The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN T. MANION, DOCKET NUMBER
Appellant, DC-1221-18-0668-W-1
v.
DEPARTMENT OF DEFENSE, DATE: July 3, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sean T. Manion , Bronx, New York, pro se.
Lauren Ruby , Esquire, and Paul N. Bley , Esquire, Falls Church, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his request for corrective action in an individual
right of action (IRA) appeal. For the reasons discussed below, we GRANT the
appellant’s petition for review. We VACATE the initial decision to the extent
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
that it found that the appellant did not exhaust his administrative remedies
regarding his January 6, 2016 disclosure and that the appellant did not make
nonfrivolous allegations that his January 6, 2016 and January 26, 2017
disclosures were protected. We find that the appellant exhausted his
administrative remedies regarding the January 6, 2016 disclosure and made
nonfrivolous allegations that both of his disclosures were protected under
5 U.S.C. § 2302(b)(8) and were a contributing factor in the agency’s decision to
remove him. Therefore, we REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
In June 2017, the agency removed the appellant from his position as a
Research Activities Analyst, GS-0601-14, with the Defense and Veterans Brain
Injury Center (DVBIC) in the Defense Health Agency (DHA). Initial Appeal File
(IAF), Tab 1 at 7-12. Also in June 2017, the appellant filed a complaint with the
Office of Special Counsel (OSC) alleging that the agency removed him in
retaliation for making protected disclosures and engaging in protected activity.
Id. at 4, 17. On May 18, 2018, OSC informed the appellant that it was closing its
file regarding his allegations and notified him of his right to seek corrective
action from the Board. Id. at 16-17.
On July 16, 2018, the appellant timely filed a Board appeal and requested a
hearing. Id. at 1-2. The administrative judge notified the appellant of his burden
of proof and the elements to establish the Board’s jurisdiction over an IRA
appeal, and ordered him to file a statement establishing jurisdiction. IAF, Tab 4.
The appellant filed a response in which he alleged that, on January 26, 2017, he
disclosed violations of the Health Insurance Portability and Accountability Act
(HIPAA) regulations and agency research standards by forwarding an audit report
to agency officials, which led to an administrative investigation and his removal
for allegedly impeding the investigation. IAF, Tab 8 at 7. He also alleged that,
3
between January and December 2016, he made disclosures relating to
mismanagement of the DVBIC research program, agency research and scientific
integrity rules compliance, Federal Acquisition Regulation (FAR)
non-compliance, whistleblower retaliation, and “personal reprisals” that were
contributing factors in his removal, and that he filed a grievance. Id. at 8-10.
Additionally, he alleged that, in April and May 2017, he made disclosures
concerning non-compliance with agency acquisition guidelines, the removal of a
Human Research Protections specialist, reform in agency research programs, his
performance rating period, and violations of agency and Office of Management
and Budget policy and the FAR regarding contactors; and that each disclosure
was a contributing factor in his removal. Id. at 10-11. He also contended that the
agency engaged in other acts of reprisal, including the degradation of his duties,
three details to non-classified duties, removal from one detail, unsubstantiated or
inappropriate counseling, unfounded accusations of being absent without leave
and a threat in the workplace, ignoring grievances, retaliation for filing
grievances, failing to provide relief for a grievance, and failing to provide him
with a 90-day performance rating period. Id. at 11. The agency moved to dismiss
the appeal for lack of jurisdiction. IAF, Tab 9.
The administrative judge directed the appellant to file a response regarding
jurisdiction that provided a more complete and detailed explanation of his claims.
IAF, Tab 14. The appellant filed a response that narrowed his alleged disclosures
down to two: (1) on January 6, 2016, he informed agency leadership that moving
the DVBIC under the DHA could violate the National Defense Authorization Act
(NDAA) of 2006; and (2) on January 26, 2017, he disclosed violations of HIPAA
and Standards for Privacy of Individually Identifiable Health Information
regulations by forwarding an audit report to his leadership and other individuals
he deemed relevant. IAF, Tab 16 at 4-9, Tab 20 at 4-9. The appellant alleged
that these disclosures were a contributing factor in his removal. IAF, Tab 20 at 6,
8. He further declared, under the penalty of perjury, that he did not have a copy
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of the information he entered into OSC’s online system and that his complaint
contained the disclosures he described. Id. at 10.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 22, Initial Decision (ID). He found that, with
respect to the first disclosure, the appellant failed to exhaust his administrative
remedies before OSC because his sworn statement was insufficient to establish
that he raised the disclosure before OSC. ID at 8. He further found that, even if
the appellant had satisfied his burden to show exhaustion, the appellant had not
made a nonfrivolous allegation that the disclosure was protected because he did
not contend in his disclosure to agency officials that the DVBIC’s move to DHA
violated a law, rule, or regulation. ID at 8-9. With respect to the second
disclosure, the administrative judge found that the appellant had exhausted his
administrative remedies before OSC, but that he had not made a nonfrivolous
allegation that his disclosure was protected because the audit at issue did not
reflect that HIPAA or other regulatory violations occurred, nor did the appellant’s
email communications forwarding the audit reflect that he was disclosing HIPAA
or regulatory violations. ID at 14-18. Accordingly, the administrative judge
dismissed the appeal. ID at 18.
