# Lynette Tillman-Johnson v. Department of Housing and Urban Development

> Merit Systems Protection Board · June 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10034044

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 14, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10034044

## How later opinions describe it (automated extraction)

- finding that, by using the phrase “law, rule, or regulation” to describe protected disclosures, while using the word “law” to describe excepted disclosures, Congress intended to exclude disclosures that violated rules or regulations from excepted disclosures
- holding that equitable tolling may be invoked when a party “has actively pursued his judicial remedies by filing a defective pleading during the statutory period”
- holding that non-jurisdictional filing deadlines are presumptively subject to equitable tolling

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

LYNETTE TILLMAN-JOHNSON, DOCKET NUMBER
Appellant, DA-1221-22-0388-W-1

v.

DEPARTMENT OF HOUSING AND DATE: June 14, 2024
URBAN DEVELOPMENT,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew B. Henson , Esquire, Decatur, Georgia, for the appellant.

Marcus R. Patton , Esquire, Anju V. Mathew , Esquire, Sakeena M. Adams ,
Esquire, and Mary C. Merchant , Esquire, Fort Worth, Texas, for the
agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner recused himself and
did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which
granted corrective action in this individual right of action (IRA) appeal.

1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the agency has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).

BACKGROUND
¶2 On September 4, 2018, the agency appointed the appellant to the position of
GS-13 Senior Account Executive (SAE), subject to a 1-year initial probationary
period. Initial Appeal File (IAF), Tab 1 at 7. The appellant was responsible for
overseeing the performance of a portfolio of multifamily housing properties under
the agency’s purview. IAF, Tab 8 at 52, Tab 22 at 25. As a part of her job duties,
she was required to monitor the properties assigned to her portfolio for changing
financial circumstances, including by reviewing and approving changes to lease
requests, loan terms or modifications, changes in property management, and other
project-related requests. IAF, Tab 22 at 26. As an SAE, the appellant served as
the primary point of contact with owner management agents, tenants, and Federal,
state, and local governments for the projects assigned to her. Id. As such, she
was tasked with “negotiat[ing] formal agreements on behalf of” the agency, and
3

with “insuring [sic] that all executed agreements are monitored in accordance
with established policies and procedures.” Id.
¶3 On August 4, 2022, the appellant filed an IRA appeal, claiming that the
agency reassigned her, terminated her employment, and took several other
personnel actions against her in retaliation for protected whistleblowing. IAF,
Tabs 1, 5. She waived her right to a hearing. IAF, Tab 17. After the close of the
record, the administrative judge issued an initial decision granting the appellant’s
request for corrective action with respect to both the reassignment and the
termination. IAF, Tab 31, Initial Decision (ID) at 1, 30. The agency has filed a
petition for review, and the appellant has filed a response. Petition for Review
(PFR) File, Tabs 1, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appeal was timely.
¶4 Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once the Office of Special Counsel (OSC) closes its investigation into
her complaint and no more than 60 days have elapsed since notification of the
closure was provided to her. Under the Board’s regulations implementing that
statutory time limit, an IRA appeal must be filed no later than 65 days after the
date that OSC issues its closeout letter, or, if the letter is received more than
5 days after its issuance, within 60 days of the date of receipt. 5 C.F.R.
§ 1209.5(a)(1).
¶5 In this case, the appellant received OSC’s closeout letter on May 31, 2022—
the date it was issued, and so the filing deadline was August 4, 2022. IAF, Tab 3
at 3, Tab 8 at 46-47. The appellant filed her appeal on that date. IAF, Tab 1.
However, it appeared from the appellant’s initial appeal form that she was
appealing her probationary termination directly, and it was not until 5 days later
that the appellant clarified that she intended to file an IRA appeal. IAF, Tab 1,
Tab 2 at 3-5, Tab 3 at 3. Based on these facts, the agency argues that the
4

appellant filed her IRA appeal outside the statutory deadline and that the appeal
should be dismissed as untimely. PFR File, Tab 1 at 6-7.
¶6 We have considered the agency’s argument, but we disagree. The agency
has provided no precedent in support of its position on timeliness. There is no
support in the statute or regulations for the Board to construe the date on which
the appellant clarified the nature of her appeal as the date that she filed her
appeal. Furthermore, even if it could be argued that this pro se appellant’s initial
filing was defective, her filing of a timely but defective pleading would provide a
sufficient basis to toll the statutory deadline. 2 See Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 96 (1990) (holding that equitable tolling may be
invoked when a party “has actively pursued his judicial remedies by filing a
defective pleading during the statutory period”).

