UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAIME FIGUEROA,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBERS

DC-1221-16-0136-W-3

DC-1221-15-0982-B-2

DATE: June 12, 2024

THIS ORDER IS NONPRECEDENTIAL1

Stephanie Rapp-Tully, Washington, D.C., for the appellant.

Glenn H. Brown, Anchorage, Alaska, for the agency.

Rebecca G. Snowdall, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

REMAND ORDER

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

denied his request for corrective action in these individual right of action appeals.

For the reasons discussed below, we GRANT the petition for review, VACATE

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the initial decision, and REMAND the case to the Washington Regional Office

for further adjudication in accordance with this Remand Order. 

BACKGROUND

¶2 This appeal has an extensive procedural history that is not material to the

issues now before the Board and which we need not repeat here.

The appellant filed two appeals in which he alleged that the Federal Aviation

Administration (FAA or agency) took various personnel actions against him in

retaliation for his protected disclosures. MSPB Docket No. DC-1221-15-0982-

W-1, Initial Appeal File, Tab 1; MSPB Docket No. DC-1221-16-0136-W-1,

Initial Appeal File (0136 IAF), Tab 1. The administrative judge thereafter joined

the two appeals for adjudication. MSPB Docket No. DC-1221-16-0136-W-2,

Appeal File (0136-W-2 AF or AF) 2, Tabs 1, 22; MSPB Docket No. DC-1221-15-

0982-B-1, Appeal File, Tab 4. 

¶3 After a 6-day hearing, MSPB Docket No. DC-1221-16-0136-W-3, Appeal

File (0136-W-3 AF), Tabs 17-22, the administrative judge issued an initial

decision in which he found that the appellant exhausted his administrative

remedies before the Office of Special Counsel (OSC), but failed to show by

preponderant evidence that he made a protected disclosure because he failed to

show that a reasonable person in his position would have believed that the alleged

financial improprieties he disclosed evidenced a violation of law, rule, or

regulation, gross mismanagement, or a gross waste of funds, Figueroa v.

Department of Transportation, MSPB Docket Nos. DC-1221-16-0136-W-3,

DC-1221-15-0982-B-2, Initial Decision (ID) at 49-52 (Aug. 16, 2018); 0136 -W-3

AF, Tab 24. The administrative judge also found that the appellant failed to show

that a second disclosure made to the FAA Administrator was a contributing factor

2

 From this point, even before he formally joined the appeals some time later, the

administrative judge treated the appeals as joined. All pertinent pleadings and orders

are contained in 0136-W-2 AF unless otherwise indicated. For simplicity’s sake, all

references to “AF” should be understood to refer to the file in MSPB Docket

No. DC-1221-16-0136-W-2.

2
in a personnel action because he did not establish that any of the managers

involved in the personnel actions at issue were aware of the disclosure. ID

at 53-58.

¶4 The appellant petitions for review of the initial decision. Petition for

Review File, MSPB Docket No. DC-1221-16-0136-W-3 (PFR File), Tab 1.

The agency responds in opposition to the petition for review and the appellant

replies to the agency’s response. PFR File, Tabs 3-4.

ANALYSIS

¶5 The following background information is not disputed. NextGen is an

office within the FAA charged with modernizing the air traffic management

system via technological advancement and other available means. NextGen is run

by an Assistant Administrator who reports to the FAA Administrator. As relevant

here, it is divided by function into six divisions, A though F, each headed by a

director.

¶6 NextGen receives appropriated funds which are allocated to performing

offices via a device known as a Project Level Agreement (PLA). PLAs are

funding documents that contain funding levels for particular projects with

schedules, deliverables, and statements of the expected benefits.

Because NextGen is intended to search for the optimal future air traffic

management system, it is normal that not every funded research activity will

achieve the projected deliverable and not every achieved deliverable will result in

the expected benefits.

The appellant did not show by preponderant evidence that his second protected

disclosure was a contributing factor in a personnel action.

