NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOSE E. ROSARIO-FÁBREGAS,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2023-2170

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-0752-18-0221-I-1.

______________________ 

Decided: April 9, 2024

______________________ 

JOSE EVARISTO ROSARIO-FABREGAS, San Juan, PR, pro 

se.

 BRITTNEY M. WELCH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. 

______________________ 

Before DYK, MAYER, and TARANTO, Circuit Judges.

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2 ROSARIO-FÁBREGAS v. ARMY

PER CURIAM. 

In 2018, José Rosario-Fábregas was removed from his 

position as a Biologist (Project Manager) with the United 

States Army Corps of Engineers (Army or agency) based on 

charges of absence without leave (AWOL), excessive absence, and insubordination. Supplemental Appendix 

(SAppx)225–26. Mr. Rosario-Fábregas appealed the 

agency’s removal decision to the Merit Systems Protection 

Board. SAppx232–37. The assigned administrative judge 

issued an initial decision, which sustained the AWOL and 

excessive-absence charges but not the insubordination 

charge, and which sustained the removal penalty. 

SAppx37–64. The full Board, on Mr. Rosario-Fábregas’s 

petition and the agency’s cross-petition in turn, sustained 

the insubordination charge and affirmed the penalty of removal on that basis, thus finding no need to reach a decision on the AWOL and excessive-absence charges. 

SAppx1–31, Rosario-Fábregas v. Department of the Army, 

No. NY-0752-18-0221-I-1, 2023 WL 4034398 (M.S.P.B. 

June 15, 2023) (Final Order). 

On Mr. Rosario-Fábregas’s appeal, we reject all but one 

of his challenges to the Board’s decision. The exception 

concerns the application of a provision of the Whistleblower 

Protection Act, 5 U.S.C. § 2302(b)(13). On that issue, we 

see deficiencies in the Board’s analysis and a need for fuller 

consideration before a sound conclusion about the application of § 2302(b)(13) here can be reached. We therefore vacate the Board’s decision insofar as it found no violation of 

§ 2302(b)(13) and remand for further proceedings, which 

may include the § 2302(b)(13) issue and the AWOL and excessive-absence issues the Board did not resolve. 

I 

The appeal before us relates to the third removal action 

taken by the Army against Mr. Rosario-Fábregas. See Final Order, 2023 WL 4034398, at *1–3. The agency first removed Mr. Rosario-Fábregas for misconduct in February 

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ROSARIO-FÁBREGAS v. ARMY 3

2010, but he was restored to the Army’s employment rolls 

in November 2011 after the Board reversed the removal on 

due-process grounds. Id. at *1; Rosario-Fábregas v. Department of the Army, No. NY-0752-10-0127-I-1, 2011 WL 

12516590, at *1–3 (M.S.P.B. Nov. 30, 2011). Upon his reinstatement, however, Mr. Rosario-Fábregas did not actually resume work due to disagreement over whether 

medical professionals had properly cleared him (i.e., given 

him a proper medical release) to resume work. Final Order, 2023 WL 4034398, at *1. In February 2013, the agency 

again removed Mr. Rosario-Fábregas based on the same 

charges as the first removal action. Id. In July 2016, however, the Board, while sustaining several of the charges, 

reduced the penalty of removal to a 30-day suspension. Id.; 

see generally Rosario-Fábregas v. Department of the Army, 

No. NY-0752-13-0142-I-2, 2016 WL 3574965 (M.S.P.B. 

July 1, 2016).

After that Board decision, the parties agreed that Mr. 

Rosario-Fábregas would serve the 30-day suspension and 

return to work on September 6, 2016. Final Order, 2023 

WL 4034398, at *2. Nevertheless, from September 2016 

through June 2017, Mr. Rosario-Fábregas repeatedly failed 

to submit a medical release required for his return to work, 

and he sought and obtained sick and annual leave. 

SAppx104–22; see also SAppx123–27. On June 22, 2017, 

having exhausted his balance of accrued leave, Mr. Rosario-Fábregas requested advanced leave, i.e., leave to 

which he had not yet earned an entitlement. SAppx134–

36. His supervisor, Ms. White, denied the request and 

warned him that if he neither reported for duty nor provided a medical release by July 5, 2017, he would be 

marked AWOL. SAppx133. He failed to submit a medical 

release or report for duty by July 5, 2017, and the Army 

thus placed him in AWOL status. SAppx137. On August 

22, 2017, Ms. White proposed his removal based on charges 

of AWOL and excessive absence. SAppx146–54. 

