Daniel M. Defrank v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANIEL M. DEFRANK,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2284
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-22-0154-W-1.
______________________
Decided: May 9, 2025
______________________
D ANIEL M. D EFRANK, Orlando, FL, pro se.
ELIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before P ROST , T ARANTO, and STARK, Circuit Judges.
P ER CURIAM .
Case: 24-2284 Document: 22 Page: 1 Filed: 05/09/2025

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DEFRANK v. MSPB 2
Daniel M. Defrank worked as a Certified Registered
Nurse Anesthetist with the Department of Veterans Af-
fairs (VA). After VA investigated him for possible diversion
of narcotics, Mr. Defrank left his employment at VA. Mr.
Defrank sought relief by appealing to the Merit Systems
Protection Board (Board), alleging whistleblower reprisal.
A Board-assigned administrative judge dismissed his ap-
peal for lack of Board jurisdiction, Board Supplemental Ap-
pendix (S. Appx.) 9–14, and the full Board affirmed the
administrative judge’s decision, which became the final de-
cision of the Board, S. Appx. 1–2. We now affirm.
I
In 2019, Mr. Defrank was working as a Certified Reg-
istered Nurse Anesthetist for VA in Orlando, Florida.
S. Appx. 10; S. Appx. 30. According to his description of
the relevant events, two coworkers accused him of divert-
ing a narcotic, but VA “cleared” him after conducting a five-
month investigation. S. Appx. 30. In addition, he says, VA
officials threatened him with removal and ultimately
forced his resignation after he reported both “the wasted
government funds” used in the investigation and the pro-
tection VA provided his two coworkers after they “commit-
ted perjury.” S. Appx. 30. Mr. Defrank does not currently
work at VA. S. Appx. 27.
Mr. Defrank filed a complaint with the United States
Office of Special Counsel (OSC), alleging that VA officials
proposed his removal “for conduct unbecoming a federal
employee” in retaliation for making protected disclosures
or engaging in protected activities. S. Appx. 31; see also
5 U.S.C. § 2302(b)(8), (9). In May 2021, Mr. Defrank also
filed a complaint with VA’s Office of Accountability and
Whistleblower Protection (OAWP). S. Appx. 31;
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DEFRANK v. MSPB 3
Petitioner’s Appendix (Appx.) 13.1 OAWP referred the
complaint to VA’s Office of Inspector General (OIG), which
accepted it for investigation. S. Appx. 31. On December
13, 2021, OSC sent a letter to Mr. Defrank stating that it
had terminated its inquiries into his allegations against
VA officials and notifying him of statutory provisions for an
Individual Right of Action (IRA) appeal to the Board under
5 U.S.C. §§ 1214(a)(3) and 1221. S. Appx. 30–31.
On January 12, 2022, Mr. Defrank filed an IRA appeal
to the Board. S. Appx. 27–32. The next day, the Board-
assigned administrative judge ordered Mr. Defrank to file
a statement to address the matters central to whether the
Board had jurisdiction over his appeal. S. Appx. 33–41
(Order on Jurisdiction and Proof Requirements). In addi-
tion to details about his OSC complaint, Mr. Defrank was
directed to include the following information in his state-
ment:
(1) [his] protected disclosure(s) or activity(ies);
(2) the date(s) [he] made the disclosure(s) or en-
gaged in the activity(ies); (3) the individual(s) to
whom [he] made any disclosure(s); (4) why [his] be-
lief in the truth of any disclosure(s) was reasonable;
(5) the action(s) the agency took or failed to take, or
threatened to take or fail to take, against [him] be-
cause of [his] disclosure(s) or activity(ies); [and]
(6) why [he] believe[s] a disclosure or activity, or a
1 This court docketed Mr. Defrank’s informal brief
and attachments as a single document, Document No. 2, in
our Electronic Case Filing (ECF) system. The ECF system
assigned consecutive page numbers (1 to 32) to the pages
of the document. We consider the attachments as his Ap-
pendix, and we use the ECF page numbers to cite it. Some
of the material he attached was not on the record before the
Board.
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DEFRANK v. MSPB 4
perception of such a disclosure or activity, was a
contributing factor to the action(s) . . . .
S. Appx. 39. Mr. Defrank did not file a statement, and VA
moved to dismiss the appeal for lack of Board jurisdiction.
S. Appx. 11; see also S. Appx. 25.
The administrative judge, on February 4, 2022, dis-
missed Mr. Defrank’s IRA appeal for lack of jurisdiction.
S. Appx. 9–22. The administrative judge reasoned that
Mr. Defrank had not established that the disclosures he de-
scribed in his initial appeal and narrative were protected
disclosures under 5 U.S.C. § 2302(b)(8)(A). S. Appx. 12–
14. Construing his complaint that was referred to OIG as
protected activity under 5 U.S.C. § 2302(b)(9), the admin-
istrative judge also concluded that Mr. Defrank had not
met the jurisdictional threshold on the issue of his OIG
complaint being “a contributing factor to a personnel ac-
tion” because he had “not ma[d]e a nonfrivolous allegation
that any agency official involved in a personnel action
taken against him had knowledge of his OIG complaint.”
S. Appx. 13–14.
Mr. Defrank filed a petition for full Board review of the
initial decision. On July 15, 2024, the Board denied the
petition and affirmed the administrative judge’s decision,
which became the final decision of the Board. S. Appx. 1–
2. Mr. Defrank timely filed this appeal. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9). See also 5 U.S.C.
§ 7703(b)(1)(B).
II
Mr. Defrank challenges the Board’s dismissal of his
IRA appeal for lack of jurisdiction. We may set aside the
Board’s decision only if it is “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). Whether the
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DEFRANK v. MSPB 5
Board has jurisdiction over a case is a legal question that
we answer de novo. Forest v. Merit Systems Protection
Board, 47 F.3d 409, 410 (Fed. Cir. 1995). “A petitioner
bears the burden of establishing that the Board has juris-
diction by a preponderance of the evidence.” McCarthy v.
