The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAVANA MOSLEY-DAWSON, DOCKET NUMBER
Appellant, DC-1221-21-0339-W-1
v.
DEPARTMENT OF THE ARMY, DATE: February 8, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James Barrett Kelly, Washington, D.C., for the appellant.
Everett F. Yates, Esquire, Fort Sam Houston, Texas, for the agency.
Jennifer Giambastiani, Falls Church, Virginia, for the agency.
Sheri S. Shilling, Esquire, and Dalton MacDonald, Esquire, Washington,
D.C., for amicus curiae, Office of Special Counsel.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND 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. 2
For the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in applying collateral estoppel.
¶2 The appellant argues on review that the administrative judge erred in
applying the doctrine of collateral estoppel to dispose of disclosure (2). We
agree. Collateral estoppel, or issue preclusion, is appropriate when : (1) the issue
is identical to that involved in the prior action; (2) the issue was actually litigated
in the prior action; (3) the determination of the issue in the prior action was
necessary to the resulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or as one whose interests were
otherwise fully represented in that action. Hau v. Department of Homeland
Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Department of
Homeland Security, 878 F.3d 1320 (Fed. Cir. 2017). Here, none of these criteria
is satisfied, as the matter was never adjudicated and there was no prior action,
such as an IRA appeal, to which the doctrine of collateral estoppel might apply.
Whether the appellant raised disclosure (2) in her January 2017 OSC complaint is
of no consequence. Thus, we agree that the administrative judge erred in
applying the doctrine of collateral estoppel to dispose of disclosure (2).
2
The Office of Special Counsel (OSC) filed an unsolicited amicus brief pursuant to
5 C.F.R. § 1201.34(e). We grant OSC’s request to file the brief. See 5 C.F.R.
§ 1201.34(e)(3).
3
The appellant exhausted her remedies with OSC regarding her claim of retaliation
for disclosure (2), and she nonfrivolously alleged that disclosure (2) was
protected under 5 U.S.C. § 2302(b)(8) and was a contributing factor in the
personnel actions at issue.
¶3 Having found that the administrative judge erred in disposing of
disclosure (2) on collateral estoppel grounds, we now consider whether the
appellant established IRA jurisdiction with regard to that disclosure. To establish
jurisdiction over an IRA appeal, an appellant must show by preponderant
evidence that she exhausted her administrative remedies before OSC and make
nonfrivolous allegations that: (1) she made a protected disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take ,
or threaten to take or fail to take, a personnel action as defined under 5 U.S.C.
§ 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016);
see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). 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, 1369 (Fed.
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 curiam, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other
grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20 n.11.
4
Cir. 2020). 4 Any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of finding
jurisdiction. Cassidy v. Department of Justice, 118 M.S.P.R. 74, ¶ 4 (2012).
¶4 Contrary to the agency’s assertions on review, we agree with the appellant
that she exhausted her remedies with OSC regarding her claim of retaliat ion for
disclosure (2). The substantive requirements of exhaustion are met when an
appellant has provided OSC with sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10 (2022)
(citing numerous cases). An appellant may demonstrate exhaustion through her
initial OSC complaint or correspondence with OSC. Id. In the alternative,
exhaustion may be proved through other sufficiently reliable evidence, such as
an affidavit or declaration attesting that the appellant raised with OSC the
substance of the facts in the Board appeal. Id. (citing Delgado v. Merit Systems
Protection Board, 880 F.3d 913, 916 (7th Cir. 2018)). Here, OSC’s closure letter
in the second complaint refers to the appellant’s allegation that, in February 2017,
Dr. Martin refused her request to meet and discuss her performance standards.
Initial Appeal File (IAF), Tab 6 at 48. In addition, the declaration the appellant
submitted to OSC in support of her complaint identifies disclosure (2) as one of
her alleged protected disclosures, specifically, a disclosure of what she
reasonably believed to be a violation of law, rule, or regulation. Id. at 18.
Accordingly, we conclude that the exhaustion requirement is satisfied with regard
to disclosure (2).
4
As a result of changes initiated by the Whistleblower Protection Enhancement Act of
2012 (Pub. L. No. 112-199), extended for three years (Pub. L. No. 113-70), and
eventually made permanent (Pub. L. No. 115-195), 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). Thus, we must
consider all issues in such cases with the view that the appellant ultimately may seek
review of this decision before any circuit court of appeals of competent jurisdiction.
5
¶5 We further find the appellant has made a nonfrivolous allegation that
disclosure (2) was a protected disclosure of a violation of law, rule, or regulation.
The appellant explains that when she informed Dr. Martin that she had not been
issued her performance standards, she disclosed what she believed to be a
violation of certain provisions of Department of Defense Instruction 1400.25,
Volume 431. See IAF, Tab 6 at 11. The specific provisions identified by the
appellant provide, in relevant part, that written performance plans (including
performance standards) for each employee must be developed and approved by
supervisors, normally within 30 calendar days of the beginning of the
performance cycle, and communicated to the employee. Id. at 11, 30-32. We
conclude that the appellant’s allegations, taken as true, could support a
conclusion that she reasonably believed disclosure (2) evidenced a violation of
that rule.
