Kulkarni v. Merit Sys. Protection Bd. (Dec. 15, 2025)

Case details
Full caption
Sayali Kulkarni & Abhijit Kulkarni v. Merit Systems Protection Board
Country
United States
Jurisdiction
Federal
Decided
Dec. 15, 2025
Disposition
Per Curiam Affirmed
Panel
Dyk (Circuit Judge); Chen (Circuit Judge); Stoll (Circuit Judge)
© 2025 Thomson Reuters. No claim to original U.S. Government Works.SAYALI KULKARNI, Petitioner v. MERIT SYSTEMSPROTECTION BOARD, Respondent ABHIJIT KULKARNI,Petitioner v. MERIT SYSTEMS PROTECTION BOARD,RespondentUnited States Court of Appeals, Federal Circuit. | December 15, 2025 | Not Reported in Fed. Rptr. |2025 WL 3627611Document Detailsstandard Citation:SAYALI KULKARNI, Petitioner v. MERIT SYSTEMS PROTECTIONBOARD, Respondent ABHIJIT KULKARNI, Petitioner, No.2025-1597, 2025 WL 3627611 (Fed. Cir. Dec. 15, 2025)All Citations:Not Reported in Fed. Rptr., 2025 WL 3627611Search DetailsSearch Query:adv: (openai "artificial intelligence" chatgpt "google gemini" "westlawcocounsel" "large language model") (hallucinat! fake fictitious spuriousnonexistent "non-existent" "made up" imagined /p (gpt ai "artificialintelligence" chatgpt chaton perplexity openai copilot "google gemini""google bard" grok "mata v. avianca" claude llm llms)) (hallucinat! fakefictitious spurious nonexistent "non-existent" "made up" imagined) +3(precedent case "legal authority" "legal case") & DATE(aft 1/1/2023)Jurisdiction:Federal Cir.Delivery DetailsDate:December 16, 2025 at 3:16 AMDelivered By: Client ID:NOCLIENTIDOutlineAttorneys and LawFirms (p.1)Opinion (p.1)All Citations (p.3)
SAYALI KULKARNI, Petitioner v. MERIT SYSTEMS..., Not Reported in Fed.... © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3627611Only the Westlaw citation is currently available.United States Court of Appeals, Federal Circuit.SAYALI KULKARNI, Petitionerv.MERIT SYSTEMS PROTECTIONBOARD, RespondentABHIJIT KULKARNI, Petitionerv.MERIT SYSTEMS PROTECTIONBOARD, Respondent2025-1597, 2025-1598|Decided: December 15, 2025Petition for review of the Merit Systems ProtectionBoard in No. DE-1221-19-0157-W-1.Petition for review of the Merit Systems ProtectionBoard in No. DE-1221-19-0158-W-1.Attorneys and Law FirmsSayali Kulkarni, Salt Lake City, UT, pro se.Abhijit Kulkarni, Salt Lake City, UT, pro se.Elizabeth W. Fletcher, Office of the General Counsel,United States Merit Systems Protection Board,Washington, DC, for respondent. Also represented byAllison Jane Boyle, Katherine Michelle Smith.Before Dyk, Chen, and Stoll, Circuit Judges.OpinionPer Curiam.*1 Dr. Sayali Kulkarni and her husband, Dr. AbhijitKulkarni, (collectively, the Kulkarnis) petition forreview of their respective final orders by the MeritSystems Protection Board (Board), which dismissedtheir Individual Right of Action (IRA) appeals forlack of jurisdiction.1 See Kulkarni v. Dep't of VeteransAffs., No. DE-1221-19-0157-W-1, 2024 WL 365145(M.S.P.B. Jan. 30, 2024) (Final Order) (SAppx1–19)2; Kulkarni v. Dep't of Veterans Affs., No.DE1221-19-0157-W-1, 2019 WL 1516850 (M.S.P.B.Apr. 4, 2019) (Initial Decision) (SAppx 21–37).3 Forthe following reasons, we affirm.BackgroundThe Kulkarnis have served as Department of VeteransAffairs (VA) physicians in the Compensation andPension section of the Veterans Health Administration.See Final Order, 2024 WL 365145, at *1. In that role,they have provided medical opinions for assessingveterans’ claims for disability benefits. Id.From November 2013 to May 2015, the Kulkarnisexpressed concerns about their supervisor, theircolleagues’ competence, the VA's purportedlyunsympathetic approach to evaluating veterans’claims, gross mismanagement within the agency, andpotential public health and safety dangers caused byconduct 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 complaintswith the Office of Special Counsel (OSC), and onceOSC finished investigating their complaints, theyfiled appeals with the Board. Final Order, 2024 WL365145, at *1.The Administrative Judge dismissed their IRA appealsfor lack of jurisdiction. See Initial Decision, 2019 WL1516850, at 10. In doing so, he explained that somedisclosures merely recited the legal standard withoutproviding any factual allegations, id. at 6, that otherdisclosures did not amount to a “protected disclosure”as contemplated by 5 U.S.C. § 2302(b)(8), id. at 6,and that any remaining disclosures simply representeda disagreement over the agency's policy decisionson how it exercises discretionary authority, id. at 9.After concluding that they offered no “nonfrivolousallegation[s] of whistleblowing,” the AdministrativeJudge dismissed their appeals. Id. at 10.*2 The Kulkarnis then petitioned the full Boardfor review of their respective Initial Decisions. FinalOrder, 2024 WL 365145, at *1. But before the Boardruled on their petitions, the Kulkarnis and the VA
