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0 | https://www.mspb.gov/decisions/precedential/Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 4
Docket No. CH-0842-21-0460-I-2
Stacey M. Logan,
Appellant,
v.
Department of Homeland Security,
Agency.
March 14, 2025
Jeff Schrameck , Esquire, Canton, Michigan, for the appellant.
Mary Musilek , Esquire, and Sarah Nelson , Bloomington, Minnesota,
for the agency.
Reva Ghadge , Esquire, Minneapolis, Minnesota, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1The agency has filed a petition for review of the initial decision,
which reversed the agency’s final decision and found that the appellant is eligible
for enhanced Customs and Border Protection Officer (CBPO) retirement benefits.
For the reasons set forth below, we DENY the petition for review and AFFIRM
the initial decision as MODIFIED by this Opinion and Order, clarifying that the
plain language of the statute and the regulations regarding entitlement to
enhanced CBPO retirement benefits does not require an employee to perform the
identified duties for a specified percentage of time.
BACKGROUND
¶2From January 12, 2003, until July 25, 2004, the appellant worked as
a GS-1816 U.S. Immigration Inspector for the U.S. Immigration and
Naturalization Service, the predecessor agency of U.S. Customs and Border
Protection (CBP). Logan v. Department of Homeland Security, MSPB Docket
No. CH-0842-21-0460-I-1, Initial Appeal File (IAF), Tab 1 at 5, Tab 5 at 7-8. On
July 25, 2004, the appellant transferred to CBP as a GS-1895 CBPO, a position
she remained in until April 1, 2007. Id. At the time, both positions were covered
under the standard Federal Employees’ Retirement System (FERS) and not
entitled to enhanced retirement benefits. IAF, Tab 5 at 7-8. On April 1, 2007,
the appellant began working in a GS-1895-11 CBPO-Enforcement (CBPO -E)
position, which was eligible for primary law enforcement officer (LEO) special
retirement coverage (SRC). Id. at 7, 54. In December 2007, while the appellant
was working as a CBPO-E eligible for LEO SRC, Congress passed the
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, div. E,
title V, § 535(b)(1)(C), (b)(2), 121 Stat. 1844, 2075-76 (2007) (codified at
5 U.S.C. § 8401(36)), which made certain customs and border protection officer
positions eligible for special retirement benefits (CBPO SRC) that were
previously only available to LEOs at the agency in a system similar to but distinct
from LEO SRC.
¶3On May 23, 2010, the appellant accepted a competitive promotion
from the CBPO-E position to a GS-1895-12 CBPO-Intelligence (CBPO-I)
position with the agency’s Office of Field Operations, which she still occupies.
IAF, Tab 5 at 7, 39. CBPO-I positions are eligible for CBPO SRC, and when the
appellant accepted the position, the agency indicated that she would “be switched
to the CBP Officer enhanced coverage.” See id. at 7, 41, 51. In 2011, the Office
of Personnel Management (OPM) amended its regulations to reflect the changes
in retirement benefits available to certain CBPOs and to specifically distinguish
between “primary” coverage positions and “secondary” coverage positions. See2
Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41993
(July 18, 2011). In 2016, it appears that the agency determined that the
appellant’s position is covered under the CAA as a “secondary” covered position.
IAF, Tab 5 at 45.
¶4By letter dated August 27, 2021, the agency’s human resources office
informed the appellant that it had incorrectly indicated that she was covered
under CBPO SRC when she entered her position in May 2010. Id. at 29. The
agency explained that, although the appellant’s current position is approved for
SRC, the appellant was not eligible to receive CBPO SRC because she moved
directly from a LEO retirement covered position to her current CBPO SRC
secondary position, instead of directly from a CBPO SRC primary position to a
CBPO SRC secondary position, per OPM’s regulations. Id. The letter informed
the appellant that it would initiate a personnel action to correct the error and that
her retirement coverage would be standard FERS, retroactively effective
May 23, 2010. Id.
¶5The appellant filed an appeal of this determination, requesting that
the Board find that her tenure as a CBPO-E met or exceeded the duties of a
CBPO SRC primary position, and that her retirement status be returned to
LEO SRC. IAF, Tab 1 at 4. While the case was pending before the
administrative judge, the agency submitted a motion to dismiss for lack of Board
jurisdiction as it had not yet issued a final agency decision (FAD) on the matter,
and the administrative judge subsequently dismissed the case without prejudice to
the appellant’s right to refile. IAF, Tabs 12, 22. In June 2022, the agency issued
a FAD noting that its classification team had reviewed the appellant’s position
description and confirmed that it is entitled to secondary CBPO retirement
coverage, and found that the August 27, 2021 letter correctly stated that the
appellant is ineligible for either CBPO or LEO SRC and is only legally entitled to
standard FERS retirement. Logan v. Department of Homeland Security,3
MSPB Docket No. CH-0842-21-0460-I-2, Appeal File (I-2 AF), Tab 1 at 4. The
appellant subsequently filed a Board appeal of the FAD. Id. at 3.
¶6In her submissions to the administrative judge, the appellant argued,
among other things, that she is entitled to SRC coverage as a primary CBPO
because there was no distinction between primary and secondary SRC coverage in
2010 when she accepted the CBPO-I position, and that the doctrine of equitable
estoppel precludes the agency from taking away her SRC benefits after 11 years.
I-2 AF, Tab 16; see also I-2 AF, Tabs 7, 13. The agency, on the other hand,
maintained that the appellant is not entitled to CBPO SRC because she transferred
from a LEO SRC primary position to a CBPO secondary position, she is not
entitled to the LEO SRC because she transferred out of a LEO SRC eligible
position into a CBPO SRC eligible position, and she cannot meet her burden to
prove equitable estoppel. I-2 AF, Tab 18.
¶7After the appellant withdrew her hearing request, the administrative
judge issued an initial decision based on the written record that reversed the FAD.
I-2 AF, Tab 20, Initial Decision (ID) at 1-2, 30. The administrative judge
concluded that the appellant met her burden to prove that her current CBPO-I
position is entitled to SRC as a primary CBPO covered position based on the
plain language of the statute and its implementing regulations. ID at 10-23. The
administrative judge found the agency’s interpretation of the language regarding
primary positions in OPM’s regulations—namely, that an individual performs the
identified duties at least 50 percent of the time—was more restrictive than the
CAA. ID at 12-20. The administrative judge also determined that, to the extent
the appellant was arguing that she is entitled to continued SRC coverage from her
CBPO-E position through her CBPO-I position, the CAA and OPM have made
clear that the duties of a LEO and a CBPO are not equivalent, and that service in
those two categories of employment is not interchangeable. ID at 23-25. Thus,
the administrative judge ordered the agency to correct the appellant’s personnel4
file to reflect her entitlement to CBPO SRC, effective May 23, 2010. ID
at 30-31.
¶8The agency has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The appellant, who was pro se below and is now represented
by counsel, has filed a response. PFR File, Tab 7. The agency has filed a reply.
PFR File, Tab 9.
ANALYSIS
¶9Federal civil service retirement laws provide enhanced retirement
coverage to persons who serve in certain positions, such as LEOs, firefighters,
and CBPOs. 5 U.S.C. § 8412(d). Eligibility for enhanced retirement coverage is
strictly construed because it is more costly to the Government than traditional
retirement plans and often results in the retirement of important people at a time
when they otherwise would have continued to work for a number of years.
Kroll v. Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6 (2014). An
employee seeking enhanced retirement benefits bears the burden of proving her
entitlement thereto by preponderant evidence. Fritts v. Department of Homeland
Security, 102 M.S.P.R. 265, ¶ 6 (2006) (discussing LEO retirement coverage);
5 C.F.R. § 1201.56(b)(2)(ii).
¶10Pursuant to the enhanced retirement statute, a CBPO “who is
separated from the service, except by removal for cause on charges of misconduct
or delinquency—after completing 25 years of service . . . [or] after becoming
50 years of age and completing 20 years of service” is entitled to an annuity.
5 U.S.C. § 8412(d)(1)(A)-(B). A CBPO who may receive enhanced retirement
coverage is defined as:
[A]n employee in the Department of Homeland Security (A) who
holds a position within the GS-1895 job series (determined applying
the criteria in effect as of September 1, 2007) or any successor
position, and (B) whose duties include activities relating to the
arrival and departure of persons, conveyances, and merchandise at
ports of entry, including any such employee who is transferred5
directly to a supervisory or administrative position in the Department
of Homeland Security after performing such duties (as described in
subparagraph (B)) in 1 or more positions (as described in
subparagraph (A)) for at least 3 years.
5 U.S.C. § 8401(36).
¶11In 2011, OPM promulgated regulations to govern the CBPO
enhanced retirement coverage program, which included setting forth distinctions
between primary and secondary CBPO positions. 76 Fed. Reg. 41993 (codified at
5 C.F.R. § 842.1001 et seq.). An employee’s service in both primary and
secondary positions may count towards her eligibility for enhanced CBPO
retirement coverage. 5 C.F.R. §§ 842.1002, 842.1003. Section 842.1002 defines
the terms “primary position” and “secondary position” as follows:
Primary position means a position classified within the [CBPO]
(GS-1895) job series (determined by applying the criteria in effect as
of September 1, 2007) or any successor position whose duties
include the performance of work directly connected with activities
relating to the arrival and departure of persons, conveyances, and
merchandise at ports of entry.
Secondary position means a position within the Department of
Homeland Security that is either—
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in
a primary customs and border protection officer position is a
prerequisite.
¶12On review, the agency contends that the administrative judge
misinterpreted OPM’s implementing regulations to avoid giving effect to the
categorical distinction between primary and secondary positions—or front-line
and supervisory/administrative positions—in her analysis that the CBPO-I
position is entitled to primary SRC, thus rendering the regulations meaningless.
PFR File, Tab 1 at 13-17. The agency also maintains that the administrative6
judge erroneously failed to give deference to OPM’s regulations, id. at 8-11, and
its interpretation of the CBPO SRC statute, id. at 11-13. For the reasons that
follow, we agree with the administrative judge.
The administrative judge correctly found that the plain language of 5 U.S.C.
§ 8401(36) entitles the appellant to CBPO SRC.
¶13Statutorily, to be entitled to CBPO SRC, an employee must hold a
position in the GS-1895 series and the position’s duties must “ include activities
relating to the arrival and departure of persons, conveyances, and merchandise at
ports of entry,” including any employee who transferred directly to a supervisory
or administrative position in the agency after performing such duties for 3 years.
5 U.S.C. § 8401(36) (emphasis added). The agency determined that the appellant
is ineligible for the CBPO SRC because she never held a CBPO primary position,
and she transferred directly from a LEO SRC position to a CBPO SRC position.
IAF, Tab 5 at 8, 29.
¶14It is undisputed that the appellant holds a GS-1895 position. Further,
the administrative judge determined that the appellant’s position description
specifically states that her work “[d]eals with inspection, intelligence analysis,
examination, and law enforcement activities relating to arrivals and departures of
persons, conveyances, and merchandise at ports of entry,” and that it
contemplated that she would perform, at least occasionally, inspectional work.
ID at 11 (citing IAF, Tab 5 at 47-48). Further, the administrative judge found,
and the agency does not dispute, that the appellant actually performs those
identified duties in her CBPO-I position. ID at 11-20; see Felzien v. Office of
Personnel Management, 930 F.2d 898, 903 (Fed. Cir. 1991) (finding that, not
only the position description but also the duties actually performed by the
appellant, determine SRC eligibility). Thus, the administrative judge correctly
concluded that, pursuant to the statute, the appellant is entitled to CBPO SRC.
ID at 15.7
Neither 5 U.S.C. § 8401(36) nor OPM’s regulations require a minimum amount of
time performing activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry for entitlement to primary
CBPO SRC.
¶15On petition for review, the agency reasserts that, to be eligible for
CBPO SRC primary coverage, an employee must perform the identified duties
more than 50 percent of the time. PFR File, Tab 1 at 12; I-2 AF, Tab 12 at 6-8.
It explains that, because the statute and regulations are silent as to the amount of
time an employee must spend performing duties that “relate to” or are “directly
connected” with activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry, it looked to the LEO SRC
statutory scheme, after which the CBPO statutory scheme is modeled. Id.
at 12-13. In support of its assertion, the agency argues that Olszak v. Department
of Homeland Security, 117 M.S.P.R. 75 (2011), aff’d per curiam, 475 F. App’x
757 (Fed. Cir. 2012), is applicable here and that primary covered positions are
only those positions that entail the “front-line” law enforcement duties, similar to
their LEO counterparts. PFR File, Tab 1 at 10-15. It further contends that the
administrative judge’s interpretation of the statute and regulations contradicts
Olszak. PFR File, Tab 1 at 10-15.
¶16If a statute’s language provides a clear answer as to its meaning, the
statutory interpretation inquiry ends, and the plain meaning of the statute is
regarded as conclusive absent a clearly expressed legislative intent to the
contrary. Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶ 16.
Here, the statute does not in any way establish a minimum percentage of time that
an employee must perform duties, including “activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry.” 5 U.S.C.
§ 8401(36); 5 C.F.R. §§ 842.1002, 842.1003. Additionally, there is no clearly
expressed legislative intent that the statute was intended to include such a
requirement. 8
¶17Contrary to the agency’s assertions, the statutory language for
LEO SRC and CBPO SRC are distinctly different. To be entitled to a LEO SRC,
it is required that an employee’s duties “are primarily—the investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against the criminal laws of the United States,” or “the protection of officials of
the United States against threats.” 5 U.S.C. § 8401(17) (emphasis supplied).
There is no corresponding requirement in 5 U.S.C. § 8401(36) that a CBPO’s
duties “primarily” be related to the arrival and departure of persons, conveyances,
and merchandise at ports of entry. Congress’s decision to omit a requirement
from CBPO SRC eligibility that the employee “primarily” perform the listed
duties has every appearance of being intentional, in light of its decision to include
such a requirement for LEOs in the very same statute. When Congress included
particular language in one section of a statute but omitted it in another section of
the same statute, generally, it is presumed that Congress acted intentionally and
purposely in the disparate inclusion or exclusion. Russello v. United States,
464 U.S. 16, 23 (1983); Moulton v. Office of Personnel Management, 2023 MSPB
26, ¶ 17. This principle applies all the more strongly when comparing provisions
found in the same section of a statute. See Moncada v. Executive Office of the
President, 2022 MSPB 25, ¶ 17 (finding that, because different terms were used
in the same statutory section, Congress intended those terms to have different
meanings).
¶18Furthermore, even though OPM’s regulations make a distinction
between primary and secondary CBPO positions, there is no language in the
regulations that requires the appellant to perform the identified CBPO SRC duties
“primarily” or for a specified percentage of time to be entitled to primary
CBPO SRC. Compare 5 C.F.R. § 842.802 (defining “primary duties” and
“secondary position” in the context of SRC for LEOs, firefighters, and air traffic
controllers), with 5 C.F.R. §§ 842.1002, 842.1003(c)(1) (setting forth the
definitions and conditions of coverage for CBPO SRC). Rather, the regulations9
governing CBPO SRC merely require that the appellant perform duties directly
connected with activities relating to arrival and departures of persons,
conveyances, and merchandise at ports of entry. 5 C.F.R. §§ 842.1002,
842.1003(c)(1).
¶19We also find that Olszak is distinguishable from the instant case. In
Olszak, the dispositive issue was whether an employee’s Asylum Officer position
qualified for secondary CBPO SRC eligibility. Olszak, 117 M.S.P.R. 75, ¶¶ 5-15.
To qualify as a secondary CBPO, the employee’s position must either be:
“(1) Supervisory; i.e., a position whose primary duties are as a first-level
supervisor of [CBPOs] in primary positions; or (2) Administrative; i.e., an
executive, managerial, technical, semiprofessional, or professional position for
which experience in a primary CBPO position is a prerequisite.” 5 C.F.R.
§ 842.1002.1 The Board held that the employee’s position did not qualify as a
covered secondary position because he did not supervise primary CBPOs or hold
a position in which experience in a primary CBPO position was a prerequisite.
Olszak, 117 M.S.P.R. 75, ¶¶ 8-9. Because the instant appeal does not involve
secondary CBPO coverage, Olszak is inapplicable.
