                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 84

                            Docket No. CH-1221-14-0058-W-1

                                   Stephen B. Linder,
                                        Appellant,
                                             v.
                                 Department of Justice,
                                         Agency.
                                     November 7, 2014

           Cynthia H. Hyndman, Esquire, Chicago, Illinois, for the appellant.

           Joe Lazar, Esquire, Alexandria, Virginia, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                 OPINION AND 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,
     VACATE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Opinion and Order.

                                     BACKGROUND
¶2         The appellant, a Criminal Investigator with the U.S. Marshals Service, filed
     an IRA appeal alleging that the agency reassigned him in retaliation for his
                                                                                        2

     disclosing of misconduct by agency employees to the U.S. District Court for the
     Northern District of Illinois. Initial Appeal File (IAF), Tab 1. The appellant
     alleged that his reassignment constituted reprisal for his protected disclosure in
     violation of the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8).
     IAF, Tab 1; see IAF, Tab 12 at 6-10.
¶3         The appellant was before the district court based on his indictment for
     committing civil rights violations by using excessive force against two
     individuals.   IAF, Tab 1, Subtab A at 1.       During the court proceedings, the
     appellant disclosed to the court, in his motion to dismiss the indictment, that
     some agency employees had violated his rights under the Fifth and Sixth
     Amendments by intentionally interfering with his right to conduct a defense
     investigation and interview prospective witnesses, who were also employees of
     the U.S. Marshals Service. Id. at 10-11. Specifically, the appellant disclosed that
     agency employees threatened individuals, who were witnesses to the appellant’s
     purported civil rights violations, that they would face possible employment
     actions or be prosecuted if they cooperated with the appellant’s attorney. Id. The
     court ruled for the appellant and dismissed the indictment, citing severe
     violations of the appellant’s constitutional rights by agency employees. 1 Id. at
     111-12.
¶4         Without holding the hearing that the appellant had requested, the
     administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 14,
     Initial Decision (ID); see IAF, Tab 1 at 1 (the appellant’s request for a hearing).
     The administrative judge found that the appellant’s motion defending himself
     against a criminal indictment falls within the ambit of activity covered by
     5 U.S.C. § 2302(b)(9), i.e., any appeal, complaint, or grievance granted by any

     1
        In dismissing the indictment, the district court discussed at length the close
     relationship between the prosecutors and the U.S. Marshals Service in this case. IAF,
     Tab 1, Subtab A at 62-82.
                                                                                     3

     law, rule, or regulation. ID at 5. The administrative judge also found that the
     substance of the appellant’s motion to dismiss his criminal indictment was not a
     disclosure falling within the extended scope of 5 U.S.C. § 2302(b)(9) provided
     for in the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
     No. 112–199, 126 Stat. 1465, because the motion did not seek to remedy or
     correct an action that was taken in retaliation for whistleblowing. ID at 6. Thus,
     the administrative judge found that the Board lacks jurisdiction over the appeal.
     ID at 6.
¶5         In his petition for review, the appellant contends that the administrative
     judge erred in finding that the motion to dismiss filed with the district court is
     activity covered by section 2302(b)(9) and erred in finding that he failed to
     establish jurisdiction over his IRA appeal. Petition for Review File, Tab 1. The
     agency has responded to the petition for review, and the appellant has replied to
     the response. Id., Tabs 3-4.

                                        ANALYSIS
¶1         The Board has jurisdiction over an IRA appeal if the appellant exhausts his
     administrative remedies before the Office of Special Counsel (OSC) and makes
     nonfrivolous allegation that: (1) he made a 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).      5 U.S.C. §§ 1214(a)(3),
     1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
     Cir. 2001). Here, the appellant established that he exhausted his administrative
     remedies before OSC. He showed that he filed a complaint with OSC alleging
     that the agency reassigned him from Chicago, Illinois, to St. Louis, Missouri,
     effective July 18, 2013, in reprisal for disclosing to a federal judge during
     criminal proceedings against him that a number of agency employees interfered
                                                                                        4

     with his constitutional right to conduct a defense investigation and interview
     prospective witnesses. IAF, Tab 1, Subtab D. He also showed that OSC issued a
     letter informing him that it was closing its investigation of his complaint and that
     he may have the right to seek corrective action from the Board. Id., Subtab E. At
     issue in this appeal is (1) whether the appellant made a disclosure described 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) so as to fulfill the jurisdictional requirement,
     and (2) whether the administrative judge erred by finding a lack of Board
     jurisdiction.

