Opinion

Rocky Freudenberg v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Dec 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROCKY FREUDENBERG, DOCKET NUMBER

Appellant, AT-1221-21-0377-W-1

DEPARTMENT OF VETERANS DATE: December 5, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Allen A. Shoikhetbrod , Esquire, Albany, New York, for the appellant.

Robert Vega , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*Member Kerner recused himself

and did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

find that the appellant made a nonfrivolous allegation that disclosures 4 and 10

were protected and that he exhausted his administrative remedies with respect to

personnel actions 7, 8, 9, and 11, we AFFIRM the initial decision.

BACKGROUND

The appellant is a GS-14 Management and Program Analyst for the

agency’s Veterans Health Administration (VHA). Initial Appeal File (IAF),

Tab 1 at 7, Tab 15 at 20. On November 8, 2018, he filed a whistleblower

complaint with the Office of Special Counsel (OSC), alleging that the agency had

taken multiple personnel actions against him in retaliation for multiple protected

disclosures. IAF, Tab 11 at 29-101. He provided additional information to OSC

on May 15, 2019, and February 22, 2021. Id. at 103, 105-06. On February 26,

2021, OSC closed the appellant’s file without taking corrective action. IAF, Tab

11 at 114-16. On April 30, 2021, the appellant filed the instant IRA appeal and

requested a hearing. IAF, Tab 1 at 2, 8, 16-19.

The administrative judge issued a jurisdictional order, notifying the

appellant of his burden of proof as to his IRA appeal and giving him specific

directions on filing evidence and argument pertinent to the jurisdictional issue.

IAF, Tab 3. The appellant responded, providing a copy of his OSC complaint and

identifying the subject of his Board appeal as 10 protected disclosures and

14 retaliatory actions. IAF, Tab 11 at 11-17, 29-117. After the record on

jurisdiction closed, the administrative judge issued an initial decision dismissing

the appeal for lack of jurisdiction without a hearing. IAF, Tab 18, Initial

Decision (ID). She found that, out of the 10 disclosures that the appellant

identified, for only one of them did he exhaust his administrative remedies and

make a nonfrivolous allegation that it was protected under the Whistleblower

Protection Act (WPA). ID at 3-9. She further found that, out of the 14 alleged

retaliatory actions that the appellant identified, for only five of them did he

exhaust his administrative remedies and make nonfrivolous allegations that they

constituted “personnel actions” under the WPA. ID at 9-12. As to these five

personnel actions, the administrative judge found that the appellant failed to make

a nonfrivolous allegation that his protected disclosure was a contributing factor in

any of them. ID at 12-14.

The appellant has filed a petition for review, disputing the administrative

judge’s analysis and findings. Petition for Review (PFR) File, Tab 1. The

agency has filed a response. PFR File, Tab 3.

ANALYSIS

To establish Board jurisdiction over an IRA appeal, an appellant must show

by preponderant evidence that he exhausted his remedies before OSC, and make

nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 2 Linder v. Department

of Justice, 122 M.S.P.R. 14, ¶ 6 (2014); 5 C.F.R. § 1201.57(a)(1). A nonfrivolous

allegation is an assertion that, if proven, could establish jurisdiction over the

matter at issue. 5 C.F.R. § 1201.4(s). The question of whether the appellant has

nonfrivolously alleged protected disclosures that contributed in a personnel action

must be determined based on “whether [he] alleged sufficient factual matter,

accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit

Systems Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). “The

Board may not deny jurisdiction by crediting the agency’s interpretation of the

evidence as to whether the alleged disclosures fell within the protected categories

or whether the disclosures were a contributing factor in an adverse personnel

action.” Id. at 1369. To exhaust his administrative remedies, an appellant must

provide OSC with a sufficient basis to pursue an investigation. Chambers v.

Department of Homeland Security, 2022 M.S.P.B. 8, ¶ 10.

The appellant made a nonfrivolous allegation that he engaged in a protected

activity under 5 U.S.C. § 2302(b)(9)(C) for which he exhausted his administrative

remedies.

Disclosure 1

According to the appellant’s jurisdictional pleading, on January 28, 2013,

he disclosed allegations of fraud, waste, and abuse to the agency’s Office of

Inspector General (OIG). IAF, Tab 11 at 11. The administrative judge found that

this disclosure was a protected activity and that the appellant raised the matter

with OSC with sufficient clarity to satisfy the exhaustion requirement. ID at 8-9.

Neither party contests this finding on review, and we find that it is supported by

the record and the law. IAF, Tab 11 at 114; see 5 U.S.C. § 2302(b)(9)(C)

To the extent that the appellant requests that the Board remand this appeal for a

jurisdictional hearing, we deny that request. PFR File, Tab 1 at 17, 21. An appellant is

not entitled to a jurisdictional hearing in an IRA appeal because the Board has

jurisdiction over such an appeal only if the appellant nonfrivolously alleges that he

satisfied the prima facie elements of his claim. Graves v. Department of Veterans

Affairs, 123 M.S.P.R. 434, ¶ 22 (2016).

