George Duggan v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GEORGE DUGGAN, DOCKET NUMBER

Appellant, SF-1221-16-0150-B-2

v.

DEPARTMENT OF DEFENSE, DATE: June 4, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

George Duggan , Newman, California, pro se.

Temple L. Wilson , Esquire, and John Norquist , Fort Belvoir, Virginia,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

which denied his request for corrective action in this individual right of action

(IRA) appeal. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We MODIFY the remand initial decision to find that disclosures

(1)-(4) were protected by 5 U.S.C. § 2302(b)(8) and to clarify our analysis of

disclosures (3)-(5). We VACATE the administrative judge’s analysis of whether

the extra proof requirement in 5 U.S.C. § 2302(f)(2) applies to the appellant and

whether the appellant satisfied his burden in this regard. We FURTHER

MODIFY the remand initial decision to find that the appellant proved that

disclosure (1) was a contributing factor in personnel actions (1)-(3) and that

disclosures (2)-(4) were a contributing factor in personnel action (3), but that the

agency proved by clear and convincing evidence that it would have taken these

personnel actions in the absence of the appellant’s protected disclosures. Except

as expressly MODIFIED in this regard, we AFFIRM the remand initial decision,

still denying corrective action.

DISCUSSION OF ARGUMENTS ON REVIEW

In the remand initial decision, the administrative judge found that the

appellant did not prove his prima facie case because he did not make protected

disclosures, or alternatively, that he did not prove contributing factor or the extra

proof requirement in 5 U.S.C. § 2302(f)(2). Duggan v. Department of Defense,

SF-1221-16-0150-B-2, Refiled Remand File (B-2 RF), Tab 71, Remand Initial

Decision (RID). The appellant has filed a petition for review, but the agency has

3

not filed a response. Remand Petition for Review (RPFR) File, Tab 1. The

appellant makes the following primary assertions on petition for review: (1) the

administrative judge erred in his analysis of most of his disclosures; (2) the extra

proof requirement in 5 U.S.C. § 2302(f)(2) does not apply to him; and (3) the

burden should have shifted to the agency to prove by clear and convincing

evidence that it would have taken the personnel actions against him absent his

protected disclosures. Id.

The applicable legal standard

All the appellant’s disclosures and alleged personnel actions in this matter

predated the expansion of IRA appeal rights in the Whistleblower Protection

Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, which

took effect on December 27, 2012. See WPEA, § 202; Scoggins v. Department of

the Army, 123 M.S.P.R. 592, ¶ 7 (2016). Therefore, it is appropriate to apply

pre-WPEA standards regarding the scope of this IRA appeal. 2

Scoggins, 123 M.S.P.R. 592, ¶ 7. Accordingly, the appellant must prove by

preponderant evidence that he made a disclosure that was protected by 5 U.S.C.

§ 2302(b)(8) and that his disclosure was a contributing factor in the personnel

actions taken against him. 3 Id., ¶ 8. If the appellant meets his burden, then the

Board shall order corrective action unless the agency proves by clear and

2

To the extent that the administrative judge identified various WPEA provisions in the

remand initial decision and the jurisdictional order, RID at 2-3, 6-8;

Duggan v. Department of Defense, MSPB Docket No. SF-1221-16-0150-B-1,

Remand File, Tabs 3, 21, a different outcome is not warranted. Any error in this regard

is not prejudicial to the appellant’s substantive rights and provides no basis for reversal

of the remand initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984).

3

The WPEA introduced an extra proof requirement regarding disclosures made during

the normal course of duties. Williams v. Department of Defense, 2023 MSPB 23, ¶¶ 10,

12, 16; see 5 U.S.C. § 2302(f)(2). We need not resolve whether 5 U.S.C. § 2302(f)(2)

applies here because, even if the extra proof requirement does not apply, the appellant

is not entitled to corrective action. We vacate the administrative judge’s analysis of

whether the extra proof requirement in 5 U.S.C. § 2302(f)(2) applies to the appellant

and whether he satisfied his burden in this regard.

4

convincing evidence that it would have taken the same personnel actions absent

the protected disclosures. Soto v. Department of Veterans Affairs, 2022 MSPB 6,

¶ 6; Scoggins, 123 M.S.P.R. 592, ¶ 8.

We modify the remand initial decision to find that disclosures (1)-(4) were

protected by 5 U.S.C. § 2302(b)(8). 4

A protected disclosure is a disclosure 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. 5 5 U.S.C. § 2302(b)(8)(A); Linder v. Department of

Justice, 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable belief exists if a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that the actions of the

Government evidence one of the categories of wrongdoing listed in

section 2302(b)(8)(A). 6 Smith v. Department of the Army, 2022 MSPB 4, ¶ 14

(citing Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)); Linder,

122 M.S.P.R. 14, ¶ 12. The appellant need not prove that the matter disclosed

actually established one of the types of wrongdoing listed under

section 2302(b)(8)(A); rather, the appellant must show that the matter disclosed

4

The appellant does not challenge on review the administrative judge’s following

findings regarding his February 2008 disclosure to Congressional staff (disclosure (7)):

(1) it was appropriate to apply collateral estoppel (issue preclusion) to the findings in

an earlier IRA appeal that this disclosure was protected by 5 U.S.C. § 2302(b)(8) and he

did not prove contributing factor regarding subsequent personal actions; and

(2) alternatively, the appellant did not prove contributing factor regarding this

disclosure. RID at 49-51. We affirm the remand initial decision in this regard.

5

The WPEA’s amendment to 5 U.S.C. § 2302(b)(8)(A), WPEA § 101(a), is immaterial

to the outcome of this appeal.

6

The Board may rely on an employee’s experience in a particular field to find that a

disclosure about wrongdoing in that field was reasonable. See, e.g., Cooper

v. Department of Veterans Affairs, 2023 MSPB 24, ¶ 17 (finding an employee’s

disclosure about a violation of the Federal Acquisition Regulation reasonable

considering her experience as a senior acquisitions professional).

5

was one which a reasonable person in his position would believe evidenced any

of the situations specified in section 2302(b)(8). Smith, 2022 MSPB 4, ¶ 14.

Disclosure 1: July 22, 2007

On this date, the appellant, upon his return from audit field work, met with

the Iraq Branch Office (IBO) Regional Audit Manager (RAM), the IBO Branch

Manager, and his supervisor to discuss “the new direction of the L-3 labor

review.” 7 RID at 29; see B-2 RF, Tab 34 at 56 (the appellant’s notes from this

meeting). During this meeting, the IBO RAM reviewed the original L-3 audit

request, asked how the appellant addressed each of the requested items, and

reiterated that the audit was needed “before August 10, 2007.” RID at 29; B-2

RF, Tab 34 at 56. The appellant told the IBO RAM that there were additional

issues that he thought should be addressed, including “illiterate linguists causing

wasted time and jeopardizing soldiers with bad translations” and “L-3

redeploying bad linguists around the country to unaware Army units.” RID at 29;

B-2 RF, Tab 34 at 56. The appellant stated that the IBO RAM “listened and

understood it to be a problem” and said that they “could open up another audit to

report on additional problems [] found at L-3.” RID at 29; B-2 RF, Tab 34 at 56.

The appellant protested further, but the IBO RAM “insisted that [they] issue the

report by 8/10/07 and restrict [themselves] to addressing just the prior

deficiencies.” RID at 29; B-2 RF, Tab 34 at 56. The appellant asserted that he

disclosed a violation of law, rule, or regulation, gross mismanagement, a gross

waste of funds, an abuse of authority, and a substantial and specific danger to

public health or safety. Duggan v. Department of Defense, MSPB Docket No.

SF-1221-16-0150-B-1, Remand File (B-1 RF), Tab 19 at 5, Tab 23 at 10-11.

7

“L-3” was also known as L3 Technologies or L-3 Communications holdings, which

later acquired Titan Corporation and was sometimes referred to as such. RID at 16.

The agency’s contract with L-3 required L-3 to provide skilled linguists, and it

identified various categories of linguists and qualifications. RID at 27. As described in

the remand initial decision, in 2006, the agency conducted an audit that found

deficiencies in timekeeping by L-3 linguists, and IBO was asked to perform a follow-up

audit to evaluate remediation of the identified deficiencies. RID at 27-28.

