Alan Tarrab v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALAN TARRAB,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2092
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-16-0401-W-1.
______________________
Decided: April 21, 2025
______________________
ALAN TARRAB, Reston, VA, pro se.
ELIZABETH W. FLETCHER, Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
JANE BOYLE, KATHERINE M ICHELLE SMITH .
______________________
Before LOURIE , CHEN, and H UGHES, Circuit Judges.
P ER CURIAM.
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TARRAB v. MSPB 2
Alan Tarrab, appearing pro se, appeals the Merit Sys-
tems Protection Board’s final order dismissing his whis-
tleblower Individual Right of Action appeal for lack of
jurisdiction. Because the Board correctly concluded that
Mr. Tarrab failed to nonfrivolously allege that he made
any protected disclosures for which he had exhausted ad-
ministrative remedies before the Office of Special Coun-
sel, we affirm.
I
Mr. Tarrab began working as a General Engineer at
the Department of Transportation’s Federal Railroad Ad-
ministration in February 2015. S.A. 2 n.2. In March 2015,
Mr. Tarrab performed an audit of the Association of Amer-
ican Railroads’ (AAR) “process for reviewing tank car
equipment (e.g.[,] valves)” at the AAR’s Washington, DC
office. S.A. 21; see also S.A. 45, 67. Mr. Tarrab alleges that
during his audit of the AAR, he encountered the Supreme
Court’s opinion in Department of Transportation v. Associ-
ation of American Railroads, 575 U.S. 43 (2015). S.A. 67,
23. After conducting “additional research, including read-
ing some of the cited cases, the D.C. Circuit Court decision,
and relevant constitutional provisions,” S.A. 67, Mr. Tar-
rab wrote a paper entitled “Comments on American Asso-
ciation of Railroads (AAR) Audit” in which he stated his
legal research “calls into question the legality and advisa-
bility of having AAR continue in its current role” processing
applications for approval of tank car tanks. S.A. 74. In his
paper, Mr. Tarrab took issue with the agency’s Hazardous
Materials Regulations, which provide, in relevant part,
that the AAR’s Tank Car Committee may approve “[a]ppli-
cation[s] for approval of designs, materials and construc-
tion, conversion or alteration of tank car tanks.” 49 C.F.R.
§ 179.3.
Mr. Tarrab sent this paper to his supervisor on May 22,
2015. He also alleges verbally alerting his supervisor of his
“concerns regarding the processing of One-Time Movement
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TARRAB v. MSPB 3
Approvals,” specifically that “the work [a contractor] was
doing was an inherently governmental function that could
only be performed by government employees.” S.A. 45–46
(citing 48 C.F.R. § 7.503(c)(15)).
On June 29, 2015, Mr. Tarrab received his first annual
performance evaluation. In the evaluation, his supervisor
noted, among other things, that “Mr. Tarrab must be more
receptive to and learn the existing policies and procedures
of the Division. Thus far he has been quick to critique and
criticize.” S.A. 46. Mr. Tarrab alleges that he had been eli-
gible for a career ladder promotion to a higher wage grade
in July 2015, but his supervisor informed him “that he
would not be submitting [his] name for promotion, giving
no explanation other than saying that [he] wasn’t ready.”
S.A. 46.
In July 2015, Mr. Tarrab filed a whistleblower reprisal
complaint with the Office of Special Counsel (OSC) alleging
the agency had denied him a career ladder promotion in
reprisal for his making protected disclosures in the form of
his paper and oral critique of work being performed by a
contractor. OSC summarized Mr. Tarrab’s allegations in
his complaint as identifying five alleged protected “disclo-
sures that the agency was (1) delegating Government au-
thority to private entities, (2) assigning inherently
Governmental functions to contractors, (3) violating the
Paperwork Reduction Act, (4) violating the Federal Advi-
sory Committee Act, and (5) failing to obtain special per-
mits.” S.A. 3. OSC terminated its investigation into
Mr. Tarrab’s complaint in January 2016 and notified him
of his applicable rights to appeal to the Merit Systems Pro-
tection Board.
