UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

R. SCOTT STEVENS,

Appellant,

v. 

DEPARTMENT OF 

TRANSPORTATION,

Agency. 

DOCKET NUMBER

AT-1221-15-0481-W-1

DATE: July 1, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bobby Devadoss, Esquire, and Elizabeth Morse, Esquire, Dallas, Texas, for 

the appellant. 

Parisa Naraghi-Arani, Esquire, Washington, D.C., for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed this individual right of action (IRA) appeal for lack of Board 

jurisdiction. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

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

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

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

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. See 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, and based on the 

following points and authorities, 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. We AFFIRM the initial decision, 

except as expressly MODIFIED to supplement the administrative judge’s 

jurisdictional analysis. 

BACKGROUND

¶2 The appellant is a Supervisory Computer Specialist, FV-0334-15, within the 

agency’s Office of Information and Technology (AIT), Federal Aviation 

Administration (FAA), in Atlanta, Georgia. Initial Appeal File (IAF), Tab 1 at 1. 

The agency underwent reorganization between 2011 and 2013 to create a shared 

services organization, the Office of Finance and Management (AFN). IAF, 

Tab 14 at 23-24. AIT is the unit within AFN that houses the agency’s 

information technology functions. Id. The agency assessed its information 

technology employees and, in or around July 2013, notified them of their new 

assignments within AIT. Id. As a result of the reorganization, the appellant 

became Manager, Infrastructure Applications, in the Infrastructure and Operations 

Service Division. 2

 Id. at 38; IAF, Tab 15 at 5. 

 2 During the course of this appeal, however, the appellant has been detailed to the 

Department of Energy. His detail was set to end in December 2015. Petition for 

Review File, Tab 6 at 6; IAF, Tab 15 at 7-8. 
3

¶3 In late 2013, the appellant raised concerns to his third-level supervisor 

regarding the process by which AIT employees had been placed in their new 

positions. IAF, Tab 14 at 25. The appellant asserts that, on or about 

November 21, 2013, he filed a complaint with the Office of Special Counsel 

(OSC). IAF, Tab 11 at 1. The record includes a printout of an e-filing Form 

OSC-11 last saved on November 19, 2013. Id. at 4-10. The form does not 

indicate the OSC case number assigned to it. Id. at 4. It also does not include 

allegations of retaliation; instead, the appellant simply asserted that AIT 

employees were improperly assigned to new positions using noncompetitive

processes during the reorganization. 3

 Id. at 4-10. 

¶4 On November 22, 2013, the appellant contacted his fifth-level supervisor to 

complain about the noncompetitive placement of employees during the 

reorganization, informing the supervisor that he was already in the process of 

making disclosures regarding the reassignments. Id. at 1, 15, 21-22. In late 

November 2013, he filed a complaint with the agency Administrator’s Hotline 

concerning the reassignments. Id. at 38; IAF, Tab 14 at 28-29. The agency 

responded to the Hotline complaint on February 6, 2014. IAF, Tab 14 at 28. He 

also filed related Inspector General (IG) complaints in November 2013 and 

February 2014. IAF, Tab 11 at 38; Petition for Review (PFR) File, Tab 2 at 4-7. 4

 

¶5 During June 2014, the appellant applied for the position of Deputy Director, 

Enterprise Program Management Service. IAF, Tab 11 at 15, 17-19, 25-28, 39. 

 3 The appellant’s jurisdictional response includes a chronology summarizing various 

complaints he has filed. IAF, Tab 11 at 38-41. The chronology states that OSC 

assigned File No. MA-14-0509 and closed it “due to lack of jurisdiction over FAA (with 

the exception of [w]histle [b]lower [r]etaliation).” Id. at 38. No further information is 

included in the record. 

4 The report of investigation for the appellant’s IG complaint most clearly articulates 

the precise nature of his alleged protected disclosures. The appellant disclosed that 

agency officials selected managers for the newly created AIT “without competition and 

without using [the agency’s] Job Analysis Tool . . . to establish criteria for selection” 

and “pre-selected certain applicants for Senior Executive Service and L-band positions 

that were competed.” PFR, Tab 2 at 6. 
4

He was interviewed once, but was not granted a second interview. Id. at 17. 

However, he asserted in his OSC complaint 5 that he was significantly more 

qualified than the selectee. Id. at 18-19, 39. 

