UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL J. HORVATH,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-1221-16-0446-W-1

DATE: November 28, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael J. Horvath, Los Angeles, California, pro se.

Jessica A. Neff, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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; 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 is employed as a Special Agent with the agency’s U.S. Secret 

Service. Initial Appeal File (IAF), Tab 1 at 1. On April 27, 2016, he filed a 

Board appeal alleging that on December 15, 2015, he was removed from a 

candidate nominee operations section (CNOS) assignment in retaliation for filing 

a grievance concerning his 5-day suspension. Id. at 5. The administrative judge 

issued an order on jurisdiction in which he informed the appellant that, to 

establish Board jurisdiction over his IRA appeal, he had to demonstrate that he 

had exhausted his whistleblowing claims before the Office of Special Couns el 

(OSC) and make nonfrivolous allegations that he made a protected disclosure or 

engaged in protected activity that was a contributing factor in a personnel action 

taken against him. IAF, Tab 5. In response, the appellant contended that he 

made protected disclosures and engaged in protected activity on a variety of dates 

between August 2015 and January 5, 2016. IAF, Tab 7 at 4-10. He also 

submitted a copy of his OSC complaint and correspondence with OSC. IAF,

Tab 7 at 37-48, Tab 14 at 32-35. 
3

¶3 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 21, Initial 

Decision (ID). The administrative judge found that the sole claim the appellant 

had exhausted before OSC was that on December 15, 2015, he was removed from 

the CNOS assignment and other protection assignments in retaliation for his 

December 18, 2015 grievance of a 5-day suspension. ID at 8. However, the 

administrative judge found that the Board lacks jurisdiction over such a claim

because the appellant’s grievance did not seek to remedy whistleblower reprisal 

under 5 U.S.C. § 2302(b)(8). ID at 12-13. The administrative judge further 

found that the appellant failed to nonfrivolously allege that his grievance was a 

contributing factor in the agency’s decision because the appellant filed his 

grievance after learning that he had been removed from the CNOS rotation. ID 

at 13-15. Lastly, he found that the appellant failed to exhaust his administrative 

remedies with OSC regarding his remaining claims that he made protected 

disclosures and engaged in protected activity. ID at 8-11.

¶4 The appellant has filed a petition for review in which he asserts that the 

administrative judge erred in finding that he failed to exhaust his administrative 

remedies regarding additional alleged protected disclosures.

2

 Petition for Review 

(PFR) File, Tab 1 at 10-14. The agency has opposed the appellant’s petition. 

PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Under U.S.C. § 1214(a)(3), an employee is required to exhaust his 

administrative remedies with OSC before seeking corrective action from the 

 

2

The appellant also asserts that new evidence shows that he has been removed from a 

new work assignment in further retaliation for his disclosures and for filing the instant

appeal. PFR File, Tab 1 at 14-17. The Board will not grant a petition for review based 

on new evidence absent a showing that it is of sufficient weight to warrant an outcome 

different from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 

345, 349 (1980). The appellant’s arguments on review are not of such weight because 

they do not pertain to the dismissal of his claims for failure to exhaust them before OSC 

or otherwise establish jurisdiction. 
4

Board in an IRA appeal. Mason v. Department of Homeland Security, 

116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not 

exhausted his OSC remedy unless he has filed a complaint with OSC and either 

OSC has notified him that it was terminating its investigation of his allegations or 

120-calendar days have passed since he first sought corrective action. Simnitt v. 

Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). The Board has 

recently clarified that to satisfy the exhaustion requirement, the appellant must 

provide OSC with sufficient basis to pursue an investigation. Chambers v. 

Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. While the Board’s 

jurisdiction is limited to those issues that have been previously raised with OSC, 

an appellant may give a more detailed account of his whistleblowing activities 

before the Board than he did to OSC. An appellant may demonstrate exhaustion 

through his initial OSC complaint, evidence that he amended the original 

complaint, including but not limited to OSC’s determination letter and other 

letters from OSC referencing any amended allegations, and the appellant’s written 

responses to OSC referencing the amended allegations. An appellant may also 

establish exhaustion through other sufficiently reliable evidence, such as an 

affidavit or declaration attesting that the appellant raised with OSC the substance 

of the facts in the Board appeal. Id. 