Mr. Tarrab then filed an Individual Right of Action ap-
peal to the Board. The Board’s administrative judge issued
an Order on Jurisdiction and Proof Requirements, advising
the parties that “[t]here [was] a question whether this ap-
peal is within the Board’s jurisdiction,” S.A. 55, and
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TARRAB v. MSPB 4
ordering Mr. Tarrab “to file a statement, accompanied by
evidence, listing . . . [his] protected disclosure(s) or activ-
ity(ies) [sic]” and further details about these disclosures
and activities, S.A. 60–61. Mr. Tarrab timely filed the re-
quested jurisdictional submission.
The administrative judge dismissed Mr. Tarrab’s ap-
peal for lack of jurisdiction, finding that Mr. Tarrab had
failed to nonfrivolously allege that he had made protected
disclosures of “a violation of a law, rule, or regulation.” S.A.
26. The administrative judge determined Mr. Tarrab’s
May 22, 2015 document was an unprotected position paper
on agency policy rather than a protected whistleblowing
disclosure because “[Mr. Tarrab’s] advocacy of the role
AAR should play under DOT’s direction is eminently de-
batable and, apparently, the subject of significant litiga-
tion.” S.A. 24. The administrative judge concluded that
Mr. Tarrab’s allegations of disclosures (3) and (4)—“that
AAR was violating the Paperwork Reduction Act and the
Advisory Committee Act”—were “pendant claims” that
simply provided additional reasons for his general disa-
greement with the agency’s policy, and accordingly were
not protected disclosures for the same reason as disclosure
(1). S.A. 24.1
The administrative judge then addressed Mr. Tarrab’s
“second claim . . . related to activities of a contractor em-
ployee[] assigned the task of issuing One-Time Movement
Approvals (OTMAs),” which cited to 48 C.F.R. § 7.503. S.A.
24. The administrative judge determined that this regula-
tion granted agencies with “expansive discretion . . . to al-
locate their own work” and to “determine which activities
1 Though the administrative judge did not explicitly
mention disclosure (5), the Board later found “disclosure (5)
[wa]s similarly incorporated as a pendant claim and ‘prob-
lem[] with the process’” in his analysis. S.A. 9 n.8 (second
alteration in original).
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TARRAB v. MSPB 5
are inherently governmental.” S.A. 25 (emphasis omitted).
The administrative judge also determined that the regula-
tion specified the approval of a license to be an inherently
governmental function, and that “[t]he granting of a license
is distinguished from a permit, typically a single event or
temporary, limited grant of permission.” S.A. 24 (emphasis
in original). Based on this regulatory background, the ad-
ministrative judge concluded that the agency had, in “an
exercise of its discretionary authority,” implicitly “deter-
mined that the task of issuing temporary one-time permits”
like OMTAs “was not an inherently governmental func-
tion” and thus could be performed by a contractor. S.A. 25
(emphasis omitted).
The administrative judge accordingly concluded that
Mr. Tarrab’s “expressions of ‘concern’ embody [his] policy
disagreement with the agency’s delegations and relation-
ships with quasi-governmental bodies” and dismissed his
appeal for lack of jurisdiction. S.A. 25–26.
Mr. Tarrab timely filed an administrative petition for
review by the full Board. The Board issued a final order
affirming the administrative judge’s Initial Decision except
as expressly modified to acknowledge additional alleged
disclosures raised in his jurisdictional response. The Board
found that Mr. Tarrab had administratively exhausted his
claims as to five alleged disclosures identified by OSC, but
that he had failed to nonfrivolously allege that any of these
disclosures were protected disclosures under the Whistle-
blower Protection Act, 5 U.S.C. § 2302(b)(8)(A).
The Board also noted that Mr. Tarrab had identified
two additional alleged disclosures in his jurisdictional re-
sponse: disclosures about “alleged abuses of authority re-
garding a traffic citation” and “whistleblower retaliation.”
