Sayali Kulkarni v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAYALI KULKARNI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1597
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-19-0157-W-1.
-----------------------------------------------
ABHIJIT KULKARNI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1598
______________________
Case: 25-1597 Document: 44 Page: 1 Filed: 12/15/2025

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2 KULKARNI v. MSPB
Petition for review of the Merit Systems Protection
Board in No. DE-1221-19-0158-W-1.
______________________
Decided: December 15, 2025
______________________
SAYALI K ULKARNI, Salt Lake City, UT, pro se.
ABHIJIT K ULKARNI , Salt Lake City, UT, 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 D YK, CHEN, and STOLL , Circuit Judges.
P ER CURIAM .
Dr. Sayali Kulkarni and her husband, Dr. Abhijit Kul-
karni, (collectively, the Kulkarnis) petition for review of
their respective final orders by the Merit Systems Protec-
tion Board (Board), which dismissed their Individual Right
of Action (IRA) appeals for lack of jurisdiction.1 See Kul-
karni v. Dep’t of Veterans Affs., No. DE-1221-19-0157-W-1,
2024 WL 365145 (M.S.P.B. Jan. 30, 2024) (Final Order)
1 Appeal No. 2025-1597 and Appeal No. 2025-1598
were briefed separately. However, because both appeals
raise identical issues based on materially identical records
and the briefing is essentially the same, we address both
together. For simplicity, references to the briefing are
those filed in connection with Appeal No. 2025-1597.
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KULKARNI v. MSPB 3
(SAppx 1–19)2; Kulkarni v. Dep’t of Veterans Affs., No. DE-
1221-19-0157-W-1, 2019 WL 1516850 (M.S.P.B. Apr. 4,
2019) (Initial Decision) (SAppx 21–37).3 For the following
reasons, we affirm.
BACKGROUND
The Kulkarnis have served as Department of Veterans
Affairs (VA) physicians in the Compensation and Pension
section of the Veterans Health Administration. See Final
Order, 2024 WL 365145, at *1. In that role, they have pro-
vided medical opinions for assessing veterans’ claims for
disability benefits. Id.
From November 2013 to May 2015, the Kulkarnis ex-
pressed concerns about their supervisor, their colleagues’
competence, the VA’s purportedly unsympathetic approach
to evaluating veterans’ claims, gross mismanagement
within the agency, and potential public health and safety
dangers caused by conduct within the agency. See id. at
*2.
Among other actions, the VA purportedly gave them a
“pay table demotion” in July 2017. See id.; SAppx 51, 56.
They then filed whistleblower reprisal complaints with the
Office of Special Counsel (OSC), and once OSC finished
2 “SAppx” refers to the supplemental appendix filed
with the Government’s brief.
3 Corresponding decisions for Dr. Abhijit Kulkarni
are as follows: Kulkarni v. Dep’t of Veterans Affs., No. DE-
1221-19-0158-W-1, 2024 WL 365141 (M.S.P.B. Jan. 30,
2024); Kulkarni v. Dep’t of Veterans Affs., No. DE-1221-19-
0158-W-1, 2019 WL 1516849 (M.S.P.B. Apr. 4, 2019). Be-
cause the online version of the Initial Decision lacks pagi-
nation, we use the pagination employed in the Board’s
original document. For example, “Initial Decision, 2019
WL 1516850, at 1” corresponds to the first page of the Ini-
tial Decision, located at SAppx 21.
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4 KULKARNI v. MSPB
investigating their complaints, they filed appeals with the
Board. Final Order, 2024 WL 365145, at *1.
The Administrative Judge dismissed their IRA appeals
for lack of jurisdiction. See Initial Decision, 2019 WL
1516850, at 10. In doing so, he explained that some disclo-
sures merely recited the legal standard without providing
any factual allegations, id. at 6, that other disclosures did
not amount to a “protected disclosure” as contemplated by
5 U.S.C. § 2302(b)(8), id. at 6, and that any remaining dis-
closures simply represented a disagreement over the
agency’s policy decisions on how it exercises discretionary
authority, id. at 9. After concluding that they offered no
“nonfrivolous allegation[s] of whistleblowing,” the Admin-
istrative Judge dismissed their appeals. Id. at 10.
The Kulkarnis then petitioned the full Board for review
of their respective Initial Decisions. Final Order, 2024 WL
365145, at *1. But before the Board ruled on their peti-
tions, the Kulkarnis and the VA entered into a settlement
agreement, which resolved all but one claim: a claim
against the pay table demotion. See id. at *2. The Board
denied their petitions for review, but modified the Initial
Decisions to expressly address their disclosures of alleged
“substantial and specific danger[s] to public health or
safety.” Id. at *1, *6. On this front, the Board found their
disclosure of a purported danger “too remote and specula-
tive.” Id. at *6.