¶6 On September 5, 2014, the appellant filed a complaint with OSC. Id. at 1, 

11-20. In the complaint, he alleged that he suffered adverse personnel actions, 

including nonselection for various promotion positions, because he disclosed in 

Hotline and IG complaints that four senior agency executives “placed” 

approximately 700 information technology employees in positions “without 

completing the necessary and proper job documentation, and without open and 

fair competition” during the reorganization. Id. at 41. OSC assigned the 

complaint File No. MA-14-4904. Id. On April 7, 2015, OSC informed the

appellant that it had investigated his complaint and “[t]erminated its inquiry into 

[his] allegations.” Id. at 41-42. OSC’s letter also informed him of his right to 

seek corrective action from the Board. Id. at 41. He filed this appeal. IAF, 

Tab 1. 

¶7 The administrative judge gave the appellant an opportunity to file a 

jurisdictional response, and he did so. 6

 IAF, Tabs 3, 11. The agency also filed a 

response. IAF, Tabs 14-16. The administrative judge decided the appeal based 

on the written record. IAF, Tab 17, Initial Decision (ID) at 1. He found that the 

appellant exhausted his administrative remedies for File No. MA-14-4904, and 

timely filed his IRA appeal with the Board. ID at 2 & n.1, 4-5. He nevertheless 

found that the appellant’s jurisdictional response failed to specify the type of 

protected disclosure he alleged to have made. ID at 6. The administrative judge 

examined the alleged protected disclosure with respect to the statutory definition 

 5 The OSC complaint does not clearly state when the selection was made, but the 

vacancy announcement for the position was open between June 12 and June 20, 2014. 

Compare IAF, Tab 11 at 18-19, with id. at 25. 

6 The appellant, however, did not avail himself of the opportunity to file a supplemental 

jurisdictional pleading. IAF, Tab 10 at 2. 
5

and found the appellant’s allegations to be too vague and conclusory to bring the 

complaint within the protection of the Whistleblower Protection Enhancement 

Act (WPEA). ID at 6-9; see 5 U.S.C. § 2302(b)(8). Accordingly, he dismissed 

the appeal for lack of jurisdiction. ID at 9-10. 

¶8 On review, the appellant argues that the administrative judge erroneously 

found that he did not reasonably believe that agency senior management engaged 

in prohibited personnel practices when, as he claimed, they noncompetitively 

filled positions during the reorganization. PFR File, Tab 1 at 6-8; see ID at 6-9. 

He explains that correspondence he recently received regarding his IG complaints

establishes the reasonableness of his belief that agency managers committed 

prohibited personnel practices. PFR File, Tab 1 at 8; see IAF, Tab 11 at 38. The 

correspondence, he explains, includes a report of investigation (ROI) dated 

May 15, 2015, which confirms that the IG conducted a year-long investigation 

based upon his complaints.

7

 PFR File, Tab 1 at 8, Tab 2 at 6-7. 

ANALYSIS

¶9 The ROI, which is newly submitted on review, postdates the close of the 

record below, and thus meets the Board’s definition of new evidence.8 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (explaining that new 

evidence is evidence submitted for the first time with the petition for review that 

was unavailable before the record was closed despite the party’s due diligence). 

To be considered, however, new evidence must be of sufficient weight to warrant 

 7 The ROI concluded that the agency’s “authority and rationale” to noncompetitively 

assign employees to managerial positions “appear[ed] sufficient,” and that the IG found 

no information to suggest that any selectee for a position filled through a 

noncompetitive reassignment failed to meet the minimum qualifications for that

position. PFR File, Tab 2 at 6-7. 

8 The agency transmitted the ROI to the appellant about 1 week after the initial decision 

was issued. Compare PFR File, Tab 2 at 4, with ID at 1. The letter accompanying the 

ROI indicates that the appellant sought release of the ROI while the record was open. 

Compare PFR File, Tab 2 at 4, with IAF, Tab 10 at 2. 
6

an outcome different from that of the initial decision. Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980). The appellant has not shown that 

the ROI is of sufficient weight to warrant a different outcome. 

¶10 The administrative judge determined that the appellant failed to 

nonfrivolously allege that he made a protected disclosure. 9

 We agree. In his 

OSC complaint, the appellant alleged he disclosed that four senior agency 

executives “placed” approximately 700 information technology employees in 

positions “without completing the necessary and proper job documentation, and 

without open and fair competition.” IAF, Tab 11 at 14-15. As the administrative 

judge correctly explained, the appellant’s allegation does not contain information 

that he reasonably believed evidenced gross mismanagement, a gross waste of 

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

or safety. ID at 5-9; see 5 U.S.C. § 2302(b)(8). As for whether the appellant 

alleged a violation of law, rule, or regulation, a protected disclosure must be 

specific and detailed, and not a vague allegation of wrongdoing. Salerno v. 

Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The appellant did not 

and still does not allege any specific violation of a law, rule, or regulation. 

Instead, he continues to allege generally that the agency’s noncompetitive 

reassignment of personnel during the reorganization violated merit systems 

principles. PFR File, Tab 1 at 6-8; IAF, Tab 1 at 5; see 5 U.S.C. § 2301(b); cf. 

Salerno, 123 M.S.P.R. 230, ¶ 9. 

¶11 Moreover, a nonfrivolous allegation of a protected whistleblowing 

disclosure is an allegation of facts that, if proven, would show that the appellant 

disclosed a matter that a reasonable person in his position would believe 

evidences one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). 

 9 The administrative judge addressed only the appellant’s Hotline complaint. ID at 2. 

The appellant’s IG disclosures also were exhausted in his OSC complaint. IAF, Tab 11 

at 14-15, 38. The appellant’s November 2013 OSC complaint reports the same 

allegations as well, and the appellant listed it as a disclosure in his September 2014 

OSC complaint. Id. at 4-10, 14-15, 38. 
7

Salerno, 123 M.S.P.R. 230, ¶ 6. An appellant need not establish an actual 

violation of one of the categories of wrongdoing listed in section 2302(b)(8) to 

demonstrate that he had a reasonable belief that he made a protected disclosure. 

See Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 17 (2011). 

Rather, he need prove only that a disinterested observer with knowledge of the 

essential facts known to and readily ascertainable by him could reasonably 

conclude the agency’s actions evidenced one of the categories of wrongdoing 

listed therein. See 5 U.S.C. § 2302(b)(13); Shannon v. Department of Veterans 

Affairs, 121 M.S.P.R. 221, ¶ 22 (2014). When we consider the essential facts 

known to and readily ascertainable by the appellant, however, we note that he is a 

supervisory employee with managerial aspirations, he has 32 years of supervisory 

and technical leadership experience, 24 years in the U.S. Navy, and is certified as 

a project management professional. IAF, Tab 11 at 18-19, 23. His Government 

sector experience suggests at least some familiarity with agency reorganization

and sources of authority for the reassignment of employees in 

some circumstances. Thus, the appellant could not have had a reasonable belief 

to speculate, as he seems to do here, that a noncompetitive reassignment is by its 

very nature suspect. See Phillip v. Merit Systems Protection 

Board, No. 2016-1002, 2016 WL 929856, at *2 (Fed. Cir. Mar. 11, 2016) 

(holding that a claim that “possible unscrupulous practices” were occurring at the 

workplace did not constitute a nonfrivolous allegation of a protected 

disclosure) 10; Barela v. Merit Systems Protection Board, 388 F. App’x 965, 967 

(Fed. Cir. 2010); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014). 

¶12 In addition, the appellant’s assertion that the IG’s lengthy investigation 

establishes the reasonableness of his belief, PFR File, Tab 1 at 8, does not 

provide a basis for disturbing the initial decision , as many factors could delay or 

 10 The Board has held that it may rely on unpublished decisions of the Federal Circuit 

if, as it does here, it finds the reasoning persuasive. Graves v. Department of Veterans 

Affairs, 114 M.S.P.R. 245, ¶ 11 n.2 (2010). 
8

extend an investigation. We further note that the IG found no violation of policy 

or merit system principles and that the agency’s authority and rationale to

reassign employees noncompetitively appeared sufficient on its face. PFR File, 

Tab 2 at 6. At most, notwithstanding the IG investigation and report, the 

appellant’s disclosure constitutes a general philosophical or policy disagreement 

with the agency regarding the reorganization, which does not otherwise constitute 

a protected disclosure under the WPEA. Webb v. Department of the 

Interior, 122 M.S.P.R. 248, ¶ 8 (2015) (citing 5 U.S.C. § 2302(a)(2)(D));

Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 12 (2000) (concluding that 

the appellant’s statement that he met with the agency IG to report “ongoing fraud 

in [Resource Sharing] contracts” lacked the detail necessary to constitute a 

nonfrivolous allegation of a violation of law, rule or regulation, gross 

mismanagement, gross waste of funds, abuse of authority, or danger to public 

health or safety). After extensively reviewing the appellant’s written 

submissions, we conclude that he failed to allege nonfrivolously any of the types

of wrongdoing set forth in 5 U.S.C. § 2302(b)(8), and he did not make a 

protected disclosure. 

