UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SAMUEL ALAN OSBORNE,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-1221-19-0077-W-3

DATE: August 7, 2024

THIS ORDER IS NONPRECEDENTIAL1

Samuel Alan Osborne, Santa Rosa Beach, Florida, pro se.

William Vincent Cochrane, Venus Owens, and Holly L. Buchanan, Eglin 

Air Force Base, Florida, 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

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

denied his request for corrective action in his individual right of action (IRA)

appeal. For the reasons discussed below, we GRANT the appellant’s petition for

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

BACKGROUND

The appellant is employed by the agency as a Supervisory Range

Operations Specialist, supervising approximately 40 employees. Osborne v.

Department of the Air Force, MSPB Docket No. AT-1221-19-0077-W-1, Initial

Appeal File (IAF), Tab 13 at 11, 24, Tab 14 at 24. In the fall of 2011, he filed a

complaint with the agency’s Office of Inspector General (OIG), as well as an

internal appeal, regarding his conversion from the National Security Personnel

System (NSPS) to the General Schedule (GS). IAF, Tab 1 at 34-36; Osborne v.

Department of the Air Force, MSPB Docket No. AT-1221-19-0077-W-3, Appeal

File (W-3 AF), Tab 22, Hearing Compact Disc (HCD), Track 7 at 17:50

(testimony of the appellant). He alleged that his then-supervisor’s signature was

forged on paperwork recommending the appellant’s conversion at the GS-12 level

instead of at the GS-13 level. IAF, Tab 1 at 6, 34-36; Osborne v. Department of

the Air Force, MSPB Docket No. AT-1221-19-0077-W-2, Appeal File (W-2 AF),

Tab 12 at 7. 

According to the appellant, in 2012 and 2016, he informed management

officials that the agency was improperly considering employees’ community

service in the granting of quality step increases (QSIs). IAF, Tab 34 at 16-17;

HCD, Track 7 at 26:00 (testimony of the appellant). The appellant further told

his supervisor and another agency official, including in emails in March 2017,

that “[b]y [Code of Federal Regulations (CFR)] guidance and the limits placed on

QSI’s,” his section was entitled to its own QSI because it had exceeded

“34 personnel.” IAF, Tab 1 at 53; W-2 AF, Tab 12 at 7. He pointed out that, for

purposes of awarding a QSI, his section was included in a larger group of

approximately 80 employees. IAF, Tab 1 at 53. 

2
In October 2017, the appellant’s second-level supervisor reprimanded the

appellant based on two charges: discourteous conduct and deliberate

misrepresentation. Id. at 46, 51-52. The discourteous conduct charge stemmed

from an email the appellant sent to an agency contracting officer in August 2017,

stating “if you think this isn’t an issue . . . then you are invited to ride the ‘Vomit

Comet’ on our next mission and maybe it will be a greater priority.” Id. at 42, 46,

51-52. The Vomit Comet was the nickname of a boat needing repairs that

notoriously made people sick when riding it. HCD, Track 7 at 33:00 (testimony

of the appellant). The appellant’s email and reference to the Vomit Comet sought

to convince the contracting officer to expedite the documentation for funding to

refurbish the boat. IAF, Tab 1 at 42-44, 46. The appellant also copied several

other agency personnel on this email who were not originally included in his

email exchange with the contracting officer. Id. at 42-44. As for the deliberate

misrepresentation charge, the agency alleged that the appellant falsely claimed in

his March 2017 emails to his supervisor and another agency official that, under

the CFR, his section was entitled to its own QSI award. Id. at 46-47, 53. 

The appellant subsequently filed a complaint with the Office of Special

Counsel (OSC), alleging that the letter of reprimand was in retaliation for

protected disclosures. Id. at 6-7. After receiving notice that OSC was closing out

its investigation, he filed the initial appeal in this case. Id. at 3.

