stating that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue
How later courts described this case
- stating that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL CASSIDY, DOCKET NUMBER
Appellant, PH-1221-18-0223-W-1
v.
DEPARTMENT OF HOMELAND DATE: April 12, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Paul Cassidy , South Burlington, Vermont, pro se.
Agatha Swick , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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,
AFFIRM the portion of the initial decision finding that the appellant did not make
a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8),
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the ultimate finding of the initial decision that the Board lacks
jurisdiction over this appeal, and REMAND the case to the Northeastern Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
On January 11, 2015, the agency appointed the appellant to the excepted
service position of Transportation Security Officer with the agency’s
Transportation Security Administration at the Burlington International Airport in
Vermont. Initial Appeal File (IAF), Tab 6 at 14. The agency terminated his
employment on April 2, 2015, before the completion of his 2-year trial period,
due to failure to meet the designated certification standards of his position.
Id. at 13-14, 16-18.
On September 10, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) in which he disputed the agency’s stated reason for his
termination. IAF, Tab 1 at 5, 8-12. In a letter dated January 10, 2018, OSC
informed the appellant that it had closed its inquiry into his allegations and
notified him of his right to file an IRA appeal with the Board. Id. at 8.
On March 12, 2018, the appellant filed an IRA appeal with the Board in
which he alleged that members of management targeted, harassed, and ultimately
terminated him after he voiced his concerns regarding the assignment of an
incompetent mentor and the existence of inconsistencies between the national and
local standard operating procedures (SOPs). IAF, Tab 1 at 6, 13, 15-18, 31,
Tab 5 at 4-5. He described that the work environment was hostile due to
incidents of nepotism, corruption, and sexual harassment that he purportedly
witnessed or personally experienced at the agency. IAF, Tab 1 at 13-32.
The administrative judge issued an Order to Show Cause that set forth the
burdens of proof for an IRA appeal and ordered the appellant to provide evidence
and argument that his IRA appeal is within the Board’s jurisdiction. IAF, Tab 4.
In his response, the appellant reiterated his prior claims. IAF, Tab 5. Without
3
holding the requested hearing, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant’s putative disclosures did not
satisfy the Board’s nonfrivolous pleading standard. IAF, Tab 7, Initial Decision
(ID) at 6-9. The administrative judge explained that the appellant’s allegation of
SOP discrepancies lacked the required level of specificity and that the appellant
had not alleged facts sufficient from which a disinterested observer could
reasonably conclude that his allegation of his mentor’s incompetence evidenced
any category of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Id.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the appellant did not make a
nonfrivolous allegation of a protected disclosure.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), 2
the Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before the Office of Special Counsel (OSC) and makes
nonfrivolous allegations 3 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
personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
The appellant does not challenge on review, and we discern no reason to
disturb, the administrative judge’s finding that, while the appellant exhausted his
administrative remedies before OSC as to his putative disclosures regarding his
2
The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal.
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
incompetent mentor and SOP discrepancies, he failed to make a nonfrivolous
allegation that these disclosures were protected under 5 U.S.C. § 2302(b)(8).
ID at 5-9; PFR File, Tab 1 at 3-4; see Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980), (noting that, before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect, and identify the specific evidence in
the record that demonstrates the error).
We remand the appeal to the regional office for adjudication of the appellant’s
perceived whistleblower claim.
Under certain circumstances, an appellant can establish jurisdiction over an
IRA appeal without making a nonfrivolous allegation that he made a protected
disclosure. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 6 (2011).
Specifically, an individual who is perceived as a whistleblower is still entitled to
whistleblower protections, even if he has not made protected disclosures. Id.
In such cases, the Board will focus its analysis on the agency’s perceptions, i.e.,
whether the agency officials involved in the personnel actions at issue believed
that the appellant made or intended to make disclosures that evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id., ¶ 8. The issue of whether
the appellant actually made protected disclosures is immaterial; the issue of
whether the agency perceived the appellant as a whistleblower will essentially
stand in for that portion of the Board’s analysis in both the jurisdictional and
merits stages of the appeal. Id.
Thus, to meet his jurisdictional burden, the appellant must show that he
exhausted his remedies with OSC and make nonfrivolous allegations that the
agency perceived him as a whistleblower and that such perception was a
contributing factor in the decision to take or not take the personnel action at
issue. Id., ¶ 9. If the appellant meets his burden of proof, the agency may still
prevail if it can show by clear and convincing evidence that it would have taken
5
the personnel action at issue absent its perception of the appellant as a
whistleblower. Id.
On review, the appellant reiterates the allegations he made below that
members of management “knew [he] was about to blow the whistle and they went
to great lengths to silence [him] before [he] could do so.” PFR File, Tab 1 at 3;
IAF, Tab 1 at 6, 13. He observes that, after he informed his mentor that he was a
writer, the news “spread like [wildfire]” and several employees, including
members of management, expressed immoderate interest in his writing endeavors.
IAF, Tab 1 at 31; PFR File, Tab 1 at 4. He noted that, although he “made it clear
that he was a creative writer and not a journalist,” he “sensed a strange paranoia
when people inquired [as to the subject matter of his] writing.” IAF, Tab 1 at 31.
These allegations appeared in a 20-page narrative, which the appellant clarified in
his response to the Order to Show Cause was a copy of the complaint he filed
with OSC. IAF, Tab 1 at 13-32, Tab 4 at 6, Tab 5 at 4-5.
Here, the appellant did not receive explicit notice of how to establish
jurisdiction over an IRA appeal as a perceived whistleblower, and the defect was
not corrected by the agency’s submissions or by the initial decision.
IAF, Tabs 4, 6-7; see Burgess v. Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985) (stating that an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue);
Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007) (explaining that an
administrative judge’s failure to provide an appellant with proper notice can be
cured if the agency’s pleadings or the initial decision puts the appellant on notice
of what he must do to establish jurisdiction) . Although it may not be necessary
for an administrative judge to provide notice in every IRA appeal of how to
establish jurisdiction as a perceived whistleblower, we find that the
administrative judge in this case should have afforded the appellant such notice in
light of his particular allegations.
6
ORDER
For the reasons discussed above, we AFFIRM, in part, and VACATE,
in part, the initial decision, and REMAND this case to the Northeastern Regional
Office for further adjudication in accordance with this Remand Order.
The administrative judge shall notify the appellant of how to establish jurisdiction
over an IRA appeal as a perceived whistleblower and afford the parties the
opportunity to submit evidence and argument, including a hearing, if warranted,
before adjudicating the issue on remand. See Agoranos v. Department of Justice,
119 M.S.P.R. 498, ¶ 36 (2013). In the remand initial decision, the administrative
judge may incorporate by reference the findings and determinations of the initial
decision affirmed by this Remand Order. Id.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.