¶7 The appellant sent an email to the FAA Administrator at his public email

address on January 9, 2015. 0136-W-3 AF, Tab 23, Exhibit QQQQ. In the email,

he made allegations of financial and ethical misconduct on the part of his

superiors and he asserted that they retaliated against him for making internal

3
reports about these matters by reassigning him to a position with lesser status and

responsibility. Id. 

¶8 It is not disputed that the email was read by one of the Administrator’s two

assistants. The administrative judge found, however, that there was no evidence

that any of the managers responsible for the personnel actions taken against the

appellant had any knowledge of the email. ID at 58. On review, the appellant

contends that it is not plausible that no one in the Administrator’s office took note

of the appellant’s email. PFR File, Tab 1 at 15-16.

¶9 According to the initial decision, and not disputed by the appellant on

review, the Administrator had a public email address that received “many, many

emails from the public, from media, from all sources.” ID at 54. The

Administrator had two assistants who screened the emails in his public account

and either archived messages, forwarded them to the Administrator, or forwarded

them to other agency employees for action as appropriate. The Administrator

himself had access to the public account, but he never looked at it personally and

relied entirely on his assistants to screen messages from the account. He had a

second, private email address for senior agency managers to use. 

¶10 The administrative judge found that the agency’s records showed that one of

the two assistants opened and read the appellant’s email. Neither of them

remembered doing so and neither of them took any action on it. The

administrative judge found their testimony credible. ID at 58. The credibility

determinations of an administrative judge are virtually unreviewable, and the

appellant has not offered a sufficient reason here to set them aside. Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); Bieber v.

Department of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). Therefore, we

find no basis to disturb the administrative judge’s finding that the appellant failed

to prove by preponderant evidence that his disclosure to the FAA Administrator

was a contributing factor in a personnel action taken against him.

4
The appellant showed that he reasonably believed that his first disclosure

 was protected.

¶11 According to his undisputed testimony, Mr. B arrived at the FAA in

September or October 2013 as Assistant Administrator in charge of the NextGen

program. His arrival was immediately followed by a lengthy furlough, during

which he read a number of Inspector General (IG) reports concerning the lack of

transparency in how NextGen pre-implementation funds 3 were being used.

ID at 38-39. He met with the new FAA Administrator and the new Deputy

Administrator to discuss the agency’s priorities and they wanted him to focus on

improvement in the management and documentation of pre-implementation

funds. Id. 

¶12 When the furlough was over, Mr. B asked Mr. J to put together a study of

the issues in pre-implementation funding. ID at 26, 39. Mr. J testified that there

was an existing audit done recently by Mr. E comparing expenditures to

deliverables and which had found $50 million in missing deliverables. ID at 27.

“Missing” did not necessarily mean the funds had been misappropriated, but

perhaps that there was a lack of proper documentation. ID at 27. Mr. B and Mr. J

both testified that Mr. B gave no specific guidance about the method or means by

which Mr. J was to complete the assignment. ID at 27, 40. Mr. J selected his

own team, which included, as relevant here, the appellant and Mr. W. ID at 27. 

¶13 At the end of May 2014, Mr. J presented Mr. B with a 90% draft of a

document titled “Pre-Implementation Funding Internal Review” (IRR). ID at 28;

AF, Tabs 133-34. Mr. B had the draft distributed internally to senior

management, and his staff collected comments into a spreadsheet, which was

presented to Mr. J and the appellant the day before a meeting designed to discuss

the IRR. ID at 14, 41-42; AF, Tab 100. 

¶14 According to his OSC complaint, the appellant, as a co-author of the IRR,

disclosed that there were nearly $50 million in funded program deliverables that

3

 This relates to how money is spent before acquisition contracts are executed.

Pre-implementation funding is the largest portion of NextGen’s budget.

5
could not be found. 0136 IAF, Tab 1 at 12; AF, Tabs 133-34. After a thorough

and detailed summary of the hearing testimony that neither party disputes,

the administrative judge concluded that the appellant failed to show by

preponderant evidence that he reasonably believed that his disclosure evidenced a

violation of law, rule, or regulation, a gross waste of funds, or gross

mismanagement. In making this finding, the administrative judge relied on two

main considerations. First, he noted that the IRR received a great deal of

criticism when it was circulated among the NextGen senior management team.

