George Johnson v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GEORGE JOHNSON, DOCKET NUMBERS

Appellant, NY-1221-14-0389-W-1

NY-1221-16-0251-W-1

v.

DEPARTMENT OF HOMELAND

SECURITY, DATE: September 7, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

Andrew Lipkind, Esquire, Buffalo, New York, for the agency.

Larry Zieff, Esquire, Irving, Texas, 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,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

AFFIRM the initial decision’s determination that the appellant did not

nonfrivolously allege a protected disclosure under 5 U.S.C. § 2302(b)(8),

VACATE the remainder of the initial decision, and REMAND the case to the

New York Field Office for further adjudication in accordance with this Remand

Order.

BACKGROUND

¶2 The appellant is employed as a GS-13 Special Agent with Immigration and

Customs Enforcement. Johnson v. Department of Homeland Security, MSPB

Docket No. NY-1221-16-0251-W-1, Initial Appeal File (0251 IAF), Tab 1 at 2,

Tab 11 at 4. He began his career with the agency in 2008 and , for all periods

relevant to these appeals, has been assigned to the Newark, New Jersey office.

0251 IAF, Tab 11 at 4.

¶3 On October 7, 2010, the appellant, through his attorney, disclosed to agency

officials his belief that his current and former supervisors had engaged in

“conduct against him which can only be construed as harassment.” Johnson v.

Department of Homeland Security, MSPB Docket No. NY-1221-11-0107-W-1,

Initial Appeal File (0107 IAF), Tab 5 at 5-9. In November 2010, the appellant

filed a complaint with the Office of Special Counsel (OSC) alleging that, in

retaliation for the October 2010 disclosure, his current supervisor issued him a

performance appraisal that “did not accurately reflect [his] true job performance.”

Id. at 44, 61.

¶4 After OSC closed its investigation, the appellant filed a February 2011 IRA

appeal with the Board, raising the same issues he raised before OSC. Id.

at 80, 82, 86; 0107 IAF, Tabs 1, 5, 20. The agency moved to dismiss the appeal

for lack of jurisdiction, but the administrative judge denied that motion, finding

that the appellant had made a nonfrivolous allegation that he made a disclosure

protected under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing

factor in the decision to take a personnel action. 0107 IAF, Tab 10 at 1-12,

3

Tab 12 at 2-3. The administrative judge in that appeal scheduled a hearing, but

the parties entered into a settlement agreement prior to the hearing. 0107 IAF,

Tab 12 at 3, Tab 29. In a September 7, 2011 initial decision dismissing the

appeal as settled, the administrative judge found, among other things, that the

Board had jurisdiction over the appeal. 0107 IAF, Tab 30, Initial Decision. The

initial decision became final on October 12, 2011, after neither party filed a

petition for review. Id. at 4.

¶5 On May 6, 2014, the appellant filed another complaint with OSC, alleging

that, in reprisal for his October 2010 disclosure, his November 2010 OSC

complaint, and his February 2011 Board appeal, various agency officials took or

failed to take various actions regarding his employment between February 2012

and April 2014, including denying his hardship transfer, making negative

statements that tainted his Supervisory Promotional Assessment Panel, issuing

him an unjustifiably negative mid-year review, not selecting him for a position,

issuing him an undeservedly low rating on his performance appraisal, and

denying him a cash award. Johnson v. Department of Homeland Security, MSPB

Docket No. NY-1221-14-0389-W-1, Initial Appeal File (0389 IAF), Tab 9

at 20-34, 53. On September 17, 2014, after the OSC complaint had been pending

for 120 days, the appellant filed an IRA appeal with the Board arguing the same

issues raised in the OSC complaint. 0389 IAF, Tabs 1, 9, 10, 29. The appeal was

assigned to a different administrative judge than the one who heard the

appellant’s 2011 Board appeal.