(protecting employees from retaliation for disclosing information to the Inspector

General of an agency); Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8

(explaining that under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C),

any disclosure of information to an agency OIG or OSC is protected regardless of

its content as long as such disclosure is made in accordance with applicable

provisions of law).

Disclosures 2 and 3

According to the appellant’s jurisdictional pleading, he made disclosure 2

on or about June 17, 2015, when he told his supervisor that he intended to report

“fraud, waste, and abuse.” IAF, Tab 11 at 11. Similarly, the appellant identified

disclosure 3 as a series of emails that he sent to an agency management official in

April 2016, “concerning fraud, waste, and abuse.” Id. Without specifically

deciding whether the appellant exhausted these matters with OSC, the

administrative judge found that he failed to make a nonfrivolous allegation that

these disclosures were protected because he failed to specify the nature of the

fraud, waste, and abuse at issue and failed to identify the factual basis for his

belief that any fraud, waste, or abuse had occurred. ID at 7.

On petition for review, the appellant argues that disclosure 2 was protected

under 5 U.S.C. § 2302(b)(9)(B). PFR File, Tab 1 at 21. This provision prohibits

retaliation against employees who testify for or otherwise lawfully assist any

individual in his pursuit of an appeal, complaint, or grievance right granted by

any law, rule, or regulation. Graves v. Department of Veterans Affairs,

123 M.S.P.R. 434, ¶¶ 12-14 (2016). It would cover matters such as testifying in

another employee’s Board appeal or helping a coworker prepare a grievance.

See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 10 (2015)

(determining that performing union-related activities, such as filing grievances

and representing other employees in the grievance process are protected activities

under 5 U.S.C. § 2302(b)(9)(B)). Here, the appellant has not explained how his

statement to his supervisor was connected with anyone’s pursuit of any appeal,

complaint, or grievance. See McCrary v. Department of the Army, 2023 MSPB

10, ¶¶ 23-24 (explaining that, to nonfrivolously allege that he engaged in activity

protected under 5 U.S.C. § 2302(b)(9)(B), it was insufficient for an appellant to

allege that he exercised a grievance right or raised a concern about disability

discrimination against a coworker absent a claim that his coworker filed a

complaint or grievance on the matter). We, therefore, find that he has not made a

nonfrivolous allegation that disclosure 2 was protected under 5 U.S.C. § 2302(b)

(9)(B).

The appellant also argues that an employee’s announcement that he will

make a protected disclosure may constitute protected conduct in itself. PFR File,

Tab 1 at 17. The appellant is correct that an individual’s stated intention to make

a protected disclosure may afford him protection as a “perceived whistleblower.”

See, e.g., Sirgo v. Department of Justice, 66 M.S.P.R. 261, 266 (1995);

Mausser v. Department of the Army, 63 M.S.P.R. 41, 44 (1994). However, this

does not absolve the appellant of his basic obligation to identify with some degree

of specificity what type of “fraud, waste, and abuse” he was alleging. Although

an appellant need not actually make a protected disclosure in order to be

perceived as a whistleblower, he still must show that the relevant agency officials

believed that he “made or intended to make disclosures that evidenced the type of

wrongdoing listed under 5 U.S.C. § 2302(b)(8).” King v. Department of the

Army, 116 M.S.P.R. 689, ¶ 8 (2011). Although the administrative judge explicitly

apprised the appellant of this standard in her jurisdictional order, the appellant

has not identified the subject matter of his intended disclosure with sufficient

specificity to meet the nonfrivolous allegation standard. IAF, Tab 3 at 5; see

Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 17 (2006) (finding that

conclusory allegations lacking in specificity do not constitute nonfrivolous

allegations of IRA jurisdiction). For the reasons explained in the initial decision,

we agree with the administrative judge that the appellant failed to make a

nonfrivolous allegation that disclosures 2 and 3 were protected, or alternatively

that he was perceived as a whistleblower in connection with disclosure 2. ID at 7.

Disclosure 4

The appellant identified disclosure 4 as several letters that he sent to U.S.

Senator Isakson from Georgia in April and May of 2016, in which he reported

“fraud, waste, and abuse” at the agency. IAF, Tab 11 at 11. The administrative

judge found that the appellant failed to raise this issue to OSC and failed to make

a nonfrivolous allegation that it was protected. ID at 5-6 & n.4.