The Kulkarnis appeal to this court, contending that
they non-frivolously alleged a series of protected disclo-
sures, and therefore, established jurisdiction before the
Board. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
“We review the Board’s legal conclusion regarding the
scope of its own jurisdiction for correctness and without
deference to the Board’s determination.” Bolton v. Merit
Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
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KULKARNI v. MSPB 5
D ISCUSSION
To establish jurisdiction with the Board, a petitioner
must “make[] ‘non-frivolous allegations’ that (1) she en-
gaged in whistleblowing activity by making a protected dis-
closure 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.” Hessami v. Merit Sys. Prot.
Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020). “An allegation
generally will be considered nonfrivolous when, under oath
or penalty of perjury, an individual makes an allegation
that: (1) Is more than conclusory; (2) Is plausible on its
face; and (3) Is material to the legal issues in the appeal.”
Id. at 1368 (quoting 5 C.F.R. § 1201.4(s)).
We see no error with the Board’s determination that
the Kulkarnis' allegations regarding concerns about their
supervisor, their colleagues’ competence, the VA’s purport-
edly unsympathetic approach to evaluating veterans’
claims, gross mismanagement within the agency, and po-
tential public health and safety dangers caused by conduct
within the agency failed to amount to nonfrivolous allega-
tions of protected disclosures. Further, the Kulkarnis' ar-
guments with regard to 5 U.S.C. § 2302(b)(9), a subsection
of the Whistleblower Protection Act, are forfeited because
these arguments were not raised before the Administrative
Judge.
The Kulkarnis offer two arguments for why the Board
erred in dismissing their appeals for lack of jurisdiction.
First, they contend that an investigating attorney within
OSC suggested that they have a “compelling argument,”
thereby rendering their allegations nonfrivolous. See
Pet’r’s Informal Br. 3 (citation omitted). And second, be-
cause the Office of Accountability Review (OAR) as well as
the Administrative Investigation Board (AIB)—internal
disciplinary bodies within the VA—purportedly substanti-
ated their claims of gross mismanagement, their allega-
tions were nonfrivolous. Id. at 2. We reject both.
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6 KULKARNI v. MSPB
As to the former, the Board’s jurisdiction turns on what
the Kulkarnis pled before the Board. See, e.g., Hessami,
979 F.3d at 1369. Yet they do not identify where—either
in their complaints to OSC or in their appeals to the
Board—they included those statements by the investigat-
ing attorney. And more importantly, even if they did in-
clude these statements, they do not indicate how a third-
party’s characterization of their situations renders their
disclosures nonfrivolous as a legal matter.
As to the latter, the Kulkarnis do not explain how the
findings by an intra-agency disciplinary body support that
they made nonfrivolous allegations. Indeed, the Board ex-
plained that “the misconduct identified by the OAR/AIB
[against their supervisor] . . . is not the alleged misman-
agement [they] disclosed,” and they offer no explanation for
why the Board erred in finding so. See Final Order, 2024
WL 365145, at *5.
There is one last issue and that is with respect to the
Kulkarnis’ reply briefs; they contain multiple citations to
non-existent cases and parenthetical mischaracterizations
of existent cases.4 Despite these blatant errors, the Kul-
karnis do not admit that they used AI-generated hallucina-
tions in their briefing; yet they do not deny it either, nor do
they identify the source of their false citations and quota-
tions. See ECF No. 36. While pro se litigants are under-
standably held to a less stringent standard than parties
represented by counsel, a baseline, common-sense
4 For example, the reply briefs cite “Special Counsel
v. Hatch, 654 F.3d 1376, 1382 (Fed. Cir. 2011).” See Pet’r’s
Informal Reply Br. 9. In fact, the reporter citation points
to a page in CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366 (Fed. Cir. 2011), a patent case. As yet another
example, the reply briefs quote language from Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) that does not appear in
the opinion. See Pet’r’s Informal Reply Br. 3.
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KULKARNI v. MSPB 7
standard nonetheless requires that all parties refrain from
citing non-existent case law and quoting non-existent lan-
guage. To follow the Kulkarnis’ invitation to simply ignore
their conduct would be unacceptable, especially given their
refusal to accept any responsibility for their fictitious cita-
tions. Under the circumstances, we grant the Board’s mo-
tions to strike the Kulkarnis’ informal reply briefs.5 See
ECF No. 35.6
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. We therefore affirm.
AFFIRMED
COSTS
No costs.
5 We also note that, in any event, the arguments in
the reply briefs were new and thus not timely raised. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1319 (Fed. Cir. 2006) (“Our law is well established that ar-
guments not raised in the opening brief are waived.”).
6 See also ECF No. 37 in Appeal No. 2025-1598.
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