McLaughlin v. MSPB ( 2023 )

Case: 23-1074 Document: 28 Page: 1 Filed: 12/29/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LORI D. MCLAUGHLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1074
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-19-0114-M-1.
______________________
Decided: December 29, 2023
______________________
LORI D. MCLAUGHLIN, Whitsett, NC, pro se.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON JANE BOYLE,
KATHERINE MICHELLE SMITH.
______________________
Case: 23-1074 Document: 28 Page: 2 Filed: 12/29/2023
2 MCLAUGHLIN v. MSPB
Before DYK, PROST, and HUGHES, Circuit Judges.
PER CURIAM.
Lori McLaughlin appeals a decision from the Merit
Systems Protection Board (MSPB) dismissing her whistle-
blower Individual Right of Action appeal for lack of juris-
diction. We affirm because Ms. McLaughlin’s disclosures
either (1) fall within the purview of her Title VII claims and
thus are not within the MSPB’s jurisdiction, or (2) were not
exhausted before the Office of Special Counsel as required
by the Whistleblower Protection Act.
I
Ms. McLaughlin was employed as a Criminal Investi-
gator by the Bureau of Alcohol, Tobacco, Firearms, and Ex-
plosives (the Agency), a law enforcement component of the
Department of Justice (DOJ). Throughout her employment
with the Agency, Ms. McLaughlin has filed numerous Title
VII complaints alleging Equal Employment Opportunity
(EEO) violations. 1
A
On or about March 29, 2018, Ms. McLaughlin filed a
whistleblower complaint with the Office of Special Counsel
(OSC). In that complaint, Ms. McLaughlin identified dis-
closures she had made to District Court Judge Catherine
Eagles between August 2017 and January 24, 2018, during
a Title VII proceeding in the Middle District of North
1 See, e.g., McLaughlin v. Mukasey, No. 1:08-cv-1256
(D.D.C.) (filed July 22, 2008); McLaughlin v. Holder, No.
1:11-cv-1868 (D.D.C.) (filed Oct. 21, 2011); McLaughlin v.
Holder, No. 6:12-cv-1168 (M.D. Fla.) (filed July 30, 2012);
McLaughlin v. Sessions, No. 1:17-cv-759 (M.D.N.C.) (filed
Aug. 16, 2017); McLaughlin v. Barr, No. 1:19-cv-318
(M.D.N.C.) (filed Mar. 21, 2019); McLaughlin v. Barr, No.
20-cv-230 (M.D.N.C.) (filed Mar. 11, 2020).
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MCLAUGHLIN v. MSPB 3
Carolina. Ms. McLaughlin alleged she informed Judge Ea-
gles during this time period that: (1) a DOJ attorney did
not report Privacy Act violations; (2) a DOJ attorney tried
to coerce a deceptive settlement agreement; (3) Agency of-
ficials did not investigate misconduct allegations commit-
ted by DOJ attorneys; (4) Agency officials did not
investigate misconduct allegations committed by Agency
management officials; (5) a DOJ attorney engaged in im-
proper ex parte communications in her Title VII case in the
U.S. District Court for the District of Columbia; (6) a DOJ
attorney denied her an opportunity to respond to a court
motion in violation of the Federal Rules of Civil Procedure
in bad faith; (7) Agency officials committed several ethics
violations during the administrative processing of her Title
VII complaints and attempted to cover up allegations of
sexual harassment inside the Agency; and (8) an Agency
management official obstructed justice by submitting a
false statement about non-mandatory training. On Sep-
tember 19, 2018, the OSC informed Ms. McLaughlin that
it was closing her file but that she had the right to file an
appeal with the MSPB.
B
On November 3, 2018, Ms. McLaughlin filed the pre-
sent Individual Right of Action (IRA) appeal with the
MSPB. On November 13, 2018, the administrative judge
issued a jurisdictional show cause order. In response to the
show cause order, Ms. McLaughlin filed several declara-
tions in which she alleged that the MSPB had jurisdiction
because of (1) the disclosures she made to Judge Eagles
during her Title VII case (discussed supra in Section I.A),
and (2) statements Ms. McLaughlin made to staff in Sena-
tor Charles Grassley’s office and in the Government Ac-
countability Office (GAO) on July 10, 2018, alleging that an
Agency official improperly suspended another Investiga-
tive Analyst at the Agency. Ms. McLaughlin alleged that,
because of these disclosures, she was removed from her po-
sition as a field criminal investigator, she was reassigned
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4 MCLAUGHLIN v. MSPB
to less favorable positions and locations, and her security
clearance investigation was improperly terminated.
