# Robert Conklin v. Department of the Army

> Merit Systems Protection Board · May 14, 2026

URL: https://www.frixlaw.com/law-library/cases/11326697

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 14, 2026
- **Precedential status:** Unpublished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

ROBERT CONKLIN, DOCKET NUMBER
Appellant, AT-1221-16-0700-B-1

v.

DEPARTMENT OF THE ARMY, DATE: May 14, 2026
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.

Erica Fessler , Esquire, Austin, Texas, 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 remand initial decision,
which denied his request for corrective action in his individual right of action
whistleblower reprisal appeal. On petition for review, the appellant challenges
the administrative judge’s findings regarding the contributing factor element of
his prima facie case and generally argues that the administrative judge took too
narrow of an approach to that element. Generally, we grant petitions such as this

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 supplement the administrative judge’s discussion of the
contributing factor element in the appellant’s prima facie case, we AFFIRM the
initial decision.
This appeal is back before the Board on remand and concerns the
appellant’s whistleblower reprisal claim that he was not selected for a Combat
Development Specialist position with the agency’s Training and Doctrine
Command (TRADOC) in 2015 in retaliation for, among other things, filing a
complaint with the Office of Special Counsel (OSC). Conklin v. Department of
the Army, MSPB Docket No. AT-1221-16-0700-W-1, Remand Order (Feb. 23,
2024). In a remand initial decision, the administrative judge correctly found that
the appellant proved by preponderant evidence that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) when he filed an OSC complaint.
Conklin v. Department of the Army, MSPB Docket No. AT-1221-16-0700-B-1
Remand File (RF), Tab 15, Remand Initial Decision (RID) at 4. He also correctly
found that the appellant failed to establish that the selecting official for the
vacancy at issue had either actual or constructive knowledge of that protected
activity, thereby failing to demonstrate the knowledge/timing test as a part of the
3

contributing factor analysis. RID at 4-8. The appellant’s arguments on review
do not provide a basis to disturb that finding. 2
While the record remained open on review, the appellant filed a motion for
leave to submit additional evidence, which, he asserts, shows that the selecting
official had actual knowledge of his protected activity. Remand Petition for
Review (RPFR) File, Tab 5. Generally, the Board will not consider evidence
submitted for the first time on review absent a showing that the documents and
the information contained in the documents were unavailable before the record
closed despite due diligence and the evidence is of sufficient weight to warrant an
outcome different from that of the initial decision. Cleaton v. Department of
Justice, 122 M.S.P.R. 296, ¶ 7 (2015). The appellant acknowledges that this
document was available before the record closed below and that he did not submit
it then. RPFR File, Tab 5 at 5. Although he asserts that he was not on notice that
the selecting official’s knowledge of his OSC complaint would be a dispositive
issue, see id., the jurisdictional order issued below informed him of how he could

2
On review, the appellant points to timeline created by the selecting official on or
around August 11, 2016, more than a year after the 2015 selection. Remand Petition for
Review (RPFR) File, Tab 1 at 9-10. He argues that entries in this timeline demonstrate
that the selecting official had constructive knowledge of the OSC complaint or was
otherwise influenced by another agency official with improper animus. Id. The
administrative judge considered this timeline and the appellant’s corresponding
arguments in the remand initial decision but found that it did not establish that the
agency official with alleged animus against the appellant influenced the selecting
official in any way. RID at 7 n.3. We have reviewed the timeline and the appellant’s
arguments related thereto on review, and we agree with the administrative judge that,
although it reflects that the agency official appears to have had some involvement in the
hiring process prior to the publication of the vacancy announcement, such as reviewing
the position description and making status inquiries, there is no indication that,
following publication of the vacancy announcement, he was involved with or influenced
the selecting official’s hiring decision. RF, Tab 10 at 89-99. We discern no basis to
disturb the administrative judge’s conclusion that the appellant failed to establish
constructive knowledge/cat’s paw theory. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
4

prove the contributing factor element, including discussion of the
knowledge/timing test. Conklin v. Department of the Army, MSPB Docket No.
AT-1221-16-0700-W-1 Initial Appeal File (IAF), Tab 3 at 4. In any event, the
appellant’s motion provides the contents of the additional evidence. RPFR File,
Tab 5 at 4-5. By his own admission, the additional evidence only purports to
show that the selecting official was included on an email that referenced “OSC
findings,” and it does not include the appellant’s name or other contextual details
potentially identifying the appellant’s OSC complaint. Id. Accordingly, we find
that the proffered evidence is not of sufficient weight to warrant an outcome
different from that of the remand initial decision, and we deny the appellant’s
motion.
After finding that the appellant failed to meet the knowledge/timing test,
the administrative judge found that he failed to prove that the OSC complaint was
a contributing factor to the nonselection. RID at 8. However, the
knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor element. See Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 14 (2012). Rather, when an appellant fails to meet this test,
the Board will consider other evidence such as evidence pertaining to the strength
or weakness of the agency’s reason for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding official, and
whether these individuals had a desire or motive to retaliate against the appellant.
Id., ¶ 15. We supplement the remand initial decision to address these factors
here.
Regarding the strength or weakness of the agency’s reason for not selecting
the appellant, the record establishes that, at the time TRADOC was staffing the
position at issue, it was under a hiring freeze, and that it sought and received
special permission to recruit and hire an internal TRADOC candidate for the
position. IAF, Tab 6 at 6, Tab 7 at 24-27. The parties stipulated that a TRADOC
employee was ultimately selected for the position. RF, Tab 12 at 4. Because it is
5

undisputed that the appellant was a contractor and not a TRADOC employee at
the time, id., he could not have been selected for the position. 3 Additionally, it is
undisputed that the selecting official was not the subject of the appellant’s OSC
complaint, and the record does not otherwise reflect that he had any personal
desire or motive to retaliate against the appellant. We acknowledge that those
responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosure, as the criticism
reflects on them in their capacities as managers and employees. See Whitmore v.
Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012). However, the record
is unclear on the issue of whether the selecting official in this matter is a manager
or supervisor, or whether he is otherwise responsible for the agency’s
performance overall. In any event, even assuming a slight potential institutional
motive to retaliate on the part of the selecting official under Whitmore, we find
that the additional considerations do not amount to preponderant evidence that the
appellant’s OSC complaint was a contributing factor in the nonselection at issue.
Accordingly, we ultimately agree with the administrative judge that the appellant
failed to establish the contributing factor element of his prima facie case, and we
affirm the remand initial decision as modified.

3
The Combat Development Specialist vacancy announcement listed that only TRADOC
employees with competitive status within the local commuting area could apply. IAF,
Tab 7 at 18. The appellant asserts, however, that on the second page of the vacancy
announcement, it also states that other groups of applicants, including but not limited to
those eligible under [the Veterans Employment Opportunities Act (VEOA)], may apply.
RPFR File, Tab 1 at 13; see IAF, Tab 7 at 19. Thus, he claims that he was eligible for
the position “by virtue of his VEOA status.” RPFR File, Tab 1 at 13. He further asserts
that he has a “stellar resume” and has “uniquely strong qualifications for the position.”
Id. at 12. Regardless of whether additional candidates were eligible to apply, including
the appellant, the record nonetheless reflects that the hiring authority was limited to an
internal TRADOC candidate and that an internal TRADOC candidate was selected.
IAF, Tab 6 at 6; RF, Tab 12 at 4.
6

NOTICE OF APPEAL RIGHTS 4
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:

4
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.
7

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
8

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
9

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. 5 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.

5
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.
10

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/11326697. Public record. Not legal advice.