UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TERRY BUSSEY, 

 Plaintiff - Appellant, 

v. 

MARK T. ESPER, Secretary of U.S. 

Department of Defense, 

 Defendant - Appellee. 

No. 19-2116 

(D.C. No. 1:16-CV-00906-JCH-LF) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges. 

_________________________________ 

Terry Bussey appeals from the district court’s affirmance of a final decision 

rendered by the Merit Systems Protection Board (MSPB) that itself affirmed 

Bussey’s termination from the Defense Threat Reduction Agency (DTRA). 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 5, 2020

Christopher M. Wolpert 

Clerk of Court
2 

I. Background 

This appeal centers on Bussey’s claim that the DTRA fired him in retaliation 

for his whistleblowing activities. The district court found that he waived any 

argument that informal comments he made to his supervisor and his supervisor’s boss 

about his supervisor’s alleged malfeasance were protected disclosures under 

applicable whistleblower protection laws. On appeal, Bussey claims he did not waive 

the argument. 

Bussey worked for the DTRA as a logistics management specialist. On 

August 15, 2015, Bussey filed a confidential complaint about his supervisor, Paul 

Collins, with the defense department’s inspector general (IG). The complaint alleged 

Collins engaged in widespread wrongdoing and mismanagement. Collins did not find 

out about this complaint until after Bussey’s termination. 

On August 31, 2015, Collins issued Bussey the first of three proposed 

disciplinary actions that culminated with Collins’s November 2015 recommendation 

that the DTRA terminate Bussey due to his “conduct unbecoming a federal employee, 

abusive language towards co-workers, failure to comply with leave procedures, lack 

of candor, and Absence Without Leave.” Aplt. App. Vol. 1 at 87. 

Collins sent the proposals to his boss, Calvin Conger, for decision. Bussey 

sent Conger responses that alluded to a conspiracy against him spearheaded by 

Collins. He outlined several of Collins’s alleged misdeeds, claiming he confronted 

Collins about some of these actions. And he sought equal punishment for Collins, 

arguing that Collins’s “unscrupulous and willful acts of mismanagement, waste, 
3 

fraud, [and] abuse of Tax payer’s dollar[s] are far more critical than any acts 

confronting myself.” Id. at 101. Bussey’s responses also provided excuses for his 

actions but did not contest most of the offending facts as outlined by Collins. 

Conger fired Bussey in January 2016. He noted: “[Y]ou alleged other acts of 

malfeasance on the part of Mr. Collins and others at DTRA. While I take these 

allegations seriously and will look into those allegations, I do not find them relevant 

to the misconduct that is alleged in the proposal memorandum and the allegations do 

not mitigate your own misconduct.” Id. at 103. Conger did not know about the IG 

complaint Bussey had filed. 

Bussey appealed his termination to the MSPB, claiming that it lacked factual 

support and stemmed from (1) race, color, and age discrimination, (2) retaliation for 

filing a prior equal opportunity employment (EEO) complaint and testifying in 

support of a former employee at a prior MSPB hearing, and (3) and reprisal for 

protected disclosures in violation of 5 U.S.C. § 2302.1

 With regard to his protected 

disclosures claim, the administrative law judge (ALJ) handling Bussey’s appeal 

directed Bussey to “identify any and all protected disclosures . . . alleg[ed] to have 

contributed to the agency’s action removing him” and warned Bussey that “any 

disclosures not clearly identified . . . will be deemed waived.” Id. Vol. 2 at 262. 

Bussey’s response identified only the IG complaint as his protected disclosure and 

1

 Subject to exceptions not relevant here, the statute bars government 

employers from firing employees for disclosing “any violation of any law, rule, or 

regulation,” “gross mismanagement, a gross waste of funds, [or] an abuse of 

authority,” among other things. 5 U.S.C. § 2302(b)(8)(A)(i)–(ii). 
4 

argued that “[f]ollowing his submission of this ‘whistleblower’ memorandum, the 

acts of retaliation and reprisal . . . took place, culminating in [Bussey’s] removal.” 

Id. at 277. 

The ALJ then issued a notice to inform the parties what information he 

expected them to include in their prehearing submissions and of his understanding of 

Bussey’s affirmative defenses. In it, the ALJ noted that “the only affirmative 

defenses [he was] aware of” were Bussey’s “claims of EEO discrimination and 

reprisal, reprisal for making a report to the [IG], and reprisal for testifying at a Board 

hearing.” Id. at 281 (emphasis omitted). The ALJ informed the parties that “[a]ny 

additions, corrections, or objections to this notice must [b]e received by February 26, 

2016[,] or be deemed waived.” Id. at 280. Bussey did not file any additions, 

corrections, or objections to the notice. 

