The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ZIMIMAN BROWN, DOCKET NUMBER
Appellant, AT-1221-19-0188-W-1
v.
DEPARTMENT OF DEFENSE, DATE: February 21, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Zimiman Brown , Huntsville, Alabama, pro se.
James J. Delduco , Esquire, Redstone Arsenal, Alabama, for the agency.
Rachel Heafner , Huntsville, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REVERSE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant holds an Information Technology Specialist position with the
Missile Defense Agency. Initial Appeal File (IAF), Tab 1 at 7. He filed the
instant appeal of an alleged prohibited personnel practice with the Board, and he
requested a hearing. Id. at 1-5. Specifically, he alleged that, during an
August 25, 2015 meeting, he expressed his belief that directions he was given
violated the Federal Acquisition Regulation (FAR) regarding “Inherently
Governmental Functions.” Id. at 5. He further alleged that, because he refused to
obey such directions, his second-level supervisor directed his first-level
supervisor to modify his performance appraisal for Fiscal Year (FY) 2015. Id.
The appellant also referenced the agency having committed prohibited personnel
practices against “at least” 15 other employees. Id.
In an Order on Jurisdiction and Proof Requirements, the administrative
judge informed the appellant that there was a question as to whether the Board
has jurisdiction over this appeal, apprised him of the elements and burden of
proving jurisdiction in an IRA appeal, and ordered him to file a statement with
accompanying evidence on the jurisdictional issue. IAF, Tab 3. The appellant
did not respond.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 4, Initial Decision (ID) at 1, 3. Specifically, the administrative judge found
that the appellant did not submit a copy of the whistleblowing complaint that he
claimed he filed with the Office of Special Counsel (OSC) or the closure letter
from OSC. ID at 3. In so finding, the administrative judge acknowledged that
the appellant had submitted a copy of an email message from OSC, which stated
as follows: “Attached are the closure letter and individual right of appeal letter
3
for the above cited matter.” Id.; IAF, Tab 1 at 59. However, the administrative
judge indicated that the appellant “did not submit the referenced attachments,”
and, therefore, he was “unable to determine whether the ‘matter’ alluded to in
OSC’s email message [was] the same one described in the instant Board appeal,
or anything else about its substance.” ID at 3.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 7-8. In his petition, the appellant explains how he embedded
14 attachments within his Portable Document Format (PDF) initial appeal
document. PFR File, Tab 1 at 15-24. He argues that the administrative judge
failed to consider these attachments, and he provides copies of the same, to
include OSC’s closure letter and individual right of appeal letter. Id. at 3-14,
25-37; PFR File, Tab 4.
The Board’s e-Appeal Online system was not configured to process files
embedded within a PDF submission; accordingly, the administrative judge did not
review the embedded attachments/files. 2 PFR File, Tab 3 at 1. The Board was
able to access some, but not all, of the files purportedly embedded within the
appellant’s initial submission. IAF, Tab 1. Among the accessible files were
copies of OSC’s closure letter and individual right of appeal letter. As stated, in
his initial decision, the administrative judge acknowledged that the appellant’s
initial filing had referenced these specific documents; however, the administrative
judge, unaware that the appellant had embedded files within his submission, did
not review the same. ID at 3; IAF, Tab 1 at 59. Given the unusual
circumstances, we find it appropriate to consider the subject letters, PFR File,
2
The Board’s prior e-filing system, “e-Appeal Online,” was decommissioned on
October 1, 2023. However, after the issuance of the initial decision in this appeal,
MSPB added language to e-Appeal Online warning users that embedded files were not
permitted. The Board’s new e-filing system—“e-Appeal”—similarly warns users that
embedded files are not permitted and also prevents users from including embedded files
in a pleading.
4
Tab 1 at 34-37, which, as discussed herein, satisfy the appellant’s jurisdictional
burden.
ANALYSIS
To establish jurisdiction in a typical IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 (WPEA), an appellant must show by
preponderant evidence 3 that he exhausted his administrative 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).
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 11, 14. The
Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).
For the following reasons, we find jurisdiction, and we remand this matter
for adjudication of the merits.
The appellant has proven by preponderant evidence that he exhausted his
administrative remedies before OSC.
Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. The substantive requirements of exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion
through his initial OSC complaint, correspondence with OSC, or other evidence,
such as an affidavit or declaration attesting that the appellant raised with OSC the
substance of the facts in the Board appeal. Id., ¶ 11. The appellant must prove
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
exhaustion with OSC by preponderant evidence. 5 U.S.C. § 1214(a)(3); 5 C.F.R.
§ 1201.57(c)(1).
Here, the appellant made the following allegations in his response to OSC’s
preliminary determination to close the inquiry into his complaint: his supervisor
told him to provide contractual changes for the “CS4 project” to “DPF”; during
an August 25, 2015 meeting, a DPF representative told him that they would not
accept his changes unless he reported them to a particular contractor, and he
responded that the Government does not report to a contractor; 2 hours after the
meeting, his supervisor provided the contractual changes to the contractor; during
a September 8, 2015 phone call, he told his second-level supervisor what had
happened at the meeting and of the FAR regarding Inherently Governmental
Functions; his second-level supervisor directed his first-level supervisor to
change his FY 2015 performance appraisal; the Executive Director denied his
grievance of the performance appraisal as the Performance Review Authority; and
the Executive Director should have recused himself as the Performance Review
Authority because he had an “intimate” relationship with the contractor. 4 PFR
File, Tab 4 at 35-51. 5 Based on the above, we find that the appellant provided
OSC with a sufficient basis to pursue an investigation into his claim that his FY
2015 performance appraisal was taken in retaliation for disclosing FAR violations
and for refusing to obey an order that would require him to violate the FAR.
Therefore, we find that the appellant has met his burden of proving by
preponderant evidence that he exhausted his administrative remedies before OSC.
4
The appellant also alleged before OSC that he was taken off the CS4 project in
August 2015. PFR File, Tab 4 at 46, 48. Because the appellant has not discernably
raised this purported change in duties as a potential personnel action before the Board
in this appeal, we decline to address it further.
5
As stated, the addition of the OSC closure letters alone enables the appellant to satisfy
all of the jurisdictional requirements of an IRA appeal. PFR File, Tab 1 at 34-37.
We reference other documents submitted by the appellant on review only insofar as they
provide additional detail and clarity regarding the nature of his claims.
6
The appellant has nonfrivolously alleged that he made a protected disclosure
under 5 U.S.C. § 2302(b)(8).
A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.
Here, we find that the appellant has nonfrivolously alleged that a
reasonable person in his position would believe that the appellant disclosed a
matter that evidenced a violation of the FAR. 6 See Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (observing that any doubt or
ambiguity as to whether the appellant has made a nonfrivolous allegation of a
reasonable belief should be resolved in favor of a finding that jurisdiction exists).
Specifically, under 48 C.F.R. § 7.503, contracts shall not be used to perform
inherently governmental functions, which include the “direction and control of
6
The appellant’s allegation that the agency committed prohibited personnel practices
against 15 other employees, without more, is outside the scope of an IRA appeal. IAF,
Tab 1 at 5. In particular, the appellant does not discernably claim reprisal for reporting
such alleged prohibited personnel practices or for assisting any of the employees in the
exercise of any appeal, complaint, or grievance right. See Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 n.3 (2014) (explaining that, although 5 U.S.C.
§ 1221(a) limits Board appeal rights under 5 U.S.C. § 2302(b)(9)(A) to individuals who
exercised appeal, complaint, or grievance rights under (i), with regard to remedying a
violation of section 2302(b)(8), there is no such jurisdictional restriction for individuals
filing a Board appeal pursuant to 5 U.S.C. § 2302(b)(9)(B)).
7
Federal employees.” Thus, we find that the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8). 7
The appellant failed to nonfrivolously allege that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(D).
