Richard James Abresch v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD JAMES ABRESCH,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1940
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-21-0639-W-1.
______________________
Decided: February 5, 2025
______________________
RICHARD ABRESCH , pro se.
D EANNA SCHABACKER , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J.
BOYLE, K ATHERINE M. SMITH .
______________________
Before STOLL , CLEVENGER , and CUNNINGHAM , Circuit
Judges.
P ER CURIAM .
Case: 24-1940 Document: 22 Page: 1 Filed: 02/05/2025

-- 1 of 8 --

ABRESCH v. MSPB 2
Richard J. Abresch seeks review of the final decision of
the Merit Systems Protection Board (“Board”) dismissing
his whistleblower individual right of action (“IRA”) appeal
(1) as barred by laches to the extent he sought to challenge
a 2013 reassignment and (2) for lack of jurisdiction over his
challenges to personnel decisions taken in 2018–2021, on
the ground that he failed to make a nonfrivolous allegation
that his whistleblowing disclosures were a contributing
factor to the personnel decisions. Abresch v. Dep’t of the
Navy, No. DC-1221-21-0639-W-1 (M.S.P.B. Apr. 15, 2024)
We have jurisdiction over his timely appeal to this court
under 28 U.S.C. § 1295(a)(9), and, for the reasons stated
below, we affirm the Board’s final decision.
I.
Mr. Abresch served as the Administrative Director and
Chief of Staff with the United States Navy’s Regional
Maintenance Center in Norfolk, Virginia prior to October
2013. He alleged that he disclosed wrongdoing to the Ex-
ecutive Director of the Mid-Atlantic Regional Maintenance
Center (“MARMC”), Dennis Bevington, on a number of oc-
casions between 2011 and 2013 about questionable finan-
cial dealings of MARMC’s then–Comptroller. In addition,
Mr. Abresch alleged that he disclosed in September of 2012
various MARMC Corporate Operation staffing irregulari-
ties dealing with position classification and hiring.
Mr. Abresch alleged that, as a result of these two cate-
gories of whistleblower disclosures, he was subjected to a
series of retaliatory personnel actions beginning in 2013.
First, he stated that the newly installed Commander of the
Regional Maintenance Center, then–Rear Admiral Richard
Galinis, reassigned him on September 20, 2013, from his
Administrative Director and Chief of Staff positions to a
position of less responsibility and authority. Next, Mr.
Abresch stated that two other agency officials, Rear Admi-
ral Downey and Stephanie Douglas, were involved in the
agency’s denial of his guaranteed return rights from an
overseas tour in October of 2018. Mr. Abresch also alleged
Case: 24-1940 Document: 22 Page: 2 Filed: 02/05/2025

-- 2 of 8 --

ABRESCH v. MSPB 3
that he was denied promotions three times because he had
blown the whistle on the agency back in 2011, 2012, and
2013. First, Mr. Bevington did not select him for the
MARMC Corporate Operations Director position in Febru-
ary 2019; second, he was not selected for the Forward De-
ployed Regional Maintenance Center (“FDRMC”)
Executive Director position in January of 2021; and third,
he was again denied selection for the reposted FDRMC Ex-
ecutive Director position in June of 2021.
The Administrative Judge (“AJ”) assigned to
Mr. Abresch’s case dismissed his IRA appeal to the Board
filed on June 4, 2021, for lack of jurisdiction because he had
not exhausted his administrative remedies by first filing a
required complaint of reprisal with the Office of Special
Counsel (“OSC”). On July 6, 2021, Mr. Abresch filed a com-
plaint of reprisal with OSC challenging his 2013 reassign-
ment, his alleged denial of return rights, and the non-
selection actions. On July 21, 2021, OSC issued Mr.
Abresch a close-out notice, and thereafter Mr. Abresch
timely appealed his IRA claim to the Board, and his case
was again before the same AJ.
The AJ issued two show cause orders directed to the
IRA jurisdictional standards and the doctrine of laches, the
latter because of the length of time between the 2011–2013
disclosures, the alleged 2013 retaliatory action, and the
IRA complaint to OSC in 2021. Following responses from
the parties, the AJ issued his decision.
The Board has acknowledged that the defense of laches
applies in IRA appeals and may be applied before reaching
the merits of an appeal. Brown v. Dep’t of the Air Force,
88 M.S.P.R. 22, ¶¶ 3, 7–10 (2001). The party asserting
laches must prove both unreasonable delay and prejudice.
Two varieties of prejudice suffice: (1) defense prejudice,
which is shown by a party’s impaired ability to mount a
defense due to the loss of records, destruction of evidence,
fading memories, or unavailability of witnesses; and
(2) economic prejudice. See Cornetta v. United States, 851
Case: 24-1940 Document: 22 Page: 3 Filed: 02/05/2025

