UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

IRVING PACHECO,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-1221-17-0365-W-1

DATE: May 21, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thomas Tierney, Esquire, Norwalk, Connecticut, for the appellant.

Jeffrey J. Velasco, San Francisco, California, for the agency.

Remy N. Savin, Irving, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action in this individual right of action appeal.

On petition for review, the appellant argues that the administrative judge erred in

finding that his disclosures were not protected, he did not engage in protected

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

activity, and his first-, second-, and third-line supervisors lacked knowledge of

his disclosures. Petition for Review (PFR) File, Tab 1 at 8-16.

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

apply the correct standard for determining whether the agency’s handbook was a

“rule” for the purposes of 5 U.S.C. § 2302(b)(8), clarify the reason the appellant’s

November 2015 memo was not protected, and supplement the administrative

judge’s findings as to the retroactivity of the National Defense Authorization Act

for Fiscal Year 2018 (NDAA) amendment to 5 U.S.C. § 2302(b)(9)(C),2 we

AFFIRM the initial decision.

On review, the appellant argues that the administrative judge applied the

wrong standard in determining whether the handbook was a law, rule, or

regulation for the purposes of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 9. We

agree. The administrative judge relied on the standard for analyzing whether an

agency regulation has the force of law, and thus an appellant’s disclosure is

exempted from protection as “specifically prohibited by law.” See Initial Appeal

File (IAF), Tab 46, Initial Decision (ID) at 14-15 & n.15 (applying Parikh v.

2

 Pub. L. No. 115-91, § 1097(c)(1)(A), 131 Stat. 1283, 1618 (2017).
3

Department of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 24, 29-30 (2011)

(analyzing whether the agency’s handbook was a law such that the appellant’s

violation of it in making his disclosures excluded them from protection under the

Federal whistleblower protection statutes)); see also 5 U.S.C. § 2302(b)(8)(A).

There is no contention that the appellant’s disclosures were otherwise prohibited

by law. Further, to construe the appellant’s disclosures of purported handbook

violations as protected only if the handbook has the force of law—i.e., is a statute

or substantive regulation—renders the term “rule,” as provided under

section 2302(b)(8)(A)(i), superfluous. 3 See Department of Homeland Security v.

MacLean, 574 U.S. 383, 389-93 (2015) (applying canons of statutory construction

to conclude that Congress intended for the term “law” to have a meaning distinct

from the term “rule” or “regulation” under 5 U.S.C. § 2302(b)(8)(A)). The Board

has defined a rule as “an established and authoritative standard or principle; a

general norm mandating or guiding conduct or action in a given type of

situation.” Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 16 (2002)

(quoting Black’s Law Dictionary 1330 (7th ed. 1999)). To determine whether the

agency’s handbook was a rule for the purposes of section 2302(b)(8), the Board

must substantively review the handbook.

Here, the appellant has not provided sufficient information to conclude

that, if made, he disclosed a violation of “law, rule, or regulation.” As the

administrative judge concluded, and the appellant does not dispute, the handbook

was not entered into the record. ID at 14 n.15. Beyond referencing his

November 8, 2015 memo, in which he quotes a few excerpts of the handbook,

IAF, Tab 9 at 11, the appellant has not identified any evidence in the record that

reveals the content and purpose of the handbook, or the authority pursuant to

which it was created. Accordingly, despite the administrative judge’s error, we

3

 A protected disclosure is a disclosure of information that an appellant reasonably

believes evidences any violation of any law, rule, or regulation, gross mismanagement,

a gross waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety. 5 U.S.C. § 2302(b)(8)(A).
4

nevertheless agree that the appellant did not prove that the handbook was a law,

rule, or regulation for the purposes of section 2302(b)(8), and we find that the

appellant’s arguments do not provide a basis for review. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides

no basis for reversal of an initial decision).

The appellant further argues, only generally, that the administrative judge

erred in finding that his November 2015 memo did not contain a protected

disclosure. PFR File, Tab 1 at 9-10. The administrative judge determined that

the appellant’s disclosures amounted to a policy disagreement as to how

Supervisory Behavior Detection Officers (SBDOs) should be deployed at Los

Angeles International Airport. ID at 15. She reasoned that a disinterested

observer with 1 month of experience in the department, like the appellant, would

not reasonably conclude the SBDOs were failing to conduct the necessary

behavioral detection activities. Id. However, the record reflects that, at the time

the appellant drafted this memo, he had worked in the same department since his

appointment in April 2015. IAF, Tab 4 at 218, 223. Nevertheless, the appellant

was a probationer at the time, with only 3 months of experience in his position as

a Behavior Detection Officer (BDO), a position that was materially different than

his prior Transportation Security Officer position. ID at 6-7; IAF, Tab 4 at 223,

Tab 9 at 11. On review, the appellant argues that he was trained in BDO

detection, but he does not explain the basis for his conclusion that SBDOs were

not adequately performing their duties. PFR File, Tab 1 at 6, 9-10. Accordingly,

despite the administrative judge’s error in calculating the appellant’s length of

service in his BDO position, we nevertheless agree that it was not reasonable for

him to believe that he was disclosing any other wrongdoing by SBDOs in his

November 2015 memo. See Panter, 22 M.S.P.R. at 282.

Finally, the appellant disputes the administrative judge’s finding that he did

not prove that his disclosures to the agency’s Office of Inspections (OOI) were
5

protected under 5 U.S.C. § 2302(b)(9)(C). PFR File, Tab 1 at 13. In analyzing

this issue, the administrative judge recognized that the NDAA amended

section 2302(b)(9)(C) to include “cooperating with or disclosing information

to . . . any . . . [agency] component responsible for internal investigation or

review” as protected activity. ID at 23-24 n.21. Without addressing whether OOI

constituted such a component, the administrative judge found that the NDAA

amendment was inapplicable because it was not retroactive. Id. We agree. After

the initial decision’s issuance, the Board issued a decision finding that the NDAA

amendment to section 2302(b)(9)(C) was not retroactive. Edwards v. Department

of Labor, 2022 MSPB 9, ¶¶ 29-33, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed.

Cir. July 7, 2023). Accordingly, we affirm the administrative judge’s finding as

to the applicability of the NDAA.

NOTICE OF APPEAL RIGHTS4

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.

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.
6

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: 

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
7

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

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. 
8

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

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). 

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. 
9

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. 

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.