In the meantime, around August 2018, the agency revoked the appellant’s

telework eligibility. W-3 AF, Tab 7 at 70-75. According to the agency, the

revocation was due in part to the need for the appellant to be physically present to

supervise his 40 subordinates. Id. at 70-71. Moreover, per agency policies, the

appellant’s reprimand rendered him ineligible for telework. Id. at 14, 70-71. The

appellant filed a second OSC complaint alleging that his telework eligibility was

revoked in retaliation for his disclosures and first OSC complaint. W-2 AF,

Tab 12 at 7. The appellant asserted below that the agency revoked his telework

within weeks of the date he informed his supervisors that he had filed an OSC

3
complaint and planned to file a Board appeal. W-3 AF, Tab 8 at 5, 13. Following

OSC’s closure of its investigation into his second complaint, the appellant

amended his IRA appeal to include the issue of whether the revocation of his

telework eligibility was retaliatory. W-2 AF, Tab 14; W-3 AF, Tab 12 at 3-4. 

After holding a hearing, the administrative judge issued an initial decision

denying the appellant’s request for corrective action. W-3 AF, Tab 24, Initial

Decision (ID) at 1-2. The administrative judge found that the Board has

jurisdiction over the appellant’s disclosure of alleged forgery of paperwork

regarding his conversion from an NSPS to a GS position and his disclosure

regarding the consideration of community service in awarding QSIs. IAF,

Tabs 22, 40; ID at 7-9. Although, as noted below, he made no reference in his

decision to the appellant’s filing of an OSC complaint, he previously found that

the Board has jurisdiction over this claim in his prehearing conference summary

order. W-3 AF, Tab 12 at 3. In that same order, he found that the Board lacked

jurisdiction over the appellant’s threat to file a Board appeal. Id. Further, the

administrative judge determined that the Board has jurisdiction over the agency’s

actions reprimanding the appellant and revoking his telework eligibility. IAF,

Tabs 22, 40; W-2 AF, Tab 14. He found, however, that the appellant failed to

nonfrivolously allege jurisdiction over his disclosure that his section was entitled

to its own QSI. IAF, Tab 22 at 1; ID at 7. 

As to the merits, the administrative judge concluded that the appellant

failed to prove, by preponderant evidence, that his disclosure regarding the use of

community service in awarding QSIs was protected. ID at 13. The administrative

judge found that the appellant proved that his forgery disclosure was protected,

but that he failed to demonstrate that it was a contributing factor in his reprimand

or the telework revocation. ID at 9-12. Therefore, the administrative judge

denied the appellant’s request for corrective action. ID at 2, 14.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He disagrees with the administrative judge’s conclusion that the

4
Board lacks jurisdiction over his disclosure that his section was entitled to its

own QSI. Id. at 2, 9-12. He also challenges the finding that he failed to prove by

preponderant evidence that his disclosure regarding the use of community service

in awarding QSIs was protected. Id. at 9-10. He disputes the administrative

judge’s finding that he failed to prove that his forgery disclosure was a

contributing factor in his letter of reprimand and telework revocation, id. at 6-9,

and contests the strength of the agency’s reasons for these actions, id. at 1-4. He

argues that the administrative judge improperly denied a witness, and that his

counsel below failed to file motions to compel discovery. Id. at 10. Finally, he

attaches documents he claims to be new and material and unavailable below

despite his due diligence. Id. The agency has responded to his petition for

review. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

We agree with some of the administrative judge’s jurisdictional findings, but

remand for further jurisdictional determinations.

To establish jurisdiction in a typical IRA appeal, an appellant must show

by preponderant evidence that he exhausted his remedies before OSC, and make

nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of

Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by

Requena v. Department of Homeland Security, 2022 MSPB 39. 

The parties do not dispute the administrative judge’s findings of

jurisdiction over two of the appellant’s disclosures as set forth above and his

activity of filing an OSC complaint. ID at 7-9; IAF, Tabs 22, 40; W-2 AF,

Tab 14; W-3 AF, Tab 12 at 3. They also do not dispute his finding of jurisdiction

over the appellant’s reprimand and the revocation of his telework eligibility, and

5
that the appellant proved that his disclosure that someone had forged his

supervisor’s recommendation to transition him from the NSPS at the GS-12 level

was protected. ID at 7-9. We decline to disturb these findings. 2

The administrative judge properly determined that the appellant did

not nonfrivolously allege that he reasonably believed his section was

entitled to its own QSI.