The appellant proved her case in chief.
¶7 In the merits phase of an IRA appeal, the appellant must prove by
preponderant evidence that (1) she made a protected 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 as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
¶8 In this case, the administrative judge found that the appellant made five
disclosures that were protected on the basis that the appellant reasonably believed
that they concerned a violation of law, rule, or regulation: (1) on October 11,
2018, the appellant disclosed to her former first-line supervisor that the agency
had abandoned or failed to properly inspect and service certain properties; (2) on

2
The Board has never squarely decided the issue of whether the deadline at 5 U.S.C.
§ 1214(a)(3)(A) is subject to equitable tolling. However, we see no reason to doubt that
it is. See generally Boechler v. Commissioner of Internal Revenue , 596 U.S. 199, 209
(2022) (holding that non-jurisdictional filing deadlines are presumptively subject to
equitable tolling).
5

October 12, 2018, she followed up by making the same disclosure to her third -line
supervisor; (3) on October 15, 2018, she reported to her first-line supervisor that
an agency official was retaliating against her for protected whistleblowing by
instructing other employees not to assist her with her portfolio; (4) on
December 14, 2018, she reported to her first-line supervisor that the agency failed
to ensure that property inspections were being conducted and that repairs were
being documented; and (5) on December 11 and 19, 2018, she reported to her
first-line supervisor that the agency failed to ensure that mandatory contract terms
were being included in management agreements. ID at 8-19. On petition for
review, the agency contests the administrative judge’s findings on these
disclosures, except for Disclosure 3. For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant made
Disclosure 3 and that her disclosure was protected. ID at 17.

Disclosures 1 and 2

¶9 Regarding Disclosures 1 and 2, the agency disputes the administrative
judge’s findings about the content of these disclosures, arguing that they are not
supported by the record. PFR File, Tab 1 at 7-8. For the first time on review, the
agency has submitted an October 11, 2018 email that it postulates is Disclosure 1,
and argues that this email contains no allegation of failure to service properties,
property abandonment, missing inspections, or exigent health and safety issues.
Id. at 7 n.21, 13-15.
¶10 However, even considering the agency’s late-filed evidence, we find that it
does not warrant a different outcome in this appeal for two reasons. First, the
administrative judge’s findings about the content of these disclosures were not
based on this one email alone, but on “multiple reports” to the appellant’s
supervisors that the agency was failing to ensure proper servicing of portfolios,
including on October 11 and 12, 2018, when she indicated that the properties
“had been abandoned.” ID at 8. The administrative judge noted that the
6

appellant disclosed the content of Disclosures 1 and 2 by providing evidence that
the property files had not been updated prior to the properties being transferred to
her portfolio. ID at 8-9. The administrative judge also credited the appellant’s
deposition testimony, in which the appellant stated that she reported the lack of
servicing issues to her supervisors, over the declaration of one of those
supervisors who “only generally stat[ed]” that she did not recall the appellant
alleging that the agency was violating any laws, rules, or regulations. The
administrative judge observed that the supervisors did not specifically deny that
the appellant reported that the agency was failing to service the properties. ID
at 9-10. We therefore cannot agree with the agency’s suggestion that the
October 11, 2018 email was all there was to Disclosures 1 and 2.
¶11 Second, even if the Board restricted its examination to the email itself,
there would be sufficient evidence to support the administrative judge’s findings.
Although the email does not explicitly reference property abandonment, missing
inspections, or any exigent health and safety items, it identifies the last date that
inspections were completed for each of the three identified properties, notes that
each of the properties were lacking action plans, and identifies that each of the
properties had been in the same condition for the past 3 months. PFR File, Tab 1
at 13-15. Contextually understood, this email supports the administrative judge’s
finding that the appellant could have reasonably believed that, by identifying
these repeated failures to properly service properties in her portfolio, she was
disclosing that the properties had been “abandoned,” and that this inaction
constituted a violation of agency rules or regulations governing the proper
servicing of the properties. ID at 9-10.
¶12 In finding that Disclosures 1 and 2 met the “reasonable belief” standard, the
administrative judge considered an internal report of investigation (ROI), which
stated that numerous properties in the appellant’s portfolio had not been inspected
as scheduled, and health and safety remediation had not been properly
7

