The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PETER J. MAY, DOCKET NUMBER
Appellant, NY-1221-23-0171-W-1
v.
DEPARTMENT OF JUSTICE, DATE: February 19, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Peter J. May , Rockville Centre, New York, pro se.
Megan H. Eyes , Esquire, Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
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. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the administrative judge’s findings that the appellant (1) did not
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
exhaust administrative remedies for his whistleblower reprisal claims pertaining
to allegedly illegal border searches, and (2) did not nonfrivolously allege that he
made a protected disclosure, FIND that the appellant established jurisdiction over
his appeal, and REMAND the case to the Northeastern Regional Office for further
adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant is a former Special Agent with the Drug Enforcement
Administration (DEA) who retired in 2014. Initial Appeal File (IAF), Tab 5
at 13, Tab 11 at 6. After filing a whistleblower reprisal complaint with the Office
of Special Counsel (OSC) and receiving OSC’s July 11, 2023 close-out letter, the
appellant timely filed this appeal. 2 IAF, Tab 1, Tab 5 at 6-7. After receiving the
parties’ jurisdiction-related pleadings, the administrative judge dismissed the
appeal for lack of jurisdiction, finding that, notwithstanding OSC’s description of
the appellant’s whistleblower reprisal claims in its right -to-file letter, the
appellant did not exhaust administrative remedies for those claims. IAF, Tab 13,
Initial Decision (ID) at 8-9. She nevertheless also found that the appellant did
not nonfrivolously allege that he made a protected disclosure or engaged in
protected activity. ID at 8-12.
The appellant filed a petition for review arguing, among other things, that
the administrative judge erred in finding that he did not nonfrivolously allege
whistleblower reprisal. Petition for Review (PFR) File, Tabs 1-2. His petition
focuses on his claims that, as a result of his April 22, 2013 disclosure to his
Associate Special Agent-in-Charge (ASAC) that “border checkpoint” searches of
passengers transiting John F. Kennedy International Airport (JFKIA) by the
2
The U.S. Court of Appeals for the Federal Circuit affirmed the Board’s jurisdictional
dismissal of a 2016 appeal in which the appellant asserted the same or similar
whistleblower reprisal claims at issue here, finding, in relevant part, that the appellant
had not exhausted administrative remedies with OSC before filing that appeal. May v.
Merit Systems Protection Board, No. 2023-1709, 2024 WL 4128838 (Fed. Cir. Sept. 10,
2024). The Federal Circuit decision has no direct bearing on the issues in this case.
3
Department of Homeland Security (DHS) with DEA assistance violated the
Fourth Amendment to the U.S. Constitution, and his refusal to order his agents to
participate in one such search on April 11, 2013, he was terminated from his
position as Acting Group Supervisor (AGS), not selected for promotion,
involuntarily transferred, and issued a letter of counseling. PFR File, Tab 2
at 2-4. He further argues that he exhausted his administrative remedies regarding
this claim. Id. at 4-5. The agency filed a response. PFR File, Tab 4.
The appellant exhausted administrative remedies for his whistleblower reprisal
claims pertaining to border searches.
An appellant in an IRA appeal must exhaust administrative remedies by
seeking corrective action from OSC before seeking corrective action from the
Board. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The
substantive requirements of exhaustion are met when an appellant has provided
OSC with sufficient basis to pursue an investigation. Id. The Board’s
jurisdiction over an IRA appeal is limited to those issues that have been
previously raised with OSC. Id. The appellant must prove exhaustion with OSC
by preponderant evidence, not just present nonfrivolous allegations of exhaustion.
Id., ¶ 11.
Though observing that it “appear[ed] that the appellant exhausted his
remedies before [] OSC” for claims described in OSC’s right -to-file letter, which
included his claim of termination as AGS for refusing to send agents to conduct
an April 11, 2013 border search at JFKIA with DHS, the administrative judge
nevertheless found that the appellant did not exhaust administrative remedies for
this claim because he “failed to provide essential details to support [] OSC’s
characterization of his claim.” ID at 8-9. We disagree, find that the
administrative judge improperly deviated from the Chambers standard, and find
that the appellant proved exhaustion of his whistleblower reprisal claims related
to the border searches by preponderant evidence.
