The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERIC AUGUSTE, DOCKET NUMBER
Appellant, PH-1221-19-0235-W-1
v.
DEPARTMENT OF VETERANS DATE: February 28, 2025
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Frederic Auguste , Windsor, Vermont, pro se.
Joshua Carver , Esquire, Augusta, Maine, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND 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 Board
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review and REMAND the case to the Northeastern Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
The agency terminated the appellant from his position as a Supervisory
Medical Supply Technician due to unacceptable conduct and performance in
March 2019. Initial Appeal File, Tab 6 at 23-24. The appellant sought corrective
action from the Office of Special Counsel (OSC), alleging that his termination
was in reprisal for making disclosures to the agency’s ethics committee. IAF,
Tab 1 at 11. OSC subsequently informed him that it had closed its investigation
into his allegations, and that he may have the right to seek corrective action from
the Board. Id.
The appellant filed a Board appeal, alleging that he was terminated shortly
after he made various disclosures to the agency’s “Ethics point of contact,” which
were also shared with the “Equal Opportunity/Resolution Mgmt point of contact.”
Id. at 7. The administrative judge issued an order setting forth the appellant’s
burden to establish jurisdiction over his IRA appeal. IAF, Tab 10.
The appellant responded, alleging that he disclosed to the ethics department
management’s failure or refusal “to investigate or correct issues” as required by
the agency’s handbook at 5021/15 Appendix A. IAF, Tab 11 at 6. He further
alleged that he reported to the ethics department that agency officials had
engaged in gross mismanagement by giving another employee favorable treatment
and by generally not requiring her to perform her duties. Id. at 7. The appellant
originally requested a hearing, but subsequently withdrew his request. IAF,
Tab 13 at 4.
The administrative judge issued an initial decision dismissing the IRA
appeal for lack of Board jurisdiction. IAF, Tab 14, Initial Decision (ID) at 1. He
found that the appellant had sufficiently exhausted his OSC remedies. ID at 5.
3
The administrative judge held that the VA handbook, which the appellant alleged
he disclosed a violation of, did not require any obligation on agency management
to take specified action or charge individuals with any stated offense, and thus,
the appellant failed to nonfrivolously allege that his report of management’s
inaction violated the handbook. ID at 6-7. The administrative judge next found
that the appellant’s disclosures that a coworker was treated favorably, and
management’s failure to take formal disciplinary action against her, did not
amount to a nonfrivolous allegation of a protected disclosure. Id. Finally, the
administrative judge found that, to the extent the appellant alleged his
communications with the ethics department included other protected disclosures,
he failed to demonstrate that he reasonably believed these communications
evidenced any of the protected categories set forth in 5 U.S.C. § 2302(b)(8). ID
at 7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has responded, and the appellant has replied to its
response. PFR File, Tabs 4, 5. The appellant attaches various documents to his
petition, including a performance review and the OSC closeout letter. 2 PFR File,
Tab 2 at 10-15.
The appellant has also requested to update his address “with the Board, but
not the agency,” claiming disclosure of his new address would “compromise both
his safety and privacy.” PFR File, Tab 6 at 4. The agency has not responded to
this request. The appellant has provided no justification or support for his
assertion regarding safety and privacy. Moreover, the appellant is an e-filer, and
thus far the agency has elected to serve him electronically rather than at his
2
Because the issue of Board jurisdiction may be raised at any time during a proceeding,
we consider these new documents on review to the extent they implicate the Board’s
jurisdiction. See Sonneborn v. Department of Defense, 80 M.S.P.R. 215, ¶ 4 (1998)
(finding that the Board will consider documents submitted for the first time on review,
even if the submitting party does not establish that they were previously unavailable, if
the documents implicate the Board’s jurisdiction).
4
physical address . IAF, Tab 1 at 2; see 5 C.F.R. 1201.14(m)(2) (explaining that
documents served electronically on registered e-filers are deemed received on the
date of electronic submission). 3 Accordingly, we deny his request.
