The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH REILLY, DOCKET NUMBER
Appellant, DC-1221-22-0093-W-1
v.
DEPARTMENT OF LABOR, DATE: April 24, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jacob Madison Small , Esquire, McLean, Virginia, for the appellant.
Alisa Reff and Ian Andrew Spreat , Esquire, Washington, D.C., 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,
REVERSE the administrative judge’s finding that the appellant did not establish
jurisdiction over his claim as set forth below, AFFIRM the remainder of the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision as MODIFIED to supplement the administrative judge’s analysis
of contributing factor, and REMAND the appeal to the Atlanta Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
At the time relevant to this appeal, the appellant was employed as a
Criminal Investigator with the agency’s Office of Inspector General (OIG).
Initial Appeal File (IAF), Tab 9 at 40. In August of 2016, the appellant was
assigned a new first-line supervisor, who, according to the appellant, immediately
began harassing him, rejecting his work reports, taking credit for his
accomplishments, threatening him with a performance improvement plan, and
requiring him to engage in unnecessary travel. Id. at 5, 16-21, 26. Within a few
months, on January 10, 2017, the appellant contacted the OIG’s Internal Affairs
Office about his supervisor’s behavior and communicated to agency officials that
the stress of the alleged harassment was affecting his physical health. Id. at 6,
21. The next day, the Assistant Inspector General advised the appellant that,
based on his representations regarding his medical condition, his authority to
carry a firearm was restricted pending submission of medical documentation from
his physician and the results of a fitness for duty examination. Id. at 7-8, 21, 117.
Soon thereafter, the appellant submitted a letter from his physician requesting
that he be relieved of his duties due to anxiety and panic disorder. Id. at 37. The
appellant was also given a fitness-for-duty examination and was deemed
physically fit for duty but not mentally fit for duty based on Generalized Anxiety
Disorder, Panic Disorder, and Delusional Disorder. Id.; IAF, Tab 11 at 28.
Around the same time, the appellant submitted a claim for workers’
compensation benefits based on the above-referenced medical conditions. IAF,
Tab 9 at 7, 24, 37. Less than a month later, he emailed his U.S. senator asking
for assistance expediting his workers’ compensation claim and reporting that he
had complained of harassment to the agency. Id. at 7, 39. Thereafter, the Office
of Workers’ Compensation Programs (OWCP) denied his claim, and the agency,
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in May 2017, proposed his removal for his medical inability to perform his job.
Id. at 24, 40-42. However, the appellant and the agency agreed that the appellant
would be carried in a leave without pay status while he applied for disability
retirement and awaited a decision from the Office of Personnel Management
(OPM). Id. at 43-44. In January 2018, the appellant requested reinstatement,
asserting that his physicians felt that he could return to work, but a few days later,
OPM approved the appellant’s application for disability retirement. Id. at 45-46.
As such, the agency declined the appellant’s request for reinstatement. Id.
at 47-48.
The appellant filed a complaint with the Office of Special Counsel (OSC),
and, following OSC’s close-out letter on August 7, 2018, he filed an IRA appeal
with the Board. See Reilly v. Department of Labor, MSPB Docket No.
PH-1221-18-0492-W-1, Initial Appeal File, Tab 1. In that appeal, the appellant
asserted that the agency took the above-referenced actions, including declining to
reinstate him, in reprisal for his January 10, 2017 communication with the OIG
and for disclosing the alleged harassment by his supervisor to a U.S. senator. Id.
Following the appellant’s request to voluntarily withdraw the appeal, the
administrative judge in that matter issued an initial decision on January 31, 2019,
dismissing the appeal as withdrawn with prejudice. Id., Tab 11.
While that appeal was pending with the administrative judge, the appellant
filed a second complaint with OSC reiterating his claims from his first complaint
and additionally asserting that, beginning in 2018, the agency did not select him
for positions or limited the types of candidates who could apply for certain
positions to exclude him from being eligible to apply in reprisal for his
January 10, 2017 communication with OIG and February 2017 communication
with a U.S. senator. IAF, Tab 9 at 31-34. After OSC issued its close-out letter,
the appellant filed the instant appeal with the Board on November 24, 2021,
arguing that, in reprisal for his January 10, 2017 communications with OIG and
his February 2017 letter to a U.S. senator, the agency refused his request for
4
reinstatement, failed to select him for one vacancy, and improperly limited the
types of candidates who could apply for three other vacancies. IAF, Tab 1 at 6,
Tab 9 at 10.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 12, Initial Decision (ID). The appellant has filed a petition for review of the
initial decision, and the agency has responded. Petition for Review (PFR) File,
Tabs 1, 3. The appellant has replied to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act if the appellant has exhausted his administrative
remedies before OSC and makes nonfrivolous allegations of the following: (1) he
engaged in whistleblowing activity by making a protected disclosure 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). Edwards v. Department of
Labor, 2022 MSPB 9, ¶ 8; Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 5 (2016). One way to establish the contributing factor criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the official taking the personnel action knew of the disclosure or activity, and that
the personnel action occurred within a period of time such that a reasonable
person could conclude that the disclosure or activity was a contributing factor in
the personnel action. Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 15; Salerno, 123 M.S.P.R. 230, ¶ 13.