documented, in violation of 24 C.F.R. § 200.857(b)(1) and (c)(2). 3 ID at 10-11;
IAF, Tab 8 at 49-67. The agency argues that, because the appellant failed to
specifically identify many of the properties discussed in the ROI, it was
“improper for the [administrative judge] to assume that the ROI was based on
information [that the appellant] had available to her at the time of her
disclosures.” PFR File, Tab 1 at 8. However, t he ROI was produced at OSC’s
direction as a direct result of the appellant’s whistleblowing complaint, and the
scope of the agency’s investigation was specifically limited to the properties in
the appellant’s portfolio. IAF, Tab 8 at 44-45, 51, 54. Additionally, each of the
three properties that the appellant identified in her October 11, 2018 email was
referenced in the ROI. PFR File, Tab 1 at 13-15; IAF, Tab 8 at 60. Finally, the
appellant also provided OSC with a contemporaneously prepared spreadsheet of
her correspondence with agency managers concerning the inadequate servicing of
her properties, including Disclosures 1 and 2. IAF, Tab 8 at 23, Tab 22 at 5-6.
Consequently, it can be reasonably inferred that the findings in the ROI were
based, at least in part, on information that the appellant had about her properties
when she originally made her disclosures. ID at 11. In any event, it is immaterial
whether the specific properties that the ROI identified as deficient were the same
properties that the appellant identified in Disclosures 1 and 2. As the
administrative judge correctly noted, the appellant was only required to establish
that she reasonably believed that her disclosures evidenced one of the categories
of wrongdoing identified in 5 U.S.C. § 2302(b)(8). PFR File, Tab 4 at 5-6; ID
at 11-12.
¶13 The agency next argues that the appellant did not have a reasonable belief
that it was violating 24 C.F.R. § 200.857(b)(1) by not conducting monthly
inspections because the regulation does not require monthly inspections. PFR
File, Tab 1 at 10. However, even if the appellant was mistaken about how

3
After the initial decision was issued, 24 C.F.R. § 200.857 was removed and reserved,
effective October 1, 2023. See 88 Fed. Reg. 30442, 30498 (May 11, 2023).
8

frequently inspections were required, as explained in the ROI, she was still
correct that the agency was not conducting inspections frequently enough. The
agency also argues that the appellant did not have a reasonable belief that it had
violated 24 C.F.R. § 200.857(c)(2) because property owners, and not the agency,
are required to make health and safety repairs. PFR File, Tab 1 at 10. However,
it is undisputed that the agency failed to hold property owners to the required
remediation timelines for a significant number of the properties in the appellant’s
portfolio. ID at 10-11; IAF, Tab 8 at 54-55. Further, even if the purported
wrongdoing primarily involved non-agency officials, the Board has held that a
disclosure of wrongdoing committed by a non -Federal Government entity may
nevertheless be protected when the Government’s interests and good name are
implicated in the alleged wrongdoing, and the employee shows that she
reasonably believed that the information she disclosed evidenced that
wrongdoing. See Covington v. Department of the Interior, 2023 MSPB 5, ¶ 16;
Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶¶ 6-7 (2001). Regardless of
which party was responsible for conducting the actual repair work, we find that
the Government’s interests and good name are implicated in the appellant’s
disclosures. In sum, we agree with the administrative judge that the appellant
reasonably believed that she was disclosing violations of agency regulations in
connection with Disclosures 1 and 2. ID at 8-12.

