The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HENRY SEARCY, JR., DOCKET NUMBER
Appellant, DC-1221-20-0455-W-1
v.
DEPARTMENT OF AGRICULTURE, DATE: July 31, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Henry Searcy, Jr., Bowie, Maryland, pro se.
Stephanie J. Mitchell, Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, 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 appellant’s petition for review ,
REVERSE the initial decision, and REMAND the case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant filed an appeal with the Board alleging that the agency had
(1) issued him an “[u]nconstitutional [a]dmonishment” and (2) restructured
certain agency components in a manner contrary to legislative intent. Initial
Appeal File (IAF), Tab 1 at 3, 5. With his initial appeal form, the appellant
provided a lengthy narrative statement. Id. at 9-37. In this statement, the
appellant made numerous allegations; however, the ostensible underlying thrust
of these allegations was that, in 2017, the agency underwent significant
restructuring and, as a result, his position became part of a different agency
component. Id. at 9. The appellant was apparently led to believe that, despite
this restructuring, he would be able to continue performing various outreach
functions on behalf of the agency; however, agency personnel allegedly
unlawfully failed to allocate the requisite funding and began to mistreat him. Id.
at 9-37. The appellant requested a hearing on the matter. Id. at 2.
¶3 With his appeal, the appellant provided two letters from the Office of
Special Counsel (OSC). Id. at 7-8, 38. The letters indicated that OSC was
terminating its investigation into the following claims: (1) that an agency
director had “arbitrarily abuse[d] the Departmental Regulation 4070 -735-001 to
conduct management inquiries on employees in order to solicit inform ation not
based on personal knowledge”; (2) that an agency manager had “wasted
thousands of dollars on banners that were printed without the appropriate [equal
employment opportunity] Clause”; and (3) that the agency had conducted
investigations into the appellant. Id. at 7.
¶4 The administrative judge issued a jurisdictional order wherein he explained
the circumstances under which the Board has jurisdiction to adjudicate IRA
appeals, and he ordered the appellant to file specific evidence and argument
regarding jurisdiction within 10 days of his order. IAF, Tab 3 at 2 -8. He also
indicated that the agency could file a response within 20 days of the order. Id.
at 8. The appellant did not respond to the jurisdictional order; instead, 17 days
3
after the issuance of the same, he filed a motion to suspend the processing of his
appeal for 30 days. IAF, Tab 6 at 4-5. The agency filed a response wherein it
(1) contended that the administrative judge should deny the appellant’s
suspension request and (2) argued that the appellant had failed to establish Board
jurisdiction over his appeal. IAF, Tab 7 at 5-9.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 8, Initial Decision (ID) at 1, 6. The administrative judge concluded that,
insofar as the issue of jurisdiction was “well defined and ripe for a conclusive
determination,” the 30-day suspension sought by the appellant was
“unnecessary.” ID at 5. He also found that the appellant had failed to make a
nonfrivolous allegation of a personnel action. ID at 5-6. In so finding, the
administrative judge indicated that the OSC documentation provided by the
appellant identified his claimed personnel action as an agency investigation;
however, the U.S. Court of Appeals for the Federal Circuit had recently found
that retaliatory investigations, in and of themselves, do not constitute personnel
actions. ID at 5-6 (citing in Sistek v. Department of Veterans Affairs, 955 F.3d
948, 954-55 (Fed. Cir. 2020)). The administrative judge also indicated via
footnote that, despite the appellant’s submission of a 20-page narrative statement,
he “could find no event that described a protected disclosure of information.” ID
at 3 n.3.
¶6 The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 10. 2 In his petition for review,
the appellant alleges, among other things, that the administrative judge erred in
2
The appellant also has filed a “completed petition for review” containing additional
argument, PFR File, Tab 3, voluminous documentation in support of his petition(s) for
review, PFR File, Tabs 4-8, a reply to the agency’s response, PFR File, Tab 12, and two
motions for leave to file additional pleadings, PFR File, Tabs 14, 16. These filings,
however, are not material to the outcome of the jurisdictional issue .
4
finding that he failed to make a nonfrivolous allegation of a personnel action.
PFR File, Tab 1 at 8-14.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence 3 that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a 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 a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish the matter at issue. 5 C.F.R.
§ 1201.4(s). The Federal Circuit has found that, in the context of an IRA appeal,
a nonfrivolous allegation is an allegation of “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). Any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of affording the appellant a hearing .
Grimes v. Department of the Navy, 96 M.S.P.R. 595, ¶ 12 (2004).
¶8 For the following reasons, we find that the administrative judge ’s
conclusion that the appellant failed to make nonfrivolous allegation of a
personnel action was erroneous, we find jurisdiction, and we remand the appeal
for adjudication of the merits.
