UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FREDERICK JACOB ROLL,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-1221-14-0613-W-1

DATE: April 15, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Frederick Jacob Roll, Fort White, Florida, pro se.

Dana C. Heck, Esquire, St. Petersburg, Florida, 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 

denied corrective action in his individual right of action (IRA) whistleblower 

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

expressly MODIFIED by this Final Order as to the administrative judge’s analysis 

of the appellant’s alleged protected disclosure, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant retired from service with the agency effective January 28, 

2012. Initial Appeal File (IAF), Tab 5, Subtab 4e. After retiring, the Office of 

Personnel Management (OPM) informed him that his Civil Service Retirement 

System (CSRS) annuity would be offset by $215.00 per month because of his 

eligibility to receive social security benefits. IAF, Tab 1 at 29; see 5 U.S.C. 

§ 8349. The appellant, however, previously had received a retirement annuity 

estimate from his former employing agency that did not account for this offset. 

IAF, Tab 1 at 31. Upon learning of the offset, the appellant complained to 

several different Government agencies, agency employees, and elected officials 

about the miscalculation, and subsequently sought reinstatement to employment 

with the agency. Id. at 57-61. After the agency elected not to reinstate him, the 

appellant filed a whistleblower complaint with the Office of Special Counsel 
3

(OSC), and then filed the instant IRA appeal alleging a retaliatory failure to 

reinstate him to employment based on protected whistleblowing. 2

 

¶3 Following a hearing, the administrative judge found that the appellant 

established jurisdiction over his IRA appeal but denied his request for corrective 

action on the merits, finding that he failed to prove by preponderant evidence that 

he reasonably believed he made a protected disclosure under 5 U.S.C. 

§ 2302(b)(8). 3 IAF, Tab 12, Initial Decision (ID) at 6-7. The appellant filed a 

petition for review of the initial decision, and the agency filed a response in 

opposition. Petition for Review (PFR) File, Tabs 1, 4.

ANALYSIS

¶4 To secure corrective action from the Board in an IRA appeal, an appellant 

must first seek corrective action from OSC. Aquino v. Department of Homeland

Security, 121 M.S.P.R. 35, ¶ 9 (2014). If an appellant exhausts his administrative 

remedies with OSC, 4 he then must establish Board jurisdiction by nonfrivolously 

alleging that he made a protected disclosure that was a contributing factor in the 

challenged personnel action. Id. Once an appellant establishes jurisdiction over 

his IRA appeal, he is entitled to a hearing on the merits of his claim. Id. To 

prevail on the merits of his claim, the appellant must prove by preponderant 

evidence that (1) he made a protected disclosure concerning one or more 

 2 The appellant also filed an appeal with the Board alleging that his retirement was 

involuntary based upon agency misinformation. See Roll v. Department of Veterans 

Affairs, MSPB Docket No. AT-0752-14-0612-I-1. The administrative judge joined the 

instant appeal and the involuntary retirement appeal for hearing, but issued separate 

initial decisions. IAF, Tab 6. Only the appellant’s whistleblower reprisal allegations 

are addressed herein.

3 Section 2302(b)(8) lists the following categories of protected whistleblowing: a 

violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; 

an abuse of authority; and a substantial and specific danger to public health or safety. 

5 U.S.C. § 2302(b)(8); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 20 

(2013).

4 The agency has not challenged the administrative judge’s finding that the appellant 

exhausted his remedies with OSC. ID at 5-6; IAF, Tab 5, Subtab 4d.
4

categories of wrongdoing enumerated in section 2302(b)(8), and (2) his protected 

disclosure was a contributing factor in the challenged personnel action. Id., ¶ 10. 

If the appellant makes such a showing, the burden shifts to the agency to prove by 

clear and convincing evidence that it would have taken the same action in the 

absence of the disclosure. Id.; see 5 U.S.C. § 1221(e)(2).

The administrative judge incorrectly imposed an actual violation standard in 

concluding that the appellant did not have a reasonable belief that he made a 

protected disclosure.

¶5 In his initial decision, the administrative judge found that the appellant 

failed to establish that he reasonably believed he made a protected disclosure 

under section 2302(b)(8) when he complained about an agency human resources 

specialist’s failure to inform him that his retirement annuity would be offset by 

his social security benefits. ID at 6-7. In reaching this conclusion, the 

administrative judge relied upon his findings in the appellant’s involuntary 

retirement appeal that the appellant failed to prove that the human resources 

specialist provided him with material misinformation that caused him to retire 

involuntarily. ID at 6-7. Based upon those findings, the administrative judge

concluded that a person in the appellant’s position could not have reasonably 

believed that he disclosed one of the categories of wrongdoing under section 

2302(b)(8) when he complained about the omitted offset information. 5

 ID at 7.

