Mark Barta v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK B. BARTA, DOCKET NUMBER

Appellant, CH-1221-13-0359-W-3

v.

DEPARTMENT OF DEFENSE, DATE: September 22, 2022

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Mark B. Barta, Galena, Ohio, pro se.

Amanda J. Dinges, Indianapolis, Indiana, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For

the reasons discussed below, we GRANT the petition for review , VACATE the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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initial decision, and REMAND the case to the regional office for further

adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant served as a Supervisory Accountant in the agency’s Defense

Finance and Accounting Service (DFAS). Barta v. Department of Defense,

MSPB Docket No. CH-1221-13-0359-W-1, Initial Appeal File (IAF), Tab 1 at 1.

On December 7, 2012, he filed a complaint with the Office of Special Counsel

(OSC) alleging that the agency retaliated against him for making protected

disclosures concerning his supervisor, the DFAS General Counsel (GC), during

the following proceedings: (1) a DFAS Internal Review (IR) Office investigation

of the GC; (2) a prior Board appeal; and (3) the equal employment opportunity

(EEO) complaints of two coworkers. Barta v. Department of Defense, MSPB

Docket No. CH-1221-13-0359-W-3, Appeal File (W-3 AF), Tab 5 at 8. OSC

issued the appellant a close-out letter informing him that it was closing the file on

his complaint and advising him of his right to file a Board appeal. IA F, Tab 1

at 9-10. This appeal followed. Id. at 1.

¶3 During the proceedings below, the administrative judge dismissed the

appeal without prejudice to refiling so that the appellant could exhaust additional

claims of retaliation with OSC that he raised before the administrative judge but

did not raise before OSC. Barta v. Department of Defense, MSPB Docket

No. CH-1221-13-0359-W-2, Initial Decision at 2 (Mar. 19, 2014). After the

appellant filed an additional complaint, OSC issued a second close-out letter, and

the administrative judge resumed the processing of the appeal. W -3 AF, Tab 1 at

1, 4-5.

¶4 Without holding the appellant’s requested hearing, IAF, Tab 1 at 2, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. Barta v. Department of Defense, MSPB Docket

No. CH-1221-13-0359-W-3, Initial Decision (W-3 ID) at 2 (July 13, 2016). She

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found that the appellant had exhausted his administrative remedies before OSC

concerning three sets of disclosures and that he alleged he made those disclosures

in or before 2010, prior to the amendment of the Whistleblower Protection Act

(WPA) by the Whistleblower Protection Enhancement Act of 2012 (WPEA).

W-3 ID at 6. She then determined, applying pre-WPEA law, that the appellant

failed to make a nonfrivolous allegation that he made a protected disclosure

because all of his alleged disclosures were made during the course of an agency

investigation or administrative proceeding and that, prior to the enactment of the

WPEA, whistleblower protection did not extend to disclosures made in such

proceedings. W-3 ID at 6-8. She additionally found that, to the extent the

appellant raised the same disclosures outside the context of an investigation or

administrative proceeding, those disclosures were not protected under the WPA

because they were made to his supervisor about the supervisor’s own misconduct.

W-3 ID at 9 (citing Huffman v. Office of Personnel Management, 263 F.3d 1341,

1344 (Fed. Cir. 2001), superseded by statute, WPEA, Pub. L. No. 112-199,

126 Stat. 1465). As a result, the administrative judge dismissed the appeal.

¶5 The appellant has filed a petition for review that challenges the

administrative judge’s legal analysis of his claims. Petition for Review (PFR)

File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 It is undisputed that all of the alleged protected disclosures and personnel

actions here took place prior to the enactment of the WPEA. Barta v. Department

of Defense, MSPB Docket No. CH-1221-13-0359-W-2, Appeal File (W-2 AF),

Tab 7, Exhibit (Ex.) L, Tab 8, Subtabs 4a, 4n, 4w. Therefore, we agree with the

administrative judge’s decision to apply the pre‑WPEA standards concerning the

scope of an IRA appeal. W-3 ID at 6‑7; see Scoggins v. Department of the Army,

123 M.S.P.R. 592, ¶ 7 (2016).

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¶7 Under pre-WPEA law, the Board has jurisdiction over an IRA appeal if the

appellant shows he has exhausted his administrative remedies before OSC and

makes nonfrivolous allegations that he engaged in whistleblowing activity by

making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that 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). Yunus v. Department of

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). To meet the nonfrivolous

standard, an appellant need only plead allegations of fact that, if proven, could

show that he made a protected disclosure that was a contributing factor in the

agency’s decision to take or fail to take a personnel action. See Peterson v.

Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). In cases involving

multiple alleged protected disclosures and multiple alleged personnel actions,

when an appellant makes a nonfrivolous allegation that at least one alleged

personnel action was taken in reprisal for at least one alleged protected

disclosure, he establishes Board jurisdiction over his IRA appeal. Id. Whether an

allegation is nonfrivolous is determined on the basis of the written record. Id. If

the appellant satisfies each of these jurisdictional requirements, he has the right to

a hearing on the merits. Id.

The appellant exhausted his administrative remedies before OSC.

¶8 In the initial decision, the administrative judge found that the appellant

exhausted his administrative remedies before OSC concerning five alleged

disclosures that he made during the course of the IR Office investigation, one

alleged disclosure that he made during his prior Board appeal, and one series of

alleged disclosures that he made during the course of proceedings in the EEO

complaints of two coworkers. W-3 ID at 5. She also found that the appellant

exhausted his administrative remedies before OSC concerning the following

alleged personnel actions: (1) conversion from the National Security Personnel

System (NSPS) to the General Schedule (GS) as a GS-14 rather than as a GS-15;

(2) nonselection for the GS-14 position of Deputy Assistant GC; (3) nonselection

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for the GS-15 position of Deputy GC; and (4) nonselection for the GS-15 position

of Assistant GC. W‑3 ID at 6. Neither party challenges these findings on

review, and we discern no basis to disturb them.

The appellant nonfrivolously alleged that he made protected disclosures under

5 U.S.C. § 2302(b)(8).

¶9 Here, the administrative judge found, in interpreting the pre -WPEA version

of 5 U.S.C. § 2302(b)(9), that disclosures made by an employee either in

prosecuting a prior Board appeal (activity covered under section 2302(b)(9)(A)),

or through testifying in an EEO proceeding filed by another employee (activity

covered under section 2302(b)(9)(B)), were not protected and did not establish a

basis for finding Board jurisdiction. W-3 ID at 7-8 (citing Ruffin v. Department

of the Army, 48 M.S.P.R. 74, 78 (1991), and Gonzales v. Department of Housing

& Urban Development, 64 M.S.P.R. 314, 317-18 (1994)). We agree with these

findings. See Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 7

(2014) (finding that the WPEA did not apply retroactively to 5 U.S.C.

§ 2302(b)(9)(A)(i)); Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629,

¶¶ 8-15 (2014) (concluding that the WPEA did not apply retroactively to 5 U.S.C.

§ 2302(b)(9)(B)). 2

¶10 Concerning the disclosures raised during the course of the IR Office

investigation, we disagree with the administrative judge’s reasoning that these

2

The administrative judge also found that, to the extent the appellant raised the same

disclosures to his supervisor outside the context of his prior Board appeal or the EEO

proceedings, they were not protected under the WPA because they concerned his

supervisor’s own misconduct. W-3 ID at 9 (citing Huffman, 263 F.3d at 1344). The

WPEA, however, effectively abrogated this rule in Huffman, and the Board has found

that the WPEA provision pertaining to this rule should apply to all whistleblower

appeals pending before the Board regardless of when the alleged personnel actions took

place. Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 18, 26 (2013).

Nevertheless, the administrative judge found that the appellant did not exhaust his

administrative remedies as to these disclosures, and the Board, therefore, lacks

jurisdiction over them on that basis. W-3 ID at 5; see Coufal v. Department of Justice,

98 M.S.P.R. 31, 38 (2004) (finding that the Board’s jurisdiction in an IRA appeal is

limited to issues raised before OSC).

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disclosures are not protected solely because of the context in which they were

raised. Relying on Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434

(2016), the administrative judge determined that none of the appellant’s alleged

disclosures raised during the course of the IR Office investigation were protected

because giving testimony to agency investigators looking into alleged misconduct

by another employee does not give rise to a claim of retaliation under the WPA or

the WPEA. W-3 ID at 8. We find, however, that the administrative judge’s

reliance on Graves is misplaced.