¶9 Here, the appellant alleged that agency management had: (1) changed both
his position description and his job duties; (2) required him, on several occasions,
to relocate to less favorable office space; (3) falsely accused him of being absent
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
without leave (AWOL); (4) admonished him; (5) surveilled him; and (6) sent him
“a series of abusive/pervasive” emails regarding his time and attendance and his
alleged refusal to relocate his office space. IAF, Tab 1 at 9-37. As relevant to
these allegations, the definition of “personnel action” includes “any . . .
significant change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A)(xii). The Board has found that, although “significant change”
should be interpreted broadly to include harassment and discrimination that could
have a chilling effect on whistleblowing or otherwise undermine the merit system,
only agency actions that, individually or collectively, have pr actical consequence
for an appellant constitute a personnel action covered by section
2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs, 2022 MSPB 17,
¶¶ 15-16. To this end, the agency actions must have a significant effect on the
overall nature and quality of the appellant’s working conditions, duties, or
responsibilities. Id. We find that the aforementioned allegations meet this
threshold. See id., ¶ 18 (concluding that the appellant’s allegations that agency
personnel harassed him, subjected him to a hostile work environment, subjected
him to multiple investigations, accused him of “fabricating data” and of a Privacy
Act violation, refused his request for a review of his position for possible
upgrade, yelled at him, and failed to provide him the support and guidance needed
to successfully perform his duties amounted to a nonfrivolous allegation of a
significant change in his working conditions); see also Covarrubias v. Social
Security Administration, 113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the
appellant made a nonfrivolous allegation of a significant change in working
conditions when she alleged, among other things, that her supervisors harassed
her about personal telephone calls and closely monitored her whereabouts, to
include following her to the bathroom), overruled on other grounds by Colbert v.
Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
¶10 We also find that the appellant exhausted this personnel action with OSC.
Indeed, the appellant provided two letters from OSC evincing that he had filed a
6
complaint contending that the agency had both investigated him and conducted
“inquiries on employees in order to solicit information not based on personal
knowledge.” IAF, Tab 1 at 7-8, 38. We find that these contentions are
synonymous with the appellant’s allegations that the agency surveilled him and
monitored his time and attendance after falsely accusing him of being AWOL
and/or refusing to relocate his office space. See id. at 12-13, 16, 34-35.
Although retaliatory investigations are not personnel actions in and of
themselves, Sistek, 955 F.3d at 955; Spivey v. Department of Justice, 2022 MSPB
24, ¶ 10, such investigations may contribute towards “a significant change in
working conditions,” Sistek, 955 F.3d at 955. Thus, we find that the appellant
raised the subject personnel action in his OSC complaint. IAF, Tab 1 at 7; see
5 U.S.C. § 2302(a)(2)(A)(xii). Moreover, on review, the appellant provides an
additional letter evincing that he also explicitly alleged before OSC that “the
[a]gency [had] changed [his] job duties, [his] position description, and [his]
physical location within the [agency] facility.” PFR File, Tab 6 at 33. 4
¶11 We conclude that the appellant also has satisfied the remaining
jurisdictional criteria. To this end, he made numerous allegations regarding
illegalities and improprieties regarding agency budgetary decisions, e.g., IAF,
Tab 1 at 11-12, and one of the letters that he provided to the administrative judge
evinced that he had alleged before OSC that the agency management had “wasted
thousands of dollars” on printed banners, id. at 7; see 5 U.S.C. § 2302(b)(8)(i)-(ii)
(defining as a protected disclosure any disclosure of information by an appellant
that the appellant reasonably believes evidences either “any violation of any law,
4
Although the Board generally does not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the close of the record
despite the party’s due diligence, see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980), insofar as the issue of jurisdiction is always before the Board, we have
considered the subject letter, see Simnitt v. Department of Veterans Affairs,
113 M.S.P.R. 313, ¶¶ 5, 9 (2010) (remanding an appeal for adjudication when the
appellant provided new evidence on review that indicated, for the first time, that she
had filed a complaint with OSC).
7
rule, or regulation” or “a gross waste of funds”); see also Horton v. Department
of Veterans Affairs, 106 M.S.P.R. 234, ¶¶ 15, 17 (2007) (explaining that an
appellant need not prove that his disclosures actually established a violation of
law, rule, or regulation or a gross waste of funds; rather, he must show that the
matter disclosed was one that a reasonable person in his position would believe
evidenced one of those conditions and concluding that the appellant made
allegations sufficient to warrant a hearing). Moreover, insofar as the appellant
alleged a close temporal proximity between his purported disclosures and his
altered working conditions, we find that he has satisfied the contributing factor
jurisdictional criterion. E.g., IAF, Tab 1 at 11-13; see Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 14 (2012).
¶12 Accordingly, we find that the appellant made a nonfrivolous allegation that
his protected disclosures contributed to a significant change in his duties and
working conditions and, therefore, he is entitled to his requested hearing and a
decision on the merits of his appeal. IAF, Tab 1 at 2; see Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Prior to conducting a hearing, the
administrative judge shall afford the parties a reasonable opportun ity to complete
discovery and order the parties to submit any other evidence that he deems
necessary to adjudicate the merits of this appeal. Lewis v. Department of
Defense, 123 M.S.P.R. 255, ¶ 14 (2016).
8
ORDER
¶13 For the reasons discussed above, we remand this case to the Washington
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.