6

The administrative judge found that the appellant did not prove that a

disinterested observer could conclude that he disclosed a violation of the

Generally Accepted Government Auditing Standards (GAGAS) or the Defense

Contract Audit Agency (DCAA) Contract Audit Manual (CAM) 8 or that there was

a disclosable external impairment. 9 RID at 32. In pertinent part, the

administrative judge explained that the report was issued on August 6, 2007, and

it specifically identified the scope of the follow-up audit as defined by the

original assignment. RID at 31-32. The administrative judge acknowledged that

the appellant wanted to take the assignment in a “new direction” but management

instructed him to stay within the scope of the original assignment. RID at 33.

The administrative judge rejected the appellant’s assertions that the pressure to

issue a report on the follow-up audit was an “external impairment” that should

have been disclosed under GAGAS and that the follow-up audit did not address

all relevant information, such as overall contract compliance. RID at 31-33.

The administrative judge also found that the appellant did not disclose gross

mismanagement because, among other things, there was a debate about the

appellant’s observations, management agreed that he raised important questions

8

The administrative judge determined that both GAGAS and CAM constituted rules for

the purposes of 5 U.S.C. § 2302(b)(8) because they were “established and authoritative

standards that guide agency employees in conducting their work.” RID at 31.

Neither party challenges the administrative judge’s finding in this regard on review.

9

The GAGAS stated that “[a]udit organizations must be free from external impairments

to independence,” which “may restrict the work or interfere with auditors’ ability to

form independent and objective opinions, findings, and conclusions.” B-2 RF, Tab 30

at 48; RID at 19. External impairments can include “improperly limit[ing] or

modify[ing] the scope of an audit,” “unreasonable restrictions on the time allowed to

complete an audit or issue the report,” and threats to replace an auditor “over a

disagreement with the contents of an audit report.” B-2 RF, Tab 30 at 48-49;

RID at 19-20. The CAM likewise discussed external impairments and offered some

examples, including procurement or contracting officers’ interference in the scope and

character of an audit, denial of access to sources of information, external interference in

the assignment of personnel to the audit task, actions by contractors significantly

influencing the auditor’s judgment, and unreasonable restrictions on the time allowed to

“competently complete the audit assignment.” B-2 RF, Tab 29 at 97; RID at 20.

7

but ultimately decided to limit its efforts to the specific assignment, and it was

reasonable for the agency to do so. RID at 33.

On review, the appellant asserts that DCAA management “created the new

direction of the L-3 audit” and “redirect[ed] [him] to eliminate audit steps and

preliminary findings of illiterate linguists in the field.” RPFR File, Tab 1 at 6.

He suggests that DCAA upper management redirected IBO in this regard

because it was “invested in L-3’s prior contract performance” and “bid protests.”

Id. at 6-7. He states that management knew his opinion that permitting L-3 to

deploy noncompliant contract linguists in Iraq was a present danger to the troops,

and he asserts that DCAA management “lied about issues [that he] found with

illiterate linguists as being ‘economy and efficiency’ issues.” Id. at 8.

Finally, he speculates that “DCAA management at the highest levels was being

pressured by L-3 or [the Department of Defense] to report favorably about L-3’s

linguists in IBO’s 2007 labor review being conducted by the appellant so L-3

could get back a billing holdback of $25 million and favorably compete . . . for

the very big linguist follow-on contract.” Id. He reasserts that, during the

July 22, 2007 meeting, he disclosed wrongdoing that violated GAGAS,

8

endangered the warfighter and mission, and displayed gross mismanagement and

a gross waste of funds. 10 Id.

These assertions are not persuasive. Gross mismanagement is more than de

minimis wrongdoing or negligence; it means a management action or inaction that

creates a substantial risk of significant adverse impact upon the agency’s ability

to accomplish its mission. 11 Salazar v. Department of Veterans Affairs ,

2022 MSPB 42, ¶ 24. We do not find that the appellant’s disagreement with his

managers regarding the scope of the follow-up L-3 audit constituted a substantial

risk of significant adverse impact upon the agency’s ability to accomplish its

mission, particularly when his managers indicated that they could open another

audit on the other issues. Moreover, the appellant’s speculation on review

regarding the agency’s motives does not rise to the level of preponderant

10

The administrative judge found that the appellant made a nonfrivolous allegation of

an abuse of authority and a gross waste of funds in this disclosure, B-1 RF, Tab 26 at 3,

but he did not discuss whether the appellant met his burden of proof on the merits in the

remand initial decision. The appellant does not challenge the administrative judge’s

failure to make such findings in this regard on review. RPFR File, Tab 1 at 8.

We modify the remand initial decision to find that the appellant’s description and

testimony about the July 22, 2007 meeting does not constitute proof by preponderant

evidence that he had a reasonable belief that he disclosed an abuse of authority or a

gross waste of funds. See, e.g., Collier v. Small Business Administration, 2024 MSPB

13, ¶ 5 (holding that an abuse of authority occurs when there is an arbitrary or

capricious exercise of power by a Federal official or employee that adversely affects the

rights of any person or that results in personal gain or advantage to the Federal official,

employee, or some preferred other persons); Van Ee v. Environmental Protection

Agency, 64 M.S.P.R. 693, 698 (1994) (stating that a gross waste of funds constitutes a

more than debatable expenditure that is significantly out of proportion to the benefit

reasonably expected to accrue to the government).

11

We modify the remand initial decision to address the administrative judge’s statement

that gross mismanagement refers to management decisions that are more than merely

debatable. RID at 4 (citing Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 10

n.3 (2015)). Although the administrative judge referred to such a requirement, it does

not appear that he found that the appellant’s disclosures were not protected solely on

that basis. RID at 33, 43, 48. Instead, he found that the appellant did not satisfy his

burden to prove that he disclosed an action or inaction which creates a substantial risk

of significant adverse impact upon the agency’s ability to accomplish its mission. Id.

9

evidence. See Duncan v. Department of the Air Force , 115 M.S.P.R. 275, ¶ 9

(2010), aff’d, 674 F.3d 1359 (Fed. Cir. 2012).

We have also considered the appellant’s assertion that he disclosed a

violation of GAGAS because (1) the follow-up audit report did not state that it

violated contract requirements or modified the GAGAS audit scope statement to

state that contract compliance was not reviewed, and (2) the report did not state

that there was an external impairment to DCAA independence or that DCAA had

a lack of audit independence. RPFR File, Tab 1 at 7-8. The administrative judge

addressed and rejected these assertions in the remand initial decision, 12

RID at 30-33, and we discern no error with his conclusions in this regard.

The appellant’s disagreement with management’s decision to stay within the

scope of the original assignment does not constitute preponderant evidence that

he disclosed a violation of GAGAS or CAM therein.

However, the administrative judge did not address in the remand initial

decision the appellant’s assertion that he disclosed a substantial and specific

danger to public health or safety, which he raises again on review. B-1 RF,

Tab 19 at 5; B-2 RF, Tab 70 at 6; see RPFR File, Tab 1 at 8. We do so now. In

determining whether a disclosed danger is sufficiently substantial and specific to

warrant protection under the whistleblower protection statutes, the Board must

consider (1) the likelihood of harm resulting from the danger, (2) when the

alleged harm may occur, and (3) the nature of the harm, i.e., the potential

consequences. Chambers v. Department of the Interior, 602 F.3d 1370, 1376

(Fed. Cir. 2010) (internal citations omitted); Wilson v. Department of Veterans

12

In pertinent part, the administrative judge noted that it was unclear what the appellant

meant by a lack of audit independence, particularly since the Mid-Atlantic Branch

Office conducted an audit that found deficiencies and then conducted a follow-up audit

with the IBO’s assistance, the appellant did not identify any constraints on how he was

supposed to evaluate specific issues in the original assignment or any time constraints

in that regard, and he did not prove facts that would lead a disinterested observer to

conclude that there was either an external impairment or a lack of audit independence in

the follow-up audit. RID at 33; B-2 RF, Tab 34 at 128-29.