On petition for review, the appellant disputes the administrative judge’s

finding on exhaustion, arguing that he raised this issued before OSC with

sufficient clarity and precision for OSC to pursue an investigation. PFR File,

Tab 1 at 15-16. We disagree. In his 72-page OSC complaint, the appellant made

one cryptic and passing reference to this matter, stating, “In the past, I have

notified my Congressman and OSC where [subject matter experts] (SMEs) did not

believe the [Broad Agency Announcement] submission should be selected by the

[agency] leadership but [agency] leadership were not provided SME selection

information.” IAF, Tab 11 at 38. Not only did the appellant fail to identify the

congressman to whom he disclosed this information or the approximate dates of

any such disclosures, in context, it also does not appear that the appellant was

even alleging retaliation for this disclosure. Id. We, therefore, agree with the

administrative judge that the appellant failed to articulate this matter sufficiently

to satisfy the exhaustion requirement. ID at 5-6.

The appellant also disputes the administrative judge’s finding that

disclosure 4 was not protected, arguing that his OSC complaint contains a

sufficient explanation of the content of this disclosure. PFR File, Tab 1 at 17-18.

We agree. The administrative judge appears to have reviewed the appellant’s

OSC complaint in its entirety but failed to make a connection between this

passage and disclosure 4 as the appellant described it in his jurisdictional

pleading. At the very least, the connection is not obvious, and no one could be

expected to make it absent a specific explanation, such as the one that the

appellant has offered for the first time on petition for review. Nonetheless, we

have considered the appellant’s argument. With the knowledge that the

appellant’s allegations of “fraud, waste, and abuse” specifically concerned

internal agency communication failures that allegedly led to “tens of millions of

dollars” in funding misallocations, we now find that the appellant did make a

nonfrivolous allegation that this disclosure was protected under 5 U.S.C.

§ 2302(b)(8)(A)(ii). 3 IAF, Tab 11 at 38. Nevertheless, the Board still lacks

jurisdiction to consider this disclosure in the context of this appeal because the

appellant failed to satisfy the exhaustion requirement.

Disclosure 5

Disclosure 5 was the appellant’s November 8, 2018 OSC whistleblower

complaint – the very complaint underlying the instant IRA appeal – along with

additional information that the appellant provided to OSC on March 15, 2019, and

February 22, 2021. 4 IAF, Tab 11 at 12. This activity is protected under 5 U.S.C.

§ 2302(b)(9)(C). However, the administrative judge found that the appellant

failed to show that he exhausted his administrative remedies with respect to this

activity because there was no evidence that he asked OSC to investigate any

retaliation for filing the complaint. ID at 5 & n.3.

On petition for review, the appellant argues that the administrative judge

disregarded his sworn declaration, in which he stated, “I hereby swear or affirm

that the allegations raised in the Response were filed with OSC to the best of my

personal knowledge, information, and belief.” PFR File, Tab 1 at 7; IAF, Tab 11

at 25. The Board has held that sworn statements that are not rebutted are

The appellant also argues that disclosure 4 was protected under 2302(b)(9)(A)(i). PFR

File, Tab 1 at 21. This argument is dubious on its face, but we decline to reach it in

light of our finding that the appellant made a nonfrivolous allegation that the disclosure

was protected under another provision. See Linder, 122 M.S.P.R. 14, ¶ 11 n.2.

In his jurisdictional pleading, the appellant misidentifies the first date as March 25,

2019. IAF, Tab 11 at 12. This appears to be a typo. The record shows that the

appellant sent this follow-up to OSC by email on March 15, 2019. Id. at 103.

competent evidence of the matters asserted therein. Truitt v. Department of the

Navy, 45 M.S.P.R. 344, 347 (1990). Further, such hearsay evidence “may be

accepted as preponderant evidence even without corroboration if, to a reasonable

mind, the circumstances are such as to lend it credence.” Kewley v. Department

of Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998). The

following factors affect the weight to be accorded to hearsay evidence: (1) the

availability of persons with firsthand knowledge to testify at the hearing;

(2) whether the statements of the out-of-court declarants were signed or in

affidavit form, and whether anyone witnessed the signing; (3) the agency’s

explanation for failing to obtain signed or sworn statements; (4) whether the

declarants were disinterested witnesses to the events, and whether the statements

were routinely made; (5) the consistency of the declarants’ accounts with other

information in the case, internal consistency, and their consistency with each

other; (6) whether corroboration for the statements can otherwise be found in the

agency record; (7) the absence of contradictory evidence; and (8) the credibility

of the declarants when they made the statement attributed to them. Borninkhof v.

Department of Justice, 5 M.S.P.R. 77, 87 (1981). Considering these factors, we

find the appellant’s declaration insufficient to establish exhaustion as to

disclosure 5.

