The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT CONKLIN, DOCKET NUMBER
Appellant, AT-1221-16-0700-W-1
v.
DEPARTMENT OF THE ARMY, DATE: February 23, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Nic Roberts , Esquire, Fort Benning, Georgia, 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,
VACATE the initial decision, and REMAND the case to the Atlanta 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
After the appellant was not selected for a Combat Development Specialist
position with the agency in 2015, 2 he filed the instant IRA appeal alleging that he
was not selected because of his prior complaints to the Department of Labor
(DOL) in 2010 and to the Office of Special Counsel (OSC) in 2012. Initial
Appeal File (IAF), Tab 1 at 6, Tab 4 at 17. After affording the appellant notice of
his burdens and elements of proof and affording him the opportunity to submit
evidence and argument establishing jurisdiction, IAF, Tab 3, the administrative
judge dismissed the appeal for lack of jurisdiction, IAF, Tab 8, Initial Decision
(ID).
In the initial decision dismissing the appeal, the administrative judge found
that the appellant failed to nonfrivolously allege that his 2010 DOL complaint
sought to remedy whistleblower reprisal and that he, therefore, failed to allege
that such activity was protected. ID at 6-7. Without making a specific finding on
whether the appellant nonfrivolously alleged that his 2012 OSC complaint
constituted protected activity, the administrative judge ultimately concluded that
the appellant failed to nonfrivolously allege that either the 2010 DOL complaint
or the 2012 OSC complaint was a contributing factor in the agency’s decision to
not select him for the Combat Development Specialist position in 2015. ID
at 7-9.
The appellant has filed a petition for review, wherein he argues that he
nonfrivolously alleged Board jurisdiction and that the administrative judge
inappropriately weighed the evidence of record in dismissing his appeal. Petition
for Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s
petition, to which the appellant has replied. PFR File, Tabs 3-4.
2
It does not appear that the appellant was an employee of the Federal Government when
he applied for the Combat Development Specialist position; rather, the record suggests
he was a contractor at the time. Initial Appeal File, Tab 1 at 9, Tab 4 at 5.
3
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a disclosure that was protected under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described in 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)(2)(A). Bishop v. Department of Agriculture, 2022 MSPB 28, ¶ 13;
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). 3
The administrative judge correctly found that the appellant exhausted his
administrative remedy with OSC regarding his 2010 DOL and 2012 OSC
complaints.
In the initial decision, the administrative judge found that the appellant
exhausted his administrative remedy before OSC regarding his allegation that the
agency did not select him for the Combat Development Specialist position in
2015 in reprisal for, among other things, previous complaints he filed with the
DOL and OSC. 4 ID at 5. We have reviewed the record, which includes a copy of
the appellant’s December 9, 2015 OSC complaint, wherein he asserted that the
agency did not select him for the Combat Development Specialist position in
3
Effective December 27, 2012, Congress enacted the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. In Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶ 51, the Board reasoned that even
if an appellant’s whistleblowing activity occurs prior to the enactment of the WPEA,
the WPEA still applies if the relevant retaliatory event occurs after the enactment date
because the agency then knew of the parties’ rights, liabilities, and duties under the
WPEA. Accordingly, we find that the WPEA applies here even though the appellant’s
alleged protected activity occurred before the enactment of the WPEA because the
alleged personnel action at issue—the nonselection—occurred in 2015, after the
effective date of the WPEA, and is, therefore, the “relevant event” in determining what
statutory scheme applies. See id.
4
The administrative judge found, however, that the appellant failed to show that he
exhausted his OSC remedy with respect to his claims that the agency violated 5 U.S.C.
§ 2302(b)(4). ID at 5. The appellant does not challenge this finding on review, and we
find no reason to disturb it.
4
2015 because of his prior complaints before the DOL and OSC, and because of
his cooperation with an OSC investigation. IAF, Tab 1 at 13-14, 16. As such, we
agree with the administrative judge that the appellant exhausted his
administrative remedy with OSC with respect to his 2010 DOL and 2012 OSC
complaints. ID at 5.
We find that the appellant nonfrivolously alleged that his 2012 OSC complaint
constituted protected activity under 5 U.S.C. § 2302(b)(9)(C).
The next step in the appellant’s jurisdictional burden is to make a
nonfrivolous allegation that he made a disclosure that was protected under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). See Bishop, 2022 MSPB 28, ¶ 13; Salerno,
123 M.S.P.R. 230, ¶ 5. Here, the appellant’s IRA appeal concerns activities—his
2010 filing of a DOL complaint and his June 15, 2012 filing of an OSC complaint
—that he asserts are protected under section 2302(b)(9). 5 IAF, Tab 4.