¶6 While the September 2014 IRA appeal was pending before the

administrative judge, on November 20, 2015, the appellant filed another

complaint with OSC alleging that, in reprisal for his disclosures, November 2010

and May 2014 OSC complaints, and February 2011 and September 2014 Board

appeals, various agency officials took or failed to take various actions regarding

his employment between April 2014 and October 2015, including assigning him

to double duty functions, not providing him with sufficient time to complete an

4

assignment, issuing him an unjustifiably low rating on his performance appraisal,

and denying him a cash award. 2 0251 IAF, Tab 1 at 13-29. On June 1, 2016,

after the November 20, 2015 OSC complaint had been pending for 120 days, the

appellant filed another IRA appeal with the Board, raising the same issues raised

in the November 2015 OSC complaint. 0251 IAF, Tabs 1, 11.

¶7 The administrative judge joined the June 2016 IRA appea l and the

September 2014 IRA appeal for adjudication and issued a September 30, 2016

initial decision. 3 0251 IAF, Tab 6, Tab 21, Initial Decision (0251 ID). The

administrative judge first found that the joined appeals were not covered by the

Whistleblower Protection Enhancement Act (WPEA), which took effect on

December 27, 2012, because the appellant’s alleged protected disclosure took

place in October 2010. 0251 ID at 9-11. The administrative judge then found

that the law of the case doctrine did not prevent him from reexamining the

previous administrative judge’s jurisdictional ruling in the 2011 initial decision

dismissing the appeal as settled and finding that the appellant failed to make a

nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8).

0251 ID at 12-21. The administrative judge also found that, assuming that the

appellant made a nonfrivolous allegation that he made a protected disclosure, he

failed to make a nonfrivolous allegation that his actions were a contributing factor

in a personnel action taken against him. 0251 ID at 21-25. Thus, he found that

the appellant failed to meet his burden to show that the Board has jurisdiction

over these joined appeals, and he dismissed the appeals without holding the

appellant’s requested hearing. 0251 ID at 25-26; 0251 IAF, Tab 1 at 2; 0389 IAF,

Tab 1 at 2.

2

The appellant set forth a list of approximately 17 alleged personnel actions in his

response to the administrative judge’s jurisdictional order. 0251 IAF, Tab 11 at 19-23.

3

For ease of reference, we will cite to the initial decision in MSPB Docket

No. NY-1221-16-0251-W-1.

5

¶8 In his petition for review of the initial decision , the appellant argues that the

administrative judge erred by disregarding the law of the case doctrine regarding

the finding of jurisdiction in the 2011 appeal. Petition for Review (PFR) File,

Tab 1 at 8. He also asserts that he made a nonfrivolous claim that he made

protected disclosures under 5 U.S.C. § 2302(b)(8)(A) and (b)(8)(B), engaged in

protected activities under 5 U.S.C. § 2302(b)(9), and that the retroactivity of the

WPEA is not an issue in the appeal. Id. at 7-9. Finally, the appellant argues that

the administrative judge erred in finding that he failed to make a nonfrivolous

allegation that his protected disclosures or activities were a contributing factor in

the contested personnel actions. Id. at 10-15. The agency has responded in

opposition to the petition for review. PFR File, Tab 3 .

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the appellant’s October 2010 letter

did not contain protected disclosures under 5 U.S.C. § 2302(b)(8).

¶9 As an initial matter, we discern no basis to disturb the administrative

judge’s finding that the appellant’s October 2010 letter did not contain protected

disclosures. 0251 ID at 12-21. The allegations contained within the October

2010 letter consisted largely of the appellant’s objections to his current and

former supervisor’s treatment of him, alleging, among other things, that they were

overly critical of his performance, threatened to place him on a performance

improvement plan, and demeaned and belittled him in front of others. 0107 IAF,

Tab 5 at 5-9. The administrative judge thoroughly addressed each of the

allegations contained within the five-page letter, finding that the appellant failed

to establish that he held a reasonable belief that the disclosures contained within

the letter evidenced gross mismanagement, abuse of authority, or a violation of

law, rule, or regulation. 0251 ID at 12-21. After considering the appellant’s

arguments on review, we find that the administrative judge’s findings are

6

well-reasoned and supported by the record. 4 Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 106 (1997) (explaining that the Board will not disturb an

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclus ions on issues of

credibility); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

Contrary to the administrative judge’s finding, these joined appeals are subject to

the provisions of the WPEA.

¶10 The administrative judge determined that, because the appellant’s initial

disclosure occurred prior to the effective date of the WPEA, that statute did not

apply. 0251 ID at 9-11. Accordingly, he limited his analysis in the initial

decision to whether the appellant made a nonfrivolous allegation that his

October 2010 letter constituted a protected disclosure under 5 U.S.C.

