       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 THASHA A. BOYD,
                    Petitioner,

                           v.

            DEPARTMENT OF LABOR,
                   Respondent.
              ______________________

                      2014-3022
                ______________________

   Petition for review of the Merit Systems Protection
Board in Nos. AT1221120456-W-1 and AT1221120665-W-
1.
                ______________________

                Decided: April 11, 2014
                ______________________

   THASHA A. BOYD of Kennesaw, Georgia, pro se.

    ANTONIA R. SOARES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and DEBORAH
A. BYNUM, Assistant Director.
                 ______________________
2                                            BOYD   v. LABOR



     Before DYK, PROST, and REYNA, Circuit Judges.
PER CURIAM.
     Thasha A. Boyd appeals from a final order of the Mer-
it Systems Protection Board (“Board”) denying her peti-
tion for review of the Board’s August 3, 2012 and October
19, 2012 initial decisions dismissing her appeals under
the Whistleblower Protection Act. Boyd v. Dep’t of Labor,
Nos. AT1221120456-W-1, AT1221120665-W-1 (M.S.P.B.
Sept. 17, 2013) (“Final Order”). For the reasons that
follow, we affirm.
                      BACKGROUND
    Ms. Boyd was previously employed as a GS-12 Immi-
gration Program Analyst in the Department of Labor’s
Atlanta National Processing Center, Office of Foreign
Labor Certification (“OFLC”).
    On May 3, 2010, Ms. Boyd submitted an anonymous
letter to GAO FraudNet requesting that an investigation
be conducted into the operations of the OFLC. In her
letter, she made several allegations of questionable hiring
and compensation practices, as well as general miscon-
duct and poor production standards by OFLC employees
and contract staff. On April 4, 2011, she wrote a second
anonymous letter to GAO FraudNet with similar allega-
tions.
    Throughout her tenure with OFLC, Ms. Boyd was in-
volved in several interpersonal disputes with other em-
ployees and contract staff. For example, in November
2011, a contract employee named Kathleen Kurth filed a
complaint against Ms. Boyd, alleging that she had inten-
tionally bumped into Ms. Kurth’s shoulder when Ms.
Kurth had discovered Ms. Boyd going through documents
on her desk. Ms. Boyd filed a cross-complaint that Ms.
Kurth had harassed her by hitting her on the arm when
she was trying to leave Ms. Kurth’s cubicle. On February
16, 2012, the Department of Labor (“Labor”) proposed to
BOYD   v. LABOR                                           3



suspend Ms. Boyd for ten days based on the physical
altercation with Ms. Kurth. Shortly thereafter, Ms. Boyd
filed a complaint with the United States Office of Special
Counsel (“OSC”), seeking corrective action under the
Whistleblower Protection Act, 5 U.S.C. § 2302 et seq.
(“WPA”), alleging that her earlier disclosures to GAO
FraudNet were contributing factors in various personnel
actions, including the proposed ten-day suspension.
    After exhausting the OSC process, Ms. Boyd filed an
Individual Right of Action (“IRA”) appeal under the WPA.
While that appeal was pending, Labor issued a decision
implementing the proposed suspension effective April 12,
2012. One day before the suspension was to take effect,
on April 11, 2012, Ms. Boyd resigned from her position at
the agency. She then sought corrective action from the
OSC again, alleging that Labor’s final decision letter
imposing the suspension constituted a new adverse per-
sonnel action. OSC did not pursue her claim, so she filed
a second IRA appeal with the Board.
    In the first IRA appeal, the administrative judge de-
termined that the Board had jurisdiction to hear Ms.
Boyd’s appeal because she made detailed, non-frivolous
allegations that she had made protected disclosures, that
Labor had taken prohibited personnel actions against her,
and that management had known of her protected disclo-
sures. Boyd v. Dep’t of Labor, No. AT1221120456-W-1
(M.S.P.B. Aug. 3, 2012) (“Initial Decision I”) at 3-5. After
finding that the Board had jurisdiction, the administra-
tive judge held a hearing on the merits of Ms. Boyd’s
claim. At the hearing, Ms. Boyd declined to testify, but
instead submitted a written statement. Several other
witnesses were called to testify about whether or not the
agency was aware of Ms. Boyd’s protected disclosures.
Ultimately, the administrative judge concluded that Ms.
Boyd had failed to prove by preponderant evidence that
her protected disclosures were a contributing factor in the
personnel actions taken by the agency. Id. at 11.
4                                             BOYD   v. LABOR



