Case: 23-2170 Document: 23 Page: 1 Filed: 04/09/2024
NOTE: This disposition is nonprecedential.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, Wash- ington, DC, for respondent. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. ______________________
Before DYK, MAYER, and TARANTO, Circuit Judges. Case: 23-2170 Document: 23 Page: 2 Filed: 04/09/2024
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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 ab- sence, 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 re- moval on that basis, thus finding no need to reach a deci- sion 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 applica- tion of § 2302(b)(13) here can be reached. We therefore va- cate 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 ex- cessive-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 Fi- nal Order, 2023 WL 4034398, at *1–3. The agency first re- moved Mr. Rosario-Fábregas for misconduct in February Case: 23-2170 Document: 23 Page: 3 Filed: 04/09/2024
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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. De- partment 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 re- instatement, however, Mr. Rosario-Fábregas did not actu- ally 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 Or- der, 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, how- ever, 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. Ro- sario-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 pro- vided 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. Case: 23-2170 Document: 23 Page: 4 Filed: 04/09/2024
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Meanwhile, on June 15, 2017, one of Mr. Rosario- Fábregas’s former supervisors had sent an email to Ms. White and an agency attorney alleging that Mr. Rosario- Fábregas 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 re- quested 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 “di- recting that [he] cease all contact with [his former supervi- sor] 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 var- ious agency employees, including two specifically named employees, were illegal and offering to “represent” employ- ees “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 an- other email to his former supervisor and one other individ- ual, 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 mass- distribution 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 Em- ployment 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 Case: 23-2170 Document: 23 Page: 5 Filed: 04/09/2024
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absence, and insubordination. SAppx167, 168–84. The agency’s insubordination charge included two specifica- tions—the first based on Ms. White’s order to cease com- munication 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-Fábre- gas 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 mem- orandum and several emails submitted in reply. SAppx205, 206. Finally, on August 23, 2018, the new de- ciding 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 in- subordination charge. In its final order, the Board deter- mined that the administrative judge should have sustained the insubordination charge. The Board first determined that Ms. White’s orders were not improper under one pro- vision 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 Case: 23-2170 Document: 23 Page: 6 Filed: 04/09/2024
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Administration, 930 F.3d 1359, 1366 n.2 (Fed. Cir. 2019), which characterized a supervisor’s communication re- striction as a potential violation of § 2302(b)(8)). It then determined that Ms. White’s orders were not improper un- der a second provision of the statute, 5 U.S.C. § 2302(b)(13), because they did not seek to prevent disclo- sures, were not overbroad, did not curtail Mr. Rosario- Fábregas’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 suf- ficed 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. Ac- cordingly, 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) 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). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Office of Personnel Manage- ment, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsu- shita Electric Industrial Co. v. United States, 750 F.2d 927, Case: 23-2170 Document: 23 Page: 7 Filed: 04/09/2024
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933 (Fed. Cir. 1984)). “The petitioner bears the burden of establishing error in the Board’s decision.” Harris v. De- partment of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). In the present appeal, Mr. Rosario-Fábregas’s argu- ments 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 af- firmative 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 Ser- vices 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 argu- ments raised by Mr. Rosario-Fábregas that are related to the insubordination charge but not focused on the whistle- blower statute. First, Mr. Rosario-Fábregas challenges the authenticity of the allegedly harassing emails, stating that because his former supervisor copied-and-pasted the text Case: 23-2170 Document: 23 Page: 8 Filed: 04/09/2024
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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 ad- dressed in the first instance, we decline to consider this new argument on appeal. See Harris v. Securities & Ex- change 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 supervi- sor constituted harassment under the definitions provided by 18 U.S.C. § 1514(d)(1)(B) (addressing witness harass- ment) and the Equal Employment Opportunity Commis- sion 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 docu- ment the alleged harassment outlined in a United States
1 Mr. Rosario-Fábregas in this court does not chal- lenge, 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 Or- der, 2023 WL 4034398, at *6 n.10. Case: 23-2170 Document: 23 Page: 9 Filed: 04/09/2024
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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 insubor- dination 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 em- ployer may not rely on employee conduct that it has unlaw- fully provoked as a basis for disciplining an employee.”). But Mr. Rosario-Fábregas did not raise this provoked-in- subordination 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 consid- ering his affirmative defense of whistleblower reprisal, Fi- nal 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 speci- fied “disclosure” made by the employee. 5 U.S.C. § 2302(b)(8). Under 5 U.S.C. § 2302(a)(2)(A)(xi), “person- nel 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 pro- tected 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 Case: 23-2170 Document: 23 Page: 10 Filed: 04/09/2024
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mismanagement, a gross waste of funds, an abuse of au- thority, or a substantial and specific danger to public health or safety.” See also 5 U.S.C. § 2302(a)(2)(D) (“‘[D]is- closure’ means a formal or informal communication or transmission, but does not include a communication con- cerning policy decisions that lawfully exercise discretion- ary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evi- dences—(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 communi- cations 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 pro- tected 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 rea- sonably 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 author- ity by allowing high-level officials accused of misconduct to separate from the federal service with “clean records” and Case: 23-2170 Document: 23 Page: 11 Filed: 04/09/2024
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(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 ob- server 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 rea- sons: They were too vague, and Title VII-related claims are excluded from protection under the Whistleblower Protec- tion Act. Final Order, 2023 WL 4034398, at *11. We dis- cern no error in the Board’s determination that these disclosures were also not protected. See Langer v. Depart- ment 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 determi- nation that Mr. Rosario-Fábregas had not established an affirmative defense under 5 U.S.C. § 2308(b)(8). Case: 23-2170 Document: 23 Page: 12 Filed: 04/09/2024