Disclosure 4

¶14 Regarding Disclosure 4, the administrative judge credited the appellant’s
deposition testimony that, on December 14, 2018, she disclosed that the agency
had failed to adequately service her properties prior to them being assigned to
her, including by failing to complete inspections and ensure that repairs were
being properly documented. ID at 9 (citing IAF, Tab 23 at 32-33, 54-55). The
agency argues that there is insufficient evidence to prove that the appellant’s
December 14, 2018 disclosure was protected. PFR File, Tab 1 at 8. Specifically,
9

the agency argues that there is no evidence that the appellant disclosed property
inspection and repair documentation failures, and that the administrative judge
improperly relied on the ROI in finding that she did. Id. We disagree.
¶15 Because the administrative judge’s findings are based on the written record,
the Board is free to reweigh the evidence and make its own findings without
deferring to her credibility findings. See Haebe v. Department of Justice,
288 F.3d 1288, 1302 (Fed. Cir. 2002). We have reviewed the record and find that
the administrative judge properly weighed the evidence, including by considering
the consistency of the appellant’s statements with other evidence in the record,
such as the ROI and the appellant’s prior emails detailing the concerns underlying
Disclosure 4. ID at 8-12; see Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987) (setting forth various factors relevant to credibility determinations);
see also Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981)
(explaining the factors that affect the weight of hearsay evidence). In her
deposition, the appellant specifically stated that she informed her first-line
supervisor, by email and in person, that the properties had problems with
inspection and repair documentation. IAF, Tab 23 at 54-55. The appellant
further testified that she had regular meetings with her supervisor during which
she discussed numerous issues with the properties in her portfolio, and that she
discussed the inspection and repair issues during a December 14, 2018 meeting
with her first-line supervisor. IAF, Tab 23 at 55.
¶16 Regarding the agency’s argument that the administrative judge improperly
relied on the findings in the ROI, the administrative judge considered the ROI as
evidence that the appellant’s disclosures concerned a violation of regulation—not
as evidence that she made the disclosures as alleged. ID at 10-11. It was
appropriate for the administrative judge to cite the findings of the ROI, as it gave
context to the appellant’s disclosures by clarifying the proper process and
timeline for completing inspections and repairs, and the ROI acknowledged that
the timelines for both requirements regularly were not met for properties in the
10

appellant’s portfolio. ID at 10-11; IAF, Tab 8 at 53-55. For these reasons, we
agree with the administrative judge that the appellant made Disclosure 4 as
alleged, and that the disclosure concerned violations of agency regulation.

Disclosure 5

¶17 Regarding Disclosure 5, the appellant informed her first-line supervisor on
December 11 and 19, 2018, that certain management agreements were missing
clauses required by the agency’s handbook. ID at 11-12; IAF, Tab 22 at 58-59.
The administrative judge found that the appellant reasonably believed that this
disclosure evidenced a violation of law, rule, or regulation. ID at 12. On review,
the agency argues that its handbook does not amount to a “law, rule, or
regulation” within the meaning of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1
at 10-11. However, to construe the appellant’s disclosures of purported handbook
violations as protected only if the handbook has the force of law—i.e., a statute or
substantive regulation, as the agency suggests—would render the term “rule,” as
provided under section 2302(b)(8)(A)(i), superfluous. See Department of
Homeland Security v. MacLean, 135 S. Ct. 913, 918-21 (2015) (finding that, by
using the phrase “law, rule, or regulation” to describe protected disclosures, while
using the word “law” to describe excepted disclosures, Congress intended to
exclude disclosures that violated rules or regulations from excepted disclosures).
Instead, the Board has defined a rule as “an established and authoritative standard
or principle; a general norm mandating or guiding conduct or action in a given
type of situation.” Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 16
(2002) (quoting Black’s Law Dictionary 1330 (7th ed. 1999)). For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency’s handbook amounts to a “rule” for purposes of 5 C.F.R. § 2302(b)(8). ID
at 12 n.5; IAF, Tab 23 at 116
¶18 The agency also argues that nothing in the appellant’s December 11, 2018
email evidenced a violation of its handbook. PFR File, Tab 1 at 9. We disagree.
11