Weighing in the appellant’s favor are the facts that the declaration is signed

and sworn, he has firsthand knowledge of the content of his OSC complaint, and

the record does not contain evidence that he tends to prevaricate. In addition,

because there has not been a hearing in this case, the appellant cannot be faulted

for not giving testimony on the matter. The appellant’s bias and general

credibility are neutral factors. See Thompson v. Department of the Army ,

122 M.S.P.R. 372, ¶ 25 (2015) (observing that most testimony that an appellant is

likely to give can be characterized as self-serving and finding that it is improper

to discredit it solely on that basis). However, weighing heavily against the

appellant is the fact that there is not even a hint of corroboration for his statement

anywhere in the record. He clearly did not raise the issue (nor could he have) in

his initial November 8, 2018 filing. IAF, Tab 11 at 29-101. He might have raised

the issue on March 15, 2019, or February 22, 2021, when he forwarded some

additional information to OSC. However, the only documentary evidence of this

correspondence is the cover letters, and retaliation for his OSC whistleblower

complaint is not mentioned in either one. Id. at 13, 105-06. Nor is the matter

addressed in OSC’s correspondence to the appellant. Id. at 114-16. The

appellant is presumably in possession of the substance of his March 15, 2019, and

February 22, 2021 correspondence, and his failure to submit this material for the

record casts his claim into doubt. Furthermore, we are troubled by the vagueness

of the appellant’s declaration, which is just a blanket statement that all of the

allegations in his jurisdictional response were raised with OSC. Not only does

this appear to be incorrect, based on our review of some of the other claimed

disclosures and personnel actions, but even if the appellant did raise disclosure 5

with OSC, there is no way for us to tell whether he conveyed it in such a way so

as to satisfy the exhaustion requirement. For these reasons, we agree with the

administrative judge that the appellant failed to prove that he exhausted his

administrative remedies with respect to disclosure 5.

Disclosure 6

The appellant alleged that, on September 6, 2018, he notified his chain of

command about his second-level supervisor’s “inappropriate disclosures.” IAF,

Tab 11 at 12. Without reaching the issue of whether the appellant exhausted this

issue, the administrative judge found that his vague and conclusory

characterization of the disclosure was insufficient to constitute a nonfrivolous

allegation that it was protected. ID at 7.

On petition for review, the appellant identifies the pertinent information in

his initial appeal filing, which explains that the wrongdoing underlying

disclosure 6 was that his second-level supervisor was telling other individuals in

the agency that the appellant had engaged in protected whistleblower activity. 5

PFR File, Tab 1 at 18; IAF, Tab 1 at 17. This, at least, is more concrete and

specific than “inappropriate disclosures,” but we find that it still does not rise to

the level of a nonfrivolous allegation. We can infer that the appellant did not

appreciate that his second-level supervisor was discussing his whistleblowing

activities with others, but that by itself is not sufficient to create a nonfrivolous

allegation that the appellant reasonably believed his disclosure evidenced a

category of wrongdoing under 5 U.S.C. § 2302(b)(8)(A). We are not aware of

any law, rule, or regulation that generally prohibits the discussion of another

individual’s whistleblower activities. 6 Furthermore, it is difficult to conceive of a

scenario in which the mere disclosure of a subordinate’s whistleblower status

could constitute gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health or safety, as those

terms are defined in the case law. Without more information, we cannot find that

the appellant has made a nonfrivolous allegation in this regard.

The appellant faults the administrative judge for failing to comb the entire record to

figure out what disclosure 6 was about. PFR File, Tab 1 at 18. The Board has held that

an administrative judge is required to consider the entire record before dismissing an

IRA appeal for lack of jurisdiction. See Hoback v. Department of the Treasury,

86 M.S.P.R. 425, ¶ 6 (2000). However, based on our review of the initial decision, it

appears to us that the administrative judge considered the record carefully but failed to

make a few connections due to the multiplicity of issues and imprecision of the

appellant’s pleadings. A party, especially a party represented by an attorney, bears the

responsibility of articulating his claim clearly according to the administrative judge’s

instructions, and a party “whose submissions lack clarity risks being found to have

failed to meet his burden of proof.” Luecht v. Department of the Navy, 87 M.S.P.R.

297, ¶ 8 (2000).

Under some circumstances, such discussions might be prohibited by the Privacy Act.

See generally 5 U.S.C. § 552a (2021). Furthermore, depending on the facts, someone

might reasonably believe that the discussion of his whistleblower activity violated the

Privacy Act, even in the absence of an actual violation. See Herman v. Department of

Justice, 115 M.S.P.R. 386, ¶ 10 (2011). However, the appellant in this case has not

explained why he believed that his second-level supervisor had such discussions. Nor

has he described the nature and circumstances of these discussions with sufficient

specificity for us to draw an inference that he reasonably believed the information

conveyed was protected.