C
On April 1, 2019, the administrative judge issued an
initial decision dismissing Ms. McLaughlin’s MSPB ap-
peal for lack of jurisdiction. On appeal, this court vacated
that decision and remanded for the administrative judge to
consider Ms. McLaughlin’s January 28, 2019 submission,
which it had improperly failed to consider the first time.
McLaughlin v. Merit Sys. Prot. Bd., 853 F. App’x 648, 650
(Fed. Cir. 2021) (non-precedential). We did not take a posi-
tion on the jurisdictional issue at that time, and only gen-
erally noted that the administrative judge’s “legal analysis
was admittedly flawed in at least certain respects.” Id.On remand, the administrative judge notified the par-
ties that they could file additional evidence and argument
to support their jurisdictional positions. On June 15, 2021,
Ms. McLaughlin timely filed a supplemental jurisdictional
statement. She later filed a reply to the Agency’s supple-
mental jurisdictional statement, but the administrative
judge did not consider it because the post stamp on the en-
velope was July 13, 2021, one day after the deadline for
supplemental submissions.
While this appeal was pending before the MSPB,
Ms. McLaughlin filed another IRA appeal with the MSPB
on September 26, 2021. That appeal involved similar dis-
closures to the ones at issue here. The parties agreed to
stay this appeal until after a jurisdictional determination
in the other case. On January 21, 2022, the administrative
judge dismissed the September 26, 2021 appeal for lack of
jurisdiction. Ms. McLaughlin appealed that MSPB deci-
sion, and this court has since affirmed the decision.
McLaughlin v. Merit Sys. Prot. Bd., No. 2022-1589, 2023
WL 2820085 (Fed. Cir. Apr. 7, 2023) (non-precedential).
While the September 26, 2021 appeal was pending be-
fore us, the administrative judge issued a decision in the
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MCLAUGHLIN v. MSPB 5
present case dismissing for lack of jurisdiction. The admin-
istrative judge concluded that it lacked jurisdiction over
the disclosure to Senator Grassley’s office because that dis-
closure was not exhausted before the OSC. For the rest of
the disclosures, the administrative judge concluded that it
lacked jurisdiction—not necessarily because those disclo-
sures were related to her Title VII case—but because
Ms. McLaughlin had not established a reasonable belief
that the Agency violated a law and thus did not make any
protected disclosures. The administrative judge also con-
cluded that, even had she made protected disclosures, she
did not show how the disclosures resulted in an adverse ac-
tion.
Ms. McLaughlin appeals this decision, arguing that
the MSPB has jurisdiction over her appeal and that the ad-
ministrative judge procedurally erred by disregarding cer-
tain of her MSPB submissions. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II
We review MSPB decisions for whether they are “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Whether the MSPB has jurisdiction
over an appeal is a question of law we review de novo.
Coradeschi v. Dep’t of Homeland Sec. 439 F.3d 1329, 1331
(Fed. Cir. 2006). Although pro se pleadings are generally
held to less stringent standards than pleadings drafted by
counsel, pro se litigants still bear the burden of establish-
ing jurisdiction over their claims. Prewitt v. Merit Sys. Prot.
Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). As to the relevant
procedural arguments, we review the Board’s decision not
to consider a submission deemed untimely under an abuse
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6 MCLAUGHLIN v. MSPB
of discretion standard. See, e.g., Zamot v. Merit Sys. Prot.
Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003).
III
Reviewing the jurisdictional issue de novo, we conclude
that the MSPB lacked jurisdiction over Ms. McLaughlin’s
appeal under 5 U.S.C. § 1221(a). We are also unpersuaded
by Ms. McLaughlin’s procedural arguments and see no
abuse of discretion. Thus, the MSPB properly dismissed
the appeal, and we affirm.