     The appellant’s disclosure did not fall within the purview of 5 U.S.C.
     § 2302(b)(9).
¶6         Prior to the enactment of the WPEA, 5 U.S.C. § 2302(b)(9) made it a
     prohibited personnel practice to retaliate against an employee or applicant for
     employment “because of the exercise of any appeal, complaint, or grievance right
     granted by any law, rule, or regulation.”     Wheeler v. Department of Veterans
     Affairs, 88 M.S.P.R. 236, ¶ 9 (2001); Williams v. Department of Defense,
     46 M.S.P.R. 549, 551 (1991). Reprisal in violation of section 2302(b)(9) was
     viewed as “‘reprisal based on exercising a right to complain.’” Serrao v. Merit
     Systems Protection Board, 95 F.3d 1569, 1575 (Fed. Cir. 1996) (quoting Spruill
     v. Merit Systems Protection Board, 978 F.2d 679, 690 (Fed. Cir. 1992)). The
     Board had held that claims of a prohibited personnel practice, such as reprisal
     under section 2302(b)(9), did not serve as an independent basis for a finding of
     Board jurisdiction over an IRA appeal.        Flores v. Department of the Army,
     98 M.S.P.R. 427, ¶ 9 (2005); see Serrao, 95 F.3d at 1575. In interpreting the
     pre-WPEA version of 5 U.S.C. § 2302(b)(9), the Board specifically held that a
     claim of reprisal for exercising a right to complain in certain administrative
     proceedings, such as Board appellate proceedings, the equal employment
     opportunity (EEO) complaint process, grievance proceedings, and unfair labor
     practice proceedings, was not a basis for a finding of Board jurisdiction. Coffer
                                                                                      5

     v. Department of the Navy, 50 M.S.P.R. 54, 56-57 (1991) (an unfair labor practice
     charge/complaint); Ruffin v. Department of the Army, 48 M.S.P.R. 74, 78 (1991)
     (a Board appeal); Fisher v. Department of Defense, 47 M.S.P.R. 585, 587-88
     (1991) (a grievance); Williams, 46 M.S.P.R. at 553 (an EEO complaint).
     Significantly for this appeal, the Board has not found that a motion to dismiss a
     criminal indictment is analogous to the right to seek redress in the administrative
     fora set forth above.
¶7         In Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 505-06, 508
     (1993), overruled on other grounds by Thomas v. Department of the Treasury,
     77 M.S.P.R. 224 (1998), the appellant, an Alternate Board Member of the
     Employees’ Compensation Appeals Board (ECAB), alleged that the agency
     retaliated against her for submitting a CA-1 Notice of Traumatic Injury to the
     ECAB’s Chairman. The Board found that an employee who files a Form CA-1 is
     exercising his or her right to file a “claim” for “payment of compensation” under
     the Federal Employees’ Compensation Act (FECA).          Id. at 508; see 5 U.S.C.
     §§ 8121, 8124. The Board determined that, in adjudicating a FECA claim, the
     Office of Workers’ Compensation Programs (OWCP) decides whether the
     claimant has provided sufficient evidence of a nexus between the injury and her
     course of employment and, if so, the amount and kind of compensation to be
     awarded. Von Kelsch, 59 M.S.P.R. at 508; see Anderson v. United States, 16 Cl.
     Ct. 546, 548 (1989).    The OWCP is not empowered to grant relief for any
     underlying personnel practices that may have led to the injury.       Von Kelsch,
     59 M.S.P.R. at 508.
¶8         Comparing the nature and scope of a FECA claim with, for example, an
     appeal to the Board, a complaint filed with the Equal Employment Opportunity
     Commission, an unfair labor practice complaint, or a grievance, the Board in Von
     Kelsch concluded that the submission of a FECA claim for compensation for a
     work-related injury does not constitute an initial step toward taking legal action
     against an employer for the perceived violation of an employee’s rights. Von
                                                                                        6

