May v. DOJ

Case: 26-1742 Document: 18 Page: 1 Filed: 11/05/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ PETER J. MAY, Petitioner v. DEPARTMENT OF JUSTICE, Respondent ______________________ 2026-1742 ______________________ Petition for review of the Merit Systems Protection Board in No. NY-1221-23-0171-B-1. ______________________ Decided: November 5, 2026 ______________________ PETER JAMES MAY, Rockville Centre, NY, pro se. ELINOR JOUNG KIM, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before LOURIE, DYK, and HUGHES, Circuit Judges. PER CURIAM. Case: 26-1742 Document: 18 Page: 2 Filed: 11/05/2026 2 MAY v. DOJ Peter J. May petitions for review of a final order of the Merit Systems Protection Board (“the Board”) denying cor- rective action under the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act. 1 S.A. 1–6 (“Final Order”) (adopting the initial decision as the Board’s final decision); S.A. 8–37 (“Initial Decision”). 2 For the fol- lowing reasons, we affirm. BACKGROUND May worked for the Drug Enforcement Agency (“DEA”) from 1991 until his voluntarily retirement in June 2014. Initial Decision, S.A. 17. In 2013, he was temporarily pro- moted from Criminal Investigator to Supervisory Criminal Investigator for a period lasting no more than 120 days. Id. at 18. On April 22, 2013, before the 120 days had elapsed, May refused to assign agents to a Department of Homeland Security search for narcotics on an incoming flight at the John F. Kennedy Airport (“JFK”) because he believed that it would constitute an unlawful Fourth Amendment search. Id. at 18–20. May memorialized the circumstances in a memorandum titled “JFKIA Memorandum dated 04- 23-2013” (“JFKIA Memo”). Id. at 19. On or about that same day, May was demoted to his prior permanent posi- tion. Id. at 18. According to a Memorandum of Counseling dated June 26, 2013, from his supervisor, May was de- moted due to multiple instances of disrespectful and bellig- erent behavior. Id. at 18–19. On May 26, 2013, May was not selected for a promotion and on June 26, 2013, he was involuntarily transferred to another unit and location. Id. at 21. 1 We refer to May’s whistleblower claims here as “WPEA claims.” 2 “S.A.” refers to the Supplemental Appendix filed by the government with its Informal Brief, ECF No. 12. Case: 26-1742 Document: 18 Page: 3 Filed: 11/05/2026 MAY v. DOJ 3 In September 2016, May filed an Individual Right of Action appeal to the Board. He asserted that these various personnel actions were taken against him as reprisals for his protected disclosure of unlawful searches of passengers transiting JFK for evidence of narcotics in violation of the WPEA. Id. at 25. In the Initial Decision of the Board, the administrative judge (“AJ”) dismissed May’s appeal after finding it had no jurisdiction because May had not ex- hausted his administrative remedies by filing with the Of- fice of Special Counsel (“OSC”) before appealing to the Board. Id. at 25–26. On June 15, 2023, more than ten years after the pro- tected disclosure, May filed a complaint with the OSC, which ultimately authorized May’s right to appeal. 3 S.A. 80. The AJ dismissed the appeal for lack of jurisdiction, determining that, at the threshold, May failed to exhaust his administrative remedies by not providing essential de- tails to the OSC about the WPEA claims and that he also failed to non-frivolously allege that the disclosure was pro- tected. Id. at 64–68. May appealed to the full Board, which reversed and remanded for further adjudication after find- ing that his remedies had been exhausted and that May alleged a non-frivolous protected disclosure under 5 U.S.C. § 2302(b)(8) that was a contributing factor in the personnel action under 5 U.S.C. § 2302(a)(2)(A). S.A. 45–55. On remand, the AJ determined that May made a pro- tected disclosure when he communicated his belief that the 3 Before May filed the OSC complaint, he appealed the full Board’s finding of no jurisdiction to this court. May v. Merit Sys. Prot. Bd., 2024 WL 4128838 (Fed. Cir. Sept. 10, 2024) (”May I”). This court acknowledged May’s later filing of the complaint to the OSC but nonetheless affirmed the finding of lack of jurisdiction because “May had not ex- hausted his administrative remedies with the OSC before his Board appeal in this case.” Id. at *2 (emphasis added). Case: 26-1742 Document: 18 Page: 4 Filed: 11/05/2026 4 MAY v. DOJ narcotic searches violated the Fourth Amendment, but that he failed to show that the disclosure was a contrib- uting factor in the personnel action at issue. Initial Deci- sion, S.A. at 19–25. Specifically, the AJ determined that May’s JFKIA Memo merely discussed “turf battles” be- tween agencies, as opposed to raising allegations of Fourth Amendment violations, which were described as “after-the- fact characterizations” never brought to OSC. Id. at 22– 23. Instead, the AJ determined that the record supported the agency’s position that May’s demotion was due to dis- respectful and unprofessional behavior as detailed by May’s supervisor in the Memorandum of Counseling. Id. 22–25. The AJ also concluded that the agency established a laches defense because the 10-year delay between the per- sonnel actions and May’s filing of the OSC complaint was inexcusable. Id. at 25–27. The AJ also found that the delay disadvantaged the agency because the potential witnesses have all retired from federal service and the supervisor at- tested to not recalling the events. Id. at 27–29. The AJ therefore denied May’s request for corrective action. May petitioned the full Board for review, but due to a lack of quorum, the initial decision became the final decision of the Board. Final Decision, S.A. 1. May now petitions for review by this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION Our jurisdiction to review decisions of the Board is lim- ited. The Board’s decision must be affirmed unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without proce- dures required by law, rule, or regulation having been fol- lowed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). “We review the Board's legal conclu- sions de novo and its fact findings for substantial evidence.” Case: 26-1742 Document: 18 Page: 5 Filed: 11/05/2026 MAY v. DOJ 5 Hansen v. Dep’t of Homeland Sec., 911 F.3d 1362, 1366 (Fed. Cir. 2018). May