A
There are two categories of statements that
Ms. McLaughlin argues give rise to jurisdiction. The first
category includes statements she made during the context
of a Title VII complaint, and the second category includes
statements made to staff in Senator Grassley’s office and
the GAO. We begin with the first category and conclude
that those statements do not give rise to MSPB jurisdic-
tion.
The MSPB’s jurisdiction over IRA actions stems from
5 U.S.C. § 1221(a). This jurisdictional provision allows a
federal employee to seek corrective action from the MSPB
for any personnel action taken “as a result of a prohibited
personnel practice described in § 2302(b)(8) or
§ 2302(b)(9)(A)(i), (B), (C), or (D).” 5 U.S.C. § 1221(a). This
provision does not give the MSPB jurisdiction over any of
the other prohibited personnel actions described in
§ 2302(b), such as employment discrimination ((b)(1)) or re-
taliation for filing an employment discrimination action
((b)(9)(A)(ii)). Id.; see also Spruill v. Merit Sys. Prot. Bd.,
978 F.2d 679, 690–91 (Fed. Cir. 1992). Thus, whether the
MSPB has jurisdiction to hear Ms. McLaughlin’s appeal
depends on whether she seeks corrective action for person-
nel actions taken because of a prohibited practice under
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MCLAUGHLIN v. MSPB 7
subsections (b)(8) or (b)(9)(A)(i), 2 or whether she seeks cor-
rective action for personnel actions taken because of a pro-
hibited practice under some other subsection.
Section 2302(b)(8) prohibits an agency from retaliating
against an employee for whistleblowing, which is defined
as:
[A]ny disclosure of information by an employee or
applicant which the employee or applicant reason-
ably 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,
if such disclosure is not specifically prohibited by
law and if such information is not specifically re-
quired by Executive order to be kept secret in the
interest of national defense or the conduct of for-
eign affairs.
5 U.S.C. § 2302(b)(8)(A). Separately, § 2302(b)(9)(A)(i) pro-
hibits an agency from retaliating against that employee for
pursuing a whistleblower complaint under (b)(8). Young v.
Merit Sys. Prot. Bd., 961 F.3d 1323, 1329 (Fed. Cir. 2020).
Both types of actions are within the MSPB’s jurisdiction.
2 The prohibited practices of (b)(9)(B), (C), and (D)
protect an employee’s rights to give testimony in an inves-
tigation, cooperate with the Inspector General, or refuse to
obey an order that would require them to break a law.
5 U.S.C. § 2302(b)(9). These categories are not relevant to
the statements here, and thus we do not address them in
detail.
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8 MCLAUGHLIN v. MSPB
In contrast, § 2302(b)(9)(A)(ii) makes clear that the
MSPB’s jurisdiction under § 1221(a) does not cover “retali-
ation for exercising any appeal, complaint, or grievance
right other than one seeking to remedy a violation of section
2302(b)(8).” Young, 961 F.3d at 1329 (emphasis added). For
example, as we noted in our recent decision dismissing Ms.
McLaughlin’s similar appeal, “the MSPB does not have ju-
risdiction over alleged retaliation for filing Equal Employ-
ment Opportunity (“EEO”) and discrimination
complaints.” McLaughlin, 2023 WL 2820085, at *4. Nor
does the MSPB have jurisdiction over alleged retaliation
for statements that “were made during [appellant’s] Title
VII lawsuit and were directly related to her attempt to rem-
edy alleged Title VII violations.” Id. This does not mean
that there is no remedy for parties who claim retaliation
for actions taken in a Title VII lawsuit. The proper avenue
for such cases may be through the Title VII process before
the Equal Employment Opportunity Commission or in dis-
trict court, but not through the IRA process before the
MSPB. 3 See Young, 961 F.3d at 1329.