Following the prehearing conference, the ALJ issued an order defining the 

scope of the evidentiary hearing. He again listed “reprisal for making a report to the 

[IG] on August 15, 2015,” as one of Bussey’s affirmative defenses but did not make 

mention of any reprisal for Bussey’s other complaints about Collins. Aplee. Suppl. 

App. at 13. He clarified that the affirmative defenses he identified would be “the 

affirmative defenses to which the hearing will be limited.” Id. (emphasis omitted). 

And he told the parties that “[a]ny additions, corrections, or objections to this order 

and summary must be received by March 4, 2016, or be deemed waived.” Id. at 10. 

Bussey did not file any additions, corrections, or objections to the order. 
5 

The MSPB found that neither Collins nor Conger knew about the IG complaint 

before Bussey’s termination. The MSPB therefore rejected Bussey’s whistleblower 

claim along with his other claims. 

Bussey filed a complaint in the district court challenging the MSPB’s ruling.2

 

There he argued for the first time that the DTRA fired him in retaliation for his 

informal comments to Collins accusing him of misdeeds and for reporting Collins’s 

malfeasance to Conger. The district court found that Bussey waived this argument 

since he never raised it to the MSPB. The court went on to affirm the MSPB’s 

decision on Bussey’s whistleblower retaliation claim because substantial evidence 

supported the MSPB’s finding that neither Collins nor Conger knew about the IG 

complaint before firing Bussey. This appeal followed. 

II. Discussion 

 “A MSPB decision must be upheld unless the reviewing court determines that 

it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law; (2) obtained without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” Williams v. Rice, 

983 F.2d 177, 180 (10th Cir. 1993) (quoting 5 U.S.C. § 7703(c)). 

2

 “Review of a MSPB determination which does not involve claims of 

unlawful discrimination is conducted by the United States Court of Appeals for the 

Federal Circuit.” Coffman v. Glickman, 328 F.3d 619, 621 (10th Cir. 2003). 

“However, when an appeal to the MSPB involves claims of unlawful discrimination 

related to or stemming from the employment action, it is considered a ‘mixed’ 

appeal.” Id. (quoting 29 C.F.R. § 1614.302(a)(1)). “Review of MSPB 

determinations in ‘mixed’ cases lies solely in a district court.” Id. at 621–22. 
6 

Bussey first argues that in rejecting his whistleblower claim, the MSPB erred 

by failing to consider evidence he made protected disclosures to Collins and Conger. 

Yet Bussey concedes that before the MSPB, he “only submitted his report to the IG 

as his protected disclosure with regard to [his whistleblower] claim.” Aplt. Br. at 

10–11. Because Bussey did not argue to the MSPB that any disclosures beyond those 

made to the IG warranted application of whistleblower protection laws, we decline to 

review his claim of error. See, e.g., Sistek v. Dep’t of Veterans Affairs, 955 F.3d 948, 

953 n.1 (Fed. Cir. 2020) (“A party in an MSPB proceeding must raise an issue before 

the administrative judge if the issue is to be preserved for review in this court.” 

(internal quotation marks omitted)); Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 

(10th Cir. 2010) (“It is a fundamental principle of administrative law that an agency 

must have the opportunity to rule on a challenger’s arguments before the challenger 

may bring those arguments to court.”); Micheli v. Dir., Office of Workers’ Comp. 

Programs, 846 F.2d 632, 635 (10th Cir. 1988) (“[A] reviewing court will refuse to 

consider contentions not presented before the administrative proceeding at the 

appropriate time.” (internal quotation marks omitted)). 

 Bussey next argues the MSPB erred by finding that he waived his argument 

that Conger fired him in retaliation for his comments to and about Collins. But since 

Bussey never raised this argument, the MSPB never made any ruling on it—including 

finding that Bussey waived it. To the extent Bussey is arguing that the MSPB lacked 

legal authority to narrow the issues to those raised by the parties, we reject this 

argument. See 5 C.F.R. § 1201.24(b) (“An appellant may raise a claim or defense not 
7 

included in the appeal at any time before the end of the conference(s) held to define 

the issues in the case. An appellant may not raise a new claim or defense after that 

time, except for good cause shown.”); Stearn v. Dep’t of the Navy, 280 F.3d 1376, 

1381 (Fed. Cir. 2002) (holding MSPB erred by reaching an issue sua sponte that a 

party “failed to affirmatively plead, and thus waived”). 

III. Conclusion 

We affirm the district court’s final judgment dismissing Bussey’s claims. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge