                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THASHA A. BOYD,                                 DOCKET NUMBER
                  Appellant,                         AT-1221-13-3375-W-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: November 24, 2014
       SECURITY,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Thasha A. Boyd, Kennesaw, Georgia, pro se.

           Beverly R. Brooks, Washington, D.C., for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her individual right of action (IRA) appeal of her nonselection for lack
     of jurisdiction.   For the reasons discussed below, we GRANT the appellant’s


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     petition for review and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In August 2012, the appellant applied for a vacancy with the Department of
     Homeland Security (DHS).       See Initial Appeal File (IAF), Tab 1 at 5, Tab 4
     at 12-17. DHS responded with a letter indicating that she was tentatively selected
     for the position in October 2012. IAF, Tab 4 at 20-21. The letter specified that
     her selection could not be confirmed until her pre-employment checks were
     completed. Id. at 20. DHS instructed the appellant to complete the applicable
     security forms, and informed her that, although she was a prior federal employee
     with the Department of Labor (DOL), she might be subject to a new background
     investigation. Id.; IAF, Tab 1 at 5. In February 2013, DHS notified the appellant
     that an Office of Personnel Management (OPM) background investigation was
     closed.   IAF, Tab 6 at 38.    As part of that investigation, the appellant had
     revealed that DOL had issued her a 10-day suspension in April 2011.              Id.
     Therefore, DHS requested that the appellant provide a copy of the corresponding
     proposal and decision letters issued by DOL. Id.
¶3        DHS rescinded its tentative selection of the appellant for its vacancy in
     April 2013. IAF, Tab 4 at 24. At that time, DHS indicated that while there was
     an immediate need to fill the position in order to meet mission requirements, the
     agency was unable to determine how long it would take to complete its
     investigation of the appellant’s background. Id. Subsequently, the appellant filed
     an IRA appeal 2 with the Board, alleging that the rescission was the result of


     2
       In addition to DHS, the appeal named OPM and DOL as parties. IAF, Tab 1 at 4. The
     appeal was split into three distinct cases against DHS, OPM, and DOL. See IAF (claim
     against DHS); Boyd v. Office of Personnel Management, MSPB Docket No.
     AT-0731-13-7162-I-1 (claim against OPM); Boyd v. Department of Labor, MSPB
     Docket No. AT-3443-13-7178-I-1 (claim against DOL). The Board adjudicated them
     separately from this IRA appeal.
                                                                                         3

     whistleblower disclosures she made in May 2010 and April 2011, while employed
     at DOL. 3 IAF, Tab 1 at 9-10.
¶4        Following the appellant’s appeal of DHS’s nonselection, the administrative
     judge ordered the appellant to submit argument and evidence constituting a
     nonfrivolous allegation falling within the Board’s jurisdiction. IAF, Tab 5. The
     appellant submitted a response.     IAF, Tab 6.    Nevertheless, without holding a
     hearing, the administrative judge dismissed the case for lack of jurisdiction. IAF,
     Tab 12, Initial Decision (ID). The appellant has filed a petition for review, to
     which the agency has responded. Petition for Review (PFR) File, Tabs 1, 3.
¶5        Generally, in order to establish jurisdiction over an IRA appeal, an
     appellant must prove that she exhausted her administrative remedies before the
     Office of Special Counsel (OSC) 4 and make nonfrivolous allegations that (1) she
     engaged   in   whistleblowing    activity   by    making   a   protected   disclosure
     under 5 U.S.C. § 2302(b)(8), and (2) the disclosure 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).     King v. Department of Army, 116 M.S.P.R. 689, ¶ 6
     (2011). For the first element, engaging in whistleblowing activity by making a
     protected disclosure, the Board has found that an individual who is perceived as a



     3
       The appellant resigned from her DOL position in April 2012. In three prior Board
     appeals, she alleged that DOL constructively removed her and engaged in whistleblower
     retaliation. The Board dismissed the constructive removal appeal. Boyd v. Department
     of Labor, MSPB Docket No. AT-0752-12-0513-I-1, Final Order at 3-8 (Sept. 17, 2013).
     The Board reviewed her whistleblower retaliation claims, found that she failed to meet
     her burden of proof as to one and dismissed the other based upon judicial efficiency.
     Boyd v. Department of Labor, MSPB Docket Nos. AT-1221-12-0456- W-1 &
     AT-1221-12-0665-W-1, Final Order at 4, 7-11 (Sept. 17, 2013). The U.S. Court of
     Appeals for the Federal Circuit affirmed those decisions. Boyd v. Department of Labor,
     561 F. App’x 973 (Fed. Cir. 2014) (Table); Boyd v. Department of Labor, 561 F. App’x
     978 (Fed. Cir. 2014) (Table).
     4
        The administrative judge determined that the appellant had exhausted her
     administrative remedies with OSC prior to filing her appeal with the Board. ID at 5;
     see IAF, Tab 1 at 13-15 (OSC letters closing the appellant’s complaint).
                                                                                          4

