                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 23

                            Docket No. PH-1221-15-0449-W-1

                                   Kinsman Corthell,
                                        Appellant,
                                             v.
                          Department of Homeland Security,
                                         Agency.
                                        June 7, 2016

           Kinsman Corthell, Bow, New Hampshire, pro se.

           Larry Zieff, Esquire, Williston, Vermont, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons set forth below, we VACATE the initial decision and REMAND the
     appeal for further proceedings consistent with this Opinion and Order.

                                     BACKGROUND
¶2         On November 25, 2014, the appellant retired from his position as a
     Supervisory Criminal Investigator with the agency’s Office of Immigration and
     Customs Enforcement (ICE).      Initial Appeal File (IAF), Tab 1 at 5.    At some
     point thereafter, he filed a complaint with the Office of Special Counsel (OSC),
                                                                                        2

     in which he alleged that the agency retaliated against him for disclosing fraud,
     waste, and abuse. Id. at 11. According to the notice of appeal rights issued by
     OSC, the appellant identified the following disclosures: that an “employee was
     committing time fraud because she disappeared from the office for a couple [of]
     hours after lunch each day; that another employee was not producing the level of
     work [the appellant] expected because she was working from a different location;
     and that [the appellant] had concerns about a trainee and proposed that he be
     moved to a different office.” Id. He further alleged that management retaliated
     against him based on its perception that he reported other matters to the agency’s
     Office     of   Inspector   General   (OIG)   concerning   other   employees   under
     investigation.    Id.   He alleged that the agency took the following retaliatory
     actions: placing him under investigation by the Office of Professional
     Responsibility; reassigning him from the Manchester, New Hampshire office to
     the Boston, Massachusetts office; prohibiting him from contacting other ICE
     employees in Manchester; denying him access to email; proposing his removal;
     placing him on administrative leave; and coercing him into resigning from his
     position because of the manner in which he was treated when he was reassigned
     to the Boston office. Id. He also alleged before OSC that an agency attorney
     attempted to convince him to sign a waiver form with the promise that he would
     receive retirement credentials and his badge mounted in Lucite. Id.
¶3            On May 28, 2015, OSC notified the appellant that it had closed its file, and
     advised him of his right to file an IRA appeal with the Board. Id. The appellant
     filed a timely Board appeal. Id. at 1. He attached a copy of the notice of appeal
     rights, which described the allegations he made before OSC, id. at 11, and further
     alleged that the agency took additional retaliatory actions, including ignoring his
     requests under the Freedom of Information Act, denying him per diem and
     lodging during his reassignment, and ignoring his requests for assistance under
     the Employee Assistance Program, id. at 2.         He also alleged that the agency
     discriminated against him because of his age and his disclosure of medical issues.
                                                                                         3

     Id. On the appeal form, he indicated that he also was appealing an involuntary
     retirement, i.e., a constructive removal. Id. at 2. 1
¶4           On August 13, 2015, the administrative judge issued an order advising the
     appellant of the jurisdictional requirements for an IRA appeal based on a claim of
     retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8). IAF, Tab 6. He
     directed the appellant to file a statement, accompanied by evidence, addressing
     those jurisdictional requirements.     Id. at 6-7.      As to the appellant’s claim of
     retaliation for his perceived involvement in an OIG investigation, the
     administrative judge stated that the Board “has not yet decided whether an
     individual alleging a violation of 5 U.S.C. § 2302(b)(9) may gain protected status
     by claiming to have been perceived as having engaged in protected activity.” Id.
     at 5.
¶5           The appellant did not respond to the administrative judge’s order below.
     Based on the written record, the administrative judge dismissed the appeal for
     lack of jurisdiction, finding that the appellant had failed to make a nonfrivolous
     allegation that he made a protected disclosure under 5 U.S.C. § 2302(b)(8). IAF,
     Tab 9, Initial Decision (ID). 2 He further found that the appellant’s claims of
     discrimination did not provide an independent basis for Board jurisdiction. ID
     at 5.
¶6           On petition for review, the appellant submits numerous documents relating
     to his whistleblowing retaliation claims, including additional correspondence
     with OSC.     Petition for Review (PFR) File, Tab 1.          The agency has filed a


     1
       The appellant also checked a box indicating that he was appealing a suspension of
     more than 14 days. IAF, Tab 1 at 2. It appears he did so in error, as he has not
     otherwise alleged in his pleadings that the agency suspended him.
     2
       The administrative judge reasoned that the appellant’s disclosures were vague,
     conclusory, and lacked sufficient detail to constitute nonfrivolous allegations of
     protected disclosures. ID at 4-5.
                                                                                           4

     response, arguing that the appellant’s petition does not satisfy the criteria for
     review. PFR File, Tab 3.