    After the decision was issued in Ms. Boyd’s first IRA
appeal, the administrative judge dismissed her second
IRA appeal on collateral estoppel grounds. Specifically,
the administrative judge found that the first appeal had
resolved the issues of whether management was aware of
Ms. Boyd’s anonymous protected disclosures (it was not)
and whether management perceived Ms. Boyd to be a
whistleblower (it did not). Because both of those issues
were also necessary to finding in Ms. Boyd’s favor in the
second appeal, Ms. Boyd could not establish by a prepon-
derance of the evidence that her protected disclosures had
been a contributing factor in the personnel actions taken
against her. Boyd v. Dep’t of Labor, No. AT1221120665-
W-1 (M.S.P.B. Oct. 19, 2012) (“Initial Decision II”) at 8.
    Ms. Boyd then filed a petition for review of both deci-
sions with the Board. The Board affirmed the adminis-
trative judge’s decision in the first IRA appeal and denied
Ms. Boyd’s request for corrective action. Final Order at 7-
11. The Board also vacated the administrative judge’s
decision that the second IRA appeal was barred by collat-
eral estoppel because the initial decision in the first IRA
appeal was not final when the second IRA appeal was
docketed. Id. at 6-7. However, the Board nevertheless
found that dismissal of the second IRA appeal was appro-
priate for reasons of adjudicatory efficiency. Id.
   Ms. Boyd timely appealed the Board’s final order. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    Our review of Board decisions is limited by statute.
Under 5 U.S.C. § 7703(c), we may only reverse a Board
decision if we find the decision to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law; or (3) unsupported by substantial evidence. Ward
v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011).
BOYD   v. LABOR                                           5



    To establish a prima facie case of whistleblower retal-
iation, an employee must prove by a preponderance of the
evidence that she made a protected disclosure under 5
U.S.C. § 2302(b)(8), that she was subject to an adverse
personnel action, and that the protected disclosure was a
contributing factor in the adverse action. See Johnston v.
Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). If
she does so, the burden then shifts to the agency to estab-
lish by clear and convincing evidence that it would have
taken the same personnel action in the absence of the
disclosure. Yunus v. Dep’t of Veterans Affairs, 242 F.3d
1367, 1371 (Fed. Cir. 2001).
    Ms. Boyd challenges the Board’s decision on several
grounds, none of which is persuasive. 1
    First, Ms. Boyd raises numerous challenges to the
administrative judge’s factual findings, as affirmed by the
Board. For example, she argues that the administrative
judge erred in evaluating the testimony of one of the
witnesses, Mr. Michael Holston. Ms. Boyd claimed that
Mr. Holston had previously made statements that Ms.
Boyd was “taking away the contractor’s jobs”—a state-
ment she thinks indicates that he knew about her pro-
tected disclosures to GAO FraudNet. Initial Decision I at
10. At the hearing, however, Mr. Holston denied ever
having made such a statement. The administrative judge
found Mr. Holston’s testimony to be credible and that
there was therefore no support for Ms. Boyd’s position
that her anonymous disclosures contributed to the per-
sonnel actions taken against her. Id. On appeal, Ms.
Boyd argues that this credibility determination was


   1    Ms. Boyd filed virtually identical informal briefs
in both this case and No. 2014-3015, which relates to her
involuntary resignation claim. We have attempted to
determine which of her arguments relates to each appeal
and have addressed them in the corresponding opinions.
6                                            BOYD   v. LABOR



