UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT CAULDWELL,

Appellant,

v.

FEDERAL RESERVE SYSTEM,

Agency.

DOCKET NUMBER

DC-1221-16-0458-W-1

DATE: December 2, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jeff Duncan, Jacksonville, Florida, for the appellant.

Nicole Heiser, 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 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; 

the initial decision is based on an erroneous interpretation of statute or regulation 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 AS MODIFIED. 

¶2 The appellant held the position of Examiner in the agency’s Southeast 

Region of the Supervision, Fair Lending and Enforcement Division (SEFL), 

Consumer Financial Protection Bureau (CFPB). Initial Appeal File (IAF), Tab 8 

at 60. Beginning on September 5, 2013, he also served as the elected Chapter 

President for the National Treasury Employees Union (NTEU) Chapter 335, id.

at 43. On June 25, 2015, the appellant testified at a hearing before the House 

Financial Services Committee, Subcommittee on Oversight and Investigations, 

entitled “Examining Continuing Allegations of Discrimination and Retaliation 

at the Consumer Financial Protection Bureau.” IAF, Tab 1 at 6, Tab 9 at 11-14. 

On October 8, 2015, the appellant’s position as Chapter President ended, and, 

almost immediately, he began a period of leave due to medical issues. IAF, Tab 8

at 43. Although he continued to officially hold the position of Examiner, he never 

again performed those duties, ultimately submitting a request for disability

retirement, which, according to the record before us, remains pending before the 

Office of Personnel Management. Id. at 46.

¶3 On November 24, 2015, the Regional Director for the Southeast Region of 

the SEFL sent out the 2016 staffing assignments. Id. at 43. Because a new field 

manager had been promoted recently, the agency made a number of assignment 

changes to ensure equitable reporting relationships among the existing field 
3

managers to whom the examiners reported. The appellant was 1 of 15 examiners 

whose reporting structure changed and 1 of 6 examiners assigned to the newly

appointed field manager. Balancing administrative duties among the field 

managers did not result in any change to the pay, grade, duty station, work 

assignments or duties, responsibilities, or other working conditions for the 

appellant or any of the other examiners. Id.

¶4 According to the appellant, he filed a complaint of whistleblowing 

retaliation with the Office of Special Counsel (OSC) on March 9, 2016, IAF, 

Tab 1 at 5, and, on March 21, 2016, OSC advised him that it had terminated its 

inquiry into his claims, id. at 8.

¶5 The appellant subsequently filed an IRA appeal in which he alleged that, in 

retaliation for his assisting other employees as union President in filing 

grievances, equal employment opportunity (EEO) complaints, and unfair labor 

practices (ULPs), and for testifying before the Congressional subcommittee at the 

June 2015 hearing, the agency reassigned him away from a supervisor he worked 

well with, slowed his disability retirement application process, and released his 

confidential EEO information to Congress during the hearing. Id. at 6. He 

requested a hearing before the Board. Id. at 2.

¶6 The agency moved to dismiss the appeal for lack of jurisdiction on the basis 

that the appellant failed to exhaust his remedy before OSC and failed as well to 

nonfrivolously allege that he engaged in protected activity that contributed 

toward the agency’s decision to take a personnel action against him. IAF, Tab 8 

at 12-18. The administrative judge issued an Order on Jurisdiction and Proof 

Requirements, IAF, Tab 16, to which both parties responded, IAF, Tabs 17-18.

¶7 Thereafter, in an initial decision based on the written record, the 

administrative judge found that the record showed that the appellant filed a 

complaint with OSC and that OSC subsequently advised him that it was closing 

its investigation. IAF, Tab 19, Initial Decision (ID) at 3. The administrative 

judge found, however, that the appellant did not submit a copy of his OSC 
4

complaint, and otherwise failed to show that he informed OSC of the precise 

ground of his whistleblowing allegations so as to provide a sufficient basis for 

OSC to pursue an investigation that might lead to corrective action, and that he 

therefore failed to satisfy the exhaustion requirement. ID at 9-11. Accordingly, 

the administrative judge dismissed the IRA appeal for lack of jurisdiction. ID 

at 1, 11. 

¶8 The appellant has filed a petition for review,

2

Petition for Review (PFR) 

File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the 

appellant has replied thereto, PFR File, Tab 4.

¶9 On review, the appellant argues that he did exhaust his remedy before OSC

but that he did so, not by means of a written filing, but through a telephone 

conversation. PFR File, Tab 1 at 5-6, Tab 4 at 5, Tab 9 at 14. Specifically, he

contends, as he did below, that, sometime after the Congressional subcommittee 

hearing at which he testified and at which he claims the agency improperly 

released certain information about him, someone reached out to OSC on his 

behalf and had one of its employees call him to take his complaint by phone. 