The appellant’s email specifically stated that one of her management contracts
was missing required clauses, and she proposed to notify the agent. IAF, Tab 22
at 58-59. She also specifically cited a provision of the handbook that required
such language in the agreements. Id. The appellant’s first-line supervisor
disregarded her concerns and directed her not to send the email. Id. at 58. As the
administrative judge noted, the ROI acknowledged that management agreements
are required to reference required contract clauses upon renewal or when
appropriate, citing the exact same handbook provision as the appellant referenced
to her supervisor. IAF, Tab 8 at 63 & n.46. Properly and contextually
understood, the appellant was attempting to disclose to her supervisor that the
agreement did not have the required contract language and that the absence of that
language was contrary to the requirements of the handbook. ID at 12.
¶19 The agency further argues that the ROI determined that there were “no
compliance issues regarding expired management contracts in this instance,”
noting that, for this property, the management agreement allowed for automatic
renewal and had not yet expired, and thus, the agency did not violate the
handbook provisions by not requiring the owner to amend the management
agreement. PFR File, Tab 1 at 9; IAF, Tab 8 at 63. This is an oversimplification
of what the ROI said about this matter. Although the ROI determined that there
were no compliance issues regarding “expired management contracts,” the ROI
also addressed the appellant’s concern in Disclosure 5 that the existing
management agreement failed to include required termination rights provisions.
IAF, Tab 8 at 62 (“According to Claimant, MFHSW Branch Chief Managers
failed to adhere to this requirement by not addressing expired or missing
management certifications and by not requiring that management agreements
include required contract clauses related to fees and termination rights .”)
(emphasis added). Although the ROI suggests that the failure to include the
required language concerning termination rights did not result in “loss to HUD”
in this instance, the ROI does note that best practices would require the agency to
12

reference required contract clauses in management agreements “upon contract
renewal or when appropriate,” which would “strengthen Owner’s ability to
terminate the management agent agreement at will or at the direct of HUD.” Id.
at 63. Thus, the ROI supports the appellant’s concerns in Disclosure 5 that the
agency violated its rules or regulations by failing to include the termination
clauses.
¶20 In any event, even if the absence of the required termination clause was not
actually in violation of the agency handbook, Disclosure 5 would still be
protected. An individual making a disclosure is protected from retaliation for
whistleblowing based on her reasonable belief that her disclosure evidenced one
or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even
when her belief is mistaken. Mithen v. Department of Veterans Affairs,
122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). The
test for determining whether an individual’s belief is reasonable is 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 evidence the wrongdoing disclosed. Lachance v. White, 174 F.3d 1378,
1381 (Fed. Cir. 1999). We agree with the administrative judge that the appellant
reasonably believed that Disclosure 5 evidenced a violation of an agency rule or
regulation, and whether the ROI confirmed that belief is ultimately immaterial to
this finding. ID at 11.
¶21 Finally, the agency argues that, even if some management agreements
failed to comply with the requirements set forth in the agency handbook, the
owners and managers of the subject properties were the noncompliant parties, not
the agency, and the Board has held that disclosures of wrongdoing by private,
nongovernmental entities do not constitute protected disclosures for the purposes
of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 9-10. We disagree because the
substance of Disclosure 5 was that the agency was violating its own rules and
regulations by failing to ensure that entities it oversaw included required contract
13

terms in their management agreements—not that the management agents and
owners were themselves violating a law, rule, or regulation. IAF, Tab 20 at 2-3.
¶22 Further, given the oversight functions that the agency exercised over the
management agents and owners, the agency’s failure to enforce compliance with
the regulatory requirements that governed the relationship between the agency
and the management agents and owners could implicate the Government’s
interests and good name. See Arauz, 89 M.S.P.R. 529, ¶ 7 (finding that the
appellant’s disclosure regarding alleged wrongdoing by a private organization
was protected when the agency was in a position to influence or exercise
oversight over the organization’s performance of the challenged functions, such
that the Government’s “interests and good name” were implicated in the
wrongdoing). Accordingly, we conclude that even if Disclosure 5 evidenced only
wrongdoing by nongovernmental parties, the appellant’s disclosure was
nevertheless protected because it implicated the Government’s interests and good
name.

