The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BUTTLER, DOCKET NUMBER
Appellant, CH-1221-25-0151-W-1
v.
NATIONAL AERONAUTICS AND DATE: April 23, 2026
SPACE ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Matthew Ricci , Esquire, Latham, New York, for the appellant.
Jeremy Allen , Esquire, Albany, New York, for the appellant.
Benjamin Gavel , Esquire, and Kendall Ann Grodek , Esquire,
Cleveland, Ohio, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
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. On
petition for review, he argues that the initial decision was not in accordance with
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the law. 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 address the appellant’s claim that
his opposition to the agency’s change in its leave without pay (LWOP) approval
practice disclosed gross mismanagement, we AFFIRM the initial decision.
The appellant was a GS-0856-12 Electronics Technician with more than 40
years of Federal service. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 81.
Before August 2022, he routinely requested and was granted LWOP for personal
reasons. IAF, Tab 1 at 19. In August 2022, Chief of Technical Resources
Management Tony Doglio, his third-level supervisor, informed him that the
agency would no longer allow him to utilize LWOP for personal reasons. Id.;
Tab 6 at 66. The appellant disclosed his opposition to this change to Doglio in
August 2022. IAF, Tab 4 at 5. Because of the change in practice, the appellant
announced on August 22, 2022, that he planned to retire on December 31, 2022.
IAF, Tab 1 at 19. On December 6, 2022, the appellant met with Doglio, and
Doglio requested that he cancel his planned retirement. Id. The appellant agreed
to cancel his retirement under the belief that his LWOP requests would then be
approved. Id.
3
In January 2023, the appellant requested advanced annual leave from
January 23 through February 28, 2023, to use all 208 hours of annual leave that
he would accrue during that year. IAF, Tab 6 at 93. He made this request to
Branch Chief Michelle Doehne, his second-level supervisor, because his first-
level supervisor had recently retired. Id. at 55-56; IAF, Tab 1 at 30. Doehne
asked the appellant if he planned to use any other type of leave before the end of
2023. IAF, Tab 1 at 30. When he answered “yes,” she denied the leave request.
Id. The appellant asserted that she then stated that she would approve the leave
request if he agreed to retire. Id. He accepted this condition and retired on
June 30, 2023. Id.; IAF, Tab 6 at 81.
On August 19, 2024, the appellant filed a complaint with the U.S. Office of
Special Counsel (OSC), alleging violations of 5 U.S.C. § 2302(b)(1) and (b)(8).
IAF, Tab 1 at 28-34. On October 23, 2024, OSC informed him of his right to file
an IRA appeal with the Board on his 5 U.S.C. § 2302(b)(8)-(9) claims that that
his January 2023 annual leave request was denied because he expressed
opposition to Doehne in August 2022 about the change in the LWOP approval
practice. 2 Id. at 23; IAF, Tab 4 at 5. The appellant filed his initial appeal with
the Board on December 26, 2024. IAF, Tab 1 at 1. On April 17, 2025, the
administrative judge issued an initial decision, finding that he did not
nonfrivolously allege that he made a protected disclosure or engaged in protected
activities. IAF, Tab 17, Initial Decision (ID) at 1-9. The appellant filed his
petition for review on May 22, 2025. Petition for Review (PFR) File, Tab 1 at 1.
The appellant alleges on review that the administrative judge’s decision
was “an abuse of discretion,” was “not in accordance with the law,” and was
“unsupported by substantial evidence.” 3 Id. at 11. Specifically, he argues that
2
The appellant appears to have amended his OSC complaint to also include a 5 U.S.C.
§ 2302(b)(9) claim. However, that amendment is not in the record.
3
“Unsupported by substantial evidence” is one of the standards used by the U.S. Court
of Appeals for the Federal Circuit to review the Board’s decisions. See Frederick v.
4
“[a]t the jurisdictional stage, it is not necessary for the Appellant to establish that
his disclosure passes the reasonable belief test; rather, he need only to [sic] make
a nonfrivolous allegation that his disclosure was protected.” Id. at 12 (citing
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)).
To the extent that the appellant argues that he need not address the
reasonable belief test at the jurisdictional stage, he is incorrect. Although the
Court of Appeals for the Federal Circuit (Federal Circuit) did state in Yunus that
an appellant in an IRA appeal must make a nonfrivolous allegation that he
engaged in whistleblowing activity by making a protected disclosure under
5 U.S.C. § 2302(b)(8), the court did not state that an appellant does not need to
satisfy the reasonable belief test to meet that standard. Yunus, 242 F.3d at 1371.
Indeed, the court referenced Dr. Yunus’s assertion that he reasonably believed
that his disclosure evidenced a violation of law, rule, or regulation. Id. at 1372.
At the jurisdictional stage, the appellant must make a nonfrivolous allegation that
he reasonably believed that his disclosure evidenced a violation of one of the
circumstances described in 5 U.S.C. § 2302(b)(8)(A). 4 See Cassidy v.
Department of Justice, 118 M.S.P.R. 74, ¶ 7 (2012).
The appellant asserted that in early August 2022 he disclosed to Doglio
“that he was opposing the efforts by the Agency to cease past practices related to
his leave approvals as authorized pursuant to Chapter 3, Section 3.15 of the
NASA Procedural Requirements.” IAF, Tab 4 at 5. In other words, he disagreed
with the agency’s intention to deny his future LWOP requests because such
Department of Justice, 73 F.3d 349, 351 (Fed. Cir. 1996) (citing 5 U.S.C. § 7703(c)).
