Iris Cooper v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 24

Docket No. DC-1221-15-1168-W-1

Iris Cooper,

Appellant,

v.

Department of Veterans Affairs,

Agency.

August 24, 2023

Scott Oswald, Esquire, and Nicholas Woodfield, Esquire, Washington,

D.C., for the appellant.

Richard Johns, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, 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 discussed below, we GRANT the appellant’s petition for review,

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

further adjudication in accordance with this Opinion and Order.

BACKGROUND

¶2 The appellant was formerly employed by the Department of Veterans

Affairs (VA or agency) as the Associate Deputy Assistant Secretary for

2

Acquisitions, a Senior Executive Service position, until January 2014 when she

accepted a position with the Department of the Treasury. Initial Appeal File

(IAF), Tab 1 at 6, 19. On September 18, 2015, she filed this IRA appeal alleging

that the agency took various personnel actions against her in reprisal for protected

disclosures she made between 2009 and 2014. IAF, Tab 1. In particular, she

alleged that from June 2012 to December 2014, her former supervisor, the Deputy

Assistant Secretary for the Office of Acquisitions and Logis tics, caused the VA

Office of Inspector General (VA OIG) to investigate her, dissuaded the VA OIG

from abandoning its investigation, caused the VA OIG to issue a report

containing false conclusions about her conduct related to a particular Government

contract, and threatened that he wanted to send the report to the Department of

the Treasury to ruin her career. IAF, Tab 7 at 6, 13-15, 17-18; Tab 14 at 12. The

appellant also alleged that, following the issuance of the VA OIG report in

December 2014, the Department of the Treasury conducted its own investigation

regarding the allegations against her, during which time it temporarily withheld

her 2014 raise and bonus. IAF, Tab 7 at 33. Additionally, she alleged that, also

following the VA OIG report, in February 2015, the VA retroactively downgraded

her 2012 performance evaluation from an Outstanding rating to an Unsatisfactory

rating. Id. at 35. Finally, she alleged that her former VA supervisor removed her

responsibility for approving Federal Acquisition Certification for Contracting

(FAC-C) certifications for interns. Id. at 8; IAF, Tab 1 at 47-48.

¶3 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF ,

Tab 19, Initial Decision (ID). The administrative judge found that the appellant

failed to nonfrivolously allege that the removal of her ability to grant FAC -C

certifications to interns constituted a significant change in duties, responsibilities,

or working conditions because it appeared from her submissions that this job duty

3

arose once per year, which did not suggest that it was significant in relation to her

overall duties. 1 ID at 5-7. Next, the administrative judge found that the VA OIG

investigation, including its initiation, continuation, and ultimate report of

investigation, did not amount to a personnel action under 5 U.S.C. § 2302(a)(2).

ID at 4. He further concluded that the appellant’s allegations concerning the OIG

investigation did not provide a basis for Board jurisdiction because the appellant

did not identify any personnel action related to the OIG investigation. ID at 4 -5.

Although he considered the appellant’s claim that, in March 2015, following the

issuance of the VA OIG report in December 2014, the VA retroactively

downgraded her 2012 performance evaluation, he found that she failed to prove

that she exhausted this personnel action before the Office of Special Counsel

(OSC). Id. Finally, the administrative judge found that the appellant’s allegation

that the agency threatened to remove her from her position at the Department of

the Treasury failed to constitute a nonfrivolous allegation that she was subjected

to a personnel action because the VA lacked the authority to remove her from her

position at another agency. ID at 5 n.2.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has opposed the appellant’s petition, and the appellant

has filed a reply. PFR File, Tabs 3-4.

1

The appellant does not challenge this finding on review, and we discern no error in the

administrative judge’s analysis, considering the standard set forth in Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, which was decided after the issuance

of the initial decision. See Skarada, 2022 MSPB 17, ¶¶ 15-16 (holding that to

constitute a significant change under 5 U.S.C. § 2302(a)(2)(A)(xii), an agency action

must have practical and significant effects on the overall nature or quality of an

employee’s working conditions, responsibilities, or duties).