Here, most of Ms. McLaughlin’s alleged disclosures
were not only made during her Title VII case, but they were
also directly related to her allegations of employment dis-
crimination in that case. We go through each in turn, ex-
plaining why all the relevant statements either fall within
the purview of subsections (b)(1) or (b)(9)(A)(ii), and thus
3 We do not decide here if the Equal Employment
Opportunity Commission can review and provide a remedy
for actions taken by a defendant in response to litigation
statements and arguments made by the plaintiff during a
Title VII litigation. In any event, Ms. McLaughlin could po-
tentially seek redress before the district court for such re-
taliation. See McLaughlin, 2023 WL 2820085, at *5 (noting
Ms. McLaughlin “could seek redress for retaliation based
on the alleged FRCP violation before the district court”).
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MCLAUGHLIN v. MSPB 9
are not (b)(8) or (b)(9)(A)(i) statements that would give rise
to MSPB jurisdiction.
The first alleged disclosure was a statement to the dis-
trict court that a DOJ attorney did not report Privacy Act
Violations. This statement was made directly in support of
Ms. McLaughlin’s Title VII complaint, which alleged as
part of her discrimination case that a DOJ attorney “failed
to report Privacy Act Violations against the EEO Office
that were submitted by [Ms. McLaughlin],” while at the
same time, “allowing DOJ Attorneys to file a Privacy Act
Violation against [Ms. McLaughlin].” McLaughlin, No.
1:17-cv-00759 (M.D.N.C.), ECF No. 1 (Com-
plaint) ¶ 174 (filed Aug. 16, 2017). Because she was mak-
ing this statement to prove employment discrimination
((b)(1)) and/or retaliation for pursuing an employment dis-
crimination claim ((b)(9)(A)(ii)), this statement is an exam-
ple of Ms. McLaughlin “exercis[ing] any appeal, complaint,
or grievance” right other than one seeking to remedy a
§ 2302(b)(8) violation. 5 U.S.C. § 2302(b)(9)(A)(ii). Thus,
the statement does not fall within the MSPB’s jurisdiction.
Similarly, Ms. McLaughlin’s second alleged disclo-
sure—that a DOJ attorney tried to coerce a deceptive set-
tlement agreement—was a supporting allegation in Ms.
McLaughlin’s Title VII complaint. She alleged in her Title
VII complaint that the Agency committed employment dis-
crimination against her because it “attempted to ‘coerce’ a
deceptive settlement agreement regarding [her] Federal
EEO lawsuit.” McLaughlin, No. 1:17-cv-00759 (M.D.N.C.),
Complaint ¶ 173. Like the first statement, this second
statement falls within (b)(9)(A)(ii) and is not within the
MSPB’s jurisdiction.
Ms. McLaughlin’s third and fourth alleged disclosures
are, respectively, that Agency officials did not investigate
misconduct allegations committed by DOJ attorneys or
Agency management officials. But the misconduct the
Agency allegedly failed to address in both instances was
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10 MCLAUGHLIN v. MSPB
sexual harassment, which is a form of employment discrim-
ination based on sex. To the extent these allegations were
made as part of Ms. McLaughlin’s Title VII case for retali-
ation, they would fall within (b)(9)(A)(ii). And even if not
made solely during the Title VII case, but also made out-
side the context of her Title VII complaint, these are alle-
gations of sex discrimination and would fall squarely
within (b)(1). Either way, such statements are not within
the MSPB’s jurisdiction.
Ms. McLaughlin’s fifth and sixth alleged disclosures
are, respectively, that a DOJ attorney engaged in improper
ex parte communications in her Title VII case before the
U.S. District Court for the District of Columbia, and a DOJ
attorney denied her an opportunity to respond to a court
motion in violation of the Federal Rules of Civil Procedure
in bad faith. Both of these statements are allegations that
the Agency intentionally took actions designed to interfere
with Ms. McLaughlin’s ability to exercise her Title VII com-
plaint rights. Like the first and second disclosures dis-
cussed above, such allegations fall squarely within
§ (b)(9)(A)(ii).
So, too, does Ms. McLaughlin’s seventh alleged disclo-
sure fall within § (b)(9)(A)(ii). This disclosure includes as-
sertions that Agency officials committed several ethics
violations during the administrative processing of her Title
VII complaints and attempted to cover up allegations of
sexual harassment inside the Agency. But complaints
about the administrative processing of Title VII complaints
are, again, related to Ms. McLaughlin’s ability to exercise
her Title VII rights. As such, they fall within § (b)(9)(A)(ii).
