J. Carroll-Harris v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
J. CARROLL-HARRIS,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-2213
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-15-0543-W-1.
______________________
Decided: May 7, 2026
______________________
CYNTHIA J OYCE G AITHER , Detroit, MI, argued for peti-
tioner.
MATTHEW L EWIS , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by L AURA
O FFENBACHER ARADI, ELIZABETH MARIE H OSFORD,
P ATRICIA M. MC CARTHY , BRETT SHUMATE.
______________________
Case: 24-2213 Document: 88 Page: 1 Filed: 05/07/2026

-- 1 of 9 --

CARROLL- HARRIS v. DVA 2
Before H UGHES and C UNNINGHAM , Circuit Judges, and
BURROUGHS , District Judge.1
BURROUGHS , District Judge.
Jennifer Carroll-Harris claims that the Department of
Veterans Affairs (“VA”) fired her and took other personnel
actions against her in retaliation for protected whistleblow-
ing activity. She filed a complaint with the Office of Special
Counsel and subsequently filed an individual-right-of-ac-
tion (“IRA”) appeal to the Merit Systems Protection Board
(“Board”). An administrative judge issued an initial deci-
sion denying her appeal and the Board affirmed that deci-
sion in a final order. Because the Board correctly
concluded that Carroll-Harris did not prove that the VA re-
taliated against her for protected whistleblowing activity,
we affirm.
BACKGROUND
Carroll-Harris, a Navy veteran, worked for the VA at
the John D. Dingell VA Medical Center in Detroit, Michi-
gan, from 2001 to 2005 and from 2013 to 2015. Between
2013 and 2015, she was employed as a Medical Support As-
sistant.
In 2004 to 2005, Carroll-Harris complained to the VA
Office of Inspector General that the VA employed doctors
without proper medical licenses, improperly disposed of
documents containing patient identifying information, and
left doctor’s orders on printers close to open traffic areas.
Many years later, in 2012, after the VA failed to select her
for several positions, including a position as a Medical Sup-
port Assistant, she complained to the Department of Labor
(“DOL”), claiming that the VA had failed to properly
1 Honorable Allison D. Burroughs, District Judge,
United States District Court for the District of Massachu-
setts, sitting by designation.
Case: 24-2213 Document: 88 Page: 2 Filed: 05/07/2026

-- 2 of 9 --

CARROLL- HARRIS v. DVA 3
account for her veterans’ preference. In April 2014, she
filed an Equal Employment Opportunity (“EEO”) com-
plaint, alleging that the VA had failed to accommodate her
disability, including by failing to provide her with speech
recognition software. In November 2014, the VA reas-
signed Carroll-Harris from her position in the nursing-
home unit to one in the same-day-surgery unit. The VA
removed her effective March 13, 2015, for inappropriate
and unprofessional behavior, failure to follow a direct or-
der, and absence without leave.
On March 22, 2015, Carroll-Harris filed the underlying
whistleblower retaliation complaint with the Office of Spe-
cial Counsel, alleging that the VA’s decision to remove her
and to take other personnel actions against her was retali-
ation for protected disclosures and activities between 2004
and 2014. In May 2015, the Office of Special Counsel ad-
vised Carroll-Harris that it would not be taking any action
in her case and told her that she had a right to seek correc-
tive action from the Merit Systems Protection Board.
In July 2015, Carroll-Harris timely filed an IRA appeal
with the Board. In January 2017, after a three-day hear-
ing, an administrative judge issued an initial decision
denying Carroll-Harris’s request for corrective action. The
administrative judge concluded (1) that Carroll-Harris’s
2004–05 complaint was a protected disclosure but that her
2012 and 2014 complaints were not, and (2) that her 2012
nonselection and her 2015 removal were adverse personnel
actions within the meaning of the Whistleblower Protec-
tion Act (“WPA”) but that her 2014 reassignment was not.
The administrative judge also found that her 2004–05 com-
plaint was not a contributing factor to her nonselection or
removal because Carroll-Harris had failed to prove that
two agency officials, Michelle Werner and Dr. Pamela
Reeves, who testified at the hearing, had either actual or
constructive knowledge about her complaint when they
proposed or decided her nonselection or removal.
Case: 24-2213 Document: 88 Page: 3 Filed: 05/07/2026