¶11 In Graves, the Board determined that the appellant’s testimony during an

agency’s internal investigation did not constitute protected activity under

5 U.S.C. § 2302(b)(9) for jurisdictional purposes under the WPEA. Graves,

123 M.S.P.R. 434, ¶ 15. However, the Board specifically noted that, because the

appellant did not contend that his testimony contained disclosures protected under

5 U.S.C. § 2302(b)(8), it had no occasion to consider whether the Board has

jurisdiction under the WPEA when an appellant raises protected disclosures unde r

5 U.S.C. § 2302(b)(8) during the course of the investigation. Id., ¶ 15 n.2. Here,

the appellant specifically alleged that he disclosed during the IR Office

investigation that the GC violated various laws, rules, and regulations and that,

therefore, the disclosures were protected under section 2302(b)(8). IAF, Tab 1

at 11-13; W-2 AF, Tab 7, Ex. L; W-3 AF, Tab 5 at 3, 6. Moreover, prior to the

enactment of the WPEA, the Board explicitly found that an appellant’s allegation

that he disclosed a violation of law, rule, or regulation to agency investigators

during an agency investigation constituted a nonfrivolous allegation that the

appellant made a disclosure protected under 5 U.S.C. § 2302(b)(8) for

jurisdictional purposes under the WPA. Coons v. Department of the Treasury,

85 M.S.P.R. 631, ¶ 14 (2000), overruled on other grounds by Arauz

v. Department of Justice, 89 M.S.P.R. 529 (2001). Therefore, because the

appellant claims that the disclosures he made during the course of the IR Office

investigation were protected under section 2302(b)(8), we find that they should

7

not be precluded from protection simply because they were raised in the context

of an agency internal investigation. See id.

¶12 Protected whistleblowing occurs when an appellant makes a disclosure that

he reasonably believes evidences a violation of law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authori ty, or a substantial

and specific danger to public health or safety. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 17 (2011). The proper test for determining whether

an employee 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 employee could reasonably conclude that the

actions evidenced a violation of a law, rule, or regulation, or one of the other

conditions set forth in 5 U.S.C. § 2302(b)(8). Id.

¶13 During the IR Office investigation, the appellant, who is an attorney, made

five alleged protected disclosures. IAF, Tab 1 at 11-15; W-3 AF, Tab 5 at 1-3,

Tab 18 at 5. In the first disclosure, he claimed that the GC, along with other

managers, rented a contractor’s beach house at the same time he caused a

personal services contract to be issued to that contractor in violation of

procurement integrity laws. IAF, Tab 1 at 11. In the second disclosure, the

appellant claimed that the GC used a consolidation of the Office of General

Counsel (OGC) offices as a way of eliminating older employees in violation of

discrimination laws. Id. at 13. In the third disclosure, he claimed that the GC

teleworked and allowed some employees to telework from homes outside the

commuting area but denied telework requests from other employees, including

him, in violation of discrimination laws. Id. at 12-13. In the fourth disclosure,

the appellant claimed that the GC misused appropriated funds in excess of

$100,000 to travel from his home in Maryland to the OGC office in Indiana.

W-3 AF, Tab 5 at 3, 6. In the fifth disclosure, he claimed that the GC “shook

down” his employees for contributions to a “flower fund” in violation of ethics

8

rules and regulations that state that supervisors cannot solicit contributions from

employees within their chain of command. W-2 AF, Tab 7, Ex. L.

¶14 Concerning the first and fifth disclosures, we find that the appellant

presented a nonfrivolous allegation that he made protected disclosures of a

violation of a law, rule, or regulation. The standard for establishing jurisdiction

is a nonfrivolous allegation of facts that, if proven, would show that the appellant

made a protected disclosure, i.e., that the matter disclosed was one that a

reasonable person in his position would belie ve evidenced a “violation of any

law, rule, or regulation.” Mudd v. Department of Veterans Affairs, 120 M.S.P.R.