10

Affairs, 2022 MSPB 7, ¶ 38. The U.S. Court of Appeals for the Federal Circuit

has explained that “specific allegations or evidence either of actual past harm or

of detailed circumstances giving rise to a likelihood of impending harm” are

needed to demonstrate that a disclosure evidences a substantial and specific

danger to public health or safety. Chambers, 602 F.3d at 1376.

As noted above, in this disclosure, the appellant stated that he “spoke at

length” about “illiterate linguists . . . jeopardizing soldiers with bad translations”

and the danger of “L-3 redeploying bad linguists around the country to unaware

Army units.” B-2 RF, Tab 34 at 56. To explain the nature of the danger of

illiterate linguists, the appellant testified about a situation in which a sergeant

major was trying to keep his unit away from a particular mosque and the

interpreter “botched up the translation” and led the unit to the mosque, which put

them in the middle of a firefight. B-2 RF, Tab 65-4, Hearing Recording

(testimony of the appellant); see B-1 RF, Tab 27 at 5 (stating, in a declaration

made under penalty of perjury, that he observed a “frustrated and angry

platoon . . . loudly arguing with their sergeant major to get rid of their interpreter

because he had mistakenly led them that day into a firefight which could have

wiped out the whole platoon”). 13 We find that the appellant satisfied his burden

to prove by preponderant evidence that he had a reasonable belief in a substantial

and specific danger to public health or safety and that his disclosure was therefore

protected by 5 U.S.C. § 2302(b)(8).

Disclosures 2-5: October 2-3 and 27, 2007

In an email and teleconference on October 2, 2007, the appellant alleged

that he warned the IBO RAM and Mid-Atlantic Branch Office (MABO) Branch

Manager about the danger of L-3 linguists to the troops and mission and how IBO

needed to respond to concerns about botched intelligence translations

13

We cannot determine from the record if the appellant’s testimony and declaration

described the same incident or two separate incidents. We need not resolve this issue to

adjudicate this matter.

11

(disclosures (2) and (3)). B-1 RF, Tab 19 at 5; B-2 RF, Tab 34 at 253-54 (email),

262-63 (notes of the teleconference); RID at 36-38. On October 3, 2007, the

appellant sent an email to the IBO RAM and a supervisor about the new L-3

audit, in which he asserted, among other things, that IBO could do a better job

than MABO because the request originated out of Iraq, IBO (specifically, the

appellant) had already devoted resources to evaluate the linguists and had “unique

knowledge” and expertise, he was better at performing statistical audit tests, and

IBO would not have a learning curve (disclosure (4)). B-2 RF, Tab 34 at 265-66;

RID at 38. The appellant asserted that, in these communications, he disclosed a

violation of law, rule, or regulation, gross mismanagement, a gross waste of

funds, abuse of authority, and a substantial and specific danger to public health or

safety. B-1 RF, Tab 19 at 5, Tab 23 at 11-12. The administrative judge found

that, in disclosures (2)-(4), the appellant made a nonfrivolous allegation that he

disclosed an abuse of authority and a gross waste of funds. B-1 RF, Tab 26 at 3.

On October 27, 2007, the appellant asserted that, during a conference with

the IBO RAM, he was pressured to drop his findings on the L-3 linguists, but the

IBO RAM supported him the following morning in continuing the audit

(disclosure (5)). B-1 RF, Tab 19 at 5-6; B-2 RF, Tab 34 at 282-83. He asserted

that he disclosed a violation of law, rule, or regulation, gross mismanagement, a

gross waste of funds, an abuse of authority, and a substantial and specific danger

to public health or safety. B-1 RF, Tab 19 at 5-6, Tab 23 at 12-15.

The administrative judge found that he nonfrivolously alleged that he disclosed a

violation of law, a gross waste of funds, and an abuse of authority. B-1 RF,

Tab 26 at 2-3.

In the remand initial decision, the administrative judge found that the

appellant did not disclose a violation of GAGAS or other policy that would

qualify as a rule under 5 U.S.C. § 2302(b)(8). RID at 43. Regarding

disclosure (2) (the October 2, 2007 email), the administrative judge rejected the

appellant’s assertion that there would be an external impairment under GAGAS if

12

L-3 exercised pressure to get money that had been withheld or to renew the

contract; instead, the administrative judge determined that there was a potential,

but unrealized, risk. Id. Indeed, the administrative judge noted that, after the

appellant left Iraq, IBO issued a significant Statement of Condition and

Recommendation (SOCAR), 14 and L-3 did not get the contract renewal. Id.

The administrative judge considered the appellant’s assertion that it was gross

mismanagement for the agency to take time to come around to his view, but he

found that the delay of a few months did not constitute gross mismanagement. Id.

Regarding disclosure (2), the appellant asserts on review that he had a

reasonable belief that there was a GAGAS violation. RPFR File, Tab 1 at 11.

He also challenges the administrative judge’s conclusion that a 3-month delay did

not constitute gross mismanagement. See id. at 11-12 (“It doesn’t take a genius

to understand many a warfighter died or was wounded in Iraq relying on

mistranslated intelligence on the battlefield. . . . Three months is a lot of time for

mayhem.”). Regarding disclosures (3)-(5), the appellant asserts that the

administrative judge did not specifically analyze these disclosures or explain why

they were not protected. Id. at 12. He asserts generically that, in all of his L-3

disclosures, he had a reasonable belief that DCAA management violated GAGAS

requirements, permitted a gross waste of funds by paying linguists who did not

meet contract requirements, and exercised gross mismanagement in the manner in

which it audited and ignored illiterate L-3 linguists, which presented a clear and

present danger to the warfighter and mission. Id.

We agree with the administrative judge that the appellant did not prove by

preponderant evidence that, in disclosure (2), he had a reasonable belief that he

disclosed a violation of GAGAS or gross mismanagement for the reasons stated in

the remand initial decision. Although not specifically challenged by the

appellant, for the same reasons discussed in disclosure (1), we find that he did not

14

SOCAR is the auditor’s report to the contractor identifying questionable costs before

issuing the final report. RID at 41 n.20.

13

prove that he had a reasonable belief that he disclosed an abuse of authority or a

gross waste of funds.

The administrative judge did not separately analyze disclosures (3)-(5), and

it is unclear if he intended his analysis of disclosure (2) to apply to disclosures

(3)-(5). We modify the remand initial decision to clarify our analysis of these

disclosures. Because the content of disclosures (3)-(5) is generally the same as

the content of disclosure (2), we also find that the appellant did not prove, in

disclosures (3)-(5), that he had a reasonable belief that he disclosed a violation of

GAGAS, gross mismanagement, a gross waste of funds, or an abuse of authority

in these communications.

We further modify the remand initial decision to find that appellant

disclosed a substantial and specific danger to public health and safety in

disclosures (2)-(4). For example, in his October 2, 2007 email (disclosure (2)),

he expressed his desire to “supplement [the earlier labor review] with our

significant findings as quick[ly] [and] accurately [as] possible to ultimately

save . . . lives [that were] in real jeopardy from inadequate translators in Iraq,”

and he “designed tests in the sample to capture deficiencies like illiteracy and

improper movement of illiterate linguists by L-3.” B-2 RF, Tab 34 at 253.

During the October 2, 2007 meeting, the appellant stated that “people are in

jeopardy because of incompetent linguists.” Id. at 262. In the October 3, 2007

email disclosure, the appellant stated, among other things, that “the users of L-3

service have deep problems about its services,” a “good fraud risk assessment

should note that the claim of illiterate linguists ha[s] been out there for over

two years and yet according to MABO the [Procuring Contracting Officer] is

unaware of these problems,” and “[o]ther parties . . . know something is wrong

with a system that allows underperforming linguist[s] in Iraq.” Id. at 265-66.

Similar to our analysis of disclosure (1), we conclude that the appellant proved

that he disclosed a substantial and specific danger to public health and safety in

disclosures (2)-(4). However, in contrast to disclosures (2)-(4), the appellant

14

made no assertions of a substantial and specific danger to public safety in his

October 27, 2007 communication (disclosure (5)). Id. at 282-83. Therefore, we

find that disclosure (5) is not protected.