4

ANALYSIS

The appellant has established that she exhausted before OSC some, but not all, of

her alleged personnel actions.

¶5 Under 5 U.S.C. § 1214(a)(3), to establish Board jurisdiction over an IRA

appeal, an appellant must prove by preponderant evidence that she exhausted

administrative remedies with OSC before seeking corrective action from the

Board. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The

substantive requirements of exhaustion are met when an appellant has provided

OSC with a sufficient basis to pursue an investigation. Id. The purpose of the

exhaustion requirement is to give OSC the opportunity to take corrective action

before involving the Board in the case. Id. Thus, the Board’s jurisdiction in an

IRA appeal is limited to those issues that have been raised with OSC. Id. An

appellant, however, may give a more detailed account of the whistleblowing or

protected activity before the Board than was given to OSC. Id.

¶6 The record reflects that the appellant alleged in her OSC complaint tha t, in

reprisal for her alleged disclosures, her former VA supervisor caused the VA OIG

to investigate her actions related to the award of a contract to a particular

contractor, dissuaded the VA OIG from abandoning its investigation, caused the

VA OIG to issue a report containing untrue allegations about her, and threatened

to send the report to the Department of the Treasury to ruin the appellant’s career.

IAF, Tab 1 at 26-52. Thus, we find that she exhausted such claims before OSC.

¶7 However, nothing in the record indicates that she raised before OSC her

claim that, in February 2015, following the December 2014 OIG report, the VA

downgraded her 2012 performance evaluation. IAF, Tab 7 at 35. On review, the

appellant has not presented any evidence that such a claim was raised before

OSC; rather, she asserts that, had OSC pursued an investigation of her claims, it

would have discovered the downgrade of her 2012 performance evaluation. PFR

File, Tab 1 at 12. Although an appellant can give a more detailed a ccount of her

whistleblowing activities before the Board than she did to OSC, see Chambers,

5

2022 MSPB 8, ¶ 10, we find that the appellant’s claim regarding her performance

evaluation amounts to a new allegation that was not presented to OSC. In Miller

v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 10 (2014), aff’d,

626 F. App’x 261 (Fed. Cir. 2015), the Board found that an appellant’s claims

were not exhausted because he presented new allegations rather than providing a

more detailed account of the claims presented to OSC. Consistent with Miller,

we agree with the administrative judge that the appellant has not shown that she

exhausted her administrative remedies with OSC regarding her performance

evaluation. 2 ID at 5.

The appellant has nonfrivolously alleged that she was subjected to a threat of

removal.

¶8 In addition to exhausting remedies with OSC as discussed above, to

establish Board jurisdiction over an IRA appeal, an appellant must make

nonfrivolous allegations 3 that: (1) she made a protected whistleblowing

disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing

activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure

or 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 by 5 U.S.C.

2

If the appellant has filed or intends to file an OSC complaint regarding the dow ngrade

of her 2012 performance evaluation, she may file a new IRA appeal regarding such a

claim. Such an appeal must be filed consistent with law and the Board’s regulations.

Under 5 U.S.C. § 1214(a)(3), an appellant may file an IRA appeal with the Board once

OSC closes its investigation into her complaint and no more than 60 days have elapsed

since notification of the closure was provided to her or 120 days ha ve elapsed since she

sought corrective action from OSC and she has not been notified by OSC that it shall

seek corrective action on her behalf. Wells v. Department of Homeland Security,

102 M.S.P.R. 36, ¶ 6 (2006).

3

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board, 979 F.3d

1362, 1368 (Fed. Cir. 2020).