                                          ANALYSIS
     The Board may consider a request for corrective action under 5 U.S.C. § 1221
     based on a claim that an agency took or failed to take a personnel action based on
     its perception that the appellant engaged in protected activity under 5 U.S.C.
     § 2302(b)(9)(C).
¶7         The Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12,
     103 Stat. 16, as amended by the Whistleblower Protection Enhancement Act of
     2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, authorizes the Board to
     provide corrective action for certain prohibited personnel practices. Specifically,
     5 U.S.C. § 1221(a) provides an avenue for an employee, former employee, or
     applicant for employment to seek corrective action before the Board “with respect
     to any personnel action taken, or proposed to be taken against [him] as a result of
     a prohibited personnel practice described in [5 U.S.C. §] 2302(b)(8) or
     [§] 2302(b)(9)(A)(i), (B), (C), or (D)[.]” In the absence of a matter otherwise
     within the Board’s jurisdiction, an employee seeking relief under 5 U.S.C.
     § 1221(a) first must seek corrective action with OSC before seeking corrective
     action before the Board. 3 5 U.S.C. §§ 1214(a)(3), 1221(a). In such a case, the
     Board proceeding is known as an IRA appeal.
¶8         To establish jurisdiction in a typical IRA appeal, an appellant must show
     by preponderant evidence that he exhausted his remedies before OSC, and make
     nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C.
     § 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity


     3
      If the appellant seeks corrective action regarding a personnel action that is otherwise
     appealable to the Board, he may bring the matter before the Board without first seeking
     corrective action before OSC. 5 U.S.C. § 1221(b).
                                                                                           5

     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).            Linder v. Department of
     Justice, 122 M.S.P.R. 14, ¶ 6 (2014); 5 C.F.R. § 1201.57(a)(1), (c)(1); see
     Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
     Once jurisdiction is established, the appellant may be entitled to corrective action
     if he shows by preponderant evidence that he made a protected disclosure under
     5 U.S.C.    § 2302(b)(8)    or   engaged   in   protected    activity   under   5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D), and that the protected disclosure or activity
     was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); 5 C.F.R.
     § 1201.57(c)(4).     However, the Board will not order corrective action if the
     agency then demonstrates by clear and convincing evidence that it would have
     taken the same personnel action in the absence of the protected disclosure or
     activity.   5 U.S.C. § 1221(e)(2); Shannon v. Department of Veterans Affairs,
     121 M.S.P.R. 221, ¶ 24 (2014); see Alarid v. Department of the Army,
     122 M.S.P.R. 600, ¶¶ 12-14 (2015) (applying the burden-shifting scheme of
     5 U.S.C. § 1221(e) to the reprisal for protected activity under 5 U.S.C.
     § 2302(b)(9)(B)).
¶9          This case differs from the typical IRA appeal in that the appellant alleges
     that the agency took personnel actions against him in part because of his
     protected disclosures under 5 U.S.C. § 2302(b)(8), but also in part because of its
     mistaken    belief   that   he   engaged   in   activity    protected   under   5 U.S.C.
     § 2302(b)(9)(C) by reporting matters to his agency’s OIG.               Under the latter
     provision, it is a prohibited personnel practice for an agency to:
            take or fail to take, or threaten to take or fail to take, a personnel
            action with respect to any employee or applicant for employment
            because of . . . cooperating with or disclosing information to the
            Inspector General of an agency, or the Special Counsel, in
            accordance with applicable provisions of law[.]
     5 U.S.C. § 2302(b)(9)(C).        We have not yet had the opportunity to address
     whether an appellant may seek corrective action under 5 U.S.C. § 1221(a) based
                                                                                           6

      on a claim of reprisal for perceived 5 U.S.C. § 2302(b)(9)(C) activity. For the
      reasons discussed below, we find that the Board is authorized to consider such
      a claim.
¶10         First, the statute speaks to the motivation of the agency, forbidding the
      agency to take or fail to take, or threaten to take or fail to take, a personnel action
      with respect to any employee or applicant for employment because of
      “cooperating with or disclosing information to the Inspector General of an
      agency.”    5 U.S.C. § 2302(b)(9)(C).      It does not specify that the appellant
      actually   must   have   engaged    in   the    protected   activity   under   5 U.S.C.
      § 2302(b)(9)(C) that motivated the agency.          As to the Board’s jurisdiction,
      5 U.S.C. § 1221(a) provides that, if the jurisdictional requirements are otherwise
      met, an employee may seek corrective action before the Board with respect to any
      personnel action taken against that individual “as a result of a prohibited
      personnel practice” under 5 U.S.C. § 2302(b)(8) or § 2302(b)(9)(A)(i), (B), (C),
      or (D). 5 U.S.C. § 1221(a) (emphasis added). Thus, the statute does not require
      specifically that the prohibited personnel practice for which the appellant seeks
      corrective action involve a protected disclosure or protected activity on the part
      of the appellant. We find nothing in the legislative history of the WPA, which
      introduced 5 U.S.C. § 2302(b)(9)(C), or the WPEA, which extended the
      protections of the WPA to activity described at 5 U.S.C. § 2302(b)(9)(C), to
      suggest that Congress intended a narrower reading. 4
¶11         Furthermore, a broad reading of the statute would harmonize with our
      existing case law holding that the protections of the WPA may be available to
      employees who did not make protected disclosures under 5 U.S.C. § 2303(b)(8),
      but were perceived as having done so.          See King v. Department of the Army,