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4 ROSARIO-FÁBREGAS v. ARMY

Meanwhile, on June 15, 2017, one of Mr. RosarioFábregas’s former supervisors had sent an email to Ms. 

White and an agency attorney alleging that Mr. RosarioFábregas had been sending him harassing emails. 

SAppx160. In the email, the former supervisor copied the 

text of a “recent email” from Mr. Rosario-Fábregas and requested a “plan of action to cease this harassment[] once 

and for all.” SAppx160. Later the same day, Ms. White 

responded by sending Mr. Rosario-Fábregas an email “directing that [he] cease all contact with [his former supervisor] at work” and that, if he needed to speak with the 

former supervisor “for any official purposes,” he “send the 

communication through [Ms. White.]” SAppx128. 

On August 24, 2017, Mr. Rosario-Fábregas sent a

mass-distribution email suggesting that promotions of various agency employees, including two specifically named 

employees, were illegal and offering to “represent” employees “against irresponsible managers.” SAppx129–30. 

Later that day, Ms. White sent Mr. Rosario-Fábregas an 

email “directing that [he] not send district wide, regulatory 

wide, or any other email blasts to Corps employees without 

[her] approval.” SAppx129. On September 1, 2017, Mr. 

Rosario-Fábregas sent another mass-distribution email, 

using lists that included his former supervisor, as well another email to his former supervisor and one other individual, without sending the communication through Ms. 

White. SAppx131–32, 163–65. In a response the same day, 

Ms. White informed Mr. Rosario-Fábregas that his massdistribution email violated her previous instruction and

clarified that her orders did not limit him from exercising 

his rights to contact the Army Inspector General, Civilian 

Personnel Advisory Center, Office of Counsel, Equal Employment Opportunity office, or the deciding official in the 

removal proposal. SAppx131.

Based on the foregoing events, on October 11, 2017, Ms. 

White rescinded the pending removal proposal and issued 

a new one that included three charges: AWOL, excessive 

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ROSARIO-FÁBREGAS v. ARMY 5

absence, and insubordination. SAppx167, 168–84. The 

agency’s insubordination charge included two specifications—the first based on Ms. White’s order to cease communication with his former supervisor, the second based 

on Ms. White’s order to cease sending mass emails without

prior approval. SAppx181–82. The agency took some time 

to act on the new removal proposal. In May 2018, while it 

was still pending, the agency notified Mr. Rosario-Fábregas that the deciding official had been changed (the initial 

deciding official had retired) and that he could reply to the 

notice and could include documentary evidence in support 

of his reply if desired. SAppx198. Mr. Rosario-Fábregas

submitted, and the new deciding official reviewed, a memorandum and several emails submitted in reply. 

SAppx205, 206. Finally, on August 23, 2018, the new deciding official upheld all three charges and removed Mr. 

Rosario-Fábregas effective the next day. SAppx225–26.

In September 2018, Mr. Rosario-Fábregas appealed the 

agency’s removal decision to the Merit Systems Protection 

Board. SAppx232–37. The administrative judge’s initial 

decision sustained the AWOL and excessive-absence

charges and on that basis upheld the penalty of removal. 

SAppx37–64. The administrative judge did not sustain the 

insubordination charge, concluding that Ms. White’s orders 

to him about his emailing activity were overbroad because 

they went beyond “false or offensive statements.” 

SAppx52. 

Mr. Rosario-Fábregas petitioned for review by the full 

Board, and the agency cross-petitioned regarding the insubordination charge. In its final order, the Board determined that the administrative judge should have sustained 

the insubordination charge. The Board first determined 

that Ms. White’s orders were not improper under one provision of the Whistleblower Protection Act, 5 U.S.C. 

§ 2302(b)(8), because they had not been motivated by prior 

protected disclosures. Final Order, 2023 WL 4034398, at 

*5 (distinguishing Smith v General Services 

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6 ROSARIO-FÁBREGAS v. ARMY

Administration, 930 F.3d 1359, 1366 n.2 (Fed. Cir. 2019), 

which characterized a supervisor’s communication restriction as a potential violation of § 2302(b)(8)). It then 

determined that Ms. White’s orders were not improper under a second provision of the statute, 5 U.S.C. 