In the initial decision, the administrative judge found that the appellant
exhausted his administrative remedy with respect to two of the four vacancy
announcements enumerated by the appellant in his Board appeal: Vacancy
5
Announcement No. MS-19-HRC-SC-016, for which the appellant asserted he was
not selected, and Vacancy Announcement No. MS-19-OIG-OSI-13, for which the
appellant asserted the agency limited the types of candidates who could apply to
exclude him. 2 ID at 6-7. The administrative judge further found that, although
the appellant nonfrivolously alleged that he engaged in protected activity with
respect to his January 10, 2017 OIG communication and made a protected
disclosure with respect to his February 2017 communication with a U.S. senator,
he failed to nonfrivolously allege that the disclosure or activity was a contributing
factor in a personnel action. ID at 7-10. Finally, he found that the appellant’s
allegation that the agency refused to reinstate him in reprisal for his disclosures
or activity was barred under the doctrine of res judicata based on his prior Board
appeal. 3 ID at 11.
Specifically, regarding the contributing factor element, the administrative
judge found that the appellant failed to nonfrivolously allege that his February
2017 disclosure to a U.S. senator was a contributing factor in the agency’s actions
regarding the two vacancies because the appellant did not allege that any agency
official responsible for his nonselection for Vacancy Announcement No.
MS-19-HRC-SC-016 or the structuring of the eligibility criteria in Vacancy
Announcement No. MS-19-OIG-OSI-13 to exclude the appellant had knowledge
of the disclosure. ID at 9. Regarding the appellant’s January 2017
2
The appellant does not dispute the administrative judge’s finding that he only
exhausted two of the four vacancies. Rather, he indicates on review that he has since
exhausted the remaining vacancies with OSC and that he has filed another IRA appeal
concerning those vacancy announcements. PFR File, Tab 4 at 5-6. An administrative
judge dismissed that other IRA appeal without prejudice in an initial decision. Reilly v.
Department of Labor, MSPB Docket No. DC-1221-22-0531-W-2, Initial Decision
(Dec. 20, 2023). The appellant subsequently petitioned the U.S. Court of Appeals for
the Fourth Circuit for review. Reilly v. Merit Systems Protection Board, No. 24-1240
(4th Cir. pet. for review filed Mar. 21, 2024).
3
The appellant has not challenged this finding on review, and we discern no basis to
disturb it. See Brown v. Department of the Navy , 102 M.S.P.R. 377, ¶ 10 (2006)
(finding that a dismissal with prejudice based on a withdrawal of an appeal generally is
considered a final decision, and relitigating such an appeal is barred by res judicata).
6
communication with the OIG, the administrative judge found that the official
responsible for the nonselection for Vacancy Announcement No.
MS-19-HRC-SC-016 did not have knowledge of the appellant’s communication
with OIG, and that the appellant therefore failed to nonfrivolously allege the
contributing factor element. Id. Finally, the administrative judge found that,
although the appellant nonfrivolously alleged that the agency official responsible
for structuring Vacancy Announcement No. MS-19-OIG-OSI-13 in a way that
precluded the appellant’s application had knowledge of the appellant’s January
2017 OIG activity, that vacancy announcement was issued 2 years after the OIG
communication, which the administrative judge concluded “is generally too
lengthy a time to satisfy the timing element.” ID at 10. He also concluded that
the vacancy announcement did “not appear to be part of a continuum of related
personnel actions” that began in closer proximity to the alleged protected activity.
Id.; see Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 23 (2013)
(reasoning that, for jurisdictional purposes, the timing component of the
knowledge/timing test may be satisfied when the agency engaged in a continuum
of related personnel actions that began shortly after the appellant’s alleged
disclosure or activity). Accordingly, he found that the appellant failed to
nonfrivolously allege the contributing factor element in this regard. ID at 10.
On review, the appellant only challenges the administrative judge’s finding
that he failed to nonfrivolously allege that his January 2017 OIG activity was a
contributing factor in the agency’s decision to limit the types of applicants who
could apply to Vacancy Announcement No. MS-19-OIG-OSI-13. 4 PFR File,
4
We agree with the administrative judge that the appellant’s allegation that he disclosed
information to the agency’s OIG constitutes a nonfrivolous allegation of protected
activity under 5 U.S.C. § 2302(b)(9)(C). ID at 8. Regarding the appellant’s alleged
February 2017 disclosure to a U.S. senator, such a disclosure only became protected
under 5 U.S.C. § 2302(b)(8)(C) following the passage of the National Defense
Authorization Act for Fiscal Year 2020 and is otherwise only protected when it includes
allegations of wrongdoing that the employee reasonably believes evidences 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. See Pub. L.
7
Tab 1 at 11-15. Specifically, he disagrees with the administrative judge’s
discussion regarding the continuum of personnel actions, arguing that the agency
began to engage in reprisal against him within 6 months of his January 2017 OIG
activity when it restricted his ability to carry a firearm, required him to submit to
a fitness for duty examination, failed to support his OWCP claims, proposed his
removal for medical inability to perform his duties, and refused to reinstate him.