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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 insub- ordination 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 whistle- blower 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 af- firmative 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 con- trary to § 2302(b)(13) was deficient, and we thus vacate the Board’s decision and remand the case for further proceed- ings. Under § 2308(b)(13), it is a prohibited personnel prac- tice 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 au- thority to take, direct others to take, recommend, or Case: 23-2170 Document: 23 Page: 13 Filed: 04/09/2024
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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 agree- ment— (A) does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the em- ployee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Con- gress, (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 Ex- ecutive orders and statutory provisions are incor- porated into this agreement and are controlling.”; or (B) prohibits or restricts an employee or appli- cant 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 infor- mation that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substan- tial and specific danger to public health or safety, or any other whistleblower protection . . . . 5 U.S.C. § 2302(b)(13). Case: 23-2170 Document: 23 Page: 14 Filed: 04/09/2024
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explicitly noted that it was “not decid[ing] here whether an instruction is a policy, form, or agreement within the mean- ing 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 in- structions covered by § 2302(b)(13) because the orders “did not seek to prevent disclosures,” “did not curtail the appel- lant’s ability to contact individuals within or outside his chain of command,” and “were narrowly tailored to con- cerns 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 is- sue [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, imple- menting, 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 dis- cuss 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 “disclo- sure[s]” under the statutory definition. The Board also Case: 23-2170 Document: 23 Page: 15 Filed: 04/09/2024
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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 re- strictions 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, regu- latory 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 re- quired by § 2302(b)(13)(A) regarding Mr. Rosario-Fábre- gas’s right to make protected disclosures or fell short of “prohibit[ing] or restrict[ing]” his ability to make disclo- sures 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 var- ious entities and individuals (e.g., the Army Inspector Gen- eral, the deciding official in his removal action), her initial instructions contained no language affirming Mr. Rosario- Fábregas’s continued right to make protected disclosures, and even her later clarification did not include the statuto- rily 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. Case: 23-2170 Document: 23 Page: 16 Filed: 04/09/2024
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We note, however, that the language of § 2302(b)(13) (“im- plement or enforce any nondisclosure policy, form, or agree- ment”) is nearly identical to that of § 2302(a)(2)(A)(xi) (“the implementation or enforcement of any nondisclosure pol- icy, form, or agreement”), and in Smith, discussing the lat- ter 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 nondis- closure policy that restricted Mr. Smith’s ability to make such communications.” 930 F.3d at 1366 n.2. The signifi- cance 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 En- hancement 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 de- cide to rule dispositively on the AWOL and excessive-ab- sence 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 re- quire 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 ap- peal related to whether the Board erred in sustaining the penalty of removal, despite our vacating of the Board’s Case: 23-2170 Document: 23 Page: 17 Filed: 04/09/2024
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upholding of the insubordination charge, because the dis- cussion 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 out- lined in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981), specifically the agency’s table of penal- ties and mitigating circumstances. The deciding official did, however, complete a checklist outlining his considera- tions under each Douglas factor. SAppx223–24. In this checklist, the deciding official expressly noted that, accord- ing to the Army Table of Penalties, the insubordination charge alone would justify removal. SAppx223. And the deciding official identified Mr. Rosario-Fábregas’s docu- mented 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, har- assment, 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 Re- ply 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 em- ployee raises an allegation of disparate penalties, “the em- ployee must show ‘that the charges and the circumstances Case: 23-2170 Document: 23 Page: 18 Filed: 04/09/2024
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surrounding the charged behavior are substantially simi- lar,’ 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 Vet- erans Affairs, 113 M.S.P.R. 657, 660 (2010)). As Mr. Ro- sario-Fábregas failed to establish that any employee faced similar charges or circumstances, the Board’s failure to ad- dress 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 ad- judicating his case. First, he alleges that, because his for- mer 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 attor- ney, the agency must have relied on evidence not disclosed to him in considering the insubordination charge. It is un- disputed, however, that Mr. Rosario-Fábregas sent multi- ple 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 communica- tions other than those known to him and cited, see SAppx179–82. Mr. Rosario-Fábregas also argues that it was procedur- ally improper for the Board to leave the charges of AWOL and excessive absence unadjudicated. The Board con- cluded, however, that the insubordination charge alone was sufficient to support the penalty of removal. Final Or- der, 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-Fábre- gas). The Board, like other tribunals, was not obligated to address every issue presented, even those which made no Case: 23-2170 Document: 23 Page: 19 Filed: 04/09/2024
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difference to the outcome. The Board remains free to con- sider 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. Ro- sario-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 decid- ing 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 offi- cial 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 applica- tion 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 harm- ful error in an agency’s procedure in order to establish re- versible 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 insubor- dination. This argument relies on an incorrect characteri- zation of the identified regulation, which, for certain formal adverse actions, provides a right to receive advanced writ- ten notice, an opportunity to reply, and a written decision, not a right to receive oral admonishments or written warn- ings. Department of the Army, Army Regulation 690–752, Case: 23-2170 Document: 23 Page: 20 Filed: 04/09/2024
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Civilian Personnel: Disciplinary and Adverse Actions 5–6 (2022). 3 Mr. Rosario-Fábregas was provided with the re- quired procedural protections. SAppx146–54 (notice of pro- posed 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 con- sistent 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 Regu- lation 690–700 has been incorporated into Army Regula- tion 690–752.