§ 2302(b)(13), because they did not seek to prevent disclosures, were not overbroad, did not curtail Mr. RosarioFábregas’s ability to contact other employees, and were 

narrowly tailored to concerns raised by his prior emails. Id. 

The Board also determined that Mr. Rosario-Fábregas had

intentionally defied Ms. White’s orders. Id. at *6–7. The 

Board declined to rule on the AWOL and excessive-absence 

charges because it found the insubordination charge sufficed to support removal. Id. at *7–8, *12–13. The Board 

also found that Mr. Rosario-Fábregas had failed to prove 

any affirmative defenses, including whistleblower reprisal

under 5 U.S.C § 2302(b)(8), id. at *8–11, and that he had 

not shown that his removal was the product of a harmful 

procedural error or due process violation, id. at *12. Accordingly, the Board affirmed the penalty of removal. Id.

at *1, *13. 

The Board issued its final order on June 15, 2023, and 

Mr. Rosario-Fábregas timely filed his appeal on July 17, 

2023. We have jurisdiction under 28 U.S.C. § 1295(a)(9) 

and 5 U.S.C. § 7703(b)(1)(A).

II

We will affirm the Board’s decision unless 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.” 5 U.S.C. 

§ 7703(c). Substantial evidence is “such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.” McLaughlin v. Office of Personnel Management, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 

Case: 23-2170 Document: 23 Page: 6 Filed: 04/09/2024
ROSARIO-FÁBREGAS v. ARMY 7

933 (Fed. Cir. 1984)). “The petitioner bears the burden of 

establishing error in the Board’s decision.” Harris v. Department of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 

1998).

In the present appeal, Mr. Rosario-Fábregas’s arguments fall into three classes. First, he asserts that the 

Board made several factual and legal errors in sustaining 

the insubordination charge and, relatedly, rejecting his affirmative defense of whistleblower reprisal. Second, he 

challenges the appropriateness of the removal penalty. 

Third, he asserts that the Board and agency committed 

miscellaneous procedural errors during the proceedings. 

We find error in only one respect—concerning one of his 

challenges in the first class, addressing the propriety of the 

orders underlying the insubordination charge.

A 

Insubordination is “a willful and intentional refusal . . . 

to obey an authorized order of a superior officer which the 

officer is entitled to have obeyed.” Phillips v. General Services Administration, 878 F.2d 370, 373 (Fed. Cir. 1989) 

(emphasis omitted). Mr. Rosario-Fábregas does not argue 

before this court (and did not argue before the Board, see

Final Order, 2023 WL 4034398, at *6) that his failure to 

comply with Ms. White’s orders was unintentional. He 

does allege that the Board made several specific errors not 

tied to his arguments based on the whistleblower statute

and two types of error that do involve the whistleblower 

statute. We address these in turn.

1

We begin by considering, and rejecting, several arguments raised by Mr. Rosario-Fábregas that are related to 

the insubordination charge but not focused on the whistleblower statute. First, Mr. Rosario-Fábregas challenges the 

authenticity of the allegedly harassing emails, stating that 

because his former supervisor copied-and-pasted the text 

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8 ROSARIO-FÁBREGAS v. ARMY

of his allegedly harassing email, “it cannot be certainly 

known” if he was the “legitimate author” of the emails. 

Pet’r Inf. Br. at 2. But Mr. Rosario-Fábregas points to no 

place in his Board submissions where he denied sending 

the emails; instead, he had claimed that he was exercising 

his right to free speech.1 See Final Order, 2023 WL 

4034398, at *3, *6. Particularly as this allegation would 

require credibility determinations that have not been addressed in the first instance, we decline to consider this 

new argument on appeal. See Harris v. Securities & Exchange Commission, 972 F.3d 1307, 1320 n.7 (Fed. Cir. 

2020); see also Bieber v. Department of the Army, 287 F.3d 

1358, 1364 (Fed. Cir. 2002).