365, ¶ 8 (2013). Any doubt or ambiguity as to whether an appellant raised a

nonfrivolous allegation of a reasonable belief should be resolved in favor of a

finding that jurisdiction exists. Id. At the jurisdictional stage in an IRA appeal,

an appellant is not required to prove that his disclosure is protected under

5 U.S.C. § 2302(b)(8). Id. Here, as stated above, the appellant alleged that he

disclosed that the GC violated procurement integrity laws and ethics rules and

regulations when he engaged in the misconduct described in the first and fifth

disclosures. After reviewing the appellant’s submissions, including his sworn

affidavits and supporting materials, we find that he has raised a nonfrivolous

allegation that a person in his position could reasonably conclude that he

disclosed evidence of a violation of a law, rule, or regulation to the agency

investigators. See Czarkowski v. Department of the Navy, 87 M.S.P.R. 107, ¶ 11

(2000). Accordingly, we find that he met his jurisdictional burden as to the first

and fifth disclosures.

¶15 Concerning the fourth disclosure, we find that the appellant presented a

nonfrivolous allegation that he made a protected disclosure of an abuse of

authority. For purposes of the WPA, 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. Chavez v. Department of

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Veterans Affairs, 120 M.S.P.R. 285, ¶ 22 (2013). The appellant need not prove

that the condition reported established an abuse of authority under 5 U.S.C.

§ 2302(b)(8) but must establish that the matter reported was one that a re asonable

person in his position would believe evidenced an abuse of authority. See White

v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994). We find that the

appellant’s disclosure during the IR Office investigation concerning the GC’s

misuse of appropriated funds for his personal gain in excess of $100,000

constitutes a nonfrivolous allegation that he engaged in whistleblowing by

disclosing a purported abuse of authority. See Frederick v. Department of

Veterans Affairs, 63 M.S.P.R. 563, 570 (1994) (finding that the appellant made a

nonfrivolous allegation of an abuse of authority when he reported instances of

time and attendance fraud). Therefore, we find that he met his jurisdictional

burden as to the fourth disclosure.

¶16 Concerning the second and third disclosures, however, we find that the

appellant failed to nonfrivolously allege that his disclosures were protected.

Specifically, the second and third disclosures contain allegations that the GC

committed misconduct in violation of discrimination laws. IAF, Tab 1 at 12-13;

W-3 AF, Tab 5 at 1-2, Tab 18 at 5. The Board has long held that disclosures that

are limited to EEO matters covered under 5 U.S.C. § 2302(b)(1) are excluded

from coverage under section 2302(b)(8). Applewhite v. Equal Employment

Opportunity Commission, 94 M.S.P.R. 300, ¶ 13 (2003); see Edwards v.

Department of Labor, 2022 MSPB 9, ¶¶ 10-26 (reaffirming the longstanding

principle that disclosures protected under Title VII are not protected under

5 U.S.C. § 2302(b)(8) because employees seeking to remedy reprisal for such

disclosures have the right to seek redress before the Equal Employment

Opportunity Commission); see also Hill v. Merit Systems Protection Board,

495 F. App’x 77, 78-79 (Fed. Cir. 2012) (affirming the Board’s conclusion that

the appellant’s allegations of race, color, sex, and age discrimination under

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5 U.S.C. § 2302(b)(1) do not constitute protected disclosures under section

2302(b)(8)). 3

¶17 Accordingly, we find that the appellant nonfrivolously alleged that the first,

fourth, and fifth disclosures that he made during the IR Office investigation are

protected under 5 U.S.C. § 2302(b)(8).

The appellant nonfrivolously alleged that he suffered a personnel action.

¶18 An employee may seek corrective action from the Board concerning any

“personnel action” taken, or proposed to be taken, against him as the result of a

prohibited personnel practice described in 5 U.S.C. § 2302(b)(8). 5 U.S.C.

§ 1221(a); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 14 (2012). Under

pre-WPEA law, a “personnel action” was defined as follows: (i) an appointment;

(ii) a promotion; (iii) an action under 5 U.S.C. chapter 75 or other disciplinary or

corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;

(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under

5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or awards, or

concerning education or training if the education or training may reasonably be

expected to lead to an appointment, promotion, performance evaluation, or other

personnel action; (x) a decision to order ps ychiatric testing or examination; and

(xi) any other significant change in duties, responsibilities, or working

conditions. 5 U.S.C. § 2302(a)(2)(A) (2011); Mattil, 118 M.S.P.R. 662, ¶ 14.