4
An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations. Skarada v. Department of Veterans Affairs, 2022 MSPB
17, ¶ 7. An appellant may also establish exhaustion through other sufficiently
reliable evidence, such as an affidavit or declaration attesting that the appellant
raised with OSC the substance of the facts in the Board appeal. Id. Although the
appellant did not file a copy of his OSC complaint, as discussed, OSC’s
right-to-file letter shows that the appellant raised with OSC at least a general
claim of termination as AGS for refusing to send agents to an April 11, 2013
border search at JFKIA. IAF, Tab 5 at 6.
But there is more. In a sworn declaration he provided in response to the
administrative judge’s order on jurisdiction, the appellant listed documents he
claimed to have provided to OSC. IAF, Tab 11 at 3, 8-9. The appellant’s
whistleblower reprisal claims related to the border searches are detailed at length
in those documents. IAF, Tab 5 at 14-16, 20-25, 32, 34, 39 -40. Even if OSC’s
right-to-file letter did not describe this allegation in its entirety, nothing in the
record refutes the appellant’s sworn assertions about matters he raised with OSC.
We thus find that the appellant proved by preponderant evidence that he provided
OSC with sufficient basis to pursue an investigation, thereby exhausting
administrative remedies regarding these claims.
The appellant nonfrivolously alleged that he made a protected disclosure that was
a contributing factor in personnel actions.
If an appellant has exhausted his administrative remedies before OSC, he
can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging
that: (1) he 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
5
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. Any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Bradley v.
Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6 (2016). A nonfrivolous
allegation of a protected whistleblowing disclosure is an allegation of fact that, if
proven, would show that the appellant disclosed a matter that a reasonable person
in his position would believe evidenced one of the categories of wrongdoing
specified in 5 U.S.C. § 2302(b)(8). Skarada, 2022 MSPB 17, ¶ 12.
Although the appellant only vaguely asserted his whistleblower reprisal
claims related to border searches in the text of his jurisdictional pleadings, his
claims appeared in further detail in exhibits he attached to and pointed to in those
pleadings, which we will consider on the question of jurisdiction. IAF, Tab 5
at 14-16, 20-25, 32, 34, 39-40, Tab 11 at 5-6; see Jones v. Merit Systems
Protection Board, 103 F.4th 984, 999-1000 (4th Cir. 2024) (stating that an
assessment of an employee’s allegations for determining Board jurisdiction
should include examination of exhibits and documents incorporated by reference
in initial appellant filings and jurisdictional briefings). The appellant asserted in
detail in those exhibits that during an April 22, 2013 meeting, he disclosed to the
ASAC that he decided, as the AGS responsible for a DEA agent group covering
JFKIA, not to assign agents to an April 11, 2013 DHS search of an incoming
flight because, for one reason, it constituted a search for evidence of narcotics
trafficking without probable cause in violation of the Fourth Amendment. IAF,
Tab 5 at 15-16, 23-24. The appellant explained that his belief in the illegality of
the search was informed by his knowledge of the Fourth Amendment and various
experiences as a DEA agent covering JFKIA. Id. at 40. He also argued that the
decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), evidences the
reasonableness of his belief. IAF, Tab 5 at 40. In that case, the U.S. Supreme
Court held that a city’s vehicle checkpoint program for the interdiction of
6
unlawful drugs violated the Fourth Amendment because its primary purpose was
indistinguishable from the general interest in crime control. Edmond, 531 U.S.
at 34, 48. We find that these assertions nonfrivolously allege that the appellant
made a disclosure, protected under 5 U.S.C. § 2302(b)(8)(A)(i), of information he
reasonably believed evidenced a violation of law.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect a personnel action in
any way. Chambers, 2022 MSPB 8, ¶ 14. One way to establish this criterion is
the knowledge/timing test, under which an employee may nonfrivolously allege
that the disclosure or activity was a contributing factor in a personnel action
through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or activity, and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure or activity was a contributing factor in the personnel action.
Id., ¶ 15. The Board has held that personnel actions occurring within 1 to 2 years
after the protected disclosures are sufficient to meet the timing portion of the
test. Abernathy v. Department of the Army, 2022 MSPB 37, ¶ 15.
We find that the appellant nonfrivolously alleged that his termination from
the AGS role, in which, as exemplified by his actions on April 11, 2013, he was
authorized to direct the actions of subordinate agents, constituted a “significant
change in duties, responsibilities, or working conditions,” and was thus a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). See Hawkes v. Department
of Agriculture, 103 M.S.P.R. 345, ¶¶ 5, 10 (2006) (finding correct an
administrative judge’s determination that the termination of an appellant’s
assignment as Acting Manager was a personnel action), aff’d, 253 F. App’x 939
(Fed. Cir. 2007). The appellant also nonfrivolously alleged that the promotion he
was allegedly denied and the transfer were personnel actions under 5 U.S.C.