¶6 We respectfully disagree with the administrative judge’s reasoning in this 

regard. The Board has held that an appellant need not establish an actual 

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

order 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, an appellant need prove only that a disinterested observer 

with knowledge of the essential facts known to and readily ascertainable by the 

 5 As explained below, the administrative judge did not identify which category of 

wrongdoing the appellant’s disclosure allegedly involved. ID at 6-7.
5

employee 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). Here, because 

the administrative judge relied on his factual conclusion that the agency did not 

provide the appellant with materially misleading information that caused him to 

retire involuntarily, we find that the administrative judge employed a higher 

standard that focused on whether the appellant proved some quantum of actual 

agency wrongdoing. Such a showing of an actual wrongdoing is not needed for 

an appellant to establish that he had a reasonable belief that he made a protected 

disclosure under section 2302(b)(8). See Chavez v. Department of Veterans 

Affairs, 120 M.S.P.R. 285, ¶ 26 (2013).

The appellant failed to prove that he made a protected disclosure of a violation of 

law, rule, or regulation under section 2302(b)(8).

¶7 Upon our review of the record, we find that the appellant failed to prove 

that he made a protected disclosure of a violation of a law, rule, or regulation 

under section 2302(b)(8) concerning the conduct of the agency’s human resources 

specialist. 6

 The test for establishing a protected disclosure under section 

2302(b)(8) is not onerous. Both the Board and the U.S. Court of Appeals for the 

Federal Circuit have found that an appellant is not required to identify the 

particular statutory or regulatory provision by title or number that the agency 

allegedly violated when his statements and the circumstances of those statements 

clearly implicate an identifiable law, rule, or regulation. See Langer v. 

 6 Based upon the nature of the appellant’s allegations, none of the other categories set 

forth in 5 U.S.C. § 2302 are implicated in this appeal. To the extent the appellant 

alleged that the Director abused his discretion by not reinstating him to employment, 

IAF, Tab 3 at 17, we have found no evidence in the record that the appellant presented 

this particular allegation of wrongdoing to OSC in his whistleblower complaint, IAF, 

Tab 5, Subtab 4d (OSC close out letter referencing that the appellant disclosed that the 

human resources specialist “misadvised [him] regarding [his] retirement benefits”). 

The Board may consider only the specific allegations of reprisal that have been 

presented to OSC. See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004).
6

Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001); Mason v. 

Department of Homeland Security, 116 M.S.P.R. 135, ¶ 17 (2011). Rather, an 

appellant need prove only that a disinterested observer in his position could have 

reasonably concluded that his disclosure evidenced a violation of a law, rule, or 

regulation. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 

(2015). Despite this modest pleading standard, an employee must make more 

than a vague, conclusory, or unsupported allegation of wrongdoing under section 

2302(b)(8). 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) 7

; 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); McDonnell v. Department of 

Agriculture, 108 M.S.P.R. 443, 447 (2008). 

¶8 We have considered whether the statutory amendments of the 

Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 

112‐199, 126 Stat. 1465 (WPEA),

8 have altered the law regarding vague and 

conclusory allegations and find that they have not. In enacting the WPEA, 

Congress amended several provisions within title 5 of the U.S. Code, including 

the definition and scope of a protected disclosure under 5 U.S.C. § 2302(b)(8). 

See Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 12, 18 (2013) 

(citing WPEA, § 101). Among these amendments are (1) a change in the 

language of section 2302(b)(8) from a violation of any law, rule, or regulation, to 

any violation of any law, rule, or regulation, and (2) the addition of several new 

 7 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 This appeal was filed after the December 27, 2012 effective date of the WPEA, and 

the WPEA’s provisions thus apply.
7

subsections in section 2302(f) that clarify the definition of a protected disclosure. 

See WPEA, § 101(a), (b)(2)(C); Mudd v. Department of Veterans Affairs, 

120 M.S.P.R. 365, ¶ 5 n.3 (2013); Day, 119 M.S.P.R. 589, ¶¶ 18-26. 

Additionally, under the WPEA, Congress expanded the grounds upon which an 

appellant can file an IRA appeal with the Board to include certain classes of 

protected activity under sections 2302(b)(9)(A)(i), (B), (C), or (D). 9

 See 5 U.S.C. 

§ 1221(a); Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 

(2014).

¶9 Absent from the WPEA’s various amendments, however, is any change to 

the Board’s decisional authority finding that vague and conclusory allegations fail 

to meet this standard. Congress’s silence on these topics in the WPEA is 

germane, especially in light of the substantial amendments it made to existing 

Federal whistleblower protections. See Butterbaugh v. Department of Justice, 

336 F.3d 1332, 1342 (Fed. Cir. 2003) (“Congress may be presumed to know of 

long-standing administrative or judicial constructions, and to adopt that 

interpretation when it re-enacts a statute without change.”); Haywood v. Office of 

Personnel Management, 65 M.S.P.R. 603, 609-10 (1994) (stating that, when 

Congress adopts a new law incorporating sections of a prior law without change, 

Congress is presumed to have been aware of the administrative or judicial 

interpretation of the incorporated sections and to have adopted that 

interpretation). 

