UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RENEE NELSON,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

PH-1221-16-0453-W-1

DATE: March 12, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Renee Nelson, Silver Spring, Maryland, pro se.

David W. Claypool, Esquire, Silver Spring, Maryland, for the agency.

Paul N. Bley and Lauren Ruby, Falls Church, Virginia, 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 her 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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. Except as expressly MODIFIED to

find that the appellant made a nonfrivolous allegation that one of her disclosures

was protected, we AFFIRM the initial decision. 

BACKGROUND

The appellant is a GS-12 Program Analyst stationed at the agency’s

National Museum of Health and Medicine (NMHM). Initial Appeal File (IAF),

Tab 1 at 1, Tab 14 at 8. She filed an IRA appeal with the Board and did not

request a hearing. IAF, Tab 1 at 1, 10-12. The administrative judge issued an

order notifying the appellant that the Board might not have jurisdiction over her

appeal and informing her of her jurisdictional burden. IAF, Tab 9 at 1-6. He

ordered the appellant to file a statement detailing the elements of her claim,

including a list of each protected activity and personnel action that she was

claiming. Id. at 7-8. The appellant responded by filing more than 400 pages of

documentation that she previously submitted to the Office of Special Counsel

(OSC) and explaining that the information that the administrative judge requested

was contained therein. IAF, Tab 11.

After the record on jurisdiction closed, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction on the bases that the

2
appellant failed to make a nonfrivolous allegation that her claimed activity was

protected under the Whistleblower Protection Act (WPA), and that she failed to

identify any personnel action in which that activity might have been a

contributing factor. IAF, Tab 15, Initial Decision (ID) at 3-6. Specifically, he

found that the appellant’s OSC complaint did “not clearly identify what alleged

protected disclosures she made, when she made them, and to whom, nor what

personnel actions allegedly resulted.” ID at 3. However, he was able to glean

from OSC’s close-out letter that the appellant was primarily alleging reprisal for

disclosures that she made in a March 2014 letter to the Commanding General of

the U.S. Army Medical Research and Materiel Command (MRMC). ID at 3; IAF,

Tab 4 at 41, Tab 11, Subtab B at 16-19. The administrative judge found that the

letter chiefly concerned allegations of discrimination and harassment, which are

outside the purview of the Board’s IRA jurisdiction, as well as personal

complaints and grievances that did not rise to the level of whistleblowing activity.

ID at 3-4. He further found that the appellant’s claimed personnel actions either

predated the disclosure or did not constitute personnel actions within the meaning

of 5 U.S.C. § 2302(a)(2)(A). ID at 4-6.

The appellant has filed a petition for review, disputing the administrative

judge’s analysis. Petition for Review (PFR) File, Tab 1 at 2-29. Along with her

petition, the appellant has filed more than 500 pages of documentation that she

characterizes as new and material evidence. Id. at 2, 6-8, 30-536. The agency

has responded to the petition for review, PFR File, Tab 3, and the appellant has

filed a reply to the agency’s response, PFR File, Tab 4. After the close of the

record on review, the agency moved for leave to submit a motion to reject the

appellant’s reply as untimely. PFR File, Tab 5. The appellant opposes the

agency’s motion. PFR File, Tab 7.

3
ANALYSIS2

First we address the agency’s motion for leave to oppose the appellant’s

reply as untimely. PFR File, Tab 5. The agency filed its response to the petition

for review electronically on September 14, 2017, PFR File, Tab 3, and it appears

that the appellant filed her reply by mail 14 days later on September 28, 2017,

PFR File, Tab 4 at 17. There is only a 10-day window to file a reply to a

response to a petition for review, but this time period is measured from the date

the response is served—not the date it is filed. 5 C.F.R. § 1201.114(e). The

appellant was not a registered e-filer, and there appears to be a dispute of fact

about the date that the agency served her its response by mail. PFR File, Tab 7;

see 5 C.F.R. § 1201.4(j), (l) (date of service by mail is generally determined by

postmark). Additionally, 5 C.F.R. § 1201.23 provides that 5 days are added to a

party’s deadline for responding to a document served on the party by mail.