6

§ 2302(a)(2)(A). 4 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Chambers, 2022 MSPB 8,

¶ 14; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016);

5 C.F.R. § 1201.57(a)(1), (b), (c). We start our analysis by discussing whether a

personnel action was threatened against the appellant, including whether a

personnel action can be considered threatened when the two individuals involved

work for different Federal agencies. We then turn to whether the appellant made

a protected disclosure and whether a protected disclosure was a contributing

factor in a personnel action.

¶9 “Personnel actions” are defined as follows: (i) appointments;

(ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or

corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements;

(vi) restorations; (vii) reemployments; (viii) performance evaluations under

5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or

awards, or involving education or training if it reasonably may be expected to

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

described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing

or examination; (xi) implementations or enforcements of any nondisclosure

policy, form, or agreement; and (xii) any other significant changes in duties,

responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A). Absent any

disciplinary action, however, the mere threat of disciplinary action can amount to

a personnel action. 5 U.S.C. § 2302(b)(8)-(9); see Spivey v. Department of

Justice, 2022 MSPB 24, ¶ 7; Hoback v. Department of the Treasury, 86 M.S.P.R.

4

This appeal involves events that occurred both before and after the December 27, 2012

effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA) , Pub.

L. No. 112-199, §§ 101(b)(1)(A), 202, 126 Stat. 1465, 1476, which expanded the

Board’s IRA jurisdiction. However, the changes made by the WPEA do not affect our

jurisdictional analysis because the appellant’s claims of reprisal that occurred before

the effective date of the WPEA all arise under section 2302(b)(8).

7

425, ¶¶ 9-10 (2000) (clarifying that a threat of discipline is a covered personnel

action); 5 C.F.R. §§ 1209.2(a), 1209.6(a)(5)(i).

¶10 The appellant alleged that her former supervisor at the VA threatened to

have her removed from the Department of the Treasury based on the following

actions: (1) in June 2012, he filed an anonymous complaint with the VA OIG

alleging that she improperly awarded a contract based on her personal association

with an owner of the company; (2) he caused the VA OIG to continue its

investigation of her after she left the agency, notwithstandin g the VA OIG’s

intent to abandon its investigation; (3) he caused the VA OIG to issue a report on

December 8, 2014, that contained untrue statements about her; and (4) he stated

to the appellant’s former coworker that he pressured the VA OIG to issue the

report, that he was going to send a copy of the VA OIG report to the Department

of the Treasury, that he wanted to ruin the appellant’s career, and that he hoped

that she would end up in jail. IAF, Tab 7 at 13-15, 17-18; Tab 14 at 12. The

administrative judge, in a footnote, found that the appellant failed to raise a

nonfrivolous allegation that she was subjected to a threat of removal because the

VA lacked the authority to take or effect any employment action after the

appellant became employed by the Department of the Treasury. ID at 5 n.2. On

review, the appellant asserts that the administrative judge erred in finding that she

failed to nonfrivolously allege that she was subjected to a personnel action and

that her subsequent transfer to work for the Department of the Treasury does not

preclude Board jurisdiction over her claims. PFR File, Tab 1 at 25 -29.

¶11 We find that the appellant has nonfrivolously alleged that her former

supervisor had the authority to recommend a personnel action. The

administrative judge did not cite any authority in support of his finding that the

agency lacked the authority to take or effect any action against her. Under

5 U.S.C. § 2302(b), it is a prohibited personnel practice for “[a]ny employee who

has the authority to take, direct others to take, recommend, or approve any

personnel action” to “take or fail to take, or threaten to take or fail to take, a

8

personnel action” because of an employee’s protected disclosures or activities.

5 U.S.C. § 2302(b)(8)-(9). The Board has construed the exercise of supervisory

or personnel authority under 5 U.S.C. § 2302(b) quite broadly to include

instances where a manager’s recommendation or threat that an employee be

removed is given some weight and consideration, even if no action was ultimately

taken against the employee. See Caster v. Department of the Army, 62 M.S.P.R.