§ 2302(a)(2)(A)(ii) and (iv), respectively. We find, however, that the appellant
7
did not nonfrivolously allege below that the June 26, 2013 memorandum of
counseling issued to him by the ASAC, which was not alleged to be a formal
disciplinary action, constituted a personnel action. 3 See Johnson v. Department of
Health and Human Services, 87 M.S.P.R. 204, ¶ 11 (2000) (“A memorandum of
oral counseling is not a formal disciplinary action under 5 U.S.C. § 2302(a)(2),
and, thus, it does not constitute a ‘personnel action.’”).
Finally, the appellant nonfrivolously alleged that the termination as AGS,
nonselection, and transfer were effected due to his whistleblowing either by the
ASAC or as a result of the ASAC’s influence, all by the end of June 2013. IAF,
Tab 5 at 24, 34, 39-40. We thus find that the appellant nonfrivolously alleged
contributing factor through the knowledge/timing test and established jurisdiction
over his appeal.
The appellant did not nonfrivolously allege that he engaged in activity protected
under 5 U.S.C. § 2302(b)(9)(D).
As mentioned previously, the appellant also asserts that as a result of his
refusal to order his agents to participate in one allegedly illegal border search on
April 11, 2013, he was subjected to various personnel actions. PFR File, Tab 2
at 2-5. We interpret this to be a claim under 5 U.S.C. § 2302(b)(9)(D) but
conclude that the appellant did not nonfrivolously allege that he engaged in
activity protected under that subsection, i.e., that he refused to obey an order that
would require him to violate a law. The appellant claimed below that the agency
3
With his petition for review, the appellant submits three documents for the first time.
PFR File, Tab 1 at 12-16. Under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 213-14 (1980). The appellant offers no explanation for not submitting these
documents, which predate his appeal, below. Nevertheless, the documents do nothing
to establish jurisdiction regarding any matter over which we deny jurisdiction in this
order. This is not to say that the appellant may not submit these documents into the
record on remand for consideration on the issues to be adjudicated there. Any such
filing must be consistent with the Board’s regulations and the administrative judge’s
instructions.
8
took personnel actions against him because, in addition to his protected
disclosure, he refused to obey the ASAC’s order to participate in border searches
that would have required his violation of the Fourth Amendment. IAF, Tab 5
at 39. But in the memoranda the appellant specifically identified as detailing the
alleged order he refused to follow, id., there is no description of an order related
to the searches that he refused to obey. Rather, he asserted that DEA assisted
with such searches pursuant to a DEA-DHS agreement, and that in exercising his
authority as AGS, he “decided” not to assign any agents to the April 11, 2013
search because the search violated the Fourth Amendment, as well as the terms of
the interagency agreement. Id. at 14, 16, 21-22, 24. The appellant also asserted
that the ASAC decided to terminate him from his AGS role because he “made a
poor decision,” and not because he refused to follow an order. Id. at 16, 24.
Finally, the appellant did not repeat his assertion that he refused to follow an
order on review, but rather argued that what he refused to do was to order his
subordinates to violate the law. PFR File, Tab 2 at 5. We thus find that the
appellant’s section 2302(b)(9)(D) claim was conclusory and facially implausible,
and thus was not nonfrivolously alleged. See 5 C.F.R. § 1201.4(s) (stating that a
nonfrivolous allegation is, among other things, more than conclusory and
plausible on its face); see also Jones, 103 F.4th at 1002 (stating that to be
“plausible,” a claimant must allege sufficient factual matter to nudge a claim
across the line from conceivable to plausible) (citations omitted); Conclusory,
Black’s Law Dictionary (12th ed. 2024) (“Expressing a factual inference without
stating the underlying facts on which the inference is based[.]”).
Conclusion
We thus find that the appellant nonfrivolously alleged that his April 22,
2013 disclosure to the ASAC was a contributing factor in his termination as AGS,
transfer, and denial of promotion, 4 and remand the appeal to the Northeastern
4
We discern no further grounds for remand in the appellant’s petition for review.
