Mark Abernathy v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 37

Docket No. DC-1221-14-0364-W-1

Mark Abernathy,

Appellant,

v.

Department of the Army,

Agency.

November 15, 2022

Mark Abernathy, Hermitage, Tennessee, pro se.

Tracy A. Allred, APO, AE, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has petitioned for review of an initial decision that dismissed

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

has cross-petitioned for review. For the reasons that follow, we GRANT the

appellant’s petition for review, DENY the agency’s cross petition for review,

VACATE the initial decision, and REMAND the appeal for further adjudication

consistent with this Opinion and Order.

2

BACKGROUND

¶2 The appellant worked for the agency as a contractor. Initial Appeal File

(IAF), Tab 1 at 15. In August 2012, he filed a complaint with the agency’s Office

of Inspector General (OIG) alleging that agency officials had misappropriated

funds. IAF, Tab 6 at 3. Later in 2012, he learned that he was not being selected

for a position with the agency. 1 IAF, Tab 1 at 15. The appellant filed a

complaint with the Office of Special Counsel (OSC) alleging that his nonselection

was in reprisal for his protected disclosure to OIG. 2 Id. at 11-24. After OSC

informed the appellant of the results of its investigation he filed this IRA appeal.

IAF, Tab 1 at 1-5, 25-27.

¶3 In response to a show cause order issued by the administrative judge, the

agency argued that the Board lacks jurisdiction over the appeal. IAF, Tab 10.

The agency argued that the appellant’s disclosure was not protected under

5 U.S.C. § 2302(b)(8) because he was neither an employee, nor an applicant, at

the time he made it. IAF, Tab 10 at 6. The agency also argued that the failure to

refer the appellant to the selecting official for the position in question was not a

“personnel action” that could form the basis of an IRA appeal. Id. at 7.

¶4 The administrative judge issued an initial decision dismissing the appeal for

lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She rejected the

agency’s argument regarding the nonreferral to the selecting official, finding that

the appellant had alleged a failure to appoint him, which is a personnel action

1

Both the agency and the administrative judge stated that the open period for this

vacancy announcement was in September 2014. IAF, Tab 10 at 6, Tab 11, Initial

Decision at 3. However, this was a typographical error. The vacancy announcement

reflects that it was actually open in September 2012. IAF, Tab 10 at 11.

2

The appellant indicated in his initial appeal that he filed his OSC complaint in

April 2013, IAF, Tab 1 at 5, but it appears that he actually filed it in December 2012,

see id. at 21-22 (OSC complaint form dated December 12, 2012), or January 2013, see

id. at 25 (OSC letter indicating that the complaint was received on January 3, 2013).

Nonetheless, the exact filing date has no bearing on our decision.

3

under 5 U.S.C. § 2302(a). ID at 5-6. However, she agreed with the agency that

the appellant’s disclosure to OIG was not protected because he was not an

employee or applicant at the time he made it. ID at 6.

¶5 The appellant has filed a timely petition for review of the initial decision.

Petition for Review (PFR) File, Tab 1. He argues that the administrative judge’s

interpretation of the statutory language, under which an individual must be

an employee or applicant at the time of his disclosure to qualify for protection

against reprisal, greatly limits the protections available to applicants. Id. at 4.

The agency has responded in opposition to the petition for review. PFR File,

Tab 3. The agency has also cross-petitioned for review, arguing that the

administrative judge erred in finding that the appellant alleged a covered

personnel action. Id. at 6.

¶6 After the close of the record on review, the Board invited interested parties

to submit amicus briefs addressing whether disclosures made when an individual

is neither a Federal employee, nor an applicant for Federal employment, are

protected under the Whistleblower Protection Act of 1989 (WPA) , Pub. L.

No. 101-12, 103 Stat. 16, and the Whistleblower Protection Enhancement Act of

2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. Notice of Opportunity to

File Amicus Briefs, 81 Fed. Reg. 2913 (Jan. 19, 2016); PFR File, Tab 6. Four

individuals and entities, including OSC, have filed briefs in res ponse. PFR File,

Tabs 7-10. 3 OSC subsequently requested and received permission to file an

additional pleading. PFR File, Tabs 12, 14. In its additional pleading, OSC

argues that a provision of the National Defense Authorization Act for Fiscal

Year 2018 (2018 NDAA), Pub. L. No. 115-91, 131 Stat. 1283, resolved the

question on which the Board invited amicus briefs by specifically providing that a

disclosure made before an individual was appointed to a position or applied for

3

Amicus briefs were received from OSC, the National Employment Lawyers

Association, Walsh & Son, LLP, and Peter Broida.