¶10 After extensively reviewing the appellant’s written submissions, we are 

unable to conclude that his complaints about the human resources specialist prove 

any violation of any law, rule, or regulation. In September 2012, the appellant 

received notice from OPM that his CSRS retirement annuity would be offset by 

his social security benefits. IAF, Tab 1 at 29. The following month, he wrote to 

the Director of the North Florida/South Georgia Veterans Health System 

 9 None of the additional bases for filing an IRA appeal with the Board are implicated in 

this case.
8

complaining that the human resources specialist failed to explain that his 

retirement annuity would be subject to an offset. Id. at 57-61. In his letter to the 

Director, the appellant summarized his history of Federal service, stated that had 

he known his annuity would be offset he would not have retired, and sought 

reinstatement to his previous position. Id. Although he asserted that he did not 

receive all of the information he thought he should have received prior to retiring 

and contended that he was told his CSRS retirement annuity would not be offset, 

a contention concerning a mere mistake or simple error without more does not 

prove a violation of a law, rule, or regulation. 

¶11 The appellant wrote to the Director a second time on December 2, 2012, 

again stating that he would not have retired had he known that his annuity would 

be offset, that he was told by the human resources specialist that his annuity 

would not be offset, and that he wanted to be reinstated. Id. at 62-71. Similar to 

his first correspondence, the appellant made no allegation of illegality or a 

violation of any law, rule, or regulation in this correspondence, and only asserted 

that he had been misinformed prior to retiring. Id. The appellant also 

acknowledged that another human resources specialist had contacted him about 

his reinstatement request and that he was working with her in applying for 

reinstatement. Id. at 62-63. 

¶12 Finally, the appellant wrote to the Director a third time later in December 

2012, this time questioning why the Director had not responded to him, asserting 

that he was of good character and should be reinstated, and arguing for the first 

time that the human resources specialist broke “the federal law and the federal 

code of conduct by lieing [sic] to me.” Id. at 55. Apparently prior to receiving 

this last correspondence, the Director responded to the appellant in a letter dated 

December 31, 2012. 10 IAF, Tab 3 at 17-18. In this letter, the Director apologized 

 10 The Director’s letter references the appellant’s October 3 and December 2, 2012

correspondence, but does not reference the appellant’s third letter dated later in 

December 2012. IAF, Tab 3 at 17.
9

for the confusion surrounding the appellant’s annuity estimate, explained the 

CSRS offset process, and referenced that a human resources specialist had been 

assigned to help him seek reinstatement. Id. 

¶13 Based upon the statements contained within the appellant’s submissions to 

the Director, we find that he has failed to prove that he disclosed a violation of 

any law, rule, or regulation under section 2302(b)(8). Rather, the appellant’s 

statements about the human resources specialist’s conduct are similar to other 

general assertions of alleged wrongdoing that the Board has found do not 

constitute protected disclosures of any law, rule, or regulation. See Boechler v. 

Department of the Interior, 109 M.S.P.R. 542, ¶¶ 11-12 (2008) (finding that a 

statement that an employee violated the law by participating in the cancellation of 

a contract was too vague to even qualify as a nonfrivolous allegation of a 

protected disclosure), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); Mc Corcle v. 

Department of Agriculture, 98 M.S.P.R. 363, ¶ 21 (2005) (determining that 

general allegations of harassment and discrimination were too vague to constitute 

nonfrivolous allegations of protected disclosures). The Board, moreover, has 

found that an individual’s allegation that another employee lied, without more, 

does not constitute a protected disclosure under section 2302(b)(8). See Rzucidlo 

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

appellant’s allegation that the human resources specialist broke “the federal law 

and the federal code of conduct” by purportedly lying to him does not clearly 

implicate an identifiable law, rule, or regulation for the purpose of proving that 

he made a protected disclosure under section 2302(b)(8). 11 See Chavez, 

 11 Among the additional correspondence in the record are two letters the appellant 

wrote, one to the former Secretary of the Department of Veterans Affairs in April 2013 

complaining about the Director, and a second to the President in December 2013 

accusing the human resources specialist of violating both “the merit systems principles” 

and 18 U.S.C. § 1001. IAF, Tab 1 at 72-77, 79. These letters could not have influenced 

the agency’s decision not to reinstate the appellant because they both postdate the 

challenged action. Id. at 33 (Director’s letter to U.S. Congressman Ander Crenshaw 

dated February 15, 2013, explaining that the appellant had not been selected for 
10

120 M.S.P.R. 285, ¶ 19 (finding that an allegation that medical carts were not 

cleaned and stocked at a shift change, supposedly pursuant to agency regulations, 

which the appellant failed to provide, did not clearly implicate a specific law, 

rule, or regulation).

¶14 Based on the foregoing, we find that the appellant has failed to prove that 

he made a protected disclosure under section 2302(b)(8), and we affirm as 

modified the initial decision denying the appellant corrective action in his IRA 

appeal.

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 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 

 

reinstatement); see MSPB Docket No. AT-0752-14-0612-I-1, Tab 27, Hearing Compact 

Disc (testimony of the Director). These letters therefore do not change the disposition 

of this appeal. See Orr v. Department of the Treasury, 83 M.S.P.R. 117, ¶ 15 (1999) 

(explaining that an act taken prior to a disclosure could not have been influenced by 

that disclosure), aff’d, 232 F.3d 912 (Fed. Cir. 2000) (Table).
11

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 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
12

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.

______________________________

William D. Spencer

Clerk of the Board