However, in the interest of adjudicatory efficiency, we decline to resolve this

dispute because the outcome of this appeal would be the same regardless of

whether we granted the agency’s motion. Therefore, the motion is denied.

The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies before OSC and makes nonfrivolous allegations that

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

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

In this case, neither below nor on review has the appellant clearly

explained what protected disclosures or activities she is claiming or what

personnel actions she is alleging. In particular, she has not provided any such

information in list format as the administrative judge directed her to do. IAF,

2 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.

4
Tab 9 at 7-8. Because the alleged agency wrongdoing that she identifies all

seems to be directed at her, it is difficult to discern what she is claiming as a

protected disclosure and what she is claiming as a personnel action. The Board

does not expect pro se appellants to plead issues with the precision of an attorney,

Goodnight v. Office of Personnel Management, 49 M.S.P.R. 184, 187 (1991), but

its ability to address a pro se appellant’s claims may be limited to the extent that

her claims are unclear.

On petition for review, the appellant attempts to clarify her claims by

presenting a timeline of events. PFR File, Tab 1 at 8-10. The appellant states

that she began her protected activity in the spring of 2013 by making complaints

to the NMHM Director and Chief Administrator. Id. at 8. However, the appellant

does not explain the nature of these complaints, and to the extent that they are in

writing, she has not provided us sufficient information to locate them in the

record. See 5 C.F.R. § 1201.114(b) (providing that a petition for review must be

supported by specific references to the record). We therefore find that she has

not made a nonfrivolous allegation that these complaints constituted protected

disclosures.

Next, the appellant claims that she sent emails to the NMHM Director and

Chief Administrator on October 1, 2013, November 20, 2013, and January 23,

2014, concerning violations of her privacy rights and contractors overstepping

their authority and violating ethical rules. PFR File, Tab 1 at 5-6, 8-9. We have

located these emails in the record and reviewed them, but we find that they do not

even arguably evidence any category of wrongdoing under 5 U.S.C. § 2302(b)(8).

IAF, Tab 11, Subtab B at 31-36. Rather, they concern workplace disagreements,

alleged rude behavior by coworkers, and allegedly unfair criticism that the

appellant received from her supervisor and others. Id. We find that the appellant

has not made a nonfrivolous allegation that these disclosures were protected. See

Horton v. Department of the Navy, 60 M.S.P.R. 397, 401-02 (1994), aff’d,

66 F.3d 279 (Fed. Cir. 1995).

5
Next, the appellant identifies a February 24, 2014 letter that she sent to the

MRMC Personnel Advisory Center, requesting intervention and information on

how to file a complaint against the agency and the contractor. PFR File, Tab 1

at 9. We have reviewed this letter, and we find that it is of the same general

nature as the three letters discussed in the preceding paragraph. IAF, Tab 11,

Subtab B at 2. The appellant stated in this letter that the agency was violating her

rights under the Privacy Act, 5 U.S.C. § 552a, but she provided no explanation of

her bare assertion. We therefore find that she has not made a nonfrivolous

allegation that she reasonably believed that this disclosure evidenced a violation

of law or any other form of wrongdoing under 5 U.S.C. § 2302(b)(8). See

Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 11 (2014) (stating

that a bald allegation of wrongdoing without any details is insufficient to

constitute a nonfrivolous allegation of a protected disclosure); see, e.g., Ormond

v. Department of Justice, 118 M.S.P.R. 337, ¶ 11 (2012).

The appellant also identifies letters dated March 11, May 1, and July 14,

2014, that she asserts she sent to the MRMC Commanding General. PFR File,

Tab 1 at 9. We have located and reviewed these letters as well. IAF, Tab 11,

Subtab B at 16-29. These three letters largely pertain to the same workplace

disputes and allegedly unfair criticism as do the other letters described above, as

well as discrimination, reasonable accommodation, and equal employment

opportunity (EEO) matters that, as the administrative judge correctly found,

provide no basis for jurisdiction under the WPA. ID at 4; see Applewhite v.