OPM’s regulations are not entitled to controlling deference for statutory
interpretation.
¶20The agency also argues on review that the administrative judge failed
to give deference to OPM’s regulations, which, according to the agency, would
render the appellant ineligible for CBPO SRC, as required by Chevron, U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984). PFR File,
Tab 1 at 8-11. It further contends that the administrative judge failed to accord
its interpretation deference, as required by Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944).
1 Although the Board decided this case prior to the promulgation of 5 C.F.R. § 842.1002, the
U.S. Court of Appeals for the Federal Circuit observed that the agency and the Board had used
a definition for a secondary CBPO position that had “no substantial differences” from the
regulation. Olszak, 475 F. App’x at 760.10
¶21First, as explained above, nothing in OPM’s regulations actually
precludes the appellant’s eligibility for primary CBPO SRC. Second, in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369, 396-412 (2024), the U.S. Supreme
Court overruled the principle of Chevron deference, which had directed courts to
defer to an agency’s reasonable interpretation of an ambiguity in a law that the
agency enforces. See Chevron, 467 U.S. at 844-45. Instead, Loper Bright
endorses the weaker Skidmore deference, which provides that an agency’s
statutory “interpretations and opinions,” “made in pursuance of official duty,”
and “based upon . . . specialized experience,” provides guidance upon which
courts may resort, depending upon the “thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors” that give it the power to persuade.
Loper Bright, 603 U.S. at 388 (quoting Skidmore, 323 U.S. at 139-40). Or put
another way, Skidmore recognizes that an agency’s interpretation of a statute it
administers may have persuasive, but not controlling, authority. Skidmore,
323 U.S. at 140. In short, the agency’s interpretation in this matter would not be
entitled to controlling deference, even if the statutory language were ambiguous
on the topic of how much time an employee must spend on the listed duties,
which it is not.
¶22Accordingly, for the reasons set forth above, we affirm the initial
decision’s finding that the appellant has proved that she is statutorily entitled
to primary CBPO SRC, except as modified to clarify that the plain language of
the statute and regulations covering enhanced CBPO retirement benefits does not
require an employee to perform the identified duties for a specified percentage of
time to be classified as a CBPO primary position.
ORDER
¶23We ORDER the agency to grant the appellant the appropriate amount
of CBPO retirement credit, effective May 23, 2010. We also ORDER the agency11
to tell the appellant promptly in writing when it believes it has fully carried out
the Board’s Order and of the actions it has taken to carry out the Board’s Order.
The appellant, if not notified, should ask the agency about its progress. See
5 C.F.R. § 1201.181(b).
¶24No later than 30 days after the agency tells the appellant that it has
fully carried out the Board’s Order, the appellant may file a petition for
enforcement with the office that issued the initial decision on this appeal if the
appellant believes that the agency did not fully carry out the Board’s Order. The
petition should contain specific reasons why the appellant believes that the
agency has not fully carried out the Board’s Order, and should include the dates
and results of any communications with the agency. 5 C.F.R. § 1201.182(a).
¶25This is the final decision of the Merit Systems Protection Board in
this appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), 1214(g) or
3330c(b); or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these criteria, you
must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION. You must file your attorney fees motion with the
office that issued the initial decision on your appeal.12
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Logan_Stacey_M_CH-0842-21-0460-I-2_Opinion_and_Order.pdf | 2025-03-14 | Stacey M. Logan v. Department of Homeland Security, 2025 MSPB 4 | CH-0842-21-0460-I-2 | P |
1 | https://www.mspb.gov/decisions/precedential/Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 3
Docket No. PH-0752-24-0055-R-1
Brian Austin,
Appellant,
v.
Department of Justice,
Agency.
March 7, 2025
Brian Austin , Dunmore, Pennsylvania, pro se.
Kelly A. Smith , Esquire, and Monica Hansen , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
OPINION AND ORDER
¶1We previously reopened this appeal on our own motion, pursuant to
5 U.S.C. § 7701(e)(1)(B). Austin v. Department of Justice , MSPB Docket
No. PH-0752-24-0055-R-1, Reopened Appeal File (RAF), Tab 1; see 5 C.F.R.
§ 1201.118; see also Kling v. Department of Justice , 2 M.S.P.R. 464, 468 (1980)
(recognizing the Board’s authority under 5 U.S.C. § 7701(e)(1)(B) to reopen a
case on its own motion, without the necessity of a petition for review by any
party or the Director of the Office of Personnel Management). For the reasons set
forth below, we VACATE the initial decision, which dismissed the appeal for
lack of jurisdiction under the whistleblower protection statutory scheme set forth
in 5 U.S.C. §§ 1221 and 2302. We REMAND this matter to the Northeastern
Regional Office for the administrative judge to provide the appellant with the
jurisdictional burden of proof applicable to whistleblower reprisal claims
involving employees of the Federal Bureau of Investigation (FBI) brought under
5 U.S.C. § 2303 and to adjudicate this matter consistent with that statute.
BACKGROUND
¶2At the time relevant to this appeal, filed in November 2023, the
appellant held a position with the FBI. Austin v. Department of Justice , MSPB
Docket No. PH-0752-24-0055-I-1, Initial Appeal File (IAF), Tab 1 at 1, 6. In his
initial pleading to the Board, the appellant alleged that the agency took various
actions against him in retaliation for protected disclosures he made, including
some about violations of law and policy.1 Id. at 2. The administrative judge
issued an acknowledgement order with general information about the adjudication
of the appeal. IAF, Tab 2. Soon thereafter, the agency submitted a motion to
dismiss the appeal for lack of jurisdiction. IAF, Tab 4. The agency argued that
the appellant had already elected to pursue allegations like those presented in his
initial pleading through the equal employment opportunity process and that the
appellant failed to make nonfrivolous allegations of an adverse action. Id. at 4-7.
¶3After reviewing these pleadings, the administrative judge issued an
order, describing the appellant’s jurisdictional burden applicable to an individual
right of action (IRA) appeal, which included proof of exhaustion of
administrative remedies before the Office of Special Counsel (OSC). IAF, Tab 7
(citing, e.g., 5 U.S.C. §§ 1221, 2302); see Gabel v. Department of Veterans
Affairs, 2023 MSPB 4, ¶ 5 (setting forth the appellant’s jurisdictional burden in
an IRA appeal). The appellant responded, citing the administrative judge’s
1 The appellant subsequently alleged that the agency took additional actions against him
in reprisal for his refusal to obey an order that would have required him to violate
agency policy. IAF, Tab 6 at 3. 2
jurisdictional order and requesting that his appeal be dismissed without prejudice.
IAF, Tab 8 at 3.
¶4The administrative judge issued another order seeking clarification.
IAF, Tab 9. The administrative judge asked if the appellant was conceding that
he could not establish jurisdiction at the time and intended to exhaust his remedy
with OSC. Id. The appellant responded without explicitly answering the
administrative judge’s question. IAF, Tab 10. But he again asked that the Board
dismiss his appeal for lack of jurisdiction, this time without any indication of
whether the dismissal should be with or without prejudice. Id. at 3.
¶5Based on these pleadings, the administrative judge issued an initial
decision finding that the appellant had voluntarily withdrawn his appeal and
dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID).
He indicated that the appellant had seemingly conceded that he could not yet
establish Board jurisdiction. ID.
¶6Neither party filed a petition for review of the initial decision. As
noted above, however, the Board issued an order reopening the appeal. RAF,
Tab 1. In doing so, we explained that the Board intended to decide the matter on
the existing record, so no additional pleadings were necessary at the time. Id.
ANALYSIS
¶7Title 5, United States Code, section 2302 includes a list of prohibited
personnel practices, including some that concern whistleblower retaliation.
5 U.S.C. § 2302(b)(8), (9). In turn, 5 U.S.C. § 1214 describes how OSC should
receive and handle allegations of prohibited personnel practices and provides that
certain individuals who allege a prohibited personnel practice described in
5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), (D) may, if certain prerequisites
are met, seek corrective action from the Board under 5 U.S.C. § 1221. 5 U.S.C.
§ 1214. Those prerequisites include exhausting administrative remedies with
OSC by, among other things, affording OSC time to seek corrective action on the3
individual’s behalf. 5 U.S.C. § 1214(a)(3). Meanwhile, 5 U.S.C. § 1221 grants
certain individuals the right to file an IRA appeal with the Board regarding
purported violations of 5 U.S.C. § 2302(b)(8), (9)(A)(i), (B), (C), or (D), and like
section 1214(a)(3), the statute authorizing IRA appeals with the Board also
requires the exhaustion of administrative remedies before OSC. 5 U.S.C.
§ 1221(a) (referencing 5 U.S.C. § 1214(a)(3)); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 5; Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 5. The IRA appeal statute further explains that the Board will
order corrective action if a covered individual demonstrates that their protected
disclosure or activity was a contributing factor in a covered personnel action,
unless the agency proves by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected whistleblowing.
5 U.S.C. § 1221(e); Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 8, 23.
¶8To establish Board jurisdiction in an IRA appeal, a covered
individual must, as discussed above, prove by preponderant evidence that he
exhausted his administrative remedies with OSC. Chambers, 2022 MSPB 8, ¶ 11
(citing 5 U.S.C. § 1214(a)(3), 5 C.F.R. § 1201.57(c)(1)). He must also make
nonfrivolous allegations that: (1) he made a protected whistleblowing disclosure
under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing activity
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take,
or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). Cooper, 2023 MSPB 24, ¶ 8 (citing 5 U.S.C. §§ 1214(a)(3),
1221(e)(1)). This is the jurisdictional standard described by the administrative
judge during the proceedings below. IAF, Tab 7.
¶9Section 2302 is, however, inapplicable to FBI employees, such as the
appellant. The statutory prohibition on whistleblower reprisal applies only in the
context of personnel actions by an “agency.” 5 U.S.C. § 2302(a)(2)(A). In turn,
the statute provides a definition of “agency” in which the FBI is one of several4
entities explicitly excluded.2 5 U.S.C. § 2302(a)(2)(C)(ii). Consequently,
FBI employees are unable to bring an IRA appeal before the Board under
5 U.S.C. § 1221.3 Parkinson v. Department of Justice , 874 F.3d 710, 713-14
(Fed. Cir. 2017) (en banc); Patterson v. Department of Justice , 52 M.S.P.R. 651,
653-54 (1992) (explaining that an FBI employee’s whistleblower reprisal
allegations could not be considered an IRA appeal because the FBI is not an
agency covered by 5 U.S.C. § 2302(a)(2)).
¶10For FBI employees, we must instead look to 5 U.S.C. § 2303, a
provision that prohibits whistleblower retaliation within the FBI. While
comparable, section 2303 is notably different from section 2302 in some
important respects. For example, the types of disclosures and activities that are
protected for FBI employees are more limited than the types of disclosures and
activities protected for individuals covered by section 2302. Compare 5 U.S.C.
§ 2302(b)(8), with 5 U.S.C. § 2303(a).
¶11In the past, individuals seeking redress for violations of section 2303
could not bring those claims to the Board. Parkinson, 874 F.3d at 714-15. That
is because the prior version of section 2303 simply provided as follows:
(b) The Attorney General shall prescribe regulations to ensure that
such a personnel action shall not be taken against an employee of the
Bureau as a reprisal for any disclosure of information described in
subsection (a) of this section.
2 The statute also excludes the Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency, the National Security Agency,
the Office of the Director of National Intelligence, the National Reconnaissance Office,
and the Government Accountability Office from the definition of an agency. 5 U.S.C.
§ 2302(a)(2)(C)(ii)(I), (iii). The statute further provides that the President may
designate other executive agencies or units as excluded from the definition of an agency
under certain circumstances. 5 U.S.C. § 2302(a)(2)(C)(ii)(II).
3 For similar reasons, an FBI employee may not raise a whistleblower reprisal
affirmative defense under 5 U.S.C. § 2302 in an otherwise appealable action.
Parkinson v. Department of Justice , 874 F.3d 710, 713-14 (Fed. Cir. 2017) (en banc);
Van Lancker v. Department of Justice , 119 M.S.P.R. 514, ¶¶ 5, 9-15 (2013).5
(c) The President shall provide for the enforcement of this section in
a manner consistent with applicable provisions of sections 1214
and 1221 of this title.
5 U.S.C. § 2303(b), (c) (2016). Analyzing those provisions and associated
agency regulations, the U.S. Court of Appeals for the Federal Circuit explained
that the FBI whistleblower protection scheme funneled whistleblower reprisal
complaints through the agency’s own Office of Professional Responsibility and
Office of Inspector General, rather than OSC and the Board. Parkinson, 874 F.3d
at 714-15.
¶12The statutory language from above remains. More recently, though,
Congress added another provision, providing one avenue in which the Board may
consider appeals raising whistleblower retaliation claims by employees of the
FBI.4 Section 5304 of the National Defense Authorization Act for 2023 amended
5 U.S.C. § 2303, effective December 23, 2022, as follows:
(d)(1) An employee of the Federal Bureau of Investigation who
makes an allegation of a reprisal under regulations promulgated
under this section may appeal a final determination or corrective
action order by the Bureau under those regulations to the Merit
Systems Protection Board pursuant to section 1221.
(2) If no final determination or corrective action order has been made
or issued for an allegation described in paragraph (1) before the
expiration of the 180-day period beginning on the date on which the
allegation is received by the Federal Bureau of Investigation, the
employee described in that paragraph may seek corrective action
directly from the Merit Systems Protection Board pursuant to
section 1221.
Pub. L. No 117-263, 136 Stat. 2395, 3250-51 (codified at 5 U.S.C.
§ 2303(d)(1)-(2)). Associated regulations further explain the process for
reporting allegations of whistleblower reprisal prohibited by section 2303 within
4 To the extent that Van Lancker, 119 M.S.P.R. 514, ¶ 11, and any other decisions have
stated that FBI employees could not bring whistleblower retaliation claims before the
Board in any form, those decisions are hereby overruled. Our decision today describes
one way in which allegations of whistleblower retaliation at the FBI may come before
the Board.6
the agency, along with the agency procedures. 28 C.F.R. §§ 27.1-27.9. The
agency regulations acknowledge the right to file a Board appeal under 5 U.S.C.
§ 2303(d), but they are otherwise silent about Board appeals. 28 C.F.R. § 27.7.
¶13Section 2303(d) expressly provides that appeals to the Board from
FBI employees are taken pursuant to 5 U.S.C. § 1221. That statute specifies that
the Board shall order such corrective action as it considers appropriate if an
employee, former employee, or applicant for employment demonstrates that a
disclosure or protected activity was a contributing factor in the personnel action
which was taken or is to be taken against such employee, former employee, or
applicant. 5 U.S.C. § 1221(e)(1). Accordingly, we find that 5 C.F.R. § 1201.57,
the Board’s regulation setting forth the jurisdictional standards for appeals
brought under 5 U.S.C. § 1221, should also be applied to appeals brought
pursuant to 5 U.S.C. § 2303. That Board regulation states that exhaustion of a
statutory complaint process that is preliminary to an appeal to the Board must be
proven by preponderant evidence, but that an appellant must make nonfrivolous
allegations regarding the substantive jurisdictional elements applicable to the
particular type of appeal he or she has initiated. 5 C.F.R. § 1201.57(b), (c)(1).
¶14During the proceedings below, the administrative judge mistakenly
provided the appellant with the jurisdictional requirements for an IRA appeal
brought by individuals covered under 5 U.S.C. § 2302, including the requirement
of exhausting administrative remedies with OSC before coming to the Board.
IAF, Tab 7. Because the appellant did not receive the correct jurisdictional
notice, we must remand this matter for further proceedings, including providing
the correct jurisdictional notice. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue); Niemi v. Department of the Interior , 114 M.S.P.R. 143, ¶ 8 (2010) (same) .
¶15On remand, the administrative judge should give the appellant notice
of how to establish Board jurisdiction over an appeal under 5 U.S.C. § 2303,7
rather than 5 U.S.C. § 2302, since the appellant was an FBI employee at the time
of the alleged whistleblower retaliation. That jurisdictional burden for an FBI
employee includes proof by preponderant evidence that he exhausted his
administrative remedies within the FBI, as described in 5 U.S.C.