The appellant timely filed a petition for review challenging each of the
initial decision’s grounds for dismissal of his appeal. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition, to which the
appellant has filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal brought pursuant to the
Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant
must exhaust his administrative remedies before OSC and make
nonfrivolous allegations that: (1) he made a protected disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in
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5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or
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). 2 5 U.S.C. §§ 1214(a)(3),
1221(e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
Jurisdiction in an IRA appeal is determined based on the written record. See
Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016)
(holding that an employee is not entitled to a jurisdictional hearing in an IRA
appeal). As set forth below, we find that the appellant exhausted his
administrative remedies regarding his January 6, 2016 correspondence with
agency officials, and made a nonfrivolous allegation that his January 6, 2016 and
January 26, 2017 correspondence with agency officials constituted protected
disclosures.
The appellant exhausted administrative remedies before OSC regarding his
January 6, 2016 statements to agency officials.
On review, the appellant argues that the administrative judge erred in
finding that he did not exhaust administrative remedies regarding his
January 6, 2016 email correspondence with agency officials. ID at 8; PFR File,
Tab 1 at 4. The overarching purpose of the requirement that an appellant exhaust
administrative remedies before OSC prior to bringing an IRA appeal before the
Board is to provide OSC with a sufficient basis to pursue an investigation that
may lead to corrective action. Johns v. Department of Veterans Affairs,
95 M.S.P.R. 106, ¶ 15 (2003). Proof of exhaustion need not be in the form of the
appellant’s complaint to OSC. Id. Here, the appellant submitted a sworn
statement attesting that he did not have a copy of the OSC complaint that he
submitted online and that the complaint contained both of the disclosures he
2
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (2018 NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the 2018 NDAA amended various provisions of
title 5 of the U.S. Code. Our decision to affirm this appeal would be the same under
both pre- and post-2018 NDAA law.
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raised before the Board. IAF, Tab 20 at 6, 10. The administrative judge found
that the sworn statement alone was insufficient to show exhaustion regarding the
appellant’s January 6, 2016 statements. ID at 8. The appellant correctly observes
that the order the administrative judge issued setting forth the appellant’s burden
of proof and the elements to establish jurisdiction indicated that, if the appellant
did not submit a copy of his OSC complaint, his response must be in the form of
an affidavit, sworn statement, or declaration under the penalty of perjury. IAF,
Tab 4 at 7-8; PFR File, Tab 1 at 4-5.
Additionally, on review, the appellant re-submits supplemental
correspondence with OSC regarding his January 6, 2016 statements that he
submitted below, but that the administrative judge did not consider in rendering
his findings regarding exhaustion. 3 IAF, Tab 8 at 33; PFR File, Tab 1 at 4-6.
This correspondence demonstrates that the appellant provided information about
his statements to agency officials regarding violations of the 2006 NDAA in
moving DVBIC to DHA. IAF, Tab 8 at 33-59; PFR File, Tab 1 at 6. The
appellant’s sworn statement, coupled with his supplemental correspondence with
OSC, is sufficient to prove that he exhausted his administrative remedies
regarding his January 6, 2016 statements to agency officials. See Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011) (providing that
an appellant may demonstrate exhaustion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s preliminary determination letter and other letters from OSC referencing
any amended allegations, and the appellant’s written responses to OSC
referencing the amended allegations).
3
As discussed above, following the appellant’s initial submissions regarding
jurisdiction, the administrative judge directed the appellant to file a response regarding
jurisdiction that provided a more complete and detailed explanation of his claims. IAF,
Tab 14. The administrative judge also informed the appellant that he would not
consider the appellant’s initial submissions in determining jurisdiction. Id. at 2. The
appellant submitted the relevant documents with his initial jurisdictional submissions
but did not re-submit them with his second jurisdictional submission. IAF, Tab 8
at 33-59, Tab 20.
