Opinion

Darin A Jones v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Oct 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 31.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DARIN ANDREW JONES, DOCKET NUMBER

Appellant, DC-1221-20-0630-W-1

DEPARTMENT OF THE NAVY, DATE: October 25, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Darin Andrew Jones , Potomac, Maryland, pro se.

Nikki Greenberg , Washington Naval Yard, District of Columbia,

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 appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 petitioner has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the

petition for review. Except as expressly MODIFIED to address alternative

findings relating to contributing factor and exhaustion of remedies, and to

supplement the analysis of the knowledge/timing test, we AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant filed this IRA appeal alleging that, in reprisal for his

whistleblowing and protected activity, the agency rescinded a tentative job offer

for the position of Supervisory Contract Specialist on January 13, 2020. Initial

Appeal File (IAF), Tab 1 at 3, 5. The appellant’s alleged disclosures included

assertions to the agency on January 10, 2020, that its Human Resources (HR)

department had violated proper HR procedures when it failed to timely

communicate with him regarding onboarding for new employees after the

tentative job offer, his submission to the agency on November 27, 2019, in

response to its request, of a Standard Form (SF) 50 showing his termination

during his probationary period from the Federal Bureau of Investigation (FBI),

and his claim, while employed at the FBI in 2012, that the FBI had violated

procurement laws. Id. at 5, 10, 20-23, 26, 31; IAF, Tab 5 at 5. The appellant also

asserted that he had engaged in protected activity relating to his 2012 termination

from the FBI, including the filing of a Board appeal of that action. IAF, Tab 1

at 5, 26, 31.

¶3 After issuing a jurisdictional order and receiving responses from the parties,

e.g., IAF, Tabs 3, 5, 9-10, 12, 20-23, the administrative judge dismissed the

appeal for lack of jurisdiction without holding the appellant’s requested hearing.

IAF, Tab 24, Initial Decision (ID) at 1, 12-13.

¶4 The appellant has filed a petition for review of the initial decision, the

agency has filed a response, and the appellant has filed a reply. Petition for

Review (PFR) File, Tabs 1, 3, 5. The appellant asserts that the administrative

judge improperly weighed evidence, erred in finding that he failed to make a

nonfrivolous allegation of a protected disclosure, failed to consider his “discovery

evidence,” failed to adjudicate a novel claim that he raised, and exhibited

favoritism toward the agency. PFR File, Tab 1 at 4-12, Tab 5 at 4-18.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant failed to make a nonfrivolous allegation of a protected disclosure

regarding his January 10, 2020 email to HR.

¶5 The administrative judge concluded that the appellant failed to make a

nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8)

regarding his January 10, 2020 email to HR. ID at 9. The administrative judge

also concluded that the appellant failed to nonfrivolously allege that this email

contributed to the agency’s rescission of his tentative job offer. ID at 8. We

agree with the former finding, but vacate the latter finding.

¶6 A protected disclosure is one that an appellant reasonably believes

evidences 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. Mudd v. Department of Veterans Affairs, 120 M.S.P.R.

365, ¶ 5 n.3 (2013). The proper test for determining whether an appellant 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 appellant could reasonably conclude that the actions evidenced any of the

conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5.

¶7 Although the appellant characterized his email as having disclosed that the

agency was violating “acceptable and proper HR procedure,” the email merely

conveyed the appellant’s belief that he was not being treated fairly by the agency

and that the agency had no reason to withdraw his tentative job offer. 2 IAF,

Tab 5 at 6, 17. Indeed, instead of disclosing HR improprieties, the email stated as

follows: “How is [the agency’s lack of communication] acceptable and proper

HR procedure?” Id. at 17. Thus, we find that the email amounted to a vague

query as to whether the agency had treated the appellant fairly or complied with

unidentified HR best practices, and therefore did not constitute a protected

disclosure under 5 U.S.C. § 2302(b)(8). See Rzucidlo v. Department of the Army,

101 M.S.P.R. 616, ¶ 13 (2006) (explaining that disclosures must be specific and

detailed, not vague allegations of wrongdoing regarding broad or imprecise

matters); see also Gryder v. Department of Transportation , 100 M.S.P.R. 564,

¶ 13 (2005) (finding that the appellant’s statement of his personal disagreement

with the agency’s decision not to rehire him did not amount to a protected

disclosure).

In Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020),

the court explained that the Board’s jurisdictional determination in an IRA appeal “must

be determined based on whether the employee alleged sufficient factual matter,

accepted as true, to state a claim that is plausible on its face.” However, we need not

consider allegations “in a vacuum.” Id. at 1369 n.5. Here, therefore, we look beyond

the appellant’s characterization of his email to consider the document itself. IAF, Tab 5

at 17. In any event, we find that even the appellant’s characterization of his email fell

short of a nonfrivolous allegation of a protected disclosure. See Salerno v. Department

of the Interior, 123 M.S.P.R. 230, ¶¶ 7-9 (2016) (finding that the appellant failed to

make a nonfrivolous allegation that he reasonably believed he had disclosed a violation

of law when he made vague allegations of wrongdoing and referenced broad statutory

provisions).

¶8 The administrative judge also concluded that the appellant failed to

nonfrivolously allege that his January 10, 2020 email had contributed to the

rescission of his job offer, crediting the agency’s argument that it had initiated

the withdrawal of the offer before the appellant sent the above email and relying

on supporting documentary evidence provided by the agency, i.e., email

correspondence dated December 23, 2019, and January 9, 2020. ID at 8. The

Board may not, however, deny an appellant the right to a hearing by “crediting

the agency’s interpretation of the evidence as to . . . whether the disclosures were

a contributing factor to an adverse action.” Hessami v. Merit Systems Protection

Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020). Because the administrative judge

incorrectly relied on evidence submitted by the agency and credited its

interpretations of that evidence, we modify the initial decision accordingly.

The appellant’s submission of his SF-50 did not constitute a protected disclosure.

¶9 The administrative judge found that the appellant’s submission of the SF -50

documenting his termination did not constitute a protected disclosure, but also

concluded that the appellant failed to exhaust this disclosure with the Office of

Special Counsel (OSC). ID at 12. Again, although we agree with the former

finding, we disagree with the latter and modify the initial decision accordingly.

¶10 We discern no basis to disturb the administrative judge’s conclusion that the

appellant’s submission of the SF-50 did not constitute a nonfrivolous allegation

of a disclosure pertaining to 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. ID at 12; see 5 U.S.C. § 2302(b)

(8); see also Mudd, 120 M.S.P.R. 365, ¶ 5 n.3. Indeed, the appellant’s apparent

belief that the agency improperly required hm to submit the subject form does not

transform his submission of the document into a protected disclosure. See Doster

v. Department of the Army, 56 M.S.P.R. 251, 253-54 (1993) (concluding that the

Board lacked jurisdiction over the appeal when the appellant’s filings contained a

litany of allegations of agency improprieties but failed to discernably allege any

disclosures regarding the same).

¶11 Although the administrative judge also concluded that the appellant failed

to show that he raised this purported disclosure with OSC, we disagree. IAF,

Tab 1 at 22-23; see, e.g., Mudd, 120 M.S.P.R. 365, ¶ 12 (holding that an appellant

can demonstrate exhaustion by providing the OSC complaint). Accordingly, we

modify this aspect of the administrative judge’s alternative finding regarding

exhaustion.

The appellant failed to satisfy the contributing factor jurisdictional criterion

regarding his remaining alleged protected disclosures and activities.

¶12 The administrative judge concluded that the appellant failed to make a

nonfrivolous allegation that any of his remaining alleged protected disclosures or

activities, i.e., his 2011-2012 procurement-related FBI disclosures or his

post-termination litigation, contributed to the agency’s rescission of the tentative

job offer. 3 ID at 9-12. Although we agree with this determination, we modify

and supplement the administrative judge’s analysis of the knowledge/timing test.