Regarding the appellant’s Title VII discrimination claims, the Board lacks the authority
9
Regional Office for adjudication on the merits. Upon remand, the administrative
judge should provide the parties with an opportunity to address whether further
discovery is needed to adjudicate this appeal.
We observe that the appellant indicated that he did not want a hearing on
his appeal form and did not timely request one pursuant to the August 25, 2023
acknowledgement order, which specifically informed him that he had 10 days to
submit a written request for a hearing or he would waive his right to one. IAF,
Tab 1 at 2, Tab 2 at 4. The acknowledgment order also informed the appellant
that extensions of filing dates would only be granted if requested in writing and
good cause was shown. IAF, Tab 2 at 6. Failure to timely request a hearing will
result in a waiver of that right when the appellant has not shown good cause for
his failure. Spradlin v. Office of Personnel Management, 84 M.S.P.R. 279, ¶ 11
(1999). Based on the date of its postmark, the appellant filed his hearing request
to decide the merits of an appellant’s allegation of prohibited discrimination in
conjunction with an IRA appeal. Maloney v. Executive Office of the President ,
2022 MSPB 26, ¶ 40; PFR File, Tab 2 at 4. Next, although the appellant only appears
to raise the matter for purposes of background, the 2002 suspension of his security
clearance was not a personnel action under 5 U.S.C. § 2302(a)(2)(A) and therefore
cannot be reviewed in an IRA appeal. Roach v. Department of the Army, 82 M.S.P.R.
464, ¶¶ 48-54 (1999); PFR File, Tab 2 at 2. Further, although the Board will consider
evidence of the conduct of an agency investigation when it is so closely related to a
personnel action that it could have been pretext for gathering evidence to use to
retaliate for whistleblowing, an investigation itself is not a personnel action under
5 U.S.C. § 2302(a)(2)(A). Spivey v. Department of Justice, 2022 MSPB 24, ¶¶ 10, 12.
Because the appellant only claimed on review that the alleged retaliatory investigation
resulted in the 2002 suspension of his security clearance, PFR File, Tab 2 at 2, he did
not nonfrivolously allege a personnel action in connection with the investigation that
would have given the Board jurisdiction over this claim. Finally, the appellant claims
that he engaged in protected activity when he disclosed the Fourth Amendment
violations to agency Office of Inspector General (OIG) investigators. Id. But the
appellant indicates that he did not speak to OIG investigators until 2015, after his
retirement in 2014 and the 2013 personnel actions at issue. PFR File, Tab 1 at 15,
Tab 2 at 2. Even if we were to consider his claim, the appellant thus would not have
nonfrivolously alleged that his communications with OIG were a contributing factor in
any of the personnel actions at issue. See El v. Department of Commerce, 123 M.S.P.R.
76, ¶ 10 (2015) (explaining that, because the alleged personnel actions predated an
appellant’s protected disclosure, that disclosure could not have contributed to those
actions), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).
10
6 days late, without any showing of good cause to waive the deadline. IAF, Tab 5
at 3, 104; see 5 C.F.R. § 1201.4(l). On the other hand, the appellant was pro se,
statements by the administrative judge below could have created ambiguity
regarding whether there had been a decision on the appellant’s hearing request,
and the appellant made assertions regarding his difficulties filing his appeal and
viewing pleadings on e-Appeal Online. IAF, Tab 6 at 7, 9, Tab 11 at 4; ID
at 11-12; PFR File, Tab 2 at 4. Under these circumstances, we find that the
appellant should be afforded an opportunity to further show that there was good
cause to waive the time limit to request a hearing. 5 See Spradlin, 84 M.S.P.R.
279, ¶ 11 (granting an appellant an opportunity to establish good cause to waive
the deadline to request a hearing when, inter alia, she acted pro se at times and it
was ambiguous whether there had been a decision on the appellant’s hearing
request). The administrative judge shall specifically rule on the appellant’s
hearing request and, as appropriate depending on that ruling, adjudicate the
remanded issues after a hearing, or based on the written record after providing the
parties the opportunity to file additional evidence and argument.
5
To determine whether an appellant has shown good cause to waive the deadline for
requesting a hearing, the administrative judge will consider the same factors typically
considered in connection with waiver of the deadline for filing an appeal. Beaudette v.
Department of the Navy, 5 M.S.P.R. 394, 397-98 (1981). The administrative judge
should also consider whether any delay in the appellant’s request may have been caused
by the transition to the current e-Appeal Online system.
11
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.