§ 2302(b)(8), and did not address whether the appellant’s OSC complaints or IRA

appeals constituted protected activities under 5 U.S.C. § 2302(b)(9). 0251 ID

at 9-21.

¶11 As noted above, the WPEA became effective on December 27, 2012.

WPEA, § 202, Pub. L. No. 112-199, 126 Stat. 1465, 1476 (2012). That statute

extended the scope of the Board’s jurisdiction over IRA appeals to include the

prohibited personnel practices described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),

and (D), as amended by the WPEA. WPEA, § 101(b)(1)(A), 126 Stat. 1465,

1465; see 5 U.S.C. § 1221(a); Miller v. Federal Deposit Insurance Corporation,

122 M.S.P.R. 3, ¶ 2 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). In

4

As noted above, the administrative judge found that the law of the case doctrine did

not preclude him from reexamining, in this IRA appeal, the earlier administrative

judge’s finding, in dismissing the prior IRA appeal as settled, that the appellant had

made a nonfrivolous allegation of a protected disclosure. 0251 ID at 11-12. We agree.

See, e.g., Pawn v. Department of Agriculture, 90 M.S.P.R. 473, ¶ 15 (2001) (holding

that, under the law of the case doctrine, a decision on an issue of law made at one stage

of a proceeding becomes a binding precedent to be followed in successive stages of the

same litigation).

7

determining whether the WPEA applies to an appeal, the Board has explained that

the relevant consideration is whether the statutory provisions would impair rights

a party possessed when he acted, increase a party’s liability for past conduct, or

impose new duties concerning transactions already completed. Edwards v.

Department of Labor, 2022 MSPB 9, ¶ 31 (quoting Landgraf v. USI Film

Products, 511 U.S. 244, 280 (1994)), aff’d, No. 2022-1967 (Fed. Cir. July 7,

2023).

¶12 The relevant events in this appeal are the alleged retaliatory personnel

actions taken by various agency officials. With one exception, those actions all

occurred after the effective date of the WPEA. 5 The agency, therefore, knew of

the parties’ rights, liabilities, and duties under the WPEA when it took the

personnel actions at issue here. Thus, contrary to the administrative judge’s

finding, we find that the WPEA should be applied in these joined appeals. See

Edwards, 2022 MSPB 9, ¶ 31.

The appellant engaged in protected activities under 5 U.S.C. § 2302(b)(9).

¶13 Applying the WPEA to these appeals, the appellant establishes Board

jurisdiction over his IRA appeal if he proves by preponderant evidence that he

has exhausted his administrative remedies before OSC 6 and makes nonfrivolous

allegations that (1) he 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 a

5

In his May 2014 OSC complaint and his September 14, 2014 Board appeal, the

appellant alleged that the denial of his February 2012 request for a hardship transfer

constituted a retaliatory personnel action. 0389 IAF, Tabs 1, 9, 10, 29. That purported

action occurred prior to the effective date of the WPEA.

6

To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must

have provided OSC with a sufficient basis to pursue an investigation into his allegations

of whistleblowing reprisal. Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶ 10. An appellant may give a more detailed account of his

whistleblowing activities before the Board than he did to OSC. Id.

8

personnel action as defined by 5 U.S.C. § 2302(a). Edwards, 2022 MSPB 9, ¶ 8;

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). As relevant here, section 2302(b)(9)(A)(i) includes as

a protected activity “the exercise of any appeal, complaint, or grievance

right . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)],” for

example, a prior IRA appeal. See Clay v. Department of the Army, 123 M.S.P.R.

245, ¶ 10 (2016) (finding that an appellant’s prior Board appeal, which included a

whistleblower reprisal claim, constituted a protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i)). Similarly, section 2302(b)(9)(C) states that an employee

engages in protected activity when he discloses information to the agency’s

Office of the Inspector General or to OSC “in accordance with applicable

provisions of law,” regardless of the content of the disclosure. Fisher v.

Department of the Interior, 2023 MSPB 11, ¶ 8.