Regarding the appellant’s 2012 OSC complaint, as briefly noted above, the
administrative judge does not appear to have made a specific finding on whether
the appellant nonfrivolously alleged that his 2012 OSC complaint constituted
5
In the initial decision, the administrative judge found that the appellant failed to
nonfrivolously allege that his DOL complaint sought to remedy whistleblower reprisal,
as required by the WPEA. ID at 6. As such, he concluded that the Board lacked
jurisdiction to consider it. ID at 6-7. The appellant does not appear to challenge this
finding on review. PFR File, Tab 1. We have reviewed the record, and we agree with
the administrative judge’s analysis. Under the WPEA, the Board has jurisdiction to
hear appeals of violations of 5 U.S.C. § 2302(b)(9)(A)(i), i.e., allegations of reprisal for
exercising a right to complain, when the substance of that complaint seeks redress for a
violation of 5 U.S.C. § 2302(b)(8). Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013). As correctly noted by the administrative judge, the
appellant alleged below that the subject matter of his complaint before the DOL was
whether his veterans’ preference rights were violated in the hiring process in
contravention of the Veterans Employment Opportunities Act of 1998. ID at 7; IAF,
Tab 4 at 17. He reiterated this position in his petition for review. PFR File, Tab 1 at 5.
Because the appellant has not made a nonfrivolous allegation that his 2010 DOL
complaint concerned remedying an alleged violation of subparagraph (b)(8), the Board
lacks jurisdiction over his allegations of reprisal in the context of this IRA appeal.
Mudd, 120 M.S.P.R. 365, ¶ 7.
5
protected activity under 5 U.S.C. § 2302(b)(9). ID at 7-8. As such, we do so
here. Under section 2302(b)(9)(C), an agency may not “take or fail to take . . .
any personnel action against any employee or applicant for employment because
of . . . [his] cooperating with or disclosing information to . . . the Special
Counsel, in accordance with applicable provisions of law.” 6 Under this broadly
worded language, the activity of filing an OSC complaint would be protected
under section 2302(b)(9)(C) regardless of the complaint’s content. See Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶ 62 (stating that disclosing
information to, among others, OSC is protected activity under section 2302(b)(9)
(C) irrespective of whether an individual had a reasonable belief that she was
disclosing wrongdoing and regardless of the complaint’s contents). Accordingly,
we find that the appellant nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) when he filed his 2012 OSC complaint.
See id.
The appellant nonfrivolously alleged that his 2012 OSC complaint was a
contributing factor to his 2015 nonselection.
The appellant must next nonfrivolously allege that his 2012 OSC complaint
was a contributing factor in the agency’s decision not to select him for the
Combat Development Specialist position in 2015. See Bishop, 2022 MSPB 28,
¶ 13; Salerno, 123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion
at the jurisdictional stage of an IRA appeal, the appellant only need raise a
nonfrivolous allegation that the fact of, or content of, the protected disclosure or
activity was one factor that tended to affect the personnel action in any way.
Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 19. One way to
6
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code. In particular, it amended 5 U.S.C. § 2302(b)(9)(C) to provide that, in
addition to the Special Counsel, a disclosure to “any other component responsible for
internal investigation or review” is also protected. 131 Stat. 1283, 1618. However, the
result here would be the same under both pre- and post-NDAA law because the
appellant disclosed information to OSC.
6
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 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.
Below, the appellant alleged that the then-Soldier Systems Branch Deputy
Director (Deputy Director) was “likely” the selecting official for the 2015
position and that the Deputy Director had “likely surmised” from OSC’s
investigation into his 2012 complaint, which concerned another nonselection in
which the appellant alleges he was involved, that the appellant was the person
who had filed the complaint. IAF, Tab 4 at 9. In essence, the appellant alleged
below that the agency official he believed to be responsible for the nonselection
in 2015 was likely aware of his 2012 OSC complaint. Id.
In the initial decision, the administrative judge found that the appellant
failed to raise nonfrivolous allegations sufficient to show that the appellant’s
OSC complaint was a contributing factor in the agency’s decision not to select
him for the Combat Development Specialist position. ID at 9. In so finding, he
reasoned that the “appellant himself indicated uncertainty as to whether the
[Deputy Director] . . . was the selecting official for that position.” Id.
Additionally, he relied on a sworn statement submitted by the agency from the
Capability Manager that he was the selecting official for the Combat
Development Specialist position in 2015, and not the Deputy Director. Id.; IAF,
Tab 6 at 6. The administrative judge then stated that the appellant had produced
no evidence that the Capability Manager had knowledge of his previous
complaints. ID at 9. He ultimately concluded that the appellant “failed to
otherwise set forth facts sufficient to constitute a nonfrivolous allegation” that his
7
previous complaints contributed to the agency’s decision not to select him for the
position. ID at 9-10.