ID at 50-51. Second, he characterized the appellant’s disclosure as a

disagreement about policy matters and, in doing so, he credited the testimony of

Mr. F that the appellant’s disclosure “was a contrived attack on the current

NextGen leadership implying that the appellant . . . had opinions about how to

manage the NextGen activities which were not accepted by current leadership or

which had fallen out of favor.” ID at 51-52. 

¶15 A protected disclosure includes any disclosure of information which the

employee reasonably believes evidences, inter alia, a violation of law, rule, or

regulation, gross mismanagement, or a gross waste of funds. 5 U.S.C. § 2302(b)

(8). The test of a reasonable belief 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, as relevant here,

a violation of law, rule, or regulation, gross mismanagement, or a gross waste of

funds. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); Ayers v.

Department of the Army, 123 M.S.P.R. 11, ¶ 13 (2015).

¶16 The initial decision stated, “neither the Board nor Congress requires more

than the belief be reasonable.” ID at 48. It then said, however, that “[t]he

appellant’s allegation must be reasonable and not ‘debatable among reasonable

people.’” Id. In Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 9

(2015), which the administrative judge cited in support of the “not debatable

among reasonable people” test, the Board actually noted that Congress had

6
specifically disapproved of the test because it imposed additional burdens of

proof on the employee that were not present in the statute. The Board clarified

that the employee need only show that he had a reasonable belief that his

disclosure evidenced the kind of misconduct identified in 5 U.S.C. § 2302(b)(8),

rather than a policy disagreement. Webb, 122 M.S.P.R. 248, ¶ 9. In light of the

foregoing, the administrative judge erred by finding that the appellant failed to

show that his belief was reasonable because he did not disclose impropriety that

was not debatable among reasonable people. 

¶17 The initial decision also placed too much weight on the fact that other

managers disagreed with the appellant’s conclusions without considering the

nature of those disagreements and the extent to which they related (or did not

relate) to his key disclosure. The Board has held that it is error to conclude that a

belief is not reasonable simply because management officials do not agree with it.

Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 16 (2014);

Miller v. Department of Homeland Security, 111 M.S.P.R. 312, ¶ 17 (2009). As a

factual matter, however, the degree to which other managers actually disputed the

appellant’s findings is subject to debate. For example, comment 1 calls for a

discussion of past efforts to solve “the PLA problem” and why they did not work.

AF, Tab 100 at 4. Comment 6 calls for creating a new process for funding

internal activities now handled through the PLA process that do not fit the PLA

format or purpose. Id. at 5. Comment 10 criticizes the authors for re-assessing

financial controls for a time period that had already been audited even though that

was the assignment given to them by Mr. B. Id. at 6. Comment 11 suggests that

the authors are biased and that someone else should be assigned to the project.

Id. Comments 17-18 call for a historical discussion. Id. at 8-9. Comment 25

questions the purpose of the assignment. Id. at 10. Comment 27 questions the

competence of the authors. Id. at 11-12. Comment 30 complains about not

having been consulted earlier when the authors had not been instructed to include

stakeholders. Id. at 12-13. Comments 35 and 37-38 take issue with a statement

7
that recommendations were not implemented but then agree that recommendations

were not implemented. Id. at 13-14. 

¶18 These comments, and many others, may reflect a great deal of disagreement

about the contents of the IRR as well as a misunderstanding on the part of the

commenters of the assignment that Mr. B gave the IRR’s authors, but they do not

relate to the appellant’s core disclosure. As to that, comments 39-45, pertaining

to the appellant’s particular disclosure of “178 missing deliverables valued at

$49.2 million,” did not dispute the appellant’s figures but instead, requested that

the report define the term “missing deliverable” and clarify that the figures

include lawful expenditures that were improperly or incompletely documented.