IAF, Tab 4 at 5, Tab 17 at 6. The appellant asserts that there was no written 

record of his complaint because he then used a Hotline number to reach an 

investigator. PFR File, Tab 1 at 6. 

¶10 The Board has held that proof of exhaustion need not be in the form of the 

appellant’s complaint to OSC, and that it also will consider evidence of either 

written correspondence or oral communications with OSC. 5 U.S.C. 

§ 1214(a)(1)(A); Johns v. Department of Veterans Affairs, 95 M.S.P.R. 106, 

¶¶ 15-18 (2003). The administrative judge here did not advise the appellant that 

evidence of his oral communications with OSC could establish exhaustion and 

 

2 With his petition for review, the appellant has submitted a copy of a pleading he filed 

below, IAF, Tab 17 at 5-16, and the initial decision itself. Neither constitutes new 

evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (holding 

that evidence that is already a part of the record is not new).
5

what type of evidence would suffice to do so. However, we need not determine 

whether the appellant satisfied the exhaustion jurisdictional element based on his 

oral discussions with OSC because we find that the written evidence he provided

with his appeal establishes exhaustion. Specifically, the appellant submitted a 

copy of OSC’s March 21, 2016 closure letter, IAF, Tab 1 at 9-10, wherein OSC 

acknowledged his complaint and specifically set forth his two alleged forms of 

protected activity and the three personnel actions he alleged the agency took 

against him based on such activity, id. 

¶11 Pursuant to 5 U.S.C. § 1214(a)(2)(B), OSC’s written statement containing 

its summary of relevant facts, including the facts that support, and those that do 

not support, the appellant’s allegations, “may not be admissible as evidence in 

any judicial or administrative proceeding, without consent of the person who 

received such statement,” namely, the appellant. Not only does the closure letter 

at issue not contain any relevant facts, IAF, Tab 1 at 9-10, but the appellant 

himself submitted it with his appeal and was not ordered to produce it by the 

administrative judge. Cf. Bloom v. Department of the Army, 101 M.S.P.R. 79, 

¶ 10 (2006) (finding that the administrative judge erred in ordering the appellant 

to produce a copy of OSC’s letter containing a summary of relevant facts). 

Further, while 5 U.S.C. § 1221(f)(2) provides that OSC’s decision to terminate its 

investigation may not be considered in an IRA appeal, “[t]he purpose of this 

evidentiary rule . . . is to ensure that a whistleblower is not ‘penalized ’ or 

‘prejudiced’ in any way by OSC’s decision not to pursue a case.” Costin v. 

Department of Health & Human Services, 64 M.S.P.R. 517, 531 (1994). 

However, there is no statutory violation in the Board considering OSC’s closure 

letter solely to determine the issue of exhaustion. Lewis v. Department of 

Defense, 123 M.S.P.R. 255, ¶ 10 (2016).

¶12 We therefore find that the appellant has shown by OSC’s closure letter that 

he raised and exhausted with OSC both his claimed protected activity (assisting 

CFPB employees as the NTEU Chapter 335 President in filing grievances, EEO 
6

complaints and ULPs; and testifying before Congress) and the personnel actions 

he claims the agency took (changing his first-line manager from someone he 

worked well with; slowing the disability retirement application process; and 

releasing his private EEO information to members of Congress). We further find, 

as set forth above, that the appellant informed OSC that he believed these actions 

were taken in reprisal for his whistleblowing, Johns, 95 M.S.P.R. 106, ¶ 18, and 

that he has therefore established that he exhausted his remedy before OSC.

¶13 Because the administrative judge dismissed the appeal on the basis that the 

appellant failed to establish exhaustion, he did not consider whether the appellant 

made the necessary nonfrivolous allegations to support finding Board jurisdiction. 

Whether allegations are nonfrivolous is determined on the basis of the written 

record. Spencer v. Department of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 

2003). We therefore can and do make those determinations now under the 

appropriate statutory provision.3

¶14 Prior to 2012, an appellant who showed exhaustion could establish the 

Board’s jurisdiction over his IRA appeal under the Whistleblower Protection Act

(WPA) by nonfrivolously alleging that: (1) he engaged in whistleblowing activity 

by making a protected disclosure; and (2) the disclosure was a contributing factor 

in the agency’s decision to take or fail to take a personnel action. Yunus v. 

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). However, 

the Whistleblower Protection Enhancement Act (WPEA) amended the WPA to 

provide that, assuming exhaustion has been shown, an appellant also may 

establish the Board’s jurisdiction over his IRA appeal by nonfrivolously alleging

that he engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), 

(B), (C), or (D), and that the protected activity was a contributing factor in the 

 

3

To the extent the administrative judge set out the test for jurisdiction over an IRA 

appeal that was appropriate prior to the expansion of the Board’s jurisdiction, ID at 2, 

his error did not prejudice the appellant’s substantive rights because the administrative 

judge made no findings under the outdated jurisdictional test. Panter v. Department of 

the Air Force, 22 M.S.P.R. 281, 282 (1984).
7

agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. 