§ 2303(d)(1)-(2).5 See 5 C.F.R. § 1201.57(c)(1). The jurisdictional burden for an
FBI employee also requires a nonfrivolous allegation that the employee made
disclosures protected by 5 U.S.C. § 2303(a) that were a contributing factor in one
or more of the “personnel actions” described in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii).6
5 U.S.C. § 2303(a); 5 C.F.R. § 1201.57(b); 28 C.F.R. § 27.2(b). This conclusion
is consistent with the language of the statute, its references to 5 U.S.C.
§§ 1214, 1221, and the Board’s regulations pertaining to IRA appeals.
5 U.S.C. § 2303(c), (d); 5 C.F.R. § 1201.57.
¶16If the appellant meets his jurisdictional burden on remand, the
administrative judge must adjudicate this appeal on the merits. Regarding the
merits, 5 U.S.C. § 1221(e) provides a burden shifting framework for adjudicating
alleged violations of 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D) on the
5 Section 2303(a) prohibits reprisal against FBI employees and applicants for
employment. However, the subsequent statutory provisions regarding enforcement
within the agency and Board appeal rights refer only to FBI employees. 5 U.S.C.
§ 2303(b)-(d). Because the appellant was an employee, we need not decide whether
applicants for employment with the FBI have the same Board appeal rights as FBI
employees under section 2303.
6 Section 2303(a) sets forth the personnel actions covered by the statute by referring to
the personnel actions delineated in 5 U.S.C. § 2302(a)(2)(A)(i)-(x). However, an
agency regulation prohibiting reprisal against FBI employees describes covered
personnel actions as those identified in 5 U.S.C. § 2302(a)(2)(A)(i)-(xii). 28 C.F.R.
§ 27.2(b). In other words, the regulation adds the personnel actions listed in 5 U.S.C.
§ 2302(a)(2)(A)(xi) and (xii) to the list of covered personnel actions applicable to the
FBI. In the Federal Register notice for 28 C.F.R. § 27.2, the agency pointed out that
when Congress added personnel actions to 5 U.S.C. § 2302(a)(2)(A), it did not similarly
alter the list of personnel actions in section 2303. Whistleblower Protection for Federal
Bureau of Investigation Employees , 64 Fed. Reg. 58782, 58784-85 (Nov. 1, 1999). It
appears that the agency decided that it had the authority, under 5 U.S.C. § 301, to
augment the personnel actions list by regulation, without Congress amending
section 2303. See id.8
merits. The Board’s regulations provide similarly. 5 C.F.R. § 1209.7. While
there is no analogous provision in 5 U.S.C. § 2303, and the Board has not yet
promulgated any regulations regarding the adjudication of appeals under
section 2303, we find the same burden -shifting framework appropriate. Once
again, our application of that framework is consistent with section 2303’s
references to 5 U.S.C. §§ 1214 and 1221, as well as the Board’s regulations
pertaining to IRA appeals. 5 U.S.C. § 2303; 5 C.F.R. § 1201.57.
¶17Accordingly, if the appellant establishes jurisdiction over his appeal
under section 2303, he must prove that he made a protected disclosure that was a
contributing factor in a covered personnel action. If he meets that burden, the
agency may avoid being required to grant corrective action only if it proves by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the protected whistleblowing.
ORDER
¶18For the reasons discussed above, we remand this case to the
Northeastern Regional Office for further adjudication in accordance with this
Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Austin_BrianPH-0752-24-0055-R-1_Opinion_and_Order.pdf | 2025-03-07 | Brian Austin v. Department of Justice, 2025 MSPB 3 | PH-0752-24-0055-R-1 | P |
2 | https://www.mspb.gov/decisions/precedential/Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 2
Docket No. AT-1221-19-0410-W-1
Kali Mary Holman,
Appellant,
v.
Department of the Army,
Agency.
February 27, 2025
Kali Mary Holman , Phenix City, Alabama, pro se.
Nic Roberts , Fort Moore, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication consistent with this Opinion and Order. This Opinion and
Order clarifies the extent to which an equal employment opportunity (EEO)
complaint may constitute protected activity under 5 U.S.C. § 2302(b)(9)(C).
BACKGROUND
¶2The appellant was a GS-07 Purchasing Agent for the agency,
stationed in Fort Benning, Georgia.1 Initial Appeal File (IAF), Tab 1 at 1, Tab 6
at 4. In early 2019, she filed two whistleblower complaints with the Office of
Special Counsel (OSC)—one on February 4, 2019, and one on March 12, 2019.
IAF, Tab 1 at 14-22; Petition for Review (PFR) File, Tab 4 at 8-14. OSC closed
the first complaint without taking corrective action. IAF, Tab 5 at 16. The
record does not show what action, if any, OSC took with respect to the second
complaint.
¶3On April 15, 2019, the appellant filed the instant IRA appeal and
requested a hearing. IAF, Tab 1. The administrative judge issued an order, fully
apprising the appellant of her burden of proving Board jurisdiction over an IRA
appeal and notifying her of the specific information that she needed to provide to
satisfy that burden. IAF, Tab 3. Both parties responded to the order. IAF,
Tabs 4-6.
¶4After the record on jurisdiction closed, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID). Specifically, the administrative judge found that the
appellant’s EEO activity was not protected under the Whistleblower Protection
Act as amended. ID at 3-4.
¶5The appellant has filed a petition for review, disputing the
administrative judge’s jurisdictional analysis. PFR File, Tab 2. The appellant
has also filed supplements to her petition for review, including, among other
1 The events of this appeal took place prior to May 11, 2023, when Fort Benning was
renamed “Fort Moore.” Media Release, U.S. Army Maneuver Center of Excellence,
Fort Moore celebration set for May 11 (Mar. 8, 2023), https://www.moore.army.mil/
MCOE/PAO/newsreleases/
2023/20230308%20MEDIA%20RELEASE_Fort%20Moore%20Ceremony.pdf . While
recognizing the official name change, all of the documents in the record refer to the
installation as “Fort Benning,” and so to avoid confusion, we refer to the installation by
its former name. 2
things, documentation of her correspondence with OSC.2 PFR File, Tabs 4-5.
The agency has filed a response. PFR File, Tab 7.
ANALYSIS
¶6As relevant here, the Board has jurisdiction over an IRA appeal if an
appellant proves that she exhausted her administrative remedies before OSC and
makes nonfrivolous allegations that (1) she made a disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a). Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016). If an appellant proves Board
jurisdiction over an IRA appeal, she is entitled to a hearing on the merits, if she
requested one. Shope v. Department of the Navy , 106 M.S.P.R. 590, ¶ 5 (2007).
Exhaustion
¶7The substantive requirements for exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The
Board’s jurisdiction is limited to those issues that were previously raised with
OSC. Id. However, an appellant may give a more detailed account of her
whistleblowing activities before the Board than she did to OSC. Id. An appellant
may demonstrate exhaustion through her initial OSC complaint; evidence that she
2 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence filed for
the first time on petition for review absent a showing that it was previously unavailable
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). However, considering the totality of the circumstances, including the
nature of evidence proffered, the appellant’s pro se status, and the issues presented in
this appeal, we find that it is in the interest of justice to waive the regulatory
requirement. See 5 C.F.R. § 1201.12; see, e.g., Boechler v. Department of the Interior ,
109 M.S.P.R. 638, ¶ 8 (2008) (considering documentation submitted by the appellant
for the first time on review in an IRA appeal when determining whether he exhausted
administrative remedies with OSC), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).3
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations; and any
written responses to OSC referencing the amended allegations. Id., ¶ 11. An
appellant also may establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that she raised with OSC
the substance of the facts in the Board appeal. Id. An appellant may file an IRA
appeal with the Board if, after filing a request for corrective action with OSC,
(1) OSC notifies her that it terminated its investigation of her request for
corrective action and she then files an IRA appeal with the Board within 60 days
of such notification; or (2) 120 days pass after the filing of a request for
corrective action with OSC and OSC has not notified her of whether it will seek
corrective action. 5 U.S.C. § 1214(a)(3)(A), (B).
¶8As noted above, this appeal involves two separate whistleblower
complaints that the appellant filed with OSC. Supra ¶ 2. In her first
whistleblower reprisal complaint, the appellant informed OSC that she filed an
EEO complaint on November 14, 2018, in which she alleged discrimination based
on race and sex. PFR File, Tab 4 at 13-14. She further informed OSC that, in the
following months, agency management subjected her to “several verbal threats of
termination, letters of caution, leave restriction and tour of duty schedule change
and nasty gram emails with screaming from leadership in my cubicle.” Id.
at 12-13. On March 7, 2019, OSC notified the appellant that it would not be
seeking corrective action on that complaint. IAF, Tab 5 at 16. Based on these
facts, we find that the appellant exhausted her administrative remedies with
respect to claims that the agency threatened to remove her and subjected her to a
significant change in working conditions in retaliation for her EEO complaint.3
3 A threatened removal is a covered personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 25
(2004). The rest of these alleged retaliatory acts are not separately enumerated in that
paragraph as covered “personnel actions.” However, taken together, they could
contribute to a finding that the agency subjected the appellant to a significant change in4
¶9In her second whistleblower reprisal complaint, the appellant alleged
that, also in retaliation for her EEO complaint, the Fort Benning Civilian
Personnel Advisory Center (CPAC) was obstructing her right to compete for
various positions to which she had applied. IAF, Tab 1 at 17-21. There is no
evidence that OSC ever closed its investigation into this complaint, and the
appellant filed this appeal before 120 days had passed. IAF, Tab 1 at 14-22.
Nevertheless, because 120 days have passed as of the date of this Opinion and
Order, the requirements of 5 U.S.C. § 1214(a)(3) are now satisfied. See Jundt v.
Department of Veterans Affairs , 113 M.S.P.R. 688, ¶ 7 (2010). We therefore find
that the appellant exhausted her administrative remedies with respect to a claim
that the agency failed to select her for various positions in retaliation for her EEO
complaint. See 5 U.S.C. § 2302(a)(2)(A)(i) (listing “an appointment” as a
covered personnel action).
Protected Activity
¶10The U.S. Court of Appeals for the Federal Circuit has long held that
an EEO complaint disclosing violations of antidiscrimination statutes does not
constitute protected activity under 5 U.S.C. § 2302(b)(8). Young v. Merit Systems
Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020); Spruill v. Merit Systems
Protection Board , 978 F.2d 679, 690-91 (Fed. Cir. 1992). Nor did the expanded
scope of whistleblower protections provided by the Whistleblower Protection
Enhancement Act of 2012 serve to place such disclosures within the ambit of
section 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 21-22.
We therefore find that the appellant’s EEO complaint did not constitute a
protected disclosure under 5 U.S.C. § 2302(b)(8).
¶11We have also considered whether the appellant’s EEO activity may
have been protected under 5 U.S.C. § 2302(b)(9)(A)(i), which prohibits
retaliation because of “the exercise of any appeal, complaint, or grievance
working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). See generally Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 14-16.5
right . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].”
However, there is no copy of the EEO complaint in the record, and the only
evidence of the contents of that complaint is an EEO counselor’s report dated
November 1, 2018, and the description of the complaint in the appellant’s
correspondence with OSC. IAF, Tab 5 at 10; PFR File, Tab 4 at 13. These
documents show that the appellant’s EEO complaint regarded remedying
violations of Title VII—not section 2302(b)(8). For this reason, we find that the
appellant’s EEO activity was not protected under 5 U.S.C. § 2302(b)(9)(A)(i).
See Abutalib v. Merit Systems Protection Board , 127 F.4th 373, 378-79 (Fed. Cir.
2025).
¶12Nevertheless, for the following reasons, we find that the appellant
made a nonfrivolous allegation that her EEO activity was protected under
5 U.S.C. § 2302(b)(9)(C).4 Under section 2302(b)(9)(C), it is a prohibited
personnel practice to take a personnel action against an employee in reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Although the
appellant’s EEO activity concerned alleged violations of Title VII, the subject
matter of the appellant’s activity does not serve to exclude it from the protections
of section 2302(b)(9)(C), which, unlike section 2302(b)(8), is devoid of explicit
content-based limitations. See Reese v. Department of the Navy , 2025 MSPB 1,
¶ 46.
¶13All that is left to determine is whether the agency’s Office of Equal
Opportunity is a “component responsible for internal investigation or review.”
See id., ¶ 48. The Board has held that, “[i]n general, such components will have a
4 The appellant does not argue, and we have not seriously considered, whether her EEO
activity was protected under 5 U.S.C. § 2302(b)(9)(B) or (D) because those
subparagraphs are inapplicable to this situation on their face. The appellant is not
alleging that she assisted in another individual’s appeal, complaint, or grievance or that
she refused to obey an order.6
degree of independence and objectivity, as well as the authority to investigate or
review by taking testimony, collecting evidence, and making findings and
recommendations.” Id., ¶ 50. We find that the agency’s Office of Equal
Opportunity fits this description. According to the Army Regulation in effect
during the relevant time period, “EEO officials independently operate within the
command.” Army Regulation 690-12, Equal Employment Opportunity and
Diversity, ch. 8-1a.(5) (Dec 12, 2019).5 Likewise, Army Regulation 690-600,
Equal Employment Opportunity Discrimination Complaints, ch. 1-4d. (Feb. 9,
2004), states that “[c]omplaints will be processed promptly and impartially.”
This same regulation goes on to describe in detail the authority of EEO officials
to investigate claims by gathering evidence, including testimony and documentary
evidence, and issue final agency decisions on such claims. Id., ch. 4, 5. These
Army regulations are consistent with the Equal Employment Opportunity
Commission’s regulations, requiring each agency to establish an EEO office that
will provide for impartial investigations and complaint processing, with broad
investigatory authority and authority to issue final decisions. 29 C.F.R.
§§ 1614.102(a)(2), (b)(4), 1614.106(e)(2), 1614.108(b). These powers and
functions of EEO offices are further detailed in Equal Employment Opportunity
Commission Management Directive 110 (Nov. 9, 1999). In light of these powers,
functions, and characteristics, we find that the agency’s Office of Equal
Opportunity is a component responsible for internal investigation or review. See
Reese, 2025 MSPB 1, ¶ 52. Therefore, the appellant has made a nonfrivolous
allegation that she engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C)
on November 1, 2018, when she spoke with an EEO counselor, and on
5 This provision remains unchanged in the most recent revision of this regulation.
Army Regulation 690-12, Civilian Equal Employment Opportunity Program (Feb. 6,
2025).7
November 14, 2018, when she filed an EEO complaint.6 IAF, Tab 5 at 10; PFR
File, Tab 4 at 14.
Contributing Factor
¶14The most common way of establishing contributing factor, and the
one most germane to the jurisdictional record in this case, is the
knowledge/timing test of 5 U.S.C. § 1221(e). Gonzalez v. Department of
Transportation, 109 M.S.P.R. 250, ¶ 19 (2008). Under the knowledge/timing
test, an appellant can prove that her disclosure was a contributing factor in a
personnel action through evidence that the official taking the personnel action
knew of the whistleblowing disclosure and took the personnel action within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.
¶15As set forth above, the appellant has nonfrivolously alleged that the
agency took several personnel actions against her in retaliation for her EEO
activity: (1) a threatened removal; (2) a significant change in working
conditions; and (3) numerous nonselections for appointment.7 Supra ¶¶ 8-9. The
6 We acknowledge that the appellant’s engagement with the EEO office might also
constitute activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii). However,
notwithstanding certain dicta in McCray v. Department of the Army , 2023 MSPB 10,
¶¶ 27-30, we find that this would not prevent coverage under section 2302(b)(9)(C). In
this regard, we take notice of the amicus brief that OSC filed in Reese v. Department of
the Department of the Navy , MSPB Docket No. DC-1221-21-0203-W-1, Petition for
Review File, Tab 18 at 16-17, and we find it persuasive on this point. We agree with
OSC that subparagraphs (b)(9)(A) and (C) do not overlap completely. For instance, a
Board appeal is an “appeal” within the meaning of subparagraph (A), but the Merit
Systems Protection Board is not a “component responsible for internal investigation or
review” within the meaning of subparagraph (C). Conversely, a disclosure to OSC
would be covered under subparagraph (C), but it is not an “appeal, complaint, or
grievance” within the meaning of subparagraph (A). For the reasons stated in McCray,
2023 MSPB 10, ¶ 27, the Board would hesitate to interpret one of these subparagraphs
as completely subsuming the other, but we have not interpreted them thus. A partial
overlap between the two subparagraphs does not render either of them inoperative or
superfluous.
