UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIE VIGIL, JR.,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

NY-1221-15-0134-W-1

DATE: June 29, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Isabel Cottrell, Esquire, and Heather White, Esquire, Washington, D.C., for 

the appellant.

Michael Huber, Esquire, Brooklyn, New York, 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 decisio n, 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 a re 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 The appellant filed an IRA appeal alleging that the agency denied his 

request for optional pay retention in reprisal for an alleged protected disclosure 

he made in an April 22, 2013 letter he sent to Senator Gillibrand. Initial Appeal 

File (IAF), Tab 1 at 12-13. The administrative judge issued a jurisdictional order 

informing the appellant of his burden of, among other things, raising nonfrivolous 

allegations that he made a disclosure that he reasonably believed evidenced any 

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

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

or safety. IAF, Tab 3. In response, the appellant submitted various documents, 

including his complaint filed with the Office of Special Counsel (OSC), but did 

not include a copy of his letter to Senator Gillibrand or offer any argument 

concerning how it amounted to a protected disclosure. IAF, Tab 4. The agency 

moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 8. 

¶3 Without holding the appellant’s requested hearing, the administrative judge 

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
3

Tab 11, Initial Decision (ID). The administrative judge found that, although the 

appellant exhausted his administrative remedy with OSC and raised a 

nonfrivolous allegation that he was subjected to a personnel action, he failed to 

nonfrivolously allege that he made a protected disclosure. ID at 7-15. In 

particular, she found that his April 22, 2013 letter to Senator Gillibrand amounted 

to a request for congressional assistance in expediting the processing of his 

optional pay retention request, not a claim that anyone had engaged in gross 

mismanagement, an abuse of authority, or any other of the categories of 

wrongdoing set forth in 5 U.S.C. § 2302(b)(8). ID at 14.

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

File, Tab 4. The agency has opposed the appellant’s petition.2 PFR File, Tab 11. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the appellant failed to 

nonfrivolously allege that he made a protected disclosure.

¶5 To establish the Board’s jurisdiction over an IRA appeal, an appellant must 

have exhausted his administrative remedies before OSC and make nonfrivolous 

allegations of the following: (1) he made a protected disclosure described under 

5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 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 

 

2

The agency also has filed a cross petition for review in which it requests that the 

Board take official or judicial notice of certain facts related to the agency’s 

organizational structure during the relevant time period. PFR File, Tab 10. In its cross 

petition for review, the agency submits for the first time on review evidence attempting 

to refute the appellant’s allegation that he was advised that he could retain his same 

salary upon his return to Fort Hamilton in New York from a position in Brussels, 

Belgium. Id. The appellant has moved to strike the agency’s alleged new evidence, 

asserting that the agency failed to offer an explanation as to why it could not have 

submitted it below. PFR File, Tab 13. We deny the agency’s cross petition for review 

because it fails to identify any error in the initial decision and instead addresses matters 

not relevant to the jurisdictional issue before us. See 5 C.F.R. §§ 1201.114(b), 

1201.115. As such, the appellant’s motion to strike is denied as moot.
4

personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3),

1221(e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); 

see Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.

2001). At the jurisdictional stage, an appellant is not required to prove that his

disclosure is protected under 5 U.S.C. § 2302(b)(8). Mudd v. Department of 

Veterans Affairs, 120 M.S.P.R. 365, ¶ 8 (2013). Rather, the standard for 

establishing jurisdiction is a nonfrivolous allegation of facts that, if proven, 

would show that the appellant made a protected disclosure, i.e., that the matter 

disclosed was one which a reasonable person in his position would believe 

evidenced one of the situations specified in 5 U.S.C. § 2302(b)(8). Id. 

¶6 The administrative judge found that the appellant failed to nonfrivolously 

allege that his April 22, 2013 letter constituted a protected disclosure. Because 

the appellant did not submit any argument below, the administrative judge relied 

on a copy of the April 22, 2013 letter submitted by the agency and the appellant’s

statements in his OSC complaint to find that he failed to nonfrivolously allege

that he disclosed any of the enumerated types of wrongdoing listed under 

5 U.S.C. § 2302(b)(8). ID at 13-14. Rather, she found that the letter amounted to 

a request for assistance in expediting the processing of the appellant’s optional 

pay retention request. ID at 14. She also noted that under “complaint category” 

on his OSC form, the appellant did not identify any specific category of 

wrongdoing, but rather listed “other prohibited activity.” ID at 13. We discern 

no error in the administrative judge’s finding that the appellant’s letter amounted 

to a request for assistance in expediting the processing of his optional pay 

retention request and not a protected disclosure. The appellant’s April 22, 2013 

letter to Senator Gillibrand reads as follows:
5

Dear Senator Gillibrand, 

I am writing to request your assistance. In August of 2012, I moved 

back to Fort Hamilton Army Base in New York City from Brussels, 

Belgium where I was the Chief of the Plans, Analysis and Integration 

office as a GS-13 step 7 with a base pay of $86,008. Under the 

Installation Management Commands (IMCOM) Reorganization, my 

position was abolished and as a result I was reassigned to 

Ft. Hamilton where my previous position as a Plans Specialist had 

been abolished, and I was assigned as a Budget Analyst (GS-12 

step 10 $78,355).[.] When I left Europe, I was informed by civilian 

personnel in Belgium that I would retain my salary as a GS-13 

step 7; unfortunately this proved to not be the case. After inquiring, 

I was informed by the civilian personnel here in NYC that I needed 

to submit a Request for Safe Pay which I completed immediately and 

submitted it on the 2nd of October to my chain of command. Much 

to my chagrin I still have not received a response to my petition. I 

requested the status of my request from my chain of command on the 

22nd of March 2013, and, as I understand it, the request still has not 

left Ft. Hamilton for adjudication by the Regional Director and 

IMCOM Commanding General. 