4

appointment may be protected. PFR File, Tab 15. The Board gave the parties an

opportunity to respond to OSC’s additional pleading, PFR File, Tab 14, but

neither party did so.

ANALYSIS

¶7 To establish the Board’s jurisdiction over this IRA appeal, the appellant

must have exhausted his administrative remedies before OSC and make

nonfrivolous allegations that: (1) he made a disclosure protected under 5 U.S.C.

§ 2302(b)(8); and (2) the disclosure 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). Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002). 4

There is no dispute that the appellant exhausted his administrative r emedies

before OSC. IAF, Tab 1 at 11-27. For the reasons set forth below, we find that

the appellant has also made the required nonfrivolous allegations to establish

jurisdiction over his IRA appeal.

The appellant has nonfrivolously alleged that he made a protected disclosure

under 5 U.S.C. § 2302(b)(8).

¶8 At the time all of the material events in this matter occurred, 5 U.S.C.

§ 2302(b)(8) protected:

(A) any disclosure of information by an employee or applicant which

the employee or applicant reasonably believes evidences —

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health

or safety,

4

All of the material events in this matter occurred before the expansion of IRA appeal

rights in the WPEA took effect on December 27, 2012. WPEA, Pub. L. No. 112-199,

§ 202, 126 Stat. 1465, 1476; Colbert v. Department of Veterans Affairs, 121 M.S.P.R.

677, ¶ 6 (2014). Thus, in this case, we will apply the pre-WPEA standards concerning

the scope of an IRA appeal. See Scoggins v. Department of the Army, 123 M.S.P.R.

592, ¶ 7 (2016); Colbert, 121 M.S.P.R. 677, ¶¶ 6-7.

5

if such disclosure is not specifically prohibited by law and if such

information is not specifically required by Executive order to be kept

secret in the interest of national defense or the conduct of foreign

affairs; or

(B) any disclosure to the Special Counsel, or to the Inspector

General of an agency or another employee designated by the head of

the agency to receive such disclosures, of information which the

employee or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health

or safety[.]

5 U.S.C.A. § 2302(b)(8) (2008). 5 The question before us is whether, under that

provision, the Board may have jurisdiction to consider the appellant’s

whistleblower reprisal claim even though he was not a Federal employee or

applicant for employment at the time he made his disclosure.

¶9 In Greenup v. Department of Agriculture, 106 M.S.P.R. 202, ¶¶ 8-9 (2007),

the Board found that it had jurisdiction over the appellant’s claim that the agency

failed to select her for a position in retaliation for disclosures she made when she

was neither an employee nor an applicant. The Board in Greenup quoted the

language of 5 U.S.C. § 2302(b)(8)(A), including the reference to a “disclosure of

information by an employee or applicant,” but nevertheless found that the statute

does not specify that the disclosure must have been made when the individual

seeking protection was either an employee or an applicant for employment.

Greenup, 106 M.S.P.R. 202, ¶ 8. In Weed v. Social Security Administration,

113 M.S.P.R. 221, ¶¶ 8-12 (2010), the Board again held that, at the time of

5

The WPEA amended the definition at 5 U.S.C. § 2302(b)(8)(A)(i) by striking “a

violation” and inserting “any violation,” and it amended 5 U.S.C. § 2302(b)(8)(B)(i) by

striking “a violation” and inserting “any violation (other than a violation of this

section).” WPEA, Pub. L. No. 112-199, § 101(a)(1), 126 Stat. 1465. We find that these

amendments do not change the result in this case. See Mudd v. Department of Veterans

Affairs, 120 M.S.P.R. 365, ¶ 5 n.3 (2013).

6

making a disclosure, an individual need not be an employee or applicant for

employment at the agency that took the alleged retaliatory action in order to

qualify for protection under the WPA as a whistleblower. The Board cited its

prior holding in Greenup in support of its holding in Weed. Id., ¶ 12.

¶10 In this case, the Board requested amicus briefs addressing whether it should

reconsider its precedent in light of an apparent conflict with three nonprecedential

cases by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). 6

The amici unanimously urged the Board to follow its existing precedent.