¶6 We agree with administrative judge that the sole claim the appellant 

exhausted before OSC was his being removed from the CNOS assignment in 

retaliation for filing a grievance of his 5-day suspension. ID at 9. In his OSC 

complaint, the appellant alleged that he was removed from a preselected work 

assignment “in retaliation for a reserved right of grievance [he] maintained in 

regards to a proposal for suspension.” IAF, Tab 7 at 42. OSC construed his 

claim as such and issued a close-out letter characterizing the appellant’s claim as 

follows: “[y]ou allege that because of your suspension and subsequent grievance, 

you were disallowed from serving on the Candidate Nominee Shift and other 

protective missions.” IAF, Tab 1 at 18. 
5

¶7 As the administrative judge properly found, the Board lacks jurisdiction 

over a claim of reprisal for filing a grievance, unless the grievance concerns 

remedying a violation of whistleblower reprisal under 5 U.S.C. § 2302(b)(8). ID

at 12-13; see Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 

(2013); see also Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329 

(Fed. Cir. 2020) (stating that “[s]ection 2302(b)(9)(A)(ii), which is not included

in the list of prohibited personnel practices for which the Board can issue 

corrective action, covers retaliation for exercising any appeal, complaint, or 

grievance right other than one seeking to remedy a violation of 

section 2302(b)(8)[,] [r]etaliation for filing those other types of complaints is 

remediable through different mechanisms, and not by an IRA appeal to the 

Board”).

3

 To the extent the appellant argues that the administrative judge 

improperly found that his grievance did not seek to remedy whistleblower 

reprisal, PFR File, Tab 1 at 5-6, 14, any error does not provide a basis for reversal 

because the administrative judge also found that the appellant failed to 

nonfrivolously allege that his December 18, 2015 grievance was a contributing 

factor in the agency’s prior December 15, 2015 decision to remove him from the 

CNOS assignment, ID at 13-14; see Panter v. Department of the Air Force, 

22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not 

prejudicial to a party’s substantive rights provides no basis for reversing an 

initial decision). 

¶8 On review, the appellant reiterates his arguments below that he exhausted 

additional alleged protected disclosures before OSC, including the following: 

 

3 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals 

for the Federal Circuit on this issue. However, as a result of changes initiated by the 

Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 

1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L. 

No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review 

Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial 

review of Board decisions in whistleblower reprisal cases with any circuit court of 

appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). 
6

(1) his alleged disclosure in an August 19, 2015 memorandum that his supervisor 

had been derelict in his responsibilities and abused his authority by assigning the 

appellant to respond to a duty call on August 7, 2015; (2) his alleged protected 

activity during an August 27, 20154 meeting in which he expressed his intent to 

file a grievance of his proposed 5-day suspension; and (3) his alleged protected 

activity in a December 18, 2015 email detailing his intent to file a grievance. 5 

PFR File, Tab 1 at 8-14. We have considered the appellant’s arguments on 

review, however, for the reasons set forth in the initial decision, we agree with 

the administrative judge that the information that the appellant provided to OSC

regarding these alleged protected disclosures was insufficient for it to pursue an 

investigation that might lead to corrective action. ID at 8-10; see, e.g., El v. 

Department of Commerce, 123 M.S.P.R. 76, ¶¶ 6-8 (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, as the administrative judge found, even assuming that the appellant 

exhausted his remedy with OSC and nonfrivolously alleged that his December 18, 

2015 email constituted a protected disclosure or protected activity, he failed to

nonfrivolously allege that it was a contributing factor because it post-dates his 

removal from the CNOS assignment on December 15, 2015. ID at 10 n.6; see 

Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 16 (2014) (explaining that, to 

satisfy the contributing factor criterion, an appellant must raise a nonfrivolous

allegation that the fact or content of the protected disclosure was one factor that 

 

4

This meeting appears to have occurred on October 27, 2015, the date the appellant’s

suspension was proposed, not August 27, 2015. IAF, Tab 1 at 9, Tab 7 at 6; PFR File, 

Tab 1 at 12. 

5

The appellant does not challenge the administrative judge’s findings that he failed to 

exhaust his remedies with OSC concerning his alleged protected disclosures and 

activity on December 23 and December 31, 2015, and January 5, 2016, and we discern 

no error in the administrative judge’s analysis. ID at 11. 
7

tended to affect the personnel action in any way); Kukoyi v. Department of 

Veterans Affairs, 111 M.S.P.R. 404, ¶ 11 (2009) (recognizing that disclosure 

made after the agency has taken the personnel actions at issue cannot have been 

contributing factors in those personnel actions and do not meet the nonfrivolous 

allegation requirements), overruled on other grounds by Mason, 116 M.S.P.R. 

135, ¶ 26 n.7. 

¶9 Accordingly, we find that the administrative judge properly dismissed the 

appeal for lack of jurisdiction.6 

NOTICE OF APPEAL RIGHTS7

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. 

 

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. 

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 indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

(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: 

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 
9

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (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 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 respective 

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: 
10

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). 

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 

 

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. 
11

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. 

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