¶13 An appellant’s protected disclosures or activities are a contributing factor in

a personnel action if, among other things, they in any way affect an agency’s

decision to take or fail to take a personnel action. Dorney v. Department of the

Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is

the knowledge/timing test. Wadhwa v. Department of Veterans Affairs,

The administrative judge did not analyze whether any of these claims amounted to a

nonfrivolous allegation of a protected disclosure or protected activity. Because we

agree that the appellant failed to satisfy the contributing factor criterion, the absence of

such an analysis is not a material error. Nevertheless, under 5 U.S.C. § 2302(b)(9)(C),

disclosures of information to an agency’s Inspector General are protected regardless of

content as long as such disclosures are made in accordance with applicable provisions

of law. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. Thus, the appellant’s

assertion that he disclosed information to the Department of Justice Inspector General

constituted a nonfrivolous allegation of protected activity under 5 U.S.C.

§ 2302(b)(9)(C). To the extent his prior litigation sought to remedy whistleblower

reprisal, it too would constitute protected activity. See Bishop v. Department of

Agriculture, 2022 MSPB 28, ¶ 15 (explaining that complaints seeking to remedy

whistleblower reprisal are covered under 5 U.S.C. § 2302(b)(9)(A)(i)).

110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under this

test, an appellant can prove the contributing factor element through evidence

showing that the official taking the action knew of the protected activity and the

action occurred within a period of time such that a reasonable person could

conclude that the activity was a contributing factor in the personnel action. Id.

¶14 The administrative judge found that the appellant failed to satisfy the

knowledge component because he failed to allege that the official who rescinded

the job offer had any knowledge of his FBI-related disclosures or activities. ID

at 10. She reasoned that the appellant’s assertions regarding how the official may

have learned of the same, e.g., through an internet search, publicly available court

filings, or the Congressional Record, were “purely speculative.” Id. She also

relied on deposition testimony from the official indicating that she had not

researched the appellant on the internet and was unaware of his alleged FBI

whistleblowing. ID at 10 & n.7. The administrative judge further considered the

agency’s stated reason for rescinding the tentative job offer, i.e., that it had

learned that he had been terminated from his last Federal position, and found that

reason to be “certainly justifiable.” ID at 11.

¶15 As explained above, in resolving questions of jurisdiction, the Board may

not deny an appellant the right to a hearing by crediting the agency’s

interpretation of the evidence, nor may it weigh evidence to resolve the parties’

conflicting assertions. See Hessami, 979 F.3d at 1369; Ferdon v. U.S. Postal

Service, 60 M.S.P.R. 325, 329 (1994). Thus, the administrative judge incorrectly

relied on the deposition transcript and the agency’s explanation for withdrawing

the appellant’s tentative job offer. 4 ID at 11. Accordingly, we modify the initial

decision’s analysis of the knowledge component of the knowledge/timing test, but

we find, as set forth below, that a different outcome is not warranted.

To the extent that the administrative judge also relied on the deposition testimony of

other agency employees, ID at 10-11 & n.8, her reliance was similarly misplaced.

¶16 Absent consideration of the agency’s evidence and argument, the appellant

nonetheless failed to make a nonfrivolous allegation that the acting official had

any knowledge of his FBI-related disclosures or activities. The appellant’s

assertions as to how this official may have learned of these disclosures or

activities are entirely speculative and, therefore, insufficient. As set forth in the

initial decision, the disclosures and activities occurred as much as 8 years before

the rescission of the job offer and concerned the appellant’s tenure at a

completely different agency. ID at 11; see Jones v. Department of the Treasury,

99 M.S.P.R. 479, ¶¶ 7-8 (2005) (finding insufficient the appellant’s speculation

that an agency official may have learned of a protected disclosure that she made

11 years prior while working at a separate agency facility). Thus, although we

modify the legal basis for the conclusion, we agree with the administrative judge

that the appellant failed to make nonfrivolous allegations sufficient to satisfy the

contributing factor criterion regarding the rescinding official’s knowledge of the

appellant’s FBI-related protected disclosures or activities.