Merit Systems Protection Board, 809 F.3d 1365, 1373 (Fed.
Cir. 2016) (citing Serrao v. Merit Systems Protection Board,
95 F.3d 1569, 1573 (Fed. Cir. 1996) (citing 5 C.F.R.
§ 1201.56(a)(2))).
For the Board to have jurisdiction over the IRA appeal
here, Mr. Defrank had to have exhausted the whistleblow-
ing remedies available from OSC and presented non-frivo-
lous allegations that (1) he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaging in protected activity under
5 U.S.C. § 2302(b)(9) and that (2) the whistleblowing activ-
ity was a contributing factor in VA’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a).
See Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1367 (Fed. Cir. 2020); Cahill v. Merit Systems Protec-
tion Board, 821 F.3d 1370, 1373 (Fed. Cir. 2016); see also
5 U.S.C. § 1221. In this case, there is no dispute about ex-
haustion or about the sufficiency of the allegation that VA
took a qualifying personnel action (i.e., threatened re-
moval). See S. Appx. 12; 5 U.S.C. § 2302(a)(2)(A). The dis-
pute is limited to the whistleblowing-activity and
contributing-factor elements. For the reasons below, we
see no basis for setting aside the Board’s decision.
Mr. Defrank contends that he made protected disclo-
sures when he reported violations of law and a waste of
funds. Defrank Informal Brief at 3; S. Appx. 30.2 A
2 To the extent that Mr. Defrank relies on arguments
and evidentiary support that he did not put forth before the
Board, we disregard such matters. See Sistek v.
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DEFRANK v. MSPB 6
protected disclosure is “any disclosure of information by an
employee . . . which the employee . . . reasonably believes
evidences . . . any violation of any law, rule, or regulation,
or . . . gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.” 5 U.S.C. § 2302(b)(8)(A).
Mr. Defrank stated in the narrative he attached to his
IRA appeal to the Board that he “reported the facts to the
police and management” and “reported the wasted govern-
ment funds.” S. Appx. 30. Although the administrative
judge ordered Mr. Defrank to provide additional details, he
did not respond with any information or evidence about
what he disclosed, to whom he made the disclosures, and
the factual basis for his disclosures. S. Appx. 11;
S. Appx. 39; see also Board Response Brief at 9–10. The
administrative judge concluded that the “closest [Mr. De-
frank] comes to specifying a type of [protected] disclosure
is OSC’s characterization of his claim that the agency’s in-
vestigation into his alleged misconduct wasted tax dollars,”
but that such a “vague, self-serving assertion falls well
short of nonfrivolously alleging a gross waste of funds.”
S. Appx. 13 n.3 (citations omitted); see also Chambers v.
Department of Interior, 515 F.3d 1362, 1366 (Fed.
Cir. 2008) (explaining that “a gross waste of funds requires
‘more than debatable expenditure that is significantly out
of proportion to the benefit reasonably expected to accrue
to the government’” (citations omitted)). We see no error in
the Board’s determination that Mr. Defrank did not make
Department of Veterans Affairs, 955 F.3d 948, 953 n.1 (Fed.
Cir. 2020); Bosley v. Merit Systems Protection Board, 162
F.3d 665, 668 (Fed. Cir. 1998); see also Board Response
Brief at 7–8. As he did not file a statement in response to
the administrative judge’s jurisdiction order, we rely on the
information Mr. Defrank provided in his initial IRA appeal.
S. Appx. 27–32.
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DEFRANK v. MSPB 7
a nonfrivolous allegation of a protected disclosure under
5 U.S.C. § 2302(b)(8). See 5 C.F.R. § 1201.4(s).
Nor do we see error in the Board’s treatment of Mr. De-
frank’s filing of a complaint with VA’s OAWP, which re-
ferred it to VA’s OIG for investigation. S. Appx. 31–32.
The Board (through the administrative judge) concluded
that Mr. Defrank, in that complaint, had made a nonfrivo-
lous allegation of a protected activity under 5 U.S.C.
§ 2302(b)(9). S. Appx. 13. But the Board also determined
that Mr. Defrank did not make sufficiently precise charges
that the protected activity of filing the OIG complaint was
a contributing factor in VA’s personnel action.
S. Appx. 13–14. We see no reversible error in that deter-
mination.
Mr. Defrank argues that VA retaliated against him
when he was “threatened by [Human Resources] and man-
agement with being fired” and “forced to resign from the
VA by [his] boss.” S. Appx. 30. But Mr. Defrank did not
allege that his supervisor or other VA officials involved in
the identified personnel action were aware of his complaint
or that the alleged threatening of removal (on date(s) he
did not allege) was done after he filed the complaint in May
2021. See S. Appx. 30; S. Appx. 14; 5 U.S.C. § 1221(e)(1);
Kerrigan v. Merit Systems Protection Board, 833 F.3d 1349,
1354–55 (Fed. Cir. 2016) (affirming Board’s dismissal be-
cause employee did not make specific allegations that the
officials who took the personnel action had knowledge of
protected activity). The Board correctly concluded that Mr.
Defrank could not “establish that the OIG complaint was a
contributing factor to a personnel action” without alleging
“such knowledge . . . in the absence of any other evidence
of a connection between the complaint and the personnel
action.” S. Appx. 14.
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DEFRANK v. MSPB 8
III
We have considered Mr. Defrank’s other arguments
and find them unpersuasive. We affirm the Board’s dis-
missal of Mr. Defrank’s complaint for lack of jurisdiction.
The parties shall bear their own costs.
AFFIRMED
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