On review, the appellant argues that, at the jurisdictional stage, he was not
required to do any more than to make a nonfrivolous allegation that he was not
selected for the position in reprisal for filing a prior OSC complaint and that the
administrative judge erred in relying on agency evidence in “refusing to find that
[he] established a nonfrivolous allegation.” PFR File, Tab 1 at 11. We agree.
The Board has consistently held that, although an administrative judge may
consider the agency’s documentary submissions in determining whether the
appellant has made a nonfrivolous allegation of jurisdiction, he may not weigh
evidence and resolve conflicting assertions of the parties, and the agency’s
evidence may not be dispositive. See Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446, ¶ 11 (2014); see also Weed v. Social Security Administration,
113 M.S.P.R. 221, ¶ 19 (2010). Moreover, in the time that followed the initial
decision, our reviewing court explained that “the question of whether the
appellant has nonfrivolously alleged protected disclosures that contributed to a
personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” See Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1367,
1369 (Fed. Cir. 2020). Here, the administrative judge considered evidence
outside of the appellant’s allegations, specifically, the sworn statement from the
Capability Manager that he was the agency official responsible for the 2015
selection, and that evidence, which the administrative judge appears to have
treated as dispositive, served only to contradict the appellant’s assertion that he
believed the Deputy Director was responsible for his nonselection. ID at 9; IAF,
Tab 6 at 6. Based on established precedent, we find that it was error to consider
the agency’s evidence below at the jurisdictional stage. See Hessami, 979 F.3d
at 1367, 1369; see also Carney, 121 M.S.P.R. 446, ¶ 11.
8
As such, we must now determine whether the appellant’s allegations,
accepted as true, constitute a claim that is plausible on its face that his 2012 OSC
complaint was a contributing factor in the agency’s decision not to select him for
the Combat Development Specialist position in 2015. See Hessami, 979 F.3d
at 1369; see also Skarada, 2022 MSPB 17, ¶ 19. As mentioned above, one way to
make such a determination is the knowledge/timing test. Skarada, 2022 MSPB
17, ¶ 19. Here, the appellant has alleged that the Deputy Director was
responsible for his nonselection and that he was aware of the 2012 OSC
complaint. IAF, Tab 4 at 9. Thus, the appellant’s allegations satisfy the
knowledge prong of the test. Regarding the timing prong, the appellant has
asserted on review that the Deputy Director was informed of his 2012 OSC
complaint in August of 2013, and his submissions otherwise suggest that the
nonselection occurred sometime around May of 2015. 7 PFR File, Tab 1 at 11;
IAF, Tab 4 at 10. The Board has held that a personnel action taken within
1-2 years of an appellant’s disclosure or activity satisfies the timing component
of the knowledge/timing test. See Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 21 (2015). Because the appellant’s claims effectively
amount to an allegation that the agency did not select him for the Combat
Development Specialist position within 21 months of the alleged relevant agency
official learning of the 2012 OSC complaint, we find that he has met the timing
prong of the knowledge/timing test at the jurisdictional stage. See Smith v.
Department of Agriculture, 64 M.S.P.R. 46, 65 (1994) (considering whether the
appellant established that his protected disclosures were a contributing factor in
the agency’s action when the action was taken within a reasonable time after the
7
Although we are cautious in considering documentary evidence at the jurisdictional
stage, we need not consider the appellant’s allegations “in a vacuum.” See Hessami,
979 F.3d at 1369. We find it appropriate in this specific instance to look beyond the
appellant’s allegation that he was not selected for a position to consider the documents
he attached to give that allegation a greater context. IAF, Tab 4 at 10. Moreover, the
context suggested by the appellant’s submission—that his nonselection occurred
sometime in or around May 2015—is not contradicted or challenged by the agency.
9
official taking the action became aware of the appellant’s disclosures) (emphasis
added). Based on our findings that the appellant met both prongs of the
knowledge/timing test, we, therefore, find that he nonfrivolously alleged that his
2012 OSC complaint was a contributing factor in his nonselection.
Based on the foregoing, we find that the appellant nonfrivolously alleged
that he engaged in protected activity that was a contributing factor to a personnel
action and that he has established the Board’s jurisdiction over his IRA appeal.
See Bishop, 2022 MSPB 28, ¶ 13. Accordingly, we remand the appeal to the
Atlanta Regional Office, where the appellant is entitled to a hearing on the merits,
which he must prove by preponderant evidence. 5 U.S.C. § 1221(e)(1); Lu v.
Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant
meets his burden of proving that his protected activity was a contributing factor
in the agency’s personnel action, the agency shall have the opportunity to prove,
by clear and convincing evidence, that it would have taken the same personnel
action in the absence of the protected activity. 5 U.S.C. § 1221(e)(2); Lu, 122
M.S.P.R. 335, ¶ 7; see Carr v. Social Security Administration, 185 F.3d 1318,
1322-23 (Fed. Cir. 1999).
10
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order. 8
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.