The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FELICISIMO S SANTOS JR., DOCKET NUMBER
Appellant, NY-0752-24-0077-I-1
v.
DEPARTMENT OF VETERANS DATE: February 18, 2026
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Christopher Forasiepi , Esquire, Dallas, Texas, for the appellant.
Diane Tardiff and Edward Carney , Bedford, Massachusetts, for the agency.
Thien-Nga Muller , Esquire, Albany, New York, for the agency.
Justina Lillis , Esquire, and Kimberly Thrun , Esquire,
Cheektowaga, New York, for the agency.
Timothy O Boyle , Hampton, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. For the reasons discussed below, we GRANT
the appellant’s petition for review and REMAND the case to the regional office
for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge erred in
disregarding his claim of whistleblower reprisal. We agree.
In his pleadings below, the appellant alleged that he was removed in
retaliation for his equal employment opportunity (EEO) activity and his
disclosures to the agency’s Office of Accountability and Whistleblower
Protection (OAWP). Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel
practice to take a personnel action against an employee in reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” The Board
has recently held that section 2302(b)(9)(C), unlike section 2302(b)(8), is devoid
of explicit content-based limitations. See Holman v. Department of the Army,
2025 MSPB 2, ¶ 12; Reese v. Department of the Navy, 2025 MSPB 1 ¶ 46.
Furthermore, the agency’s Office of Resolution Management, which processed
the appellant’s EEO complaints, and the OAWP appear to be components
responsible for internal investigation or review. We therefore conclude that,
regardless of the specific allegations the appellant made in his EEO and OWCP
complaints, his whistleblower retaliation claim is cognizable under section
2302(b)(9)(C) and distinct from his claim of retaliation under Title VII.
The Board has required its administrative judges to apprise appellants of
the applicable burdens of proving a particular affirmative defense, as well as the
kind of evidence required to meet those burdens. Erkins v. U.S. Postal Service,
3
108 M.S.P.R. 367, ¶ 8 (2008). When an administrative judge fails to inform the
parties of their burden and methods of proof, and the appellant has not withdrawn
or abandoned the affirmative defense, the Board typically remands the appeal so
the administrative judge can afford such notice and an opportunity to submit
evidence and argument under the proper standard. Id.; see, e.g., Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 7 (2015). Here, not having had the
benefit of Reese and Holman, the administrative judge did not provide the parties
with notice of their respective burdens of proof regarding the appellant’s section
2302(b)(9)(C) claim. Accordingly, we remand the appeal for further development
of the record and a finding on the merits of that defense. The administrative
judge may adopt her previous findings regarding the charge and the appellant’s
Title VII retaliation claim. 2
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2
We have considered the appellant’s remaining arguments and find that they are
without merit.