The appellant on review challenges the administrative judge’s finding that

the Board does not have jurisdiction over his disclosure concerning his section’s

entitlement to its own QSI. PFR File, Tab 1 at 2, 9-12; IAF, Tabs 22, 30; ID at 7.

We are unpersuaded. 

Protected whistleblowing occurs when an appellant makes a disclosure that

he 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 and safety. 5 U.S.C. § 2302(b)

(8); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013).

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 any violation of any law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).

Mudd, 120 M.S.P.R. 365, ¶ 5.

The appellant argues that the administrative judge failed to apply a

reasonable person standard. PFR File, Tab 1 at 9. In finding that the appellant

2

 Because the administrative judge found the appellant’s forgery disclosures protected

under 5 U.S.C. § 2302(b)(8), we do not need to reach the issue of whether these

disclosures were also protected activity under 5 U.S.C. § 2302(b)(9)(C). ID at 9-10.

That provision designates as protected activity complaints to the agency’s OIG or other

agency “component responsible for internal investigation and review.” See Panter v.

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

error that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision). Regardless of the basis for determining that the forgery

disclosure was protected, the analysis of jurisdiction and the merits of the appellant’s

claim remain the same. See Corthell, 123 M.S.P.R. 417, ¶ 8. 

6
failed to nonfrivolously allege that his March 2017 disclosure was protected, the

administrative judge reasoned that he was “unaware of any authority supporting

the appellant’s position and therefore view[ed] this issue as a mere policy

dispute.” ID at 7 (emphasis in original); see Webb v. Department of the Interior,

122 M.S.P.R. 248, ¶¶ 7-9 (2015) (recognizing that general philosophical or policy

disagreements with agency decisions or actions are not protected unless they

separately constitute a protected disclosure of one of the categories of

wrongdoing listed in section 2302(b)(8)(A)). 

We agree with the administrative judge that a reasonable person in the

appellant’s position would not have believed that the agency’s failure to provide

more QSIs, by itself, evidenced gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health and

safety. See Garrison v. Department of Defense, 101 M.S.P.R. 229, ¶ 9 (2006)

(giving a subordinate a high performance rating against the direction of a superior

is not a protected disclosure). 

The appellant’s main argument on review is that he reasonably believed his

disclosure evidenced a violation of law, rule, or regulation. In his March 2017

email, the appellant referred to unidentified “CFR guidance and the limits placed

on QSI’s” to support his claim that his section was entitled to its own QSI. IAF,

Tab 1 at 53. On review, he asserts that he provided the CFR reference to the

agency. PFR File, Tab 1 at 2, 11-12. However, the appellant does not cite to any

evidence in the record supporting his contention, and does not provide the CFR

cite on review. 

At the jurisdiction stage, an appellant is not required to identify the

particular statutory or regulatory provision that the agency allegedly violated

when his statements and the circumstances of those statements clearly implicate

an identifiable law, rule, or regulation. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 17 (2011). Rather, he is only burdened with

nonfrivolously alleging that he reasonably believed that his disclosure evidenced

7
such a violation. Id. The administrative judge appears to have found that the

appellant’s claim of authority supporting his section’s entitlement to its own QSI

was not reasonable.3 ID at 7. 

We agree. The statutes and regulations regarding QSIs do not support the

appellant’s contention as to the reasonableness of his belief. For example,

5 U.S.C. § 5336, which allows for QSIs, provides that such increases may be

granted “in recognition of high quality performance above that ordinarily found

in the type of position concerned,” but only “[w]ithin the limit of available

appropriations.” 5 U.S.C. § 5336(a). The regulations implementing this statute

reflect that an agency may, but is not required to, award a QSI based on

outstanding performance. Id.; 5 C.F.R. §§ 531.201, .504. At most, this law

suggests that QSIs should be awarded within fiscal limits and only when earned. 

The appellant argues that the reasonableness of his belief regarding his

March 2017 QSI disclosure is supported by his first-level supervisor’s response.

