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`NOTE: This disposition is nonprecedential.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.
`
`

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`Case: 23-2170 Document: 23 Page: 2 Filed: 04/09/2024
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`ROSARIO-FÁBREGAS v. ARMY
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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
`
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`Case: 23-2170 Document: 23 Page: 3 Filed: 04/09/2024
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`ROSARIO-FÁBREGAS v. ARMY
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`3
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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.
`
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`ROSARIO-FÁBREGAS v. ARMY
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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
`
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`ROSARIO-FÁBREGAS v. ARMY
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`5
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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
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`ROSARIO-FÁBREGAS v. ARMY
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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,
`
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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
`
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`ROSARIO-FÁBREGAS v. ARMY
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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.
`
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`ROSARIO-FÁBREGAS v. ARMY
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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
`
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`ROSARIO-FÁBREGAS v. ARMY
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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
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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).
`
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`ROSARIO-FÁBREGAS v. ARMY
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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
`
`
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`ROSARIO-FÁBREGAS v. ARMY
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`13
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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).
`
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`14
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`ROSARIO-FÁBREGAS v. ARMY
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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
`
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`ROSARIO-FÁBREGAS v. ARMY
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`15
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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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`Case: 23-2170 Document: 23 Page: 16 Filed: 04/09/2024
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`ROSARIO-FÁBREGAS v. ARMY
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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
`
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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.