Mr. Rosario-Fábregas further argues that the Board 

failed to consider whether his emails to his former supervisor constituted harassment under the definitions provided 

by 18 U.S.C. § 1514(d)(1)(B) (addressing witness harassment) and the Equal Employment Opportunity Commission website (concerning discrimination). The

insubordination charge, however, does not turn on whether 

the emails qualified as harassment for the cited different 

legal purposes. Ms. White’s orders were only required to 

be lawful and “authorized.” Phillips, 878 F.2d at 373; see 

also Webster v. Department of the Army, 911 F.2d 679, 685 

(Fed. Cir. 1990) (upholding a charge of insubordination 

where the petitioner “violated a lawful instruction, without 

lawful excuse”). Mr. Rosario-Fábregas adds that the 

agency failed to follow procedures to investigate and document the alleged harassment outlined in a United States 

1 Mr. Rosario-Fábregas in this court does not challenge, and we need not address the merits of, the Board’s 

ruling that the orders Ms. White issued in this case were 

consistent with the freedom-of-speech guarantee of the 

First Amendment to the U.S. Constitution. See Final Order, 2023 WL 4034398, at *6 n.10. 

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ROSARIO-FÁBREGAS v. ARMY 9

Army Training and Doctrine Command Policy Letter. But

he has not shown that the procedural requirements for 

those separate governmental actions apply here.

Finally, Mr. Rosario-Fábregas argues that the Board 

erred in failing to consider whether the agency provoked 

his insubordination. He argues that a “provoked insubordination doctrine” applies where an employer engages in 

conduct to induce an employee’s insubordination to create 

an excuse for firing the employee. Pet’r Inf. Br. at 3; see, 

e.g., National Labor Relations Board v. Southwestern Bell 

Telephone Co., 694 F.2d 974, 978 (5th Cir. 1982) (“[A]n employer may not rely on employee conduct that it has unlawfully provoked as a basis for disciplining an employee.”). 

But Mr. Rosario-Fábregas did not raise this provoked-insubordination argument before the Board, so it is forfeited. 

See Harris, 972 F.3d at 1320 n.7. Even considering this 

argument on the merits, moreover, Mr. Rosario-Fábregas

fails to show unlawful provocation: Ms. White’s orders were 

prompted by Mr. Rosario-Fábregas’s own emails. See

SAppx128, 129, 160.

2 

We next consider Mr. Rosario-Fábregas’s argument

based on whistleblower reprisal under 5 U.S.C. 

§ 2302(b)(8)—which the Board discussed chiefly in considering his affirmative defense of whistleblower reprisal, Final Order, 2023 WL 4034398, at *10–11. A finding of 

whistleblower reprisal against an employee requires that 

the agency took a “personnel action” “because of” a specified “disclosure” made by the employee. 5 U.S.C. 

§ 2302(b)(8). Under 5 U.S.C. § 2302(a)(2)(A)(xi), “personnel action[s]” include “the implementation or enforcement 

of any nondisclosure policy, form, or agreement.” Under 5 

U.S.C. § 2302(b)(8)(A), as relevant to this case, what is protected is “any disclosure of information by an employee . . . 

which the employee . . . reasonably believes evidences (i) a 

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

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10 ROSARIO-FÁBREGAS v. ARMY

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

health or safety.” See also 5 U.S.C. § 2302(a)(2)(D) (“‘[D]isclosure’ 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—(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 or safety.”).

Mr. Rosario-Fábregas relies on this court’s decision in

Smith v. General Services Administration to support his 

claim that Ms. White’s instructions limiting his communications constituted a personnel action prohibited by 

§ 2302(b)(8). 930 F.3d at 1366 & n.2. But one necessary 

requirement for Mr. Rosario-Fábregas to prevail on this

ground here is that the supervisor’s orders he complains of 

(as a prohibited personnel action) were a response to protected disclosures of his. And we see no reversible error in 

the Board’s conclusion that this case, unlike Smith, does 

not involve a communication restriction motivated by an 

employee’s prior communications that were disclosures 

protected under § 2302(b)(8). Final Order, 2023 WL 

4034398, at *5.

Before the Board and on appeal before this court, Mr. 

Rosario-Fábregas argued that his emails were protected 

disclosures because they disclosed information that he reasonably believed evidenced abuses of authority in the 

agency’s hiring and promotion processes. See Final Order, 

2023 WL 4034398, at *10–11; Pet’r Inf. Br. at 5–9; Pet’r 

Reply Br. at 12–14. Specifically, he appears to allege that

his emails disclosed (1) that the agency abused its authority by allowing high-level officials accused of misconduct to 

separate from the federal service with “clean records” and 

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ROSARIO-FÁBREGAS v. ARMY 11

(2) that the agency was discriminating against Hispanics. 