Disclosure 6: October 31, 2007

This disclosure involved an audit of a dining facility (DFAC) contract. The

appellant sent an email to his supervisor, the IBO Branch Manager, the IBO

RAM, the Deputy Regional Director, and the Regional Director, entitled “DFAC

Reality Check,” in which he made the following statements, among others:

(1) certain Central Region personnel on a teleconference were uninformed about

“basic information”; (2) it was “no coincidence that [IBO] discovered [certain

DFAC] over-billings in Iraq because these over-billing disclosures could not have

happened without questioning [contractor] subject matter experts in Iraq”;

(3) “IBO exists for a legitimate reason”; (4) “all these DFAC audits should be

done in Iraq for this reason”; (5) the “suggestion that [IBO] not issue

SOCARs . . . is without historical context because [IBO has] and can quickly act

on inconsistencies in [contractor] responses; (6) the contractor uses a “divide and

conquer strategy,” whereby it gives inconsistent information to IBO and the

Central Region; (7) it was “more important to systematically and effectively audit

the material DFACs in Iraq” rather than rush the process; and (8) IBO “need[s] to

agree upon an audit strategy that considers the overlap in questioned costs from

over-billing and over-pricing.” B-2 RF, Tab 34 at 353-54; RID at 45. The

appellant concluded his email by saying, “I have enjoyed my work here at IBO,

but I just needed to say this to set the record straight and point out a problem.”

B-2 RF, Tab 34 at 354; RID at 45. The appellant asserted that he disclosed a

violation of law, rule, or regulation, gross mismanagement, a gross waste of

funds, abuse of authority, and a substantial and specific danger to public health or

safety. B-1 RF, Tab 19 at 6, Tab 23 at 14-15. The administrative judge found

that the appellant made a nonfrivolous allegation of an abuse of authority and

gross mismanagement. B-1 RF, Tab 26 at 4.

15

In the remand initial decision, the administrative judge noted that the

appellant testified that he was essentially disclosing that DCAA was “wasting

time” and management engaged in gross mismanagement by “chasing their own

tails.” RID at 48 (discussing the appellant’s testimony). The administrative

judge found that a disinterested observer with knowledge of the essential facts

would know that the agency eventually agreed with much of what the appellant

was complaining about, and the appellant was essentially complaining that the

agency took too long to assign or conduct work in a way that he thought was best.

Id. The administrative judge concluded that this disclosure did not constitute

gross mismanagement. Id.

On review, the appellant reiterates that he disclosed gross

mismanagement. 15 RPFR File, Tab 1 at 13-14. He cites to an opinion from the

Court of Federal Claims, which he describes as “one of the biggest DFAC refunds

[he] or anyone was able to obtain, and a good sample of DCAA gross

mismanagement,” and he asserts that the judge called the IBO audit process

“erratic” and described the appellant as the “most knowledgeable” auditor. Id.;

B-2 RF, Tab 34 at 460-556.

The appellant’s assertions do not warrant a different outcome. Notably, the

administrative judge referenced the opinion of the Court of Federal Claims in the

remand initial decision. RID at 47 (noting that the court “quoted the appellant

favorably”); see B-2 RF, Tab 34 at 460-556. Moreover, the appellant’s email,

which largely involved his opinion on the “turf war” between the Central Region

and IBO about which office should perform the DFAC audits, B-2 RF, Tab 66-1,

Hearing Recording (testimony of the appellant), did not constitute a reasonable

15

Although appellant does not challenge the administrative judge’s failure to evaluate

whether he reasonably believed that he disclosed an abuse of authority or the other

categories of wrongdoing, we modify the remand initial decision to find explicitly that

his disagreement with the way that the agency handled the dining facility contract, as

expressed in this communication, did not constitute a disclosure of any of the other

categories of wrongdoing set forth in 5 U.S.C. § 2302(b)(8).

16

belief of a substantial risk of significant adverse impact upon the agency’s ability

to accomplish its mission. See, e.g., Webb v. Department of the Interior,

122 M.S.P.R. 248, ¶ 10 n.3 (2015) (finding that the appellant’s policy paper was

not a disclosure of gross mismanagement, among other things, because his

recommendations reflected his opinion of the best way to restructure the Mineral

Management Service).

Conclusion

Because we find that disclosures (1)-(4) were protected by 5 U.S.C.

§ 2302(b)(8), we now turn to whether the appellant proved contributing factor.

We find that the appellant proved by preponderant evidence that disclosure (1)

was a contributing factor in personnel actions (1)-(3) and disclosures (2)-(4) were

a contributing factor in personnel action (3). 16

There are two ways to evaluate contributing factor. The most common way

is the knowledge/timing test, in which an appellant can prove that his disclosure

was a contributing factor in a personnel action through evidence that the official

taking the personnel action knew of the disclosure and took the personnel action

within a period of time, like 1-2 years, such that a reasonable person could

conclude that the disclosure was a contributing factor in the personnel action.

Scoggins, 123 M.S.P.R. 592, ¶ 21; Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶¶ 18, 21 (2015); see 5 U.S.C. § 1221(e)(1). If the appellant

16

The administrative judge identified the following 10 personnel actions: (1) failure to

receive an annual promotion appraisal on July 30, 2007; (2) failure to receive an annual

superior performance award on July 30, 2007; (3) involuntary transfer from Iraq

on December 3, 2007; (4) a downgraded annual performance appraisal, dated

July 30, 2008; (5) revocation of telework agreement on July 30, 2008; (6) a downgraded

annual promotion appraisal, dated July 30, 2008; (7) failure to receive an annual

superior performance award on July 30, 2008; (8) a downgraded performance evaluation

“July 30, 2009[,] but dated September 29, 2009”; (9) failure to receive an annual

superior performance award on July 30, 2009; and (10) a downgraded promotion

appraisal “July 30, 2009, but dated 25 September 2009.” B-1 RF, Tab 19 at 6; RID

at 52-65; see, e.g., B-2 RF, Tab 34 at 160-63 (promotion appraisals for 2008 and 2009),

168-72 (performance appraisal from December 2, 2007, to June 30, 2008), 400

(November 2, 2007 email regarding the appellant’s transfer from Iraq), Tab 39 at 39-40

(performance appraisal from July 1, 2008, to August 11, 2009).

17

fails to satisfy the knowledge/timing test, then he can prove contributing factor

through other evidence, such as that pertaining to the strength or weakness of the

agency’s reasons for taking the personnel action, whether the disclosure was

personally directed at the proposing or deciding officials, and whether these

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

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 65.

On review, the appellant asserts as a general proposition that the “timeline

of events would establish a contributing factor for all personnel actions.”

RPFR File, Tab 1 at 17. We disagree. For example, disclosure (1) occurred on

July 22, 2007, more than 2 years before personnel actions (8)-(10).

Also, disclosures (2) through (4), which occurred in October 2007, were made

after alleged personnel actions (1) and (2); thus, they could not have been a

contributing factor in those personnel actions. See Rumsey v. Department of

Justice, 120 M.S.P.R. 259, ¶ 27 (2013) (finding that disclosures made after the

agency took the personnel action at issue could not have been a contributing

factor in such an action). We now turn to the personnel actions to evaluate

contributing factor.

18

Personnel action (1): failure to receive an annual promotion

appraisal on July 30, 2007 17

In the remand initial decision, the administrative judge stated that he

should not have accepted jurisdiction over this personnel action because a failure

to issue a promotion appraisal is not a personnel action as described in 5 U.S.C.

§ 2302(a). RID at 54. In pertinent part, the administrative judge noted that, in

Kochanoff v. Department of the Treasury, 54 M.S.P.R. 517, 520 (1992), the Board

held that an allegedly false evaluation of the appellant’s qualifications for

promotion, unlike a performance appraisal under 5 U.S.C. chapter 43, does not

constitute a personnel action. RID at 54. Alternatively, the administrative judge

considered the failure to issue a promotion appraisal on the merits. RID at 55-58.

