                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     R. SCOTT STEVENS,                               DOCKET NUMBER
                   Appellant,                        AT-1221-15-0481-W-1

                  v.

     DEPARTMENT OF                                   DATE: July 1, 2016
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobby Devadoss, Esquire, and Elizabeth Morse, Esquire, Dallas, Texas, for
             the appellant.

           Parisa Naraghi-Arani, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this individual right of action (IRA) appeal for lack of Board
     jurisdiction. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. We AFFIRM the initial decision,
     except as expressly MODIFIED to supplement the administrative judge’s
     jurisdictional analysis.

                                       BACKGROUND
¶2         The appellant is a Supervisory Computer Specialist, FV-0334-15, within the
     agency’s Office of Information and Technology (AIT), Federal Aviation
     Administration (FAA), in Atlanta, Georgia. Initial Appeal File (IAF), Tab 1 at 1.
     The agency underwent reorganization between 2011 and 2013 to create a shared
     services organization, the Office of Finance and Management (AFN).              IAF,
     Tab 14 at 23-24.      AIT is the unit within AFN that houses the agency’s
     information technology functions.      Id.   The agency assessed its information
     technology employees and, in or around July 2013, notified them of their new
     assignments within AIT.     Id.   As a result of the reorganization, the appellant
     became Manager, Infrastructure Applications, in the Infrastructure and Operations
     Service Division. 2 Id. at 38; IAF, Tab 15 at 5.


     2
      During the course of this appeal, however, the appellant has been detailed to the
     Department of Energy. His detail was set to end in December 2015. Petition for
     Review File, Tab 6 at 6; IAF, Tab 15 at 7-8.
                                                                                            3

¶3         In late 2013, the appellant raised concerns to his third-level supervisor
     regarding the process by which AIT employees had been placed in their new
     positions.    IAF, Tab 14 at 25.        The appellant asserts that, on or about
     November 21, 2013, he filed a complaint with the Office of Special Counsel
     (OSC). IAF, Tab 11 at 1. The record includes a printout of an e-filing Form
     OSC-11 last saved on November 19, 2013.             Id. at 4-10.   The form does not
     indicate the OSC case number assigned to it. Id. at 4. It also does not include
     allegations of retaliation; instead, the appellant simply asserted that AIT
     employees were improperly assigned to new positions using noncompetitive
     processes during the reorganization. 3 Id. at 4-10.
¶4         On November 22, 2013, the appellant contacted his fifth-level supervisor to
     complain about the noncompetitive placement of employees during the
     reorganization, informing the supervisor that he was already in the process of
     making disclosures regarding the reassignments.          Id. at 1, 15, 21-22.    In late
     November 2013, he filed a complaint with the agency Administrator’s Hotline
     concerning the reassignments.       Id. at 38; IAF, Tab 14 at 28-29.        The agency
     responded to the Hotline complaint on February 6, 2014. IAF, Tab 14 at 28. He
     also filed related Inspector General (IG) complaints in November 2013 and
     February 2014. IAF, Tab 11 at 38; Petition for Review (PFR) File, Tab 2 at 4-7. 4
¶5         During June 2014, the appellant applied for the position of Deputy Director,
     Enterprise Program Management Service. IAF, Tab 11 at 15, 17-19, 25-28, 39.

     3
       The appellant’s jurisdictional response includes a chronology summarizing various
     complaints he has filed. IAF, Tab 11 at 38-41. The chronology states that OSC
     assigned File No. MA-14-0509 and closed it “due to lack of jurisdiction over FAA (with
     the exception of [w]histle [b]lower [r]etaliation).” Id. at 38. No further information is
     included in the record.
     4
       The report of investigation for the appellant’s IG complaint most clearly articulates
     the precise nature of his alleged protected disclosures. The appellant disclosed that
     agency officials selected managers for the newly created AIT “without competition and
     without using [the agency’s] Job Analysis Tool . . . to establish criteria for selection”
     and “pre-selected certain applicants for Senior Executive Service and L-band positions
     that were competed.” PFR, Tab 2 at 6.
                                                                                            4

