NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

JOHN KANANOWICZ,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2022-1596

______________________

Petition for review of the Merit Systems Protection 

Board in No. PH-1221-22-0056-W-1.

______________________

Decided: March 14, 2023

______________________

JOHN KANANOWICZ, Hampton, NH, pro se. 

 CALVIN M. MORROW, Office of the General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by KATHERINE 

MICHELLE SMITH.

 ______________________

Before REYNA, HUGHES, and CUNNINGHAM, Circuit Judges.

CUNNINGHAM, Circuit Judge.

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2 KANANOWICZ v. MSPB

John Kananowicz petitions for review of a Merit Systems Protection Board decision dismissing his whistleblower retaliation claim against the Department of Labor

for lack of jurisdiction. Kananowicz v. Dep’t of Lab., 

No. PH-1221-22-0056-W-1, 2022 WL 595807 (Feb. 24, 

2022) (Board Decision). Because we find that Mr. Kananowicz has not nonfrivously alleged that he made a protected disclosure under 5 U.S.C. § 2302(b)(8)(A), we affirm. 

BACKGROUND

In February 2021, Mr. Kananowicz’s wife, Monique Kananowicz, filed a whistleblower complaint with the Department of Labor’s (DOL) Occupational Safety & Health 

Administration (OSHA) against her former employer, Core 

Physicians, LLC.1 Pet’r’s Br. 2. Ms. Kananowicz elected to 

participate in alternative dispute resolution (ADR or mediation). Pet’r’s Br. 4. She also requested that Mr. Kananowicz act as her designated representative in resolving her 

dispute. Pet’r’s Br. 3. 

Mr. Kananowicz has been employed by OSHA for more 

than a decade, first as a whistleblower investigator and 

then as a regional alternative dispute coordinator for Region I. Pet’r’s Br. 2. He sought guidance on whether he 

could represent his wife in her OSHA proceedings from his 

supervisor, Kristen Rubino, and, at her suggestion, from 

the Office of the Solicitor of the DOL. Pet’r’s Br. 3, 5. Ms. 

1 Because this appeal concerns whether the Board 

properly dismissed Mr. Kananowicz’s appeal for lack of jurisdiction, we, like the Board, treat Mr. Kananowicz’s allegations as true for purposes of this appeal. See Smolinski 

v. Merit Sys. Prot. Bd., 23 F.4th 1345, 1350 (Fed. Cir. 2022). 

We cite to Mr. Kananowicz’s brief when summarizing his 

allegations because neither party included Mr. Kananowicz’s initial appeal to the Board in their filings before 

this court.

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KANANOWICZ v. MSPB 3

Rubino approved the representation so long as he did not 

represent Ms. Kananowicz during work hours, use his government issued cell phone, or voluntarily disclose his 

OSHA employment or title. Pet’r’s Br. 3. Ms. Rubino also 

agreed to enter Ms. Kananowicz’s complaint in the Region 

VIII office, rather than the Region I office, to avoid any perceived conflict of interest pertaining to Mr. Kananowicz’s 

role in the Region I office. Pet’r’s Br. 3. A DOL attorney

conveyed that no OSHA policy or ethics rule prevented Mr. 

Kananowicz from representing his wife but suggested that 

she may get a better outcome with different representation. 

Pet’r’s Br. 5. He proceeded to represent her after she failed

to find adequate alternative representation. Pet’r’s Br. 5. 

When a Region VIII Investigator later asked Ms. Kananowicz whether Mr. Kananowicz was employed by OSHA, 

Ms. Kananowicz confirmed her husband’s employment status. Pet’r’s Br. 4. 

On April 16, 2021, Mr. Kananowicz took a day off from

work to represent his wife in the mediation, which was mediated by an OSHA Region VIII ADR Coordinator. Pet’r’s 

Br. 5–6; App. 22–23.2 A few hours into the mediation, an 

OSHA Region VIII Regional Supervisory Investigator 

halted the mediation session, notified Mr. Kananowicz 

“that the mediation was cancelled,” and told Mr. Kananowicz to contact Ms. Rubino. Pet’r’s Br. 6. When Ms. Rubino confirmed that she halted the session, Mr. 

Kananowicz told her that halting the mediation violated 

his wife’s constitutional right to participate in the OSHA 

complaint process, her right to designate her own representative in mediation, and her right under the Administrative Procedure Act (APA) to participate in mediation. 

