stating that a nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8)
How later courts described this case
- stating that a nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8)
- recognizing the limited scope of IRA appeals, including the limitation that the Board only has IRA jurisdiction over EEO activity covered by 5 U.S.C. § 2302 (b)(9)(A)(i), meaning it seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302 (b)(8)
- stating that the Board has IRA jurisdiction over claims of reprisal for equal employment opportunity (EEO) activity seeking to remedy whistleblower reprisal
- finding that an appellant’s vague and nonspecific allegations of disclosures of wrongdoing were insufficient to constitute nonfrivolous allegations
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 4
Docket No. PH-1221-16-0256-W-1
Renate M. Gabel,
Appellant,
v.
Department of Veterans Affairs,
Agency.
January 11, 2023
Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant.
Alison M. Debes, Philadelphia, Pennsylvania, for the agency.
Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth in this Opinion and Order, we AFFIRM the initial decision
and DISMISS the appeal for lack of jurisdiction.
BACKGROUND
¶2 The appellant was a Licensed Practical Nurse in the agency’s Community
Based Outpatient Clinic in Gloucester, New Jersey. Initial Appeal File (IAF),
2
Tab 1 at 1, Tab 9 at 9. On or about August 27, 2015, she filed a complaint with
the Office of Special Counsel (OSC) alleging that the agency retaliated against
her for making protected disclosures under 5 U.S.C. § 2302(b)(8) and engaging in
protected activity under 5 U.S.C. § 2302(b)(9)(A). IAF, Tab 1 at 8, Tab 8
at 10-31. On February 16, 2016, OSC issued the appellant a close-out letter
informing her that it was closing the file on her complaint and advising he r of her
right to file a Board appeal. IAF, Tab 1 at 6-7. This appeal followed. Id. at 1.
¶3 The administrative judge issued an order explaining the appellant’s burden
to establish jurisdiction over an IRA appeal and ordering her to submit evidence
and argument supporting her claim. IAF, Tab 5. The appellant responded, IAF,
Tabs 8-10, and the administrative judge issued an initial decision without holding
the requested hearing, dismissing the appeal for lack of jurisdiction, IAF, Tab 12,
Initial Decision (ID). She found that the appellant failed to make a nonfrivolous
allegation that she made a protected disclosure or otherwise engaged in protected
activity. ID at 6-12. She then found, in the alternative, that the appellant failed
to make a nonfrivolous allegation that any of her supposed protected disclosures
or her alleged protected activity was a contributing factor in any of the personnel
actions taken against her. ID at 12-15.
¶4 The appellant has filed a petition for review, and the agency has responded
in opposition. Petition for Review (PFR) File, Tabs 1-2, 5.
ANALYSIS 1
¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the
Board has jurisdiction over an IRA appeal if the appellant has exhausted h er
1
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
3
administrative remedies before OSC, 2 and makes nonfrivolous allegations that
(1) she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the
protected disclosure or activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The
Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 3 As the U.S.
Court of Appeals for the Federal Circuit recently put it: “[T]he question of
whether the appellant has non-frivolously alleged protected disclosures [or
activities] that contributed to a personnel action must be determined based on
whether the employee alleged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Hessami v. Merit Systems Protection Board,
979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). 4
2
Here, the administrative judge found, and we agree, that the appellant met her burden
of establishing that she exhausted her administrative remedies before OSC. ID at 5;
IAF, Tab 8 at 10-31.
3
The regulation further provides that an allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation
that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the
legal issues in the appeal. 5 C.F.R. § 1201.4(s). Pro forma allegations are insufficient
to meet the nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6
(2016), aff’d per curium, 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other
grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20 n. 11.
4
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510), appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
4
The appellant failed to nonfrivolously allege that she made a protected disclosure.
¶6 A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 8 (2013). The test to
determine whether a putative whistleblower has a reasonable belief in the
disclosure is an objective one: whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainabl e by the employee could
reasonably conclude that the actions of the agency evidenced a violation of law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safet y. Salerno,
123 M.S.P.R. 230, ¶ 6. The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Id.; see El v. Department of Commerce, 123 M.S.P.R.
76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board’s jurisdiction over an IRA appeal), aff’d, 663 F.
App’x 921 (Fed. Cir. 2016).
¶7 Here, the appellant alleged in her OSC complaint that the agency
discriminated against her based on her disability and engaged in a pattern of
abuse concerning her requests for leave under the Family and Medical Leave Act
of 1993 (FMLA) and requests for reasonable accommodation. IAF, Tab 8
at 27-31. She vaguely claimed that she attempted to bring this wrongdoing to her
supervisors’ attention from October 2014 through August 27, 2015, the date she
filed her OSC complaint. Id. at 29. As the administrative judge noted, however,
the appellant failed to provide with any specificity the content of her alleged
disclosures, to whom they were made, the dates they were made, or how they
were made. ID at 6; IAF, Tab 8 at 27-31. After considering the evidence and
argument in a light most favorable to the appellant, the administrative judge
5
concluded that the appellant failed to raise a nonfrivolous allegation that she
disclosed a matter that a reasonable person in her position would believe
evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8).