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The appellant made a nonfrivolous allegation that his January 6, 2016 statements
evidenced a violation of law.
The appellant also challenges the administrative judge’s finding that, even
if the appellant had exhausted administrative remedies with respect to his
January 6, 2016 statements, he did not make a nonfrivolous allegation that the
statements constituted a protected disclosure. ID at 9-11; PFR File, Tab 1 at 4.
The administrative judge found that the appellant’s statements did not constitute a
protected disclosure because they were vague and conclusory, and articulated a
policy concern rather than a violation of law. ID at 9-11. Protected
whistleblowing occurs when an appellant makes a disclosure that he reasonably
believes evidences any 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 and safety. 5 U.S.C. § 2302(b)(8);
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013).
The proper test for determining whether an employee had a reasonable belief that
his disclosures were protected 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 evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
Mudd, 120 M.S.P.R. 365, ¶ 5. To establish that he held such a reasonable belief,
an appellant need not prove that the condition disclosed actually established one
or more of the listed categories of wrongdoing. Huffman v. Office of Personnel
Management, 92 M.S.P.R. 429, ¶ 9 (2002). At the jurisdictional stage, the
appellant need only nonfrivolously allege that he reasonably believed that his
disclosure evidenced a violation of one of the circumstances described in
5 U.S.C. § 2302(b)(8). Mason, 116 M.S.P.R. 135, ¶ 17. Any doubt or ambiguity
as to whether an appellant raised a nonfrivolous allegation of a reasonable
belief should be resolved in favor of a finding that jurisdiction exists.
Mudd, 120 M.S.P.R. 365, ¶ 8.
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We find the appellant’s allegations to be sufficiently specific to constitute a
nonfrivolous allegation that he made a protected disclosure of a violation of law.
The appellant’s January 6, 2016 email included prior correspondence with other
agency officials in which he articulated a concern that the DVBIC’s transfer to
DHA was not legal because it was not consistent with a Congressional mandate in
the 2006 NDAA. IAF, Tab 20 at 13-21. In response to this correspondence, other
agency officials responded that legal review of the transfer had been conducted;
in response, the appellant maintained that this particular issue could have been
missed because the review was based on research that did not take into account
the 2006 NDAA. Id. at 14-16. An agency official suggested that the appellant
reach out to one individual in particular to obtain her opinion of any express
legislative prohibitions; the appellant’s January 6, 2016 email was directed to this
individual and attached a memorandum stating that the appellant was “concerned
about the legality and/or appropriateness of DVBIC’s move to DHA” and detailed
the legislation at issue and its relevance to the DVBIC. Id. at 11-16. Our review
of the appellant’s correspondence with agency officials regarding the legality of
the transfer over the course of 3 years, culminating in the January 6, 2016 email,
reflects that the appellant articulated more than a mere policy concern to agency
officials. Accordingly, we find that the appellant nonfrivolously alleged that he
held a reasonable belief that the DVBIC transfer violated the 2006 NDAA; thus,
he has made a nonfrivolous allegation that his statements to agency officials
constituted a protected disclosure.
The administrative judge did not address whether the appellant made a
nonfrivolous allegation that his January 6, 2016 statements were a contributing
factor in the agency’s decision to remove him. At the jurisdictional stage of an
IRA appeal, the appellant need only raise a nonfrivolous allegation that his
protected disclosure was one factor that tended to affect the personnel action in
any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to establish this criterion is
the knowledge/timing test, under which an employee may nonfrivolously allege
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that the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.; see 5 U.S.C. § 1221(e)(1).
The Board has found that a personnel action taken within 1 to 2 years of
a protected disclosure meets the knowledge/timing test. Dorney v. Department
of the Army, 117 M.S.P.R. 480, ¶ 16 (2012). Here, the appellant sent his
January 6, 2016 email to several agency officials, including the official who
issued the May 4, 2017 proposal to remove him and the official who issued the
June 12, 2017 decision to remove him from Federal service. IAF, Tab 1 at 8-12,
Tab 2 at 2-4, Tab 20 at 5, 13. The appellant’s removal took place within 2 years
of his disclosure. Accordingly, the appellant has made a nonfrivolous allegation
that his January 6, 2016 statements were a contributing factor in his removal.
The appellant made a nonfrivolous allegation that his January 26, 2017
correspondence with agency officials constituted a protected disclosure.