     He was interviewed once, but was not granted a second interview.              Id. at 17.
     However, he asserted in his OSC complaint 5 that he was significantly more
     qualified than the selectee. Id. at 18-19, 39.
¶6         On September 5, 2014, the appellant filed a complaint with OSC. Id. at 1,
     11-20. In the complaint, he alleged that he suffered adverse personnel actions,
     including nonselection for various promotion positions, because he disclosed in
     Hotline and IG complaints that four senior agency executives “placed”
     approximately 700 information technology employees in positions “without
     completing the necessary and proper job documentation, and without open and
     fair competition” during the reorganization.          Id. at 41.    OSC assigned the
     complaint File No. MA-14-4904.          Id.   On April 7, 2015, OSC informed the
     appellant that it had investigated his complaint and “[t]erminated its inquiry into
     [his] allegations.” Id. at 41-42. OSC’s letter also informed him of his right to
     seek corrective action from the Board. Id. at 41. He filed this appeal. IAF,
     Tab 1.
¶7         The administrative judge gave the appellant an opportunity to file a
     jurisdictional response, and he did so. 6 IAF, Tabs 3, 11. The agency also filed a
     response. IAF, Tabs 14-16. The administrative judge decided the appeal based
     on the written record. IAF, Tab 17, Initial Decision (ID) at 1. He found that the
     appellant exhausted his administrative remedies for File No. MA-14-4904, and
     timely filed his IRA appeal with the Board. ID at 2 & n.1, 4-5. He nevertheless
     found that the appellant’s jurisdictional response failed to specify the type of
     protected disclosure he alleged to have made. ID at 6. The administrative judge
     examined the alleged protected disclosure with respect to the statutory definition


     5
       The OSC complaint does not clearly state when the selection was made, but the
     vacancy announcement for the position was open between June 12 and June 20, 2014.
     Compare IAF, Tab 11 at 18-19, with id. at 25.
     6
       The appellant, however, did not avail himself of the opportunity to file a supplemental
     jurisdictional pleading. IAF, Tab 10 at 2.
                                                                                           5

     and found the appellant’s allegations to be too vague and conclusory to bring the
     complaint within the protection of the Whistleblower Protection Enhancement
     Act (WPEA). ID at 6-9; see 5 U.S.C. § 2302(b)(8). Accordingly, he dismissed
     the appeal for lack of jurisdiction. ID at 9-10.
¶8         On review, the appellant argues that the administrative judge erroneously
     found that he did not reasonably believe that agency senior management engaged
     in prohibited personnel practices when, as he claimed, they noncompetitively
     filled positions during the reorganization. PFR File, Tab 1 at 6-8; see ID at 6-9.
     He explains that correspondence he recently received regarding his IG complaints
     establishes the reasonableness of his belief that agency managers committed
     prohibited personnel practices. PFR File, Tab 1 at 8; see IAF, Tab 11 at 38. The
     correspondence, he explains, includes a report of investigation (ROI) dated
     May 15, 2015, which confirms that the IG conducted a year-long investigation
     based upon his complaints. 7 PFR File, Tab 1 at 8, Tab 2 at 6-7.

                                          ANALYSIS
¶9         The ROI, which is newly submitted on review, postdates the close of the
     record below, and thus meets the Board’s definition of new evidence. 8
     Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (explaining that new
     evidence is evidence submitted for the first time with the petition for review that
     was unavailable before the record was closed despite the party’s due diligence).
     To be considered, however, new evidence must be of sufficient weight to warrant


     7
       The ROI concluded that the agency’s “authority and rationale” to noncompetitively
     assign employees to managerial positions “appear[ed] sufficient,” and that the IG found
     no information to suggest that any selectee for a position filled through a
     noncompetitive reassignment failed to meet the minimum qualifications for that
     position. PFR File, Tab 2 at 6-7.
     8
      The agency transmitted the ROI to the appellant about 1 week after the initial decision
     was issued. Compare PFR File, Tab 2 at 4, with ID at 1. The letter accompanying the
     ROI indicates that the appellant sought release of the ROI while the record was open.
     Compare PFR File, Tab 2 at 4, with IAF, Tab 10 at 2.
                                                                                           6

      an outcome different from that of the initial decision.           Russo v. Veterans
      Administration, 3 M.S.P.R. 345, 349 (1980). The appellant has not shown that
      the ROI is of sufficient weight to warrant a different outcome.
¶10        The    administrative   judge   determined    that   the   appellant   failed   to
      nonfrivolously allege that he made a protected disclosure. 9 We agree. In his
      OSC complaint, the appellant alleged he disclosed that four senior agency
      executives “placed” approximately 700 information technology employees in
      positions “without completing the necessary and proper job documentation, and
      without open and fair competition.” IAF, Tab 11 at 14-15. As the administrative
      judge correctly explained, the appellant’s allegation does not contain information
      that he reasonably believed evidenced gross mismanagement, a gross waste of
      funds, an abuse of authority, or a substantial and specific danger to public health
      or safety. ID at 5-9; see 5 U.S.C. § 2302(b)(8). As for whether the appellant
      alleged a violation of law, rule, or regulation, a protected disclosure must be
      specific and detailed, and not a vague allegation of wrongdoing.            Salerno v.
      Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The appellant did not
      and still does not allege any specific violation of a law, rule, or regulation.
      Instead, he continues to allege generally that the agency’s noncompetitive
      reassignment of personnel during the reorganization violated merit systems
      principles. PFR File, Tab 1 at 6-8; IAF, Tab 1 at 5; see 5 U.S.C. § 2301(b); cf.
      Salerno, 123 M.S.P.R. 230, ¶ 9.
¶11        Moreover, a nonfrivolous allegation of a protected whistleblowing
      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
      evidences one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8).

