# Rocky Freudenberg v. Department of Veterans Affairs

> Merit Systems Protection Board · December 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10756068

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** December 5, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ROCKY FREUDENBERG, DOCKET NUMBER
Appellant, AT-1221-21-0377-W-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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.

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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.
3

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
4

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)

2
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).
5

(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,
6

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
7

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
8

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
3
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.
4
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.
9

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
10

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
11

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.

5
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).
6
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.
12

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
13

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

7
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.
8
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).
14

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
9
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.
15

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).
16

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.

10
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.
17

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
18

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
19

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
20

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.

11
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.
21

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.

12
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.
22

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:

13
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.
23

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
24

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
25

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
following address:

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

14
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
26

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10756068. Public record. Not legal advice.