¶19 A nonselection for a promotion is a covered “personnel action” under

5 U.S.C. § 2302(a)(2)(A)(ii). See Johnson v. Department of Health & Human

Services, 87 M.S.P.R. 204, ¶ 9 (2000). Therefore, we find that the appellant made

a nonfrivolous allegation that he suffered a personnel action concerning the three

alleged nonselections. However, concerning the appellant’s conversion from the

NSPS to the GS, he has not nonfrivolously alleged that the agency took a

3

The Board may follow a nonprecedential decision of the U.S. Court of Appea ls for the

Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department

of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).

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personnel action against him as defined by 5 U.S.C. § 2302(a)(2). For instance,

he has not alleged that he suffered a reduction in pay or that he experienced any

significant change in duties, responsibilities, or working conditions when the

agency completed his conversion from the NSPS to the GS. Therefore, we find

that he has not nonfrivolously alleged that his conversion from the NSPS to the

GS constituted a personnel action against him. See, e.g., King v. Department of

Health & Human Services, 133 F.3d 1450, 1452-53 (Fed. Cir. 1998) (finding that

an action must have practical consequences for an employee to constitute a

“personnel action” under 5 U.S.C. § 2302(a)(2)(A)).

The appellant has nonfrivolously alleged that his protected disclosures were a

contributing factor in the agency’s decision to take or fail to take a personnel

action.

¶20 To satisfy the contributing factor criterion, 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. Mason,

116 M.S.P.R. 135, ¶ 26. 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.

¶21 Here, the appellant alleged that many of the officials who were involved in

the decisions concerning his nonselections knew of his protected disclosures.

IAF, Tab 1 at 13-15; W-3 AF, Tab 5 at 5-8. Specifically, he alleged that the GC

and the Assistant GC, among others, were aware of his disclosures because they

were given a copy of the IR Office report. IAF, Tab 1 at 13. The appellant

claimed that the GC and the Assistant GC had significant motivation to retaliate

against him as a result of his disclosures contained in the report. IAF, Tab 1

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at 14-15; W-2 AF, Tab 7, Ex. L; W-3 AF, Tab 5. He also claimed that the GC

eventually resigned as a result of the findings contained in the report. Id.

Concerning the selection for the Deputy Assistant GC position, which took place

in January 2012, the appellant alleged that the GC was the selecting official and

that the Assistant GC was a member of the selection panel. IAF, Tab 1 at 14;

W-2 AF, Tab 8, Subtab 4w. Concerning the selection for the Deputy GC

position, which took place in June 2012, the appellant alleged that the GC was a

member of the selection panel. IAF, Tab 1 at 15; W-2 AF, Tab 8, Subtab 4n.

Concerning the selection for the Assistant GC position, which took place in

October 2012, the appellant alleged that the Assistant GC was a member of the

selection panel. IAF, Tab 1 at 15; W-2 AF, Tab 8, Subtab 4a. Further, the

personnel actions at issue are alleged to have taken place within 2 years of the

time that he allegedly made his disclosures during the IR Office investigation,

which appears to have been in late 2010. IAF, Tab 1 at 11-16; W-2 AF, Tab 7

at 1‑5, Tab 8, Subtabs 4a, 4n, 4w; W-3 AF, Tab 5 at 5-7. Based on the foregoing,

we find that the appellant has nonfrivolously alleged that the nonselections

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

that his disclosures during the IR Office investigation were a contributing factor

in the personnel actions under the knowledge-timing test. See Schnell v.

Department of the Army, 114 M.S.P.R. 83, ¶ 22 (2010) (finding that a personnel

action taken within approximately 1 to 2 years of the appellant’s disclosures

satisfies the knowledge‑timing test); see also Agoranos v. Department of Justice,

119 M.S.P.R. 498, ¶¶ 21-23 (2013).

¶22 Although the agency argued below that the appellant failed to prove that the

GC, the Assistant GC, or any others involved in the selection decisions were

negatively influenced by the appellant’s whistleblowing activities, the appellant

need only make a nonfrivolous allegation that his disclosures were a contributing

factor in the nonselections at this stage. W-3 AF, Tab 10 at 4-6; see Mason,

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116 M.S.P.R. 135, ¶ 26. We find that he has met this burden. Accordingly, the

appellant is entitled to a hearing on the merits of his IRA appeal. See Salerno

v. Department of the Interior, 123 M.S.P.R. 230, ¶ 14 (2016).

ORDER

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.