7 The appellant has filed documentation showing that the agency proposed to suspend
her on April 8, 2019, and that the deciding official sustained the proposal on May 3,8
record shows that the Installation Division Chief was aware of the appellant’s
discussion with the EEO Counselor, IAF, Tab 5 at 8-9, and the appellant has
alleged that officials at the Fort Benning CPAC were aware of her protected
activity because they work in the same building that she does, IAF, Tab 1 at 17.
Although these allegations are based partially on conjecture, at least at the
jurisdictional stage, we find that they amount to a nonfrivolous allegation that
officials in her supervisory chain and in the Fort Benning CPAC became aware of
the appellant’s EEO activity around the time that it happened. See Cahill v. Merit
Systems Protection Board , 821 F.3d 1370, 1375 (Fed. Cir. 2016) (stating that,
when determining whether an appellant has made a nonfrivolous allegation of
contributing factor, the allegations should be “read with an eye on likely
inferences appropriate to the context”); Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 6 (2016) (“Any doubt or ambiguity as to whether
the appellant made nonfrivolous jurisdictional allegations should be resolved in
favor of finding jurisdiction.”).
¶16As for timing, the appellant alleged that the threatened removal and
the various matters that might constitute a significant change in working
conditions happened shortly after she filed her EEO complaint. PFR File, Tab 4
at 12. The documentary evidence of record corroborates this at least in part.
PFR File, Tab 4 at 32-36. To the extent that the appellant has not given precise
dates for some of the claimed retaliatory actions, we nevertheless find that they
must have occurred, if at all, before she filed the February 4, 2019 OSC
complaint in which she described them. This period of no more than a few
months is sufficient to satisfy the timing component of the knowledge/timing test.
See Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 16 (2011)
(holding that personnel actions taken within 1 or 2 years of the protected activity
2019. PFR File, Tab 4 at 24-29. However, we agree with the administrative judge that
neither the suspension proposal nor the suspension decision is properly before the
Board in the context of this IRA appeal because there is no evidence that the appellant
ever raised the matter with OSC. ID at 3 n.1.9
will generally satisfy the timing component). We therefore find that the appellant
has made a nonfrivolous allegation that her protected activity was a contributing
factor in a threatened removal and in a significant change in working conditions.8
¶17As for the nonselections for appointment, the appellant has listed no
fewer than 60 positions for which she alleges she applied but was not selected.
IAF, Tab 1 at 18-19. For jurisdictional purposes, we find sufficient the
appellant’s allegation that officials at the Fort Benning CPAC who were aware of
her EEO complaint had a hand in those nonselections. However, the appellant
has, for the most part, not explained when those nonselections occurred, and in
fact, she states that the nonselections began in May 2017—well before she
engaged in the EEO activity at issue. Id. Because protected activity cannot be a
contributing factor in a personnel action that already occurred in the past,
Easterbrook v. Department of Justice , 85 M.S.P.R. 60, ¶ 12 (2000), we find that
the appellant has not made a nonfrivolous allegation of contributing factor for any
of the nonselections for which she has not given specific dates. However, the
appellant has given the requisite information for one nonselection—a
nonselection for an Office Support Assistant position, to which she applied in
December 2018, and for which she was not selected in January 2019. IAF, Tab 1
at 19. Again, this timing is sufficient to satisfy the timing element of the
knowledge/timing test, and we find that the appellant has made a nonfrivolous
allegation of contributing factor as to this specific nonselection only.
¶18For the reasons explained above, we find that the appellant has
established IRA jurisdiction over her appeal. She has made a nonfrivolous
8 We find that the appellant’s allegations of the agency’s treatment of her, taken as true,
could amount to a “significant change in working conditions” within the meaning of
5 U.S.C. § 2302(a)(2)(A)(xii). PFR File, Tab 4 at 12; see Skarada, 2022 MSPB 17,
¶ 18. However, after she filed the instant IRA appeal, the appellant filed another appeal
under 5 U.S.C. chapter 75, raising some of these same issues. Holman v. Department of
the Army, MSPB Docket No. AT-0752-19-0608-I-2. On remand, the administrative
judge should consider the extent to which the appellant’s chapter 75 appeal may have
preclusive effect.10
allegation that the agency threatened to remove her, subjected her to a significant
change in working conditions, and declined to select her for an Office Support
Assistant position in retaliation for activity protected under 5 U.S.C.
§ 2302(b)(9)(C).
ORDER
¶19We remand this appeal to the regional office for adjudication of the
merits.
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Holman_Kali_M_AT-1221-19-0410-W-1_Opinion_and_Order.pdf | 2025-02-27 | Kali Mary Holman v. Department of the Army, 2025 MSPB 2 | AT-1221-19-0410-W-1 | P |
3 | https://www.mspb.gov/decisions/precedential/Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 1
Docket No. DC-1221-21-0203-W-1
Mary Reese,
Appellant,
v.
Department of the Navy,
Agency.
January 31, 2025
Richard R. Renner , Esquire, Raleigh, North Carolina, for the appellant.
Kristin Roberts , Esquire, and Michael S. Causey , Esquire,
Washington, D.C., for the agency.
Andres M. Grajales , Esquire, Washington, D.C., for amicus curiae,
the American Federation of Government Employees.
Debra D’Agostino , Esquire, Washington, D.C., and Rosa M. Koppel ,
Esquire, McLean, Virginia, for amicus curiae, the National Employment
Lawyers Association and the Metropolitan Washington Employment
Lawyers Association.
Julie D. Yeagle , Esquire, and Gregory Giaccio , Esquire, Washington, D.C.,
for amicus curiae, the Office of Special Counsel.
Martin Akerman , Arlington, Virginia, pro se, amicus curiae.
Pere Jarboe , Annapolis, Maryland, pro se, amicus curiae.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member**
*The Board members voted on this decision before
the effective date of Acting Chairman Kerner’s designation.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1The appellant has filed a petition for review of the initial decision,
which denied her request for corrective action in this individual right of action
(IRA) appeal. For the reasons set forth below, we DENY the petition for review.
We AFFIRM the initial decision, as MODIFIED, to consider the appellant’s claims
of additional protected activity unaddressed in the initial decision and to
supplement the administrative judge’s analysis of whether the agency rebutted the
appellant’s prima facie case of reprisal. In so doing, we resolve some of the
questions of law addressed in the order to the parties and the Federal Register
notice issued by the Board in this case, see 89 Fed. Reg. 28816-01 (Apr. 19, 2024),
and thereby clarify the scope of 5 U.S.C. § 2302(b)(9)(C), which prohibits reprisal
for “cooperating with or disclosing information to the Inspector General (or any
other component responsible for internal investigation or review) of an agency, or
the Special Counsel, in accordance with applicable provisions of law.”
BACKGROUND
¶2The appellant joined the agency in May 2019, as a Public Affairs
Specialist. Initial Appeal File (IAF), Tab 75 at 4. In a January 2020 performance
assessment, the agency described her contributions during 2019 positively. IAF,
Tab 12 at 21-24. However, the agency terminated the appellant that same month
during her probationary period. Id. at 25-33. The termination letter described her
work products as typically adequate but indicated that the agency was nevertheless
terminating her for, inter alia, “rude, disrespectful, insubordinate, and demeaning”
conduct, her “refus[al] to interact with coworkers due to a perceived slight,” her
“instigat[ing] and escalat[ing] interactions . . . on what should be simple
coordination actions,” and her filing a complaint about a coworker that the agency
deemed to be “false and misleading.” Id. at 27-28. The appellant’s first -line
supervisor signed the termination letter, stating that he had seen this conduct2
himself, that the appellant’s second-level supervisor had reported similar conduct,
and that the appellant’s conduct had persisted despite counseling. Id. at 28, 32.
¶3Following her probationary termination, the appellant filed a
complaint with the Office of Special Counsel (OSC) alleging whistleblower
reprisal. IAF, Tab 7 at 9, Tab 8 at 4-9. OSC terminated its investigation in
December 2020, IAF, Tab 8 at 18-21, and this IRA appeal followed, IAF, Tab 1.
¶4The administrative judge determined that the appellant established
jurisdiction over some of her allegations. IAF, Tab 18. In particular, the
administrative judge concluded that the appellant presented nonfrivolous
allegations regarding the following alleged whistleblowing disclosures and
activities that she also exhausted with OSC: (1) disclosures about meetings
between her first -line supervisor, second-line supervisor, other agency officials,
and a Government contractor, which the appellant deemed improper;
(2) disclosures that her second -line supervisor was improperly instructing
employees to change the dates on files related to congressional inquiries;
(3) disclosures that she feared a particular coworker might bring a firearm to the
office to commit a mass shooting; (4) disclosures that her supervisors were not
properly handling reports of sexual harassment and assault in the workplace; and
(5) a complaint the appellant filed with the agency’s Office of Inspector General
(OIG). Id. at 2-5. The administrative judge also considered a handful of alleged
retaliatory personnel actions but found that the appellant met her jurisdictional
burden for just one—her probationary termination. Id. at 6-10.
¶5Although the appellant initially requested a hearing while the appeal
was pending before the administrative judge, she withdrew that request. IAF,
Tab 1 at 2, Tab 76 at 4. After affording the parties the opportunity to make closing
submissions, the administrative judge issued an initial decision, which denied the
appellant’s request for corrective action on the merits. IAF, Tab 86, Initial
Decision (ID). On the merits, the administrative judge found that the appellant did3
not prove that her disclosures were protected under 5 U.S.C. § 2302(b)(8), but she
did prove that her OIG complaint was protected under 5 U.S.C. § 2302(b)(9)(C).
ID at 13-28. The administrative judge further found that the appellant proved that
this protected activity was a contributing factor in the appellant’s probationary
termination. ID at 28-29. Lastly, the administrative judge found that the agency
successfully rebutted the appellant’s prima facie case of reprisal. ID at 29-41.
¶6The appellant has filed a petition for review, which exclusively
addresses her probationary termination and does not reassert any other alleged
personnel actions.1 Petition for Review (PFR) File, Tab 3. She first argues that she
engaged in more protected whistleblowing than found by the administrative judge.
Id. at 19-27. Next, the appellant argues that her whistleblowing was a contributing
factor in her probationary termination and that the agency failed to rebut her prima
facie case of reprisal. Id. at 28-38. Finally, the appellant presents arguments about
the administrative judge’s procedural rulings. Id. at 38-40. The agency has filed a
response to the appellant’s petition for review, and the appellant has replied to that
response. PFR File, Tabs 7, 10.
¶7After the filing of the petition, response, and reply, the Board sought
amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C). Notice of
Opportunity to File Amicus Briefs, 89 Fed. Reg. 28816-01 (Apr. 19, 2024). In
particular, the Board sought guidance on whether complaints covered under
5 U.S.C. § 2302(b)(9)(A) are precluded from coverage under 5 U.S.C.
§ 2302(b)(9)(C), whether activity that falls within the protections of Title VII may
also be protected by section 2302(b)(9)(C), and whether section 2302(b)(9)(C)
encompasses, among other things, informal discussions with someone from an
agency component that might conduct investigations and formal interviews with
1 Because the appellant has not challenged the administrative judge’s conclusion that her
probationary termination was the sole personnel action within the Board’s jurisdiction,
we have not considered any of the other personnel actions that the appellant originally
alleged.4
someone who is appointed as a fact finder but who is not otherwise part of a formal
investigatory office or component. Id. Five individuals or entities, including OSC,
filed amicus briefs. PFR File, Tabs 17-21. In addition, the Board issued an order to
the parties to this appeal seeking their arguments about the same matters. PFR File,
Tab 14. Both parties responded and subsequently filed reply briefs. PFR File,
Tabs 22-23, 25-26. We have considered all of the filings on review in making our
decision.
ANALYSIS
¶8At the merits stage of an IRA appeal, the appellant must prove by
preponderant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that such disclosure or activity was a contributing factor in an
agency’s personnel action. Turner v. Department of Agriculture , 2023 MSPB 25,
¶ 12. If the appellant meets that burden, the agency is given an opportunity to
prove by clear and convincing evidence that it would have taken the same personnel
action absent the protected disclosure or activity. Id.; see 5 U.S.C.
§ 1221(e)(1)-(2).
¶9In the analysis that follows, we agree with the administrative judge’s
decision to deny the appellant’s request for corrective action. However, we modify
the initial decision in several respects. Most notably, we address the most recent
version of 5 U.S.C. § 2302(b)(9)(C) and explain how it protects some of the
appellant’s activities. In terms of the three questions identified in the Federal
Register notice and the Board’s order to the parties, we do not reach the first
question because the appellant did not engage in activity protected under 5 U.S.C.
§ 2302(b)(9)(A), and we answer the other two questions in the affirmative.5
The appellant did not prove that she made disclosures protected by 5 U.S.C.
§ 2302(b)(8).
¶10The appellant argues that what the administrative judge characterized
as disclosures (1)-(4), described above, were disclosures protected by 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 3 at 19-27. She further argues that disclosures (1),
(2), and (4) were accompanied by activity protected by 5 U.S.C. § 2302(b)(9)(B),
(C), and (D). We will address each argument in turn.
¶11A disclosure is protected under section 2302(b)(8) if an appellant
reasonably believed that it evidenced any violation of any law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Turner, 2023 MSPB 25,
¶ 14. The appellant need not prove that the matter disclosed actually established
one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, she must
only show that she possessed a reasonable belief. Id. The test to determine whether
a putative whistleblower had a reasonable belief in the disclosure is an objective
one: whether a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety. Gabel v. Department of Veterans Affairs ,
2023 MSPB 4, ¶ 6. An appellant must identify a specific law, rule, or regulation
that the agency purportedly violated, but she need not identify it by title or number
for her disclosures to be protected when the “statements or circumstances clearly
implicate an identifiable violation of law, rule, or regulation.” Langer v.
Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001); Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 24 (2015); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 19 (2013). Further, d isclosures must be
specific and detailed, not vague, conclusory allegations of wrongdoing based on
unsupported speculation. Gabel, 2023 MSPB 4, ¶ 6; see El v. Department of6
Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard necessary to establish Board jurisdiction over an
IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016); Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994) (finding that disclosures
constituting unsupported speculation do not meet the jurisdictional requirements in
an IRA appeal).
Disclosure 1
¶12The first of the appellant’s alleged disclosures concerned meetings
between agency officials and a Government contractor, which the appellant
believed were improper. E.g., IAF, Tab 18 at 3. The appellant presented a sworn
statement specifically describing these alleged disclosures. IAF, Tab 7 at 4. She
also provided testimony from a deposition taken during her Board appeal about the
same matter. IAF, Tab 64 at 51-62. According to the appellant, she believed that
the meetings, which she attended, violated a law, rule, or regulation because they
provided the Government contractor with information that was not public, thereby
giving the contractor an unfair advantage over others. IAF, Tab 7 at 4. The
appellant further alleged that she believed that the meetings were improper because
they were not attended by the type of agency official authorized to hold meetings
with potential contractors. Id.
¶13The administrative judge found that this set of disclosures was not
protected. She reasoned that the disclosures were too vague and conclusory. ID
at 13-14. She further reasoned that the disclosures did not rise to the level of an
abuse of authority, ID at 15, gross mismanagement, ID at 16, or a violation of law,
rule, or regulation, ID at 16-17. Finally, the administrative judge found that the
appellant did not establish that she had a reasonable belief regarding her
disclosures because, inter alia, her duties were unrelated to contracting or7
procurement and the record contained virtually no information about any
underlying contract. ID at 17.
¶14The appellant disagrees with the administrative judge. PFR File,
Tab 3 at 22-24. For instance, the appellant argues that her disclosures were
sufficiently specific to show that she reasonably believed that the meetings violated
contracting laws and regulations. Id. at 22. She also argues that the administrative
judge erred by relying in part on the appellant not recalling or presenting evidence
about some potentially pertinent facts, such as ones about procurement training,
which she had cited as giving her reason to believe the meetings were improper.