Finally, Ms. McLaughlin’s eighth alleged disclosure is
that an Agency management official obstructed justice by
submitting a false statement about non-mandatory train-
ing. This disclosure was also made in the context of her Ti-
tle VII litigation, in which Ms. McLaughlin alleged that the
Agency’s actions with respect to the non-mandatory
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MCLAUGHLIN v. MSPB 11
training were an attempt to “manipulate the litigation pro-
cess by interfering with the Plaintiff[’s] (pro se) ability to
draft a response to the Defendant’s motions.” McLaughlin,
No. 1:17-cv-00759 (M.D.N.C.), ECF No. 19 (Response to
Motion to Dismiss) at 6 (filed Jan. 24, 2018). Once again,
this relates directly to Ms. McLaughlin’s ability to exercise
her Title VII rights, and thus falls within § (b)(9)(A)(ii).
Ms. McLaughlin seems to argue that the statements
she made during the Title VII proceedings do not fall under
§ (b)(9)(A)(ii) because those statements are more properly
characterized as § 2302(b)(8) disclosures. For at least some
of the disclosures, 4 the administrative judge agreed with
Ms. McLaughlin on this point, noting that “[Section]
2302(b)(9)(A) involves a claim of retaliation for exercising
the right to engage in a protected activity and not a claim
of retaliation for making a (b)(8) disclosure in the context
of that activity.” S.A. 15–16 n.14. The administrative judge
concluded that (b)(9) did not apply here because Ms.
McLaughlin “has alleged that agency officials retaliated
against her for her (b)(8) disclosures and not her (b)(9) ac-
tivity” S.A. 16 n.14. The administrative judge appears to
have either (1) identified some overlap between (b)(9)(A)(ii)
and (b)(8) that allows disclosures to fall within both cate-
gories and give rise to the MSPB’s jurisdiction under (b)(8),
or (2) too narrowly defined what falls under (b)(9)(A)(ii)
such that Ms. McLaughlin’s statements in support of her
Title VII complaint fall outside of § (b)(9)(A)(ii).
We disagree under either interpretation of the admin-
istrative judge’s reasoning. We have held that “[t]o read the
scope of § 2302(b)(8) as including activities squarely within
§ 2302(b)(9)(A)[(ii)] would have the effect of reversing [the]
carefully considered Congressional decision” to treat these
4 We note that the administrative judge did conclude
that four of the disclosures related to Title VII and were
not protected under the Whistleblower Protection Act.
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12 MCLAUGHLIN v. MSPB
activities differently. Spruill, 978 F.2d at 690–91. We un-
derstand Spruill to mean that there cannot be a statement
that both falls squarely within (b)(9)(A)(ii) and is also a
(b)(8) disclosure that gives rise to MSPB jurisdiction. It is
either one or the other.
And as to whether Ms. McLaughlin’s statements fall
squarely within (b)(9)(A)(ii) or whether they are more
properly considered (b)(8) disclosures, we have already ex-
plained above why these statements are within
(b)(9)(A)(ii)—they are directly related to Ms. McLaughlin’s
exercise of her Title VII rights. Section 2302(b)(9)(A)(ii) re-
lates to “exercising any appeal, complaint, or grievance
right other than one seeking to remedy a violation of sec-
tion 2302(b)(8).” Young, 961 F.3d at 1329 (emphasis
added). So, exercising one’s employment discrimination
rights under (b)(1) by engaging in the Title VII process falls
within (b)(9)(A)(ii). What it means to “exercise” one’s rights
to pursue an employment discrimination action includes
more than just bringing the action in the first place. Part
of exercising those rights necessarily requires plaintiffs to
make statements throughout Title VII proceedings to sup-
port their employment discrimination claims under (b)(1)
or (b)(9)(A)(ii). Such statements, made for the purpose of
supporting a plaintiff’s EEO complaint, cannot logically be
separated from “exercising any appeal, complaint, or griev-
ance right” seeking to remedy a (b)(1) or (b)(9)(A)(ii) viola-
tion. Id.; see also McLaughlin, 2023 WL 2820085, at *4. As
discussed above, the alleged disclosures in this case were
directly related to Ms. McLaughlin’s Title VII claims be-
cause they were inextricably linked to her Title VII com-
plaint. Thus, these statements are best characterized as
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MCLAUGHLIN v. MSPB 13
(b)(1) or (b)(9)(A)(ii) disclosures, over which the MSPB does
not have jurisdiction. 5
B
We next address whether the MSPB lacked jurisdiction
over the second category of statements: those made to staff
in Senator Grassley’s office and the GAO. For a different
reason than with the first category, we also conclude that
the MSPB lacked jurisdiction over this second category of
statements.