See Final Order, 2023 WL 4034398, at *11. 

As to the first charge: The Board found that of the two 

specific high-level officials named by Mr. Rosario-Fábregas

in his email, one did not separate from the service, and both 

in fact had formal action taken against them (a letter of 

reprimand and a notice of proposed removal), and that 

there was no basis for an objectively reasonable belief of 

the asserted wrongdoing. Id.; see SAppx97–99, 129; 

Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)

(explaining that the proper test for whether an individual

holds a “reasonable belief” is whether “a disinterested observer with knowledge of the essential facts known to and 

readily ascertainable by the employee [could] reasonably 

conclude that the actions of the government evidence” one 

of the categories of wrongdoing). Mr. Rosario-Fábregas

does not show on appeal that he was unaware of (or could 

not have known of) these circumstances when he sent the 

emails at issue or that the material Board factual findings 

should be set aside. As to the second charge, the Board

determined that Mr. Rosario-Fábregas’s allegations about 

discrimination were not protected for two independent reasons: They were too vague, and Title VII-related claims are 

excluded from protection under the Whistleblower Protection Act. Final Order, 2023 WL 4034398, at *11. We discern no error in the Board’s determination that these 

disclosures were also not protected. See Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001) 

(requiring specificity to establish a protected disclosure); 

Young v. Merit Systems Protection Board, 961 F.3d 1323, 

1327–28 (Fed. Cir. 2020) (discussing discrimination claims

in individual-right-of-action appeals).

We thus see no reversible error in the Board’s determination that Mr. Rosario-Fábregas had not established an 

affirmative defense under 5 U.S.C. § 2308(b)(8).

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12 ROSARIO-FÁBREGAS v. ARMY

3 

Finally, we turn to Mr. Rosario-Fábregas’s argument 

that Ms. White’s orders were improperly broad. As noted 

by the Board, an agency charging an employee with insubordination must show that the instructions were “proper.” 

Final Order, 2023 WL 4034398, at *5 (citing Hamilton v. 

U.S. Postal Service, 71 M.S.P.R. 547, 555–56 (1996)); see 

also Phillips, 878 F.2d at 373. The Board accepted that if 

Ms. White’s instructions were contrary to the whistleblower statute, the orders may have been improper, and so 

it considered whether the instructions violated either 5 

U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(13)—addressing 

the first chiefly when discussing Mr. Rosario-Fábregas’s affirmative defense, and the second when discussing the 

agency’s charge of insubordination. It determined that Ms. 

White’s orders violated neither provision. We see no error 

in the Board’s determination that Ms. White’s orders were 

not contrary to § 2302(b)(8) for the same reason we have 

upheld the Board’s rejection of the affirmative defense on 

this issue; on this record, any difference in burdens of proof 

makes no difference. We conclude, however, that the 

Board’s analysis of whether Ms. White’s orders were contrary to § 2302(b)(13) was deficient, and we thus vacate the 

Board’s decision and remand the case for further proceedings.

Under § 2308(b)(13), it is a prohibited personnel practice to “implement or enforce any nondisclosure policy, 

form, or agreement” unless it contains statutorily specified 

language regarding whistleblower protections and does not 

“prohibit[] or restrict[]” disclosures to certain entities (e.g., 

Congress and the Inspector General of the agency). 5 

U.S.C. § 2308(b)(13).2 The Board in the present matter 

2 Section 2302(b) begins “[a]ny employee who has authority to take, direct others to take, recommend, or 

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ROSARIO-FÁBREGAS v. ARMY 13

approve any personnel action, shall not, with respect to 

such authority—,” and paragraph (13) reads:

(13) implement or enforce any nondisclosure policy, 

form, or agreement, if such policy, form, or agreement— 

(A) does not contain the following statement: 

“These provisions are consistent with and do not 

supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by 

existing statute or Executive order relating to (1) 

classified information, (2) communications to Congress, (3) the reporting to an Inspector General or 

the Office of Special Counsel of a violation of any 

law, rule, or regulation, or mismanagement, a 

gross waste of funds, an abuse of authority, or a 

substantial and specific danger to public health or 

safety, or (4) any other whistleblower protection. 