-- 3 of 8 --

ABRESCH v. MSPB 4
F.2d 1372, 1377–78 (Fed. Cir. 1988). Only defense preju-
dice is at issue in this case.
The AJ noted that an IRA appellant, here Mr. Abresch,
bears the burden of establishing the Board’s jurisdiction by
making nonfrivolous allegations of fact, i.e., a claim of facts
which, if proven, could establish a prima facie case within
the Board’s jurisdiction. An allegation generally is consid-
ered nonfrivolous when the allegation is (1) more than con-
clusory, (2) plausible on its face, and (3) material to the
legal issues in the appeal. 5 C.F.R. § 1201.4(s). To succeed
jurisdictionally, an IRA appellant must allege nonfrivo-
lously that he engaged in protected activity as statutorily
defined, and that his protected activity was a contributing
factor to the personnel actions he cites as retaliatory. See
5 U.S.C. § 1221(e)(1). Only the question of whether
Mr. Abresch’s disclosures contributed to retaliatory action
is involved in this appeal.
Concerning the issue of laches, the AJ determined that
the agency had proved that Mr. Abresch’s delay of almost
8 years in bringing his OSC complaint about agency retal-
iation in 2013 was unreasonable. With regard to prejudice,
the AJ found that the diminished memory of Admiral
Galinis, the deciding official on the 2013 personnel action,
compromised the ability of the agency to defend itself
against Mr. Abresch’s claim. The AJ noted in particular
that if an IRA claimant makes out a prima facie case of
reprisal, the agency bears the heavy burden to demon-
strate by clear and convincing evidence standard that the
agency would have taken the same personnel action
against the claimant in the absence of the protected activ-
ity. In the light of Admiral Galinis’s diminished memory,
the AJ held that the significant disadvantage the agency
would face sufficed to establish the element of defense prej-
udice for the agency.
On the question whether the whistleblower disclosures
from 2011–2013 contributed to retaliatory personnel ac-
tions in 2018, 2019, and 2021, the agency raised no issue of
Case: 24-1940 Document: 22 Page: 4 Filed: 02/05/2025

-- 4 of 8 --

ABRESCH v. MSPB 5
laches, arguing only that Mr. Abresch failed to meet the
nonfrivolous allegation jurisdictional test regarding
whether his 2011–2013 disclosures were a contributing fac-
tor to the challenged agency personnel actions. The AJ
agreed with the agency, and therefore dismissed Mr.
Abresch’s IRA appeal regarding the three identified per-
sonnel actions for want of jurisdiction.
II.
Mr. Abresch appealed the adverse AJ decision to the
Board. Because the AJ’s decision had not expressly stated
that Mr. Abresch had successfully exhausted his adminis-
trative remedies by first going to OSC, the Board granted
Mr. Abresch’s petition for review, solely to clarify that ju-
risdiction vested with the Board as Mr. Abresch indeed had
exhausted his claims with OSC. Otherwise, the Board af-
firmed all points of the AJ’s decision, and, in doing so, it
elaborated on the record in the case and the AJ’s written
decision.
With regard to the issue of laches, the Board responded
to Mr. Abresch’s argument that his delay in bringing a
claim for his 2013 reassignment should be excused because
the agency had failed to provide him with enough infor-
mation to let him be aware of a basis for an IRA appeal.
But because Mr. Abresch himself averred before the AJ
that he perceived whistleblower animus after his 2013 re-
assignment but failed to “submit a complaint on the initial
incident, thinking the animus would pass,” the Board re-
jected Mr. Abresch’s argument that he had an excuse for
the almost 8-year delay in bringing his IRA appeal. The
Board agreed with the AJ that Mr. Abresch’s 2021 IRA ap-
peal was unreasonably delayed.
As for defense prejudice to the agency, the Board held
that the memory impairment of the agency’s key witness
supported the agency’s claim of defense prejudice, espe-
cially in the light of the heavy burden of proof facing the
agency in trying to prove its defense to a prima facie case
of whistleblower reprisal. The Board rejected as
Case: 24-1940 Document: 22 Page: 5 Filed: 02/05/2025