PFR File, Tab 9. He asserts that his first-level supervisor “believed the appellant

was correct enough . . . to see the appellant[’]s point.” PFR File, Tab 1 at 9.

Although the Board has held that the fact that other knowledgeable agency

employees and former employees shared an appellant’s concerns may lend some

support to the reasonableness of his belief, see, e.g., Turner v. Department of

Agriculture, 2023 MSPB 25, ¶ 18, the record here does not support the

appellant’s assertion that his supervisor actually shared his belief. The

appellant’s supervisor responded to the appellant’s March 2017 email that he

“agree[d] [with the appellant] on all accounts.” IAF, Tab 1 at 53. This response,

however, was based on the appellant’s inaccurate representation to his supervisor

that the agency was violating the “CFR guidance” and unidentified “limits placed

3

 This is consistent with the administrative judge’s finding on the merits of the

appellant’s remaining claims. Specifically, the administrative judge found that the

agency’s reason for reprimanding the appellant for his alleged deliberate

misrepresentation in connection with the March 2017 disclosure was strong. ID

at 10-11; IAF, Tab 1 at 47. 

8
on QSI’s.” Id. Under these circumstances, we do not find that the supervisor’s

response supports the reasonableness of the appellant’s belief. Because we agree

with the administrative judge that the appellant’s disclosure was not protected, we

do not reach his remaining arguments on review regarding this disclosure. PFR

File, Tab 1 at 8.

We remand the appellant’s claim of perceived protected activity

under 5 U.S.C. § 2302(b)(9)(A)(i) for further adjudication.

On review, the appellant re-raises his claim that his telework was

suspended in August 2018 as “punishment” for his statement earlier in the month

that he had filed an OSC complaint and planned to file an IRA appeal with the

Board.4 PFR File, Tab 1 at 9-10; W-3 AF, Tab 8 at 5, 13, Tab 12 at 3. As

discussed above, the administrative judge correctly found that the Board has

jurisdiction over the appellant’s claim of reprisal for filing his OSC complaint.

However, the administrative judge concluded that the threat to file an IRA appeal

with the Board is not protected activity under whistleblower reprisal statutes.

W-3 AF, Tab 12 at 3. This finding was in error. 

The Board has IRA jurisdiction over a claim of reprisal for engaging in

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), which includes

“the exercise of any appeal . . . right” in which the appellant sought to remedy

whistleblower reprisal. 5 U.S.C. §§ 1221(a), 2302(b)(8), (b)(9)(A)(i); see Mudd,

120 M.S.P.R. 365, ¶ 7 (recognizing that Congress expanded the Board’s IRA

jurisdiction in the Whistleblower Protection Enhancement Act of 2012 to include

this type of activity). The Board has recognized that it has jurisdiction over a

claim that an agency retaliated against an individual because it perceived that

individual to have engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).

Corthell, 123 M.S.P.R. 417, ¶¶ 9-12. Such a perception may arise when an

agency learns that an appellant has threatened to engage in the activity. See

Mausser v. Department of the Army, 63 M.S.P.R. 41, 44 (1994) (observing that an

4

 He filed the instant appeal approximately 2 months later. IAF, Tab 1. 

9
appellant might be entitled to protection under whistleblower protection statutes

if he threatened to make, but did not actually make, a protected disclosure). We

discern no basis to distinguish the Board’s reasoning regarding perceived

protected activity under section 2302(b)(9)(C) from perceived protected activity

under section 2302(b)(9)(A)(i). Therefore, we remand this claim for a

determination of whether the appellant established jurisdiction over this claim,

see Corthell, 123 M.S.P.R. 417, ¶ 13, and, if so, for adjudication on the merits.

We remand the appellant’s claims of retaliation for his disclosure regarding the

consideration of community service in awarding QSIs and filing an OSC

complaint.

The administrative judge found that the appellant failed to prove that he

reasonably believed that the agency’s consideration of community service in

awarding QSI’s evidenced wrongdoing under section 2302(b)(8). ID at 12-13.