Id. We disagree.
¶15The appellant’s first-line supervisor, who directed the meetings in
question and was a recipient of the appellant’s disclosures about the meetings,
submitted a sworn statement. He described the meetings, why they were proper,
and why the appellant’s concerns were mistaken. IAF, Tab 84 at 87. Another
agency official submitted a similar, though less detailed, sworn statement. Id.
at 97. Among other things, these officials indicated that no non-public information
was revealed, there was no solicitation for a contract at the time or in the period that
followed, and the meetings merely constituted permissible market research to
determine whether the contractor—who had an existing contract with the agency
for a different product—had software that could someday replace the agency’s
outdated systems. Id. at 87, 97.
¶16The head of the agency’s contracts branch also submitted a sworn
statement about the matter. Id. at 107-08. Among other things, he stated that after
the appellant telephoned him with her concerns in November 2019, he met with
her, and it was evident that she was new to the Government and did not understand
the acquisition process. Id. at 108. He further stated that he explained to the
appellant “that a meeting with a contractor aimed at determining what [an] industry
is capable of providing is beneficial to [the agency] and is permissible market8
research.” Id. Notably, he also contradicted the appellant’s sworn statement to the
extent that the appellant indicated that her disclosure caused him to stop similar
meetings from happening in the future. Compare id., with IAF, Tab 7 at 4.
¶17As set forth above, the appellant was not required to disclose actual
wrongdoing; she only needed to have a reasonable belief that her disclosures
evidenced one of the kinds of wrongdoing set forth in 5 U.S.C. § 2302(b)(8).
Nevertheless, we agree with the administrative judge that the appellant did not
meet that burden. The record indicates that the agency was merely meeting with an
existing contractor and was not entertaining bids, soliciting a contract, or anything
of the sort. Nevertheless, the appellant seems to have assumed that something far
more nefarious was occurring, vaguely speculating that something was amiss. She
did so after only a few months of Government employment regarding topics that
were far outside her expertise or job duties as a Public Affairs Specialist and
despite an explanation from the head of contracting regarding why what she
observed was not improper.2 E.g., IAF, Tab 12 at 22-24, Tab 84 at 65, 86-87.
Under these circumstances, the appellant has not proven by preponderant evidence
that she reasonably believed that the situation she disclosed constituted a violation
of law, rule, regulation, or any other type of wrongdoing described in the
whistleblower statute.
2 The appellant argues that, because she lacked training and knowledge in the area of
Government contracting, she would reasonably believe that a wider range of action would
constitute a violation of law, rule, or regulation. PFR File, Tab 3 at 24. The appellant
cites no legal authority binding on the Board to support this position, and we are unaware
of any such authority. The Board has relied on an employee’s experience in a particular
field to find that a disclosure about wrongdoing in that field was reasonable. See, e.g.,
Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 17 (finding an employee’s
disclosure about a violation of the Federal Acquisition Regulations reasonable in light of
her experience as a senior acquisitions professional). We are not persuaded that, under
the facts of this appeal, the appellant’s lack of knowledge helps her meet her burden of
showing a reasonable belief.9
Disclosure 2
¶18The next set of alleged disclosures revealed that the appellant’s
second-line supervisor was instructing employees to backdate certain files relating
to congressional inquiries. E.g., IAF, Tab 18 at 3. The appellant’s sworn statement
from below further described the same, as did her deposition testimony. IAF,
Tab 7 at 5, Tab 64 at 39-42.
¶19The administrative judge found that the appellant did not prove that
she made protected disclosures about this alleged changing of dates. She reasoned
that the allegations were vague, conclusory, unsupported, and that a reasonable
person in the appellant’s position would not believe that it revealed the type of
wrongdoing protected under the statute. ID at 17-19. The appellant disagrees.
PFR File, Tab 3 at 24-25. Among other things, the appellant suggests that
additional details about the alleged wrongdoing were unimportant or not available
due to the administrative judge’s discovery rulings. Id. We are not persuaded by
the appellant’s arguments.
¶20The appellant describes making these disclosures within weeks of
joining the agency, when it is likely that she had limited information about the
agency’s processes. IAF, Tab 7 at 5. Additionally, although the appellant
described making this disclosure alongside another coworker who had similar
concerns, IAF, Tab 64 at 40-41, she has not identified any statement from that
individual to corroborate her claims, nor has she challenged any particular ruling
by the administrative judge that may have prevented her from doing so.
¶21In addition, the alleged wrongdoer, who was the appellant’s
second-level supervisor and one of the alleged recipients of the appellant’s
disclosure, stated in a sworn declaration that he never instructed employees to
improperly change dates, and he did not recall any disclosure about the matter.
IAF, Tab 84 at 76-77. Another official, who was not in the appellant’s chain of
command but who was responsible for the appellant’s training, indicated that the10
appellant did raise these concerns with him. Id. at 97. However, he explained that
the dates, which were for internal tracking and routing purposes only, were never
used to deceive anyone. Id. The appellant has herself acknowledged that the dates
were for internal routing use only. IAF, Tab 64 at 39.
¶22After reviewing this evidence, we do not see how the disclosure
implicated one of the types of wrongdoing set forth in the whistleblower protection
statutes. If there was any manipulation of dates, it seems most likely that this was
little more than an internal method of alerting the commanding officer to prioritize
one matter over another. E.g., IAF, Tab 84 at 76, 97. There is nothing suggesting
that letters to Congress or any other outside entity were misdated. The appellant’s
vague speculation that there was something amiss, let alone a violation of law, rule,
or regulation, does not meet her burden to prove by preponderant evidence that she
made a protected disclosure. We therefore agree with the administrative judge’s
conclusion that the appellant did not do so.
Disclosure 3
¶23The third set of alleged disclosures were June 2019 statements that the
appellant feared a particular coworker might bring a firearm to the office to commit
a mass shooting. E.g., IAF, Tab 18 at 3. Once again, this alleged disclosure is
recounted in more detail in the appellant’s sworn statement and deposition. IAF,
Tab 7 at 5-6, Tab 64 at 46-51.
¶24The administrative judge found that the appellant did not have a
reasonable belief that she was disclosing a substantial and specific danger to public
health or safety or any other category of wrongdoing under the whistleblower
protection statutes. ID at 20-23. Among other things, she explained that, while the
appellant had described offensive language used by this coworker and violent
stories told by the coworker about his past active-duty military service, the
appellant did not present any persuasive argument or evidence about his propensity
for violence at the workplace. The appellant did not, for example, present11
argument or evidence that the individual was angry at his colleagues or under
duress. ID at 21-22. To the contrary, the appellant denied ever hearing the
coworker threaten or direct anger at anyone in the office. IAF, Tab 64 at 48. For
these reasons, the administrative judge concluded that the appellant did not have a
reasonable belief that the coworker was likely to bring a firearm to the office and
commit a mass shooting. ID at 21-23.
¶25On review, the appellant suggests that she disclosed not only this
coworker’s offensive language and violent stories but also that he had brought a
gun to the workplace. PFR File, Tab 3 at 25-27. However, that allegation is
noticeably absent from the sworn statement and deposition testimony referenced
above. IAF, Tab 7 at 5-6, Tab 64 at 46-51. In that evidence, the appellant
discussed why she worried that her coworker might bring a gun to the workplace
without any indication that he had done so. IAF, Tab 64 at 46-51. She even
indicated that she was unsure whether this individual owned a gun, though she
inferred that he did. Id. at 50. The limited evidence that the appellant cites on
review is no different. PFR File, Tab 3 at 25 (referencing IAF, Tab 13 at 24-25, 27,
28, Tab 64 at 30, 46).
¶26The appellant is correct that an individual need not disclose harm that
already occurred for the disclosure to be protected. PFR File, Tab 3 at 26; see
Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 38-40 (finding an
appellant’s disclosures about potential negative patient outcomes protected);
Chavez, 120 M.S.P.R. 285, ¶¶ 19-20 (same). But the disclosed potential danger
must be substantial and specific. Chambers v. Department of the Interior , 602 F.3d
1370, 1376 (Fed. Cir. 2010); Wilson, 2022 MSPB 7, ¶ 38. In determining whether a
disclosed danger is sufficiently substantial and specific to warrant protection under
the whistleblower statute, the Board must consider: (1) the likelihood of harm
resulting from the danger; (2) when the alleged harm may occur; and (3) the nature
of the harm, i.e., the potential consequences. Chambers, 602 F.3d at 1376; Wilson,12
2022 MSPB 7, ¶ 38. A disclosed danger that could only result in harm under
speculative or improbable conditions “should not enjoy protection.” Chambers v.
Department of the Interior , 515 F.3d 1362, 1369 (Fed. Cir. 2008). Further, “a harm
likely to occur in the immediate or near future should identify a protected
disclosure much more than a harm likely to manifest only in the distant future.” Id.
Here, the potential consequences of the danger were grave, but the appellant’s own
statements about the matter support a conclusion that the likelihood and imminence
of the danger were exceedingly remote. In fact, the appellant’s concerns appear to
have been little more than unfounded speculation. Therefore, we agree with the
administrative judge. The appellant did not meet her burden of proving that her
disclosures about the coworker and his potential for violence were protected.
Disclosure 4
¶27The last set of alleged disclosures were ones about sexual harassment
in the workplace and her supervisors’ handling of the same. E.g., IAF, Tab 18 at 4.
This set of disclosures is also recounted in the appellant’s sworn statement and
contemporaneous documents created by the appellant and an agency investigative
report. E.g., IAF, Tab 7 at 6-7, 11, 14-15, 17-19, Tab 13 at 4-21.
¶28The administrative judge found that the appellant’s claim was vague
and conclusory, ID at 23-25, and that the claim did not meet the reasonable belief
standard, ID at 26-27. The administrative judge explained that the appellant was
aware that management was acting on the underlying complaints, and that the
appellant was simply dissatisfied with management’s explanation that it could not
divulge specific details about how it was acting on the matter. ID at 25-27.
¶29On review, the appellant reasserts that these disclosures were
protected by section 2302(b)(8). PFR File, Tab 3 at 19-22. We modify the initial
decision to expand on the administrative judge’s analysis under that section in light
of Board precedent.13
¶30In Edwards v. Department of Labor , 2022 MSPB 9, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), which was issued the
day before the initial decision in this case, the Board considered a situation
somewhat analogous to the situation in this case. The employee in Edwards
disclosed and protested his supervisors’ alleged race discrimination. Id., ¶ 2. He
also filed complaints of systemic race discrimination, including one with the
agency’s Equal Employment Opportunity (EEO) office. Id. The employee then
filed an IRA appeal alleging that the agency engaged in whistleblower reprisal for
these disclosures and activities. Id., ¶¶ 2-3.
¶31To the extent that the employee in Edwards alleged that his
disclosures were protected by 5 U.S.C. § 2302(b)(8), the Board found otherwise.
The Board held that allegations of discrimination and reprisal for activity that fall
under the protections of Title VII, i.e., matters that can be pursued through the EEO
process and before the Equal Employment Opportunity Commission (EEOC), are
excluded from the protections of 5 U.S.C. § 2302(b)(8). Edwards, 2022 MSPB 9,
¶¶ 10-23. Here, because the appellant’s complaints are protected under Title VII,
they are excluded from the protections of § 2302(b)(8).
The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(B).
¶32In her petition for review, the appellant separately asserts that her
disclosures about sexual harassment (Disclosure 4) also constituted activity
protected by 5 U.S.C. § 2302(b)(9)(B) and (C). PFR File, Tab 3 at 19-22. We
modify the initial decision to address these provisions, which the appellant raised
below but the administrative judge did not address. We start by addressing the
applicability of section 2302(b)(9)(B).
¶33Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice
to take a personnel action against an employee in reprisal for “testifying for or
otherwise lawfully assisting any individual” in “the exercise of any appeal,14
complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C.
§ 2302(b)(9)(A)-(B); Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 6.
This provision does not apply to an individual who has brought a complaint herself.
Rather, this provision applies only to individuals who lawfully assist in someone
else’s appeal, complaint, or grievance. McCray v. Department of the Army ,
2023 MSPB 10, ¶¶ 23-25; see Edwards, 2022 MSPB 9, ¶¶ 27-28.
¶34Evidence that includes emails from the period leading up to the
agency’s investigation, IAF, Tab 14 at 4-8, 15-16, the appointment letters for the
agency’s fact finder, id. at 11-13, and the close of investigation report, IAF, Tab 12
at 60, Tab 13 at 4, all indicates that the source of the investigation was the
appellant’s own complaints. These records do not indicate that the appellant was
assisting some other individual’s appeal, complaint, or grievance. The appellant’s
petition for review and the evidence cited in it similarly suggest that the appellant
complained on behalf of herself and others, not that she assisted someone else’s
complaint. PFR File, Tab 3 at 19-20 (referencing IAF, Tab 83 at 9-10).
Accordingly, section 2302(b)(9)(B) does not apply to the circumstances at hand.
¶35We recognize that, in her sworn statement made in this IRA appeal, the
appellant vaguely asserts that she “participat[ed] as a witness in support of [a
particular coworker’s] sexual harassment proceeding.” IAF, Tab 7 at 7. But this
coworker mostly brushed off questions about whether he had been the victim of
sexual harassment during the relevant investigation. IAF, Tab 13 at 7-8, 10,
Tab 14 at 15. And we found nothing to suggest that he exercised any appeal,
complaint, or grievance of his own about the matter. Accordingly, we find that the
appellant has not proven that she engaged in the type of lawful assistance protected
by section 2302(b)(9)(B).
The appellant engaged in some activity protected by 5 U.S.C. § 2302(b)(9)(C).
¶36Section 2302(b)(9)(C) makes it a prohibited personnel practice to take
a personnel action against an employee in reprisal for “cooperating with or15
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” As mentioned above,
the administrative judge found that the appellant made disclosures to the agency
OIG, which constituted activity protected under this provision. ID at 27-28. We
agree. However, the appellant also asserted that she engaged in other activity
protected under section 2302(b)(9)(C) as she pursued her allegations of sexual
harassment in the office and management inaction in addressing it (Disclosure 4).
PFR File, Tab 3 at 19-22. We modify the initial decision to address this claim.
¶37Aside from her activity with the OIG, a September 18, 2019
memorandum from the appellant’s second-level supervisor recounts the appellant’s
reports of sexual harassment in the workplace. IAF, Tab 13 at 81. It also describes
the actions the second-level supervisor took in response, including one -on-one
discussions with the appellant and convening a group “sensing session” facilitated
by the agency’s EEO office. Id. According to this memorandum, the appellant
reached out to one of the sensing session facilitators, after the fact, about her
concerns regarding sexual harassment. Id. This seems to be a reference to an email
from a few days earlier in which the appellant vaguely alluded to “inappropriate
comments or behaviors” and “reported sexual harassment or assault.” Id. at 39.
¶38A memorandum written by the head of labor and employee relations
dated September 25, 2019, recounts this allegation of “inappropriate comments or
behaviors” and “reported sexual harassment or assault,” as well as the official’s
meeting with the appellant so the appellant could elaborate.3 IAF, Tab 14 at 4-5.
3 It appears that the alleged victim of the sexual assault whom the appellant repeatedly
referenced did not consider himself to be a victim of sexual assault. Following the
appellant’s reports, agency officials asked the alleged victim about what happened. IAF,
Tab 14 at 15. The alleged victim described turning sideways to squeeze by a coworker, at
which point the coworker backed into him. Id. The alleged victim described this as a
misjudgment on the part of his coworker, but he indicated that he did not consider her
actions to be sexual. Id.16
According to yet another memorandum, the appellant further pursued the matter a
few days later with a different agency official. This memorandum describes how
the appellant went to the office of a Staff Judge Advocate on September 30, 2019,
and described her concerns about sexual harassment in the workplace and inaction
by her chain of command about the same. Id. at 6. An email from the appellant to
the Staff Judge Advocate about their interaction states that she had first tried to
contact the agency’s EEO office but was unable to do so. Id. at 7. The appellant
asked the Staff Judge Advocate how she could proceed in a situation like this if she
did not want to file a formal EEO complaint. Id. at 6-7.