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

also McCray v. Department of the Army, 2023 MSPB 10, ¶¶ 20-22; Edwards v.

Department of Labor, 2022 MSPB 9, ¶¶ 21-23. However, we find that the

March 11, 2014 letter also contains one allegation of a violation of law that may

have constituted a protected disclosure. Specifically, the appellant alleged that

her supervisor sent a copy of her official personnel record to a contractor. IAF,

Tab 11, Subtab B at 17. Construing this pro se appellant’s claim generously, we

6
find that she made a nonfrivolous allegation that she reasonably believed the

agency violated 5 U.S.C. § 552a(b), which generally prohibits the disclosure of

records such as personnel files without the consent of the person to whom the

records pertain. See Huffman v. Office of Personnel Management, 92 M.S.P.R.

429, ¶ 13 (2002) (“Any doubt or ambiguity as to whether the appellant has made a

nonfrivolous allegation of a reasonable belief should be resolved in favor of” a

finding that jurisdiction exists). Our conclusion is further supported by the report

of an agency investigator who found the appellant’s supervisor did, in fact,

disclose a portion of the appellant’s personnel file to a contractor in violation of

the Privacy Act. IAF, Tab 14 at 40.

Nevertheless, we agree with the administrative judge that the appellant has

not identified any personnel action to which the agency subjected her after

March 11, 2014. ID at 4-6. The administrative judge acknowledged that, after

the Commanding General received her letter, the agency conducted an Army

Regulation 15-6 Investigation. ID at 3. However, as the administrative judge

correctly found, neither the conduct of the investigation nor the report of

investigation constituted “personnel actions” under 5 U.S.C. § 2302(a)(2)(A).3 ID

at 5; see Sistek v. Department of Veterans Affairs, 955 F.3d 948, 955 (Fed. Cir.

2020) (concluding that “retaliatory investigations, in and of themselves, do not

qualify as personnel actions” under the whistleblower protection statutory

scheme). We also find that the appellant did not nonfrivolously allege that the

investigation was pretext for gathering evidence to use to retaliate against her.

3

 The appellant herself requested the investigation. IAF, Tab 11, Subtab B at 22. We

note that the National Defense Authorization Act for Fiscal Year 2018, Pub. L. 115-91,

131 Stat. 1283 (2017), amended 5 U.S.C. § 1214 by adding a provision authorizing the

Special Counsel to petition the Board for damages reasonably incurred during a

retaliatory investigation. 5 U.S.C. § 1214(i). However, this provision did not alter the

definition of “personnel action” under 5 U.S.C. § 2302(a)(2)(A), and in fact preserves

an explicit distinction between investigations and personnel actions. Id.

7
See Sistek, 955 F.3d at 956-57; Mattil v. Department of State, 118 M.S.P.R. 662,

¶ 21 (2012); Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 7 (2007).4

The appellant lists numerous other allegedly retaliatory actions that the

agency took against her, including violating her privacy rights, sabotaging her

EEO complaint, and interfering with her workers’ compensation claim. PFR File,

Tab 1 at 5, 12-28. But the appellant’s arguments and assertions are limited in

terms of the details necessary to determine whether these matters, either alone or

together, could constitute the kind of personnel action covered under the

whistleblower statute. See 5 U.S.C. § 2302(a)(2)(A) (listing covered personnel

actions); see Rebstock v. Department of Homeland Security, 122 M.S.P.R. 661,

¶ 12 (2015) (agreeing with the administrative judge that vague, conclusory, and

unsupported allegations of a personnel action do not satisfy the Board’s

nonfrivolous pleading standard); Godfrey v. Department of the Air Force,

45 M.S.P.R. 298, 202 (1990) (finding that “generalized assertions and fears

unsupported by reference to any specific matter,” are insufficient to establish a