AF, Tab 100 at 14-16. Comment 116 noted that efforts were underway to recover

missing documentation, that some improperly logged files had been located, and

further efforts to correct documentation problems were ongoing. Both of these

comments are an acknowledgment that the underlying problem disclosed by the

appellant, that there were missing deliverables that had not been accounted for,

in fact existed. Id. at 31. 

¶19 The initial decision also failed to take into account evidence that

corroborated the appellant’s disclosure, such as the substantially similar report

prepared by Mr. E and the existing IG reports that Mr. B reviewed during the

furlough, which had all reached similar broad conclusions about mismanagement

of NextGen pre-implementation funds. In addition, the administrative judge

rejected the appellant’s proposed hearing exhibit PPPP, a document entitled

“FAA’s Management and Oversight of Development Funding Exit Conference

Document March 9, 2017.” AF, Tab 127. The administrative judge found that

the document was not relevant because the truth of the appellant’s disclosure was

not at issue in this appeal. MSPB Docket No. DC-1221-16-0136-W-3,

Hearing Compact Disc, June 4, 2018 (14:00). 

¶20 The administrative judge is correct that the appellant need not prove that his

disclosure actually evidenced a violation of law, rule, or regulation, gross

8
mismanagement, or a gross waste of funds. Scoggins v. Department of the Army,

123 M.S.P.R. 592, ¶ 11 (2016). However, the U.S. Court of Appeals for the

Federal Circuit and our own decisions have held that the fact that others share the

appellant’s belief is a factor that weighs in favor of finding his belief reasonable.

Greenspan v. Department of Veterans Affairs, 464 F.3d 1297, 1305 (Fed. Cir.

2006); Ayers, 123 M.S.P.R. 11, ¶ 22. The Exit Conference Document was

prepared by the agency’s IG and is a summary of an analysis of NextGen

developmental funding during fiscal years 2009-2015 by auditors who “conducted

our work in accordance with generally accepted Government auditing standards.”

AF, Tab 127 at 4. In addition to citing a lack of established procedures for

tracking expenditures, the IG stated:

FAA identified 640 deliverables valued at $109 million missing from

the Office of NextGen. Although FAA took action to recover

missing NextGen deliverables from program offices, 118 remained

missing or late from August 2010 to 2016. 

AF, Tab 127 at 5. The excluded exhibit provides significant support for the

appellant’s claim that his belief was reasonable and we find that the

administrative judge abused his discretion by excluding it. 

¶21 The initial decision’s second basis for finding that the appellant failed to

show that he had a reasonable belief that his disclosure was protected was that the

disclosure was about a policy disagreement and was motivated by a desire to

discredit senior management. The appellant’s disclosure that there were

178 missing deliverables valued at $49.2 million is not reasonably characterized

as a disagreement about policy. The initial decision noted testimony from Mr. W

that a significant proportion of the missing funds could be accounted for by

projects being funded directly by a budget committee outside the PLA process.

ID at 45. The IG expressed disapproval of the extra-PLA funding process

because it allowed for funding projects before there was an approved budget or

scope of work. AF, Tab 127 at 5. The expert opinion of the IG’s trained auditors

that NextGen’s extra-PLA funding process was improper undercuts the

9
administrative judge’s conclusion that the decision to fund projects in this fashion

was a debatable question of policy. Even assuming arguendo that a portion of the

missing funds could be attributable to financial practices that were debatable

matters of policy, the majority of the missing funds covered by the appellant’s

disclosure were not attributable to these practices. We find that the

administrative judge’s conclusion that the appellant’s disclosure concerned

debatable matters of policy is not supported by the weight of the record evidence.

¶22 The administrative judge also credited Mr. F’s testimony that the IRR was a

“contrived attack” on NextGen management and, by implication, not a genuine

report of misconduct. ID at 52. The Board has repeatedly held that when a

putative whistleblower has met the reasonable belief test, the motivation for his

disclosures is irrelevant. Sood v. Department of Veterans Affairs, 88 M.S.P.R.

