UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRADLEY THOMAS ELLERMAN,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

CH-1221-18-0364-W-1

DATE: December 29, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bradley Thomas Ellerman, Mauston, Wisconsin, pro se.

Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

or the erroneous application of the law to the facts of the case; the administrative

1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We MODIFY the initial decision to

expressly consider whether the appellant made a nonfrivolous allegation of a

protected disclosure of a violation of 5 C.F.R. § 330.1300 or 5 C.F.R.

§ 731.103(d)(1). Except as so modified to supplement the administrative judge’s

analysis, we AFFIRM the initial decision. 

To establish jurisdiction over a typical IRA appeal, an appellant must show

by preponderant evidence that he exhausted his remedies before the Office of

Special Counsel (OSC) and make nonfrivolous allegations of the following:

(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a

protected activity described under 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 personnel action as defined by 5 U.S.C.

§ 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016);

5 C.F.R. § 1201.57(a)(1), (b), (c)(1). A nonfrivolous allegation is an assertion

that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). An

allegation generally will be considered nonfrivolous when, under oath or penalty

of perjury, an individual makes an allegation that is more than conclusory,

plausible on its face, and material to the legal issues in the appeal. Id. As the

U.S. Court of Appeals for the Federal Circuit in Hessami v. Merit Systems

Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020) determined:

“[T]he question of whether the appellant has non-frivolously alleged protected
3

disclosures [or activities] that contributed to a personnel action must be

determined based on whether the employee alleged sufficient factual matter,

accepted as true, to state a claim that is plausible on its face.” Pro forma

allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S Postal

Service, 123 M.S.P.R. 466, ¶ 6 (2016), aff’d, 679 F. App’x 1006 (Fed. Cir. 2017),

overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13,

¶ 20 n. 11.

On petition for review, the appellant argues, among other things, that he

established jurisdiction because he nonfrivolously alleged that the agency

retaliated against him for his alleged protected disclosures questioning the

agency’s selection procedures for promotional opportunities and disagreeing with

certain office practices “regarding misuse of background information and

improper procedures for withdrawing job offers from applicants for employment.”

Petition for Review (PFR) File, Tab 1 at 5. As relevant to this IRA appeal, the

term “disclosure” means “a formal or informal communication or transmission,

but does not include a communication concerning policy decisions that lawfully

exercise discretionary authority unless the employee or applicant providing the

disclosure reasonably believes that the disclosure evidences” one of the

categories of wrongdoing described in 5 U.S.C. § 2302(b)(8), i.e., “(i) any

violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross

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

public health and safety.” See 5 U.S.C. § 2302(a)(2)(D). The test to determine

whether an employee had a reasonable belief in his disclosures is an objective

one: whether a disinterested observer with knowledge of the essential facts

known to and readily ascertainable by the employee could reasonably conclude

that the actions evidenced any violation of any law, rule, or regulation, or one of

the other types of wrongdoing set forth in 5 U.S.C. § 2302(a)(2), (b)(8). See

Salerno, 123 M.S.P.R. 230, ¶ 6.
4

We agree with the administrative judge’s conclusion that the appellant has

failed to make a nonfrivolous allegation that he made such a protected disclosure.

Initial Appeal File (IAF), Tab 6, Initial Decision (ID) at 6. As part of his

analysis, the administrative judge generally considered whether the appellant had

nonfrivolously alleged that he made a protected disclosure of a violation of

5 C.F.R. part 731. ID at 6-8. We hereby supplement the initial decision to

consider specifically whether the appellant nonfrivolously alleged that he made a

protected disclosure of a violation of 5 C.F.R. § 330.1300 and 5 C.F.R.

§ 731.103(d)(1). These regulations pertain to when, during the hiring process

(unless an exception is granted by the Office of Personnel Management), agencies

can inquire about applicants’ background information of the sort asked on the

Optional Form 306 (OF-306), “Declaration for Federal Employment,” to

determine their suitability for Federal employment. 81 Fed. Reg. 86555, 86555

(Dec. 1, 2016). The record contains only a few assertions that could potentially

implicate these regulations. 2 PFR File, Tab 1 at 5; IAF, Tab 1 at 17-21. For the

following reasons, we find that the appellant has failed to make an assertion that,

if proven, could establish that he made any disclosures that he could have

reasonably believed evidenced a violation of these regulations. 