§ 2302(a). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). 

Amended section 2302(b)(9)(B) provides that any employee who has authority to 

take, direct others to take, recommend, or approve any personnel action shall not, 

with respect to such authority, take or fail to take, or threaten to take or fail to 

take, any personnel action against any employee or applicant because of 

“testifying for or otherwise lawfully assisting any individual in the exercise of 

any right referred to in subparagraph (A)(i) or (ii).” Amended section 

2302(b)(9)(A), in turn, prohibits the taking or failing to take, or threatening to 

take or fail to take, “any personnel action against an employee or applicant for 

employment, because of – the exercise of any appeal, complaint, or grievance 

right granted by any law, rule, or regulation – (i) with regard to remedying a 

violation of paragraph (8); or (ii) other than with regard to remedying a violation 

of paragraph (8).” Under 5 U.S.C. § 1221(e)(1), as amended by the WPEA and 

subject to the provisions of 5 U.S.C. § 1221(e)(2), in any case involving an 

alleged prohibited personnel practice as described under 5 U.S.C. § 2302(b)(8) or 

§ 2302(b)(9)(A)(i), (B), (C), or (D), the Board shall order corrective action as it 

considers appropriate if the employee, or applicant for employment, has 

demonstrated that a disclosure or protected activity as described under section 

2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor 

in the personnel action at issue. Hooker v. Department of Veterans Affairs, 

120 M.S.P.R. 629, ¶ 9 (2014). Thus, the Board now has jurisdiction in IRA 

appeals over claims of retaliation for lawfully assisting a coworker in an appeal, 

grievance, or complaint proceeding. 4 Carney v. Department of Veterans Affairs, 

121 M.S.P.R. 446, ¶ 6 (2014). 

 

4 Although 5 U.S.C. § 1221(a) limits Board appeal rights under 5 U.S.C. 

§ 2302(b)(9)(A) to individuals who exercised appeal, complaint, or grievance rights 

under (i), concerning remedying a violation of section 2302(b)(8), there is no such 

jurisdictional restriction for individuals filing a Board appeal pursuant to 5 U.S.C. 

§ 2302(b)(9)(B), such as the appellant in this matter.
8

¶15 In this appeal, the appellant alleged that he engaged in protected activity 

when, as union President, he represented individuals in grievances, EEO 

complaints, and ULPs. IAF, Tab 1 at 6. However, despite being advised by the 

administrative judge that a nonfrivolous allegation is an allegation of fact that, if

proven, could establish a prima facie case that the Board has jurisdiction over the 

appeal, and how the standard may be met, IAF, Tab 16 at 3, the appellant failed to 

expand upon his claim, IAF, Tab 17. Under the WPEA, vague, conclusory, 

unsupported, and pro forma allegations do not meet the nonfrivolous pleading 

standard needed to establish the Board’s jurisdiction over an IRA appeal. See

e.g., Lewis, 123 M.S.P.R. 255, ¶ 12; El v. Department of Commerce,

123 M.S.P.R. 76, ¶¶ 6-8 (2015); 5 C.F.R. § 1201.4(s) (a nonfrivolous allegation 

must be more than conclusory). Therefore, we find that the appellant’s allegation 

that he engaged in protected activity by assisting others in the filing of various 

actions against the agency does not rise to the level of a nonfrivolous allegation 

that would merit finding the Board’s jurisdiction over this matter. 

¶16 The appellant also alleged that he engaged in protected activity when he 

testified before the Congressional subcommittee in June 2015. IAF, Tab 1 at 6. 

He described the subject of the hearing as alleged systematic discrimination at the 

CFPB. IAF, Tab 1 at 6; see IAF, Tab 9 at 11-14. However, the law is settled that 

disclosures that are limited to EEO matters covered under 5 U.S.C. § 2302(b)(1) 

and (b)(9) are excluded from coverage under section 2302(b)(8). Applewhite v. 

