             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
             citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                         04-3364

                               BETTY J. HOLDERFIELD,

                                                 Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.

                                ____________________

                                DECIDED: April 5, 2005
                                ____________________

Before LOURIE, CLEVENGER, and LINN, Circuit Judges.

PER CURIAM.

      Betty J. Holderfield petitions for review of the final decision of the Merit Systems

Protection Board dismissing her Individual Right of Action (“IRA”) appeal for lack of

jurisdiction. Holderfield v. Dep’t of the Treasury, No. AT-1221-01-0306-M-1 (M.S.P.B.

May 14, 2004) (“Holderfield III”). We affirm.

                                     BACKGROUND

      Betty J. Holderfield is a revenue agent at the Internal Revenue Service’s (“IRS’s”)

Dalton, Georgia facility. On January 18, 2001, Holderfield filed an IRA appeal at the

Board alleging that a variety of adverse personnel actions were taken in retaliation for

her disclosure of favoritism by her former supervisor, Susan A. Chambers, to

Chambers’s IRS subordinate and live-in companion Mary Sexton.           On October 18,
1999, prior to the appeal to the Board, Holderfield also filed the first of three grievances

alleging that Chambers had acted unlawfully in, inter alia, failing to promote her and

giving her unfair performance appraisals. All three grievances were settled on July 13,

2000, with Holderfield achieving, among other things, removal of all performance

appraisals by Chambers from her employee file, restoration of ratings given by her

former supervisor, and a temporary promotion that could later be made permanent.

       The Administrative Judge (“AJ”) of the Board dismissed Holderfield’s

whistleblower IRA for lack of jurisdiction on the ground of failure to demonstrate that the

agency had taken any retaliatory “personnel actions” against her pursuant to 5 U.S.C.

§ 2302(a)(2). Holderfield v. Dep’t of the Treasury, No. AT-1221-01-0306-W-1, slip op.

at 2, 7 (M.S.P.B. Feb. 16, 2001). The Board denied Holderfield’s petition for review of

the AJ’s decision rendering that decision final. Holderfield v. Dep’t of the Treasury, No.

AT-1221-01-0306-W-1 (M.S.P.B. June 21, 2002) (“Holderfield I”).

       Holderfield appealed from the Board’s decision in Holderfield I to this court.

Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207 (Fed. Cir. 2003) (“Holderfield II”). In

Holderfield II, we reviewed the AJ’s analysis concerning whether the agency had taken

retaliatory “personnel actions” against Holderfield. Although we agreed with the AJ that

two of Holderfield’s allegations had been resolved in the prior grievance procedure, we

also noted that the AJ failed to consider whether the remaining allegations constituted

“personnel actions” under § 2302(a)(2)(A)(xi) relating to a “significant change in . . .

working conditions.” Id. at 1209-10. Accordingly, we vacated in part, affirmed in part,

and remanded the case to the Board with instructions to determine whether

Holderfield’s allegations of personnel action amounted to a “significant” change as




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required by § 2302(a)(2)(A)(xi). Id. We also instructed the Board to consider whether

the allegations are precluded from being the basis of an IRA by election of a grievance

procedure. Id. at 1209.

       On remand, the AJ ordered the parties to specifically reference documents in the

record relating to personnel actions constituting a “significant change in . . . working

conditions” under section 2302(a)(2)(A)(xi) that were not addressed in the prior

grievance procedure. Holderfield v. Dep’t of the Treasury, No. AT-1221-01-0306-M-1,

slip op. at 7-8 (M.S.P.B. Sept. 5, 2003) (“Remand Decision”). Holderfield identified eight

allegedly adverse personnel actions. Id., slip op. at 9. The AJ, however, concluded that

each of Holderfield’s allegations was deficient in: (1) alleging a personnel action that

had already been resolved in the grievance procedure; (2) occurring after the IRA

appeal was filed at the Board, and thus, Holderfield had not exhausted her remedy

before the Office of Special Counsel; or (3) being too vague. Id., slip op. at 9-12. After

making these findings, the AJ again dismissed Holderfield’s claim for lack of jurisdiction.

Id., slip op. at 12.

       Holderfield petitioned the full Board for review of the Remand Decision.

Concluding that there was no new, previously unavailable evidence and that the AJ

made no error in law or regulation that affected the outcome of the appeal, the Board

denied Holderfield’s petition, rendering the Remand Decision final. Holderfield III, slip

op. at 1-2.

       Holderfield timely appealed to this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




04-3364                                     -3-
                                      DISCUSSION

       Congress has expressly limited the scope of our review in an appeal from the

Board. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard

of review, a court will not overturn an agency decision if it is supported by ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison

Co. of N.Y. v. NLRB, 305 U.S. 197, 299 (1938)). Moreover, the Supreme Court has

explained that “the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s findings from being supported by

substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

       As set forth in Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371

(Fed. Cir. 2001), the Board has jurisdiction over a whistleblower IRA if the appellant

makes non-frivolous allegations that (1) she made a protected disclosure and (2) based

on the disclosure, the agency took or failed to take a personnel action as defined by

§ 2302(a). However, under 5 U.S.C. §§ 7121(g)(2)-(3), Holderfield may not elect more

than one of the following remedies for a claim relating to reprisal for making

Whistleblowing Protection Act (“WPA”) disclosures:

              (A) An appeal to the Merit Systems Protection Board under
                  section 7701.

              (B) A negotiated grievance procedure under this section.



04-3364                                     -4-
             (C) Procedures for seeking corrective action under
                 subchapters II and III of chapter 12.

      In response to the AJ’s order to specifically reference incidents in the record

satisfying the second prong of the jurisdictional analysis, Holderfield cited, inter alia,

numerous instances of verbal abuse by Chambers over the telephone and at a WOW

work site.   We agree, however, with the Board that Holderfield’s allegations of

“personnel actions” are precluded from consideration in this appeal because of

Holderfield’s prior election of the grievance procedure. In the grievance procedure,

Holderfield complained of numerous incidents of verbal abuse by Chambers, in addition

to other incidents of rude and embarrassing behavior. The agency, in turn, offered, and

Holderfield accepted, a settlement agreement that resolved the aforementioned

complaints. Holderfield cannot now reassert the same alleged “personnel actions” to

establish jurisdiction for a whistleblower IRA based on the same operative facts to

obtain further relief. We also find that the Board did not err in disregarding two of

Holderfield’s allegations of “personnel actions” for referencing events that took place

after the IRA appeal was filed at the Board.

      On appeal, Holderfield argues mainly that her current IRA claim and her prior

grievance proceeding are not completely overlapping.       Specifically, she argues that

while the grievance proceeding addressed retaliatory acts in the form of unfair

performance appraisals, that proceeding did not address her claims of sexual

harassment and discrimination. Aside from failing to explain how the claims of sexual

harassment and discrimination are related to Holderfield’s WPA claim, that argument

does not address the AJ’s finding that all of Holderfield’s allegations of “personnel




04-3364                                    -5-
actions” under § 2302(a)(2)(A)(xi) were resolved in the grievance proceeding. In fact,

Holderfield does not dispute any of the AJ’s findings in her appeal to this court.

Holderfield also argues that the alleged sexual harassment and discrimination

constituted a significant change in the work conditions according to § 2302(a)(2)(A)(xi).

Holderfield fails to explain, however, and we cannot discern from the record, how the

harassment and discrimination were based on Holderfield’s WPA disclosure.

      We have considered Holderfield’s remaining arguments and find them

unconvincing. Accordingly, we affirm the Board’s decision.




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