The administrative judge noted that the appellant testified that the IBO RAM was,

“for the most part . . . the decisionmaker” in IBO, and therefore was likely to

have issued, or not issued, the promotion appraisal. RID at 55; B-2 RF, Tab 65-2,

Hearing Recording (testimony of the appellant); see B-2 RF, Tab 67-4, Hearing

Recording (testimony of the Peninsula Branch Office (PBO) Branch Manager)

17

The administrative judge explained that, until sometime around 2009, the agency

issued promotion appraisals along with a performance appraisal, the promotion

appraisals were scored on approximately 30 questions, and the promotion appraisals

were used to evaluate candidates for competitive promotions. RID at 52.

The administrative judge credited the testimony of various agency managers that these

promotion appraisals were not cumulative and only the most recent one would be sent to

a hiring panel. RID at 52-53; see Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002) (stating that the Board must defer to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on observing

the demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so). On review,

the appellant submits a July 21, 2008 email from the Western Region RAM to various

agency managers, which he asserts shows that the administrative judge was wrong to

credit agency officials over him about the cumulative use of promotion appraisals.

RPFR File, Tab 1 at 15, 20. Evidence offered for the first time on petition for review

merely to impeach a witness’s credibility is not generally considered new and material.

Bucci v. Department of Education, 42 M.S.P.R. 47, 55 (1989). However, even if we

consider this email, it does not state that any prior promotion appraisal information

would be used cumulatively. Moreover, it does not constitute sufficiently strong

reasons not to defer to the administrative judge’s credibility determinations.

Haebe, 288 F.3d at 1301.

19

(stating that the IBO would have been responsible for the appellant’s 2007

promotion appraisal). Importantly, the IBO RAM passed away at some point

before the appellant filed his 2015 Office of Special Counsel (OSC) complaint.

RID at 55.

In evaluating the appellant’s prima facie case, the administrative judge

noted that there was a laches problem due to the appellant’s 8-year delay in filing

his OSC complaint. RID at 56. In pertinent part, the administrative judge

determined that the agency produced what it had that was responsive to the

appellant’s discovery requests, the agency did not act negligently in failing to

preserve materials from the IBO RAM, and it did not act with an intent to deprive

the appellant of material for litigation that it either knew about or reasonably

anticipated. Id. The administrative judge considered other evidence, including a

declaration, made under penalty of perjury, from a human resources specialist,

which stated that the agency did not have any records for the appellant involving

2007 performance evaluations or appraisals or records from 2007 “related to

employees working in . . . Iraq.” B-1 RF, Tab 38 at 5. The administrative judge

also considered the appellant’s assertion that he “must have” brought up the

failure to issue a promotion appraisal to the PBO Branch Manager at the time of

most of these events and her successor. RID at 57-58. However, the

administrative judge noted that the PBO Branch Manager testified that she was

unaware of the failure to issue a promotion appraisal in 2007, and both the PBO

Branch Manager and her successor (who took over in October 2007) testified that

they did not know why the 2007 promotion appraisal was not issued. Id.

The administrative judge considered the demeanor of these witnesses during the

hearing, and he found them credible in this regard. RID at 58.

On review, the appellant disagrees with the administrative judge’s

determination that a promotion appraisal was not a personnel action under

5 U.S.C. § 2302(a)(2)(A). RPFR File, Tab 1 at 15. For the reasons set forth in

the remand initial decision, including the administrative judge’s demeanor -based

20

credibility determinations, we agree with the administrative judge that a

promotion appraisal is not a “performance evaluation under chapter 43,” as

defined in 5 U.S.C. § 2302(a)(2)(A)(viii), and thus, it is not a personnel action

under the whistleblower protection statutes.

For the following reasons, even if we determined that a promotion appraisal

was a personnel action, and we proceeded to evaluate contributing factor and the

agency’s clear and convincing burden, a different outcome is not warranted. We

can decide contributing factor based on the existing record. The only disclosure

that predated this personnel action is disclosure (1). The IBO RAM was present

during the July 22, 2007 meeting described in this disclosure, and the failure to

issue the promotion appraisal occurred within a week or so thereafter. We find

that the appellant proved contributing factor under the knowledge/timing test with

respect to the IBO RAM.

However, the PBO Branch Manager testified that she did not have any

knowledge of the appellant’s disclosures or complaints about the audits or the

supervisors in Iraq. B-2 RF, Tab 67-4, Hearing Recording (testimony of the PBO

Branch Manager). Moreover, the appellant did not call his temporary PBO

supervisor as a witness. B-2 RF, Tab 27 at 6, Tab 44 at 5. Therefore, we find

that the appellant did not prove contributing factor under the knowledge/timing

test involving the PBO Branch Manager or temporary supervisor. Even if we

consider the alternative method for proving contributing factor, a different

outcome is not warranted. In the absence of any actual or constructive knowledge

by these officials, we cannot conclude that the PBO Branch Manager and/or the

temporary supervisor had a desire or motive to retaliate against the appellant

based on the disclosures identified in this appeal. See Geyer v. Department of

Justice, 70 M.S.P.R. 682, 693 (1996) (noting that disclosures of which an agency

official has neither actual nor constructive knowledge cannot contribute toward

any retaliatory motive on her part), aff’d per curiam, 116 F.3d 1497 (Fed. Cir.

1997) (Table). The burden is on the appellant to prove contributing factor by

21

preponderant evidence, Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R.

615, ¶ 12, aff’d per curiam, 353 F. App’x 435 (Fed. Cir. 2009), and we find that

he has not met his burden under this alternate theory related to the PBO Branch

officials.

We have considered the appellant’s assertion that it was inappropriate for

the administrative judge to apply laches because, among other things, he filed a

motion to impose sanctions based on the agency’s “lies” about the reasons it

could not find documents that he requested during discovery. RPFR File, Tab 1

at 18 (citing B-2 RF, Tab 12). However, we need not resolve the laches issue

because we are addressing the appellant’s claims on the merits. 18

Personnel action (2): failure to receive an annual superior

performance award on July 30, 2007

In the remand initial decision, the administrative judge noted that the

July 2007 nonreceipt of a performance award is a personnel action under 5 U.S.C.

§ 2302(a)(2)(ix), but the appellant did not show who was responsible for issuing

it. RID at 58. In pertinent part, the administrative judge noted that it was likely

that IBO was the responsible office. Id. To the extent that PBO would have been

the office to provide a retroactive award, the administrative judge applied issue

preclusion to the findings that the PBO Branch Manager and the appellant’s

temporary supervisor did not know about the appellant’s disclosures in Iraq; thus,

he did not prove contributing factor under the knowledge/timing test. Id. Even if

the administrative judge conducted an alternative contributing factor analysis, the

agency did not have records from that long ago, he could not evaluate the strength

of the agency’s evidence and doing so would be prejudicial to the agency, and the

18

Because the appellant did not comply with the administrative judge’s orders on

discovery and he did not arrange to meet and confer with the agency following the

February 15, 2024 status conference and before his filed his motion for discovery

sanctions, we conclude that the administrative judge did not abuse his discretion in

denying the appellant’s motion. B-2 RF, Tab 20; see, e.g., Leseman v. Department of

the Army, 122 M.S.P.R. 139, ¶ 6 (2015) (recognizing that, absent an abuse of discretion,

the Board will not reverse an administrative judge’s determination regarding sanctions).

22

appellant deliberately waited until 2015 to file his appeal, which warranted the

application of laches. RID at 58-59; B-1 RF, Tab 38 at 5.

Other than his general assertion regarding the administrative judge’s

decision to apply laches, RPFR File, Tab 1 at 18, the appellant does not

specifically challenge the administrative judge’s findings or conclusion regarding

this personnel action. However, similar to our analysis of the 2007 promotion

appraisal, we find that disclosure (1) was the only disclosure that predated this

personnel action, the appellant proved contributing factor under the

knowledge/timing test as it relates to the IBO RAM, but he did not prove

contributing factor under either theory related to any agency official in the PBO

Branch office.