ID at 6-12. Specifically, she found that a disinterested observer with knowledge
of the essential facts known to and readily ascert ainable by the appellant
would not reasonably conclude that the agency’s actions evidenced gross
mismanagement or an abuse of authority. ID at 11. She further found that the
appellant failed to nonfrivolously allege that the agency’s actions created a
substantial risk of significant adverse impact upon its ability to accomplish its
mission or reflected the arbitrary or capricious exercise of power . Id. We agree
that the appellant’s vague and nonspecific allegations of disclosures of
wrongdoing are insufficient to constitute nonfrivolous allegations of protected
disclosures. 5 See Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489,
¶ 27 (2015) (explaining 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 himself or to preferred other persons), aff’d, 652 F. App’x 971 (Fed.
Cir. 2016); Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996)
(defining “gross management” as a management action or inaction that creates a
substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission).
5
Subsequent to the issuance of the initial decision, the Federal Circuit held that the
Board “may not deny jurisdiction by crediting the agency’s interpretation of the
evidence as to whether the alleged disclosures fell within the protected categories or
whether the disclosures were a contributing factor to an adverse personnel action .”
Hessami, 979 F.3d at 1369. Although the administrative judge here discussed the
agency’s evidence and arguments regarding the appellant’s FMLA requests, ID at 7-10,
insofar as the appellant’s allegations regarding her purported disclosures related thereto
were vague and facially insufficient irrespective of the agency’s evidence and
argument, this discussion was harmless and a different outcome is not warranted, IAF,
Tab 8 at 27-31; see El, 123 M.S.P.R. 76, ¶ 6.
6
The appellant failed to nonfrivolously allege that she engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A).
¶8 The Board only has IRA jurisdiction over equal employment opportunity
(EEO) activity covered by 5 U.S.C. § 2302(b)(9)(A)(i), meaning it seeks to
remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8)). Edwards v.
Department of Labor, 2022 MSPB 9, ¶¶ 24-25; Mudd, 120 M.S.P.R. 365, ¶¶ 6-7
(explaining that filing a grievance, which does not itself seek to remedy
whistleblower reprisal, does not grant IRA jurisdiction under the WPEA). Here,
the appellant alleged that she filed an EEO complaint with the agency allegin g
discrimination and retaliation, and that the agency retaliated against her as a
result. IAF, Tab 8 at 6, Tab 9 at 19-40. However, the appellant did not allege
that the substance of her EEO complaint concerned remedying a violation of
5 U.S.C. § 2302(b)(8). IAF, Tab 9 at 19-40. Therefore, we agree with the
administrative judge that the Board lacks jurisdiction to consider her allegations
of reprisal for her EEO complaint in the context of this IRA appeal. ID at 12; see
Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020)
(explaining that the Board lacks jurisdiction in an IRA appeal over claims of
reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)). Because we
find that the appellant failed to nonfrivolously allege that she made a protected
disclosure or otherwise engaged in protected activity for which an IRA appeal is
authorized by the statute, she cannot meet her burden on jurisdiction and the
administrative judge properly dismissed the appeal for lack of jurisdiction. See
Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016)
(holding that the administrative judge correctly dismissed the IRA appeal for lack
of jurisdiction when the appellant failed to make nonfrivolous allegations that he
made protected disclosures or otherwise engaged in protected activity appealable
to the Board as an IRA appeal).
7
The appellant’s arguments and submissions on review fail to provide a reason to
disturb the initial decision.
¶9 On review, the appellant asserts that the agency engaged in discrimination,
retaliation, and “abuses of authority and gross mismanagement in connection with
requests for FMLA leave,” PFR File, Tab 1 at 5, and she attaches alleged new
evidence in an effort to prove her assertions, PFR File, Tab 1 at 18-59, Tab 2.
Although the appellant’s argument and submissions outline in great detail the
alleged pattern of abuses she claims the agency took against her and her
coworkers, PFR File, Tab 1 at 5-17, she has not challenged the administrative
judge’s findings that she failed to nonfrivolously allege that she made protected
disclosures or otherwise engaged in protected activity appealable to the Board.
The appellant, therefore, has provided no basis to disturb the administrative
judge’s finding that she failed to make a nonfrivolous allegation of jurisdiction.
See Graves, 123 M.S.P.R. 434, ¶ 22; Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision). In the absence of
Board jurisdiction, we lack the authority to review the merits of the appellant’s
allegations concerning the agency actions taken against her and her coworkers.
Accordingly, we affirm the initial decision.
ORDER
¶10 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
8
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
10
to waiver of any requirement of prepayment of fees, costs, or other secur ity. 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 deliver y 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 Protectio n
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
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
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.