S.A. 4. Because the Board found no indication that Mr. Tar-
rab had raised those two alleged disclosures before OSC, it
modified the Initial Decision to rule that he had failed to
prove he exhausted his administrative remedies for those
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TARRAB v. MSPB 6
two disclosures. The Board also concluded that, to the ex-
tent Mr. Tarrab alleged the agency retaliated against him
by coercing his resignation, he had also failed to exhaust
that claim before OSC.
In October 2015, during the pendency of his appeal be-
fore the Board, Mr. Tarrab left his role at the Department
of Transportation for a new position with the Environmen-
tal Protection Agency. S.A. 2 n.2. Mr. Tarrab timely ap-
pealed the Board’s final decision to this Court. We have
jurisdiction to review a final decision of the Board under
5 U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1353 (Fed. Cir. 2020).
“Whether the Board has jurisdiction over a particular
matter is a question of law that this court reviews de novo.”
Kerrigan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1353
(Fed. Cir. 2016). “[T]he Board has jurisdiction over an [In-
dividual Right of Action (IRA)] appeal if the appellant has
exhausted his administrative remedies before the OSC and
makes ‘non-frivolous allegations’ that (1) he engaged in
whistleblowing activity by making a protected disclosure
under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a
contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a)”
against him. Yunus v. Dep’t of Veterans Affs., 242 F.3d
1367, 1371 (Fed. Cir. 2001). Although pro se litigants are
held to a less stringent pleading standard, see Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam), they are not
entirely exempt from satisfying pleading requirements. See
Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)
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TARRAB v. MSPB 7
(“The fact that [Mr. Henke] acted pro se in the drafting of
his complaint may explain its ambiguities, but it does not
excuse its failures, if such there be.”).
III
“To establish jurisdiction at the Board, an appellant
must show he exhausted his remedies before OSC.” Smo-
linski v. Merit Sys. Prot. Bd., 23 F.4th 1345, 1353 (Fed. Cir.
2022). Administrative exhaustion must be proven by a pre-
ponderance of the evidence. 5 C.F.R. § 1201.57(c)(1).
Mr. Tarrab alleged that his supervisor ignored the mis-
conduct of a coworker who “abused his authority by using
his government credential to avoid a traffic citation for
speeding,” and that his supervisor “committed a prohibited
personnel practice by retaliating against [him] for [his] dis-
closures.” S.A. 67. These allegations were not included in
his OSC complaint narrative. The only evidence Mr. Tar-
rab provided to the administrative judge that included
these allegations was a letter he sent requesting reconsid-
eration of his performance evaluation. Mr. Tarrab made no
showing that he had made those allegations to OSC, which
is required to establish administrative exhaustion by a pre-
ponderance of the evidence. The Board correctly concluded
that Mr. Tarrab failed to allege administrative exhaustion
regarding two of his alleged disclosures and that it thus
lacked jurisdiction over any claim regarding these disclo-
sures.
IV
“A nonfrivolous allegation is an assertion that, if
proven, could establish the matter at issue. An allegation
generally will be considered nonfrivolous when . . . an indi-
vidual makes an allegation that: (1) is more than conclu-
sory; (2) is plausible on its face; and (3) is material to the
legal issues in the appeal.” 5 C.F.R. § 1201.4(s). Under the
WPA, a protected disclosure includes “any disclosure of in-
formation by an employee . . . which the employee
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TARRAB v. MSPB 8
reasonably believes evidences” a “violation of any law, rule,
or regulation.” 5 U.S.C. § 2302(b)(8)(A)(i). The statutory
definition of “disclosure” excludes “a communication con-
cerning policy decisions that lawfully exercise discretion-
ary authority,” 5 U.S.C. § 2302(a)(2)(D), consistent with
the principle that the WPA “is not a weapon in arguments
over policy.” Lachance v. White, 174 F.3d 1378, 1381
(Fed. Cir. 1999).
The Board correctly concluded that Mr. Tarrab had
failed to nonfrivolously allege that any of his five adminis-
tratively exhausted disclosures were protected disclosures
under the WPA. The circumstances overwhelmingly indi-
cate that Mr. Tarrab failed to nonfrivolously allege a pro-
tected disclosure with regard to the remarks made in his
paper.
