UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALEXANDER M. SMITH,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DC-1221-17-0664-W-1

DATE: June 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Alexander M. Smith, Washington, D.C., pro se.

Vinayak S. Nain, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

the 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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 Effective March 6, 2016, the agency appointed the appellant to the 

competitive-service position of GS-13 Senior Policy Advisor in the Family and 

Youth Services Bureau (FYSB), subject to a 1-year initial probationary period. 

Initial Appeal File (IAF), Tab 6 at 30. Effective December 2, 2016, the agency 

terminated the appellant for postappointment reasons. Id. at 22-25. After filing a 

whistleblowing complaint with the Office of Special Counsel (OSC), and 

receiving OSC’s closeout letter, the appellant filed the instant IRA appeal with 

the Board challenging his termination. IAF, Tab 1 at 4-5, 8.

¶3 The administrative judge issued an order, informing the appellant of the 

standard for establishing jurisdiction over an IRA appeal and directing him to file 

a statement detailing the elements of his claim, including a list of each protected 

disclosure that he was asserting and why he believed that each disclosure was a 

contributing factor in a claimed personnel action. IAF, Tab 3. The appellant did 

not respond to the order. After the record on jurisdiction closed, the 

administrative judge issued an initial decision dismissing the appeal for lack of 
3

jurisdiction. IAF, Tab 7, Initial Decision (ID). She found that the appellant 

failed to make a nonfrivolous allegation that he made a protected disclosure, ID 

at 6-8, and that the appellant failed to exhaust his administrative remedies before 

OSC, ID at 8-12. The appellant has filed a petition for review disputing the 

initial decision, and submitting additional documentary evidence. Petition for 

Review (PFR) File, Tab 1. The agency has not filed a response.

ANALYSIS

¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts his

administrative remedies before OSC and makes nonfrivolous allegations that 

(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in 

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)(2)(A). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014).

¶5 On review, the appellant argues that the administrative judge denied him his 

right to a hearing, and he submits additional evidence that he claims he did not 

submit below because it can only be understood in the context of hearing 

testimony. PFR File, Tab 1 at 3-4, 17-33. We have reviewed this 

newly-submitted evidence, and we find that the appellant has not shown that it is 

either new or material. See Okello v. Office of Personnel Management, 

112 M.S.P.R. 563, ¶ 10 (2009) (stating that the Board will not consider evidence 

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

both new and material); 5 C.F.R. § 1201.115(d). All of the evidence predates the 

initial decision, and the appellant appears to acknowledge that he had it in his 

possession before the initial decision was issued. PFR File, Tab 1 at 4, 17-33; see 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Although the 

appellant states that he was waiting to submit this evidence at a hearing, the 

administrative judge explicitly informed him that he must establish jurisdiction 
4

on the written record and that he would not receive a hearing unless he did so. 

IAF, Tab 3 at 7-8; see Spencer v. Department of the Navy, 327 F.3d 1354, 1356 

(Fed. Cir. 2003) (finding that an appellant is entitled to a hearing in an IRA 

appeal only if he establishes jurisdiction over his appeal); Graves v. Department 

of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (same). Rather than waiting 

for a hearing, the appellant could have explained the import of this evidence in 

the jurisdictional brief that he was ordered to file but did not do so. Nor does any 

of this evidence appear to warrant a different outcome from that of the initial 

decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).

¶6 Much of the petition for review consists of a verbatim replication of the 

appellant’s initial appeal submission, which was his only other filing in this 

appeal. PFR File, Tab 1 at 7-11, 14-16; IAF, Tab 1 at 9-15. To this extent, we 

find that the appellant is merely registering his disagreement with the initial 

decision. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980). 

Nevertheless, in light of the jurisdictional nature of the issues, we have reviewed 

the administrative judge’s findings. See Simnitt v. Department of Veterans 

Affairs, 113 M.S.P.R. 313, ¶ 5 (2010) (recognizing that the issue of jurisdiction is 

always before the Board and may be raised at any time during a Board 

proceeding).

¶7 We agree with the administrative judge that the appellant appears to be 

arguing that he made two protected disclosures—the first concerning FYSB’s lack 

of “adequate knowledge in the areas of family planning, education, and 

parenting/perinatal health services for homeless youth,” and the second 

concerning FYSB’s lack of “proper guidance and standards around 

‘evidence-based’ programs and [need] to improve Title V programs, ensuring 

they are trauma-informed, evidence-based, and medically accurate.”2 IAF, Tab 1 

 

2

“Title V” refers to Title V of the Social Security Act of 1935, Pub. L. No. 74-271, 

49 Stat. 620, 629-34 (codified as amended at 42 U.S.C. chapter 7, subchapter V). The 
5

at 10; ID at 6-7. However, we also agree with the administrative judge that the 

appellant failed to make a nonfrivolous allegation that either of these disclosures 

was protected. ID at 6-8, 10-11. A protected disclosure under 5 U.S.C. 

§ 2302(b)(8) is a disclosure of information that an employee reasonably believes 

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

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

to public health and safety. Armstrong v. Department of Justice, 107 M.S.P.R. 