The appellant also argues that disclosure 6 is protected under 5 U.S.C.

§2302(b)(9)(A)(i). PFR File, Tab 1 at 21. This provision prohibits retaliation

against an individual for “the exercise of any appeal, complaint, or grievance

right granted by any law, rule, or regulation – with regard to remedying a

violation of [5 U.S.C. § 2302(b)(8)].” We find that the appellant has not made a

nonfrivolous allegation that his disclosure was protected under that provision

because he did not claim that his disclosure was made in the course of exercising

any such appeal, complaint, or grievance right.

In any event, having reviewed the appellant’s OSC complaint, we find no

indication that the appellant raised this issue with OSC at all.

Disclosure 7

Disclosure 7 was a May 23, 2019 disclosure of information to the agency’s

OIG that the appellant’s supervisors failed to assign him adequate work. IAF,

Tab 11 at 13, 109-12. Such communications to an OIG constitute protected

activity under 5 U.S.C. § 2302(b)(9)(C). However, the administrative judge

found that the appellant failed to exhaust this issue before OSC. ID at 4-5.

As with disclosure 5, the appellant argues on review that his sworn

declaration provides adequate evidence of exhaustion. PFR File, Tab 1 at 7; IAF,

Tab 11 at 25. However, for the same reasons explained in connection with

disclosure 5 above, we find that the appellant’s declaration is inadequate to prove

by preponderant evidence that he exhausted disclosure 7. Supra, 8-10. Without

some sort of corroborating evidence, the appellant’s vague and conclusory

declaration is insufficient to show that he raised the issue before OSC so as to

have satisfied the exhaustion requirement.

Disclosure 8

As the appellant described it in his jurisdictional pleading, disclosure 8 was

an “Analysis of VA Worklist Telepathology” – a report that he provided to

supervisory staff on May 15, 2019, and that included a statement regarding his

second-level supervisor’s misuse of agency funds. IAF, Tab 11 at 14. In her

initial decision, the administrative judge did not reach the issue of whether the

appellant exhausted this issue. Instead, she found that the appellant failed to

make a nonfrivolous allegation that this disclosure was protected because he

summarily concluded that his belief was reasonable without explaining why. ID

at 7-8.

On petition for review, the appellant disputes the administrative judge’s

finding, arguing that his description of this disclosure was sufficiently specific as

set forth in his initial appeal filing. PFR File, Tab 1 at 19. However, the

appellant’s initial appeal filing contains no more information than his

jurisdictional pleading, which, as the administrative judge found, was inadequate.

IAF, Tab 1 at 17. For the first time on review, the appellant also submits a copy

of the Worklist Telepathology Report for the record. 7 PFR File, Tab 1 at 28-31.

The report states, among other things, that the appellant’s second-level supervisor

“failed to coordinate VHA Grassroots telepathology innovation with Telehealth

personnel that were involved in telepathology.” PFR File, Tab 1 at 28. He

appears to have alleged that this lack of coordination resulted in the expenditure

of $2 million for a project that was never completed. Id. This evidence could

support a finding that the appellant made a nonfrivolous allegation that this

disclosure was protected. 8

In any event, we find it unnecessary to reach this issue because the

appellant here presented no evidence, apart from his vague and conclusory

declaration, that he exhausted this issue with OSC. We, therefore, find that he

The agency submitted some brief excerpts from this report for the record below, but

these excerpts did not contain the relevant information. IAF, Tab 15 at 113-14.

The appellant also has submitted a number of emails for the first time with his petition

for review, but he has not explained the relevance of any of these emails to the

jurisdictional issue. PFR File, Tab 1 at 33-60; see Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review

based on new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision).

has failed to prove that he met the exhaustion requirement with respect to

disclosure 8.

Disclosure 9

The appellant described disclosure 9 as having been made on December 23,

2020, to his supervisory chain and as concerning his first-level supervisor’s

“unbecoming conduct.” IAF, Tab 11 at 14. Without reaching the issue of

whether the appellant exhausted this issue with OSC, the administrative judge

found that he failed to make a nonfrivolous allegation that it was protected. ID

at 8. She acknowledged that the appellant characterized this alleged unbecoming

conduct as a misuse of agency funds, but she found that the appellant failed to

make a nonfrivolous allegation that he had a reasonable belief in the matter

because he failed to set forth the facts on which his belief was based. Id.

