Richard W. Coleman, Jr. v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD W. COLEMAN, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-2031
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-22-0109-W-1.
______________________
Decided: June 10, 2026
______________________
RICHARD WALTER COLEMAN, J R., Fredericksburg, VA,
pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by
K ATHERINE M ICHELLE SMITH .
______________________
Before L OURIE, SCHALL , and T ARANTO, Circuit Judges.
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COLEMAN v. MSPB 2
P ER CURIAM .
D ECISION
Richard W. Coleman, Jr. petitions for review of the Au-
gust 14, 2024 Final Order of the Merit System Protection
Board (“Board”), Docket No. DC-1221-22-0109-W-1. In the
Final Order, the Board dismissed Mr. Coleman’s December
3, 2021 individual right of action (IRA) appeal for lack of
jurisdiction. S.A. 1–19.1 Because the Board properly de-
termined that it lacked jurisdiction over Mr. Coleman’s ap-
peal, we affirm.
BACKGROUND
I
The pertinent facts are undisputed. In 2008, Mr. Cole-
man was hired as a Supervisory Explosives Specialist in
the Hazardous Devices Branch (hereinafter referred to as
“the Bomb Squad”) of the Pentagon Force Protective
Agency (PFPA or “agency”). S.A. 2. The PFPA is a compo-
nent of the Department of Defense. Mr. Coleman’s position
was within the National Security Personnel Systems and
included a 25% hazardous duty pay (HDP) supplement.
Id.; see 5 U.S.C. § 5545(d)(2); 5 C.F.R. § 550.904.
On January 23, 2015, Mr. Coleman and other Bomb
Squad employees attended a meeting with agency manag-
ers and Human Resources (HR) officials. S.A. 2. At the
meeting, the Bomb Squad employees were informed that
they had been erroneously receiving the HDP supplement
and that the supplement would be discontinued. Id. The
HDP supplement was discontinued the following day, Jan-
uary 24, 2015. Id. During a subsequent meeting with the
HR Director on April 24, 2015, the Bomb Squad employees,
1 “S.A.” refers to the Supplemental Appendix at-
tached to the Respondent’s Brief.
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COLEMAN v. MSPB 3
including Mr. Coleman, were provided with a written mem-
orandum explaining the basis for the January 2015 deci-
sion. S.A. 3. The memorandum also informed Mr. Coleman
that he was no longer eligible for HDP and that his position
description had been updated to remove references to HDP.
S.A. 106–07; S.A. 159. Thereafter, in July 2015, Mr. Cole-
man received a new position description that did not in-
clude a reference to HDP. S.A. 108.
Beginning in February 2015, via a series of protected
disclosures (eleven in all), Mr. Coleman repeatedly chal-
lenged the decision to discontinue HDP. S.A. 50–89. The
first of the disclosures was on February 2, 2015. S.A. 50–
51. The last of the disclosures was on February 12, 2018.
S.A. 78.
On October 19, 2017, Mr. Coleman filed a complaint
with the Office of Special Counsel (OSC) under the Whis-
tleblower Protection Enhancement Act of 2012 (WPEA)
(amending 5 U.S.C. § 2302). In his complaint he alleged
that, in reprisal for his protected disclosures concerning
the termination of his HDP, the agency continued to deny
him HDP and had reassigned him. S.A. 127–38. On No-
vember 18, 2021, OSC issued a letter indicating that, alt-
hough the matter remained open, OSC did not intend to
seek corrective action on Mr. Coleman’s behalf. See S.A.
96. Mr. Coleman was informed that, therefore, he could
file an individual right of action (IRA) appeal with the
Board, because 120 days had passed since he first sought
corrective action from OSC. Id.
II
On December 3, 2021, Mr. Coleman filed an IRA appeal
with the Board in which he alleged that in reprisal for his
various protected disclosures concerning his contention
that the termination of his HDP was illegal, the agency re-
fused to reinstate his HDP. S.A. 160–64. In a subsequent
jurisdictional submission, he also alleged that he was sub-
jected to an illegal reassignment when the agency removed
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COLEMAN v. MSPB 4
the HDP from his position description in reprisal for his
alleged protected disclosures 6, 8, 10, and 11. S.A. 64, 70,
77, 79.
On December 30, 2022, the administrative judge (AJ)
to whom Mr. Coleman’s appeal was assigned issued an in-
itial decision dismissing the appeal for lack of jurisdiction.
See S.A. 20–37. The AJ found, inter alia, that Mr. Coleman
failed to non-frivolously allege that any of his alleged pro-
tected disclosures were a contributing factor in the denial
of his HDP because the decision to terminate his HDP was
made prior to any of the protected disclosures. S.A. 29; see
also S.A. 23–24. The AJ also found that Mr. Coleman failed
to non-frivolously allege that he had made a protected dis-
closure under 5 U.S.C. § 2302(b)(8). S.A. 25–29. Following
the AJ’s initial decision, Mr. Coleman petitioned the Board
for review. See S.A. 41.
