence

that her protected activity of filing a Board appeal was

a contributing factor in her supervisor’s decision to

issue her a rating of three for the participation element.

ID at 1, 5. In particular, the administrative judge

credited the testimony of the appellant’s first-level

supervisor that she was not aware of the appellant’s

prior Board appeal at the time she prepared or issued

the appellant’s 2017 performance appraisal. ID at 6-7.

The administrative judge further found that the appel

lant’s first-level supervisor did not have constructive

knowledge of the prior Board appeal. ID at 7.

The appellant has filed a petition for review.

Petition for Review (PFR) File, Tab l.2 The agency has

2 The appellant has filed a motion for leave to file an additional

App.lla

opposed the appellant’s petition and the appellant has

filed a reply. PFR File, Tabs 3, 6.3

DISCUSSION OF ARGUMENTS ON REVIEW

We agree with the administrative judge that the

appellant did not prove that her protected activity was

a contributing factor in her performance appraisal

rating, but modify her analysis.

To obtain corrective action in an IRA appeal, the

appellant must meet her initial burden of establishing

by preponderant evidence that her protected activity

was a contributing factor in the personnel actions in

pleading, namely, an amicus curiae brief filed by the Office of

Special Counsel (OSC) in a separate appellant’s Board case. Once

the record closes on review, however, no additional evidence or

argument will be accepted unless it is new and material as

defined in 5 C.F.R. § 1201.115(d), and the party submitting it

shows that the evidence or argument was not readily available

before the record closed. 5 C.F.R. § 1201.114(h). To constitute new

evidence, the information contained in the documents, not just

the documents themselves, must have been unavailable, despite

due diligence, when the record closed. 5 C.F.R. § 1201.115(d).

Evidence is material when it is of sufficient weight to warrant a

different outcome from that of the initial decision. 5 C.F.R.

§ 1201.115(a)(1). We deny the appellant’s motion because she has

not shown that the underlying information contained in OSC’s

brief is new, that she exercised due diligence to obtain this infor

mation, or that it warrants a different outcome in this appeal.

3 To the extent the appellant raises new allegations of errors by

the administrative judge that were not raised in her petition or

addressed by the agency in its response, PFR File, Tab 6 at 4-6,

we have not considered such arguments, see 5 C.F.R. § 1201.114

(a)(4) (stating that a reply to a response to a petition for review

is limited to the factual and legal issues raised by another party

in the response to the petition for review; it may not raise new

allegations of error).

App.l2a

dispute. 5 U.S.C. § 1221(e) (1); Elder v. Department of

the Air Force, 124 M.S.P.R. 12, 39 (2016). An appel

lant’s protected activity is a contributing factor if it in

any way affects an agency’s decision to take, or fail to

take, a personnel action. Dorney v. Department of the

Army, 117 M.S.P.R. 480, 14 (2012). One way an appel

lant may establish the contributing factor criterion is

the knowledge/timing test, under which she submits

evidence showing that the official taking the person

nel action knew of the disclosure or activity and that

the personnel action occurred within a period of time

such that a reasonable person could conclude that the

disclosure or activity was a contributing factor in the

personnel action. Pridgen v. Office of Management

and Budget, 2022 MSPB 31, 63. The Board has held

that if an administrative judge determines that an

appellant has failed to satisfy the knowledge/timing

test, she shall consider other evidence, such as evi

dence pertaining to the strength or weakness of the

agency’s reasons for taking the personnel action,

whether the whistleblowing was personally directed

at the officials taking the action, and whether these

individuals had a desire or motive to retaliate against

the appellant. Dorney, 117 M.S.P.R. 480, Tf 15.

On review, the appellant argues that the admin

istrative judge erred in finding that she failed to prove

that her April 17, 2017 Board appeal was a contributing

factor in her first-level supervisor’s decision to issue

her a rating of three for the participation element of

her 2017 annual performance review.4 PFR File, Tab

4 The appellant also argues that the administrative judge’s

finding that she failed to prove contributing factor is “plainly in

consistent” with her prior finding that the appellant met the

knowledge/timing test. PFR File, Tab 1 at 7. Such an argument,

App.l3a

1 at 4. In particular, the appellant asserts that the

administrative judge erred by only considering the

knowledge/timing test and by failing to consider evi

dence of retaliatory motive. Id. at 4-7. We agree and

modify the administrative judge’s analysis to address

evidence other than the knowledge/timing test but

still find no reason to disturb the administrative judge’s

finding that the appellant failed to establish that her

2017 Board appeal was a contributing factor in her

performance appraisal rating.

