Jose E. Rosario-Fábregas v. Department of the Army

N OTE: This disposition is nonprecedential.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
______________________
J OSE EVARISTO ROSARIO-F ABREGAS , 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, T ARA K. HOGAN, P ATRICIA M. M C CARTHY .
______________________
Before D YK, MAYER , and T ARANTO, Circuit Judges.
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ROSARIO- FÁBREGAS v. ARMY 2
P ER 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
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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. 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.
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ROSARIO- FÁBREGAS v. ARMY 4
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
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ROSARIO- FÁBREGAS v. ARMY 5
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
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ROSARIO- FÁBREGAS v. ARMY 6
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,
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ROSARIO- FÁBREGAS v. ARMY 7
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
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ROSARIO- FÁBREGAS v. ARMY 8
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.
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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 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
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ROSARIO- FÁBREGAS v. ARMY 10
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
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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 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).
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ROSARIO- FÁBREGAS v. ARMY 12
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
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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 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).
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ROSARIO- FÁBREGAS v. ARMY 14
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
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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.
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ROSARIO- FÁBREGAS v. ARMY 16
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
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ROSARIO- FÁBREGAS v. ARMY 17
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
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ROSARIO- FÁBREGAS v. ARMY 18
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
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ROSARIO- FÁBREGAS v. ARMY 19
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,
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ROSARIO- FÁBREGAS v. ARMY 20
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.
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