appeals the Board’s determinations regarding (1) his protected disclosure not being a contributing factor for the personnel actions; and (2) laches. We address each in turn. To succeed on the merits of a WPEA claim, an employee must show that (1) he made a protected disclosure and (2) it was a contributing factor in the agency’s decision to take, or fail to take, a personnel action against him. Yunus v. Dep’t of Veterans Affs., 242 F.3d 1367, 1371 (Fed. Cir. 2001) (citing 5 U.S.C. §§ 2302(a), (b)(8)). After careful review of the record, we conclude that the Board’s decision was in accordance with law and supported by substantial evidence. May fails to show error in the Board’s conclusion that he is not entitled to corrective ac- tion under the WPEA. Specifically, May fails to show that the Board’s conclusion that his protected disclosure was not a contributing factor to the personnel actions lacks sub- stantial evidence or is otherwise legally erroneous. First, in his arguments to this court, May does not ar- ticulate any error by the Board. May’s only evidence is the JFKIA Memo, which the Board reviewed and determined was merely describing conversations with supervisors about agencies’ “turf battles.” The Board also determined that any purported causal link between the disclosure and the personnel action was based only on “after-the-fact char- acterizations” of these discussions as Fourth Amendment violations. On the other hand, the record shows multiple instances of belligerent and disrespectful behavior by May within a 1-month period, including one instance on or about the day he was demoted from his temporary position. Initial Deci- sion, S.A. 21–25. The Memorandum of Counseling by his Case: 26-1742 Document: 18 Page: 6 Filed: 11/05/2026 6 MAY v. DOJ supervisor also provided details about May’s consistent un- professional and disrespectful behavior. For instance, May complained about driving to the city for work, stated that mission objectives were not worth the time, and was once asked to leave a team meeting due to his disrespectful be- havior. Id. at 23–24. The supervisor explained that May’s continuous disrespectful conduct “troubled” him and was the cause of the earlier demotion and non-selection for pro- motion. Id. Thus, substantial evidence supports the Board’s determination that May’s protected disclosure was not a contributing factor in the personnel actions. We next address the Board’s laches determination. This court reviews laches determinations for “abuse of dis- cretion.” Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358, 1364 (Fed. Cir. 2001). “In this circuit, two elements are necessary to establish the affirmative defense of laches: (1) inexcusable delay on the part of the claimant; and (2) prej- udice to defendant as a result of such delay.” Pepper v. United States, 794 F.2d 1571, 1573 (Fed. Cir. 1986). As an affirmative defense, “the burden of proving both elements rests with the party raising it.” Hoover v. Dep’t of Navy, 957 F.2d 861, 863 (Fed. Cir. 1992). Upon review, we also find no abuse of discretion in the Board’s finding that the agency established the equitable defense of laches. May waited 10 years after the protected disclosure to file a complaint with the OSC. As explained by the Board, he had notice of the requirement to file a com- plaint with OSC in order to receive an authorization to file an Individual Right of Action. Initial Decision, S.A. 26–27. May filed the corresponding complaint with OSC on July 11, 2023, almost seven years after he received notice of the jurisdictional requirement. Id. at 25. May argues that he “should not be held accountable” for the delay because the Board did not have a quorum for seven years and, upon restoration of a quorum, it issued the decision on appeal. Appellant’s Memo in Lieu of Oral Case: 26-1742 Document: 18 Page: 7 Filed: 11/05/2026 MAY v. DOJ 7 Argument 2–3. That argument is unpersuasive. The crux of the delay was May’s decision to file the OSC complaint close to seven years after being notified of the jurisdictional requirement and about 10 years after the protected disclo- sure and personnel actions. The Board’s lack of a quorum has no bearing on the delay. We thus agree with the Board that May’s more than 10-year delay in filing a complaint after the events giving rise to the cause of action is inex- cusable. Pepper, 794 F.2d at 1573 (affirming that a delay of more than 6 years for filing a complaint is inexcusable for laches). We also find no abuse of discretion in the Board’s con- clusion that such an unreasonable delay disadvantages the agency’s ability to defend against May’s claims because all relevant witnesses have retired from the agency and do not sufficiently recall the events underlying this action. Initial Decision, S.A. 27–28. In the briefs before us, May also argues that, as a Cau- casian heterosexual man, he was subjected to discrimina- tion based on race and sexual orientation. Appellant’s Inf. Br. 2. May requests this appeal be treated as a mixed case and asks this court to transfer it to a court in a district of New York. 4 Id. at 3. We decline to do so. 4 In May I, the mixed case issue was also raised by May based on the same underlying facts presented here. There, this court held that “none of the agency actions at issue were adverse personnel actions appealable to the Board” because the early demotion, transfer, and failure to be con- sidered for promotion do not constitute a “serious adverse personnel action” as required for a mixed case under 5 U.S.C.§ 7512. Thus, “May’s appeal cannot be considered a mixed case.” May I, 2. May’s discrimination claim has thus already been resolved in the prior proceeding. Case: 26-1742 Document: 18 Page: 8 Filed: 11/05/2026 8 MAY v. DOJ The Board has no jurisdiction to address May’s argu- ments concerning Title VII discrimination as part of the WPA case because “in an IRA appeal to the Board, the Board's review is limited to the merits of allegations of vi- olations of the Whistleblower Protection Act. Discrimina- tion claims may not be raised in that context.” See Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1327 (Fed. Cir. 2020). CONCLUSION We have considered May’s remaining arguments but find them unpersuasive. For the above reasons, we affirm. AFFIRMED COSTS No costs.