erroneous because Mr. Holston perjured himself and
because Ms. Boyd was not given an opportunity to cross-
examine him about those statements. Pet’r Br. Continua-
tion 2-4. However, there is simply nothing in the record
to suggest that Mr. Holston perjured himself, and Ms.
Boyd was present at the hearing and was entitled to
cross-examine him, but chose not to do so. Thus, we
cannot conclude that the administrative judge incorrectly
decided the facts on this basis.
    Second, Ms. Boyd argues that the Board committed
several legal errors. For example, she alleges that the
administrative judge failed to apply the correct legal
standard for making credibility determinations. Id. at 6-
7. Ms. Boyd made similar allegations in her other appeal,
No. 2014-3015, also issued today. There, we laid out the
standard for credibility determinations, and concluded
that the administrative judge properly applied that
standard. The same is true here. In the first initial
decision, the administrative judge noted that there was no
evidence contradicting the witnesses’ testimony, that
their testimony was not inherently improbable, that they
testified in a “confident and forthright manner,” and that
there was no reason to question their testimony based on
their opportunity and capacity to observe the events in
question, their character, or any prior inconsistent state-
ments. Initial Decision I at 9. At the same time, appel-
lant’s hearsay written statement was entitled to little
probative weight because she was available to testify at
the hearing but chose not to and there was no evidence in
the record corroborating her statements. Id. Moreover,
because the administrative judge’s credibility determina-
tions were based on a full consideration of all of the
proper factors, the Board did not err in deferring to those
determinations. Thus, neither the administrative judge
nor the Board committed legal error in crediting the
testimony of the hearing witnesses over Ms. Boyd’s out-of-
court hearsay statement.
BOYD   v. LABOR                                            7



    Next, Ms. Boyd argues that the administrative judge
arbitrarily and capriciously used the doctrine of collateral
estoppel to prevent her from introducing new evidence in
her second IRA appeal. Pet’r Br. Continuation 18-19. We
disagree. As an initial matter, the Board vacated the
administrative judge’s collateral estoppel decision, so it is
no longer in effect and cannot form the basis for her
appeal. See Final Order at 7. Instead, the Board af-
firmed the dismissal of Ms. Boyd’s second IRA appeal on
the grounds of adjudicatory efficiency. Id. Ms. Boyd has
not argued that the Board made any legal error in dis-
missing her second appeal on that basis, but regardless,
we conclude that it did not. The Board has often ruled
that it is appropriate to dismiss a second appeal on the
grounds of adjudicatory efficiency when it raises claims
already decided in an initial decision in an earlier appeal.
See Zgonc v. Dep’t of Defense, 103 M.S.P.R. 666, 669
(2006). Thus, the only real question is whether the two
appeals in fact raise the same claims. The question in
both appeals was whether Ms. Boyd’s protected disclo-
sures in her two anonymous letters to GAO FraudNet
were “contributing factors” to the agency’s personnel
actions against her. The only difference between the two
appeals is the personnel action in question: the first
appeal relates to the proposal of the ten-day suspension
(among other things), while the second appeal relates to
the actual imposition of that same suspension. However,
nothing in Ms. Boyd’s allegations suggests that the agen-
cy’s knowledge of her protected disclosures changed in
any way between the February 16, 2012 proposal of her
suspension and the April 11, 2012 finalization of that
action. Thus, the administrative judge was correct that
the first appeal effectively resolved the claims at issue in
the second appeal, and the Board did not err in dismissing
the second appeal for reasons of adjudicatory efficiency.
   Finally, Ms. Boyd argues that she suffered several
due process violations and harmful procedural errors that
8                                             BOYD   v. LABOR



were not adequately addressed by the Board. The Board
disposed of those allegations by noting that they may not
be heard in the context of an IRA appeal. Final Order at
11 (citing Marren v. Dep’t of Justice, 51 M.S.P.R. 632, 638-
39 (1991)). However, Ms. Boyd says this was a misunder-
standing of her claim, which was that certain due process
violations themselves constituted adverse personnel
actions for purposes of her WPA claim. See Pet’r Br. 1,
Pet’r Br. Continuation 15-16. But in light of the finding
that Ms. Boyd had not established that the agency even
knew about her protected disclosures, there was no need
for either the administrative judge or the Board to inde-
pendently consider every allegedly retaliatory personnel
action. Thus, the Board did not err in failing to discuss
Ms. Boyd’s due process allegations.
    We have considered Ms. Boyd’s remaining arguments
and find them unpersuasive. We find no reason to con-
clude that the Board’s findings were unsupported by
substantial evidence or were not in accordance with law.
                       CONCLUSION
    For the foregoing reasons, we conclude that the Board
correctly denied Ms. Boyd’s petition for review and af-
firmed the dismissal of both of her IRA appeals. Accord-
ingly, we affirm.
                       AFFIRMED
                          COSTS
    Each party shall bear its own costs.