¶14 Accordingly, pursuant to section 2302(b)(9)(A)(i) and (b)(9)(C), we find

that the appellant engaged in protected activities when he filed his November

2010 and May 2014 OSC complaints, and his February 2011 and September 2014

IRA appeals. The administrative judge, however, did not consider whether the

appellant made a nonfrivolous allegation that his OSC complaints or IRA appeals

were a contributing factor in the multiple actions raised by the appellant. 0251

ID at 21-25; 0251 IAF, Tab 11 at 19-23.

On remand, the administrative judge shall determine whether the appellant made

a nonfrivolous allegation that his OSC complaints and prior IRA appeals were a

contributing factor in the alleged personnel actions.

¶15 It is clear that, by filing his OSC complaints and IRA appeals, the appellant

engaged in protected activity under 5 U.S.C. § 2302(b)(9). The administrative

judge on remand shall determine whether the appellant made a nonfrivolous

allegation that his OSC complaints and prior IRA appeals were a contributing

9

factor in the alleged personnel actions at issue. 7 To satisfy the contributing factor

criterion at the jurisdictional stage in an IRA appeal, the appellant need only raise

a nonfrivolous allegation that the fact of, or the content of, the activity was one of

the factors that tended to affect the personnel action in any way. Abernathy v.

Department of the Army, 2022 MSPB 37, ¶ 15. One way to establish this

criterion is the knowledge/timing test, in which the appellant may demonstrate

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

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

could conclude that the activities were a contributing factor in the personnel

action. Id. Personnel actions occurring within 1 to 2 years after the protected

activities are sufficient to meet the timing portion of the tes t. Id.

¶16 The knowledge portion of the knowledge/timing test can be met with

allegations of either actual or constructive knowledge. Id. An appellant may

establish an official’s constructive knowledge of a protected activity by

demonstrating that an individual with actual knowledge of the activity influenced

the official accused of taking the retaliatory action. Id. Also, at the jurisdictional

stage, the appellant may be able to establish the knowledge prong even if he did

not specifically identify the agency official responsible for a personnel action.

See Cahill v. Merit Systems Protection Board, 821 F.3d 1370, 1373-76 (Fed. Cir.

2016) (finding that, given the contextual clues in the record, the appellant made a

nonfrivolous allegation of contributing factor even though he did not specifically

identify the agency officials who heard his disclosures); see also Bradley v.

Department of Homeland Security, 123 M.S.P.R. 547, ¶¶ 15-16 (2016) (finding

that, at the jurisdictional stage of an IRA appeal, an appellant can meet his burden

7

The administrative judge should also consider whether the appellant made a

nonfrivolous allegation that the various agency actions constitute covered personnel

actions under 5 U.S.C. § 2302(a)(2)(A) (enumerating the personnel actions covered

under the whistleblower protection statutes).

10

of proof regarding contributing factor without specifically identifying which

management official was responsible for the reprisal).

¶17 Additionally, if an appellant fails to satisfy the knowledge/timing test, the

administrative judge must consider whether the appellant can establish

contributing factor by other means, such as evidence pertaining to the strength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed towards the official taking the action, or

whether these individuals had a desire or motive to retaliate against the appellant.

Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 15; Dorney v.

Department of the Army, 117 M.S.P.R. 480, ¶ 12 (2012). Thus, to the extent that

the knowledge/timing test is not met regarding any personnel action, the

administrative judge should consider whether the appellant has established a

nonfrivolous allegation of contributing factor by other means as set forth above.

¶18 If the administrative judge finds that the appellant nonfrivolously alleged

that his OSC complaints or Board appeals were contributing factors in at least one

personnel action, then the administrative judge shall conduct a hearing on the

merits of the appellant’s claims. 8 In any event, the administrative judge shall

issue a new initial decision that identifies all material issues of fact and law,

summarizes the evidence, resolves issues of credibility, and includes conclusions

of law and legal reasoning, as well as the authorities on which that reasoning

rests. Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980).

8

If the appellant proves by preponderant evidence that a protected activity was a

contributing factor in a personnel action, the administrative judge shall order corrective

action unless the agency proves by clear and convincing evidence that it would have

taken the same actions absent the protected activity. 5 U.S.C. § 1221(e)(1)-(2).

11

ORDER

¶19 For the reasons discussed above, we remand this case to the New York Field

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.