The appellant is a Human Resources Specialist with the agency. IAF,

Tab 1 at 1, 6, 16. His OSC complaint contains the most expansive description in

the record of his reprisal claim. In his OSC complaint, he asserted in general

terms that in June 2017, prior to the alleged personnel actions at issue in this

appeal, he had “begun [to] question” the agency’s screening process, was

involved in “[m]any discussions,” and had sent “communications” to supervisors

2 The appellant’s failure to identify these particular regulations is not in and of itself

dispositive of the jurisdictional issue. See Langer v. Department of the Treasury,

265 F.3d 1259, 1266 (Fed. Cir. 2001) (holding that a disclosure may be considered

protected, even in the absence of identification of a specific statute or regulation, “when

the employee’s statements and the circumstances surrounding the making of those

statements clearly implicate an identifiable violation of law, rule, or regulation”);

accord Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 19 (2013).
5

“regarding correcting of the background disclosure process.” Id. at 17-20. He

did not specify what statements he made or what information he provided as a

part of these discussions and communications. He did not claim to have

expressed a belief, even in general terms, of a violation of any law, rule, or

regulation. He claimed that, at the time he filed his OSC complaint in September

2017, he was being informed that agency officials were “still” reviewing the

process and seeking guidance from “CHRA,” which we presume to mean the

Civilian Human Resources Agency. Id. at 14, 19. He further stated his belief

that, at the time of his OSC complaint, other staffing specialists were “still

sending” OF-306 information to hiring managers, “allowing them to change their

selection decision, thus bypassing the suitability process.” Id. at 19; accord id.

at 18 (briefly describing the agency’s “[c]urrent process” in similar terms). 3 

Based on his brief statements in the record, we deduce that he was

“question[ing]” and “discuss[ing]” the stage in the selection process at which

selecting officials were being provided with information of the type contained on

the OF-306, during a time at which the agency was reviewing its processes. Id.

at 17-21. At most, he has broadly asserted that he expressed his personal opinion

that the agency should “correct[]” its process. Id. at 20. He has not asserted,

however, what facts or circumstances known to, or readily ascertainable by, him

could have led him to reasonably believe that any violation of any law, rule, or

regulation had occurred or would occur, or that he expressed such a belief or

communicated such facts to anyone. 4 Based on his limited presentation, we find

3 He has never alleged that the agency retaliated against him for his OSC complaint

itself or for disclosing any information to OSC.

4

In an IRA appeal, an appellant is not required to allege or prove that the disclosed

wrongdoing actually occurred; rather, the issue is his reasonable belief based on the

known and readily ascertainable facts. See, e.g., Mithen v. Department of Veterans

Affairs, 122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). As to

whether the appellant could have reasonably believed that he was revealing any

violation of any law, rule, or regulation, we observe that 5 C.F.R. § 330.1300 and

5 C.F.R. § 731.103(d)(1) do not contain an absolute bar to an agency’s inquiry into

criminal or credit background information, but rather, these regulations set forth a
6

that he has not made a nonfrivolous allegation that he made a disclosure that he

reasonably believed evidenced any violation of any law, rule, or regulation

(including 5 C.F.R. § 330.1300 or § 731.103(d)(1)), or one of the other types of

wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 2302(a)(2)(D);

Salerno, 123 M.S.P.R. 230, ¶ 7 (finding that the appellant’s purported disclosure

of a disregard for compliance issues was not sufficiently specific to constitute a

nonfrivolous allegation of a protected disclosure); Tuten v. Department of Justice,

104 M.S.P.R. 271, ¶¶ 9-11 (2006) (holding that the appellant’s conclusory

allegations that the agency falsified medical records and illegally transferred sick

inmates to pass program review were insufficiently specific to constitute a

nonfrivolous allegation of a protected disclosure), aff’d, 2007 WL 2914787 (Fed.

Cir. 2007); Sobczak v. Environmental Protection Agency, 64 M.S.P.R. 118, 122

(1994) (concluding that the appellant’s allegations that a consulting firm “might

be involved in illegal business practices . . . mishandling their contracts with the

[Environmental Protection Agency] or getting preferential treatment in obtaining

government benefits” were based on unsupported speculation and thus he failed to

prove that he had a reasonable belief that he was disclosing evidence of illegal

practices); see also Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036

(Fed. Cir. 1993) (“The law . . . is well settled that the mere recitation of a basis

for jurisdiction by a party is not sufficient. Rather, substantive details

establishing jurisdiction must be alleged in the complaint.”).