The appellant disputes this finding, arguing that he proved that he reasonably

believed that the agency violated a law, rule, or regulation. PFR File, Tab 1 at 9.

The administrative judge found that the appellant failed to identify any authority

that “expressly prohibits” this consideration. ID at 13. We reverse this finding

and remand the appeal for further consideration of this disclosure.

Ordinarily, at the merits stage of an IRA appeal, an appellant must identify

the law, rule, or regulation that he believes an agency violated. Langer v.

Department of the Treasury, 265 F.3d 1259, 1262-63, 1266 (Fed. Cir. 2001).

However, “this requirement does not necessitate the identification of a statutory

or regulatory provision by title or number, when the employee’s statements and

the circumstances surrounding the making of those statements clearly implicate

an identifiable violation of law, rule, or regulation.” Id. at 1266. Here, we find

that the appellant’s statements clearly implicate the requirement that QSIs be

awarded based on performance. 

The purpose of QSIs is to provide appropriate incentives and recognition

for excellence in performance by granting faster-than-normal step increases.

10
5 C.F.R. § 531.503. As discussed above, performance is the only merit-based

consideration enumerated in the statute regarding QSIs and its implementing

regulations. 5 U.S.C. § 5336(a); 5 C.F.R. § 531.504. Similarly, per the agency’s

policy, QSIs “may only be given to employees who have exceeded all critical

elements, and only to those employees who have displayed the highest quality

performance, significantly above that ordinarily found in the type of position to

which the employee is assigned and is expected to continue.” IAF, Tab 14

at 105-06. 

More generally, performance standards should be designed to measure

performance on job criteria. 5 U.S.C. § 4302(c). Indeed, it is prohibited to

discriminate against an employee on the basis of conduct which does not

adversely affect the employee’s performance. 5 U.S.C. § 2302(b)(10). We find

that a person in the appellant’s position could reasonably conclude that, to the

extent the agency considered factors other than performance in awarding QSIs, it

violated a law, rule, or regulation. See Webb, 122 M.S.P.R. 248, ¶ 6 (finding that

an appellant need not prove the matter disclosed actually evidenced wrongdoing,

but rather, that a reasonable person would believe it did). Therefore, we reverse

the administrative judge’s finding that the appellant’s disclosure was not

protected because he failed to specifically identify the law that the agency

violated.

It is less clear from the record, however, whether the appellant reasonably

believed that the agency was, in fact, considering community service in QSIs and

whether he made such a disclosure. The appellant testified that employees he

nominated in 2012 and 2016 were not awarded QSIs. HCD, Track 7 at 22:10

(testimony of the appellant). He indicated that the employees were eliminated

because they did not receive awards based, in part, on community service. Id.;

IAF, Tab 38 at 8-11. He further testified that he told the Deputy Director to the

Special Operations Groups Commander (Deputy Director), who he alleges

influenced the deciding official, about his concerns. HCD, Track 7 at 28:20

11
(testimony of the appellant). The Deputy Director, on the other hand, testified

that the appellant never raised an issue to him about considering community

service in awarding QSIs. HCD, Track 6 at 10:30 (testimony of the Deputy

Director). 

Because a finding on the reasonableness of the appellant’s belief and

whether he made the purported disclosure depends on the resolution of credibility

and factual matters, we remand this appeal so that the administrative judge, who

conducted the hearing in which these matters were addressed, can make the initial

findings and conclusions as to those issues. See Marchese v. Department of the

Navy, 65 M.S.P.R. 104, 109 (1994) (remanding an appeal for the administrative

judge who held the hearing to make factual findings on disputed matters in the

first instance).

As noted, the appellant on review reasserts the claim that his telework was

suspended 2 weeks after he informed the agency that he had filed an OSC

complaint. PFR File, Tab 1 at 9-10; W-2 AF, Tab 12 at 7; W-3 AF, Tab 8 at 5.

Despite finding jurisdiction over this activity, which is protected under 5 U.S.C.

§ 2302(b)(9)(C), the administrative judge did not address in the initial decision

whether the appellant proved the merits of this claim. W-3 AF, Tab 12 at 3.