2 App. refers to materials attached to Mr. Kananowicz’s informal opening brief, ECF No. 19. Because these 

documents lack separate pagination, the citations refer to 

the ECF page number. 

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4 KANANOWICZ v. MSPB

Pet’r’s Br. 7. He also conveyed his belief that OSHA’s intervention was an abuse of the agency’s authority and violated its own ADR Program rules and 29 C.F.R. 

§ 1977.15(a). Pet’r’s Br. 7–8, 10. A few weeks later, Ms. 

Rubino sent Mr. Kananowicz a letter of reprimand for Mr. 

Kananowicz’s allegedly disrespectful conduct during the 

April 16 phone call. Pet’r’s Br. 8; App. 29–31. 

Mr. Kananowicz filed a complaint with the Office of 

Special Counsel alleging that the letter of reprimand constituted retaliation for his disclosures during the April 16 

phone call. Board Decision, 2022 WL 595807. After the 

Office of Special Counsel closed its investigation, Mr. Kananowicz filed an Individual Right of Action (IRA) appeal 

with the Board. Id.

The administrative judge found that the Board lacked 

jurisdiction to consider Mr. Kananowicz’s appeal. Id. Specifically, he found that Mr. Kananowicz had not made any 

disclosures protected under 5 U.S.C. § 2302(b)(8) during 

the April 16 phone call. Id. The administrative judge

found no provision in the Directive’s policy guidance or in 

the cited regulation that Mr. Kananowicz could reasonably 

believe the agency violated by terminating the mediation 

early. Id. The administrative judge also rejected Mr. Kananowicz’s abuse of authority assertion because Mr. Kananowicz knew of the possibility of a conflict of interest 

based on his representation of his wife, such that stopping 

the mediation to address the potential issue could not be 

arbitrary or capricious. Id. Finally, the administrative 

judge noted that Mr. Kananowicz did not allege that he or 

his wife were told that the mediation would not resume;

indeed, the agency later told Ms. Kananowicz that a new 

mediator from the Federal Mediation and Conciliation Service would resume the mediation. Id. Because Mr. Kananowicz failed to make a nonfrivolous allegation that he had 

made a disclosure protected under 5 U.S.C. § 2302(b)(8), 

the administrative judge concluded that the Board lacked 

jurisdiction. Id. 

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KANANOWICZ v. MSPB 5

The administrative judge’s initial decision became the 

Board’s final decision under 5 C.F.R. § 1201.113, and Mr. 

Kananowicz appealed to this court. We have jurisdiction 

to review the Board’s dismissal for lack of jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

We review the Board’s dismissal for lack of jurisdiction 

de novo. Smolinski v. Merit Sys. Prot. Bd., 23 F.4th 1345, 

1350 (Fed. Cir. 2022).

The Board has jurisdiction over Individual Right of Action appeals arising under 5 U.S.C. § 1221 where the petitioner makes a nonfrivolous allegation (1) that he made

disclosures protected by 5 U.S.C. § 2302(b)(8) or engaged in 

protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) or 

(B)–(D); and (2) that those disclosures or protected activities were a contributing factor in the agency’s decision to 

take a personnel action defined by 5 U.S.C. § 2302(a)(2)(A). 

5 U.S.C. § 1221(e)(1)). Under 5 U.S.C. § 2302(b)(8), the petitioner must have had a reasonable belief that his or her 

disclosures “evidence[d] (i) any violation of any law, rule, 

or regulation, or (ii) 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). 

“A belief is reasonable if a disinterested observer with 

knowledge of the essential facts could reach the same conclusion.” Smolinski, 23 F.4th at 1350 (citing Lachance v. 

White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). 

Mr. Kananowicz alleges that the agency’s letter of reprimand constituted retaliation for his April 16 disclosures. 

See Pet’r’s Br. 8–9. Thus, the issue is whether Mr. Kananowicz had a reasonable belief that his disclosures during 

the April 16 phone call with Ms. Rubino evidenced “any violation of any law, rule, or regulation” or “an abuse of authority” under 5 U.S.C. § 2302(b)(8)(A). In his briefing 

before this court, Mr. Kananowicz alleges that he made five

protected disclosures during that call, all stemming from 

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6 KANANOWICZ v. MSPB

the early termination of the mediation session and alleged 

denial of Ms. Kananowicz’s choice of representative: (1) violation of OSHA Instruction, Directive Number CPL 02-03-

008; (2) violation of 29 C.F.R. § 1977.15(a); (3) abuse of authority; (4) violation of the APA; and (5) violation of Ms. 