¶39On October 4, 2019, seemingly in response to one or more of the
aforementioned interactions that various agency officials had with the appellant,
the Chief of Staff to the Commander of the Naval Sea Systems Command appointed
the Assistant to the Deputy Commander for Cyber Engineering to investigate. IAF,
Tab 13 at 4, Tab 14 at 11-13. This investigator appears to have conducted the
inquiry by himself, interviewing the appellant and others. See, e.g., IAF, Tab 13
at 22-27. During the appellant’s interview, she indicated that she declined to file
an EEO complaint. Id. at 26-27.
¶40Ultimately, the investigator prepared a “Management Inquiry Report,”
dated December 11, 2019. Id. at 4-21. On February 3, 2020, the Chief of Staff to
the Commander of Naval Sea Systems Command issued a memorandum describing
how he reviewed and agreed with the investigator’s findings of fact. IAF, Tab 12
at 60.
The appellant did not engage in activity within the purview of 5 U.S.C.
§ 2302(b)(9)(A); thus, that provision does not preclude the appellant’s activity
from being protected under 5 U.S.C. § 2302(b)(9)(C).
¶41Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [section 2302(b)(8)]; or (ii) other than17
with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C.
§ 2302(b)(9)(A)(i) -(ii). In McCray, an employee alleged reprisal for having filed
grievances, including one that complained of discrimination against a disabled
coworker. McCray, 2023 MSPB 10, ¶¶ 2-3, 13-14. Guided by the principles of
statutory interpretation and prior precedent, the Board found that the employee’s
grievances fell under section 2302(b)(9)(A) but not section 2302(b)(9)(C).
Id., ¶¶ 27-29.
¶42Among other things, the Board in McCray explained that this
interpretation was required to read the provisions together and avoid rendering
either inoperative or superfluous. Id., ¶ 27. The Board further explained that a
contrary interpretation would result in section 2302(b)(9)(C) effectively
subsuming all or part of section 2302(b)(9)(A). Id. The McCray decision then
recognized that the Board’s jurisdiction in an IRA appeal, such as this one, is
limited to activity covered by section 2302(b)(9)(A)(i), (B), (C), or (D). Id., ¶ 30.
Because the grievances in McCray did not seek to remedy whistleblower reprisal,
the Board concluded that they fell under section 2302(b)(9)(A)(ii) and thus outside
the Board’s jurisdiction. Id.
¶43Here, we find that the appellant’s activity does not fall under the
purview of 5 U.S.C. § 2302(b)(9)(A) and its protection for “the exercise of any
appeal, complaint, or grievance right granted by law, rule, or regulation.” The
Board has described section 2302(b)(9)(A) activity as that which constitutes an
initial step toward taking legal action against an employer for the perceived
violation of an employee’s rights. Marcell v. Department of Veterans Affairs ,
2022 MSPB 33, ¶ 6; Williams v. Department of Defense , 46 M.S.P.R. 549, 553
(1991). The record does not show that the appellant took that initial step. She
declined to file an EEO complaint or anything comparable and chose instead to
pursue the matters through other channels, which eventually led to the Assistant to
the Deputy Commander for Cyber Engineering conducting an investigation.18
Accordingly, the rationale of McCray does not apply to the circumstances at hand;
because the appellant did not engage in activity within the purview of
section 2302(b)(9)(A), that provision does not preclude the appellant’s activity
from being protected under section 2302(b)(9)(C).4
Title VII does not preclude the appellant’s activity from protection
under the investigation cooperation provision of 5 U.S.C.
§ 2302(b)(9)(C).
¶44Before December 12, 2017, the whistleblower protection statutory
scheme prohibited reprisal for “cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in accordance with
applicable provisions of law.” 5 U.S.C. § 2302(b)(9)(C) (2016); McCray,
2023 MSPB 10, ¶ 26. Section 1097(c)(1) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018
NDAA), amended section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” also is protected.
McCray, 2023 MSPB 10, ¶ 26; Edwards, 2022 MSPB 9, ¶ 29.
¶45While analyzing the pre-2018 NDAA language, the Board held that
any disclosure of information to an OIG or OSC was protected, regardless of its
content, as long as the disclosure was made in accordance with applicable
provisions of law. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. We
agree with the position of OSC and several of the amici and find the same broad
4 In its amicus brief, OSC requests that the Board reconsider and overrule McCray. PFR
File, Tab 18 at 3, 14-17. OSC argues that 5 U.S.C. §§ 2302(b)(9)(A) and 2302(b)(9)(C)
should not be read to limit or preclude one another and that the McCray decision erred in
finding otherwise. PFR File, Tab 18 at 3, 14-17. Put another way, OSC argues that
activity protected under section 2302(b)(9)(A) can also be protected under
section 2302(b)(9)(C) and, when that occurs, an employee should be afforded the
protections of the latter for purposes of IRA appeal rights with the Board. PFR File,
Tab 18 at 3, 14-17. Because we find that the appellant’s activity is not covered under
section 2302(b)(9)(A), we decline to consider the matter further.19
protection to be applicable to the amended version of the statute, which applies to
this appeal. As of December 12, 2017, any disclosure of information to an OIG,
OSC, or any another other component responsible for investigation or review at an
agency is protected under 5 U.S.C. § 2302(b)(9)(C), regardless of its content, as
long as the disclosure is made in accordance with applicable provisions of law.
¶46Although the appellant’s activity involved statements about sexual
harassment, which implicates the protections of Title VII, this does not preclude
coverage under 5 U.S.C. § 2302(b)(9)(C). The language of section 2302(b)(9)(C),
which covers cooperating with or disclosing “information” to certain entities, is
devoid of content-based limitations. This is notably different from the
anti-retaliation provision for protected disclosures, which contains explicit
content-based limitations and therefore has been interpreted as excluding
disclosures that fall under Title VII. 5 U.S.C. § 2302(b)(8); see, e.g., Spruill v.
Merit Systems Protection Board , 978 F.2d 679, 690-92 (Fed. Cir. 1992); Williams,
46 M.S.P.R. at 554. Moreover, although the applicable legislative history of
5 U.S.C. § 2302(b)(8), as discussed by the Board in Williams, 46 M.S.P.R.
at 553-54, supports a finding that section 2302(b)(1) and (b)(8) are mutually
exclusive, we have found no comparable legislative history that would limit
5 U.S.C. § 2302(b)(9)(C) in this way.
The appellant’s statements to the agency investigator fall within the
coverage of 5 U.S.C. § 2302(b)(9)(C).
¶47As described previously, the appellant engaged in a series of
conversations and activities that we must consider. She participated in a sensing
session facilitated by the agency’s EEO office, and she separately spoke with the
facilitator of that sensing session. IAF, Tab 13 at 81. The appellant also raised her
concerns with a Staff Judge Advocate. IAF, Tab 14 at 6. After this, as discussed
above, an agency official was designated to conduct an investigation. IAF, Tab 1320
at 4, Tab 14 at 11-13. The investigator interviewed the appellant and others before
issuing a final investigatory report. IAF, Tab 13 at 4-21.
¶48In pertinent part, section 2302 defines a “disclosure” as “a formal or
informal communication or transmission.” 5 U.S.C. § 2302(a)(2)(D). Moreover,
section 2302(b)(9)(C) does not distinguish between formal or informal
cooperation. Thus, we find that the formality or lack thereof regarding the activity
described above is of no consequence when analyzing whether it is protected under
section 2302(b)(9)(C). Rather, the key question is whether an appellant’s activity
was directed to a covered investigatory entity.
¶49As mentioned previously, section 2302(b)(9)(C) prohibits reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Thus,
regardless of the name of the agency entity, if its function is to conduct internal
investigations or review, section 2302(b)(9)(C) applies. The question then
becomes what constitutes an agency component responsible for internal
investigation or review. Section 2302(b)(8) does not supply such a definition.
However, under the principle of statutory construction known as ejusdem generis
(“of the same kind”), when a general word or phrase follows an enumeration of
specific things, the general word or phrase is held to refer to things of the same kind
as those specified. See, e.g., King v. Department of the Air Force , 122 M.S.P.R.
531, ¶ 7 n.4 (2015). This principle recognizes that the purpose of describing a class
by examples and a general catchall phrase is to indicate how extensively a
provision is intended to be applied. Kinney v. Department of Agriculture ,
82 M.S.P.R. 338, ¶ 5 (1999). Therefore, we find that the “other component
responsible for internal investigation or review” should be an entity with attributes
that are generally “of the same kind” as an Inspector General.21
¶50At the time of the amendment to 5 U.S.C. § 2302(b)(9)(C) that added
the “any other component responsible for internal investigation or review”
language, the Inspector General Act of 1978, as amended, Pub. L. No. 95-452,
92 Stat. 1101, had established Offices of Inspectors General in designated
executive-branch departments and agencies as “independent and objective units”
whose responsibilities included, among other things, conducting and supervising
audits and investigations of agency programs and operations and improving agency
programs and operations by promoting economy, efficiency, and effectiveness and
by preventing and detecting fraud and abuse.5 5 U.S.C. App. III, § 2. The Act
authorized an Inspector General to, among other things, obtain relevant agency
records, conduct investigations, issue reports, and obtain information from
witnesses. Id., § 6(a). An Inspector General is therefore independent from agency
line managers, and there is a degree of formality to an investigation or review that
is designed to, for example, engage in fact-finding. We find that agency
components as described in section 2302(b)(9)(C) should have similar attributes
and functions, although such attributes may vary from agency to agency. In
general, such components will have a degree of independence and objectivity, as
well as the authority to investigate or review by taking testimony, collecting
evidence, and making findings and recommendations. We acknowledge that some
attributes of an Inspector General under the Act appear to be unique to that
position, including being appointed by the President with the advice and consent of
the Senate, id., § 3(a); being under the general supervision of the head of an agency
or the officer next in rank below such head, id.; reporting to Congress on Inspector
General activities and reporting suspected violations of criminal law to the
Attorney General, id., §§ 5, 4(d); having unfettered access to agency records, id.,
§ 6(a)(1); having the authority to issue subpoenas, enforceable in Federal court, to
5 The Inspector General Act of 1978, which was set out in the former Appendix to Title 5,
was repealed and restated by Pub. L. No. 117-286, 136 Stat. 4206, 4361 (Dec. 27, 2022),
at 5 U.S.C. § 401 et seq.22
obtain information during an investigation, id., § 6(a)(4); and being subject to
removal only by the President, id., § 3(b). Given the statutory reference to
components “other” than Inspectors General, however, we find that Congress did
not intend for such components to have all of these same attributes.
¶51Applying the principles set forth above, we find that the statutory
language’s reference to “any” component is broad enough to encompass not just
permanent agency components but also ad hoc internal investigations or reviews
conducted pursuant to an established agency procedure with authorities and
purposes similar to those described above, even if, as in this case, the investigation
is performed as a collateral duty by an agency employee.
¶52Here, the Chief of Staff to the Naval Sea Systems Commander
appointed the Assistant to the Deputy Commander for Cyber Engineering to
conduct an investigation of specific allegations raised by the appellant involving
the agency’s Office of Corporate Communications. IAF, Tab 14 at 11-13, Tab 75
at 4. This investigator, therefore, appears to have occupied a position with a degree
of independence and objectivity from the Office of Corporate Communications.
The initial appointment letter for this “fact finding inquiry” instructed the
investigator to gather information and provide a written report surrounding
allegations raised by the appellant, guided by identified Department of Defense and
agency policies relating to violence prevention and unlawful harassment. IAF,
Tab 14 at 12. It also authorized this individual to interview witnesses, draft a
summary of their statements for their signature, examine and collect copies of any
necessary documentary records, and report findings of fact, including any
credibility determinations, in a written report. Id. at 12-13. All civilian and
military personnel were directed to cooperate with the inquiry unless the
investigator discovered facts constituting potential criminal violations. Id. at 13.
Further, the Assistant to the Deputy Commander for Cyber Engineering was
directed to consult with advisors from the agency’s Labor and Employee Relations23
Office and Office of Counsel. Id. The investigator, among other things, submitted
a Management Inquiry Report that included signed declarations from numerous
witnesses as well as documents provided by witnesses. IAF, Tab 13 at 4-83.
Under the circumstances of this case, we find that the appellant’s statements to the
Assistant to the Deputy Command for Cyber Engineering were protected under
section 2302(b)(9)(C).6 In sum, we find that the appellant engaged in activity
protected under 5 U.S.C. § 2302(b)(9)(C) when she complained to the OIG and
when she cooperated with and disclosed information to the Assistant to the Deputy
Commander for Cyber Engineering.
The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(D), the right to disobey provision.
¶53The appellant separately argues that her set of disclosures about
meetings with a contractor (Disclosure 1) and her set of disclosures about
backdating files (Disclosure 2) also constituted activity protected under 5 U.S.C.
§ 2302(b)(9)(D), and that the administrative judge failed to address these claims.
PFR File, Tab 3 at 24-25. Because the appellant is correct that the administrative
6 Although the appellant alleges in her petition for review that she engaged in activity
protected by section 2302(b)(9)(C), she does not specify that this activity included her
participation in an EEO sensing session or discussions with a facilitator of that session.
PFR File, Tab 3 at 21, Tab 10 at 9-10. The same is true of her responses to the Board’s
request for additional argument about section 2302(b)(9)(C). PFR File, Tab 22 at 9-10.
Thus, we do not address whether such activities are covered under section 2302(b)(9)(C).
In any event, it appears that the sensing session was initiated by the Director of the Office
of Corporate Communications to, in part, “provide a way for people to talk.” IAF, Tab 13
at 81-82. It was conducted by EEO office personnel as “facilitators only” to provide the
workforce with an opportunity to participate, on a voluntary basis, in a session to voice
their concerns and identify possible recommendations or solutions for office
improvement in any area they wished to address in an anonymous format. Id. at 85.
Based on this limited information, even if the appellant had intended to raise such a claim,
she has not proven that any cooperation or disclosure of information during the sensing
session or to a facilitator would meet the requirements of section 2302(b)(9)(C) as
outlined above. Similarly, considering the criteria set forth above, she has not met her
burden of proving that, under the facts of this case, the Staff Judge Advocate or any other
individual, other than the Deputy Commander for Cyber Engineering who conducted the
official investigation, constituted a “component” responsible for internal investigation or
review.24
judge did not address the claims, we do so now and modify the initial decision
accordingly. The statutory provision at issue, section 2302(b)(9)(D), prohibits
retaliation for “refusing to obey an order that would require the individual to
violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D); Fisher, 2023 MSPB
11, ¶¶ 11-12.
¶54Regarding the activity associated with Disclosure 1, the appellant has
not identified below or on review any particular evidence that she was given an
order about the meetings. In her sworn statement, the appellant asserts that her
supervisors “correctly perceived that [she] would refuse to violate federal
acquisition laws and regulations.” IAF, Tab 7 at 5. She also asserts that she
“disclosed to [several officials] that [she] was not willing to have any such
meetings” with the contractor. Id. But the appellant does not recount any order
that she do so, followed by a refusal to obey such an order. The appellant’s
deposition testimony, which provides additional context, states only that “it was
implied” that she would be tasked with hosting more of these meetings that she
thought were problematic. IAF, Tab 64 at 59-60. Yet the appellant later stated that
she was told she would not have to attend future meetings if she did not want to do
so. Id. at 61. For these reasons, the appellant has not proven that she engaged in
activity protected by section 2302(b)(9)(D) regarding these meetings.
¶55Turning to the activity associated with Disclosure 2, the appellant
suggests that she refused to obey an instruction about the backdating of internal
agency files. IAF, Tab 7 at 5, Tab 64 at 39-42. The appellant has not, however,
directed us to evidence showing that she disobeyed an order. Thus, we again find
that the appellant has not proven that she engaged in activity protected by
section 2302(b)(9)(D).7
7 In light of our finding that the appellant did not disobey an order, we do not reach the
issue of whether the appellant showed that an order would have required her to actually
violate a law, rule, or regulation. See 5 U.S.C. § 2302(b)(9)(D).25
The appellant proved the contributing factor element of her burden.