With respect to the knowledge/timing test, the

administrative judge credited the testimony of the

appellant’s first-level supervisor that she was not

aware of the appellant’s 2017 Board appeal when she

prepared or issued the appellant’s 2017 performance

appraisal on October 27, 2017, and that she first

learned of the Board appeal on November 28, 2017. ID

at 6-7. The administrative judge further found that

the appellant’s first-level supervisor did not have

constructive knowledge and her decision to issue a

rating of three was not influenced by anyone who had

knowledge of the appellant’s 2017 Board appeal. ID at

7. In so finding, the administrative judge credited the

testimony of the appellant’s second-level supervisor,

who testified in connection with the appellant’s 2017

however, fails to recognize the different burdens of proof at the

jurisdictional and merits stages. Compare Shope v. Department

of the Navy, 106 M.S.P.R. 590, H 5 (2007) (explaining that an

appellant is entitled to a jurisdictional hearing in an IRA appeal

only when he sets forth in the written record a nonfrivolous

allegation that the elements of his claim are satisfied), with

Benton-Flores v. Department of Defense, 121 M.S.P.R. 428,

45 (2014) (stating that, once the appellant establishes jurisdiction

over her IRA appeal, she is entitled to a hearing on the merits of

her claim, which she must prove by preponderant evidence).

App.l4a

Board appeal that he did not become aware of the 2017

Board appeal until December 2017 or January 2018.

Id. The administrative judge further credited the testi

mony of the appellant’s first-and second-level super

visors that the appellant’s second-level supervisor had

no input in the appellant’s 2017 performance appraisal

and did not discuss it or see it before it was issued to

the appellant. Id.

The appellant disputes the administrative judge’s

findings that her first-level supervisor had no actual

or constructive knowledge of her 2017 Board appeal.

For example, she asserts that the entire “management

team” was aware of her protected activities, including

her frequent and extensive equal employment oppor

tunity activities and that her first-level supervisor

received several emails describing issues the appellant

was having at work. PFR File, Tab 1 at 5. She further

maintains that it is improbable that management would

have completely insulated her first-level supervisor from

the knowledge of her Board appeal. Id. at 5-6. Finally,

she asserts that it is implausible that her first-level

supervisor would not have become aware of her Board

appeal from agency attorneys who she contends would

had to have contacted her supervisor for information

supporting their case. Id. at 7.

The administrative judge, however, considered and

rejected the appellant’s version of events as improb

able, noting that the fact that the appellant’s supervisor

was aware of various issues the appellant was having

through emails and comments from the appellant did

not suggest that she was aware the appellant had filed

a Board appeal. ID at 5-6. Thus, she credited the tes

timony of the appellant’s supervisors that neither was

aware of the appellant’s Board appeal at the time the

App.l5a

appellant’s performance appraisal was issued on

October 27, 2017. ID at 7. The Board must defer to an

administrative judge’s credibility determinations when

they are based, explicitly or implicitly, on observing

the demeanor of witnesses testifying at a hearing; the

Board may overturn such determinations only when

it has “sufficiently sound” reasons for doing so. Haebe

v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). Here, the administrative judge’s credibility

determinations were based on her observation and

assessment of the agency officials’ demeanor during the

hearing. See Purifoy v. Department of Veterans Affairs,

838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (stating that,

even if demeanor is not explicitly discussed by an

administrative judge, assessing a witness’s credibility

involves consideration of various factors, including a

witness’s demeanor). Although the appellant disagrees

with the credibility determinations, we find that her

challenges are not sufficiently sound to overturn them.

Next, we consider evidence other than knowledge

/timing evidence. It is undisputed that the appellant’s

first-level supervisor, who issued the appellant’s 2017

performance appraisal, was not personally implicated

in the appellant’s 2017 Board appeal. Hearing Tran

script (HT) at 92-93 (testimony of the appellant’s firstlevel supervisor); PFR File, Tab 1 at 5-6. Also, as

explained above, the administrative judge found, based

on her assessment of the witnesses’ credibility, that

the appellant failed to show that anyone with know

ledge of her 2017 Board appeal influenced her firstlevel supervisor. ID at 6-7; see Baker v. Social Security

Administration, 2022 MSPB 27, 30 (explaining that

an administrative judge’s demeanor-based credibility

findings are virtually unreviewable on review). As to

App.l6a

any desire or motive to retaliate against the appellant,

her first-level supervisor denied during her sworn tes

timony that the appellant’s 2017 Board appeal had

any effect on her 2017 performance appraisal ratings.

HT at 92-93 (testimony of the appellant’s first-level

supervisor). The appellant did not solicit any testi

mony, nor is there any evidence of record, concerning

her first-level supervisor’s attitude toward her 2017

Board appeal that might otherwise refute this testi

mony. Therefore, we accept her supervisor’s testimony

as proof of her lack of retaliatory motive. See Woodall

v. Federal Energy Regulatory Commission, 30 M.S.P.R.

271, 273 (finding that a declaration subscribed under

penalty of perjury proves the facts it asserts).

We also find that the appellant’s first-level super

visor’s explanation for determining the appellant’s

performance rating is strong. The appellant’s first-level

supervisor testified that the participation element

rating she issued was justified because, among other

reasons, many of the duties the appellant highlighted

in her self-assessment were duties she was assigned

to perform, and any unassigned work she did was not

performed on a “sustained, consistent basis throughout

the appraisal year” to merit a higher rating. HT at 108

(testimony of the appellant’s first-level supervisor).