Kananowicz’s constitutional due process rights. Pet’r’s Br.

7, 10–11.

Before we look to Mr. Kananowicz’s alleged disclosures, 

it is helpful to clarify the exact nature of the early termination of the April 16 mediation session, as we adjudge the 

reasonableness of a belief from the perspective of a “disinterested observer with knowledge of the essential facts.” 

See Smolinski, 23 F.4th at 1350. According to Mr. Kananowicz, the agency halted the April 16 mediation early, but

OSHA officials later took steps to provide a different mediator—one unaffiliated with OSHA and lacking any potential conflict of interest—to continue mediation. Pet’r’s Br. 

13 (explaining that OSHA responded to Ms. Kananowicz 

“claiming Federal Mediation Conciliatory Service (FMCS) 

would be resuming the mediation” but that “Respondent 

was not in agreement to continue ADR after the mediation 

on April 16, 2021, had been abruptly stopped by OSHA”); 

see also S. App. 21.3 Thus, the agency did not deny Ms. 

Kananowicz an opportunity to mediate. Nor did the agency 

deny Ms. Kananowicz the opportunity to be represented by 

Mr. Kananowicz. Pet’r’s Br. 13. (“Appellant asserts that at 

no time did Ms. Rubino or OSHA instruct him or notify him 

verbally or in writing that he was unable to act as the designated representative[.]”). 

We agree with the Board that Mr. Kananowicz did not 

make a protected disclosure of a violation of OSHA Directive Number CPL 02-03-008 under 5 U.S.C. § 2302(b)(8)

because he could not have reasonably believed that the 

3 S. App. refers to the supplemental appendix attached to the Respondent’s Brief, ECF No. 25.

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KANANOWICZ v. MSPB 7

OSHA Directive was violated by the early termination of 

the April 16 mediation session. Mr. Kananowicz has not 

pointed to any specific part of the Directive he claims the 

agency violated when it interrupted the mediation, see

Pet’r’s Br. 7, and, on our review of the Directive, we can 

find no applicable provision. In fact, the Directive gives 

OSHA the option to terminate mediation “at the discretion 

of the [Regional Administrator] or his/her designee.” 

OSHA Instruction, Directive Number CPL 02-03-008 at 7. 

The Directive also repeatedly emphasizes the importance 

of the mediator’s impartiality and directly addresses conflicts of interest with the mediator. Id. at 10. The Directive 

specifies that the mediator “should avoid conducting ADR 

where there is an actual or potential conflict of interest between the [mediator] and one or more parties.” Id. It further provides that the parties may waive a conflict in 

writing, and that “[o]therwise, where a conflict exists, the 

[mediator] will recuse him/herself and an alternative, neutral OSHA representative will be appointed to carry out 

ADR.” Id. We agree with the administrative judge that 

the Agency did not violate the Directive merely by postponing the mediation to address the potential conflict of interest posed by Mr. Kananowicz’s representation of his wife.

Similarly, Mr. Kananowicz has not explained how 

OSHA’s early termination of the April 16 mediation session 

violates 29 C.F.R. § 1977.15(a), and we cannot discern any 

potential violation of that regulation. Section 1977.15(a) 

states that “[a] complaint of section 11(c) discrimination 

may be filed by the employee [her]self, or by a representative authorized to do so on [her] behalf.” Mr. Kananowicz 

does not allege that he was prevented from filing a § 11(c) 

discrimination complaint on his wife’s behalf. Thus, he 

could not reasonably believe the Agency violated 29 C.F.R. 

§ 1977.15(a), and his alleged disclosure of such a purported 

violation cannot be a protected disclosure under 5 U.S.C. 

§ 2302(b)(8).