I respectfully request your assistance in expediting the processing of 

my Request for Safe Pay. As you can imagine the loss of $7,653 per 

year is significant especially as a single father of two teens where 

each cent counts. Although I understand under sequestration the 

request may be moot, that would not have been the case had my 

request been processed in a timely manner and not seven months 

after this initial request. 

I would be grateful for any help you could lend to expedite the 

processing. 

Thank you for your consideration.

IAF, Tab 8, Subtab 13g.3 We agree with the administrative judge that such 

 

3 Although the letter is dated April 22, 2012, this appears to be a typo graphical error

and the correct date is April 22, 2013. ID at 5 n.3.
6

assertions fail to amount to nonfrivolous allegations of a protected disclosure.4 

See, e.g., El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (finding 

that vague, conclusory, unsupported, and pro forma allegations of alleged 

wrongdoing do not meet the nonfrivolous pleading standard needed to establish 

the Board’s jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 

2016). Moreover, the appellant consistently maintained below that his request for 

optional pay retention was denied simply because he requested the assistance of 

Senator Gillibrand, without explaining how his letter amounted to a protected 

disclosure. IAF, Tab 1 at 5, 12-13, Tab 4 at 4. 

¶7 On review, the appellant summarily argues for the first time that his letter 

to Senator Gillibrand amounted to a disclosure of an abuse of authority by the 

agency in misleading him, reducing his pay and grade, and arbitrarily and 

capriciously delaying the processing of his pay retention request.5 PFR File, 

Tab 4 at 13. The Board will not consider an argument raised for the first time in 

a petition for review absent a showing that it is based on new and material 

evidence not previously available despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not 

 

4

In Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020),

the Federal Circuit cautioned that when evaluating Board jurisdiction over a 

whistleblower reprisal claim, the Board may not deny jurisdiction by crediting the 

agency’s interpretation of the evidence. However, the Board need not consider the 

appellant’s allegations “in a vacuum,” and may consider sources such as matters 

incorporated by reference or integral to the claim. Id. at 1369 n.5. Although in this 

case the agency submitted a copy of the appellant’s alleged protected disclosure, rather 

than the appellant, the appellant does not dispute that the document is authentic and, in 

fact, he cites to it in his petition for review. PFR File, Tab 4 at 8, ¶ 13. Because the 

document is undisputed and integral to the appellant’s claim, and because we rely on 

the document itself rather than the agency’s interpretation of it, we find it appropriate 

to consider the document notwithstanding its source.

5 On review, the appellant also argues that he raised nonfrivolous allegations that his 

disclosure was a contributing factor in the denial of his pay retention request. PFR File, 

Tab 4 at 14-16. However, we need not reach such arguments in light of our finding that 

the appellant failed to nonfrivolously allege that he made a protected disclosure.
7

explained why he could not have raised such an argument below, when he was 

given an opportunity to do so. 

¶8 Nonetheless, we find that he has not made a nonfrivolous allegation that he 

made a protected disclosure because he has offered no facts showing that, in 

writing to Senator Gillibrand, he reasonably believed that he was disclosing an 

arbitrary or capricious exercise of power by a Federal official or employee that 

adversely affects the rights of any person or results in personal gain or advantage 

to himself or preferred other persons. See Linder v. Department of Justice, 

122 M.S.P.R. 14, ¶ 15 (2014). For example, in his letter, he did not identify any 

individual whom he believed to be responsible for the processing delay or 

indicate how or why any of that person’s actions amounted to an abuse of 

authority. See, e.g., Loyd v. Department of the Treasury, 69 M.S.P.R. 684, 

688-90 (1996) (finding that the appellant’s complaint to Congress that the agency 

had assigned the person named as the subject of the appellant’s grievance to 

investigate and decide it constituted a nonfrivolous allegation of an abuse of 

authority). Rather, a plain reading of the letter reflects that, as the administrative 

judge found, the appellant was merely requesting assistance in expediting his 

request. Thus, we find that a reasonable person in the appellant’s position would 

not have believed that the April 22, 2013 letter disclosed an abuse of authority. 

Accordingly, we affirm the initial decision, dismissing the appellant’s appeal for 

lack of jurisdiction.6

 

6 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.
8

NOTICE OF APPEAL RIGHTS

7

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). 

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: 

 

7

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 indicat ed in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

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. 

(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 
10

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 respec tive 

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 

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). 
11

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. 8The court of appeals must receive your 

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 

 

8

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 

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

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

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