-- 3 of 9 --

CARROLL- HARRIS v. DVA 4
In February 2017, Carroll-Harris petitioned for review
of the initial decision by the full Board. In May 2024, the
Board issued its final order. The Board agreed that Car-
roll-Harris’s 2012 and 2014 complaints were not protected
disclosures and that her 2014 reassignment was not a per-
sonnel action. The Board also agreed that Carroll-Harris
failed to prove that her 2004–05 disclosure was a contrib-
uting factor in either her nonselection or removal. It based
this determination, in part, on the administrative judge’s
finding that the officials involved in Carroll-Harris’s 2012
nonselection and 2015 removal did not know about her
2004–05 disclosure, deferring to this finding because it was
based on the demeanor of the officials who testified at the
hearing. The Board additionally concluded that the
agency’s selection of a nonveteran over Carroll-Harris in
2012 without following required pass-over procedures was
the result of the agency’s mistaken belief that those proce-
dures did not apply to the position in question, rather than
any retaliatory motive. The Board also emphasized that
the agency’s stated reasons for removing Carroll-Harris in
2015 were strong and noted that Carroll-Harris’s 2004–05
complaint was not directed at either Werner or Reeves. Ac-
cordingly, the Board denied Carroll-Harris’s petition for re-
view and affirmed the administrative judge’s denial of
corrective action.
Carroll-Harris’s petition for this court’s review was re-
ceived on August 7, 2024, outside the sixty-day window to
file, and the agency thus moved to dismiss as untimely.
ECF No. 1; ECF No. 21. The agency’s motion was denied
“without prejudice to [the agency] making its arguments in
its response brief,” ECF No. 26, which the agency failed to
do. Because the timing requirement of 5 U.S.C.
§ 7703(b)(1) “is not jurisdictional,” Harrow v. Dep’t of Def.¸
601 U.S. 480, 482 (2024), we exercise our discretion to
reach the merits of Carroll-Harris’s petition. We have ju-
risdiction over this appeal under 28 U.S.C. § 1295(a)(9).
Case: 24-2213 Document: 88 Page: 4 Filed: 05/07/2026

-- 4 of 9 --

CARROLL- HARRIS v. DVA 5
D ISCUSSION
We review the Board’s decisions under 5 U.S.C.
§ 7703(c), which permits us to set them aside only if they
are “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
Biswas v. Dep’t of Veterans Affs., 127 F.4th 332, 339 (Fed.
Cir. 2025).
To establish a prima facie case of reprisal under the
WPA, as amended in 2012, an employee must prove by a
preponderance of the evidence that (1) she made a disclo-
sure or engaged in activity covered by 5 U.S.C. § 2302(b)(8)
or (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or pro-
tected activity was a contributing factor in a personnel ac-
tion prohibited under the statute. 5 U.S.C. § 1221(e)(1); see
also Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 953
(Fed. Cir. 2020). Once the employee has done so, the
agency may rebut the employee’s prima facie case with
“clear and convincing evidence that it would have taken the
same personnel action in the absence of such disclosure.” 5
U.S.C. § 1221(e)(2).
Carroll-Harris argues that the Board erred in holding
that her 2012 complaint to the DOL and her 2014 EEO
complaint were not protected disclosures covered by the
WPA and in finding that her 2004–05 disclosure was not a
contributing factor to the agency’s decisions not to select
her for a Medical Support Assistant position in 2012 and to
remove her in 2015. We disagree.
A
The Board correctly concluded that Carroll-Harris’s
2012 complaint to the DOL and her 2014 EEO complaint
were not disclosures protected by the WPA.
The WPA provides federal employees the right to seek
corrective action from the Board for the prohibited
Case: 24-2213 Document: 88 Page: 5 Filed: 05/07/2026

-- 5 of 9 --

CARROLL- HARRIS v. DVA 6
personnel practices enumerated in 5 U.S.C. § 1221(a). This
includes the prohibited personnel practices outlined in
§§ 2302(b)(8) and (b)(9)(A)(i). See 5 U.S.C. § 1221(a). Car-
roll-Harris argues that her DOL and EEO complaints qual-
ified as whistleblower disclosures pursuant to
§ 2302(b)(8)(A)(i), which protects “any disclosure of infor-
mation by an employee . . . which the employee . . . reason-
ably believes evidences . . . any violation of any law, rule,
or regulation.” We have, however, repeatedly rejected the
argument that exercising a grievance or complaint right is
protected by § 2302(b)(8). The statute “differentiate[s] be-
tween reprisal based on disclosure of information,” i.e., re-
taliation for whistleblowing covered by § 2302(b)(8), and
“reprisal based upon exercising a right to complain,” i.e.,
retaliation for filing a complaint or grievance. Spruill v.
Merit Sys. Prot. Bd., 978 F.2d 679, 690 (Fed. Cir. 1992); see
also Abutalib v. Merit Sys. Prot. Bd., 127 F.4th 373, 378–
79 (Fed. Cir. 2025); Young v. Merit Sys. Prot. Bd., 961 F.3d
1323, 1329 (Fed. Cir. 2020); Serrao v. Merit Sys. Prot. Bd.,
95 F.3d 1569, 1575 (Fed. Cir. 1996). And retaliation for
filing a complaint or grievance, regardless of its substance,
is protected by § 2302(b)(9)(A), not (b)(8). See Serrao,
95 F.3d at 1576. Thus, Carroll-Harris’s DOL and EEO
complaints cannot be protected disclosures under
§ 2302(b)(8).
Section 2302(b)(9)(A) protects against retaliation for
exercising complaint rights, but it has two subparts, only
the first of which can form the basis for a whistleblower
retaliation claim under the IRA cause of action. See
5 U.S.C. §§ 2302(b)(9)(A)(i)–(ii), 1221(a). Section
2302(b)(9)(A)(i) protects employees from “retaliation for ex-
ercising any appeal, complaint or grievance right relating
to whistleblowing, i.e., retaliation for seeking to remedy a
violation of [§ 2302(b)(8)].” Young, 961 F.3d at 1329 (em-
phasis added). Section 2302(b)(9)(A)(ii), by contrast, is not
included in the list of prohibited personnel practices action-
able under § 1221(a) and covers retaliation for filing other
Case: 24-2213 Document: 88 Page: 6 Filed: 05/07/2026