Personnel action (3): involuntary transfer from Iraq on December 3,

2007

In the remand initial decision, the administrative judge discussed the

appellant’s December 2007 transfer from Iraq and the form email that was sent to

him by the IBO Branch Manager, which explained that, due to decreased work

demand, they were modifying tours for employees who already served their

6-month tours and there was only one case where work could not be “readily

transferred.” RID at 59-62; B-2 RF, Tab 34 at 400. The administrative judge

noted that the appellant testified, among other things, that there was plenty of

workload, more auditors were needed, there were discussions about keeping him

so he could continue to work on the L-3 audit, and one auditor remained after he

left. RID at 60. The administrative judge noted that the decision to keep auditors

in Iraq was made by IBO, primarily the RAM. Id.

As discussed above, the agency did not have any records regarding

employees who worked in Iraq or were sent home from Iraq in 2007. RID at 16;

B-1 RF, Tab 38 at 5. In pertinent part, the administrative judge considered the

alternative contributing factor analysis, he noted that he would have to balance

“what conflicting and disputed evidence remains after the passage of so much

23

time,” and he found that the evidence after such a long period of time was “too

muddled to evaluate.” RID at 61. The administrative judge determined that the

agency was not on notice that it should have retained such records when the

appellant contacted OSC in 2015, eight years later, and it would be inconsistent

with laches to hold that the agency should have retained these records and infer

that these records would have been favorable to the appellant. Id. Thus, the

administrative judge did not make specific findings on contributing factor.

Other than the generic assertions discussed above, the appellant does not

specifically challenge the administrative judge’s analysis of this personnel action.

As noted above, the IBO RAM was involved in the meeting described in

disclosure (1), and he was either the recipient of emails or present for the

teleconference as set forth in disclosures (2)-(4). B-2 RF, Tab 34 at 56, 253-54,

262-63, 265-66. The decision to transfer the appellant out of Iraq occurred a few

weeks to a few months after these disclosures. Therefore, we conclude that the

appellant proved contributing factor under the knowledge/timing test related to

the IBO RAM. For the same reasons discussed above, however, we conclude that

the appellant did not prove that any PBO Branch official had knowledge of his

Iraq disclosures; thus, he has not proven contributing factor under either theory

with respect to those employees.

Personnel actions (4), (5), and (7): downgraded performance

appraisal, revocation of telework agreement, and failure to receive

an annual superior performance award, all of which occurred on

July 30, 2008

The administrative judge noted, and the appellant conceded, that he raised

these personnel actions in an earlier Board appeal, and the administrative judge

found that they were barred by claim preclusion (res judicata) because the above

disclosures could have been, but were not, raised therein. RID at 20-22, 62;

see B-2 RF, Tab 70 at 10 (“I concede [that] the 2008 personnel actions[,]

revocation of telework privileges, unsuccessful performance appraisal, and

superior performance award[,] were part of my earlier Case B claim.”); see also

24

Duggan v. Department of Defense, MSPB Docket No. SF-1221-10-0159-W-1,

Appeal File (0159 AF), Tab 42, Initial Decision (0159 ID). If the personnel

actions were not barred by claim preclusion, the administrative judge

alternatively found that issue preclusion (collateral estoppel) applied with respect

to the knowledge of the PBO Branch Manager and his temporary supervisor about

the Iraq disclosures. RID at 63. The administrative judge noted that the

appellant testified that he did not tell the PBO Branch Manager about his

disclosures or other complaints in Iraq, and he rejected the appellant’s assertion

that the PBO Branch Manager “must have” known about his disclosures because,

among other things, managers talk to each other. Id. The administrative judge

concluded that the appellant did not prove that it was more likely than not that the

PBO Branch Manager knew about his disclosures. Id.

We decline to apply issue preclusion to the PBO Branch Manager’s and the

temporary supervisor’s knowledge of disclosures (1)-(4). See, e.g., Kroeger v.

U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988) (stating that the Board

has discretion to decline to apply collateral estoppel). Additionally, we need not

address the administrative judge’s statements about the applicability of claim

preclusion. Importantly, as noted above, the record in this matter reflects that the

PBO Branch Manager testified that she did not have any knowledge of the

appellant’s disclosures or complaints about the audits or the supervisors in Iraq.

B-2 RF, Tab 67-4, Hearing Recording (testimony of the PBO Branch Manager).

Moreover, the appellant did not call the temporary supervisor as a witness. B-2

RF, Tab 27 at 6, Tab 44 at 5. Therefore, he has not proven knowledge under the

knowledge/timing test.

Even if we consider the alternative method for proving contributing factor,

a different outcome is not warranted. Regarding the strength of the agency’s

evidence, the appellant filed a grievance regarding the 2008 unacceptable

performance appraisal and loss of telework privileges, which the Western Region

RAM sustained. RID at 62; B-2 RF, Tab 38 at 53-73. The favorable decision on

25

the appellant’s grievance undermines the strength of the initial rating and

subsequent decision to revoke telework. However, the appellant’s 2007 Iraq

disclosures were not directed at the PBO Branch Manager or the temporary

supervisor. In the absence of any actual or constructive knowledge by these

officials, we cannot conclude that the PBO Branch Manager or the temporary

supervisor had a desire or motive to retaliate against the appellant based on the

disclosures identified in this appeal. See Geyer, 70 M.S.P.R. at 693. We have

considered the other factors, but we conclude that the appellant has not proven

contributing factor under the alternative theory related to these personnel actions.

Personnel actions (6) and (10): Downgraded annual promotion

appraisals, July 30, 2008, and “July 30, 2009, but dated

25 September 2009.”

Like personnel action (1), the administrative judge determined that the

Board lacks jurisdiction over personnel actions (6) and (10) involving promotion

appraisals. RID at 64. Alternatively, the administrative judge found that the

appellant “raised” these personnel actions in the 0159 appeal and that they were

barred by claim preclusion. 19 Id. (citing 0159 ID at 12-14). The administrative

judge also found that the PBO Branch Manager and his temporary supervisor in

2008, whom the administrative judge determined had a role in these promotion

appraisals, testified in the 0159 appeal that they did not know about the

appellant’s disclosures and the testimony of these agency officials was entitled to

preclusive effect. 20 Id. Finally, the administrative judge noted that the PBO

Branch Manager testified that she did not know about the appellant’s disclosures

in Iraq, so he would find that the appellant did not prove contributing factor. Id.

19

We disagree with the administrative judge that, as a factual matter, the 2008 and 2009

promotion appraisals were raised in the 0159 appeal. Rather, it appears that the

appellant challenged therein a downgrade of an August 2003 promotion appraisal.

See, e.g., 0159 AF, Tab 41 at 7 (asserting, in his closing brief, that his August 2003

downgraded promotion appraisal constituted a personnel action); 0159 ID at 13-14

(discussing the testimony of the appellant’s second-level supervisor in 2003 regarding

his review of the promotion appraisal). We modify the remand initial decision in this

regard.

26

For the same reasons as set forth in our evaluation of personnel action (1),

we agree with the administrative judge that a promotion appraisal is not a

personnel action. Alternatively, even if we determined that it was a personnel

action, the appellant has not met his burden to prove contributing factor.

Although we decline to apply issue preclusion, the PBO Branch Manager testified

that she did not have knowledge of the appellant’s disclosures, and the appellant

did not call the temporary supervisor as a witness. Therefore, he has not proven

contributing factor under the knowledge/timing test. Moreover, in the absence of

any actual or constructive knowledge on the part of the PBO Branch Manager or

the temporary supervisor, we do not find that there was a motive to retaliate, and

we conclude, as we did above, that the appellant did not satisfy the alternative

contributing factor analysis related to these personnel actions.

Personnel actions (8) and (9): Downgraded annual performance

evaluation, “July 30, 2009[,] but dated September 29, 2009,” and

failure to receive an annual superior performance award, July 30,

2009

In the remand initial decision, the administrative judge found that the

appellant did not prove knowledge or contributing factor. RID at 64-65.

In pertinent part, the administrative judge credited the testimony of the RAM that

he did not know about the appellant before assuming responsibility for the PBO

and he did not know about any of the appellant’s disclosures in Iraq. RID at 65.