375, ¶ 16 (2007), overruled on other grounds by Edwards v. Department of 

Labor, 2022 MSPB 9. As the administrative judge correctly found, the appellant

failed to make a nonfrivolous allegation that his disclosures meet this standard. 

The appellant’s disclosures, as he describes them, contain at most vague and 

conclusory allegations of wrongdoing that are not covered under the 

Whistleblower Protection Act (WPA). ID at 7-8; see Rzucidlo v. Department of 

the Army, 101 M.S.P.R. 616, ¶ 17 (2006); Mc Corcle v. Department of 

Agriculture, 98 M.S.P.R. 363, ¶ 21 (2005).

¶8 Furthermore, it appears to us that the appellant’s disclosures are essentially 

policy disputes that reflect his own ideas for reforming the agency’s grant 

programs, IAF, Tab 1 at 10-13, but the Board has found that the WPA is not 

meant to be used as a weapon in arguments over policy, O’Donnell v. Department 

of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013), aff’d, 561 F. App’x 926 (Fed. Cir. 

2014). For example, the appellant believed that the agency should provide further 

guidance to grant applicants on how to show that their education programs are 

“medically accurate” and their research is “evidence based,” as required by 

42 U.S.C. § 710(b)(2), (5). IAF, Tab 1 at 5, 9-12. He also recommended that the 

agency expand its knowledge base by conducting additional research or a 

literature review on “the unmet needs of runaway and homeless youth in the areas 

of family planning, education, and parenting/perinatal health services.” Id. at 10, 

 

Title V programs at issue here appear to be the “sexual risk avoidance education” 

programs authorized under 42 U.S.C. § 710. 
6

12. However, even if the appellant reasonably believed that these measures 

would be efficacious, we find nothing to indicate that he reasonably believed that 

the agency was committing gross mismanagement by not adopting them. IAF, 

Tab 1 at 12; see Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 16 (2007)

(indicating that gross mismanagement does not include management decisions 

that are merely debatable). 

¶9 Nor has the appellant made a nonfrivolous allegation that he reasonably 

believed his disclosures evidenced a gross waste of funds. Although the appellant

believes that the agency’s $75 million grant programs would benefit from 

additional research and guidance, IAF, Tab 1 at 12-13, his disclosures were about 

how these programs were being administered—not about their cost, see Embree v. 

Department of the Treasury, 70 M.S.P.R. 79, 85 (1996).

¶10 Nor has the appellant made a nonfrivolous allegation that he reasonably 

believed his disclosures evidenced a substantial and specific danger to public 

health and safety. The appellant asserts that, absent his proposed measures, the 

Title V grant programs “may be completely ineffective, or even harmful to 

specific youth populations.” IAF, Tab 1 at 5, 9-12. However, the appellant has 

not identified the “specific danger” that he is concerned about. His speculation 

that some unnamed harm may befall targeted youth populations through some 

unnamed mechanism if his suggestions are not adopted does not amount to a 

disclosure of a substantial and specific danger to public health and safety. See 

Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 10 (2013).

¶11 Finally, the appellant has not made a nonfrivolous allegation that he 

reasonably believed that his disclosures evidenced an abuse of authority. 3 The 

appellant alleges that various agency officials abused their authority in several 

respects, but he does not argue that these alleged abuses of authority were the 

subject of any disclosures. IAF, Tab 1 at 13; PFR File, Tab 1 at 5, 11-14. 

 

3

The appellant does not argue that his disclosures evidenced a violation of any law, 

rule, or regulation, nor do we see any indication that they might have. 
7

Rather, it appears that he is intending to show that these officials had retaliatory 

motive and that the stated reasons for terminating him were pretextual. These 

matters have no bearing on the jurisdictional issue but instead go to the merits of 

the case and the agency’s affirmative defense. See generally Carr v. Social 

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). We find the 

appellant’s allegations in this regard to be immaterial because the Board must 

first address the matter of jurisdiction before proceeding to the merits of the 

appeal. Schmittling v. Department of the Army, 219 F.3d 1332, 1336-37 (Fed. 

Cir. 2000). 

¶12 The appellant also challenges the administrative judge’s finding that he 

failed to exhaust his administrative remedies before the OSC because his 

complaint lacked sufficient detail to give OSC an adequate basis to pursue an 

investigation. PFR File, Tab 1 at 3; ID at 8-12. However, in light of the analysis 

above, we find it unnecessary to reach this issue and we decline to do so. 

Because the appellant has not made a nonfrivolous allegation that he engaged in 

activity protected under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), B, C, or D, we 

agree with the administrative judge that the Board lacks jurisdiction over this 

appeal, and we affirm the initial decision on that basis.4 See Layton v. 

Department of the Army, 112 M.S.P.R. 549, ¶ 17 (2009), aff’d, 392 F. App’x 875 

(Fed. Cir. 2010).

NOTICE OF APPEAL RIGHTS5

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). 

 

4 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal.

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

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: 

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. 
9

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 

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 
10

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 

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. 6The court of appeals must receive your 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 
11

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. 

 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
12

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board