Next, we must consider the appellant’s allegation that he engaged in
protected activity by refusing to obey an order that would require him to violate
the FAR. When the events at issue in this appeal took place, 5 U.S.C. § 2302(b)
(9)(D) made it a prohibited personnel practice to take an action against an
employee for “refusing to obey an order that would require the individual to
violate a law.” The U.S. Court of Appeals for the Federal Circuit found that the
protection in section 2302(b)(9)(D) extended only to orders that would require the
individual to take an action barred by statute. Rainey v. Merit Systems Protection
Board, 824 F.3d 1359, 1361-62, 1364-65 (Fed. Cir. 2016). 8 Thus, under the law
in effect at the time the relevant events took place, the appellant’s claim that he
disobeyed an order that would require him to violate the FAR fell outside the
scope of 5 U.S.C. § 2302(b)(9)(D). Id. On June 14, 2017, the Follow the Rules
Act (FTRA), Pub. L. No. 115-40, 131 Stat. 861, was signed into law. The FTRA
amended section 2302(b)(9)(D) by inserting “, rule, or regulation” after “law.”
Because the relevant events at issue in this appeal occurred prior to the June 14,
2017 enactment of the FTRA, we apply the pre-FTRA version of section 2302(b)
(9)(D). See Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 19
(concluding that the FTRA does not apply to events that occurred before its
7
On remand, the administrative judge shall address whether the appellant’s disclosure
was made during the normal course of his duties. Indeed, if a disclosure is made in the
normal course of an employee’s duties, that disclosure may, depending on the
employee’s principal job functions, be subject to a higher burden in order to qualify as a
protected disclosure. 5 U.S.C. § 2302(b)(8), (f)(2); see Salazar v. Department of
Veterans Affairs, 2022 MSPB 42, ¶ 22.
8
In so finding, the Federal Circuit relied on the U.S. Supreme Court’s decision in
Department of Homeland Security v. MacLean, 574 U.S. 383, 391-95 (2015), which
held that the word “law” in 5 U.S.C. § 2302(b)(8)(A), referred only to a statute, and not
to a rule or regulation.
8
enactment). Thus, the appellant’s claim that the agency retaliated against him for
refusing to obey an order that would require him to violate the FAR is outside the
scope of section 2302(b)(9)(D).
The appellant has nonfrivolously alleged that his protected disclosure was a
contributing factor in his FY 2015 performance appraisal.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect the personnel action
in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. Under the knowledge/timing test,
an appellant may nonfrivolously allege that the disclosure was a contributing
factor in a personnel action through circumstantial evidence, such as evidence
that the official who took 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.
Here, we find that the appellant has nonfrivolously alleged that his
second-level supervisor had knowledge of his protected disclosure on
September 8, 2015, when he purportedly told his second-level supervisor what
happened at the August 25, 2015 meeting and informed him of the FAR regarding
inherently governmental functions. PFR File, Tab 4 at 42. We further find that
the appellant has nonfrivolously alleged that his second-level supervisor directed
his first-level supervisor to modify his FY 2015 performance appraisal sometime
before his appraisal counseling on January 7, 2016. Id. at 4, 36; IAF, Tab 1 at 5.
Therefore, under the knowledge/timing test, we find that the appellant has
nonfrivolously alleged that his whistleblowing disclosure was a contributing
factor in his FY 2015 performance appraisal. 9 See Salerno, 123 M.S.P.R. 230,
¶ 14 (observing that the Board has held that a personnel action taken within
9
At this jurisdictional stage, we need not resolve the appellant’s additional allegations
of contributing factor concerning the Executive Director’s purportedly biased denial of
his grievance of the performance appraisal. PFR File, Tab 4 at 35-36, 49-50.
9
approximately 1 to 2 years of the appellant’s disclosures satisfies the timing
component of the knowledge/timing test); see also Aquino v. Department of
Homeland Security, 121 M.S.P.R. 35, ¶ 23 (2014) (observing that an appellant
can establish contributing factor by showing that an individual with knowledge of
the appellant’s protected disclosure influenced the deciding official accused of
taking the personnel action). A performance appraisal is a cognizable personnel
action under the statute. Rumsey v. Department of Justice, 120 M.S.P.R. 259,
¶ 16 (2013); see 5 U.S.C. § 2302(a)(2)(A)(viii).
Because we find that the appellant has exhausted his administrative
remedies with OSC and has made nonfrivolous allegations that the agency
modified his FY 2015 performance appraisal due to his protected disclosure, we
remand this IRA appeal for the appellant’s requested hearing and a decision on
the merits of his claim.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall order the appellant to resubmit the materials embedded
in his initial appeal filing to ensure a complete record.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.