214, ¶ 14 n.3 (2001); Carter v. Department of the Army, 62 M.S.P.R. 393, 402

(1994), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table). The fact that the appellant

may have been perceived to some extent as a troublemaker is not material to the

question of whether a disinterested observer with the facts known to and

reasonably ascertainable by him could conclude that the agency’s financial

activities violated a law, rule, or regulation, or constituted gross mismanagement

or a gross waste of funds. Johnson v. Department of Defense, 87 M.S.P.R. 454,

¶ 10 (2000). Because the appellant’s alleged motivation is not a consideration

that is pertinent to the question of whether the appellant reasonably believed his

disclosure was protected, the fact that the administrative judge found that Mr. F’s

assertion about the appellant’s alleged motivation was credible is not a binding

and material credibility determination. 

¶23 For all the above reasons, we find that the appellant proved by preponderant

evidence that he had a reasonable belief that he made a protected disclosure of

gross mismanagement.4 We further find that, within approximately a year after

4

Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 16 (2007) (defining “gross

mismanagement” as a management action or inaction that creates a substantial risk of

significant adverse impact on the agency’s ability to accomplish its mission, that is

10
his disclosure in May 2014, Mr. B reassigned the appellant in January 2015 and

Ms. W failed to select him for his former position when the agency readvertised it

in June 2015. Because these actions were taken by management officials with

direct knowledge of the appellant’s disclosures and took place with a period of

time such that a reasonable person could conclude that the disclosure was a

contributing factor in the personnel action, the appellant has shown contributing

factor. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015)

(stating than an appellant may prove that a disclosure was a contributing factor in

a personnel action under the knowledge/timing test by demonstrating that the

official taking the personnel action knew of the disclosure, and that the personnel

action occurred within 1 to 2 years of the disclosure). Accordingly, we find that

the appellant has established a prima facie case of reprisal for whistleblowing

with respect to these two personnel actions.

¶24 The appellant further contended below that the agency subjected him to an

additional personnel action when he was subjected to a hostile working

environment. On remand, the administrative judge shall determine whether the

appellant has shown that he was subjected to treatment that individually or

collectively, had practical and significant effects on the overall nature and quality

of his working conditions, duties, or responsibilities so as to constitute a

significant change in his duties, responsibilities, or working conditions under

5 U.S.C. § 2302(a)(2)(A)(xii). See Skarada v. Department of Veterans Affairs,

2022 MSPB 17, ¶ 16. If the administrative judge finds that the appellant was

affected by a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), he shall

more than de minimis wrongdoing or negligence, and that does not include management

decisions that are merely debatable); cf. Wood v. Department of Defense, 100 M.S.P.R.

133, ¶ 12 (2005) (finding that the appellant made a nonfrivolous allegation that he

disclosed gross mismanagement when he reported that an agency official failed to

request an investigation into large-scale thefts by agency employees and for having

failed to redeem $90,000 in discount coupons; under the circumstances and in light of

the alleged value of the coupons, the Board found it was not debatable among

reasonable people that the disclosures alleged serious errors by agency management).

11
determine whether the appellant has shown that his protected disclosure was a

contributing factor to that personnel action.

The appeal must be remanded for further proceedings.

¶25 Because the appellant has made out a prima facie case, the agency must

show by clear and convincing evidence that it would have taken the same

personnel actions in the absence of the protected disclosure. 5 U.S.C. § 1221(e)

(1)-(2); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).

The administrative judge made no findings regarding this issue. We find it

appropriate to remand this case because the administrative judge, as the hearing

officer, is in the best position to make factual findings and detailed credibility

assessments on the remaining issue. Turner v. Department of Agriculture,

2023 MSPB 25, ¶ 19.

ORDER

¶26 For the reasons discussed above, we remand this case to the Washington

Regional Office for further adjudication in accordance with this Remand Order. 5

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

5

In the remand initial decision, the administrative judge may reincorporate prior

findings as appropriate, consistent with this Remand Order.

12