¶6 The next question to be decided is whether the appellant nonf rivolously
alleged that disclosure (2) was a contributing factor in the agency’s decision to
take a personnel action against her. 5 To satisfy the contributing factor criterion at
the jurisdictional stage, an appellant need only make a nonfrivolous allegat ion
that the fact of, or content of, the protected disclosure or activity was one factor
that tended to affect the personnel action in any way. Chambers, 2022 MSPB 8,
¶ 14. One way to satisfy that requirement is the knowledge/timing test, under
which an employee may establish that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evide nce, such as
evidence that the official taking the personnel action knew of the disclosure or
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1).
5
At least some of the alleged retaliatory actions by Dr. Martin qualify as personnel
actions for purposes of an IRA appeal. See, e.g., 5 U.S.C. § 2302(a)(viii) (defining
“personnel action” to include a performance evaluation).
6
In this case, the knowledge component of the knowledge/timing test is satisfied,
as the appellant made disclosure (2) directly to Dr. Martin. Furthermore,
the alleged retaliatory actions by Dr. Martin took place within 2 years of the
disclosure, which is sufficiently close in time to satisfy the t iming component.
See Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015). Thus, the
appellant succeeded in making a nonfrivolous allegation that disclosure (2) was a
contributing factor in the personnel actions at issue.
¶7 In sum, we conclude that the appellant has established jurisdiction over her
IRA appeal with respect to her claim of retaliation for disclosure (2).
Accordingly, we remand the appeal for adjudication on the merits of that claim,
including a hearing if the appellant still desires one.
The appellant’s January 2017 OSC complaint constituted protected activity under
5 U.S.C. § 2302(b)(9)(C), and the appellant nonfrivolously alleged that the
activity was a contributing factor in the personnel actions at issue.
¶8 The administrative judge found below that the appellant’s January 2017 OSC
complaint, identified as “disclosure” (1), was not a protected disclosure or
activity for purposes of establishing IRA jurisdiction. We find that the
administrative judge erred on this point and that the January 2017 OSC complaint
constituted protected activity under 5 U.S.C. § 2302(b)(9)(C). 6 See 5 U.S.C.
§ 2302(b)(9)(C) (prohibiting retaliation for “cooperating with or disclosing
information to the Inspector General … or the Special Counsel, in accordance
with applicable provisions of law”); cf. Special Counsel v. Hathaway,
49 M.S.P.R. 595, 611-12 (1991) (holding that section 2302(b)(9)(C) covers
6
The administrative judge found that, insofar as the appellant’s January 2017 OSC
complaint was protected activity under section 2302(b)(9), it was not within the Board’s
IRA jurisdiction because it was “doubtful” whether the disclosures in the complaint
were “made to remedy a violation of 5 U.S.C. § 2302(b)(8).” IAF, Tab 12, Initial
Decision at 16. Here, the administrative judge seems to have had in mind the
distinction between activity covered under section 2302(b)(9)(A)(i) and activity
covered under section 2302(b)(9)(A)(ii). However, protected activity under
section 2302(b)(9)(C) need not involve an alleged violation of section 2302(b)(8).
7
employee disclosures to the Inspector General that are not covered by
section 2302(b)(8)), recons. denied, 52 M.S.P.R. 375 (1992), aff’d, 981 F.2d 1237
(Fed. Cir. 1992), and abrogated on other grounds by Special Counsel v. Santella,
65 M.S.P.R. 452, 456 (1994) (recognizing the Board’s error in applying the
wrong causal standard).
¶9 We also find that the appellant made a nonfrivolous allegation that her
January 2017 OSC complaint was a contributing factor in the personne l actions at
issue. In her declaration, the appellant states that Dr. Martin had knowledge of
the January 2017 OSC complaint, which, if true, would serve as evidence of
contributing factor under the knowledge/timing test. IAF, Tab 6 at 15. Her
assertion is based on: (1) the friendship she alleges developed between
Dr. Martin and Lieutenant Colonel Martin, against whom she filed the complaint;
and (2) a mid-August 2017 conversation with a colleague, who told her that she
had been told by another colleague, who in turn worked closely with Dr. Martin,
not to share information with the appellant “because [the appellant] know[s] how
to write complaints that get people in trouble.” Id. at 15, 20. While the
allegation that Dr. Martin had knowledge of the January 2017 complaint is
somewhat speculative, it is also plausible based on the information presented by
the appellant, and if true, would satisfy the knowledge component of the
knowledge/timing test. Accordingly, we find that the appellant has established
jurisdiction with respect to her claim of retaliation for her January 2017 OSC
complaint, and remand that claim for adjudication on the merits, including a
hearing if the appellant still desires one.
8
ORDER
¶10 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.