To file an IRA appeal, an appellant must first exhaust
their administrative remedies by filing a complaint with
OSC prior to filing their appeal with the Board. 5 U.S.C.
§ 1214(a)(3); Yunus v. Dep’t of Vets. Affs., 242 F.3d 1367,
1371 (Fed. Cir. 2001). To satisfy this exhaustion require-
ment, the appellant must have informed OSC of “the pre-
cise ground of [their] charge of whistleblowing” so that OSC
has a “sufficient basis to pursue an investigation which
might have led to corrective action.” Ward v. Merit Sys.
Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992) (quoting
Knollenberg v. Merit Sys. Prot. Bd., 953 F.2d 623, 626 (Fed.
Cir. 1992)).
Ms. McLaughlin’s ninth, and final, 6 alleged disclosure
fails to meet this exhaustion requirement. Here, Ms.
5 Because Ms. McLaughlin’s alleged disclosures
were so intertwined with her Title VII claims, we need “not
resolve whether there are other situations where disclo-
sures made in a Title VII lawsuit may give rise to MSPB
jurisdiction—for instance, where a disclosure was made in
a Title VII lawsuit but is unrelated to the alleged discrimi-
nation.” McLaughlin, 2023 WL 2820085, at *4 n.2 (empha-
sis added).
6 In some places in her briefing to this court, Ms.
McLaughlin references statements other than these nine
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14 MCLAUGHLIN v. MSPB
McLaughlin alleges that she disclosed to Katherine Nikas
in Senator Grassley’s office and Diana Maurer in the GAO
that an Agency official indefinitely suspended another in-
vestigative analyst without the benefit of any misconduct
investigation. This was not identified as a disclosure in Ms.
McLaughlin’s OSC complaint. At most, Ms. McLaughlin
copied an OSC employee on an email mentioning the name
of this other investigative analyst, but those emails do not
appear to inform the OSC employee that Ms. McLaughlin
contacted Senator Grassley’s office about this investigative
analyst or that Ms. McLaughlin suffered whistleblower re-
taliation for doing so. We agree with the administrative
judge that “the fact that [Ms. McLaughlin] provided this
email to an OSC employee without any apparent follow-up
explanation to describe the purpose or significance of the
document is insufficient to prove exhaustion.” S.A. 15 (cit-
ing Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 927 (7th
Cir. 2018)). Thus, because this ninth alleged disclosure was
not exhausted before the OSC, it also does not give rise to
MSPB jurisdiction here.
C
In addition to the jurisdictional arguments discussed
above, Ms. McLaughlin identifies procedural grounds for
vacating or reversing the Board’s decision. We are not per-
suaded by these arguments.
disclosures that she believes are protected disclosures.
E.g., Informal Reply Br. 2 (alleging Ms. McLaughlin “be-
came a ‘whistleblower’” in February 2011 when she corrob-
orated testimony in a congressional investigation of the
Agency); see also, e.g., id. at 8. But the operative OSC com-
plaint for this appeal does not include those allegations,
and she has not shown how any of those statements were
exhausted with the OSC. Thus, we need not consider these
statements in detail here.
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MCLAUGHLIN v. MSPB 15
First, Ms. McLaughlin argues the administrative judge
erred by ignoring our guidance and failing to consider her
January 28, 2019 submission, which we previously re-
manded for the Board to consider. McLaughlin, 853 F.