436, 443 (1994) aff’d sub nom. Manning v. Merit Systems Protection Board,

59 F.3d 180 (Fed. Cir. 1995) (Table). Moreover, the Board has held that an

employee need not be employed by the agency alleged to have retaliated against

her so long as she meets the definition of an “employee.” See Weed v. Social

Security Administration, 113 M.S.P.R. 221, 227 (2010). Here, at the time of the

alleged retaliatory actions, the appellant was employed by the VA and, as of

January 2014, the Department of the Treasury, neither of which is excluded from

the definition of agency under 5 U.S.C. § 2302(a)(2)(C).

¶12 Next, we address whether the appellant has nonfrivolously alleged that she

was subjected to a threat of a personnel action. As set forth below, we conclude

that the appellant raised a nonfrivolous allegation that her former supervisor

threatened to have her removed. The Board has held that the term “threaten” in

section 2302 should be given a fairly broad interpretation. Campo v. Department

of the Army, 93 M.S.P.R. 1, ¶ 5 (2002). In Gergick v. General Services

Administration, 43 M.S.P.R. 651, 654 (1990), an agency investigation resulted in

a record of inquiry in which the agency notified the appellant that it appeared that

he had violated the agency’s standards of acceptable conduct or behavior, which

could result in disciplinary action. The Board found that the record of inquiry

amounted to a threat to take a personnel action, reasoning that, although the

record of inquiry did not state that any discipline was being proposed, the

language nonetheless indicated that discipline was possible. Id. at 654-57. The

Board further highlighted that the likelihood of discipline was not insignificant

9

given that the record of inquiry was issued following an investigation of the

appellant’s activities that resulted in a substantial file. Id. at 657.

¶13 Here, although the VA OIG report did not recommend any discipline

because the appellant was no longer employed at t he VA, IAF, Tab 7 at 221, the

possibility of the appellant being disciplined based on the severity of the

substantiated allegations against her as a high-ranking Government official would

not be insignificant. Additionally, the appellant further alleged t hat her former

supervisor made the complaint to the VA OIG that caused the OIG to investigate

her, that he routinely threatened other employees that he would have the VA OIG

investigate them, and that, due to his control over a supply fund which partially

funded the salaries of VA OIG employees, he exerted control and/or influence

over the VA OIG. IAF, Tab 7 at 14-15. Finally, the appellant alleged that her

former supervisor admitted to another employee that he had convinced the VA

OIG to issue the December 2014 report, notwithstanding the VA OIG’s stated

intent to abandon its investigation after the appellant left the VA, and that he was

going to send the report to the Department of the Treasury because he wanted to

ruin the appellant’s career and see her go to jail. Id. at 33-34. Moreover, the

Department of the Treasury conducted its own investigation and concluded that

“witness testimony consistently indicated that the VA OIG was directed by a

senior official at the VA to conduct the VA OIG investigation, and have i t

released months after [the appellant] left the VA, in an effort to ruin [her] career

and reputation.” IAF, Tab 14 at 17. We find that such allegations, taken

together, amount to a nonfrivolous allegation of a threat to remove the appellant.

See 5 U.S.C. § 2302(a)(2)(A)(iii) (listing an action under chapter 75 as a

personnel action). In so finding, under the circumstances of this case, we broadly

interpret the word “take” in 5 U.S.C. § 2302(b)(8), given that the section covers

employees who also have the authority to recommend personnel actions, see

Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 23 (construing

the whistleblower statutes liberally to embrace all cases fairly within their scope),

10

and given the ordinary, contemporary, and common meaning of the word “take,”

see Webster’s Third New International Dictionary 2330 (1993) (defining “take”

as, among other things, “undertake” or “set in motion”); see also Maloney,

2022 MSPB 26, ¶ 13 (referring to dictionary definitions in the absence of a

statutory definition or clear guidance in the legislative history). Although we

acknowledge that the Department of the Treasury’s repor t of investigation

completely exonerated the appellant, IAF, Tab 14, the fact that it declined to

carry out the threat to remove her is not dispositive because whether a threatened

action is carried out or not does not determine the Board’s jurisdiction in an IRA

appeal, see Hoback, 86 M.S.P.R. 425, ¶ 9. Accordingly, we find that the

appellant has nonfrivolously alleged that she was subjected to a personnel action. 5