Equal Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 13 (2003); see 

also Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84 (2001) (finding 

that purported disclosures that involve alleged discrimination or reprisal for 

engaging in activities protected by Title VII, even if made outside the grievance 

or EEO processes, do not constitute protected whistleblower activity under 

section 2302(b)(8) because they pertain to matters of discrimination covered by 

section 2302(b)(1)(A)). Therefore, the appellant has failed to show that, by his 

testifying at the Congressional subcommittee hearing, he nonfrivolously alleged
9

that he made a protected disclosure of whistleblowing. Nor did he show that his 

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

(C) because it did not involve exercising any appeal, complaint, or grievance 

right, testifying or lawfully assisting an individual in such a right, or cooperating 

with or disclosing information to the Inspector General of an agency or the 

Special Counsel. Because the appellant failed to make a nonfrivolous allegation 

that he made a protected disclosure under the WPA or engaged in protected 

activity under the WPEA, he has not established Board jurisdiction over this IRA 

appeal and it is properly dismissed. Graves v. Department of Veterans Affairs, 

123 M.S.P.R. 434, ¶ 22 (2016).

¶17 On review, the appellant argues that the administrative judge erred in 

having an ex parte conversation with the agency representative. PFR File, Tab 1 

at 5, Tab 4 at 5. The record reflects that the agency representative contacted the 

appellant’s representative on March 31, 2016, to explain that she intended to file

a motion seeking a stay of discovery until resolution of the Board’s jurisdiction 

over the matter appealed and permission to submit its file on the same date, 

specifically, within 25 days of the agency’s receipt of the acknowledgment order. 

IAF, Tab 4 at 5. In response, the appellant filed a “motion to not extend agency 

timelines,” claiming that the case already had been delayed multiple times. Id. 

The agency representative filed her motion on April 4, 2016. IAF, Tab 5. On the 

morning of April 11, 2016, the agency representative notified the appellant and 

his representative by email that she intended to call the administrative judge at 

noon that day regarding the status of her motion, and asked if the appellant

wished to participate in the phone call. 5 IAF, Tab 7 at 5. On that same day, the 

administrative judge granted the agency’s motion for an extension of time. IAF, 

Tab 6. The appellant filed a motion with the administrative judge in which he 

 

5 According to the agency representative, she left a voicemail message for the 

administrative judge regarding this matter, but the administrative judge did not return 

the call and the two never spoke. PFR File, Tab 3 at 7.
10

argued that his representative had not been given sufficient notice to participate 

in the agency representative’s conversation with the administrative judge. IAF, 

Tab 7 at 5.

¶18 An ex parte communication is an oral or written communication between a 

decision-making official of the Board and an interested party to a proceeding, 

when that communication is made without providing the other parties to the 

appeal with a chance to participate. 5 C.F.R. § 1201.101. Here, the agency 

representative did provide the appellant’s representative with an opportunity to 

participate in the conversation, albeit not a lengthy one. Therefore, the agency 

representative’s communication with the administrative judge was not an ex parte 

communication. In any event, administrative judges are not prohibited from 

engaging in ex parte conversations regarding procedural matters, such as 

extensions of time. See Vidal v. Department of Justice, 113 M.S.P.R. 254, ¶ 6 

(2010) (finding that ex parte communications regarding procedural matters are 

not prohibited); 5 C.F.R. §§ 1201.101-.102 (prohibiting ex parte communications 

regarding the merits, as opposed to procedural aspects, of matters before the 

Board). We thus find that the appellant has not established any error on the part 

of the administrative judge in this matter.

¶19 Finally, the appellant contends on review that the administrative judge wa s 

biased against him. PFR File, Tab 1 at 5. In support of his claim, the appellant 

refers to the administrative judge having granted the agency representative’s 

motion for an extension of time after the alleged ex parte communication between 

them, and the administrative judge’s issuing his initial decision on the same day 

the agency representative submitted her response to the administrative judge’s 

order on jurisdiction and proof requirements. Id. 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. Oliver v. 

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). To establish that an 

administrative judge was biased, a party generally must show that any such bias 
11

constitutes extrajudicial conduct, rather than conduct arising in the administrative 

proceeding. Ali v. Department of the Army, 50 M.S.P.R. 563, 568 (1991). An 

administrative judge’s conduct during the course of a Board proceeding warrants 

a new adjudication if the administrative judge’s comments or actions evidence “a 

deep-seated favoritism or antagonism that would make fair judgment impossible.” 

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) 

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The appellant has 

failed to make such a showing as to the administrative judge’s conduct during the 

Board proceeding.6 To the extent the appellant felt disadvantaged in his ability to 

present his case because his representative is not an attorney, PFR File, Tab 1 

at 5, Tab 4 at 5, it is well established that an appellant is responsible for the 

errors of his chosen representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 

667, 670 (1981).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 

 

6

The appellant also argues on review that, during the proceedings below, he requested 

that the administrative judge be removed from the case, but that his request “went 

unanswered.” PFR File, Tab 1 at 5; IAF, Tab 7 at 7. Because we have found that the 

appellant’s assertions do not establish bias on the part of the administrative judge, we 

further find that they did not provide a basis for his recusal, and that his failure to rule 

on that request did not prejudice the appellant’s substantive rights. Panter, 22 M.S.P.R. 

at 282.
12

deadline 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 United States 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 United 

States 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 an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 
13

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