PFR File, Tab 7 at 2-3, Tab 8 at 7-16, Tab 9 at 4-6, Tab 10 at 22. Having

considered the submissions of the parties and amici, we see no re ason to overrule

our precedent in Greenup and Weed. Under that precedent, the appellant’s

disclosures are not excluded from whistleblower protection simply because

he was neither a Federal employee, nor an applicant for employment, when he

made them. We stress that this holding is not limited to Federal contractors, but

6

Specifically, the Board observed that Greenup and Weed appear to conflict with the

Federal Circuit’s decisions in Nasuti v. Merit Systems Protection Board, 376 F. App’x

29, 33-34 (Fed. Cir. 2010); Guzman v. Office of Personnel Management, 53 F. App’x

927, 929 (Fed. Cir. 2002); and Amarille v. Office of Personnel Management,

28 F. App’x 931, 933 (Fed. Cir. 2001). However, nonprecedential decisions of the

Federal Circuit are not binding on the Board. Weed v. Social Security Administration,

110 M.S.P.R. 468, ¶ 11 (2009). Further, under 5 U.S.C. § 7703(b)(1)(B):

A petition to review a final order or final decision of the Board that 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 (b)(9)(A)(i), (B), (C), or (D) shall be

filed in the [Federal Circuit] or any court of appeals of competent

jurisdiction.

Thus, it is possible that the Board’s decision in such a case would be reviewed not by

the Federal Circuit, but instead by a different court of appeals. Chambers v.

Department of Homeland Security, 2022 MSPB 8, ¶ 10 n.6.

7

applies to any individual who makes a whistleblowing disclosure at any time

before becoming a Federal employee or applicant for employment. 7

¶11 In its additional pleading, OSC argues that a provision in the NDAA for

Fiscal Year 2018 (2018 NDAA), Pub. L. No. 115-91, § 1097(c)(1)(B)(i)(III),

131 Stat. 1283, 1618 (2017), which went into effect after the close of the record

on review, should be applied in this case. PFR File, Tab 15. That provision

states that a disclosure shall not be excluded from protection under 5 U.S.C.

§ 2302(b)(8) because “the disclosure was made before the date on which the

individual was appointed or applied for appointment to a position.” 5 U.S.C.

§ 2302(f)(1)(F). OSC argues that this provision clarifies existing law and should

therefore be applied to all pending cases. PFR File, Tab 15 at 2-3.

¶12 The new statutory language confirms the Board’s interpretation of the prior

statutory language, as set forth in Greenup, and therefore the result is the same

7

Employees of contractors have additional whistleblower protections under 41 U.S.C.

§ 4712, which provides:

An employee of a contractor, subcontractor, grantee, or subgrantee or

personal services contractor may not be discharged, demoted, or otherwise

discriminated against as a reprisal for disclosing to a person or body

described in paragraph (2) information that the employee reasonably

believes is evidence of gross mismanagement of a Federal contract or

grant, a gross waste of Federal funds, an abuse of authority relating to a

Federal contract or grant, a substantial and specific danger to public

health or safety, or a violation of law, rule or regulation related to a

Federal contract (including the competition for or negotiation of a

contract) or grant.

41 U.S.C. § 4712(a)(1). The recourse for such a violation is to submit a complaint to

the Inspector General of the relevant agency, who will either determine that the

complaint does not warrant investigation or investigate the complaint and submit a

report to the head of the agency. 42 U.S.C. § 4712(b)(1)-(2). The head of the agency

will then determine whether there is a sufficient basis to conclude that reprisal for

whistleblowing took place, and issue an order denying or granting relief accordingly.

42 U.S.C. § 4712(c)(1). Upon exhaustion of remedies with the head of the agency, the

aggrieved employee may appeal the matter to Federal district court. 42 U.S.C.

§ 4712(c)(2).

8

regardless of whether we apply the new statutory language. Under both Greenup

and the 2018 NDAA, the appellant’s disclosure to OIG before he was an applicant

for employment may be protected whistleblowing if it other wise meets the

requirements of 5 U.S.C. § 2302(b)(8). Therefore, we need not determine

whether to apply this particular 2018 NDAA provision to this or any other

pending cases.

¶13 At the jurisdictional stage, the appellant is burdened only with making a

nonfrivolous allegation that he reasonably believed that his disclosure evidenced

a violation of one of the circumstances described in 5 U.S.C. § 2302(b)(8).

Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 8 (2013). The proper test

for determining whether an individual had a reasonable belief that his disclosures

were protected is whether a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by the individual coul d

reasonably conclude that the actions evidenced a violation of law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). See

Schoenig, 120 M.S.P.R. 318, ¶ 8. The appellant’s disclosure to OIG involved the

purchase of video equipment with funds designated for Overseas Contingency

Operations (OCO). IAF, Tab 1 at 25, Tab 6 at 3. The appellant believed that the

purchase violated acquisition regulations because the equipment was to be used

for purposes other than OCO. IAF, Tab 6 at 3. We find that the appellant has

nonfrivolously alleged that he reasonably believed he was disclosing a violation

of a regulation. See Kutty v. Department of Housing & Urban Development,

96 M.S.P.R. 590, ¶¶ 7-11 (2004) (finding a nonfrivolous allegation of a protected

disclosure when the appellant disclosed her belief that her supervisor had violated

acquisition regulations).

The appellant has nonfrivolously alleged that his disclosure was a contributing

factor in a personnel action.

¶14 On cross petition for review, the agency argues that its failure to refer the

appellant to the selecting official in connection with the position for which he

9

applied is not a “personnel action” for purposes of the Board’s IRA jurisdiction.

PFR File, Tab 3 at 6. We disagree. An appointment is among the personnel

actions specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(A)(i). We

agree with the administrative judge that the appellant has made a nonfrivolous

allegation that the agency’s failure to refer him to the selecting official

constitutes the failure to appoint him for purposes of the Board’s jurisdiction over

his IRA appeal. ID at 5-6; see Dorney v. Department of the Army, 117 M.S.P.R.

480, ¶ 6 (2012) (stating that an allegation of a failure to appoint is an allegation

of a failure to take a personnel action).

¶15 To satisfy the contributing factor criterion at the jurisdictional stage in an

IRA appeal, an appellant need only raise a nonfrivolous allegation that the fact or

content of the protected disclosure was one factor that tended to affect the

personnel action in any way. Mudd, 120 M.S.P.R. 365, ¶ 10. One way to

establish this criterion is the knowledge-timing test, under which an employee

may nonfrivolously allege that the disclosure was a contributing factor in a

personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure and that the personnel

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

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

The Board has held that personnel actions occurring within 1 to 2 years after the

protected disclosures are sufficient to meet the timing portion of the test.

Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 41. The knowledge

portion of the knowledge-timing test can be met with allegations of either actual

or constructive knowledge. See Aquino v. Department of Homeland Security,

121 M.S.P.R. 35, ¶ 19 (2014). An appellant may establish an official’s

constructive knowledge of a protected disclosure by demonstrating that

an individual with actual knowledge of the disclosure influenced the official

accused of taking the retaliatory action. Dorney, 117 M.S.P.R. 480, ¶ 11.

10

¶16 The appellant alleges that the Deputy Director, who was both one of the

subjects of his disclosure and the selecting official for the position for which he

had applied, informed the appellant in September 2012 that he was not going to

select the appellant because he had become “too confrontational.” IAF, Tab 6

at 3. This alleged conversation took place the month after the appellant made his

disclosure to OIG. Id. The appellant alleges that he learned of his nonreferral

3 days later. Id. We find that the appellant’s allegations are sufficient to meet

the contributing factor criterion under the knowledge-timing test at the

jurisdictional stage.

ORDER

¶17 Having found that the appellant has met his jurisdictional burdens, we

remand this case to the regional office for further adjudication 8 in accordance

with this Opinion and Order. If the appellant establishes the elements of his

claim by preponderant evidence, the Board will order corrective action unless the

agency demonstrates by clear and convincing evidence that it would have taken

8

The record reflects that the parties in this case are in Europe and the United States,

and that the appellant did not request a hearing. The appellant, who is pro se, should be

advised on remand that an in-person hearing is not required and that a hearing may be

conducted by either video conferencing or by telephone. See 5 U.S.C. § 7701(a)(1);

Koehler v. Department of the Air Force, 99 M.S.P.R. 82, ¶¶ 6-13 (2005).

11

the same personnel action 9 absent the disclosure. Weed, 113 M.S.P.R. 221, ¶ 23.

The agency will have an opportunity to make that showing on remand.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

9

It appears that the appellant also raised three other vacancy announcements for which

he applied, and for which no selections were made, before OSC. IAF, Tab 1 at 26. It

is not entirely clear from the appellant’s submissions below whether he is attempting to

raise those nonselections as additional personnel actions in this IRA appeal. IAF,

Tab 6. On remand, the administrative judge should clarify whether the appellant is

raising additional personnel actions in addition to the nonreferral discussed herein.