Background
Jerose Thomas petitioned for Federal Circuit review of a Merit Systems Protection Board decision in an employment matter involving the Department of Veterans Affairs. The dispute implicated the federal whistleblower-protection provisions in 5 U.S.C. § 2302(b)(8) and (9), the statutory definition of personnel actions in § 2302(a)(2)(A), and the evidentiary factors established in Carr v. Social Security Administration.
The VA filed an unopposed motion asking the court to waive Federal Circuit Rule 27(f) and remand the case. It sought clarification of which disclosures or activities the Board deemed protected and how each fit the Carr analysis; whether the alleged actions qualified as statutory personnel actions; and what the initial decision meant when discussing the strength of the agency’s supporting evidence under the first Carr factor.
The Court’s Holding
The Federal Circuit granted the VA’s unopposed motion and remanded the case to the MSPB for further proceedings consistent with the order and motion. The court concluded that clarification by the Board would conserve judicial and party resources.
The court expressly declined to draw any conclusions about the merits of the parties’ arguments. It also ordered each party to bear its own costs. The nonprecedential order was issued as the mandate on October 29, 2026.
Key Takeaways
- The MSPB must clarify which alleged disclosures or activities it found protected under 5 U.S.C. § 2302(b)(8) and (9) and how each relates to the Carr factors.
- The Board must address whether the alleged employment actions fall within the statutory categories of personnel actions in 5 U.S.C. § 2302(a)(2)(A).
- The remand resolves no issue on the merits and requires each party to bear its own costs.
Why It Matters
The order underscores the need for sufficiently specific MSPB findings in federal whistleblower cases. Identifying the protected conduct, qualifying personnel actions, and evidence relevant to each Carr factor gives the Federal Circuit a reviewable basis for evaluating the Board’s decision.
Because the order is nonprecedential and expresses no view on the merits, its immediate effect is procedural: the Board must clarify its reasoning before appellate review proceeds.