The definitions, requirements, obligations, rights, 

sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; 

or 

(B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, 

the Special Counsel, the Inspector General of an 

agency, or any other agency component responsible 

for internal investigation or review any information that relates to any violation of any law, 

rule, or regulation, or mismanagement, a gross 

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

or any other whistleblower protection . . . . 

5 U.S.C. § 2302(b)(13).

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14 ROSARIO-FÁBREGAS v. ARMY

explicitly noted that it was “not decid[ing] here whether an 

instruction is a policy, form, or agreement within the meaning of 5 U.S.C. § 2302(b)(13).” Final Order, 2023 WL 

4034398, at *5 n.8. The Board ultimately determined that 

Ms. White’s orders were not unlawful nondisclosure instructions covered by § 2302(b)(13) because the orders “did 

not seek to prevent disclosures,” “did not curtail the appellant’s ability to contact individuals within or outside his 

chain of command,” and “were narrowly tailored to concerns raised by his prior emails.” Id. at *5. We conclude 

that the Board’s analysis of this issue was inadequate, and 

we think it advisable not to resolve the issue here in the 

first instance, but to highlight omissions from and other 

difficulties with the Board’s decision and to remand to the 

Board for a fuller analysis (if necessary). 

The Board distinguished this case from Smith on the 

ground that the “the instruction at issue [in Smith] was a 

nondisclosure instruction,” because “the instruction at issue [there] was motivated by the employee’s prior protected 

disclosures,” whereas Ms. White’s instructions were not. 

Id. That reasoning, like the Board’s reference to what the 

agency was “seek[ing] to” do, id., rests on the premise that 

§ 2302(b)(13) is limited to implementation or enforcement 

of policies, forms, or agreements that are so motivated. The 

Board, however, did not justify that implicit premise. 

Nothing in § 2302(b)(13)’s language indicates that its reach 

depends on the agency’s motivation in adopting, implementing, or enforcing “any nondisclosure policy, form, or 

agreement.” 5 U.S.C. § 2302(b)(13) (emphasis added). 

It may be that the scope of § 2302(b)(13) is dependent 

on the statutory definition of “disclosure,” 5 U.S.C. 

§ 2302(a)(2)(D) (quoted supra), but that definition is not 

about the agency’s motivation. And the Board did not discuss that definition or explain how it would bear on the 

scope of § 2302(b)(13), either generally or here—where Ms. 

White’s orders are not on their face limited to “disclosure[s]” under the statutory definition. The Board also 

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cited no authority on the scope of § 2302(b)(13), citing only 

Smith and several paragraphs of two Board decisions, none 

of which address the provision.

Similarly, nothing in the statutory provision states 

that its restrictions do not apply if communication restrictions are justified or “narrowly tailored” to address 

specific concerns. Final Order, 2023 WL 4034398, at *5. 

Nor is there anything in the text of § 2302(b)(13) that 

would exclude Ms. White’s broad orders—which restricted 

Mr. Rosario-Fábregas from “send[ing] district wide, regulatory wide, or any other email blasts to Corps employees

without [her] approval,” SAppx129 (emphasis added)—

simply because they did not curtail Mr. Rosario-Fábregas’s 

ability to contact certain classes or types of recipients (e.g., 

certain officials, or individuals by individual emails). The 

Board also did not address the relevance, if any, of the use 

of government email lists. Further, the Board did not find 

that Ms. White’s orders included the specific language required by § 2302(b)(13)(A) regarding Mr. Rosario-Fábregas’s right to make protected disclosures or fell short of

“prohibit[ing] or restrict[ing]” his ability to make disclosures to the statutorily specified entities. See 5 U.S.C. 

§ 2302(b)(13). Although Ms. White clarified that her orders 

did not limit Mr. Rosario-Fábregas’s ability to contact various entities and individuals (e.g., the Army Inspector General, the deciding official in his removal action), her initial 

instructions contained no language affirming Mr. RosarioFábregas’s continued right to make protected disclosures, 

and even her later clarification did not include the statutorily required language. See SAppx131; 5 U.S.C. 

§ 2302(b)(13)(A). 

The Board declined to answer the basic question 

whether Ms. White’s instructions (to Mr. Rosario-Fábregas 

alone, not to other employees, as far as has been shown) 

implemented or enforced a “policy, form, or agreement” 

within the meaning of § 2302(b)(13). Final Order, 2023 WL 

4034398, at *5 n.8. We do not answer that question here. 