App’x at 650. But we see no indication in the final decision
that the administrative judge did not account for the Jan-
uary 28, 2019 submission when drawing his conclusions on
remand. To the contrary, the administrative judge noted
our remand order and “apologize[d]” for not considering the
January 28, 2019 submission in the first instance. S.A. 9
n.8. The administrative judge also gave the parties an op-
portunity to file “additional evidence and/or argument” to
support their jurisdictional positions. S.A. 9. The adminis-
trative judge said nothing about not considering the sub-
missions that had already been filed, including the
January 28, 2019 reply submission, in addition to any
newly filed evidence. Based on our review of the opinion,
we see no reason to believe the administrative judge ig-
nored our mandate to consider the January 28, 2019 sub-
mission on remand.
Ms. McLaughlin relies on footnote 8 in the opinion for
her argument that the administrative judge did not con-
sider her January 28, 2019 submission. This footnote fol-
lows a sentence in the opinion explaining the procedural
history of the case and that Ms. McLaughlin filed a petition
for review of the Board’s first decision with this court on
May 31, 2019. Footnote 8 simply mentions, as an apparent
aside, that “[i]n her petition, the appellant did not allege
that I improperly denied her January 28, 2019 submis-
sion.” S.A. 9 n.8. Ms. McLaughlin appears to read this foot-
note as improperly requiring her to re-make that allegation
before the MSPB on remand. But in this footnote, the ad-
ministrative judge is not faulting Ms. McLaughlin for not
re-raising her January 28, 2019 submission after we re-
manded her case; rather, the administrative judge is just
characterizing her arguments in the petition she filed with
this court in May 2019. After the footnote, the
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16 MCLAUGHLIN v. MSPB
administrative judge goes on to acknowledge that—regard-
less of what Ms. McLaughlin did or did not argue in her
petition to this court—we held that it was an error for the
administrative judge to not have considered the January
28, 2019 submission. We do not see this footnote as an in-
dication that the administrative judge ignored our order to
consider the January 28, 2019 submission on remand and
find no abuse of discretion.
Second, Ms. McLaughlin argues that the administra-
tive judge erred by failing to consider her July 13, 2021 re-
ply to the Agency’s supplemental brief. After this case was
remanded, the administrative judge gave the parties an op-
portunity to submit additional evidence and arguments
and set a July 12, 2021 deadline for Ms. McLaughlin to file
a reply to the Agency’s submission. MSPB regulations pro-
vide that a document filed by commercial delivery is
deemed filed as of the date it was delivered to the commer-
cial delivery service. 5 C.F.R. § 1201.4(l). The evidence
available to the administrative judge to determine when
the reply had been delivered to the commercial delivery
service was a FedEx envelope indicating the date the sub-
mission was shipped: July 13, 2021. Thus, the administra-
tive judge properly exercised his discretion in not
considering Ms. McLaughlin’s reply submission. See Za-
mot, 332 F.3d at 1379 (“We have repeatedly stated that the
waiver of a regulatory time limit based on a showing of
good cause is a matter committed to the Board’s discretion
and that this court will not substitute its own judgment for
that of the Board.” (citation and quotations marks omit-
ted)).
On appeal, Ms. McLaughlin has submitted a receipt
that shows she actually delivered the reply submission to
FedEx on the evening of July 12, 2021, even though it was
not shipped until July 13, 2021. But Ms. McLaughlin does
not refute the Agency’s representation that this receipt was
not part of the record before the administrative judge, and
we cannot fault the administrative judge for deciding the
Case: 23-1074 Document: 28 Page: 17 Filed: 12/29/2023
MCLAUGHLIN v. MSPB 17
submission was untimely based on the evidence available
to him at that time. Moreover, even if it was an error not to
review the reply submission, Ms. McLaughlin has not
shown that the administrative judge’s failure to review her
reply submission resulted in any substantial harm, and we
do not vacate under an abuse of discretion standard for
harmless errors. See Curtin v. Off. of Pers. Mgmt., 846 F.2d
1373, 1378–79 (Fed. Cir. 1988); see also Rockwell v. Dep’t
of Transp., 789 F.2d 908, 913 (Fed. Cir. 1986). Thus, we
find no abuse of discretion, and we affirm.
IV
We have considered the remainder of Ms. McLaughlin’s
arguments and find them unpersuasive. Thus, we affirm
the administrative judge’s decision dismissing Ms.
McLaughlin’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.