Peggy Maloney v. Executive Office of the President, Office of Administration, 2022 MSPB 26

Background

Peggy A. Maloney, a GS-11 Management Analyst at the Office of Administration (OA) in the Executive Office of the President (EOP), filed an IRA appeal alleging whistleblower retaliation (administrative leave, reprimand, work-improvement plan, denied within‑grade increases, proposed suspension, and later separation).
The agency moved to dismiss for lack of Board jurisdiction, arguing OA/EOP is not an "agency" under 5 U.S.C. § 2302(a)(2)(C). The administrative judge dismissed the IRA appeal for lack of jurisdiction.
On petition for review the Board granted review, vacated the initial decision, and remanded for further proceedings. The Board held OA qualifies as an "independent establishment" under 5 U.S.C. § 104(1), thus an "Executive agency" under 5 U.S.C. § 105 and within the whistleblower/IRA jurisdictional definition of "agency."
The Board found Maloney is an "employee" in a "covered position" and that her IRA appeal was timely filed; it directed the administrative judge on remand to address OSC exhaustion and whether Maloney made nonfrivolous protected-disclosure and contributing-factor allegations.
The Board rejected reliance on FOIA precedent treating EOP units narrowly (CREW) as controlling here, declined to treat 3 U.S.C. § 112 (detail provisions) as dispositive, and emphasized a broad remedial construction of whistleblower protections and historical/organizational evidence (Reorganization Plan No.1 of 1977; Exec. Order No. 12028) in concluding OA is an independent establishment.

Issues

Issue	Maloney's Argument	Agency's Argument	Held
Whether OA is an "agency" for IRA jurisdiction	OA (Maloney) argued the Board has jurisdiction; OA functions like other executive entities and employees are covered by Title 5 programs	Agency argued EOP/OA is not an "agency" under §2302 definition and FOIA-based precedent excludes OA	Board held OA is an "independent establishment" under §104(1), thus an "Executive agency" under §105 and within §2302(a)(2)(C) for IRA jurisdiction
Whether Maloney is an "employee" in a "covered position"	Maloney is a Title 5 civil‑service employee occupying competitive‑service positions	Agency did not dispute employee/covered‑position status	Held Maloney meets the definitions of "employee" (5 U.S.C. §2105) and "covered position" (5 U.S.C. §2302(a)(2)(B))
Timeliness / OSC exhaustion	Maloney timely filed IRA after OSC close-out letter; appealed other actions too	Agency argued untimely under 5 U.S.C. §1214(a)(3)(A)	Board agreed IRA was timely (65‑day rule from OSC close‑out) and directed exhaustion/timeliness and OSC issues to be addressed on remand
Procedural claims (severance, AJ delay/bias, additional pleadings)	Maloney contended severance/joining and delay/bias harmed her and sought to file supplemental materials	Agency defended AJ discretion to sever and process; argued record closed	Held AJ's severance and timing did not show reversible error or bias; denied extra pleadings for lack of new/material evidence; remand for merits only after jurisdictional thresholds addressed

Key Cases Cited

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (considered whether President’s immediate staff or EOP units qualify as "agency" under FOIA)
Citizens for Responsibility & Ethics in Washington v. Office of Administration, 566 F.3d 219 (D.C. Cir. 2009) (D.C. Cir. held OA not an "agency" for FOIA purposes)
Booker v. Merit Systems Protection Board, 982 F.2d 517 (Fed. Cir. 1992) (use of 5 U.S.C. §105 to define "Executive agency" in whistleblower context)
United States v. Espy, 145 F.3d 1369 (D.C. Cir. 1998) (D.C. Cir. declined to treat EOP as a single FOIA "agency")
Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (entity in White House context held not an "independent establishment" for Title VII purposes)
Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519 (1947) (statutory headings cannot override plain statutory text in construction)
Iverson v. United States, 973 F.3d 843 (8th Cir. 2020) (pari materia canon requires statutes be on the same subject to be construed together)