Cynthia Almond v. Department of Defense (AT-1221-25-1858-W-1)

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CYNTHIA ALMOND, Appellant, v. DEPARTMENT OF DEFENSE, Agency. DOCKET NUMBER AT-1221-25-1858-W-1 DATE: May 7, 2026 THIS FINAL ORDER IS NONPRECEDENTIAL1 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of statute or regulation or the erroneous application of the law to the facts of the case; the administrative 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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). 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 2 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 2 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 3 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 RIGHTS3 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. 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. 4 (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 5 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 6 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. 7 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. 8