On petition for review, the appellant argues that “the full Analysis of VA

Worklist Telepathology as provided to OSC is quite clear about the funds misused

. . . and the manner they were misused.” PFR File, Tab 1 at 19. Therefore, for

the first time, the appellant has clarified that disclosure 9 concerned the same

subject matter as disclosure 8. However, that being the case, disclosure 9 suffers

from the same infirmities with respect to the Board’s jurisdiction; the appellant

has not provided adequate evidence of exhaustion. 9 Supra, 13-14

Disclosure 10

The appellant stated in his jurisdictional response that, on December 31,

2020, he notified everyone in his chain of command that his second-level

supervisor was engaging in whistleblower retaliation against him. IAF, Tab 11

at 14-15. In her initial decision, the administrative judge did not reach the

exhaustion issue with respect to this disclosure but, instead, found that the

appellant failed to make a nonfrivolous allegation that disclosure 10 was

The appellant also argues that disclosure 9 was protected under 5 U.S.C. § 2302(b)(9)

(A)(i). PFR File, Tab 1 at 21. However, we find that this provision does not apply

because he has not alleged that he made this disclosure during the course of an appeal,

complaint, or grievance.

protected because he did not explain the basis for his belief that he was the

subject of retaliation. ID at 8.

On petition for review, the appellant argues that disclosure 10 was

protected under 5 U.S.C. § 2302(b)(9)(A)(i). PFR File, Tab 1 at 21. However,

we find that this provision does not apply because this disclosure did not

constitute an appeal, complaint, or grievance granted by law, rule, or regulation.

Citing Keefer v. Department of Agriculture, 82 M.S.P.R. 687, 690-97 (1999), the

appellant argues that “[w]histleblowing allegations need not constitute factual

pleadings.” PFR File, Tab 1 at 20. We disagree. Keefer does not stand for this

proposition. Further, the Board has repeatedly explained that “[a] nonfrivolous

allegation is an allegation of fact.” E.g., Carney v. Department of Veterans

Affairs, 121 M.S.P.R. 446, ¶ 11 (2014).

The appellant also cites Johnston v. Merit Systems Protection Board,

518 F.3d 905 (Fed. Cir. 2008), for the proposition that what the relevant

management officials knew about his disclosure and when they knew it is not a

jurisdictional question but a merits question. PFR File, Tab 1 at 20. The court in

Johnston made no such holding and, in fact, explicitly stated that, in order to

carry his jurisdictional burden, an appellant must make nonfrivolous allegations

that his disclosure was a contributing factor in the agency’s decision to take an

adverse personnel action against him. Johnston, 518 F.3d at 912. Nevertheless,

considering the record as a whole, including the appellant’s allegations that he

engaged in protected activity and his allegations that his second-level supervisor

thereafter took several personnel actions against him, we find that he has made a

nonfrivolous allegation that he reasonably believed that his second-level

supervisor was engaging in whistleblower reprisal. IAF, Tab 11 at 11-17.

Because whistleblower retaliation is a violation of law under 5 U.S.C. § 2302(b)

(8)-(9), we find that the appellant has made a nonfrivolous allegation that his

disclosure was protected under 5 U.S.C. § 2302(b)(8)(A)(i).

Turning to the issue of exhaustion, however, we find that the appellant

failed to prove by preponderant evidence that he exhausted this matter with OSC.

Apart from his vague and conclusory declaration, there is no evidence that he

raised the issue with OSC at all.

For these reasons, we agree with the administrative judge that the only

disclosure properly before the Board in this appeal is disclosure 1, the appellant’s

January 28, 2018 disclosure to the agency’s OIG. ID at 8-9.

The appellant has made a nonfrivolous allegation that the agency took seven

personnel actions against him for which he exhausted his administrative remedies.

The definition of “personnel action” for the purposes of the WPA is broad,

but it is not unlimited. See Ruggieri v. Merit Systems Protection Board, 454 F.3d

1323, 1325 (Fed. Cir. 2006). The term is defined in 5 U.S.C. § 2302(a)(2)(A),

which contains a list of 12 categories of personnel action over which the Board

may have jurisdiction in the context of an IRA appeal.

In his jurisdictional pleading, the appellant identified 14 personnel actions

that he was raising in his appeal. The administrative judge found that for only

five of these actions did the appellant exhaust his administrative remedies and

make nonfrivolous allegations that they constituted “personnel actions” within the

meaning of 5 U.S.C. § 2302(a)(2)(A). ID at 9-12. These were an August 8, 2018

letter of reprimand (personnel action 1), an October 4, 2018 refusal to rescind that

letter of reprimand (personnel action 2), a November 30, 2018 performance

evaluation (personnel action 4), a June 17, 2019 reassignment (personnel action

5), and a December 2020 performance evaluation (personnel action 12). 10 Id. For

the remainder of the claimed personnel actions, the administrative judge found

that either the appellant did not exhaust his administrative remedies, or they did

not meet the legal definition of “personnel action,” or both. ID at 10-12.

The administrative judge’s summary list of claimed actions for which the appellant

exhausted his administrative remedies and made nonfrivolous allegations that they

constituted “personnel actions” did not include personnel action 12. ID at 12. This

appears to have been an oversight.