5

On review, the appellant also asserts that the administrative judge erred in failing to

address her argument that the VA OIG investigation, including its initiation,

continuation, and ultimate report of findings, amounted to a significant change in her

working conditions. PFR File, Tab 1 at 16. She alleges that the VA OIG report cast a

shadow over her many successes in her career and received media attention, and she

was forced to undergo a second investigation by the Department of the Treasury, during

which they temporarily withheld her 2014 raise and bonus. IAF, Tab 7 at 30, 33; PFR

File, Tab 1 at 23-24. We find that such assertions fail to amount to a nonfrivolous

allegation of a “significant change” personnel action because the appellant has not

alleged any practical or significant effects that the investigation had on the overall

nature of her working conditions, duties, or responsibilities. See Spivey, 2022 MSPB

24, ¶ 13 (finding that the appellant did not nonfrivolously allege that she suffered a

significant change in duties, responsibilities, or working conditions based on her

participation in an interview and preparation of an affidavit as part of an agency

investigation); Skarada, 2022 MSPB 17, ¶¶ 15-16; S. Rep. No. 112-155, at 20 (2012),

as reprinted in 2012 U.S.C.C.A.N. 589, 608 (explaining that agency investigations

come within the definition of a personnel action only if they result in a significant

change in job duties, responsibilities, or working conditions, or have effects that

otherwise fit within one of the items listed under the statutory definition of “personnel

action”). Furthermore, although the Department of the Treasury’s 2014 withholding of

the appellant’s raise and bonus would qualify as a personnel action under 5 U.S.C.

§ 2302(a)(2)(A)(ix), there is no evidence that the appellant exhausted this claim before

OSC.

11

The appellant has nonfrivolously alleged that she made protected disclosures.

¶14 We now turn to whether the appellant nonfrivolously alleged that she made

a protected disclosure. A protected disclosure is one which the employee

“reasonably believes evidences: (i) any 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. § 2302(b)(8).

The proper test for determining whether an employee had a reasonable belief that

her disclosure was 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 disclosure evidenced one of the circumstances

described in 5 U.S.C. § 2302(b)(8). Shannon v. Department of Veterans Affairs,

121 M.S.P.R. 221, ¶ 28 (2014). The test for protected status is not the truth of the

matter disclosed but whether it was reasonably believed. Id. A reasonable belief

that a violation of law is imminent is sufficient to establish a protected disclosure.

Reid v. Merit Systems Protection Board, 508 F.3d 674, 676-78 (Fed. Cir. 2007).

A disclosure of a violation of a Federal Acquisition Regulation (FAR) can

evidence a violation of law, rule, or regulation. See McCarthy v. International

Boundary and Water Commission, 116 M.S.P.R. 594, ¶ 37 (2011), aff’d, 497 F.

App’x 4 (Fed. Cir. 2012); Schnell v. Department of the Army, 114 M.S.P.R. 83,

¶ 20 (2010).

¶15 Because the administrative judge found that the appellant failed to raise a

nonfrivolous allegation that she was subjected to a personnel action, he did not

address whether she raised nonfrivolous allegations that she made a protected

disclosure. Thus, we do so now.