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16 ROSARIO-FÁBREGAS v. ARMY

We note, however, that the language of § 2302(b)(13) (“implement or enforce any nondisclosure policy, form, or agreement”) is nearly identical to that of § 2302(a)(2)(A)(xi) (“the 

implementation or enforcement of any nondisclosure policy, form, or agreement”), and in Smith, discussing the latter provision in a footnote addressed to § 2302(b)(8), we

stated that “[t]he agency’s order that any communication 

that Mr. Smith wished to transmit to managers outside of 

the group must be approved by a supervisor was a nondisclosure policy that restricted Mr. Smith’s ability to make 

such communications.” 930 F.3d at 1366 n.2. The significance of that conclusion requires consideration as part of 

an analysis not yet conducted by the Board of the proper 

interpretation of § 2302(b)(13), in light of other relevant 

parts of § 2302. See also Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, §§ 102, 104(a), 

(b), 126 Stat. 1465, 1466–67 (adding § 2302(a)(2)(D), 

(a)(2)(A)(xi), (b)(13)); S. Rep. No. 111-101, at 15–16 (2011); 

S. Rep. No. 112-155, at 16–17 (2012).

Because we conclude that the Board did not adequately 

consider whether Ms. White’s instructions were proper as 

lawful under § 2302(b)(13), we vacate the Board’s decision

and remand the matter. On remand, the Board might decide to rule dispositively on the AWOL and excessive-absence charges in such a way as to make the insubordination 

charge, and hence the resolution of the § 2302(b)(13) issue,

immaterial to the outcome—a possibility we merely flag, 

without exploring whether that outcome (which would require fresh consideration of the appropriate penalty) could 

soundly be reached. But if the insubordination charge is 

adjudicated again, the § 2302(b)(13) issue requires fuller 

discussion than yet appears. 

B 

We discuss Mr. Rosario-Fábregas’s arguments on appeal related to whether the Board erred in sustaining the 

penalty of removal, despite our vacating of the Board’s 

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ROSARIO-FÁBREGAS v. ARMY 17

upholding of the insubordination charge, because the discussion may have relevance to the proceedings on remand. 

First, Mr. Rosario-Fábregas argues that, in determining 

the appropriateness of removal as a penalty, the deciding 

official did not thoroughly enough consider the factors outlined in Douglas v. Veterans Administration, 5 M.S.P.R. 

280, 305–06 (1981), specifically the agency’s table of penalties and mitigating circumstances. The deciding official

did, however, complete a checklist outlining his considerations under each Douglas factor. SAppx223–24. In this 

checklist, the deciding official expressly noted that, according to the Army Table of Penalties, the insubordination 

charge alone would justify removal. SAppx223. And the 

deciding official identified Mr. Rosario-Fábregas’s documented mental and emotional distress and his 29 years of 

federal service as mitigating factors. SAppx223–24. Mr. 

Rosario-Fábregas alleges that the deciding office should 

have considered “[u]nusual job tensions, provocations, harassment, mental impairment, [and] bad faith [on] the part 

of others involved in the matters” and his service medals

as mitigating circumstances. Pet’r Inf. Br. at 28; Pet’r Reply Br. at 5. But he does not point to where he raised these 

allegedly mitigating circumstances before the agency or the 

Board, and thus the failure of either to consider them does 

not constitute reversible error. See Yeschick v. Department 

of Transportation, F.A.A., 801 F.2d 383, 385 (Fed. Cir. 

1986); Final Order, 2023 WL 4034398, at *13 (showing that 

Mr. Rosario-Fábregas argued only about his past service 

and disabilities as mitigating factors before the Board). 

Mr. Rosario-Fábregas also argues that the Board failed 

to properly consider various facts related to disparate 

treatment, specifically, (1) that he was treated more 

harshly than several supervisors and (2) that, under Army 

regulations, supervisors are held to higher standards than 

non-supervisory employees (like him). But where an employee raises an allegation of disparate penalties, “the employee must show ‘that the charges and the circumstances 

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18 ROSARIO-FÁBREGAS v. ARMY

surrounding the charged behavior are substantially similar,’ which includes ‘proof that the proffered comparator 

was in the same work unit, with the same supervisor, and 

was subjected to the same standards governing discipline.’” 