Among the nine claimed personnel actions that the administrative judge

excluded from further consideration on these bases, the appellant has elected to

contest her findings on only four of them. The administrative judge’s findings on

the remaining five (personnel actions 3, 6, 10, 13, and 14) appear correct on their

face, and we will not consider them any further. ID at 10-11; see 5 C.F.R.

§ 1201.115 (“The Board normally will consider only issues raised in a timely

filed petition or cross-petition for review.”). The agency has not challenged the

administrative judge’s findings as to personnel actions 1, 2, 4, 5, or 12. We find

no basis to disturb the administrative judge’s findings on these issues either.

Personnel Actions 7 and 9

The appellant identified personnel actions 7 and 9 as the agency’s failure to

provide him with a midterm performance review on May 1 and October 15, 2020,

respectively. IAF, Tab 11 at 16. In her initial decision, the administrative judge

found that, under King v. Department of Health & Human Services, 133 F.3d

1450, 1452-53 (Fed. Cir. 1998), midterm evaluations generally do not rise to the

level of personnel actions under 5 U.S.C. § 2302(a)(2)(A). ID at 11-12. She also

found that the appellant failed to exhaust his administrative remedies with respect

to these matters because he did not raise them before OSC. ID at 10.

On petition for review, the appellant argues that OSC’s closeout letter

specifically refers to the midterm reviews by stating that midpoint performance

reviews generally do not constitute personnel actions. PFR File, Tab 1 22; IAF,

Tab 11 at 144. We agree with the appellant, and we find preponderant evidence

that he exhausted these failures to provide midterm performance reviews with

OSC.

The appellant further argues that these midterm evaluations were not the

type of “informal, collaborative, non-consequential, and somewhat prospective”

“progress reviews” discussed in King but were, instead, more akin to annual

performance appraisals, “formal, judgmental, consequential, and retrospective” in

nature. PFR File, Tab 1 at 22; King, 133 F.3d at 1452. We find that the

appellant’s conclusory assertion about the nature of the midterm performance

reviews at issue does not constitute a nonfrivolous allegation that they were

covered personnel actions. In the absence of some sort of explanation of what

“practical consequence” these midterm reviews would have had for him, we

cannot find that the appellant made a nonfrivolous allegation that they fall outside

the general rule set forth in King. We, therefore, find no basis to disturb the

administrative judge’s finding that the appellant failed to make a nonfrivolous

allegation that claimed personnel actions 7 and 9 meet the definition of

“personnel action” under 5 U.S.C. § 2302(a)(2)(A). ID at 10 n.5.

Personnel Actions 8 and 11

The appellant described personnel action 8 as the agency’s failure, on

October 16, 2020, to provide him with a performance evaluation for the previous

year. IAF, Tab 11 at 16. He described personnel action 11 as the agency’s

failure to notify him of a change in the date range of his performance period until

November 30, 2020 – the very last day of that new performance period. Id. In

her initial decision, the administrative judge found that the appellant failed to

exhaust his administrative remedies with respect to either of these matters. ID

at 10 & n.5.

On petition for review, the appellant argues that OSC’s closeout letter says

“[y]ou stated that you were not aware that the performance period had been

altered,” which the appellant characterizes as “a clear reference” to personnel

actions 8 and 11. PFR File, Tab 1 at 22; IAF, Tab 11 at 114. The administrative

judge noted this language in OSC’s closeout letter and found that there was no

indication that the appellant had raised this issue to OSC as a distinct personnel

action but, instead, seemed to have considered the claim as evidence in support of

the appellant’s claims of retaliation in connection with other personnel actions.

ID at 10-11 n.5. We disagree with the administrative judge’s reading of OSC’s

closeout letter, and we find it more likely than not that the appellant raised both

personnel action 8 and personnel action 11 as distinct personnel actions for which

he was seeking corrective action. IAF, Tab 11 at 114.

We further find that the appellant has made a nonfrivolous allegation that

both of these constituted “personnel actions” within the meaning of 5 U.S.C.

§ 2302(a)(2)(A)(viii). As we understand it, these two matters are related to one

another; in October 2020, the appellant was expecting but did not receive a

performance evaluation covering the period from October 2019 through

September 2020, and it was only at the end of November 2020 that the agency

informed him that he would not be receiving such an evaluation but would instead

be evaluated based on a different period of time. IAF, Tab 11 at 16-17.

Assuming that these allegations are true, this was an agency decision that would

have practical consequences for the appellant’s annual performance evaluation.

For these reasons, we find that the appellant exhausted his administrative

remedies with respect to personnel actions 1, 2, 4, 5, 8, 11, and 12, and made

nonfrivolous allegations that these constituted “personnel actions” for purposes of

the WPA.