12

¶16 Regarding disclosures of alleged FAR violations, the appellant contended

that she disclosed the following: (1) in December 2010, 6 she informed her former

supervisor that efforts to rewrite a technical evaluation so that it would result in

the type of furniture they wanted were improper because technical evaluation

requirements cannot be altered unless the solicita tion is amended and all vendors

have the opportunity to revise their proposals; (2) in 2011 and 2012, she disclosed

to her former supervisor and her former second-level supervisor, among others,

that a contractor was working outside the original scope of i ts contract to provide

acquisition policy support; (3) in June 2012, she disclosed to her former

supervisor, among others, that delaying awarding contracts to big businesses and

placing the money in the supply fund to hold until the next fiscal year was il legal;

and (4) in 2013, she disclosed to her former second-level supervisor and the

Director of Policy that the agency’s use of the services of a support contractor on

a sole-source basis was improper because the services they provided for

acquisition policy support were not unique enough to justify a sole-source

contract. IAF, Tab 7 at 23-28, 179.

¶17 Regarding disclosure 1, the appellant alleges that she reasonably believed

that she disclosed a violation of law because having a contractor provide

significant changes to the furniture from what was competed violated the

requirements in the FAR that all quotes received be fairly considered and the

award be made in accordance with the basis for selection in the request for

quotes. Id. at 24-25, 182-83. Regarding disclosure 2, the appellant contends that

the contractor was working outside of its contract by holding outreach events to

train vendors on the VA acquisition process, an inherently governmental function .

Id. at 25. Regarding disclosure 3, the appellant asserts that she reasonably

6

The appellant also alleged that she later made this same disclosure during her

testimony before an Administrative Investigative Board (AIB) on October 30, 2013.

IAF, Tab 7 at 16, 129-32.

13

believed that this action would violate the FAR provision which prohibits the

Government from requesting a proposal that it could not or did not intend to

award or fund, as well as appropriations laws that she understood to al lot money

to agencies on a yearly basis and to take away money not spent at the end of the

fiscal year. Id. at 27-28, 179-80. Regarding disclosure 4, the appellant contends

that she reasonably believed she was disclosing a violation of the FAR provision

that requires the Government to ensure that companies compete for Government

contracts. Id. at 23. We find that the appellant was in a position to reasonably

believe that her disclosures evidenced FAR violations given her background

experience and employment as the Associate Deputy Assistant Secretary for

Acquisitions. See, e.g., Kalil v. Department of Agriculture, 96 M.S.P.R. 77,

84-85 (2004) (considering the appellant’s status as an attorney in determining

whether he reasonably believed his disclosures amounted to violations of law).

Moreover, any doubt or ambiguity as to whether the appellant has made a

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

affording the appellant a hearing. Id. at 85; Ivey v. Department of the Treasury,

94 M.S.P.R. 224, ¶ 13 (2003). Thus, regarding these matters, we find that the

appellant nonfrivolously alleged that she made a disclosure concerning a violation

of law, rule, or regulation.

¶18 The appellant also alleges that she disclosed additional violati ons of law,

rule, or regulation, including: (5) in September 2009 and October 2010, she

disclosed to her former supervisor that his request that she grant FAC-C Level 1

certifications to interns after completing 1 year at the VA Acquisition Academy

was a violation of certification requirements; 7 and (6) in 2011 and 2012, she

objected to her second-level supervisor that a contractor was being used as an

industry advisory group to circumvent the requirements of the Federal Advisory

7

The appellant also alleged that she later made this same disclosure during her

testimony before an AIB on October 30, 2013. IAF, Tab 7 at 16, 134 -35.

14

Committee Act (FACA) which established a process for setting up advisory

groups through the General Services Administration (GSA). IAF, Tab 7 at 20-21,

25-26. Regarding disclosure 5, the appellant asserts that the interns’ experience

was predominately classroom-based and lacked the hands-on experience required

to meet the 1 year of contract work experience requirement . Id. at 20-21, 179.

The appellant’s belief that proper certification required 1 year of work experience

based on the Contract Specialist (GS-1102) Qualification Standard is purportedly

supported by the Federal Acquisition Institute (FAI)’s Certification Requirements

as well as a 2014 memorandum regarding revisions to the FAC-C Certification

from the Office of Federal Procurement Policy. Id. at 21-22; see GSA,

FAI, FAC-C (Legacy) Certification Requirements, https://www.fai.gov/certificati

on/fac-c/contracting-fac/fac-c-legacy-cert-reqs (last visited Aug. 8, 2023);

Memorandum for Chief Acquisition Officers Senior Procurement Executives from

Lesley A. Field, Acting Administrator of the Office of Management and

Budget (May 7, 2014), https://www.fai.gov/sites/default/files/2014-05-07-FAC-

C_Refresh.pdf. 8 Thus, regarding this matter, we find that the appellant has

nonfrivolously alleged that she disclosed a violation of a rule. See Chavez v.

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 25 (2013) (stating that the

Board has suggested that “rule” includes established or authoritative standards for

conduct or behavior); Rusin v. Department of the Treasury, 92 M.S.P.R. 298,

¶¶ 15-16 (2002) (finding that alleged disclosures of violations of a n agency’s

procurement instruction memorandum and a Government commercial credit card

program constituted nonfrivolous allegations of violations of rules). Regarding

disclosure 6, the appellant asserts that she had a reasonable belief that her former

supervisors used a contractor to set up an advisory group in conjunction with a

major university without obtaining GSA approval because she heard her former

8

The links to these documents that the appellant provided with her jurisdictional

submission in 2015 appear to be no longer available. IAF, Tab 7 at 20-21.

15

supervisor boast in meetings that he had circumvented FACA. IAF, Tab 7 at 179.

As with the appellant’s above-referenced alleged violations of law, we find that,

given her experience and position, she nonfrivolously alleged that she had a

reasonable belief that she was disclosing a violation of law, rule, or regulation.

¶19 We also find that the appellant nonfrivolously alleged that she disclosed an

abuse of authority by her former supervisor during her October 30,

2013 testimony before an Administrative Investigative Board (AIB). 9 In

particular, the appellant alleges that, during her testimony, she disclosed that her

former supervisor used the VA OIG as a form of intimidation against anybody

who dared cross him as well as made abusive comments and engaged in alleged

harassment and intimidation. IAF, Tab 7 at 15-16, 111. She also alleges that,

from Spring 2012 through January 2014, she disclosed monthly to her former

supervisor and her former second-level supervisor that her former supervisor was

refusing to correct inaccurate data presented during monthly meetings with her

peers across the agency and manipulating data to discredit and embarrass her. Id.

at 26-27. We find such allegations amount to a nonfrivolous allegation of a

disclosure of an abuse of authority. 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,

9

Effective December 12, 2017, the National Defense Authorization Act of 2018 (2018

NDAA) amended 5 U.S.C. § 2302(b)(9)(C) to provide that, in addition to the Inspector

General of an agency or the Special Counsel, a disclosure to “any other component

responsible for internal investigation or review” is also protected. Pub. L. No. 115 -91,

§ 1097(c)(1), 131 Stat. 1283, 1618 (2017). We need not decide whether the appellant’s

2013 AIB testimony also falls within the coverage of the amended

section 2302(b)(9)(C) because the statutory provision is not retroactive. Edwards v.

Department of Labor, 2022 MSPB 9, ¶¶ 29-33, aff’d, No. 2022-1967, 2023 WL

4398002 (Fed. Cir. July 7, 2023). In any event, we find, as discussed here, that the

appellant nonfrivolously alleged that she made a protected disclosure.

16

652 F. App’x 971 (Fed. Cir. 2016); Murphy v. Department of the Treasury,

86 M.S.P.R. 131, ¶ 6 (2000) (stating that a supervisor’s use of his influence to

denigrate other staff members in an abusive manner and to threaten the careers of

staff members with whom he disagrees constitutes an abuse of authority).