Miskill v. Social Security Administration, 863 F.3d 1379, 

1384 (Fed. Cir. 2017) (quoting Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, 660 (2010)). As Mr. Rosario-Fábregas failed to establish that any employee faced 

similar charges or circumstances, the Board’s failure to address these disparate treatment allegations in its decision 

was not erroneous.

C 

Finally, Mr. Rosario-Fábregas argues that the Board 

and agency made several harmful procedural errors in adjudicating his case. First, he alleges that, because his former supervisor alluded to multiple harassing emails from 

Mr. Rosario-Fábregas but included only the “most recent 

email” in his complaint to Ms. White and the agency attorney, the agency must have relied on evidence not disclosed 

to him in considering the insubordination charge. It is undisputed, however, that Mr. Rosario-Fábregas sent multiple emails to his former supervisor, see SAppx159, 163, 

164, and there is no evidence that the agency, in making 

the insubordination charge, relied on email communications other than those known to him and cited, see

SAppx179–82.

Mr. Rosario-Fábregas also argues that it was procedurally improper for the Board to leave the charges of AWOL 

and excessive absence unadjudicated. The Board concluded, however, that the insubordination charge alone

was sufficient to support the penalty of removal. Final Order, 2023 WL 4034398, at *12–13 (citing a declaration from 

the deciding official noting that any of the charges would 

have supported the decision to remove Mr. Rosario-Fábregas). The Board, like other tribunals, was not obligated to 

address every issue presented, even those which made no 

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ROSARIO-FÁBREGAS v. ARMY 19

difference to the outcome. The Board remains free to consider these charges on remand. 

Next, Mr. Rosario-Fábregas argues that the May 2018

change in the deciding official in his removal action denied 

him his procedural rights. There is no reversible error at 

least where, as here, there is no indication that the initial 

deciding official had reached a conclusion regarding the 

charges or the appropriate penalty. See Villareal v. Bureau 

of Prisons, 901 F.3d 1361, 1365 (Fed. Cir. 2018). Mr. Rosario-Fábregas fails to demonstrate that the substitution

in the deciding official prejudiced him in any specific way. 

He was provided with, and took, the opportunity to submit 

a response to the new deciding official, and the new deciding official reviewed all evidence in the record. See

SAppx205, 206–07, 225–26. Mr. Rosario-Fábregas offers 

no explanation of how the substitution of the deciding official caused the agency to reach a different conclusion. See

5 C.F.R. §§ 1201.56(c)(1), 1201.4(r) (defining reversible 

“harmful error” as an “[e]rror by the agency in the application of its procedures that is likely to have caused the 

agency to reach a conclusion different from the one it would 

have reached in the absence or cure of the error”); Ward v. 

U.S. Postal Service, 634 F.3d 1274, 1281 (Fed. Cir. 2011) 

(explaining that employees bear the “burden to show harmful error in an agency’s procedure in order to establish reversible procedural error”). 

Mr. Rosario-Fábregas argues further that the Board 

erred by failing to consider whether the agency complied 

with Army Regulation 690–700, which, he says, requires 

the Army to provide employees with oral admonishments 

and written warnings before bringing a charge of insubordination. This argument relies on an incorrect characterization of the identified regulation, which, for certain formal 

adverse actions, provides a right to receive advanced written notice, an opportunity to reply, and a written decision, 

not a right to receive oral admonishments or written warnings. Department of the Army, Army Regulation 690–752, 

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20 ROSARIO-FÁBREGAS v. ARMY

Civilian Personnel: Disciplinary and Adverse Actions 5–6 

(2022).3 Mr. Rosario-Fábregas was provided with the required procedural protections. SAppx146–54 (notice of proposed removal); SAppx168–84 (revised notice of proposed 

removal); SAppx48–49 (noting that Mr. Rosario-Fábregas

provided responses to the notices of proposed removal); 

SAppx225–26 (written decision).

III

For the reasons stated, we affirm most of the Board’s 

determinations but vacate the Board’s decision with regard 

to § 2302(b)(13) and remand for further proceedings consistent with this opinion. 

The parties shall bear their own costs.

AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED

3 Since February 2022, the policy from Army Regulation 690–700 has been incorporated into Army Regulation 690–752. 

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