Herman v. DOJ

• Court: Court of Appeals for the Federal Circuit
• Decided: March 16, 2026
• Docket: 24-1502
• Status: Unpublished

Opinion

Case: 24-1502 Document: 78 Page: 1 Filed: 03/16/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

RONALD J. HERMAN, Petitioner

v.

DEPARTMENT OF JUSTICE, Respondent ______________________

2024-1502 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-10-0164-B-5. ______________________

Decided: March 16, 2026 ______________________

DENNIS L. FRIEDMAN, Philadelphia, PA, argued for pe- titioner.

DOUGLAS GLENN EDELSCHICK, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent. Also repre- sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY; COLLEEN BERRY, JOLENE HARCROW, Federal Bureau of Prisons, United States De- partment of Justice, Stockton, CA. ______________________ Case: 24-1502 Document: 78 Page: 2 Filed: 03/16/2026

Before PROST, TARANTO, and STOLL, Circuit Judges. PROST, Circuit Judge. Ronald Herman petitions for review of a decision of the Merit Systems Protection Board (“Board”) denying Mr. Herman’s request for corrective action. For the follow- ing reasons, we affirm. BACKGROUND Mr. Herman served as a Human Resource Manage- ment Examiner at the Bureau of Prisons in Washington, D.C. (“agency”). Mr. Herman filed an individual right of action appeal with the Board in 2009 seeking corrective ac- tion for alleged whistleblowing reprisals. After a series of remands, two evidentiary hearings, and four initial deci- sions, the Board ultimately issued a final decision deter- mining that Mr. Herman failed to establish a prima facie case of whistleblower reprisal. Herman v. DOJ, No. DC- 1221-10-0164-B-5 (M.S.P.B. Dec. 18, 2023); J.A. 1–25. Mr. Herman now petitions for review of the December 18, 2023 final order of the Board. We have jurisdiction un- der 28 U.S.C. § 1295(a)(9). DISCUSSION We must affirm the Board’s decision unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We review Board determinations of law de novo, and findings of fact for substantial evidence. Brenner v. Dep’t of Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021). A prima facie case of whistleblower reprisal requires, in part, preponderant evidence that an aggrieved employee made a protected disclosure under 5 U.S.C. § 2302(b)(8). Case: 24-1502 Document: 78 Page: 3 Filed: 03/16/2026

HERMAN v. DOJ 3

Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999). The statute requires the employee “reasonably believes” the information he is disclosing evidences one of the cate- gories of wrongdoing listed. 5 U.S.C. § 2302(b)(8). Whether the employee had such a “reasonable belief” is a question of fact that we review for substantial evidence. Frederick v. DOJ, 73 F.3d 349, 352 (Fed. Cir. 1996). Mr. Herman first argues that, under the law-of-the- case doctrine, the administrative judge (“AJ”) failed to ad- here to the Board’s prior holding in its 2011 decision that Mr. Herman “made a nonfrivolous allegation that he was the subject of covered personnel actions.” Pet’r’s Br. 14–16 (quoting Herman v. DOJ, 115 M.S.P.R. 386, 390 (2011)); J.A. 56. This argument fails. The law-of-the-case doctrine only applies to issues that “have actually been decided.” Momenta Pharms., Inc. v. Teva Pharms. USA Inc., 809 F.3d 610, 619 (Fed. Cir. 2015). The Board’s 2011 decision did not actually decide the issue of whether Mr. Herman proved the elements of his whistleblower reprisal case by preponderant evidence. Instead, the Board’s 2011 decision concerned whether Mr. Herman made a nonfrivolous allegation sufficient to sur- vive dismissal. That issue is different from whether Mr. Herman provided the preponderant evidence necessary to establish a prima facie case of whistleblower reprisal. Next, as to Mr. Herman’s alleged whistleblower disclo- sure pertaining to a violation of the Privacy Act, Mr. Her- man appears to make fact-based challenges to the Board’s determination that he failed to meet his evidentiary bur- den. Pet’r’s Br. 17. These arguments fail as well. The Board, in its final decision, relied on record evidence in the form of Mr. Herman’s own testimony acknowledging that if the neutrality of an employee in his circumstances were questioned, it would be appropriate to notify the employee’s manager. J.A. 12 (citing J.A. 387 (April 8, 2014 hearing)). Thus, substantial evidence supports the Board’s Case: 24-1502 Document: 78 Page: 4 Filed: 03/16/2026

determination that Mr. Herman did not make a protected disclosure under 5 U.S.C. § 2302(b)(8). Furthermore, Mr. Herman’s arguments as to his own subjective belief of reasonableness do not speak to whether a disinterested ob- server with knowledge would reasonably conclude that a disclosure was protected under 5 U.S.C. § 2302(b)(8). Lachance, 174 F.3d at 1381 (“A purely subjective perspec- tive of an employee is not sufficient . . . .”). Regarding Mr. Herman’s disclosures pertaining to gross mismanagement and abuse of authority, Mr. Herman has not developed any argument in this appeal distinct from his law-of-the-case challenge. Pet’r’s Br. 17–19. As discussed above, the Board’s earlier determination that Mr. Herman made nonfrivolous allegations sufficient to survive dismissal did not preclude later determinations un- der the appropriate evidentiary burden; namely, that Mr. Herman failed to prove, by preponderant evidence, he had a reasonable belief he disclosed: (1) gross mismanagement, J.A. 13; and (2) abuse of authority, J.A. 16. To the extent Mr. Herman argues the Board’s final decision is not sup- ported by substantial evidence, such argument has been forfeited. Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006) (“In order for this court to reach the merits of an issue on appeal, it must be adequately developed.”). CONCLUSION We have considered Mr. Herman’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm. AFFIRMED