Because it is undisputed that the appellant did, in fact, file his first OSC

complaint after receiving his letter of reprimand in October 2017, and OSC closed

its investigation in September 2018, we find that the appellant proved by

preponderant evidence that he engaged in protected activity. IAF, Tab 1 at 3, 6-7,

51-52. Thus, we must remand this claim for a determination as to whether the

appellant proved by preponderant evidence that his OSC complaint was a

contributing factor in the decision to revoke his telework eligibility in August

2018. W-3 AF, Tab 7 at 70-75; see Corthell, 123 M.S.P.R. 417, ¶ 8. 

12
The administrative judge correctly found that the appellant failed to establish that

his forgery disclosure was a contributing factor in the personnel actions.

The administrative judge found that the forgery disclosure, which occurred

approximately 6 years before the personnel actions at issue in this appeal, was too

distant to satisfy the timing element of the knowledge/timing test. ID at 9-10.

The parties do not challenge this finding on review, and we see no reason to

disturb it.

The administrative judge then considered other evidence of contributing

factor, but nonetheless found that the appellant failed to meet his burden. ID

at 10-12. The appellant on review challenges this determination. 5 PFR File,

Tab 1 at 1-10. We agree with the administrative judge.

The Board has held that, if an administrative judge determines that an

appellant has failed to satisfy the knowledge/timing test, he shall consider other

evidence in determining whether the appellant has met his burden on contributing

factor. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012). This

other evidence includes the strength or weakness of the agency’s reasons for

taking the personnel action, whether the whistleblowing was personally directed

at the proposing or deciding officials, and whether these individuals had a desire

or motive to retaliate against the appellant. Id. 

The administrative judge found that the agency had strong reasons to

reprimand the appellant based on his discourteous email suggesting that a ship in

need of repairs was a “Vomit Comet,” and that if the contracting officer rode on it

she would place greater priority on the funding of its repair. ID at 10-11. The

appellant disagrees, arguing that the deciding official, his second-level

supervisor, admitted to using “profanity and much more discourteous language”

5

 To the extent the appellant is challenging the underlying merits of the personnel

actions, the Board lacks the authority to adjudicate the merits of the personnel actions at

issue in this IRA appeal. Lu v. Department of Homeland Security, 122 M.S.P.R. 335,

¶ 7 (2015). Further, the Board generally does not otherwise have appellate jurisdiction

over a letter of reprimand or revocation of telework. See generally 5 C.F.R.

§ 1201.3(a)-(b) (listing the bases for the Board’s appellate jurisdiction).

13
with his peers. PFR File, Tab 1 at 7. He also seeks to deflect blame onto the

contracting officer and the Deputy Director for failing to act on his funding

requests. Id. at 1-2, 7-8. 

We nevertheless agree with the administrative judge that the appellant’s

email was discourteous, especially given that he copied several individuals on the

email who were not originally part of the exchange. IAF, Tab 1 at 46, 56-57. To

the extent that the appellant is seeking to mitigate the severity of his misconduct,

we cannot review the appropriateness of the agency’s penalty in an IRA appeal

such as this one. Weaver v. Department of Agriculture, 55 M.S.P.R. 569, 576

(1992); see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981)

(providing a nonexhaustive list of factors relevant to penalty determinations in a

chapter 75 appeal, including the consistency of the penalty and mitigating factors

such as unusual job tensions or provocation on the part of others involved in the

matter). 

Further, the appellant does not claim that he raised his frustration with the

funding process to the deciding official as a justification for his behavior. IAF,

Tab 1 at 49. As to the alleged similar behavior of the deciding official, the

appellant provides no specific citations in his petition for review. PFR File,

Tab 1 at 7. To the extent he is relying on an email exchange the deciding official

had with a peer that is contained in the record, this exchange reflects a mutual

understanding of a more casual relationship. W-3 AF, Tab 8 at 232. Specifically,

the deciding official’s colleague first emailed, “Don’t make me pop you in the

mouth,” to which the deciding official responded, “I’ll crack you in the butt

face!” Id. No other individuals were included on the exchange. We do not find

this exchange similar to the appellant’s one-sided email to the contracting officer.