      4
       See S. Rep. No. 112-155 at 1, which states that the WPEA “will strengthen the rights
      and protections for federal whistleblowers so that they can more effectively help root
      out waste, fraud and abuse in the federal government.”
                                                                                                7

      116 M.S.P.R. 689, ¶ 6 (2011). For example, we have found that the WPA may
      cover a “mistaken identity” scenario, in which the relevant agency official
      believed the appellant made disclosures that were in fact made by another
      individual. See, e.g., Special Counsel v. Department of the Navy, 46 M.S.P.R.
      274, 276, 278-80 (1990). As we explained in Special Counsel v. Department of
      the Navy, failure to provide an employee with the protections of the WPA in such
      circumstances    would      discourage   other     employees    from      make   protected
      disclosures, and such a chilling effect would contravene the purpose of the
      statute.   Id. at 278-79.    Similarly, we find that to exclude from the Board’s
      jurisdiction claims of reprisal based on perceived 5 U.S.C. § 2302(b)(9)(C)
      activity would defeat the purpose of the statute by discouraging other employees
      from engaging in activity which Congress has found to be in the public interest.
      Although the protection in section 2309(b)(9) is for the activity of going to the
      OIG, it is actually the equivalent of protecting disclosures to the OIG. Given that
      the Board has long decided to protect disclosures it would be inconsistent not to
      protect this disclosure/activity as well.
¶12          In sum, we find that 5 U.S.C. § 1221(a) authorizes the Board to consider a
      request for corrective action where the appellant alleges that the agency violated
      5 U.S.C. § 2302(b)(9)(C) by taking or failing to take a personnel action based on
      its perception that he engaged in activity protected under that statute. As with a
      claim of reprisal for perceived whistleblowing, the Board will not inquire
      regarding whether the appellant actually engaged in the protected activity; rather,
      the issue of whether the agency perceived the appellant to have engaged in the
      protected activity will stand in for that portion of the analysis at both the
      jurisdictional and merits stage of the appeal. See King, 116 M.S.P.R. 689, ¶ 8
      (describing   the   analysis   to   be   applied    in   a   claim   of    retaliation   for
      perceived whistleblowing).
¶13          Thus, to establish jurisdiction over an IRA appeal involving such a claim,
      the appellant must establish that he exhausted his remedies with OSC and make
                                                                                             8

      nonfrivolous allegations that the agency perceived him to have engaged in the
      protected activity and that its perception was a contributing factor in the agency’s
      decision to take or not take the personnel action at issue.                See Linder,
      122 M.S.P.R. 14, ¶ 6. 5 Once jurisdiction is established, the appellant may be
      entitled to corrective action if he shows by preponderant evidence that the
      agency’s perception that he engaged in activity under 5 U.S.C. § 2302(b)(9)(C)
      was a contributing factor in the decision to take or not take the personnel action.
      5 U.S.C. § 1221(e)(1); see King, 116 M.S.P.R. 689, ¶ 9.           However, the Board
      will not order corrective action if, after finding the agency’s perception of the
      protected activity, the agency demonstrates by clear and convincing evidence that
      it would have taken the same personnel action in the absence of that perception.
      5 U.S.C. § 1221(e)(2); see King, 116 M.S.P.R. 689, ¶ 9.
¶14         An appellant must receive explicit information on what is required to
      establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
      Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Accordingly, we remand the case
      to provide the appellant notice of the requirements of establishing jurisdiction
      over this IRA appeal concerning his claim of retaliation for perceived 5 U.S.C.
      § 2302(b)(9)(C) activity, and afford him the opportunity to provide evidence and
      argument on the issue. 6 See King, 116 M.S.P.R. 689, ¶ 11.