      9
        The administrative judge addressed only the appellant’s Hotline complaint. ID at 2.
      The appellant’s IG disclosures also were exhausted in his OSC complaint. IAF, Tab 11
      at 14-15, 38. The appellant’s November 2013 OSC complaint reports the same
      allegations as well, and the appellant listed it as a disclosure in his September 2014
      OSC complaint. Id. at 4-10, 14-15, 38.
                                                                                                 7

      Salerno, 123 M.S.P.R. 230, ¶ 6.            An appellant need not establish an actual
      violation of one of the categories of wrongdoing listed in section 2302(b)(8) to
      demonstrate that he had a reasonable belief that he made a protected disclosure.
      See Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 17 (2011).
      Rather, he need prove only that a disinterested observer with knowledge of the
      essential facts known to and readily ascertainable by him could reasonably
      conclude the agency’s actions evidenced one of the categories of wrongdoing
      listed therein. See 5 U.S.C. § 2302(b)(13); Shannon v. Department of Veterans
      Affairs, 121 M.S.P.R. 221, ¶ 22 (2014).            When we consider the essential facts
      known to and readily ascertainable by the appellant, however, we note that he is a
      supervisory employee with managerial aspirations, he has 32 years of supervisory
      and technical leadership experience, 24 years in the U.S. Navy, and is certified as
      a project management professional. IAF, Tab 11 at 18-19, 23. His Government
      sector experience suggests at least some familiarity with agency reorganization
      and    sources   of    authority     for     the     reassignment    of    employees       in
      some circumstances. Thus, the appellant could not have had a reasonable belief
      to speculate, as he seems to do here, that a noncompetitive reassignment is by its
      very    nature    suspect.          See     Phillip v.    Merit     Systems        Protection
      Board, No. 2016-1002, 2016 WL 929856, at *2 (Fed. Cir. Mar. 11, 2016)
      (holding that a claim that “possible unscrupulous practices” were occurring at the
      workplace    did not   constitute    a     nonfrivolous    allegation     of   a    protected
      disclosure) 10; Barela v. Merit Systems Protection Board, 388 F. App’x 965, 967
      (Fed. Cir. 2010); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014).
¶12          In addition, the appellant’s assertion that the IG’s lengthy investigation
      establishes the reasonableness of his belief, PFR File, Tab 1 at 8, does not
      provide a basis for disturbing the initial decision , as many factors could delay or

      10
         The Board has held that it may rely on unpublished decisions of the Federal Circuit
      if, as it does here, it finds the reasoning persuasive. Graves v. Department of Veterans
      Affairs, 114 M.S.P.R. 245, ¶ 11 n.2 (2010).
                                                                                     8

      extend an investigation. We further note that the IG found no violation of policy
      or merit system principles and that the agency’s authority and rationale to
      reassign employees noncompetitively appeared sufficient on its face. PFR File,
      Tab 2 at 6.   At most, notwithstanding the IG investigation and report, the
      appellant’s disclosure constitutes a general philosophical or policy disagreement
      with the agency regarding the reorganization, which does not otherwise constitute
      a protected disclosure under the WPEA.            Webb v. Department of the
      Interior, 122 M.S.P.R. 248, ¶ 8 (2015) (citing 5 U.S.C. § 2302(a)(2)(D));
      Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 12 (2000) (concluding that
      the appellant’s statement that he met with the agency IG to report “ongoing fraud
      in [Resource Sharing] contracts” lacked the detail necessary to constitute a
      nonfrivolous allegation of a violation of law, rule or regulation, gross
      mismanagement, gross waste of funds, abuse of authority, or danger to public
      health or safety).      After extensively reviewing the appellant’s written
      submissions, we conclude that he failed to allege nonfrivolously any of the types
      of wrongdoing set forth in 5 U.S.C. § 2302(b)(8), and he did not make a
      protected disclosure.
¶13        Because the initial decision does not address whether the appellant
      nonfrivolously alleged that his disclosure was a contributing factor in the
      agency’s decision to take or fail to take a personnel action, we do so here.
      See 5 U.S.C. § 1214(a)(3); Yunus v. Department of Veterans Affairs, 242 F.3d
      1367, 1371 (Fed. Cir. 2001). The appellant met his jurisdictional burden for only
      one of several personnel actions he alleged—his nonselection as Deputy Director
      of the Enterprise Program Management Service. His allegations regarding this
      nonselection are relatively specific, and he has provided some other evidence in
      support of this claim. IAF, Tab 11 at 15, 18-19, 25-28, 39. He also alleged that
      he was passed over “numerous times” for promotion, removed from a
      “high-level” internal detail, blamed for his supervisor’s failure to complete
      certain tasks, offered a position in a lower-pay band, and “harassed” and
                                                                                      9