The administrative judge rejected as speculative the appellant’s assertion that all

managers talk and they must have known about his disclosures, and he noted that

the appellant’s speculation was inconsistent with the sworn testimony of such

agency officials. Id. The appellant does not specifically challenge the

administrative judge’s analysis in this regard on review. Therefore, we affirm the

20

We understand the administrative judge to mean that the administrative judge’s

findings in the 0159 appeal on knowledge were entitled to preclusive effect under issue

preclusion or collateral estoppel. However, for the reasons described above, we decline

to apply collateral estoppel to this finding.

27

administrative judge’s findings regarding contributing factor related to these

personnel actions.

Conclusion

For the reasons stated herein, we find that the appellant met his burden to

prove that disclosure (1) was a contributing factor in the IBO RAM’s decision to

take or not to take personnel actions (1)-(3) and disclosures (2)-(4) were a

contributing factor in the IBO RAM’s decision to take personnel action (3). We

also find that the appellant did not prove contributing factor involving any PBO

Branch official under either theory. Because the appellant only proved

contributing factor regarding the IBO RAM and personnel actions (1)-(3), we now

evaluate whether the agency has proved by clear and convincing evidence that it

would have taken these personnel actions absent the appellant’s protected

disclosures.

We find that the agency proved by clear and convincing evidence that it would

have taken personnel actions (1)-(3) in the absence of the appellant’s protected

disclosures. 21

In determining whether an agency has met its burden, the Board will

consider all relevant factors, including the following (“Carr” factors): (1) the

strength of the agency’s evidence in support of its action; (2) the existence and

strength of any motive to retaliate on the part of the agency officials who were

involved in the decision; and (3) any evidence that the agency takes similar

actions against employees who do not engage in such protected activity, but who

are otherwise similarly situated. Soto, 2022 MSPB, 6, ¶ 11; see also Carr v.

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board

does not view the Carr factors as discrete elements, each of which the agency

must prove by clear and convincing evidence, but rather weighs these factors

together to determine whether the evidence is clear and convincing as a whole.

21

Clear and convincing evidence is the measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be established.

5 C.F.R. § 1209.4(e). It is a higher standard than preponderant evidence. Id.

28

Soto, 2022 MSPB 6, ¶ 13. The Carr factors are nonexclusive, meaning other

relevant facts may be considered. Miller v. Department of Justice, 842 F.3d

1252, 1257 (Fed. Cir. 2016).

Personnel action 1: Failure to issue a promotion appraisal on

July 30, 2007 22

We have considered the strength of the agency’s evidence. For example,

there was testimony that promotion appraisals were typically completed at the end

of the performance cycle, when the performance appraisals were being done. B-2

RF, Tab 67-4, Hearing Recording (testimony of the PBO Branch Manager). The

PBO Branch Manager explained that the performance appraisal looks at the

employee’s past work, whereas the promotion appraisal (sometimes called the

promotion potential) is the supervisor’s estimation of the employee’s promotion

potential going forward. Id.

The record reflects that the appellant received from the PBO an

overall Exceeds Fully Successful rating for the period covering July 1, 2006, to

June 30, 2007, and Outstanding appraisals from the IBO for the period covering

February 15 to June 30, 2007, and July 1 to December 1, 2007. B-2 RF, Tab 34

at 138-45, 174-77. Because the IBO RAM had passed away at the time the

appellant filed his OSC complaint in 2015, and the agency no longer had any

records related to the 2007 “performance evaluations or appraisals” or “records

related to employees working in . . . Iraq,” B-1 RF, Tab 38 at 5, there was no

direct or circumstantial evidence as to why the 2007 promotion appraisal was not

issued. The record also reflects that the appellant received promotion appraisals

prior to and following the 2007 appraisal year. B-2 RF, Tab 34 at 159-63. In the

absence of any evidence to explain why the agency did not issue a promotion

22

The administrative judge concluded that it would be prejudicial under laches to

require the agency to attempt to prove that it would not have issued the 2007 promotion

appraisal despite any protected disclosures. RID at 58. Because we decline to address

laches, we are deciding this issue on the merits.

29

appraisal to the appellant in or around July 2007, we conclude that this factor

weighs slightly in the appellant’s favor.

Regarding motive to retaliate, we have found that “[t]hose 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.” Wilson, 2022 MSPB 7, ¶ 65

(quoting Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir.

2012)); Smith, 2022 MSPB 4, ¶¶ 28-29 (same). We acknowledge the appellant’s

assertion that, because his disclosures implicated agency management, the IBO

RAM had a motive to retaliate against him. RPFR File, Tab 1 at 17; B-2 RF,

Tab 70 at 12. Importantly, there is no direct evidence of the IBO RAM’s intent

because, as noted above, he passed away and the agency no longer had any

documentation related to the promotion appraisal. However, there is ample

circumstantial evidence that the IBO RAM did not have any motive to retaliate—

personal or professional—against the appellant. Indeed, the IBO RAM was the

reviewer and concurred in the appellant’s Outstanding appraisals during the

relevant time frame. See, e.g., B-2 RF, Tab 34 at 142-45, 174-77.

The earlier appraisal covered the time from February 15, to June 30, 2007.

B-2 RF, Tab 34 at 142-45. In that appraisal, the appellant was described as

“perform[ing] at a very high level of competence on some very complicated

issues,” “[his] audit steps are now being used as the basis for several other highly

visible audits here at IBO,” and his work on the L-3 linguist audits was

“performed outstandingly and resulted in positive feedback for both the [Field

Audit Office] and [the appellant].” Id. at 144. This appraisal also reflected that

the appellant’s request for a 90-day extension in Iraq was approved. Id. at 145.

The latter appraisal covered the time period from July 1 to December 1, 2007, and

included the timeframe when the agency should have issued the 2007 promotion

appraisal to the appellant. Id. at 174-77. In that appraisal, the appellant was

rated Outstanding in all of the elements related to his audit performance work,

30

with the appraisal noting that the appellant worked on “the most difficult

assignments” involving L-3 and that his work “resulted in the contractor

admitting it had mistakes in its submissions to the [G]overnment,” which “led to

an early alert notification that has resulted in the contractor adhering to the

requirements in the contract.” Id. at 176. Given his consistently Outstanding

ratings during his time in IBO and the overlap with the relevant time frame for

issuing the 2007 promotion appraisal, it strains credulity that the IBO RAM

would have concurred on such appraisals and, at the same time, harbored any

motive to retaliate against the appellant. Therefore, we find that this Carr factor

weighs in the agency’s favor.

Regarding similarly situated individuals, the agency did not provide

evidence responsive to this Carr factor. We conclude that this factor does not

weigh in the agency’s favor. See, e.g., Smith, 2022 MSPB 4, ¶ 30; see also

Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018)

(“[In the] absence of relevant comparator evidence, the third Carr factor cannot

favor the government.”); Miller, 842 F.3d at 1262 (“[T]he court may not simply

guess what might happen absent whistleblowing. The burden lies with the

Government.”).

Under the unusual circumstances of this case, particularly the appellant’s

delay in filing his OSC complaint and Board appeal and the resulting absence of

relevant documentation to explain why a promotion appraisal was not issued, we

find that our analysis of the three Carr factors does not provide for adequate

consideration of whether the agency proved by clear and convincing evidence that

it would have not issued the 2007 promotion appraisal in the absence

of disclosure (1). We have considered the totality of the circumstances.

See Smith v. General Services Administration, 930 F.3d 1359, 1365 (Fed. Cir.

2019) (stating the U.S. Court of Appeals for the Federal Circuit has held that the

Carr factors are “nonexclusive”); Miller, 842 F.3d at 1257 (same). Based on the

appellant’s stellar performance appraisals during the relevant time frame, and the

31

fact that he received promotion appraisals both prior to and following the 2007

appraisal year, we are left with a firm belief that the agency’s failure to issue to

the appellant a promotion appraisal in July 2007 was not due to reprisal for

disclosure (1).

Personnel action 2: failure to receive an annual superior

performance award on July 30, 2007

Here, too, disclosure (1) was the only disclosure that predated this

personnel action. We find that the strength of the agency’s evidence favors the

appellant, particularly because of his consistently high ratings and the fact that a

performance award would appear to be directly tied to his performance appraisal.