Finally, as the administrative judge observed, a letter of reprimand is a very low

14
level of discipline and evidenced a corrective response from the deciding official

here.6 ID at 11. 

The administrative judge also found that the appellant’s false claim that

legal authorities supported his section’s entitlement to its own QSI was a strong

reason for the agency’s charge of deliberate misrepresentation. ID at 10-11. We

agree. IAF, Tab 1 at 46. The appellant argues that this is “double jeopardy,” in

that his first-level supervisor did not believe he misrepresented the CFR.

PFR File, Tab 1 at 8. The appellant appears to be referring to the principle that

an agency may not discipline an employee twice for the same misconduct. See

Frederick v. Department of Homeland Security, 122 M.S.P.R. 401, ¶ 4 n.2, ¶ 6

(2015). This principle has no bearing on this appeal, as there is no allegation that

the appellant was disciplined for his misconduct twice. 

Finally, the appellant challenges the administrative judge’s finding that the

agency had strong reasons for revoking the appellant’s telework. PFR File, Tab 1

at 3-4, 6, 8. The administrative judge credited the testimony of the appellant’s

second-level supervisor that the appellant’s position required face-to-face

interaction with his subordinates. ID at 11. He further agreed with this witness

and the appellant’s first-level supervisor that the agency’s policy generally

prohibited employees disciplined within the last year from teleworking, and that

there was no deleterious effect on the agency’s mission due to the telework

revocation. ID at 11-12. The Board must defer to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing; the Board may

6

 The appellant further claims that the proffered reason for his letter of reprimand was

not the real reason for the discipline, and that the agency admitted to such. PFR File,

Tab 1 at 11. He raised this argument below, asserting that the deciding official

provided additional, retaliatory reasons for the letter of reprimand. W-3 AF, Tab 8

at 12. What the appellant references is a list of concerns regarding the appellant’s

pattern of behavior outlined by the deciding official, and an urging of the appellant to

take the discipline seriously. IAF, Tab 1 at 51-52. These concerns are not cited as

justification for the discipline and do not demonstrate an alternative basis for the letter

of reprimand. 

15
overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

Indeed, the Board must give “special deference” to an administrative judge’s

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly

discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373

(Fed. Cir. 2016). 

The appellant challenges these credibility findings, arguing that “mission

critical” positions, such as his, do not require telework suspension under the

agency policies, and that his telework was revoked for 2 years rather than just 1

year as mandated by the policy. PFR File, Tab 1 at 3-4. He further argues that

his duties were largely administrative, he did not need face-to-face interaction

with subordinates, and his telework agreement had been approved for the last

8 years without any problem. Id. We find that the appellant has failed to identify

sufficiently sound reasons for overturning the administrative judge’s credibility

determinations. As such, we decline to disturb his conclusion that the agency’s

reasons for revoking the appellant’s eligibility to telework were strong. 

The administrative judge next found that the appellant’s forgery disclosure

was not directed at the individuals responsible for taking the personnel actions.

ID at 12. The appellant does not challenge this finding on review, and we see no

reason to disturb it. 

Lastly, the administrative judge found that there was no evidence that the

management officials responsible for the personnel actions were involved in the

decision to transition the appellant from the NSPS at the GS-12 level. ID at 12.

Therefore, he concluded they did not have a motive to retaliate based on the

appellant’s forgery disclosure. Id. The appellant argues on review that there was

a long-standing conflict between himself and the Deputy Director, who he alleges

influenced his second-level supervisor to issue the reprimand and revoke the

appellant’s telework. PFR File, Tab 1 at 6-7. Moreover, he alleges that the

Deputy Director was “in charge” of the transition to the GS scale for employees,

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and thus he had a motive to retaliate against the appellant for alerting

management to errors in that process. Id. at 4-7. 