The agency did not prove its affirmative defense.
¶23 If the appellant proves that her protected disclosure or activity was a
contributing factor in a personnel action taken against her, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure or activity. 4
Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 6; see 5 U.S.C.
§ 1221(e)(1)-(2). In determining whether an agency has met this burden, 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

4
The agency does not contest the administrative judge findings on contributing factor,
and for the reasons explained in the initial decision, we agree with the administrative
judge that the appellant proved that part of her case. ID at 19-23.
14

actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999); Soto, 2022 MSPB 6, ¶ 11. The Board does not view these
factors as discrete elements, each of which the agency must prove by clear and
convincing evidence, but rather, the Board will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. Karnes v.
Department of Justice, 2023 MSPB 12, ¶ 24. Additionally, the Board will
consider all the evidence presented, including evidence that detracts from the
conclusion that the agency met its burden. Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012); Soto, 2022 MSPB 6, ¶ 11.
¶24 In her initial decision, the administrative judge found that the agency did
not demonstrate strong reasons for taking the personnel actions, the officials
involved had considerable retaliatory motive, and there was no evidence
concerning the agency’s treatment of similarly situated non-whistleblowers. ID
at 24-25. Considering the evidence as a whole, she found that the agency did not
prove by clear and convincing evidence that it would have reassigned and
terminated the appellant even absent her protected disclosures. Id. On review,
the agency argues that the administrative judge failed to consider evidence of two
other employees who also reported violations of the agency’s handbook to the
appellant’s first-line supervisor but who were not disciplined. PFR File, Tab 1
at 11. It argues that the first-line supervisor’s failure to take disciplinary action
against these employees despite their expressed disagreement demonstrates that it
was not the appellant’s whistleblowing activity that motivated the first-line
supervisor to take the contested personnel actions. Id.
¶25 The agency is correct that evidence regarding similarly situated
whistleblowers may be relevant to the second Carr factor. See Siler v.
Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018).
Nevertheless, we find no reason to disturb the administrative judge’s analysis of
the second Carr factor on this basis. In finding that the second Carr factor
15

weighed in the appellant’s favor with respect to both personnel actions, the
administrative judge observed that the appellant’s disclosures about the agency’s
abandonment of properties revealed “real and significant problems” about how
properties within the agency’s portfolio were being managed, as later validated by
the ROI. ID at 24-25. The administrative judge reasoned that the appellant’s
detailing of the agency’s failures would have reflected poorly on her first- and
third-level supervisors, both of whom were aware of the appellant’s disclosures
but did not take action to remedy the issues she identified, and thus they would
have been motivated to retaliate. ID at 24-25, 29; see Robinson v. Department of
Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019) (considering under the
second Carr factor whether there was a professional motive to retaliate); see also
Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65 (finding that
officials responsible for the agency’s performance overall may well be motivated
to retaliate even if they are not directly implicated by the disclosures, as the
criticism reflects on them in their capacities as managers and employees); Smith
v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29. By contrast, the parties
stipulated only that the two employes at issue “expressed their disagreement”
with the appellant’s first-line supervisor that the agency was consistently
following the handbook. IAF, Tab 23 at 8. There is no additional information in
the record concerning the nature of this “disagreement” or whether the two
employees’ expression of disagreement rose to the level of the appellant’s
whistleblowing activity. Accordingly, we conclude that the administrative judge
properly weighed the Carr factors in finding that the agency failed to meet its
burden. For the foregoing reasons, we deny the agency’s petition for review and
affirm the initial decision.
16

ORDER
¶26 We ORDER the agency to cancel the appellant’s termination and to restore
the appellant effective March 14, 2019. 5 See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶27 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶28 We further ORDER the agency 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).
¶29 No 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).

5
The administrative judge found, and the parties do not dispute, that there is no
corrective action available to correct the appellant’s reassignment. ID at 30.
Nevertheless, the circumstances of this personnel action may be relevant to assessing
damages.
17

¶30 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.

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 forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
18

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 6
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
6
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.
19

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

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.
20

(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 .
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:
21

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 appeals of
competent jurisdiction. 7 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).

7
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.
22

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.
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 .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations

DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10034044. Public record. Not legal advice.