The test for whether a belief is “reasonable” is an objec-
tive one: whether “a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee [could] reasonably conclude that the actions
of the government evidence” the alleged violation of law.
Lachance, 174 F.3d at 1381. The Board may consider the
appellant’s involvement with, and understanding of, the
subject matter at issue to determine whether he nonfrivo-
lously alleged a violation of law, rule, or regulation. See,
e.g., Hessami v. Merit. Sys. Prot. Bd., 979 F.3d 1362, 1369
(Fed. Cir. 2020) (holding experienced physician made non-
frivolous allegation of reasonable belief where she alleged
“that she was knowledgeable about the local and national
[Hepatitis C Virus] treatment guidelines”). Mr. Tarrab, an
engineer with no apparent background in the law, failed to
allege facts sufficient for a disinterested observer to rea-
sonably conclude that the agency had committed any legal
violation. At the time he produced his report and raised his
concerns to his supervisor, Mr. Tarrab was a very recent
employee of the agency—he “became aware” of the alleged
legal issue just weeks into his employment at the agency.
S.A. 67. He never alleged having the requisite knowledge
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TARRAB v. MSPB 9
and experience to evaluate a question of constitutional and
administrative law. Indeed, his position paper, which is
most accurately characterized as questioning agency pol-
icy, itself expressed uncertainty about whether the agency
had violated any law. We briefly address each of the spe-
cific disclosures made in his paper in turn.
In disclosure (1), Mr. Tarrab stated “the agency was . . .
delegating Government authority to private entities” un-
der 49 C.F.R. § 179.3. S.A. 3. The disclosure was phrased
in qualified or conditional language, noting the agency’s
process is “likely unconstitutional in light of recent court
decisions” and proposing that “insourcing . . . the delegated
function . . . may be the only way to stay within the law.”
S.A. 75. Mr. Tarrab never stated that he believed § 179.3
to be invalid, and his statements amount to expressions of
uncertainty and policy inquiries that cannot be reasonably
believed to have alleged violations of law.
In disclosure (2), Mr. Tarrab alleged the agency was
“assigning inherently [g]overnmental functions to contrac-
tors.” S.A. 3. The Board concluded it was unclear whether
Mr. Tarrab’s unexplained citations to an unrelated statute
and an agency bulletin supported this allegation. The
Board further found that the record “does not suggest that
a disinterested observer in his position could reasonably
believe that he had disclosed the type of wrongdoing de-
scribed in section 2302(b)(8)” of the Whistleblower Protec-
tion Act. S.A. 11. We agree. Unexplained citations are
insufficient to meet the requirement that a nonfrivolous al-
legation be more than conclusory.
In disclosures (3), (4), and (5), Mr. Tarrab alleged the
agency “(3) violat[ed] the Paperwork Reduction Act, (4) vi-
olat[ed] the Federal Advisory Committee Act, and
(5) fail[ed] to obtain special permits.” S.A. 3. The Board cor-
rectly rejected Mr. Tarrab’s “post hoc characterization of
[these] disclosures” and concluded these disclosures merely
raised “general concerns . . . that were at least tangentially
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TARRAB v. MSPB 10
related to various laws and that he believed might warrant
a change in policy,” rather than disclosures he reasonably
believed to evidence a violation of law. S.A. 10. Read in the
context of his position paper, these disclosures are plainly
incomplete statements of law offered in support of Mr. Tar-
rab’s contention that the “process . . . is both poor by design
and poor in execution, and likely unconstitutional,” with-
out any reasoned analysis that can rise to a nonconclusory
allegation of a violation of law. S.A. 75.
V
We have considered the remainder of Mr. Tarrab’s ar-
guments and find them unpersuasive. Because we agree
that Mr. Tarrab failed to nonfrivolously allege making any
protected disclosure under the WPA, we affirm the Board’s
final decision dismissing his administrative IRA appeal for
lack of jurisdiction.
AFFIRMED
COSTS
No costs.
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