The appellant did not respond to the administrative judge’s jurisdictional

order, and thus he missed an opportunity to further explain his allegations. IAF,

Tab 3. On petition for review, he claims not to have understood that he needed to

general rule concerning the timing of such inquiries and further expressly provide for

exceptions to that general rule. Thus, the circumstances of the handling of this

information must be taken into consideration before a reasonable conclusion could be

drawn as to whether these regulations have been violated. To the extent it can be

inferred from the appellant’s allegations that his alleged protected disclosures are based

on his knowledge that agency personnel were sending such background information to

hiring managers, such knowledge alone could not support a reasonable belief that a

violation of these regulations had occurred.
7

respond to that order. PFR File, Tab 1 at 5. We find this claim unavailing

because the appellant was a registered e-filer with a duty to monitor case activity

to ensure receipt of all case-related documents, IAF, Tab 1 at 2; see 5 C.F.R.

§ 1201.14(j)(3), and the administrative judge’s jurisdictional order clearly

explained that he must respond with evidence and argument on the issues

described in that order, IAF, Tab 3 at 7-8. In any event, his petition for review

does not provide any material new detail. PFR File, Tab 1 at 5. 5 In relevant part,

he merely states that he was retaliated against “after [his] questioning of selection

procedures for promotional opportunities, and after disagreement with our offices

[sic] practices regarding misuse of background information and improper

procedures for withdrawing job offers from applicants for employment.” Id.

Even assuming that he questioned procedures and disagreed with office practices

as he asserts, he has failed to allege facts that, if proven, could support a

conclusion that he made a disclosure that he reasonably could have believed

evidenced any violation of any law, rule, or regulation, or one of the other types

of wrongdoing described in 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 2302(a)(2)(D);

Tuten v. Merit Systems Protection Board, 2007 WL 2914787, at *2 (Fed. Cir.

Oct. 5, 2007) (affirming the Board’s dismissal of an IRA appeal for lack of

jurisdiction when the appellant had “provided nothing more than bare assertions

of wrongdoing by the agency, even after being given an opportunity to provide

more detail”) (citing Ellison, 7 F.3d at 1036);6Salerno, 123 M.S.P.R. 230, ¶ 7;

Tuten, 104 M.S.P.R. 271, ¶¶ 9-11; Sobczak, 64 M.S.P.R. at 122.7

5 The documents attached to his petition for review are identical to the documents

attached to his initial appeal. PFR File, Tab 1 at 7-24; IAF, Tab 1 at 6-23.

6 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the

Federal Circuit when, as in this instance, it finds the analysis persuasive. E.g., Graves

v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 10 n.1 (2016). 

7 His brief assertions on review show no error in the administrative judge’s finding that

he failed to make a nonfrivolous allegation establishing jurisdiction on the theory that

the agency at least “perceived” him to be a whistleblower. ID at 6; see Rumsey v.

Department of Justice, 120 M.S.P.R. 259, ¶¶ 7-8 (2013) (explaining that one issue in a

“perceived as” whistleblower reprisal case is whether the relevant agency officials
8

The appellant also claims that the agency subjected him to retaliation for

filing an EEO complaint. PFR File, Tab 1 at 5. However, retaliation for filing an

EEO complaint is a matter relating solely to discrimination and is not protected

by 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D); thus, this claim is not a

basis for finding jurisdiction in this IRA appeal. See Edwards v. Department of

Labor, 2022 MSPB 9, ¶¶ 10, 21-23 25, aff’d, No. 2022-1967, 2023 WL 4398002

(Fed. Cir. July 7, 2023). The appellant’s OSC complaint contains an assertion

that the agency also retaliated against him for requesting a reasonable

accommodation of his disabilities. IAF, Tab 1 at 17. This claim is not a source

of IRA jurisdiction because such a request for accommodation is not the “exercise

of any appeal, complaint, or grievance right,” and it does not concern “remedying

a violation of [5 U.S.C. § 2302(b)(8)].” See 5 U.S.C. § 2302(b)(9)(A)(i); Graves

v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 18 (2016) (finding that

the appellant had not exercised any appeal, complaint, or grievance right as

described in section 2302(b)(9) when the appellant’s actions did not constitute an

initial step toward taking legal action against an employer for a perceived

violation of employment rights).

Accordingly, the Board lacks jurisdiction over this appeal. 8

NOTICE OF APPEAL RIGHTS9

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 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

believed that the appellant had made disclosures of the type described in 5 U.S.C.

§ 2302(a)(2), (b)(8)).

8 The appellant’s arguments on review about the merits of his 3-day suspension are

immaterial to the dispositive jurisdictional issues. PFR File, Tab 1 at 5.

9

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. 
9

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: 

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. 
10

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

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
11

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).

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.10 The court of appeals must receive your petition for

10 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
12

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

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

any attorney will accept representation in a given case.

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.
13

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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.