The appellant failed to make a nonfrivolous allegation that disclosure 1 was a

contributing factor in personnel actions 1, 2, 4, 5, 8, 11, or 12.

Once an appellant has made a nonfrivolous allegation that he made a

protected disclosure and was subjected to a covered personnel action, he must

also make a nonfrivolous allegation that the disclosure was a contributing factor

in that action. Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 13 (2013).

The appellant may meet his burden in a number of ways, the most common being

the knowledge/timing test of 5 U.S.C. § 1221(e)(1), under which contributing

factor can be established based on temporal proximity between the personnel

action and the relevant agency officials’ learning of the disclosure. Shibuya v.

Department of Agriculture, 119 M.S.P.R. 537, ¶ 22 (2013). Alternatively,

contributing factor may be established through other means, such as evidence

pertaining to the strength or weakness of the agency’s reasons for taking the

personnel action, whether the whistleblowing was personally directed at the

proposing or deciding officials, and whether these individuals had a desire or

motive to retaliate against the appellant. Dorney v. Department of the Army,

117 M.S.P.R. 480, ¶ 15 (2012). Any weight given to a whistleblowing disclosure,

either alone or in combination with other factors, can satisfy the contributing

factor standard. Powers v. Department of the Navy, 69 M.S.P.R. 150, 156 (1995).

In her initial decision, the administrative judge found that the personnel

actions that had not been excluded for consideration for other reasons were too

remote in time from the appellant’s January 28, 2013 disclosure to satisfy the

knowledge/timing test of 5 U.S.C. § 1221(e)(1). ID at 13. We agree. To satisfy

the timing component of the knowledge/timing test, a personnel action must

generally be taken within 1 or 2 years of when the relevant officials learned of the

disclosure. See Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 10 (2003).

In this case, the earliest personnel action taken was the letter of reprimand issued

on August 8, 2018 (personnel action 1), which was more than 5 years after the

appellant’s January 28, 2013 alleged protected activity and more than 4 years

after the resulting OIG report of investigation. 11 IAF, Tab 11 at 11. The

appellant disputes this finding on review, but his arguments are based on the

proximity of time between the personnel actions and his more recent disclosures,

which, as explained above, are not properly at issue in this appeal. PFR File,

Tab 1 at 23-24; IAF, Tab 11 at 20.

The appellant previously filed another IRA appeal, alleging retaliation for the

January 28, 2013 OIG disclosure. Freudenberg v. Department of Veterans Affairs ,

MSPB Docket No. AT-1221-18-0321-W-2. In his initial decision, the administrative

judge in that case found that agency management generally did not become aware that

the appellant had made this disclosure until February 2014, when the OIG report was

released. IAF, Tab 15 at 33. He also found that the Director for Connected Health did

not become aware of this fact until later, on June 16, 2015. Id. at 38. Even counting

from this latter date, the personnel actions at issue in this appeal still occurred well

outside the 2-year window generally considered sufficiently close in time to satisfy the

timing prong of the knowledge/timing test.

The administrative judge also found that the appellant failed to make a

nonfrivolous allegation of contributing factor based on the considerations set

forth in Dorney, 117 M.S.P.R. 480. ID at 13-14. She found that, even assuming

that the agency’s reasons for its actions were weak, the appellant offered no

explanation of why either of the relevant agency officials, 12 neither of whom were

implicated in the original disclosure or the resulting report of investigation,

would be motivated to retaliate against him for it 5 or more years later. Id.

On petition for review, the appellant asserts that there is “direct evidence of

retaliation” because his second-level supervisor disclosed the appellant’s

whistleblower status to his former and current supervisors. PFR File, Tab 1 at 23.

We do not find that this constitutes direct evidence of retaliation. Furthermore,

absent at least a minimum level of detail about the context and content of the

second-level supervisor’s alleged communications about the appellant’s

whistleblowing activity, it is difficult to see how this would constitute

circumstantial evidence of retaliation either. For the reasons explained in the

initial decision, we agree with the administrative judge that the appellant failed to

make a nonfrivolous allegation that disclosure 1 was a contributing factor in

personnel actions 1, 2, 4, 5, or 12. ID at 13-14. The administrative judge’s

reasoning applies equally to personnel actions 8 and 11, and we likewise find that

the appellant failed to make a nonfrivolous allegation that his disclosure was a

contributing factor in either of those personnel actions.

It appears that the two officials implicated in the relevant personnel actions were the

Director for Connected Health and the appellant’s second-level supervisor. IAF, Tab 11

at 15-16. It may also be reasonably inferred that the appellant’s first-level supervisor

was involved in these actions to some extent. If there were any other agency officials

involved in taking these actions, the appellant has not identified them.

NOTICE OF APPEAL RIGHTS 13

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 14 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the