We are not persuaded by these contentions. In making his finding

regarding the Deputy Director’s lack of motive, the administrative judge relied on

the testimony of the appellant’s first-level supervisor that the Deputy Director

was supportive of the appellant’s internal appeal and efforts to be classified at the

GS-13 level. ID at 12; HCD, Track 1 at 52:00 (testimony of the Commander).

The appellant is essentially disagreeing with the administrative judge’s credibility

determinations, which we decline to disturb. See Haebe, 288 F.3d at 1301. 

The appellant’s remaining arguments on review are unpersuasive.

The appellant argues that his attorneys below failed to file motions to

compel discovery, and generally claims that his attorneys provided ineffective

counsel. PFR File, Tab 1 at 10. Even if true, the presence of inadequate counsel

is not a basis for reversal because the appellant is held responsible for the action

or inaction of his counsel. Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 7

(2010), overruled on other grounds by Thurman v. U.S. Postal Service,

2022 MSPB 21. Further, because the appellant did not file a motion to compel

below, he is precluded from raising the discovery issue on review. Szejner v.

Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.

App’x 217 (Fed. Cir. 2006).

The appellant also argues that the administrative judge inappropriately

denied a witness that both parties requested. PFR File, Tab 1 at 10. The

administrative judge denied this witness as irrelevant in his prehearing conference

memorandum. W-3 AF, Tab 12 at 4. There is no indication that the appellant

objected to this ruling below and, thus, the matter is not properly preserved for

review. See McCarty v. Department of the Navy, 67 M.S.P.R. 177, 180-81

(1995).

Finally, the appellant attaches what he purports to be new and material

evidence on review. PFR File, Tab 1 at 10, 14-41. The Board will grant a

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petition for review when, among other reasons, new and material evidence is

available that, despite the petitioner’s due diligence, was not available when the

record closed. Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 6 (2014);

5 C.F.R. § 1201.115(d). The documents submitted by the appellant predate the

close of record below, and the appellant has not explained why he did not submit

them at that time. PFR File, Tab 1 at 10, 14-41; W-3 AF, Tab 12 at 1, 5;

see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (explaining

that under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the record was closed before the administrative judge despite

the party’s due diligence).7

ORDER

For the reasons discussed above, we remand this case to the Atlanta

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

On remand, the administrative judge must make a finding as to whether the

appellant established jurisdiction over his claim that the agency retaliated against

him for threatening to file an IRA appeal and thus perceived him to be a

whistleblower, and, if so, adjudicate that claim on the merits. 

The administrative judge must also make a finding as to whether the

appellant proved by preponderant evidence that he reasonably believed that the

agency was using community service in awarding QSIs. If so, the administrative

judge should proceed to make findings as to whether the appellant proved he

made this disclosure and, if so, if he proved it contributed to the letter of

reprimand or the revocation of his telework eligibility. The administrative judge

7

 The appellant also disagrees that the individual the administrative judge identified

below as the appellant’s second-level supervisor held this level of authority over him.

PFR File, Tab 1 at 1, 6. We have continued to refer to this individual as the appellant’s

second-level supervisor for the sake of consistency. We are not persuaded that the use

of this designation was improper and, in any event, any error is inconsequential and

therefore does not warrant reversal of the initial decision. See Panter, 22 M.S.P.R.

at 282.

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must also make a determination as to whether the appellant proved that his OSC

complaint was a contributing factor in the revocation of his telework.

If the appellant proves a prima facie case of retaliation as to any of these

claims, the administrative judge shall decide whether the agency proved by clear

and convincing evidence that it would have taken the same action or actions

absent the appellant’s protected disclosure, OSC complaint, or status as a

perceived whistleblower. See Corthell, 123 M.S.P.R. 417, ¶ 8 (explaining that

the Board will not order corrective action if the agency demonstrates by clear and

convincing evidence that it would have taken the same personnel action in the

absence of the protected disclosure or activity).

In adjudicating the merits on remand, the administrative judge shall

determine whether the parties had an opportunity to present testimony or evidence

on the remanded issues. If not, he should hold a supplemental hearing. In the

remand initial decision, the administrative judge may reincorporate prior findings

as appropriate, consistent with this Remand Order.

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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