Accordingly, in sum, we find that the appellant nonfrivolously alleged that she

disclosed violations of law, rule, or regulation and an abuse of authority. 10

The appellant has nonfrivolously alleged that her alleged disclosures were a

contributing factor in the agency’s decision to threaten her removal.

¶20 An appellant may meet her jurisdictional burden regarding the contr ibuting

factor element if she nonfrivolously alleges that the official who took or

threatened to take the personnel action at issue knew of the protected

whistleblowing disclosures or activity and that the personnel action occurred

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

disclosures or activity were a contributing factor in the personnel action. Carney

v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 7 (2014). The Board has

found that personnel actions alleged to have begun within 1 to 2 years of the

appellant’s protected whistleblowing disclosures or activity satisfy the timing

prong of this knowledge/timing test. See, e.g., Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶¶ 20-22 (2015).

¶21 Except for the appellant’s alleged disclosures regarding a contractor being

improperly used on a sole-source basis and a second contractor being improperly

used as an industry advisory group, and alleged disclosures made during her

AIB testimony, the appellant’s remaining alleged disclosures were all made to her

10

To the extent the appellant alleges that she engaged in protected activity by filing an

equal employment opportunity complaint (EEO) against her former supervisor, IAF,

Tab 7 at 28, we find such an allegation fails to amount to a nonfrivolous allegation that

she engaged in protected activity under section 2302(b)(9), see Edwards, 2022 MSPB 9,

¶ 25 (holding that complaints to the EEO office regarding discrimination are not within

the purview of section 2302(b)(9)(A)(i) and the Board lacks jurisdiction to consider

such allegations in the context of an IRA appeal ).

17

former supervisor, whom she alleges threatened her removal. Thus, her former

supervisor had knowledge of such disclosures. Many of these alleged disclosures

occurred between approximately October 2010 11 and June 2012, within 2 years

prior to when the appellant’s former supervisor is alleged to have initiated the

OIG investigation in July 2012. Although the VA OIG report and the appellant’s

former supervisor’s comments regarding his intent to harm the appellant’s ca reer

did not occur until December 2014, we find that the appellant has nonfrivolously

alleged that such actions were part of a continuum of related actions that

commenced with the July 2012 OIG complaint. See Agoranos v. Department of

Justice, 119 M.S.P.R. 498, ¶¶ 22-23 (2013) (finding that an appellant could

satisfy the timing prong of the knowledge/timing test by showing that the

personnel actions at issue were part of a continuum of related performance -based

actions, the first of which occurred within 2 years of the appellant ’s disclosure).

Moreover, the appellant also made alleged disclosures between Spring 2012 and

January 2014 to her former supervisor, which were followed within 2 years by the

December 2014 report.

¶22 Accordingly, we find that the appellant has nonfrivolously alleged that she

made at least one protected disclosure that was a contributing factor in at least

one covered personnel action. See Fitzgerald v. Department of Agriculture,

97 M.S.P.R. 181, ¶ 10 (2004). Thus, we find that she has established jurisdiction

over this IRA appeal and is entitled to a hearing on the merits. 12 Salerno,

123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(4).

11

Although one of the appellant’s alleged disclosures to her former supervisor occurred

in September 2009, she alleges that she made the same disclosure on October 10, 2010.

IAF, Tab 7 at 20, 47-48.

12

Because the appellant need only nonfrivolously allege that she made at least one

protected disclosure that was a contributing factor in at least one personnel action to

establish jurisdiction and entitlement to a hearing, we need not address the appellant’s

remaining alleged protected disclosures. On remand, the administrat ive judge shall also

address whether the appellant met her contributing factor burden under the

18

ORDER

¶23 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

knowledge/timing test or pursuant to the factors set forth in Dorney v. Department of

the Army, 117 M.S.P.R. 480, ¶ 15 (2012) with respect to her alleged disclosures

regarding a contractor being improperly used on a sole source basis, a second contractor

being improperly used as an industry advisory group, and the appellant’s AIB

testimony.