     whistleblower is still entitled to the protections of the Whistleblower Protection
     Act (WPA), even if she has not made protected disclosures. 5 Id.
¶6         In finding that the appellant failed to allege a nonfrivolous allegation that
     she made a protected disclosure or that DHS perceived her as a whistleblower, the
     administrative judge erred.     See ID at 6.     The appellant’s appeal of DHS’s
     nonselection in the instant case referenced her prior whistleblower appeals. IAF,
     Tab 1 at 5 n.3.    In those prior appeals, the Board confirmed that she made
     protected disclosures. 6 See Boyd, 120 M.S.P.R. 65 (2013) (Table), Docket Nos.
     AT-1221-12-0456-W-1 & AT-1221-12-0665-W-1, Final Order at 7. In addition,
     her response to the administrative judge’s show cause order included a letter from
     the appellant to DHS. IAF, Tab 6 at 43-47. The letter is dated October 31, 2012,
     which falls after DHS’s tentative offer but before DHS’s rescission of that offer.
     Id. The letter described several legal actions involving the appellant, including a
     libel and slander suit reportedly stemming from harassment at DOL because she
     had reported incidents of fraud, waste, and abuse. Id. at 45. The administrative
     judge’s decision failed to address the Board’s prior determination that the
     appellant made protected disclosures and it failed to address the October 31, 2012
     letter and whether it could have caused DHS to perceive the appellant as
     a whistleblower.
¶7         As to the second jurisdictional element, whether the disclosure was a
     contributing factor in the agency’s decision to take or fail to take a personnel
     action, the administrative judge also erred. His decision concluded that the Board

     5
      The Whistleblower Protection Enhancement Act of 2012 (WPEA), which amended the
     WPA, became effective on December 27, 2012, before the appeal was filed in this case.
     We find that the changes enacted by the WPEA do not affect the outcome of this appeal.
     6
        The protected disclosures were letters that were sent to the Government
     Accountability Office, requesting an investigation into the operations of the Office of
     Foreign Labor Certification as it related to a lack of production standards, frequent
     breaks, pay inequality, questionable hiring practices, misuse of government equipment,
     and poor training programs. Boyd, MSPB Docket Nos. AT-1221-12-0456-W-1 &
     AT-1221-12-0665-W-1, Final Order at 3 n.4.
                                                                                       5

     lacks jurisdiction over any concerns the appellant had regarding DHS’s handling
     of a security clearance. ID at 6. However, in its response to the show cause
     order, DHS explicitly argued that it rescinded its tentative job offer without
     making any determination on the appellant’s background, suitability, or security
     clearance. IAF, Tab 4 at 5, 8. Under the WPA, the cancellation of a vacancy
     announcement or nonselection of an applicant for an appointment can be a
     personnel action. King, 116 M.S.P.R. 689, ¶ 10.
¶8        Although DHS’s rescission of its offer and nonselection of the appellant did
     amount to a personnel action under the WPA, she was still required to present a
     nonfrivolous allegation that her protected disclosure or DHS’s perception of her
     as a whistleblower was a contributing factor to her nonselection. See id., ¶¶ 6, 9.
     However, a 1994 amendment to the WPA permits an appellant to demonstrate that
     a disclosure was a contributing factor to a personnel action through circumstantial
     evidence, such as evidence that the official taking the personnel action knew of
     the whistleblowing disclosure and took the personnel action within a period of
     time such that a reasonable person could conclude that the disclosure was a
     contributing factor in the personnel action. See 5 U.S.C. § 1221(e)(1)(A), (B);
     Powers v. Department of the Navy, 69 M.S.P.R. 150, 155-56 & n.6 (1995).
¶9        In his decision, the administrative judge did not address the knowledge
     prong of the knowledge/timing test.        ID at 7.    Instead, he relied on the
     approximate 2-year delay between the appellant’s alleged disclosure and DHS’s
     cancellation of her tentative job offer in finding that the timing aspect of the
     knowledge/timing test was not satisfied.      ID at 7.     However, the language
     of 5 U.S.C. § 1221(e)(1)(B) does not prohibit the inference of a causal link in a
     case such as this, where an agency is alleged to have learned of a disclosure long
     after the disclosure itself but shortly before taking a personnel action. Therefore,
     by failing to address the appellant’s October 31, 2012 letter notifying DHS of her
     alleged disclosures and limiting his review of the timing to the span between the
     actual disclosure and DHS’s action, the administrative judge erred.
                                                                                     6

¶10        Based upon the above, we find that the appellant met her burden of
      establishing Board jurisdiction regarding her nonselection for the DHS vacancy.
      Because she made nonfrivolous allegations, the appellant is entitled to a hearing
      on the merits to determine whether her disclosures were a contributing factor in
      her nonselection.   See Oscar v. Department of Agriculture, 103 M.S.P.R. 591,
      ¶ 7 (2006).

                                          ORDER
¶11        For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                           ______________________________
                                               William D. Spencer
                                               Clerk of the Board
      Washington, D.C.