-- 6 of 9 --

CARROLL- HARRIS v. DVA 7
types of complaints, i.e., complaints that do not seek to
remedy a violation of § 2302(b)(8). Id. Retaliation for filing
such complaints is not remediable by an IRA appeal to the
Board, but, rather, “through different mechanisms.” Id.
Here, Carroll-Harris’s DOL and EEO complaints did
not concern remediating an instance of retaliation for whis-
tleblowing, so any retaliation claim for filing them falls un-
der § 2302(b)(9)(A)(ii), not § 2302(b)(9)(A)(i), and is thus
not actionable under § 1221(a). Because neither complaint
sought to remedy a violation of § 2302(b)(8), the Board cor-
rectly concluded that Carroll-Harris’s claims that the VA
retaliated against her for filing them were not within the
Board’s jurisdiction under § 1221(a). Section 1221(a) per-
mits the Board to order corrective action based only on the
prohibited personnel practices described in § 2302(b)(8)
and (b)(9)(A)(i), (B), (C), or (D), which do not include violat-
ing a veterans’ preference, 5 U.S.C. § 2302(b)(11), or disa-
bility discrimination, id. § 2302(b)(1).
B
With regard to Carroll-Harris’s 2004–05 disclosure to
the VA Office of Inspector General, substantial evidence
supports the Board’s finding that it was not a contributing
factor in the agency’s decisions not to select her for a Med-
ical Support Assistant position in 2012 and then to fire her
in 2015. An employee may establish that a disclosure is a
contributing factor through circumstantial evidence that
“the official taking the personnel action knew of the disclo-
sure” and “the personnel action occurred within a period of
time such that a reasonable person could conclude that the
disclosure . . . was a contributing factor in the personnel
action.” 5 U.S.C. § 1221(e)(1). Here, the administrative
judge expressly credited testimony by Werner, who was re-
sponsible for selecting Medical Support Assistants hired in
2012 and proposed Carroll-Harris’s removal in 2015, and
Reeves, who removed Carroll-Harris, that they did not
know of Carroll-Harris’s 2004–05 disclosure. The Board
Case: 24-2213 Document: 88 Page: 7 Filed: 05/07/2026

-- 7 of 9 --

CARROLL- HARRIS v. DVA 8
did not disturb this credibility finding in its review, and
Carroll-Harris’s assertion that Reeves’s testimony was not
credible because she knew about Carroll-Harris’s EEO
complaint is insufficient to overcome the administrative
judge’s “virtually unreviewable” credibility determination
on appeal. Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436
(Fed. Cir. 1986). Thus, substantial evidence supports the
Board’s finding that Carroll-Harris could not satisfy the
statutory knowledge/timing test.
The Board also relied on evidence other than
knowledge and timing. Regarding Carroll-Harris’s nonse-
lection for a Medical Support Assistant position in 2012,
the Board noted that (1) Werner denied any knowledge of
the decision not to select Carroll-Harris; (2) the record sug-
gested that the agency’s selection of a nonveteran for the
position without requesting permission for the pass-over
from the Office of Personnel Management was due to the
agency’s mistaken belief that such permission was not re-
quired for the position rather than any retaliatory motive;
and (3) Werner later selected Carroll-Harris for another
Medical Support Assistant position, further suggesting
that her prior nonselection was due to a misapplication of
the pass-over procedures rather than any retaliatory mo-
tive. Regarding Carroll-Harris’s removal in 2015, the
Board found the agency’s stated reasons for removing
her—namely, inappropriate and unprofessional behavior,
failure to follow a direct order, and absence without leave—
to be strong and emphasized that Carroll-Harris’s 2004–05
complaint was not directed at either Werner or Reeves.
This evidence provides further support for the Board’s find-
ing that Carroll-Harris’s 2004–05 disclosure was not a con-
tributing factor to her 2012 nonselection or her 2015
removal. Carroll-Harris’s argument that her nonselection
and removal were retaliatory is, at best, a request for us to
reweigh the evidence on appeal, which we may not do. See
Jones v. Dep’t of Health & Hum. Servs., 834 F.3d 1361,
1369 (Fed. Cir. 2016) (“Under the substantial evidence
Case: 24-2213 Document: 88 Page: 8 Filed: 05/07/2026

-- 8 of 9 --

CARROLL- HARRIS v. DVA 9
standard of review, we ‘do[] not reweigh evidence on ap-
peal.’” (quoting In re NTP, Inc., 654 F.3d 1279, 1292 (Fed.
Cir. 2011))).
CONCLUSION
We have considered Carroll-Harris’s other arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
Case: 24-2213 Document: 88 Page: 9 Filed: 05/07/2026

-- 9 of 9 --