¶17 An appellant may also satisfy the knowledge/timing test by proving that the

official taking the action had constructive knowledge of the protected disclosure,

even if the official lacked actual knowledge. Nasuti v. Department of State,

120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish constructive

knowledge by showing that an individual with actual knowledge of the disclosure

influenced the official accused of taking the retaliatory action. Id.

¶18 Here, the appellant asserted that an agency attorney had “looked [him] up”

and discovered “protected activity regarding [his] 2012 termination (wrongful)

from the FBI” as well as “information and articles” about him. IAF, Tab 20

at 18; see PFR File, Tab 5 at 7-8, 11, 15. Because the administrative judge did

not consider these allegations, we supplement the analysis to consider this claim,

finding that a different outcome is not warranted. The appellant’s assertions that

the attorney must have researched him and thereafter influenced the rescinding

official again are entirely speculative. See Jones, 99 M.S.P.R. 479, ¶ 8.

Although the appellant argued otherwise, there is nothing inherently suspect or

improper about the agency having asserted attorney-client privilege during

discovery. See Grimes v. Department of the Navy, 99 M.S.P.R. 7, ¶ 6 (2005); see

also 5 C.F.R. § 1201.72(b) (stating that discovery covers relevant, nonprivileged

matters). Thus, we find that the appellant has failed to nonfrivolously allege that

any of his remaining alleged protected disclosures or activities contributed to the

rescission of his tentative job offer. 5

¶19 Finally, the appellant’s other arguments on review do not warrant a

different outcome. The appellant has not identified which factual disputes the

administrative judge allegedly improperly weighed or resolved, see Tines v.

Department of the Air Force, 56 M.S.P.R. 90, 92 (1992), and we have found that

the administrative judge’s improper consideration of certain agency evidence and

argument did not affect the outcome in this case. Other vague and general

disagreements with the initial decision, PFR File, Tab 1 at 7, Tab 5 at 14-15, do

not provide a basis to disturb the conclusion that the appellant did not make a

nonfrivolous allegation of protected disclosures or activity that was a contributing

factor in a personnel action. Any failure by the administrative judge to discuss

all of the evidence of record does not mean that it was not considered in reaching

the decision. See Marques v. Department of Health and Human Services ,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Even assuming that the appellant exhausted before OSC his claim that the agency

perceived him as a whistleblower, given the absence of a nonfrivolous allegation

The Board has found that, if an appellant fails to prove contributing factor through the

knowledge/timing test, it shall consider other evidence, such as the strength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed at the individuals taking the personnel action,

and whether those individuals had a desire or motive to retaliate against the appellant.

Dorney, 117 M.S.P.R. 480, ¶ 15. Here, the administrative judge implicitly considered

such evidence but found that it did not satisfy the jurisdictional criterion. ID at 11-12.

We have considered this evidence, as well as the appellant’s allegations regarding the

agency’s attorney, but agree with the administrative judge that the appellant failed to

nonfrivolously allege the contributing factor criterion based on this other evidence.

of actual or constructive knowledge of his disclosures or activity on the part of

the acting official, the appellant failed to make a nonfrivolous allegation that the

agency perceived him as a whistleblower. Because the appellant did not file a

motion seeking the certification of an interlocutory appeal before the

administrative judge, see 5 C.F.R. § 1201.93(a), he is precluded from doing so on

review, see Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).

Although the appellant claims that the administrative judge exhibited favoritism

toward the agency, he has not shown that the administrative judge’s comments or

actions evidence a deep-seated favoritism or antagonism that would make fair

judgment impossible. See Bieber v. Department of the Army, 287 F.3d 1358,

1362-63 (Fed. Cir. 2002).

¶20 Accordingly, we affirm the initial decision as modified, still dismissing the

appellant’s IRA appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. 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

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.

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.

(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:

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).

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.

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