¶13 Because the initial decision does not address whether the appellant 

nonfrivolously alleged that his disclosure was a contributing factor in the 

agency’s decision to take or fail to take a personnel action, we do so here. 

See 5 U.S.C. § 1214(a)(3); Yunus v. Department of Veterans Affairs, 242 F.3d 

1367, 1371 (Fed. Cir. 2001). The appellant met his jurisdictional burden for only 

one of several personnel actions he alleged—his nonselection as Deputy Director 

of the Enterprise Program Management Service. His allegations regarding this 

nonselection are relatively specific, and he has provided some other evidence in 

support of this claim. IAF, Tab 11 at 15, 18-19, 25-28, 39. He also alleged that 

he was passed over “numerous times” for promotion, removed from a 

“high-level” internal detail, blamed for his supervisor’s failure to complete 

certain tasks, offered a position in a lower-pay band, and “harassed” and 
9

“threatened” at various times. Id. at 17. Except for a listing from his USAJobs 

account showing the positions for which he apparently applied, he offered no 

evidence or specific details about these alleged personnel actions. See id.

at 29-30. 

¶14 As for attempting to prove contributing factor, the appellant made a 

minimal nonfrivolous allegation that the protected disclosure was one factor that 

affected the agency’s nonselection. See Salerno, 123 M.S.P.R. 230, ¶ 13. His 

nonselection followed his disclosures by only a few months, and he 

nonfrivolously alleged that his fifth-level supervisor informed her senior staff, 

including persons involved in the selection process, about her conversation with 

him. IAF, Tab 11 at 15, 18, 21-22. Although the appellant satisfied his 

jurisdictional burden for this element, he nevertheless failed to establish the 

Board’s jurisdiction because he fell short of nonfrivolously alleging that he made 

a protected disclosure. 

¶15 Finally, the appellant raises additional issues on review to which we now 

turn. He questions the administrative judge’s observation in the initial decision 

that he may have made disclosures in an effort to secure a better position for 

himself during the reorganization. PFR File, Tab 1 at 8-9; ID at 9. While the 

appellant correctly states that an employee’s motivation for making a disclosure 

does not render that disclosure unprotected, see 5 U.S.C. § 2302(f)(1)(C), the 

administrative judge’s comment appears to have been made as an aside rather 

than as an element of jurisdictional analysis. The administrative judge did not 

state that the appellant’s alleged disclosures were unprotected because of his 

purported motive for making them. The appellant also has neither alleged nor 

proven judicial bias. See Bieber v. Department of the Army, 287 F.3d 1358, 

1362-63 (Fed. Cir. 2002) (holding that an administrative judge’s conduct during 

the course of a Board proceeding warrants a new adjudication only if the 

administrative judge’s comments or actions evidence “a deep-seated favoritism or 

antagonism that would make fair judgment impossible”) (quoting Liteky v. 
10

United States, 510 U.S. 540, 555 (1994)); Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that in making a claim 

of bias or prejudice against an administrative judge, a party must 

overcome the presumption of honesty and integrity that accompanies 

administrative adjudicators). 

¶16 Similarly, the appellant takes issue with the administrative judge’s finding 

that he failed to support his claim that his managers abused their supervisory 

authority by threatening his career. PFR File, Tab 1 at 10-11; see ID at 7-8. He 

cites an April 18, 2014 email message from the Information Technology 

Infrastructure Director which instructed him “to focus your attention on the 

personnel, programs and projects for which you have responsibility and for which 

your performance will be evaluated.” PFR File, Tab 1 at 11; IAF, Tab 11 at 34. 

The matter discussed in this series of email messages—the lifecycle cost of an 

agency information system—is unrelated to the appellant’s alleged protected 

disclosures reported to OSC in File No. MA-14-4904. IAF, Tab 11 at 11-20, 

34-36. Further, the language in the email to which the appellant objects is in the 

nature of managerial direction and not on its face threatening or retaliatory, as he 

argues. Accordingly, we affirm the initial decision as modified.

11 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

 11 The only OSC complaint cited in the petition for review is the form dated 

November 19, 2013. PFR File, Tab 1 at 6-7; IAF, Tab 11 at 4-10. The September 5, 

2014 OSC complaint is the basis for this appeal. 
11

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about 

other 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.

If you are interested in securing pro bono representation for your appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website 
12

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board