On review, the appellant renews his argument that, given the expertise of
the individuals to whom he sent the audit report, they would have understood him
to be disclosing HIPAA violations in his correspondence forwarding the report.
PFR File, Tab 1 at 4. Below, the appellant alleged that, when he sent the
January 24, 2017 audit report to agency officials, he was disclosing numerous
violations of HIPAA and the Standards for Privacy of Individually Identifiable
Health Information regulations as detailed in the report. IAF, Tab 20 at 7. The
administrative judge found that the appellant had exhausted his administrative
remedies before OSC regarding this disclosure but did not make a nonfrivolous
allegation that the disclosure was protected because, based on the findings in the
report, the appellant could not have had a reasonable belief that the audit
contained such violations, or that his email correspondence with agency officials
reflected such a belief. ID at 14-18. However, the administrative judge focused
10
only on the audit report’s statement that the investigation did not find evidence to
support the primary claim that certain clinical procedures were conducted for
research without patient consent. In fact, the audit revealed other improprieties.
IAF, Tab 20 at 33-40; ID at 16. The administrative judge also incorrectly
concluded that the appellant’s allegations were vague and conclusory. ID
at 16-17. To the contrary, the audit report specifically describes the instance of
regulatory noncompliance in relation to one particular database studying
traumatic brain injury and details a Government contractor’s unauthorized
analysis of clinical data. IAF, Tab 20 at 33, 37-39. At a minimum, the appellant
is alleging that each unauthorized use of patient data constitutes a separate
violation of HIPAA and a personal health information data breach. Id. at 7-8;
PFR File, Tab 1 at 4. We find that, in its entirety, the audit report raises
numerous concerns regarding the management of patient data and that the
appellant could have reasonably concluded that it documented HIPAA and related
regulatory violations.
The administrative judge also found that, in disseminating the audit report
to agency officials, the appellant’s communications did not reflect that he
considered the report to document HIPAA or regulatory violations. ID at 17-18.
In doing so, he relied upon the agency’s submissions of the appellant’s
communication of the report to agency officials. Id.; IAF, Tab 21. In
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction, the administrative judge may consider the agency’s documentary
submissions; however, to the extent that the agency’s evidence constitutes mere
factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Weed v. Social Security Administration, 113 M.S.P.R. 221, ¶ 19
(2010). Below, the appellant submitted two communications to an agency
official, sent shortly after his disclosure of the audit report, in which he
11
referenced the violations in the audit report, corroborating his assertion that, in
communicating the audit, he considered it to contain regulatory violations. IAF,
Tab 8 at 26-32. To the extent that the administrative judge weighed the agency’s
evidentiary submissions against those of the appellant and found the agency’s
evidence dispositive, this was error. At the jurisdictional stage, we find that the
appellant’s factual allegations were sufficient to make a nonfrivolous allegation
that he made a protected disclosure of HIPAA and regulatory violations.
Additionally, we find that the appellant nonfrivolously alleged that his
January 26, 2017 disclosure of the audit report was a contributing factor in his
removal. The proposing and deciding officials for the appellant’s removal were
aware that he had communicated the audit report to agency officials, as the
May 4, 2017 proposal to remove the appellant charged him with impeding an
investigation as to how he had obtained the audit. IAF, Tab 2 at 2-4. The
appellant’s June 12, 2017 removal occurred within 6 months of his disclosure of
the audit report. IAF, Tab 1 at 7-12, Tab 20 at 7.
This matter is remanded for a hearing on the merits of the appellant’s IRA appeal.
As set forth above, the appellant has proven that he exhausted his
administrative remedies before OSC and made nonfrivolous allegations that two
protected disclosures were a contributing factor in his removal. Accordingly,
having established Board jurisdiction over his appeal, the appellant is entitled to a
hearing on the merits of his claims. See Graves, 123 M.S.P.R. 434, ¶ 22. This
matter is remanded for a hearing on the merits, in which the administrative judge
shall afford the appellant the opportunity to prove by preponderant evidence that
he made disclosures protected under 5 U.S.C. § 2302(b)(8) and that the protected
disclosures were a contributing factor in the agency’s decision to remove him.
5 U.S.C. § 1221(e)(1); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6
(2015). If the appellant makes out a prima facie case of reprisal for
whistleblowing, then the agency shall have the opportunity to prove, by clear and
12
convincing evidence, that it would have removed the appellant in the absence of
the protected disclosures. 5 U.S.C. § 1221(e)(2); Webb, 122 M.S.P.R. 248, ¶ 6.
ORDER
For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.