DISCUSSION OF ARGUMENTS ON REVIEW
The first element of Board jurisdiction over an IRA appeal is exhaustion by
the appellant of his administrative remedies before OSC. Carney v. Department
of Veterans Affairs, 121 M.S.P.R. 446, ¶ 4 (2014). In the instant case, the
administrative judge found that the appellant exhausted his administrative
remedies before OSC regarding the claim that the agency terminated him during
his probationary period for making disclosures to the agency’s ethics committee.
ID at 5. The parties do not challenge this finding on review, and we discern no
error in the administrative judge’s finding.
Following the establishment of exhaustion before OSC, the Board has
jurisdiction over an IRA appeal if the appellant nonfrivolously alleges the
following: (1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity 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 a personnel action against him. 4 Graves v. Department
of Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016).
3
Although the appellant is responsible for keeping the agency informed of his home
address, the Board’s regulations recognize that he may use a post office box. 5 C.F.R.
§ 1201.22(b)(3).
4
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 7 (2016). An allegation
generally will be considered nonfrivolous when, under oath or penalty of perjury, an
individual makes an allegation that is more than conclusory, plausible on its face, and
material to the legal issues in the appeal. Id. (citing 5 C.F.R. § 1201.4(s)).
5
The administrative judge properly found that the appellant failed to
nonfrivolously allege a protected disclosure under 5 U.S.C. § 2302(b)(8).
Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences a violation of a law, rule, or regulation, gross
mismanagement, a gross waste of funds, and abuse of authority, or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); Francis v.
Department of the Air Force, 120 M.S.P.R. 138, ¶ 10 (2013). The proper test for
determining whether an appellant had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily available by the appellant could reasonably
conclude that the actions evidenced a violation of a law, rule, or regulation, or
one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Francis,
120 M.S.P.R. 138, ¶ 10.
As previously noted, the appellant below alleged that he reported to the
ethics department management’s failure or refusal “to investigate or correct
issues” as required by the VA Handbook 5021/15 Appendix A. IAF, Tab 11 at 6.
The administrative judge found that the handbook cited was merely the agency’s
table of penalties for stated offenses, and that it did not require any obligation on
agency management to take specified action or charge individuals with any stated
offense. ID at 6. Accordingly, the administrative judge found that the appellant
failed to nonfrivolously allege that his report of management’s inaction violated
the handbook or otherwise amounted to a violation of a law, rule, or regulation
under 5 U.S.C. § 2302(b)(8). Id. The appellant does not challenge this finding
on review, and we discern no basis for disturbing it. Specifically, we agree that
the handbook did not require any obligation on agency management to take
specified action, and that the appellant therefore failed to nonfrivolously allege
that he had a reasonable belief that management’s inaction was a violation of the
handbook. See Francis, 120 M.S.P.R. 138, ¶ 11 (finding that an appellant failed
to nonfrivolously allege that she reasonably believed that her disclosure
6
evidenced a violation of training rules when none of the laws, rules, or
regulations cited prescribed a methodology for maintaining training records).
The appellant further alleged that he disclosed to the ethics department that
agency officials had engaged in gross mismanagement by giving another
employee favorable treatment and generally not requiring her to perform her
duties. IAF, Tab 11 at 7. The administrative judge found that the appellant’s
disclosures that a coworker was treated favorably, and management’s failure to
take formal disciplinary action against her, failed to constitute a nonfrivolous
allegation of gross mismanagement. ID at 6. The appellant does not provide a
reason for disturbing this finding on review. As set forth by the administrative
judge, “gross mismanagement” is a decision that creates a substantial risk of
significant adverse impact upon the agency’s ability to accomplish its mission.
Fisher v. Environmental Protection Agency, 108 M.S.P.R. 296, ¶ 9 (2008). Here,
the appellant has not nonfrivolously alleged that his disclosure evidenced gross
mismanagement. There is no indication that the alleged favoritism and lack of
discipline of a coworker created a substantial risk of a significant impact on the
agency’s ability to accomplish its mission. Rather, as the administrative judge
found, the conduct the appellant took issue with appears to be largely either basic
rudeness or negligence and incompetence, and if proven, would not amount to
gross mismanagement. ID at 6-7.
We remand this case because the parties were not provided proper jurisdictional
notice regarding retaliation for engaging in protected activity under 5 U.S.C.
§ 2302(b)(9)(C).