¶56Another element of an appellant’s burden of proof in an IRA appeal,
such as this one, is proof that her protected disclosure or activity was a contributing
factor in the contested personnel action. Turner, 2023 MSPB 25, ¶ 12. One way to
meet this burden is through the knowledge/timing test, which allows an appellant to
demonstrate that the protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude that
it was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63.
¶57The administrative judge found that the appellant met her burden of
proving the contributing factor element of her case for her protected OIG activity
because the agency removed her just days after learning of her OIG complaint. ID
at 28-29. We agree. We modify the initial decision to also find that the appellant
established the contributing factor element in connection with the other activity we
found protected under section 2302(b)(9)(C). Among other things, the individual
who signed the appellant’s termination letter in January 2020 was among those
interviewed by the agency investigator about the appellant’s allegations just
1 month earlier. IAF, Tab 12 at 25-32, Tab 13 at 4, 98-99; see 5 U.S.C.
§ 1221(e)(1).
The agency proved that it would have taken the same probationary termination in
the absence of the appellant’s protected whistleblowing.
¶58Once an appellant presents a prima facie case of whistleblower
reprisal by proving that she made protected disclosures or engaged in protected
activity that was a contributing factor in a covered personnel action, the burden
shifts to the agency. Soto, 2022 MSPB 6, ¶ 6. In determining whether an agency
has met its burden of proving that it would have taken the same personnel action in26
the absence of the protected activity, the Board will consider all of the relevant
factors, including the following: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision; and (3) any evidence
that the agency takes similar actions against employees who do not engage in such
protected activity, but who are otherwise similarly situated. Id., ¶ 11 (citing Carr
v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999)). These
are commonly called the Carr factors. In making its determination, the Board must
consider all of the pertinent evidence in the record and must not exclude or ignore
countervailing evidence by only looking at the evidence that supports the agency’s
position. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012) (“Evidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the pertinent
evidence in the record, and despite the evidence that fairly detracts from that
conclusion”). The factors are not viewed as discrete elements, each of which the
agency must prove by clear and convincing evidence; rather, the Board weighs
these factors together to determine whether the evidence is clear and convincing as
a whole. Soto, 2022 MSPB 6, ¶ 13.
¶59After recognizing these standards, the administrative judge found that
the agency met its burden. ID at 29-41. In short, the administrative judge found
that the agency had strong evidence in support of the probationary termination, ID
at 31-40, and that the responsible officials had no real motive to retaliate, ID at 41.
The administrative judge made no findings about comparator employees, i.e., Carr
factor 3.
¶60On review, the appellant disagrees with the administrative judge’s
analysis. PFR File, Tab 3 at 28-38. For example, she suggests that her chain of
command responded to Disclosures 1 and 2 by accusing her of not being a “team
player,” and she argues that this reflects retaliatory animus. Id. at 28 (referencing27
IAF, Tab 7 at 5). In addition, the appellant asserts that the agency’s justification
for her probationary termination was especially weak. Id. at 29, 32. The appellant
also points to a passage of the termination letter stating that the appellant
“instigated and escalated interactions,” and she argues that this and other similar
rationales were, in effect, the agency citing her whistleblowing as a basis for the
probationary termination. Id. at 29-30, 33 (referencing IAF, Tab 12 at 27-28). The
appellant further asserts that there were just days between her OIG complaint and
her probationary termination, id. at 30-31, the administrative judge failed to
recognize that her first- and second-level supervisors had a motive to retaliate for
the complaint, id. at 34-36, and the initial decision is silent as to any comparator
evidence regarding how the agency treats similarly situated nonwhistleblowers, id.
at 37-38. As discussed below, we modify the administrative judge’s Carr factor
analysis but reach the same conclusion that the agency proved by clear and
convincing evidence that it would have taken the same probationary termination
absent the appellant’s protected activity.
Carr Factor 1
¶61Regarding the strength of the evidence in support of the appellant’s
probationary termination, we agree with the administrative judge that this evidence
is strong. ID at 31-40. As further detailed in the initial decision, there is ample
evidence of the appellant’s inability to get along with either coworkers or
supervisors during her short time with the agency.
¶62To illustrate with a few examples, in a written declaration that the
appellant’s second-level supervisor apparently made following a November 2019
interview, he characterized the appellant as “inflexible,” “rigid,” and unwilling to
learn how the agency “does business.” IAF, Tab 13 at 76. He further recounted
how the appellant would routinely cut people off to interject her unsolicited
opinions or engage in other such conduct. Id. at 76-78. The second -level
supervisor also drafted a memorandum for the record in December 2019 describing28
a meeting in which the appellant aired numerous and seemingly petty grievances
about interactions with colleagues. IAF, Tab 12 at 34. He also described how the
appellant “borderline badger[ed]” him about office supplies at this meeting, how
she was “condescending and abrupt,” how she was “borderline hostile,” and how
this was an “on-going pattern.” Id. at 34-35.
¶63Subsequently, the appellant’s management chain drafted additional
memoranda describing the appellant’s conduct in more detail, including her
coworkers’ complaints about that conduct. E.g., id. at 37-38, 75-77. Among other
things, this included the appellant engaging in hostile and unprofessional conduct,
repeatedly interrupting superiors and colleagues, intentionally ignoring members
of her team, and stating that she would no longer meet with colleagues unless a
member of Human Resources was also present. Id. at 75-77. Much of this is
corroborated by other evidence, such as emails from the appellant’s coworkers. Id.
at 86-87. One of those coworkers described how she and the appellant had a
friendly relationship in and out of the office, but that the relationship abruptly
changed when the appellant became angry about the coworker using a shared
printer, thereby delaying the appellant’s use of the same. Id. According to this
coworker, the appellant had begun to wage a “Cold War” in the office, “creating a
toxic environment,” causing this coworker to dread her workdays. Id. at 86.
¶64Accordingly, the agency had strong reasons for terminating the
appellant during her probationary period, a period during which agencies are
encouraged “as fully as possible to determine” the individual’s fitness for Federal
employment. 5 C.F.R. § 315.803(a).
Carr Factor 2
¶65Turning to the motive to retaliate, the administrative judge reasoned
that the appellant’s first- and second-level supervisors, i.e., the ones most
responsible for the appellant’s probationary termination, had no motive to retaliate
for her protected whistleblowing activity with the OIG, as demonstrated by them29
facilitating that activity. ID at 41. In making this finding, the administrative judge
provided almost no analysis. Accordingly, we modify the administrative judge’s
analysis and also consider the additional activity that we found to be both protected
and a contributing factor in the appellant’s probationary termination.
¶66When the officials responsible for a personnel action are the subject of
the appellant’s protected activity, those officials generally have a strong motive to
retaliate. Young v. Department of Homeland Security , 2024 MSPB 18, ¶ 30; Elder
v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 45 (2016) (finding a strong
motive to retaliate when the deciding official was the subject of a prior settlement
agreement involving the appellant). The precise strength of that motive will
depend on an examination of all of the record evidence. See Whitmore, 680 F.3d
at 1368; Soto, 2022 MSPB 6, ¶ 11. Furthermore, officials responsible for the
overall performance of the agency may have a motive to retaliate to the extent that
criticism of the institution may reflect on them in their capacity as managers and
employees. Whitmore, 680 F.3d at 1370; Wilson, 2022 MSPB 7, ¶ 65.
¶67That the appellant’s protected activity directly implicated the agency
officials most responsible for the appellant’s termination suggests a strong motive
to retaliate. On the other hand, while not precluding a motive to retaliate, we must
also consider that they facilitated some of the appellant’s protected activity, that
the allegations of wrongdoing were seemingly without merit, and that the officials
had suffered no adverse consequences at the time they took the personnel action30
because of the appellant’s activity.8 Considering all of the evidence, we find that
there was some motive to retaliate but that it was not very strong.
Carr Factor 3
¶68Turning to the last Carr factor, any evidence that the agency takes
similar actions against employees who do not engage in protected activity but who
are otherwise similarly situated, the administrative judge made no findings. Thus,
we address that matter now.
¶69During the proceedings below, the agency presented argument and
evidence about another individual who was not a whistleblower but who was
terminated during the individual’s probationary period around the same time as the
appellant’s probationary termination. IAF, Tab 66 at 50, 53-60, Tab 84 at 33,
110-11. However, that individual was terminated for a mix of poor performance
and conduct. IAF, Tab 66 at 53-57. The Board has held that the requirement that
comparator employees for Carr factor purposes be “similarly situated” does not
require “virtual identity;” rather, “[d]ifferences in kinds and degrees of conduct
between otherwise similarly situated persons within an agency can and should be
accounted for.” Whitmore, 680 F.3d at 1373; Chavez, 120 M.S.P.R. 285, ¶ 34.
Nevertheless, we cannot conclude that the comparator identified by the agency is
similarly situated for these purposes given the information provided about the
potential comparator.
8 In her petition for review, the appellant notes that the investigator’s final report
criticized the appellant’s supervisors for not addressing the appellant’s sexual harassment
allegations in a more timely manner. PFR File, Tab 3 at 36; see IAF, Tab 13 at 21. This
argument is not particularly persuasive regarding the issues presented by this appeal
because the report was issued long after the appellant’s probationary termination. We
also recognize that a retaliatory motive could stem from an official’s frustration about an
employee’s continued misplaced allegations of wrongdoing rather than a genuine concern
that the whistleblowing revealed wrongdoing by the official. Nevertheless, considering
all of the evidence in this matter, any motive to retaliate was not particularly strong.31
¶70On review, the appellant attempts to compare herself to a different
employee whom she describes as being subject to lesser discipline for more
egregious conduct. PFR File, Tab 3 at 37. But we have no indication that this
individual was a probationary employee, like the appellant, and the appellant has
not directed us to any argument or evidence about how this individual might
otherwise be similarly situated. Thus, this individual is not a valid comparator.
Accordingly, neither the agency nor the appellant has produced evidence of how
the agency treats similarly situated employees who are not whistleblowers.
¶71The agency does not have an affirmative burden to produce evidence
concerning each and every Carr factor, and “the absence of any evidence relating to
Carr factor three can effectively remove that factor from the analysis.” Whitmore,
680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. However, the failure to produce
such evidence, if it exists, “may be at the agency’s peril,” could “cut slightly
against” the agency, and “may well cause the agency to fail to prove its case
overall.” Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016);
Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. If either or both of the
first two Carr factors do not support a finding that the agency would have taken the
same personnel action absent the disclosure or protected activity, the agency’s
failure to present evidence of the third Carr factor may prevent it from carrying its
overall burden. Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 26-30; see also
Miller, 842 F.3d 1252, 1259 -63.
¶72Because it is the agency’s burden to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
appellant’s protected activity, the third Carr factor cannot weigh in the agency’s
favor when the agency fails to introduce relevant comparator evidence. Smith v.
General Services Administration , 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v.
Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018); Soto,
2022 MSPB 6, ¶ 18. Here, the agency has introduced some comparator evidence,32
but its evidence is insufficient to show that the proffered comparator is in fact
appropriate. Under the particular circumstances of this case, we find that the
agency’s failure to introduce complete, fully explained comparator evidence
effectively removes this factor from the analysis.
¶73In conclusion, the agency presented strong evidence in support of the
appellant’s probationary termination. But agency officials involved in that
probationary termination had some motive to retaliate for the appellant’s protected
whistleblowing activity, and the record contains no persuasive evidence about
similarly situated nonwhistleblowers. Considering the evidence as a whole, we
find that the agency has proven by clear and convincing evidence that it would have
taken the same probationary termination in the absence of the appellant’s protected
activity. See 5 U.S.C. § 1221(e)(2). The agency has, therefore, met its burden of
rebutting the appellant’s prima facie case of reprisal.
The appellant has not shown that the administrative judge’s procedural rulings
were an abuse of discretion.
¶74The appellant asserts that the administrative judge made improper
discovery rulings. PFR File, Tab 3 at 38-39. She also contends that the
administrative judge improperly disallowed some of her proposed witnesses and
that this prompted the appellant to withdraw her hearing request. Id. at 39-40.
These arguments are unavailing.
¶75Regarding discovery, the appellant alleges that the agency failed to
(1) adequately initiate the discovery process by the designated deadline;
(2) provide pertinent information in a deposition notice; (3) timely file a motion to
compel; and (4) include a statement of good faith with that motion to compel. Id.
at 38. The agency disagrees on all counts while providing a more thorough
accounting of the circumstances. PFR File, Tab 7 at 5-8.
¶76The parties presented extensive arguments and evidence about these
issues below. IAF, Tabs 28-29. At its heart, the dispute stems from the agency33
serving the appellant with a deposition notice by the designated deadline for
initiating discovery, wherein the date of the planned deposition was listed as “TBD
(1 Full Day May 13-27, 2021).” IAF, Tab 28 at 41. According to the agency, it
provided a date range to accommodate scheduling conflicts, including the
appellant’s planned surgery, in anticipation that the parties would later work
together to decide which day worked best. PFR File, Tab 7 at 6; IAF, Tab 28
at 4-5. According to the appellant, the absence of a definitive date rendered the
deposition notice invalid, regardless of the agency’s reasons. PFR File, Tab 3
at 38; IAF, Tab 28 at 39, Tab 29 at 5. This dispute led to the appellant refusing to
participate in a deposition, the agency’s motion to compel, the parties’ arguments
about the same, and the administrative judge compelling the appellant’s deposition.
IAF, Tabs 28-29, 33.
¶77An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings, absent an abuse
of discretion. Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 25.
Under the circumstances described, we do not find that the administrative judge
abused that broad discretion.
¶78The appellant separately asserts that the administrative judge denied
her motion to compel certain information and prohibited her from deposing certain
officials, all of which hindered her case. PFR File, Tab 3 at 38-39. These issues
were also thoroughly developed through competing pleadings and the
administrative judge’s rulings. E.g., IAF, Tabs 30, 32, 34, 46-51. For example, the
administrative judge denied the appellant’s request to take the deposition of several
agency employees because the appellant waited until several months after the
deadline for initial discovery requests and just 2 weeks before the prehearing
submissions were due to issue her notice of those depositions, without any
explanation for the delay, and because the requested deposition testimony appeared
irrelevant. IAF, Tab 51 at 1-2. The appellant’s cursory assertion on review that the34
administrative judge’s discovery rulings hindered her case do not persuade us that
this or other similar rulings constituted an abuse of discretion.
¶79Turning to the issue of the three disallowed witnesses, the appellant
summarily asserts that she “made an adequate showing of the relevance each
witness would have in this case.” PFR File, Tab 3 at 39-40 (referencing IAF,
Tab 54 at 22-24). The administrative judge, however, determined that the
appellant’s proffer of expected testimony for these individuals was speculative,
redundant, and not relevant. IAF, Tab 73 at 5. The appellant subsequently
withdrew her hearing request without any mention of the administrative judge’s
rulings about witnesses. IAF, Tab 76.
¶80An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony that she believes would
be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 12 (2013). To obtain reversal of an initial decision
on the ground that the administrative judge abused her discretion in excluding
evidence, the petitioning party must show on review that relevant evidence, which
could have affected the outcome, was disallowed. Id. Here, the appellant’s general
assertion that she adequately identified the relevance of her proposed witnesses
below does not meet this burden and does not persuade us that the administrative
judge erred.
ORDER
¶81This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).35
NOTICE OF APPEAL RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.36
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court-
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 37
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals38
of competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 39
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Gina K. Grippando
Clerk of the Board
Washington, D.C.40 | Reese_MaryDC-1221-21-0203-W-1__3070294.pdf | 2025-01-31 | Mary Reese v. Department of the Navy, 2025 MSPB 1 | DC-1221-21-0203-W-1 | P |
4 | https://www.mspb.gov/decisions/precedential/Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 19
Docket No. DE-3330-23-0125-I-1
Jason Terry,
Appellant,
v.
Department of the Air Force,
Agency.
December 20, 2024
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Lieutenant Colonel Neal Patrick Rodak , Esquire, Phoenix, Arizona,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for failure to state a claim on which relief could be granted. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal for further adjudication in accordance
with this Opinion and Order.