      Kelsch, 59 M.S.P.R. at 508; see Williams, 46 M.S.P.R. at 553. Accordingly, the
      Board found that the filing of a CA-1 is not the “exercise of any appeal,
      complaint, or grievance right” within the terms of 5 U.S.C. § 2302(b)(9). Von
      Kelsch, 59 M.S.P.R. at 508-09.
¶9          The WPEA amended various provisions of the WPA, including 5 U.S.C.
      § 2302(b)(9).     The new statutory language provides that it is a prohibited
      personnel practice to retaliate against an employee or applicant because of “the
      exercise of any appeal, complaint, or grievance right granted by any law, rule, or
      regulation-- (i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)];
      or (ii) other than with regard to remedying a violation of [5 U.S.C.
      § 2302(b)(8)].”    5 U.S.C. § 2302(b)(9)(A).     Nothing in the WPEA, however,
      alters the Board’s previous analysis concerning the meaning of the terms “appeal,
      complaint, or grievance” in the statutory language.
¶10         Accordingly, we find that filing a motion to dismiss an indictment does not
      constitute an initial step toward taking legal action against an employer for a
      perceived   violation   of   employment    rights.    See   Ledeaux   v.   Veterans
      Administration, 29 M.S.P.R. 440, 444 (1985) (holding that an appellant’s filing of
      a criminal complaint for assault and battery against his supervisor was not the
      sort of activity covered by 5 U.S.C. § 2302(b)(9)). The opposing party in the
      criminal proceeding is the federal government, acting not as an employer, but as a
      prosecutor. The district court is not empowered to grant relief for any personnel
      action related to the indictment.      Thus, we conclude that the appellant’s
      disclosure to the court was made outside of procedures that fall within the
      protection of section 2302(b)(9), and therefore the disclosure can serve as a basis
      for Board jurisdiction over the appellant’s IRA appeal under section 2302(b)(8).
      The administrative judge’s finding to the contrary was erroneous. 2

      2
        The WPEA provides for Board jurisdiction over an IRA appeal where the appellant
      engaged in activities covered by 5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(e)(1).
                                                                                              7

      The appellant’s disclosure was protected under 5 U.S.C. § 2302(b)(8).
¶11         Having determined that the administrative judge erroneously found that the
      appellant’s motion to dismiss the indictment fell within the purview of section
      2302(b)(9) and was thus outside of the Board’s jurisdiction, we now address
      whether the appellant’s disclosures were protected by section 2302(b)(8).               A
      protected disclosure is a disclosure of information that an appellant reasonably
      believes evidences      a violation of      any 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. Schoenig v. Department of Justice,
      120 M.S.P.R. 318, ¶ 8 (2013) (citing 5 U.S.C. § 2302(b)(8)). At the jurisdictional
      stage, the appellant is only burdened with making a nonfrivolous allegation that
      he reasonably believed that his disclosure evidenced a violation of one of the
      circumstances described in 5 U.S.C. § 2302(b)(8). Schoenig, 120 M.S.P.R. 318,
      ¶ 8. The proper test for determining whether an employee had a reasonable belief
      that his disclosures were protected is whether a disinterested observer with
      knowledge of the essential facts known to and readily ascertainable by the
      employee could reasonably conclude that the actions evidenced a violation of a




      The administrative judge found that the appellant’s motion to dismiss his criminal
      indictment was not an activity falling within the purview of section 2302(b)(9)(A)(i)
      because the motion did not seek to remedy or correct an action that was taken in
      retaliation for whistleblowing. ID at 6 (citing Mudd v. Department of Veterans Affairs,
      120 M.S.P.R. 365, ¶¶ 6-7 (2013)). We need not address the administrative judge’s
      reasoning because the appellant presented sufficient evidence to establish that his
      disclosure was protected by 5 U.S.C. § 2302(b)(8). We also note that the WPEA
      provides for Board jurisdiction over claims of reprisal for testifying or lawfully
      assisting any individual exercising an appeal, grievance, or complaint right, reprisal for
      cooperating with or disclosing information to an Inspector General or OSC, or reprisal
      for refusing to obey an order that would require a violation of law. 5 U.S.C.
      § 2302(b)(9)(B), (C), and (D); 5 U.S.C. § 1221(e)(1). There is no contention that these
      sorts of activities are present in this appeal and thus those provisions have no
      application to the instant case.
                                                                                        8