      5
        In considering the contributing factor element, the perception of the responsible
      agency official will stand in for the knowledge component of the knowledge/timing test
      under 5 U.S.C. § 1221(e)(1).
      6
        The appellant received notice below of the jurisdictional requirements for an IRA
      appeal alleging a violation of 5 U.S.C. § 2302(b)(8), IAF, Tab 6, and he failed to submit
      evidence and argument on that issue to the administrative judge. On review, the
      appellant submits a document that appears to show that he submitted a request for an
      extension of time to respond to the administrative judge’s order. PFR File, Tab 1 at 83.
      The Board’s records, however, do not indicate receipt of the appellant’s pleading. In
      any event, the document bears a facsimile transmittal date of September 8, 2015,
      sixteen days after the deadline set by the administrative judge for the appellant to
      respond to the jurisdictional order. Id.; IAF, Tab 6 at 7. The appellant has offered no
                                                                                              9

      The appellant’s decision to seek corrective action before OSC concerning his
      alleged involuntary retirement was not a binding election and does not preclude
      him from filing a separate constructive removal appeal.
¶15         Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action
      appealable to the Board, and who alleges that he has been affected by a
      prohibited personnel practice other than a claim of discrimination under 5 U.S.C.
      § 2302(b)(1), may elect one, and only one, of the following remedies:              (1) an
      appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under the
      provisions of a negotiated grievance procedure; or (3) a complaint following the
      procedures for seeking corrective action from OSC under 5 U.S.C. chapter 12,
      subchapters II and III.    Agoranos v. Department of Justice, 119 M.S.P.R. 498,
      ¶ 14 (2013); see 5 C.F.R. § 1209.2(d)(1).
¶16         Here, the appellant raised the matter of his alleged involuntary retirement
      with OSC before proceeding to the Board. IAF, Tab 1. Ordinarily, an individual
      who first requests corrective action from OSC will be deemed to have made a
      binding election to proceed in that forum. Agoranos, 119 M.S.P.R. 498, ¶ 14;
      5 C.F.R. § 1209.2(d). In such a case, the procedures for an IRA appeal apply,
      even if the contested personnel action would have been directly appealable to the
      Board.    5 C.F.R. § 1209.2(d)(2).      In adjudicating the merits of such an IRA
      appeal, Board will limit its inquiry to issues listed at 5 U.S.C. § 1221(e), and
      will not consider affirmative defenses.         5 C.F.R. § 1209.2(c).      Thus, if the
      appellant were to establish in the context of his IRA appeal that his retirement
      was involuntary, and thus tantamount to a removal, he could not pursue his
      discrimination claim, and any failure by the agency to provide him constitutional
      due process would not by itself entitle the appellant to a remedy.



      explanation for his failure to respond or request an extension of time in a timely fashion
      below. Accordingly, only the appellant’s claim of retaliation for perceived 5 U.S.C.
      § 2302(b)(9)(C) activity need be considered on remand.
                                                                                      10

¶17         However, we have held that an election under 5 U.S.C. § 7121(g) is
      binding only if it was knowing and informed. Agoranos, 119 M.S.P.R. 498, ¶ 16.
      An agency’s failure to inform an employee fully of his potential appeal rights
      under 5 U.S.C. § 7121(g) and any limitation on those rights precludes a finding
      that the appellant made a knowing and informed election of remedies under that
      provision. Agoranos, 119 M.S.P.R. 498, ¶¶ 15-17. Here, the agency did not issue
      a letter of decision or otherwise provide the appellant with the required notice,
      and there is no indication that he was informed through some other means. See
      Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 10 (2015); Savage v.
      Department of the Army, 122 M.S.P.R. 612, ¶ 18 (2015). We therefore find that
      the appellant’s decision to seek corrective action with OSC does not preclude him
      from filing an adverse action appeal under 5 U.S.C. chapters 75 and 77, while
      continuing to contest the remaining personnel actions in his IRA appeal. See
      Savage, 122 M.S.P.R. 612, ¶ 18. If the appellant elects to pursue his involuntary
      retirement claim separately from his IRA appeal, the adverse action appeal
      will not be subject to the jurisdictional requirements of an IRA appeal and
      will not be limited to the issues listed at 5 U.S.C. § 1221(a).       See Savage,
      122 M.S.P.R. 61, ¶ 22. On remand, the administrative judge should determine
      whether the appellant wishes to pursue that course of action.

                                           ORDER
¶18         We vacate the initial decision and remand this appeal to the regional office.
      On remand, the administrative judge should first determine whether the appellant
      wishes to pursue his alleged involuntary retirement claim separately from his IRA
      appeal. If the appellant does so wish, the administrative judge should docket the
      alleged involuntary retirement claim as an adverse action appeal under
      chapters 75 and 77 and adjudicate that appeal.     The administrative judge also
      should provide the appellant notice of the jurisdictional requirements for an IRA
      appeal based on a claim of retaliation for perceived 5 U.S.C. § 2302(b)(9)(C)
                                                                       11

activity and afford him an opportunity to present evidence and argument on
the issue.



FOR THE BOARD:


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