BACKGROUND
The appellant began working as a GS-9 General Supply Specialist with the
Arizona Air National Guard (AZ ANG) in May 2021. Initial Appeal File (IAF),
Tab 4 at 9, Tab 11 at 86. He held that position as a dual-status National Guard
technician pursuant to 32 U.S.C. § 709. IAF, Tab 11 at 86. In December 2022,
he applied for the GS-11 Supervisory General Supply Specialist position with the
AZ ANG pursuant to vacancy announcement AZ-11738400-23-NW-22-205C,
which was open to the public. IAF, Tab 1 at 5, Tab 11 at 36. In his application,
the appellant claimed a 10-point veterans’ preference based on his Veterans
Affairs (VA) rating of a 30% or more service-connected disability. IAF, Tab 4
at 8, Tab 11 at 36, 101. The agency interviewed the appellant for the position but
selected another applicant. IAF, Tab 11 at 17, 72.
The appellant filed a VEOA complaint with the Department of Labor
(DOL), which DOL later notified him that it had closed, although it indicated that
it had found the complaint “to have merit.” IAF, Tab 1 at 9. DOL determined, as
it explained to the agency, that the selectee was deemed to have no veterans’
preference at the time of selection, and that the agency provided no evidence that
it properly followed the required “pass over” procedures through the Office of
Personnel Management (OPM) when a nonpreference eligible is hired over an
applicant with veterans’ preference eligibility as set forth in 5 U.S.C. § 3318.
IAF, Tab 11 at 36-37. DOL notified the appellant of his right to a Board appeal,
which the appellant timely filed. IAF, Tab 1. He asserted that the agency
violated his veterans’ preference rights and requested a hearing. Id. at 2, 5.
The agency moved to dismiss the appeal, asserting that it had cancelled the
selection and submitted a pass over request to OPM. IAF, Tab 9. Therefore, it
argued, the appeal was not ripe for adjudication. Id. The appellant objected to
the agency’s motion, arguing that an agency’s unilateral modification of its action
after an appeal has been filed cannot divest the Board of jurisdiction. IAF,
Tab 11 at 4. The administrative judge issued a show cause order assuming that2
the Board had jurisdiction but stating that it appeared that the Board would
nonetheless lack the authority to order relief if the appellant prevailed. IAF,
Tab 12 at 1. The administrative judge explained that, pursuant to the holding of
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v.
Merit Systems Protection Board , 244 F.3d 1331 (Fed. Cir. 2001), the Board only
has the authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or
employee” to comply with corrective action, and the Arizona Adjutant General is
not a “Federal employee” as defined in Title 5 of the United States Code. Id.
at 1-2. Accordingly, he ordered the appellant to show cause why he should not
dismiss the appeal for failure to state a claim on which relief can be granted. Id.
at 2-3.
In response to the show cause order, the appellant appears to have argued
that the vacancy announcement at issue was a Title 5 civilian position with the
National Guard under the appointment authority codified at 10 U.S.C. § 10508.
IAF, Tab 13 at 4-9. He argued that the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2017 NDAA), amended
10 U.S.C. § 10508 to subject the state adjutants general and the various National
Guards to the Board’s enforcement authority under 5 U.S.C. § 1204(a)(2). Id.
at 4-7. In its response to the show cause order, the agency argued that state
National Guards and state adjutants general remain outside the definition of a
“Federal agency or employee,” and, thus, the Board does not have statutory
enforcement authority under 5 U.S.C. § 1204(a)(2) over either. IAF, Tab 14 at 5.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for failure to state a claim on which relief
can be granted. IAF, Tab 15, Initial Decision (ID). He found that, although the
Board has jurisdiction, it could not grant relief because it could not order
compliance by the Adjutant General of Arizona, the Governor of Arizona, or any
other person or entity. ID at 3-6. Specifically, he found that the 2017 NDAA did3
not resolve the issue that the Federal Circuit confronted in Singleton, 244 F.3d
at 1336, because it did not amend 5 U.S.C. § 1204(a)(2). ID at 5.
The appellant has filed a timely petition for review, arguing that the
administrative judge failed to address 10 U.S.C. § 10508. Petition for Review
(PFR) File, Tab 1 at 7.1 The agency has not responded to the appellant’s petition
for review.
ANALYSIS
The Board has jurisdiction over the appellant’s VEOA appeal.
To establish the Board’s jurisdiction over a VEOA appeal based on an
alleged violation of veterans’ preference rights, an appellant establishes
jurisdiction by (1) showing that he exhausted his remedy with DOL; and
(2) making nonfrivolous allegations that: (a) he is a preference eligible within
the meaning of VEOA; and (b) the agency violated his rights under a statute or
regulation relating to veterans’ preference. 5 U.S.C. § 3330a; Jarrard v. Social
Security Administration , 115 M.S.P.R. 397, ¶ 7 (2010), aff’d sub nom. Jarrard v.
Department of Justice , 669 F.3d 1320 (Fed. Cir. 2012); see Davis v. Department
of Defense, 2022 MSPB 20, ¶ 5 n.1 (determining that an accurate exposition of
VEOA’s jurisdictional elements may omit reference to the requirement that an
appellant nonfrivolously allege that the action at issue took place on or after the
October 30, 1998 enactment date of VEOA). We agree with the administrative
judge that the appellant met his burden to prove that he exhausted his
administrative remedy with DOL and nonfrivolously alleged that his nonselection
1 Following the submission of his petition for review, the appellant moved to present
supplemental authority and corresponding argument based on the U.S. Supreme Court’s
decision in Ohio Adjutant General’s Department v. Federal Labor Relations Authority ,
598 U.S. 449, 453-54 (2023), issued on May 18, 2023, PFR File, Tab 3, and the Board’s
decision in Erdel v. Department of the Army , 2023 MSPB 27; PFR File, Tab 5. The
Board generally does not permit additional pleadings on review unless the party
demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(4). In this matter,
there is no need for additional argument. Therefore, we DENY the appellant’s motions.4
and another candidate’s selection violated his veterans’ preference rights. ID
at 3. We revisit the jurisdictional issue to expressly find that the alleged VEOA
violation was committed by an “agency” within the meaning of VEOA.
VEOA does not define “agency,” and there is nothing in the Act’s
legislative history to illuminate the meaning of that word in the context of
5 U.S.C. § 3330a. Willingham v. Department of the Navy , 118 M.S.P.R. 21, ¶ 9
(2012). However, the Board has held that the remedial purpose of VEOA and the
congressional solicitude for veterans reflected therein strongly favor reading
section 3330a broadly in favor of the veteran when possible. Id., ¶ 15. For the
reasons discussed below, we find that the alleged appointment authority for the
vacancy announcement at issue shows that the appointment was to be made
pursuant to the Department of Defense (DOD) civilian personnel system, and,
therefore, the appellant’s nonselection comes within the purview of VEOA.
The appellant nonfrivolously alleges that the vacancy announcement was
for a Title 5 civilian position with the AZ ANG open under the authority of the
2017 NDAA.2 IAF, Tab 13 at 4; PFR File, Tab 1; see also IAF, Tab 1 at 12,
Tab 11 at 16, 36-37. At this stage, we accept the appellant’s allegations that the
appointment authority for the vacancy was 10 U.S.C. § 10508 and that the
position was a Title 5 civilian position. See Ohio Adjutant General’s Department
v. Federal Labor Relations Authority , 598 U.S. 449, 453-54 (2023) (concluding
that dual-status technicians are Federal civilian employees). Section 10508, as
amended by the 2017 NDAA, states that “[t]he Chief of the National Guard
Bureau may . . . appoint, employ, [and] administer . . . persons” within the
Bureau and the National Guard of each jurisdiction under certain listed sections
of Title 5 and Title 32. 10 U.S.C. § 10508(b)(1). As we explained in Lane v.
Department of the Army , 2024 MSPB 4, ¶ 8, a state National Guard acts through
2 The appellant’s allegation that the vacancy announcement was for a Title 5 civilian
position is consistent with DOL’s conclusion that Title 5 veterans’ preference rights
applied. IAF, Tab 11 at 36-37.5
the authority delegated to it by the National Guard Bureau and its Chief, which
are integrated into the DOD. See 10 U.S.C. §§ 10501, 10502(a)-(b), (d). The
Chief can delegate his 10 U.S.C. § 10508(b)(1) appointing, employing, and
administering authority to the various adjutants general. 10 U.S.C.
§ 10508(b)(2). Because of this arrangement, we find that the AZ ANG is an
“agency” for purposes of 5 U.S.C. § 3330a. See Willingham , 118 M.S.P.R. 21,
¶¶ 16-18 (finding that a non -appropriated fund instrumentality integrated into the
DOD civilian personnel system should be viewed as an agency for purposes of
5 U.S.C. § 3330a). Furthermore, 10 U.S.C. § 10508(b)(3)(A) specifies that, for
administrative claims arising from, or relating to, “personnel actions or
conditions of employment, including adverse actions under Title 5, pertaining to a
person appointed, employed, or administered by an adjutant general under this
subsection,” the individual state National Guard shall be considered the
“employing agency.” 10 U.S.C. § 10508(b)(3)(A) (emphasis added).
Accordingly, because we find that the appellant exhausted his remedy with DOL,
and he has made nonfrivolous allegations that he is a preference eligible and that
an agency violated his rights under a regulation relating to veterans’ preference,
we find that the Board has jurisdiction over this appeal. See 5 U.S.C. § 3330a.
The appellant has stated a claim on which relief can be granted.
The Board has the authority to “order any Federal agency or employee to
comply with any order or decision issued by the Board” in matters falling within
its jurisdiction. 5 U.S.C. § 1204(a)(1)-(2); see Lane, 2024 MSPB 4, ¶ 6. The
administrative judge relied on the Federal Circuit’s decision in Singleton,
244 F.3d at 1333, 1336-37, which held that, prior to the 2017 NDAA, Board
orders were unenforceable against adjutants general of the National Guard
because adjutants general were not Federal employees. The administrative judge
applied the holding in Singleton and determined that, while the 2017 NDAA
amended statutory provisions at Titles 5 and 32 to provide dual-status National
Guard technicians with Title 5 appeal rights under certain circumstances, it did6
not warrant a different outcome because it did not amend 5 U.S.C. § 1204(a) to
provide the Board with enforcement authority against adjutants general. ID at 5.
Since the issuance of the initial decision, we have held otherwise. Lane,
2024 MSPB 4, ¶¶ 7-11; Erdel v. Department of the Army , 2023 MSPB 27,
¶¶ 11-16. As the Supreme Court has determined, “[w]hile it is state adjutants
general who ‘employ and administer’ dual-status technicians working for their
respective State National Guard units, they can only do so pursuant to an express
‘designat[ion]’ of authority by the Secretary of the Army or the Secretary of the
Air Force.” Ohio Adjutant General’s Department , 598 U.S. at 454 (citations
omitted). Because National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force, which are Federal
agencies, the Board has the authority to order the employing agency of a National
Guard technician to take an employment action under 5 U.S.C. § 1204(a)(2).
Erdel, 2023 MSPB 27, ¶¶ 11-14. In Lane, we extended the holding in Erdel to
find that the Board has the authority to provide relief in Title 5, chapter 75
adverse action appeals to any National Guard employees who were appointed to
civilian positions under the authority of 10 U.S.C. § 10508. Lane, 2024 MSPB 4,
¶¶ 8-11. In doing so, we recognized that in the 2017 NDAA, Congress provided
that the applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment, or decision” in
connection with an administrative proceeding challenging its adverse action
against an individual hired under 10 U.S.C. § 10508(b). Lane, 2024 MSPB 4,
¶ 11 (citing 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B))).
This language effectively authorizes the Board to enforce orders against the
various National Guards. Id.
The reasoning applied in Erdel and Lane is equally applicable here. The
right of preference-eligible Federal employees, like the appellant, to appeal an
agency’s violation of a veterans’ preference rule to the Board exists pursuant to
5 U.S.C. § 3330a. We previously concluded herein that the AZ ANG is an7
“agency” for the purposes of 5 U.S.C. § 3330a. Supra pp. 5-6. Further, the
2017 NDAA provided that “all personnel actions or conditions of employment,
including adverse actions under Title 5, pertaining to a person appointed,
employed, or administered by an adjutant general under [10 U.S.C. § 10508(b)]”
may be subject to administrative complaints, grievances, claims, or actions, and
that the relevant National Guard “shall promptly implement all aspects of any
final administrative order, judgment, or decision.” 130 Stat. at 2363-64 (codified
at 10 U.S.C. § 10508(b)(3)(A)-(B)); see Lane, 2024 MSPB 4, ¶ 9 (finding that an
employee appointed under 10 U.S.C. § 10508(b) may file “an administrative
complaint, grievance, claim or action” challenging a Title 5 adverse action). A
violation of veterans’ preference rules in hiring involves a “personnel action or
condition of employment.” See 5 U.S.C. §§ 3309 (providing for the addition of
points to a preference eligible’s score for hiring purposes), 3311 (providing credit
for a preference eligible’s experience for hiring purposes), 3318(c) (providing
that an agency must obtain permission from OPM before passing over a
preference-eligible veteran for hiring).
It would be implausible for Congress to have specifically provided for an
administrative remedy under VEOA but for there to be no relief available to
certain Federal employees, like the appellant, from the Board, which has
jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB 27, ¶ 11 (finding
that it would be beyond strange for Congress to have specifically amended two
statutory provisions in different Titles of the U.S. Code to provide dual-status
technicians with Board appeal rights, but for there to be no relief available from
the Board); see also Willingham , 118 M.S.P.R. 21, ¶¶ 16-18 (finding Board
jurisdiction and adjudicating a claim for corrective action under VEOA after
concluding that a non-appropriated fund instrumentality operating as a component
of the U.S. Marine Corps came within the purview of VEOA). We can conceive
of no reason why 5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing
orders against state National Guards in Title 5 VEOA appeals when it does not8
preclude the Board from doing so in Title 5, chapter 75 adverse action appeals.
10 U.S.C. § 10508(b)(3)(B); see Lane, 2024 MSPB 4, ¶¶ 8-11; see also
Willingham, 118 M.S.P.R. 21, ¶¶ 14-15 (discussing the long-standing solicitude
of Congress for veterans). Thus, we conclude that the Board has the authority
under 5 U.S.C. § 1204(a)(2) to order the DOD and, by extension, the state
National Guard to provide relief in this matter. Accordingly, we vacate the initial
decision, which came to the opposite conclusion.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Terry_JasonDE-3330-23-0125-I-1_Opinion_and_Order.pdf | 2024-12-20 | Jason Terry v. Department of the Air Force, 2024 MSPB 19 | DE-3330-23-0125-I-1 | P |
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6 | https://www.mspb.gov/decisions/precedential/Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 17\nDocket No. CH-0714-22-0256-(...TRUNCATED) | Morley_Tammie_CH-0714-22-0256-A-1_Opinion_and_Order.pdf | 2024-11-20 | Tammie Morley v. Department of Veterans Affairs, 2024 MSPB 17 | CH-0714-22-0256-A-1 | P |
7 | https://www.mspb.gov/decisions/precedential/Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 16\nDocket No. AT-0714-23-0137-(...TRUNCATED) | Bryant_Eric_T_AT-0714-23-0137-I-1_Opinion_And_Order.pdf | 2024-11-18 | Eric Terrell Bryant v. Department of Veterans Affairs, 2024 MSPB 16 | AT-0714-23-0137-I-1 | P |
8 | https://www.mspb.gov/decisions/precedential/MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 15\nDocket No. DC-1221-22-0590-(...TRUNCATED) | MacLean_Robert_J_DC-1221-22-0590-W-3_Opinion_And_Order.pdf | 2024-11-14 | Lean v. Department of Homeland Security, 2024 MSPB 15 | DC-1221-22-0590-W-3 | P |
9 | https://www.mspb.gov/decisions/precedential/Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf | "UNITED STATES OF AMERICA\nMERIT SYSTEMS PROTECTION BOARD\n2024 MSPB 14\nDocket No. DA-0432-19-0539-(...TRUNCATED) | Zepeda_Latisha_A_DA_0432_19_0539_I_1_Opinion_and_Order.pdf | 2024-10-30 | Latisha A. Zepeda v. Nuclear Regulatory Commission, 2024 MSPB 14 | DA-0432-19-0539-I-1 | P |
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