Specifically, Case Managers who received ratings

of five in the participation element worked with a

judge who processed the “more technical” Puerto Rico

fraud cases, which involved “daily processing” and

work on a “sustained, consistent basis,” which was not

otherwise part of the normal workload of a Case Man

ager. HT at 120-21, 124-25, 128, 133 (testimony of the

appellant’s first-level supervisor). The appellant’s firstlevel supervisor testified that the appellant was not

App.l7a

assigned to work with this judge and only did the

“initial work up” on those cases, which the appellant

has not presented evidence to refute. HT at 108 (testi

mony of the appellant’s first-level supervisor).

Lastly, it is undisputed that the appellant received

the exact same ratings in her 2016 performance apprais

al as she did in the appraisal at issue here. HT at 9495 (testimony of the appellant’s first-level supervisor);

IAF, Tab 82 at 4-6. That appraisal was issued in Oct

ober 2016 by a different supervisor, and prior to the

appellant filing her 2017 Board appeal in April 2017,

which tends to show that the 2017 appraisal was

consistent with the appellant’s performance assess

ments before her protected activity. IAF, Tab 82 at 6.

It is also undisputed that, out of the eight employees

under the supervision of the appellant’s first-level

supervisor in 2017, the appellant’s overall rating

ranked in the middle, receiving a higher overall rating

than four employees and the same ratings as one,

which also tends to show that her supervisor did not

harbor retaliatory motive towards her. IAF, Tab 82

at 23-42, Tab 83 at 4-9. Thus, we agree with the

administrative judge’s conclusion that the appellant

has not shown by preponderant evidence that her

2017 Board appeal was a contributing factor in her

2017 performance appraisal.

The appellant’s remaining arguments do not provide

a basis for reversal.

On review, the appellant asserts that the admin

istrative judge abused her discretion by failing to

transfer the appeal to the Washington Regional Office.

PFR File, Tab 1 at 7-8. She maintains that this was

the proper venue because, although she physically works

in Chicago, Illinois, agency management is based out

App.l8a

of Falls Church, Virginia. Id. at 8. She also cites, without

explanation, alleged prior abuse of discretion by a

different administrative judge in her 2017 Board

appeal as a reason for transferring the current appeal.

Id. at 7-8. Under 5 C.F.R. § 1201.4(d), the location of

the appellant’s duty station when the action was

taken determines which Board regional office has

jurisdiction. Thus, to the extent the appellant’s duty

station was and is in Chicago, Illinois, the Central

Regional Office had jurisdiction over the appeal. See 5

C.F.R. pt. 1201, app. II. Although the record reflects

that the appellant filed motions for recusal of the

administrative judge in this appeal, such motions

were based on the administrative judge’s alleged verbal

admonishment of the appellant during status

conferences and general claims of alleged bias, not any

claim of bias related to the administrative judge in the

appellant’s prior Board appeal. IAF, Tabs 28,41. Regard

less, we discern no basis for recusal of the administra

tive judge in this appeal based on any alleged bias by

a different administrative judge in the appellant’s

prior Board appeal or based on the allegations set

forth in the appellant’s motions concerning the admin

istrative judge in this appeal. Nothing in the record

suggests that the impartiality of the administrative

judge in this appeal might reasonably be questioned.

See, e.g., Allphin v. United States, 758 F.3d 1336,

1343-44 (Fed. Cir. 2014) (finding that recusal is re

quired when a reasonable person knowing all the facts

would question the judge’s impartiality); Department

of Health & Human Services v. Jarboe, 2023 MSPB

22, 12 (explaining that in determining whether an

administrative judge should be disqualified on grounds

other than bias, the Board assesses whether his impar-

App,19a

tiality might reasonably be questioned) (citations

omitted).

Finally, the appellant reiterates her argument

that the hearing recording was altered to exclude an

exchange that she had with the administrative judge.

PFR File, Tab 1 at 8. However, the administrative

judge considered such an argument but found that the

portion alleged to have been missing from the record

was an admonishment the administrative judge made

off the record in an effort not to embarrass the appel

lant, who was proceeding pro se. ID at 9-10. We find

that the administrative judge did not abuse her dis

cretion. See, e.g., Tisdell v. Department of the Air Force,

94 M.S.P.R. 44, H 13 (2003) (noting that an adminis

trative judge has wide discretion to regulate the course

of the hearing); 5 C.F.R. § 1201.41(b)(6).

Accordingly, we affirm the initial decision.5

NOTICE OF APPEAL RIGHTS6

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

5 We have reviewed the relevant legislation enacted during the

pendency of this appeal and have concluded that it does not affect

the outcome of the appeal.

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.

App.20a

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 sit

uation 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).

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

App.21a

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 repre

sentation 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 attor

ney nor warrants that any attorney will accept repre

sentation 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 dis

crimination. If so, you may obtain judicial review of

this decision—including a disposition of your discrim

ination claims—by filing a civil action with an appro

priate 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

App.22a

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. § 2000e5(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 deci

sion before you do, then you must file with the EEOC

no later than 30 calendar days after your representa

tive 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.

App.23a

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 judi

cial 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 com

petent 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

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.

App.24a