-- 5 of 8 --

ABRESCH v. MSPB 6
insufficient Mr. Abresch’s arguments that the agency was
not sufficiently defense prejudiced because of allegedly
available agency-possessed documentary evidence. It was
unclear to the Board whether such documentary evidence
existed, and the Board held that notwithstanding such ev-
idence, the memory impairment of the agency’s key witness
sufficed to support defense prejudice. On Mr. Abresch’s ar-
gument that defense prejudice is overcome in this case due
to the possibility of testimony from Mr. Bevington and oth-
ers, the Board noted the importance of a deciding official as
a witness to rebut an IRA appellant’s case, and, if neces-
sary, to establish the agency’s defense. The Board further
found that the potential witnesses named by Mr. Abresch
lack the knowledge relevant to Mr. Abresch’s claim that
Admiral Galinis considered Mr. Abresch’s protected disclo-
sures when he effected Mr. Abresch’s reassignment in
2013. The Board thus agreed with the AJ that laches
barred Mr. Abresch’s IRA case insofar as it related to his
reassignment in 2013.
Considering the remainder of Mr. Abresch’s IRA case,
the Board noted that an IRA claimant can raise a nonfriv-
olous allegation that a protected disclosure was a contrib-
uting factor to a personnel action in two ways. First, under
the knowledge/timing test, an IRA claimant can show that
a deciding official knew of the protected disclosure and took
the personnel action within a period of time that a reason-
able person would conclude that the disclosure was a con-
tributing factor to the personnel action. If the
knowledge/timing test is not met, the Board considers
other evidence, including the strength or weakness of the
agency’s reason for taking the personnel action, whether
the whistleblowing was personally directed at the propos-
ing or deciding official, and whether those individuals had
a desire or motive to retaliate against the appellant. See
Rumsey v. DOJ, 120 M.S.P.R. 259, 273 ¶ 26 (2013).
Given the nearly 6 years between the protected disclo-
sures and the alleged impediment of Mr. Abresch’s return
rights in 2018, and the 7 years before the agency first failed
Case: 24-1940 Document: 22 Page: 6 Filed: 02/05/2025

-- 6 of 8 --

ABRESCH v. MSPB 7
to select Mr. Abresch for promotion positions, the Board
agreed with the AJ that such a gap in time is too remote to
satisfy the knowledge/time test. As for the denial of return
rights, the Board noted that “the record reflects that the
appellant’s disclosures were not personally directed at the
agency officials that [Mr. Abresch] indicated were respon-
sible for denying those rights.” J.A. 10. Further, the record
did not reflect that the officials involved in effecting
Mr. Abresch’s return rights had a strong motive to retali-
ate against him. Thus, the Board agreed with the AJ that
Mr. Abresch failed to prove the jurisdictional requirement
of a nonfrivolous allegation that his disclosures contributed
to the challenged personnel actions.
The Board reached the same conclusion regarding the
agency’s challenged nonselection decisions. Mr. Abresh’s
disclosures were not personally directed at the agency offi-
cials involved in the nonselections. Two agency officials in-
volved in his nonselection had direct knowledge of Mr.
Abresch’s disclosures, but Mr. Abresch offered no specific
evidence or argument that those officials had any motive to
retaliate against him. Consequently, the Board found that
with regard to the nonselection claims, Mr. Abresch failed
to satisfy the nonfrivolous allegation jurisdictional require-
ment. As a result, the remaining portion of the overall IRA
case was dismissed by the Board for want of jurisdiction.
III.
Mr. Abresch timely petitioned this court for review of
the Board’s final decision. Under the applicable standard
of review, we must affirm a final decision of the Board un-
less we determine that it is arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or unsupported by substantial
evidence. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). We review a jurisdictional decision of the
Board de novo as a legal issue. Id. Under Nuss v. Office of
Personnel Management, 974 F.2d 1316, 1317–18 (Fed. Cir.
Case: 24-1940 Document: 22 Page: 7 Filed: 02/05/2025

-- 7 of 8 --

ABRESCH v. MSPB 8
1992), we review the Board’s application of the laches de-
fense for an abuse of discretion, which occurs when the
Board’s decision is based on an erroneous interpretation of
law, factual findings unsupported by substantial evidence,
or an unreasonable judgment in weighing relevant factors.
See also Kluge v. Dep’t of Homeland Sec., 60 F.4th 1361,
1365 (Fed. Cir. 2023). Factual findings underlying the
Board’s determinations regarding jurisdiction are re-
viewed for substantial evidence, which requires such rele-
vant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Lentz v. Merit Sys.
Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017).
Mr. Abresch raises two basic questions on appeal.
First, whether the Board correctly applied laches to bar the
part of his IRA case that rests on his reassignment in 2013.
Second, whether the Board correctly determined that he
failed to show that his protected disclosures made in 2011–
2013 were contributing factors to the personnel actions
taken against him in 2018 and 2020–2021.
We have reviewed the record of this case made in pro-
ceedings before the Board and the briefs filed by the parties
in this court. We find no reversible error in the Board’s
assessment and application of the laches defense, and like-
wise find no reversible error in the Board’s decision that
the remaining portion of Mr. Abresch’s IRA case is properly
dismissed for want of jurisdiction. We therefore affirm the
Board’s final decision.
AFFIRMED
COSTS
No costs.
Case: 24-1940 Document: 22 Page: 8 Filed: 02/05/2025

-- 8 of 8 --