Our analysis of the agency’s motive to retaliate and its treatment of similarly

situated nonwhistleblowers, discussed above in relation to the 2007 promotion

appraisal, applies to this personnel action as well. Ultimately, we have

considered the totality of the circumstances. Smith, 930 F.3d at 1365; Miller,

842 F.3d at 1257 (same). We are left with a firm belief that the failure to issue to

the appellant a performance award in July 2007 was not taken in reprisal for

disclosure (1).

Personnel action 3: involuntary transfer from Iraq on December 3,

2007

On November 2, 2007, the appellant was advised by email that the agency

had to make “some staffing adjustments primarily due to the fact that the demand

work [was] not coming in currently at the rate [that was] planned,” and, in order

“to balance the available staff with [their] current audit workload,” the agency

“need[ed] to modify some of [the] extended tours” for some employees. B-2 RF,

Tab 34 at 400. The agency noted that “[a]ll of the personnel involved [were] on

extended tours” and “already served out their original six month tour as originally

committed.” Id. The agency explained that, to decide which extended tours

would be modified, the agency considered the type of work that auditors were

currently performing and whether that work could be reasonably performed by

32

someone else, and the agency determined that there was only case in which work

could not be transferred to another auditor. Id. The agency stated that it

identified six individuals who only had a few months left on their extended tour

and the decision was “based primarily on the longevity of the extended tour.” Id.

The appellant testified that the email was a “form” email that was sent to him and

other auditors who were sent home at the same time. B-2 RF, Tab 66-4, Hearing

Recording (testimony of the appellant). As noted above, the agency stated in a

declaration made under penalty of perjury that it had no records from 2007

“related to employees working in or sent home from Iraq.” B-1 RF, Tab 38 at 5.

Regarding the strength of the agency’s evidence, the agency’s stated

reasons for transferring the appellant and other auditors out of Iraq—decreased

workload, the transferability of work to another auditor, and the longevity of an

employee’s tour—constitute strong evidence in favor of the agency’s action. We

have considered the appellant’s assertion that sending him home was like

“benching Steph Curry,” B-2 RF, Tab 65-5, Hearing Recording (testimony of the

appellant), which we understand to mean that the agency’s decision to transfer

him was a poor choice. We have also considered the appellant’s citation to a

Wikipedia entry for the Gansler report, which he stated contradicted the agency’s

rationale for transferring him out of Iraq. 23 B-2 RF, Tab 70 at 12 (discussing B-2

RF, Tab 34 at 402-04). The administrative judge discussed this evidence in the

remand initial decision. RID at 61 n.28. In pertinent part, the administrative

judge took official notice of the full report and determined that it did not support

the appellant’s position that there needed to be more auditors. Id. However, even

if the report suggested that the agency should deploy more auditors generally, it

was not relevant to determining whether the appellant, in particular, should have

remained in Iraq. Id. We discern no error with the administrative judge’s

23

Although it is the agency’s burden to prove by clear and convincing evidence that it

would have taken the same personnel actions absent the appellant’s protected

disclosures, we have considered the appellant’s assertions in our analysis of these

issues.

33

reasoning in this regard. On the whole, we find that the limited evidence in the

record favors the agency on this Carr factor.

Regarding motive to retaliate, in addition to the circumstantial evidence

discussed above, regarding his performance appraisals during this time frame, the

record reflects that the appellant’s Iraq tour was extended three times, including a

90-day extension around July 2007, which was around the time that he made

disclosure (1). B-2 RF, Tab 66-4, Hearing Recording (testimony of the

appellant); see B-2 RF, Tab 34 at 145. Importantly, the appellant testified that

the agency “extended [him] for 35 days after [his] whistleblowing.” B-2 RF,

Tab 66-4, Hearing Recording (testimony of the appellant). Here, too, it strains

credulity to find that the IBO RAM harbored any retaliatory animus against the

appellant when he extended his tour several times, including after he made

protected disclosures. We therefore find that this Carr factor favors the agency.

Regarding similarly situated individuals, the administrative judge noted

that an auditor who came to Iraq when the appellant was leaving requested to

extend his deployment but that the request was denied because there were enough

people coming in the next group. RID at 60. Additionally, the administrative

judge noted that the appellant testified that at least two other auditors who had

been in Iraq with him returned around the same time. Id. However, there was no

information about whether any other auditors were whistleblowers. For the same

reasons as discussed above, we find that this Carr factor cannot weigh in the

agency’s favor.

Based on our review of the relevant Carr factors, we find that the agency

proved by clear and convincing evidence that it would have transferred him out of

Iraq absent his protected disclosures.

Conclusion

For the reasons stated herein, we conclude that the agency proved by clear

and convincing evidence that it would have taken personnel actions (1)-(3) even

34

in the absence of disclosures (1)-(4). Accordingly, the appellant is not entitled to

corrective action.

The appellant’s remaining assertions do not warrant a different outcome.

In the remand initial decision, the administrative judge found that the

Board does not have jurisdiction over 2009 and 2010 promotions for which the

appellant was not selected because, among other things, the appellant did not

raise these actions with OSC and did not object to the administrative judge’s

findings on the personnel actions before him, which did not include these

nonselections. RID at 53-54. The administrative judge alternatively found that

the appellant did not present specific evidence on these promotions. RID at 54.

On review, the appellant challenges the administrative judge’s conclusion that he

did not raise the agency’s failure to promote him in 2009 and 2010, stating that he

gave “everything” to OSC, but OSC was “so disorganized” that “it mixed up [his]

cases.” RPFR File, Tab 1 at 16. Importantly, the appellant did not object to the

administrative judge’s recitation of the personnel actions at issue in this appeal,

which did not include any alleged nonselections in 2009 and 2010. RID at 53-54;

B-1 RF, Tab 26 at 4-5, Tab 27 at 4-7. Because the appellant did not challenge the

administrative judge’s summary of the relevant personnel actions in this regard,

we need not analyze whether the appellant presented any specific evidence

regarding these nonselections.

The appellant also asserts on review that the administrative judge did not

give any weight to Congressional reports, reports from the Government

Accountability Office (GAO) and the Department of Defense, and news articles

that DCAA “was failing in its most core responsibilities,” and that the

administrative judge failed to consider that DCAA did not have an approved peer

review of its quality control system as required by GAGAS. RPFR File, Tab 1

at 18-19. These assertions are not persuasive. First, the administrative judge

identified GAO and other media reports, but he noted that they were not entitled

to any weight because he did not have authority in an IRA appeal to determine

35

whether the agency was doing a good job. RID at 52 n.23. The administrative

judge noted that evidence of broader issues may be relevant to whether there was

an institutional motive to retaliate, but he determined that it would be

inappropriate to evaluate the entire DCAA management structure for the purposes

of adjudicating this appeal. Id. We discern no error with the administrative

judge’s analysis in this regard. Indeed, the appellant does not assert that any of

these reports or articles discuss wrongdoing by any agency officials identified in

the remand initial decision as being involved in any alleged personnel actions,

which could be relevant to a potential motive to retaliate under Carr factor 2.

Moreover, the remand initial decision reflects that the administrative judge

referenced an August 26, 2009 Memorandum, which notified employees that the

agency’s quality control system had expired and required them to use a modified

GAGAS statement in this regard. RID at 20; B-2 RF, Tab 34 at 713-14.

We have also considered the appellant’s claim of administrative judge bias.

RPFR File, Tab 1 at 19. In making a claim of bias or prejudice against an

administrative judge, a party must overcome the presumption of honesty and

integrity that accompanies administrative adjudicators . Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980). Additionally, an administrative

judge’s conduct during the course of a Board proceeding warrants a new

adjudication only if the administrative judge’s comments or actions evidence “a

deep-seated favoritism or antagonism that would make fair judgment impossible.”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The appellant has

presented no such evidence.

36

NOTICE OF APPEAL RIGHTS 24

The remand initial decision, as supplemented by this Final Order,

constitutes the Board’s 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 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).

24

Since the issuance of the remand 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.

37

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

38

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

39

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. 25 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

25

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.

40

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.