As discussed above, the Board reviews petitions for review under the criteria listed in
5 C.F.R. § 1201.115.
4
The proper test for determining whether an employee had a reasonable belief that his
disclosures were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the employee could reasonably
conclude that the actions evidenced a violation of law, rule, or regulation, or one of the
other conditions set forth in 5 U.S.C. § 2302(b)(8)(A). Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶ 7 (2012).
5
requests had previously been granted. The administrative judge noted that the
appellant did not assert that he made any LWOP requests pursuant to the Family
and Medical Leave Act of 1993 (FMLA) or any other law, rule, or regulation that
may require the agency to grant such requests. ID at 7 n.1.
The administrative judge first found that the appellant did not explain how
Doglio’s statement that his use of LWOP needed to end constituted an abuse of
authority. ID at 7. The Board has historically defined an abuse of authority as an
arbitrary and capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or results in personal gain or advantage
to himself or to other preferred persons. See Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 22 (2013). However, in Smolinksi v. Merit Systems
Protection Board, 23 F.4th 1345, 1351-52 (Fed. Cir. 2022), the Federal Circuit
defined an abuse of authority more broadly as an arbitrary and capricious exercise
of authority that is contrary to the agency’s mission.
The administrative judge concluded that the appellant did not
nonfrivolously allege that a reasonable person with the knowledge of the essential
facts known to and readily ascertainable by him could conclude that Doglio’s
statement was an abuse of authority. ID at 8. First, the administrative judge
recognized the appellant’s acknowledgement that the approval of LWOP is
discretionary. ID at 7 (citing IAF, Tab 4 at 9). Second, the administrative judge
concluded that the appellant did not explain how the agency’s prior approvals of
his LWOP requests created an entitlement to future LWOP approval or otherwise
limited the agency’s discretion to deny future LWOP requests. Id. Third, the
administrative judge noted that the appellant did not explain how Doglio’s
statement that future LWOP requests would be denied was “arbitrary and
capricious.” Id.
The administrative judge also addressed the appellant’s claim that he
disclosed a violation of law, rule, or regulation. ID at 8. Although he cited
NASA Procedural Requirements 3600.1C, the administrative judge noted the
6
appellant’s understanding that this policy states that approval of LWOP is a
matter of supervisory discretion and should only be approved when it is in the
best interest of the agency. Id. (citing IAF, Tab 4 at 9); IAF, Tab 6 at 116. The
administrative judge concluded that the appellant did not offer evidence or
allegations that his request for LWOP for additional vacations was in the best
interest of the agency. ID at 8. Based on these reasons, the administrative judge
found that he did not nonfrivolously allege that he made a protected disclosure
under section 2302(b)(8). Id. We discern no reason to disturb these findings.
The appellant asserts on review that he had a reasonable belief that the
agency’s change in its LWOP approval practice was an abuse of discretion and
violation of policy because he had already been approved for 124 hours of LWOP
in 2022 at the time the practice was changed. PFR File, Tab 1 at 13. He did not
make this argument below. The Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
The appellant has not demonstrated that this argument is based on new and
material evidence not previously available.
Assuming arguendo that he had, this argument is still unconvincing. Under
NASA Procedural Requirements 3600.1C, Section 3.15.4, “[i]n most cases, the
authorization of LWOP is a matter of supervisory discretion.” IAF, Tab 6 at 116.
The appellant has not alleged that his LWOP requests were made pursuant to a
law, rule, or regulation that required them to be granted, such as the FMLA.
Indeed, the record evidence suggests the purpose of the LWOP requests was for
him to have additional vacation time. IAF, Tab 1 at 29.
We cannot find that the appellant had a reasonable belief that his
opposition to the agency’s change in LWOP approval practice disclosed an abuse
of authority or a violation of law, rule, or regulation. The agency’s previous
generosity in granting him LWOP for personal reasons was not sufficient to
7
create a reasonable belief that he had an entitlement to future LWOP approval or
that the agency was otherwise limited in its discretion to deny future LWOP
requests. See Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (stating
that it is well-settled that the authorization of LWOP is within the agency’s
discretion), review dismissed, 461 F. App’x 929 (Fed. Cir. 2011).
The appellant also alleged below that his disclosure evidenced gross
mismanagement, another one of the categories in 5 U.S.C. § 2302(b)(8)(A). IAF,
Tab 1 at 21. The initial decision did not address this assertion, and OSC’s
closeout letter did not mention a claim of gross mismanagement. IAF, Tab 1
at 23-24. Nonetheless, the Board does not require, as a basis for its jurisdiction,
that an appellant in an IRA appeal correctly label a category of wrongdoing under
the Whistleblower Protection Act. Horton v. Department of Veterans Affairs,
106 M.S.P.R. 234, ¶ 16 n.* (2007).
Gross mismanagement is defined as management action or inaction that
creates a substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Embree v. Department of the Treasury, 70 M.S.P.R. 79,
85 (1996). The appellant had been using LWOP for additional vacation time.
IAF, Tab 1 at 29. The agency determined that granting additional unpaid
vacation time to him was no longer permitted. Id. One cannot reasonably argue
that an agency’s refusal to grant unpaid vacation time to an employee who has
already exhausted his annual leave for the year creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission. See
Embree, 70 M.S.P.R. at 85. Therefore, we modify the initial decision to find that
the appellant did not nonfrivolously allege that his opposition to the change in the
agency’s LWOP approval practice disclosed gross mismanagement.
8
NOTICE OF APPEAL RIGHTS 5
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:
5
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.
9
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
10
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
11
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. 6 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
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.
12
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.