personnel action). In addition, even if we were to assume that the appellant

nonfrivolously alleged that these matters constituted at least one covered

personnel action, the appellant has not explained with sufficient clarity when the

purported personnel actions happened so that we can determine if they occurred

after the appellant’s March 11, 2014 disclosure, and therefore could have been

taken in reprisal for the disclosure. 5 Sherman v. Department of Homeland

Security, 122 M.S.P.R. 644, ¶ 8 (2015) (finding that a disclosure that occurred

4

 In the initial decision, the administrative judge cited to the agency’s evidence in

analyzing whether the investigation constituted a nonfrivolous allegations of a

personnel action. ID at 5. After the issuance of the initial decision, the Federal Circuit

clarified, in Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir.

2020), that “[t]he Board may not deny jurisdiction by crediting the agency’s

interpretation of the evidence as to whether the alleged disclosures fell within the

protected categories or whether the disclosures were a contributing factor to an adverse

personnel action.” To the extent that the administrative judge improperly considered

the agency’s evidence, any such error is harmless. Based on the appellant’s allegations

alone, we find that she has not nonfrivolously alleged that the investigation was a

personnel action.

8
after a personnel action could not have been a contributing factor in the personnel

action); Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27

(2011) (same). 

The appellant also makes several arguments that appear to relate to whether

the agency could prove, by clear and convincing evidence, that it would have

taken personnel actions against her notwithstanding her disclosures. PFR File,

Tab 1 at 2-4, 11-12, 16, 20, 27-29. However, the Board will reach this issue only

after the appellant has established jurisdiction over her appeal and proven her

prima facie case, which, for the reasons explained above and in the initial

decision, she has not. See Schmittling v. Department of the Army, 219 F.3d 1332,

1336-37 (Fed. Cir. 2000); Scoggins v. Department of the Army, 123 M.S.P.R. 592,

¶ 28 (2016).

Finally, the appellant asserts, without explaining, that the 506 pages of

documentation that she submitted with her petition for review were unavailable

before the close of the record below and support her allegations of reprisal. PFR

File, Tab 1 at 2, 6-8, 30-536. As an initial matter, absent a specific explanation

of how any particular portion of this voluminous documentation might affect the

outcome of this appeal, the Board will not pore through all of it in search of an

answer. See Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 10

(2015). Furthermore, to the extent that we have looked over this documentation,

we find that it consists entirely of the appellant’s own written arguments,

documents that predate the initial decision, documents already contained in the

case file, and copies of handbooks, statutes, and regulations. PFR File, Tab 1

at 30-546; see Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 9 (2008)

(determining that evidence predating the close of the record was not shown to

have been previously unavailable), aff’d, 324 F. App’x 883 (Fed. Cir. 2009);

5 The appellant provides several other dates in her petition for review which seem to

correspond to dates on which she alleges that she made disclosures, not the dates on

which she suffered allegedly retaliatory personnel actions. E.g., PFR File, Tab 1 at 5-6,

8-11, 14-15, 23.

9
Borowski v. Department of Agriculture, 40 M.S.P.R. 372, 376 (1989) (finding that

argument does not constitute evidence); Doe v. National Security Agency,

6 M.S.P.R. 555, 559 (1981) (recognizing that copies of statutes and regulations

are not evidence), aff’d sub nom. Stalans v. National Security Agency, 678 F.2d

482 (4th Cir. 1982); Meier v. Department of the Interior, 3 M.S.P.R. 247, 256

(1980) (explaining that evidence that is already a part of the record is not new).

For these reasons, we find that the appellant has not established the existence of

any new and material evidence to provide a basis for granting the petition for

review under 5 C.F.R. § 1201.115(d).

NOTICE OF APPEAL RIGHTS6

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

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

6

 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.

10
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. 

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

11
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

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 

12
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.7 The 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 

7

 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. 

13
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

14