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8 KANANOWICZ v. MSPB

Mr. Kananowicz’s alleged disclosure of an abuse of authority similarly fails to rise to the level of a protected disclosure. Although 5 U.S.C. § 2302(b)(8) covers disclosure 

of abuses of authority, the statute does not define “abuse of 

authority.” In previous cases, we have applied the Board’s 

definition of “abuse of authority”: “an arbitrary or capricious exercise of power by a federal official or employee that 

adversely affects the rights of any person or that results in 

personal gain or advantage to himself or to preferred other 

persons.” Smolinski, 23 F.4th at 1351 (quoting Wheeler v. 

Dep’t of Veterans Affs., 88 M.S.P.R. 236, 241 (2001)). We 

have also looked to the definition of “abuse of authority” in 

other whistleblower-protection statutes, such as 41 U.S.C. 

§ 4712(g), which defines “abuse of authority” as “an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency 

concerned.” Id. at 1352 (quoting 41 U.S.C. § 4712(g)); see 

also id. (quoting 10 U.S.C. § 2409(g)(6)(1)). Under any of 

these definitions, Mr. Kananowicz has failed to allege that 

he could have reasonably believed that the early termination of the April 16 mediation was arbitrary or capricious. 

Even if Mr. Kananowicz did not believe his representation 

rose to the level of an actual conflict of interest, he knew—

both by virtue of his position as an OSHA dispute coordinator and through his conversations with his supervisor

and the Office of the Solicitor—that his position within 

OSHA created at least the potential for a conflict of interest. Therefore, his alleged disclosure of an abuse of authority is not a protected disclosure under 5 U.S.C. § 2302(b)(8)

because he could not have reasonably believed that the 

early termination of the April 16 mediation session was an 

abuse of authority.

The administrative judge did not address Mr. Kananowicz’s claims that he told Ms. Rubino that the agency violated the APA and his wife’s constitutional right to due 

process. In its briefing on this appeal, the Board states that 

Mr. Kananowicz failed to present his argument concerning 

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KANANOWICZ v. MSPB 9

the APA to the administrative judge and argues that the 

argument is forfeited on appeal. Resp’t’s Br. 10. 

We have held that arguments not presented to the administrative judge are forfeited. See, e.g., Sistek v. Dep’t of 

Veterans Affs., 955 F.3d 948, 953 n.1 (Fed. Cir. 2020). But 

we have discretion to overlook forfeiture. In re Google 

Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020). 

We elect to do so here. Because we liberally construe the 

pleadings of pro se petitioners, and because neither party 

included Mr. Kananowicz’s filings before the Board in the 

various appendices filed before this court—making it difficult to discern what Mr. Kananowicz did or did not present 

to the administrative judge—we will overlook any potential 

forfeiture of his arguments premised on alleged violations 

of the APA and the Constitution. See Durr v. Nicholson, 

400 F.3d 1375, 1380 (Fed. Cir. 2005) (“[P]ro se pleadings 

are to be liberally construed.”) (citations omitted); see also 

Forshey v. Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002)

(en banc) (superseded by statute on other grounds by Pub. 

L. No. 107–330, § 402(a), 116 Stat. 2820, 2832 (2002)) (“[I]n 

situations where a party appeared pro se before the lower 

court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly 

below.”).

But, as with his other alleged disclosures, we find that 

Mr. Kananowicz’s alleged disclosures of APA and constitutional violations are not protected disclosures under 

5 U.S.C. § 2302(b)(8). Mr. Kananowicz does not explain 

how the early termination of the April 16 mediation session 

could possibly violate either the APA or the constitutional 

guarantee of due process. Nor do we see how it could. As 

we have already explained, Ms. Kananowicz was not denied an opportunity to participate in mediation—the early 

termination of the April 16 session ended only her opportunity to mediate with an OSHA mediator, and OSHA later 

arranged for a mediator unaffiliated with the agency. Nor 

was she ever denied the opportunity to proceed with Mr. 

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10 KANANOWICZ v. MSPB

Kananowicz as her representative. We can discern no possible APA or due process violations from these facts. Thus, 

these alleged disclosures are not protected disclosures on 

which Board jurisdiction may be premised.

CONCLUSION

None of Mr. Kananowicz’s five alleged disclosures are 

protected disclosures under 5 U.S.C. § 2302(b)(8). We have 

considered Mr. Kananowicz’s other arguments and find 

them unpersuasive. For the foregoing reasons, we affirm. 

AFFIRMED

COSTS

No costs. 

Case: 22-1596 Document: 34 Page: 10 Filed: 03/14/2023