      “threatened” at various times. Id. at 17. Except for a listing from his USAJobs
      account showing the positions for which he apparently applied, he offered no
      evidence or specific details about these alleged personnel actions.       See id.
      at 29-30.
¶14          As for attempting to prove contributing factor, the appellant made a
      minimal nonfrivolous allegation that the protected disclosure was one factor that
      affected the agency’s nonselection. See Salerno, 123 M.S.P.R. 230, ¶ 13. His
      nonselection followed his disclosures by only a few months, and he
      nonfrivolously alleged that his fifth-level supervisor informed her senior staff,
      including persons involved in the selection process, about her conversation with
      him.    IAF, Tab 11 at 15, 18, 21-22.      Although the appellant satisfied his
      jurisdictional burden for this element, he nevertheless failed to establish the
      Board’s jurisdiction because he fell short of nonfrivolously alleging that he made
      a protected disclosure.
¶15          Finally, the appellant raises additional issues on review to which we now
      turn. He questions the administrative judge’s observation in the initial decision
      that he may have made disclosures in an effort to secure a better position for
      himself during the reorganization. PFR File, Tab 1 at 8-9; ID at 9. While the
      appellant correctly states that an employee’s motivation for making a disclosure
      does not render that disclosure unprotected, see 5 U.S.C. § 2302(f)(1)(C), the
      administrative judge’s comment appears to have been made as an aside rather
      than as an element of jurisdictional analysis. The administrative judge did not
      state that the appellant’s alleged disclosures were unprotected because of his
      purported motive for making them. The appellant also has neither alleged nor
      proven judicial bias.     See Bieber v. Department of the Army, 287 F.3d 1358,
      1362-63 (Fed. Cir. 2002) (holding that an administrative judge’s conduct during
      the course of a Board proceeding warrants a new adjudication only if the
      administrative judge’s comments or actions evidence “a deep-seated favoritism or
      antagonism that would make fair judgment impossible”) (quoting Liteky v.
                                                                                                 10

      United States,     510 U.S.     540,     555      (1994));     Oliver v.     Department     of
      Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that in making a claim
      of bias   or     prejudice    against    an    administrative      judge,     a   party   must
      overcome the presumption         of     honesty     and      integrity     that   accompanies
      administrative adjudicators).
¶16         Similarly, the appellant takes issue with the administrative judge’s finding
      that he failed to support his claim that his managers abused their supervisory
      authority by threatening his career. PFR File, Tab 1 at 10-11; see ID at 7-8. He
      cites an April 18, 2014 email message from the Information Technology
      Infrastructure Director which instructed him “to focus your attention on the
      personnel, programs and projects for which you have responsibility and for which
      your performance will be evaluated.” PFR File, Tab 1 at 11; IAF, Tab 11 at 34.
      The matter discussed in this series of email messages—the lifecycle cost of an
      agency information system—is unrelated to the appellant’s alleged protected
      disclosures reported to OSC in File No. MA-14-4904.                  IAF, Tab 11 at 11-20,
      34-36. Further, the language in the email to which the appellant objects is in the
      nature of managerial direction and not on its face threatening or retaliatory, as he
      argues. Accordingly, we affirm the initial decision as modified. 11

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline

      11
         The only OSC complaint cited in the petition for review is the form dated
      November 19, 2013. PFR File, Tab 1 at 6-7; IAF, Tab 11 at 4-10. The September 5,
      2014 OSC complaint is the basis for this appeal.
                                                                                   11

and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
                                                                                12

at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