On August 14, 2024, the Board issued its Final Order,
affirming the AJ’s initial decision, as modified to clarify the
basis for concluding that Mr. Coleman failed to meet his
jurisdictional burden. S.A. 1–19. The Board found that
Mr. Coleman failed to non-frivolously allege that his al-
leged protected disclosures were a contributing factor in
the discontinuation of his HDP because all the alleged pro-
tected disclosures post-dated the discontinuation of his
HDP. S.A. 8–9. The Board also addressed Mr. Coleman’s
claim that, in reprisal for disclosures 6, 8, 10, and 11, he
was subjected to an “illegal reassignment” based on the
April 24, 2015 decision to issue him a new position descrip-
tion. S.A. 12–13; see also S.A. 64, 70, 77, 79. The Board
found that Mr. Coleman failed to non-frivolously allege
that these disclosures were contributing factors because
each of them came after his reassignment on April 24,
2015. See S.A. 12–13; S.A. 62, 68, 74, 78. Having found
that Mr. Coleman had failed to non-frivolously allege that
any of his disclosures was a contributing factor in the
agency’s personnel action, the Board did not address the
AJ’s alternate finding that Mr. Coleman had failed to non-
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COLEMAN v. MSPB 5
frivolously allege that he made a protected disclosure. S.A.
13 n.6.
Finally, the Board rejected Mr. Coleman’s “continuing
reprisal” argument that the agency’s failure to resume pay-
ment of the HDP after its initial January 23, 2015 decision
to deny HDP, effective January 24, 2015, gave rise to a sep-
arate retaliatory personnel action for each payday that he
did not receive the HDP supplement. See S.A. 8–11. The
Board reasoned that the January 23, 2015 decision was a
single discrete act, and the fact that the effects of that de-
cision were reflected in subsequent paychecks did not
transform the discrete action into a continuing personnel
action.
This appeal followed. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
D ISCUSSION
I
“Our review of a decision of the [B]oard is circum-
scribed by statute.” Hicks v. Merit Sys. Prot. Bd., 819 F.3d
1318, 1319 (Fed. Cir. 2016). “We must affirm the Board’s
decision unless it is (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or (3) unsupported by
substantial evidence.” Wrocklage v. Dep’t of Homeland
Sec., 769 F.3d 1363, 1366 (Fed. Cir. 2014). Substantial ev-
idence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (ci-
tation and internal quotation marks omitted).
“Whether the [B]oard ha[s] jurisdiction to adjudicate a
case is a question of law, which we review de novo.” Forest
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
“[T]he Board has jurisdiction over an IRA appeal if the ap-
pellant has exhausted his administrative remedies before
the OSC and makes non-frivolous allegations that (1) he
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COLEMAN v. MSPB 6
engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclo-
sure was a contributing factor in the agency’s decision to
take or fail to take a personnel action.” Yunus v. Dep’t of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (in-
ternal quotation marks omitted). A protected disclosure
under § 2302(b)(8) is one that the employee “reasonably be-
lieves evidences (i) any violation of any law, rule, or regu-
lation, or (ii) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger
to public health or safety.” 5 U.S.C § 2302(b)(8)(A). “A pe-
titioner bears the burden of establishing that the Board has
jurisdiction by a preponderance of evidence.” McCarthy v.
Merit Sys. Prot. Bd., 809 F.3d 1365, 1373 (Fed. Cir. 2016).
II
As noted, an appellant must demonstrate that he made
a protected disclosure and that “the disclosure was a con-
tributing factor in the agency’s decision to take or fail to
take a personnel action.” Yunus, 242 F.3d at 1371; see also,
e.g., El v. Merit Sys. Prot. Bd., 663 F. App’x 921, 925 (Fed.
Cir. 2016); Davis v. Merit Sys. Prot. Bd., 278 F. App’x 1009,
1012–13 (Fed. Cir. 2008). Because all of Mr. Coleman’s
protected disclosures were made after the January 24,
2015 discontinuance of his HDP, the personnel action he
protests, the Board did not err in concluding that none of
them was a contributing factor in the personnel action.
On appeal Mr. Coleman argues that the instant case
involves “the agency’s repeated, post-disclosure decisions
to continue denying a statutory entitlement” after learning
through his continuing protected disclosures that the ter-
mination of HDP was unlawful. Pet’r’s Br. 16. According
to Mr. Coleman, “[t]he agency’s continued refusal to rein-
state HDP after receiving Appellant’s disclosures . . . is in-
dependently actionable.” Pet’r’s Br. 16–17.
The Board also did not err in rejecting Mr. Coleman’s
theory of continuing reprisals. Subsequent consequences
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COLEMAN v. MSPB 7
of a discrete act of reprisal do not constitute separate acts
of reprisal so as to render the original violation continuing
under the WPEA. See Bosley v. Merit Sys. Prot. Bd., 162
F.3d 665, 667 (Fed. Cir. 1998) (addressing the prior Whis-
tleblower Protection Act of 1989 and holding that the con-
tinued monetary effects of a denial of a pay increase in 1988
were not separate continuing violations beyond the 1988
discrete act); Hamley v. Dep’t of the Interior, 122 M.S.P.R.
290, 294 (2015) (finding that the appellant’s continued per-
formance of changed duties after the June 30, 2012 discrete
act did not give rise to separate acts of continuing reprisal).
We have considered Mr. Coleman’s additional argu-
ments and have found them to be without merit.
CONCLUSION
For the forgoing reasons, we affirm the Final Order of
the Board dismissing Mr. Coleman’s IRA appeal for lack of
jurisdiction.
AFFIRMED
COSTS
No costs.
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