      law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C.
      § 2302(b)(8). Schoenig, 120 M.S.P.R. 318, ¶ 8.
¶12         Here, the appellant alleges that he disclosed to a federal judge a violation
      of law by disclosing that agency employees violated his constitutional rights
      under the Fifth and Sixth Amendments. The Board has never decided whether a
      disclosure of an alleged constitutional violation constitutes a disclosure of a
      violation of law, and we need not decide that issue here because, as explained
      below, the appellant’s disclosure constituted a nonfrivolous allegation of an abuse
      of authority.
¶13         In his OSC complaint and Board appeal, the appellant characterized his
      disclosure as being one of a violation of law and of his constitutional rights. IAF,
      Tab 1 at 7; id., Subtab D; see IAF, Tab 12.       He has never characterized his
      disclosure as being of an abuse of authority. There is no requirement, however,
      that an appellant correctly label the category of wrongdoing under section
      2302(b)(8) in order to establish Board jurisdiction. Tullis v. Department of the
      Navy, 117 M.S.P.R. 236, ¶ 7 (2012); Rzucidlo v. Department of Army,
      101 M.S.P.R. 616, ¶ 13 (2006); Pulcini v. Social Security Administration,
      83 M.S.P.R. 685, ¶ 8 (1999), aff’d, 250 F.3d 758 (Fed. Cir. 2000) (Table). The
      disclosure must, however, be specific and detailed, not a vague allegation of
      wrongdoing.      Rzucidlo, 101 M.S.P.R. 616, ¶ 13; see Keefer v. Department of
      Agriculture, 82 M.S.P.R. 687, ¶ 10 (1999).        The appellant’s disclosure here
      clearly meets that requirement.
¶14         For purposes of the WPA, an abuse of authority occurs when there is an
      arbitrary or capricious exercise of power by a federal official or employee that
      adversely affects the rights of any person or that results in personal gain or
      advantage to himself or to preferred other persons.      Chavez v. Department of
      Veterans Affairs, 120 M.S.P.R. 285, ¶ 22 (2013).        The test for whether the
      appellant had a reasonable belief that his disclosure evidenced such abuse is an
      objective one.    See Shannon v. Department of Veterans Affairs, 121 M.S.P.R.
                                                                                        9

      221, ¶ 22 (2014); White v. Department of the Air Force, 63 M.S.P.R. 90, 95
      (1994). The appellant need not prove that the condition reported established an
      abuse of authority under 5 U.S.C. § 2302(b)(8) but must establish that the matter
      reported was one that a reasonable person in the employee’s position would
      believe evidenced an abuse of authority. See White, 63 M.S.P.R. at 95. We find
      that the appellant’s disclosure to a federal judge that agency officials’ threats—of
      criminal charges and employment actions—to potential witnesses to a criminal
      trial constitutes a nonfrivolous allegation that he engaged in whistleblowing by
      disclosing a purported abuse of authority. See Herman v. Department of Justice,
      115 M.S.P.R. 386, ¶ 11 (2011) (harassment or intimidation, including a
      supervisor’s threats to an employee’s career, can constitute an abuse of
      authority).

      The appellant nonfrivolously alleged that his protected disclosure was a
      contributing factor in his reassignment.
¶15         To satisfy the contributing factor criterion, an appellant need only raise a
      nonfrivolous allegation that the fact or content of the protected disclosure was
      one factor that tended to affect the personnel action in any way.         Mason v.
      Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26 (2011). One way to
      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 taking 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.
¶16         A reassignment is a personnel action under the WPA.                 5 U.S.C.
      § 2302(a)(2)(A)(iv); see Paul v. Department of Agriculture, 66 M.S.P.R. 643, 650
      (1995).   Here, the appellant made a nonfrivolous allegation that the officials
      reassigning him knew of his disclosure.      The judge’s decision dismissing the
      indictment against him was published.      Additionally, the agency prepared an
                                                                                        10

      appeal of the decision, although it appears that the agency voluntarily moved for
      dismissal of the appeal before it was adjudicated. See IAF File, Tab 1, Subtab D
      at 8. Further, the personnel action at issue, a reassignment, is alleged to have
      been ordered within 4 months of the issuance of the decision in the appellant’s
      favor. Id. We find that the appellant has made nonfrivolous allegations that his
      disclosure   was   a    contributing   factor   to   his   reassignment   under   the
      knowledge-timing test. See Agoranos v. Department of Justice, 119 M.S.P.R.
      498, ¶¶ 21-23 (2013); Gonzalez v. Department of Transportation, 109 M.S.P.R.
      250, ¶¶ 19-20 (2008).

                                             ORDER
¶17         Having found that the appellant has met his jurisdictional burdens, we
      REMAND this case to the regional office for a hearing and further adjudication in
      accordance with this Remand Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      WASHINGTON, D.C.