Prior to December 12, 2017, the whistleblower protection statutory scheme
provided that “cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law,” is protected. 5 U.S.C. § 2302(b)(9)(C). Section 1097(c)(1) of
the National Defense Authorization Act of 2018 (NDAA), Pub. L. No. 115-91,
131 Stat. 1283 (2017), amended section 2302(b)(9)(C) to provide that, in addition
7
to the Inspector General of an agency or the Special Counsel, a disclosure to “any
other component responsible for internal investigation or review” is also
protected.
The Board recently clarified in Reese v. Department of the Navy,
2025 MSPB 1, ¶ 48, that, in analyzing whether activity is protected under section
2302(b)(9)(C), the key question is whether an appellant’s activity was directed to
a covered investigatory entity. The Board found that agency components as
described in section 2302(b)(9)(C) should have similar attributes and functions to
those of the Offices of Inspector General, although such attributes may vary from
agency to agency. Id., ¶ 50. In general, such components will have a degree of
independence and objectivity, as well as the authority to investigate or review by
taking testimony, collecting evidence, and making findings and recommendations.
Id. Applying these principles, the Board found that the statutory language's
reference to “any” component is broad enough to encompass not just permanent
agency components, but also ad hoc internal investigations or reviews conducted
pursuant to an established agency procedure. Id., ¶ 51.
Here, the appellant asserted that he made his disclosures to the “Ethics
point of contact,” which were also shared with the “Equal Opportunity/Resolution
Mgmt point of contact.” IAF, Tab 1 at 7. However, the administrative judge’s
jurisdictional order cited to the pre-NDAA provisions of 5 U.S.C. § 2302(b)(9)
(C), which exclude the language regarding a disclosure to “any other component
responsible for internal investigation or review.” IAF, Tab 10 at 2 n.1. An
administrative judge must provide the appellant with explicit information on what
is required to establish an appealable jurisdictional issue. Niemi v. Department of
the Interior, 114 M.S.P.R. 143, ¶ 8 (2010) (citing Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985)).
Under some circumstances, the Board might be able to adjudicate a
whistleblower claim such as this without remand. Here, however, the record is
not sufficiently developed to determine whether the entities to which the
8
appellant made his disclosures qualify as “any other component responsible for
internal investigation or review” sufficient to render his disclosures “protected
activity” under 5 U.S.C. § 2302(b)(9)(C). Specifically, the record is devoid of
any information regarding what the various departments do, whether they can
conduct internal investigations or reviews, or even the position descriptions for
the identified points of contact. Moreover, it is unclear how and to what extent
the appellant’s communications with the ethics department were “shared” with
the “Equal Opportunity/Resolution Mgmt” point of contact, or whether the
appellant ever explicitly communicated with or provided information to that
department. Accordingly, we remand this appeal so that the administrative judge
may provide proper jurisdictional notice and further develop the record on the
issue of whether the appellant nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C).
On remand, when determining whether the appellant’s disclosures amount
to “protected activity,” the administrative judge should keep in mind that
disclosures under 5 U.S.C. § 2302(b)(9)(C) are protected regardless of their
content. 5 See Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8 (finding
that, under the post-NDAA language of 5 U.S.C. § 2302(b)(9)(C), disclosures to
an agency’s Inspector General or to the Special Counsel are protected regardless
of their content). However, the nature and content of the disclosures may be
relevant at the merits stage of an IRA appeal, when an appellant must prove the
contributing factor element by preponderant evidence and the agency can defend
itself by providing clear and convincing evidence that it would have taken the
same personnel action absent the protected activity. Fisher, 2023 MSPB 11, ¶ 8
n.1.
If the administrative judge determines that the appellant nonfrivolously
alleged that he engaged in protected activity, the administrative judge shall make
5
That is, regardless of whether the communications amount to a protected disclosure
under 5 U.S.C. § 2302(b)(8).
9
a finding on whether the appellant nonfrivolously alleged that the protected
activity was a contributing factor in the agency’s decision to take a personnel
action against him. The administrative judge should provide the parties with the
opportunity to supplement the record on the issue of contributing factor.
ORDER
For the reasons discussed above, we REMAND this case to the
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.