                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JUSTIN LEVY,                                    DOCKET NUMBER
                         Appellant,                  DE-1221-13-0216-W-3

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 18, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

           Bryan L. Downs, Esquire, and Eric McNeilus, Esquire, Tucson, Arizona,
             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
     denied his request for corrective action. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant filed an individual right of action (IRA) appeal alleging that
     the agency terminated him during his 1-year probationary period in a Customs
     and Border Patrol Officer (CBPO) position in retaliation for his disclosure of
     improper/fraudulent hiring practices. Levy v. Department of Homeland Security,
     MSPB Docket No. DE-1221-13-0216-W-1, Initial Appeal File (IAF), Tab 1.
     Specifically, he alleged that he informed agency officials that he had accepted a
     CBPO position in Nogales, Arizona, as his preferred duty station, based on
     misleading information. He argued that agency employees involved in the hiring
     process misled him into accepting the position in Nogales by telling him that he
     could change his preferred duty station to New Jersey and that he would be
     granted reassignment to the first New Jersey opening. He stated that New Jersey
     (Newark Airport) had openings for CBPOs during his first year of employment;
     however, contrary to the information that he received when he changed his
     preferred duty station to Nogales, he was not permitted to change his preferred
     duty station and was not reassigned to New Jersey. IAF, Tab 5 at 19-23.
¶3        The administrative judge found that the appellant made a nonfrivolous
     allegation that he made a protected disclosure and afforded him his requested
     hearing. IAF, Tab 18. However, based on the record developed by the parties,
                                                                                            3

     including the hearing testimony, the administrative judge found that the appellant
     failed to prove his nonfrivolous allegation by preponderant evidence.            Levy v.
     Department of Homeland Security, MSPB Docket No. DE-1221-13-0216-W-3,
     Appeal File, Tab 5, Initial Decision (ID). 2 The administrative judge also found
     that the appellant failed to submit evidence to support any of his assertions. The
     administrative judge found that the appellant failed to show that any agency
     employee involved in the process of hiring him for the CBPO position in Nogales
     told him that he could change his preferred duty location to New Jersey before the
     end of his 2-year commitment to the position in Nogales. ID at 10. In making
     this finding, the administrative judge credited the testimony of the Minneapolis
     Hiring Center employee who the appellant claimed told him he would be able to
     change his preferred duty station before the end of his 2-year commitment if a
     position opened up in New Jersey.          ID at 10.     That employee denied ever
     discussing switching preferred duty stations with the appellant or making any of
     the promises that the appellant alleged were made about a change of duty station
     to New Jersey and a selection for a CBPO position there. ID at 12.
¶4         In his petition for review, the appellant contends that the administrative
     judge erred in finding that the appellant’s testimony was not credible. He also
     contends that he met his burden to prove a prima facie case and that the agency
     failed to prove by clear and convincing evidence that it would have terminated
     him in the absence of his whistleblowing. Petition for Review (PFR) File, Tab 1.




     2
       The administrative judge dismissed the initially filed appeal without prejudice to
     allow the parties to engage in discovery, after he found that the appellant had made a
     nonfrivolous allegation of a protected disclosure. IAF, Tab 18. The administrative
     judge dismissed the refiled appeal without prejudice to allow the parties to file closing
     submissions after their review of the hearing transcript. Levy v. Department of
     Homeland Security, MSPB Docket No. DE - 1221 - 13 - 0216-W-2, Appeal File, Tab 31.
                                                                                          4

¶5         Under the law in effect at the time of the material events in this appeal, i.e.,
     the Whistleblower Protection Act (WPA), 3 the Board had jurisdiction over an IRA
     appeal if the appellant exhausted his administrative remedies before the Office of
     Special Counsel and made nonfrivolous allegations that:            (1) he engaged in
     whistleblowing activity by making a protected disclosure, and (2) the disclosure
     was a contributing factor in the agency’s decision to take or fail to take a
     personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
     (Fed. Cir. 2001). After establishing the Board’s jurisdiction in an IRA appeal, the
     appellant then must establish a prima facie case of whistleblower retaliation by
     proving by preponderant evidence that he made a protected disclosure that was a
     contributing factor in a personnel action taken against him.                  5 U.S.C.
     § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7
     (2015). If the appellant makes out a prima facie case, then the agency is given an
     opportunity to prove, by clear and convincing evidence, that it would have taken
     the same personnel action in the absence of the protected disclosure. 5 U.S.C.
     § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶6         A protected disclosure includes any disclosure of information that the
     employee reasonably believes evidences a violation of any law, rule, or
     regulation, or gross mismanagement, a gross waste of funds, an abuse of
     authority, or a substantial and specific danger to public health or safety. 5 U.S.C.
     § 2302(b)(8) (2011). The test of a reasonable belief 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 one of the
     types of wrongdoing listed above. Lachance v. White, 174 F.3d 1378, 1381 (Fed.
     Cir. 1999).