Id. Thus, based on an alleged continuum of related activity, he argues that he met
the timing prong of the knowledge/timing test.
We need not decide whether the administrative judge erred with respect to
whether the appellant nonfrivolously alleged a continuum of retaliatory actions
because we otherwise find that the appellant nonfrivolously alleged that the
agency issued Vacancy Announcement No. MS-19-OIG-OSI-13 within such a
time that a reasonable person could conclude that his January 2017 OIG activity
was a contributing factor to that action. Indeed, the appellant contacted OIG in
January 2017, and the agency issued the vacancy announcement in early January
2019—2 years after his alleged protected activity. IAF, Tab 9 at 50-51. The
Board has consistently found that personnel actions that occur within 1 -2 years of
an alleged protected disclosure or activity satisfy the timing prong of the
knowledge/timing test. See Salazar v. Department of Veterans Affairs,
No. 116-92, § 5721, 133 Stat. 1198, 2175 (2019). We need not determine whether this
provision is retroactive or whether the appellant’s disclosure involved allegations of
such wrongdoing, thereby making it protected, because, as explained below, we
otherwise agree that he failed to nonfrivolously allege that the disclosure was a
contributing factor to a personnel action. Similarly, we discern no error in the
administrative judge’s implicit finding that the appellant nonfrivolously alleged that the
nonselection for Vacancy Announcement No. MS-19-HRC-SC-016 and the agency’s
structuring of eligibility criteria in Vacancy Announcement No. MS-19-OIG-OSI-13
constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A). See Weed v. Social
Security Administration, 113 M.S.P.R. 221, ¶¶ 13-17 (2010) (reasoning that an agency’s
use of a particular hiring process as a part of a scheme that would deny a whistleblower
the opportunity to seek an appointment constitutes a personnel action); Reeves v.
Department of the Army, 99 M.S.P.R. 153, ¶ 15 (2005) (explaining that a nonselection
is a personnel action for purposes of the whistleblower protection statutes).
Accordingly, these findings remain undisturbed upon remand.
8
2022 MSPB 42, ¶ 32; Wilson v. Department of Veterans Affairs , 2022 MSPB 7,
¶ 41; Salerno, 123 M.S.P.R. 230, ¶ 14; Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 21 (2015); Schnell v. Department of the Army, 114 M.S.P.R.
83, ¶ 22 (2010). Therefore, we find that the appellant nonfrivolously alleged the
timing prong of the knowledge/timing test. 5 Because we agree with the
administrative judge that the appellant nonfrivolously alleged that the agency
official responsible for limiting the types of applicants who could apply for the
vacancy had knowledge of his OIG activity, ID at 10; IAF, Tab 9 at 11-12,
118-19, we conclude that the appellant nonfrivolously alleged both components of
the knowledge/timing test, thereby nonfrivolously alleging that his January 2017
OIG activity was a contributing factor in the agency’s decision to effectively
exclude him from the application pool for Vacancy Announcement No.
MS-19-OIG-OSI-13. See Chambers, 2022 MSPB 8, ¶ 15. Based on the
foregoing, we find that the Board has jurisdiction over this claim, and we remand
this appeal for a hearing on the merits. 6 See Graves v. Department of Veterans
5
Because we find that the appellant met the timing prong of the knowledge/timing test
based on the initial communication with OIG, we need not address his argument on
review that his attorneys’ subsequent communications with OIG should control the
timing analysis. PFR File, Tab 1 at 16.
6
Regarding the administrative judge’s other findings that the appellant failed to
nonfrivolously allege that his February 2017 disclosure to a U.S. senator was a
contributing factor to either alleged personnel action, or that his January 2017 OIG
activity was a contributing factor in his nonselection for Vacancy Announcement
No. MS-19-HRC-SC-016, the administrative judge’s analyses for those findings appear
to be based on the appellant’s failure to nonfrivolously allege knowledge on the part of
a relevant agency official of the protected disclosure and activity, and thus, his failure
to meet the knowledge/timing test. ID at 9. However, the knowledge/timing test is not
the only way to satisfy the contributing factor standard. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 14 (2012). Other relevant evidence includes that pertaining
to the strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether these individuals had a desire or motive to retaliate against the
appellant. Id., ¶ 15. The appellant has not alleged that his February 2017 disclosure to
a U.S. senator implicated any of the relevant agency officials or that the agency
officials responsible for either alleged personnel action had any desire or motive to
retaliate against the appellant. Additionally, the appellant has not alleged that the
agency’s reasons for not selecting him for one of the vacancy announcements and
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Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant is entitled to
a hearing on the merits if, after exhausting his remedy with OSC, he makes
nonfrivolous allegations that he engaged in protected activity that was a
contributing factor in a personnel action).
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
limiting the types of candidates who could apply for the other were particularly weak.
Accordingly, we ultimately agree with the administrative judge that the appellant failed
to nonfrivolously allege contributing factor with respect to these claims.