SAYALI KULKARNI, Petitioner v. MERIT SYSTEMS..., Not Reported in Fed.... © 2025 Thomson Reuters. No claim to original U.S. Government Works.2entered into a settlement agreement, which resolved allbut one claim: a claim against the pay table demotion.See id. at *2. The Board denied their petitions forreview, but modified the Initial Decisions to expresslyaddress their disclosures of alleged “substantial andspecific danger[s] to public health or safety.” Id. at *1,*6. On this front, the Board found their disclosure ofa purported danger “too remote and speculative.” Id.at *6.The Kulkarnis appeal to this court, contending thatthey non-frivolously alleged a series of protecteddisclosures, and therefore, established jurisdictionbefore the Board. We have jurisdiction under 28 U.S.C.§ 1295(a)(9).Standard of Review“We review the Board's legal conclusion regardingthe scope of its own jurisdiction for correctnessand without deference to the Board's determination.”Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316(Fed. Cir. 1998).DiscussionTo establish jurisdiction with the Board, a petitionermust “make[ ] ‘non-frivolous allegations’ that (1)she engaged in whistleblowing activity by making aprotected disclosure under 5 U.S.C. § 2302(b)(8), and(2) the disclosure was a contributing factor in theagency's decision to take or fail to take a personnelaction.” Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362,1367 (Fed. Cir. 2020). “An allegation generally will beconsidered nonfrivolous when, under oath or penaltyof 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 theKulkarnis’ allegations regarding concerns about theirsupervisor, their colleagues’ competence, the VA'spurportedly unsympathetic approach to evaluatingveterans’ claims, gross mismanagement within theagency, and potential public health and safety dangerscaused by conduct within the agency failed to amountto nonfrivolous allegations of protected disclosures.Further, the Kulkarnis’ arguments with regard to 5U.S.C. § 2302(b)(9), a subsection of the WhistleblowerProtection Act, are forfeited because these argumentswere not raised before the Administrative Judge.The Kulkarnis offer two arguments for why theBoard erred in dismissing their appeals for lack ofjurisdiction. First, they contend that an investigatingattorney within OSC suggested that they havea “compelling argument,” thereby rendering theirallegations nonfrivolous. See Pet'r’s Informal Br.3 (citation omitted). And second, because theOffice of Accountability Review (OAR) as wellas the Administrative Investigation Board (AIB)—internal disciplinary bodies within the VA—purportedly substantiated their claims of grossmismanagement, their allegations were nonfrivolous.Id. at 2. We reject both.As to the former, the Board's jurisdiction turns onwhat the Kulkarnis pled before the Board. See, e.g.,Hessami, 979 F.3d at 1369. Yet they do not identifywhere—either in their complaints to OSC or in theirappeals to the Board—they included those statementsby the investigating attorney. And more importantly,even if they did include these statements, they do notindicate how a third-party's characterization of theirsituations renders their disclosures nonfrivolous as alegal matter.As to the latter, the Kulkarnis do not explain how thefindings by an intra-agency disciplinary body supportthat they made nonfrivolous allegations. Indeed, theBoard explained that “the misconduct identified bythe OAR/AIB [against their supervisor] ... is not thealleged mismanagement [they] disclosed,” and theyoffer no explanation for why the Board erred in findingso. See Final Order, 2024 WL 365145, at *5.*3 There is one last issue and that is with respectto the Kulkarnis’ reply briefs; they contain multiplecitations to non-existent cases and parentheticalmischaracterizations of existent cases.4 Despite theseblatant errors, the Kulkarnis do not admit that theyused AI-generated hallucinations in their briefing; yetthey do not deny it either, nor do they identify thesource of their false citations and quotations. See ECFNo. 36. While pro se litigants are understandably held
SAYALI KULKARNI, Petitioner v. MERIT SYSTEMS..., Not Reported in Fed.... © 2025 Thomson Reuters. No claim to original U.S. Government Works.3to a less stringent standard than parties representedby counsel, a baseline, common-sense standardnonetheless requires that all parties refrain fromciting non-existent case law and quoting non-existentlanguage. To follow the Kulkarnis’ invitation to simplyignore their conduct would be unacceptable, especiallygiven their refusal to accept any responsibility for theirfictitious citations. Under the circumstances, we grantthe Board's motions to strike the Kulkarnis’ informalreply briefs.5 See ECF No. 35.6ConclusionWe have considered the parties’ remaining argumentsand find them unpersuasive. We therefore affirm.AFFIRMEDCostsNo costs.All CitationsNot Reported in Fed. Rptr., 2025 WL 3627611Footnotes1Appeal No. 2025-1597 and Appeal No. 2025-1598 were briefed separately. However, because both appealsraise identical issues based on materially identical records and the briefing is essentially the same, weaddress both together. For simplicity, references to the briefing are those filed in connection with AppealNo. 2025-1597.2“SAppx” refers to the supplemental appendix filed with the Government's brief.3Corresponding 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). Because the online version of the InitialDecision lacks pagination, 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 Initial Decision, located atSAppx 21.4For example, the reply briefs cite “Special Counsel v. Hatch, 654 F.3d 1376, 1382 (Fed. Cir. 2011).” SeePet'r’s Informal Reply Br. 9. In fact, the reporter citation points to a page in CyberSource Corp. v. RetailDecisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011), a patent case. As yet another example, the reply briefsquote 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. 3.5We 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 wellestablished that arguments not raised in the opening brief are waived.”).6See also ECF No. 37 in Appeal No. 2025-1598.End of Document© 2025 Thomson Reuters. No claim to original U.S.Government Works.
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