     3
      All of the relevant events, including the appellant’s termination, occurred before the
     December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of
     2012. Pub. L. No. 112–199, § 202, 126 Stat. 1465, 1476.
                                                                                     5

¶7        We agree with the administrative judge that the appellant made a
     nonfrivolous allegation that he made a protected disclosure by alleging that
     agency personnel engaged in improper/fraudulent hiring practices. At issue here
     is whether the administrative judge properly found that the appellant failed to
     meet his burden to prove by preponderant evidence that he made a
     protected disclosure.
¶8        The proper test for determining whether an employee had a reasonable
     belief that his disclosure revealed misconduct described in section 2302(b)(8) is
     whether a disinterested observer with knowledge of the essential facts known to
     and readily ascertainable by him could reasonably conclude that it did. Reeves v.
     Department of the Army, 99 M.S.P.R. 153, ¶ 13 (2005). The appellant testified
     that he had a conversation with an agency employee from the Minneapolis Hiring
     Center in April 2011 who told him that if he switched his preferred location to
     Nogales, he could immediately switch back once a slot in New Jersey opened.
     March 6, 2014 Hearing Transcript 1 (HT1) at 116.       He also testified that this
     same employee stated that the appellant would have “first dibs” on any
     New Jersey-based CBPO position that became available per their “verbal
     contract,” and that it overrode any conflicting paperwork. HT1 at 117-20. He
     testified that this employee repeated these assurances in a later conversation.
     HT1 at 123-25.
¶9        The Minneapolis Hiring Center employee who had allegedly spoken with
     the appellant about changing his preferred location also testified. Her testimony
     is markedly different from the appellant’s about the content of their
     conversations. She testified that, in accordance with Hiring Center policy, she
     was required to make a notation in the computer system of every communication
     with an applicant and she found no notation for April 2011 about any
     conversation with the appellant.    March 7, 2014 Hearing Transcript 2 (HT2)
     at 119-33. She also testified that her computer notes show that she spoke with the
     appellant three times in September 2011: first, when offering him the position in
                                                                                      6

      Nogales; second, when he accepted the position; and third, to answer his
      questions about when he would receive an entry-on-duty letter, when his medical
      fitness-for-duty examination would be scheduled, and how to contact Nogales
      officials. HT2 at 123. She denied ever discussing with the appellant switching
      his preferred duty station back to New Jersey or making any of the alleged
      promises regarding such a change. Id.
¶10         The administrative judge found the Hiring Center employee’s testimony
      credible. ID at 12. He found that her testimony was straightforward and was
      consistent both with her written summary of the contemporaneous notes kept in
      her computer records and with her limited authority and responsibilities in the
      hiring process. ID at 12-13. Also, he found that her interaction with applicants
      who accepted positions was limited to reading scripted remarks when they
      accepted positions, and her performance was not judged in the number of
      applicants who accepted positions. ID at 13.
¶11         In contrast, the administrative judge found the appellant’s testimony
      inherently improbable. ID at 13. He found that the appellant gave no convincing
      explanation why a reasonable person would have believed or relied on the oral
      promise of a Hiring Center employee without knowing if that person had the
      authority to assure him of placement in the first available New Jersey CBPO
      opening. ID at 13. He found further that the alleged oral contract was contrary to
      several written documents that the appellant received and/or signed: (1) an email
      informing the appellant that, upon receiving a tentative offer for a specific
      geographic location, he would be unable to change location; (2) an email
      apprising him of his tentative selection for Nogales and informing him that this
      location was final, and if he was no longer interested in this location, he could
      decline the tentative offer and reapply during the next open period; and (3) a
      document that he signed informing him that he would be required to remain in
      Nogales for a period of at least 2 years. ID at 14.
                                                                                         7

¶12        The    Board   must     defer   to   an   administrative   judge’s   credibility
      determinations when they are based, explicitly or implicitly, on the observation of
      the demeanor of witnesses testifying at a hearing; the Board may overturn such
      determinations only when it has “sufficiently sound” reasons for doing so.
      Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .          The
      appellant’s argument that the administrative judge erred in crediting the Hiring
      Center employee’s testimony as to what transpired during their conversations,
      rather than crediting the appellant’s testimony, is mere disagreement with the
      administrative judge's credibility findings and, as such, provides no basis for
      disturbing the initial decision. See Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the
      administrative judge’s findings when she considered the evidence as a whole,
      drew appropriate inferences, and made reasoned conclusions).
¶13        In light of the appellant’s failure to prove the factual allegations of the
      content of his conversations with the Hiring Center employee, we agree with the
      administrative judge that he failed to meet his burden to prove by preponderant
      evidence that he made disclosures protected by section 2302(b)(8) when he
      informed agency officials that he had accepted a CBPO position in Nogales based
      on misleading information.     Having failed to prove that he made a protected
      disclosure, the appellant consequently failed to establish a prima facie case of
      retaliation for whistleblowing. Thus, the burden did not shift to the agency to
      prove by clear and convincing evidence that it would have terminated the
      appellant in the absence of his whistleblowing. See Lu, 122 M.S.P.R. 335, ¶ 7.
¶14        In his petition, the appellant appears to argue that the administrative judge
      erred in failing to address whether the agency met its evidentiary burden. But, as
      stated above, because the appellant’s alleged disclosure was not protected under
      the WPA, we do not address these contentions.        See Clarke v. Department of
      Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 (2014) (declining to address whether the
      agency met its burden to prove by clear and convincing evidence that it would
                                                                                       8

have taken the action in the absence of the disclosures when the employee’s
disclosures were not protected under the WPA). 4

                 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 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


4
  In his petition, the appellant asks the Board to consider the undue length of time from
the closing of the record to the issuance of the initial decision as prejudice to the
appellant. PFR File, Tab 1 at 4. The Board has held that an administrative judge’s
delay in issuing a ruling, without more, does not constitute reversible error. See, e.g.,
Fouquet v. Department of Agriculture, 82 M.S.P.R. 548, ¶¶ 7–9 (1999) (holding that an
appellant was not prejudiced by an administrative judge’s 1-year delay in issuing an
initial decision when there was no evidence that the administrative judge could not
recall details of testimony so as to make accurate credibility determinations).
Therefore, we find no prejudice to the appellant stemming from the length of time
between the close of the record and the issuance of the initial decision.
                                                                                  9

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 United States 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
United States 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
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.
